Delhi District Court
Sc No: 57617/16 State vs . Salim & Anr. on 27 March, 2017
SC No: 57617/16 State Vs. Salim & Anr.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:
S. C. No. 57617/16
FIR No. 288/13
Police Station Mukherjee Nagar
Under Section 363/336A/34 IPC
& Section 6 POCSO Act
State
Versus
1) Salim
S/o Abdul Gani
R/o H.No. B-145, Gali No. 1
Kabir Nagar, Shahdra, Delhi
2) Yunus
S/o Islamuddin
R/o B-1023, Gali No. 1
Kabir Nagar, Shahdra, Delhi ......Accused Persons
Date of institution 18.11.2013
Judgment reserved on 07.03.2017
Judgment Pronounced on 22.03.2017
Decision Accused Salim
Convicted
Judgment 1 of 19
SC No: 57617/16 State Vs. Salim & Anr.
JUDGMENT
1. Accused Salim is facing trial in present case on allegations of kidnapping and committing repeated penetrative sexual assault on "prosecutrix M" a girl aged about 14 years and accused Yunus is facing trial on allegations of kidnapping prosecutrix in furtherance of his common intention with co- accused Salim.
2. Initially, FIR in question was registered U/s. 363 IPC on the missing complaint lodged by father of prosecutrix who alleged that on 23.07.2013, her daughter/prosecutrix went missing from his house and despite search made by him, prosecutrix could not be found. As per the charge-sheet, on secret information police team raided a house in Saraswati Vihar Colony, near Inter College, Pink Color house, Loni, UP on 31.07.2013 from where accused and prosecutrix were apprehended. Prosecutrix was got medically examined and her statement was recorded U/s. 164 Cr. P.C. Judgment 2 of 19 SC No: 57617/16 State Vs. Salim & Anr.
3. On the basis of the statement made by prosecutrix, accused persons were arrested and charge-sheeted. Charge for the offence punishable u/s 363/34, 366A IPC and 6 POCSO (Protection of Children from Sexual Offences) Act, 2012 was framed against the accused Salim. Charge for offence punishable U/s 363/34 IPC was framed against the accused Yunus. Accused persons pleaded not guilty and claimed trial.
4. Prosecution examined 16 witnesses.
PW Name of witness Nature of Documents proved witness 1 Garima School Teacher Proved date of birth of prosecutrix as 03.07.1999 as per record as Ex. PW1/A & B. 2 M Prosecutrix Supported prosecution case, proved her statement recorded U/s 164 Cr.P.C as Ex PW2/A. 3 Father of prosecutrix Father Supported version of prosecutrix and proved missing complaint of prosecutrix as Ex. PW3/A. 4 Mother of Mother Proved her visit to PS with prosecutrix her husband on 31.07.2013.
Judgment 3 of 19 SC No: 57617/16 State Vs. Salim & Anr. 5 SI Adesh Kumari Duty Officer FIR as Ex. PW5/A, her endorsement on Rukka as Ex. PW5/B and Certificate u/s 65(B) IE Act as Ex. PW5/C. 6 Ct. Bijender Police Arrest of accused Salim, his personal search & disclosure statement as Ex.PW6/A to C. Also proved the seizure of exhibits of accused by IO vide memo Ex. PW6/C1. Arrest of accused Yunus and his personal search vide memos Ex. PW6/D & E. 7 Sh. Deepak Dabas Ld. MM Recorded statement of prosecutrix u/s. 164 Cr. P.C by him as Ex. PW2/A. 8 Dr. Neeraj Doctor MLC of prosecutrix as Chaudhary Ex. PW8/A, MLC of accused Salim as Ex. PW8/B & C and MLC of accused Yunus as Ex. PW8/D. 9 Dr. R. Kappu Doctor Medical examination of prosecutrix vide MLC Ex. PW8/A. 10 Sudhir Public Witness Proved stay of accused alongwith prosecutrix in his house as a tenant. 11 W/Ct. Mithilesh Police Proved seizure of exhibits of prosecutrix by IO vide memo Ex. PW11/A. Judgment 4 of 19 SC No: 57617/16 State Vs. Salim & Anr. 12 Ct. Satya Prakash Police Deposit of case property with FSL vide documents Ex. PW12/A & B. 13 ASI Ranbir Singh Police (MHC-M) Deposit of case property with Malkhana & FSL as per entries as Ex PW13/A & B. 14 Brother of Brother Provided mobile details of prosecutrix Salim and his employer to police and proved arrest of accused. 15 SI Manoj Kumar Investigating Recorded statement of father Officer of prosecutrix & prepared tehrir as Ex PW15/A, site plan as Ex PW15/B and pointing out memo at instance of accused Salim as Ex. PW15/C. 16 Inspector Raj Bala Investigating Got recorded statement of Officer prosecutrix U/s 164 Cr.P.C., arrested accused persons and produced FSL result Ex F-1.
5. In his statement recorded u/s 313 Cr.P.C, accused Salim stated that prosecutrix herself voluntarily came to his house and he did not establish physical relations with her. Accused Yunus in his statement recorded u/s 313 Cr.P.C stated that he has no role to play in the present case and he later on he came to know that prosecutrix herself of her own left her house.
Judgment 5 of 19
SC No: 57617/16 State Vs. Salim & Anr.
6. It is argued on behalf of accused persons that the prosecutrix was acquainted with accused Salim much prior to the incident and her testimony would show that she herself voluntarily accompanied the accused. It has also been submitted that there is no medical or forensic evidence on record which suggest penetrative sexual assault on prosecutrix. On behalf of accused Younus it has been submitted that he is not even remotely connected to the incident nor he played any role in the kidnapping of prosecutrix. Hence, both accused persons are entitled to be acquitted.
7. Per-contra, Ld. Addl. PP submits that not only prosecutrix but her parents also gave true account of the incident. It is submitted that testimony of prosecution witnesses are truthful and reliable and in light of evidence led on behalf of prosecution, accused is liable to be convicted.
Judgment 6 of 19
SC No: 57617/16 State Vs. Salim & Anr.
8. I have given thoughtful consideration to the arguments advanced and perused the material on record.
9. Age of the prosecutrix: Before dwelling upon incident of sexual assault, let us find out what was the age of prosecutrix at the time of incident. Prosecution has relied upon School record of prosecutrix as Ex. PW1/A & B as per which date of birth of prosecutrix is 03.07.1999.
10. Date of birth of prosecutrix is disputed by the defence by submitting that the school record of the prosecutrix cannot be taken as true indicative of her date of birth as witness who produced the school record during his cross-examination admitted that at the time of admission of prosecutrix, birth certificate furnished by her parents was not verified.
Judgment 7 of 19
SC No: 57617/16 State Vs. Salim & Anr.
11. Juvenile Justice (Care and Protection of Children) Act, 2015, under Section 94 has laid down certain guidelines to arrive at a finding about the age of a juvenile. It states that the age inquiry would be conducted by the Court by Certificate of School in respect of date of birth of juvenile, obtaining matriculation or equivalent certificate or the next option being the birth certificate issued by the municipal authorities or corporation or panchayat be obtained. In absence of aforesaid documents, a Medical Board will be constituted to determine the age of a juvenile.
12. No document has been produced by the defense to controvert date of birth of prosecutrix. In view of the mandate given under Juvenile Justice (Care and Protection of Children) Act, 2015, age of the juvenile(in present case, prosecutrix) as per her School record in which she was admitted in first standard is taken to be true. School record mentions her date of birth as 03.07.1999 that goes to show on the date of incident (24.07.2013) prosecutrix was about 14 years old.
Judgment 8 of 19
SC No: 57617/16 State Vs. Salim & Anr.
13. Allegations against accused Salim: After prosecutrix was recovered, her statement as Ex PW2/A was recorded u/s 164 Cr.P.C. It's English translation reads as under:
" ...Near to our house a bridge is under construction. A man namely Salim is working there. Salim used to keep watch on me. He wanted to say something to me but I used to ignore. Once he send me a letter. In the letter it was written that I love you. I didn't reply to the letter as I was scared. When I used to go to School Salim used to follow me on bike. Many a times I told him not to do this. Once he came on his bike and started talking to me after stopping the bike near me. Then my brother saw this and he suspected that there was something going on between Salim and me. My brother without saying came back from there. Salim also saw my brother. I got scared. I came back to my house. In my house my family members asked 2-3 questions. I was having Salim's number. I called Salim and told him never repeat this in future. Salim called me to meet him on pretext that he wanted to talk to me. On 23.07.2013, at about 11 AM I went to meet Salim. I was having my purse with me. When I met Salim, Salim started enticing me. Salim told me to "accompany him and that he will marry me and always keep me happy."
Salim instigated me against my family members. Salim told me to accompany him for a short-while after which he will drop me. I sat on Salim's bike. I was not able to understand. After traveling some distance Salim's friend Yunus met him. Yunus also sat on bike and drove it. I was made to sit in middle and Salim sat behind me. We reached Durgapuri Chowk. From there Salim made me to sit in an Auto and took me to Loni. There he took me to his friend's house. I told him to let Judgment 9 of 19 SC No: 57617/16 State Vs. Salim & Anr.
me go as it was getting late. Then he threatened me. He told me that you will not go anywhere and live with me. After some time Salim's friend went from there. Then Salim asked me to establish physical relations with him. I refused to do so. But Salim against my wishes raped me. He did this several times. I always refused him to do so but he did not agree. Later on, I came to know that Salim is already married. He used to say that he is unmarried. He used to confine me in a room. Yesterday, i.e. 31.07.2013, police reached there and apprehended us. Salim did very wrong with me, he should be punished."
14. Prosecutrix in her examination-in-chief has supported the prosecution version and has testified as under:
"At the time of incident a bridge was under
construction near my house, where one Salim (Accused present in the court today correctly identified by the witness) was working at that site. Salim used to follow me whenever I was going to my school and he used to ask me to make friendship with him and he also stated that, he loves me. He used to write me love letters many times, but I ignored and did not respond to his letters. I was not interested and also asked him so. But still he used to follow me again and again. When I had informed the abovesaid behaviour of accused to my family members and they had talked to him and also scolded him. They also stated him to beat him in case he will not mend his ways. However, he had left the site for some days.
One day when my school was off and on that day I was going towards Gopalpur for my personal work, he alongwith his friend came on the Judgment 10 of 19 SC No: 57617/16 State Vs. Salim & Anr.
bike and stopped me on the way and he questioned me that why I had not responded to his letters. Then he enticed me by saying that he loves me and requested to accompany him and shows his intentions to marry with me. He made me board his bike and took me towards Loni side in U.P. There, he kept in a room, where nobody was residing. When I requested him that, I have to go to my house, but he refused to take me back to my house. Thereafter, accused Salim had forcefully committed rape with me (developed physical relationship). He confined me there for about six/seven days and during those days he always committed rape with me. Thereafter, police personnel namely SI Manoj had rescued me from there. ......"
15. Versions of prosecutrix in respect of incident in her different statements are appearing as under:
a) About her relationship with accused:
It is correct that prior to the incident Salim used to meet me. It is also correct that Salim used to talk me prior to incident......
...... I did not tell any phone number to police, which I was using at that time. I do not remember, whether I told to police that, I used to send messages to Salim or not. I also did not tell to my parents about the love letters, which I had written to Salim. ..........
(Cross-examination)
Judgment 11 of 19
SC No: 57617/16 State Vs. Salim & Anr.
b) About her going with the accused:
On 23.07.2013, at about 11 AM I went to meet Salim. I was having my purse with me. When I met Salim, Salim started enticing me. Salim told me to "accompany him and that he will marry me and always keep me happy." Salim instigated me against my family members. Salim told me to accompany him for a short-while after which he will drop me. I sat on Salim's bike.
( In Statement u/s 164 Cr.P.C) One day when my school was off and on that day I was going towards Gopalpur for my personal work, he alongwith his friend came on the bike and stopped me on the way and he questioned me that why I had not responded to his letters. Then he enticed me by saying that he loves me and requested to accompany him and shows his intentions to marry with me. He made me board his bike and took me towards Loni side in U.P. (examination-in-chief)
c) Place where prosecutrix stayed:
...... From there Salim made me to sit in an Auto and took me to Loni. There he took me to his friend's house.......... He used to confine me in the room. Yesterday, i.e. 31.07.2013, police reached there and apprehended us. ( In Statement u/s 164 Cr.P.C) He made me board his bike and took me towards Loni side in U.P................ There, he kept in a room, where nobody was residing. He confined me there for about six/seven days (examination-in-chief) Judgment 12 of 19 SC No: 57617/16 State Vs. Salim & Anr.
d) About Sexual Assault:
Then Salim asked me to establish physical relations with him. I refused to do so. But Salim against wishes raped me. He did this several times. I always refused to do so but he did not agree.
( In Statement u/s 164 Cr.P.C) Thereafter, accused Salim had forcefully committed rape with me (developed physical relationship). He confined me there for about six/seven days and during those days he always committed rape with me.
(examination-in-chief)
16. Though prosecutrix admitted that she was acquainted with the accused Salim but she denied her friendly relations with him. During her cross-examination, prosecutrix denied to have sent SMS to accused Salim. Prosecutrix maintained that accused used to stalk her and kept chasing her despite her disinterest.
17. Prosecutrix maintains that she was confined by accused Salim for 6-7 days until she was recovered by the police team. Recovery of prosecutrix from the custody of accused is not disputed by the accused Salim rather defence taken by accused is Judgment 13 of 19 SC No: 57617/16 State Vs. Salim & Anr.
that prosecutrix voluntarily accompanied him. However, prosecutrix has testified that accused Salim allured and enticed her to accompany him.
18. It has been argued on behalf of accused Salim that prosecutrix never raised any alarm nor ever tried to leave the company of accused and this shows that prosecutrix was residing with the accused willingly and consensually. While appreciating facts of the case, it has to be kept in mind that prosecutrix was merely 14 years of age when she went with accused whereas accused Salim was 26 years old. Being 12 years elder to her, accused was in position to influence and entice her and that is also appearing from the testimony of prosecutrix who throughout has maintained that accused was stalking her and was persistently following her despite she was ignoring accused Salim.
19. Even if it is to be accepted that the prosecutrix was a consenting party that would not save the accused Salim since she Judgment 14 of 19 SC No: 57617/16 State Vs. Salim & Anr.
was merely 14 years old at the time of incident. Prosecutrix as noted above in all her statements maintained that accused Salim enticed her and took her to Loni in a rented room where he established physical relations with her. PW10 Sudhir landlord of the said room where prosecutrix was kept testified to the effect that Salim was residing in a room rented out by him through property dealer Dharmender with his wife.
20. Medical & Forensic Evidence: It has been contended on behalf of accused Salim that the MLC of prosecutrix as Ex. PW8/A does not indicate any kind of injury on the prosecutrix nor the FSL result Ex. F-1 establish sexual assault on the prosecutrix and hence accused cannot be convicted for committing penetrative sexual assault on prosecutrix.
21. MLC of prosecutrix Ex PW8/A finds her hymen torn and mentions prosecutrix having last intercourse on 30.07.2013. Prosecutrix was also given E-Pill. True that no physical injury was Judgment 15 of 19 SC No: 57617/16 State Vs. Salim & Anr.
noticed on prosecutrix but while appreciating medical evidence it is to be kept in mind that accused Salim established physical relations with prosecutrix by not harming her physically but enticing her in a relationship. Therefore, non presence of sign of sexual assault on person of prosecutrix does not dent the case of prosecution in any manner. Merely because the forensic evidence does not find semen of the accused Salim on the exhibits of prosecutrix can also be no ground to disbelieve version of prosecutrix.
22. It is well settled law that accused can be convicted on sole testimony of prosecutrix if the testimony is found reliable and truthful. In the present case the prosecutrix has narrated the entire incident with certainty and her versions in all other statements have remained intact. No motive has been imputed on the prosecutrix as to why she would depose falsely against the accused Salim or why she would make such serious allegations against him.
Judgment 16 of 19
SC No: 57617/16 State Vs. Salim & Anr.
23. Testimony of prosecutrix is found truthful and credible that on the date of incident when she was going to Gopal Pur, accused along with his friend came and stopped her on the way and then accused enticed her by saying that he loves her and requested her to accompany him and showed his intention to marry her. Thereafter, prosecutrix sat on bike of the accused and went to Loni, U.P. Prosecutrix alleged that she was confined in a room for about 6-7 days and during those days, accused committed rape upon her. In these facts, it is accordingly held that accused is guilty of kidnapping prosecutrix in order to force her in illicit intercourse and thereafter of committing repeated penetrative sexual assault on her. Thus, accused Salim stands convicted for offence punishable U/s 363/366A & 6 POCSO Act.
24. Case against accused Yunus : In her testimony prosecutrix merely stated that accused Salim came with accused Yunus on a bike and Salim enticed her by saying he loves her.
Judgment 17 of 19
SC No: 57617/16 State Vs. Salim & Anr.
Prosecutrix besides the presence of accused Yunus with Salim has not attributed any act on accused Yunus.
25. In her statement recorded U/s 164 Cr.P.C. (Ex. PW2/A ) as well prosecutrix stated that she sat on Salim's bike and after traveling to some distance Salim's friend Yunus met them. Yunus also sat on bike and drove it. From this statement of the prosecutrix also, it is evident that she does not level any allegation against Yunus of kidnapping her rather prosecutrix stated that she was already sitting on Salim's bike when Yunus met them.
26. In the light of testimony of prosecutrix, the allegations against accused Yunus of kidnapping prosecutrix stands not proved and case of prosecution against accused Yunus fails.
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SC No: 57617/16 State Vs. Salim & Anr.
27. Conclusion: From the aforesaid discussions, accused Yunus stands acquitted. His bail bond stands canceled. His surety stands discharged. Accused Yunus is directed to furnish a personal bond in sum of Rs. 10,000/- each under provisions of Section 437-A Cr.P.C with surety in the like amount.
28. Since, accused Salim stands convicted for the offence punishable U/s 363/366-A & 6 POCSO Act, matter be listed for hearing arguments on quantum of sentence on 27.03.2017.
Announced in the open court on 22nd day of March, 2017.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 19 of 19