Delhi District Court
Sc No. 45/12 State vs Mohd. Nadeem Etc. Page No. 1 Of 52 on 6 June, 2015
IN THE COURT OF ADDITIONAL SESSIONS JUDGE01 : SED:
DESIGNATED JUDGE: TADA/POTA/MCOCA/POCSO:
SAKET COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0165802012
SESSIONS CASE NO. 45/12
FIR NO. 268/12
POLICE STATION : JAMIA NAGAR
UNDER SECTION : 376/377/323/324/, 23/26 J.J. ACT,
3/14 CHILD LABOUR ACT.
STATE
VERSUS
1. MOHD. NADEEM
S/O - MOHD. SHAMIM
R/O H50, IIIRD FLOOR, MURADI ROAD, BATLA HOUSE,
JAMIA NAGAR, DELHI25.
2. FARHIN TALAT
D/O MOHD. SHAMIM,
R/O H50, IIIRD FLOOR, MURADI ROAD, BATLA HOUSE,
JAMIA NAGAR, DELHI25.
3. JUHI KHANAM @ FARHANA TALAT
W/O MOHD. SHAMIM,
R/O H50, IIIRD FLOOR, MURADI ROAD, BATLA HOUSE,
JAMIA NAGAR, DELHI25.
DATE OF INSTITUTION : 07.07.2012.
DATE OF RESERVING ORDER : 25.03.2015.
DATE OF DECISION : 06.06.2015.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 1 of 52
J U D G M E N T
Case of Prosecution:
1. Brief facts of the case of the prosecution are that on 10.04.2012 after receiving DD No. 50A at Police station Jamia Nagar ASI K.P. Singh reached at the spot i.e. Muradi Road, Batla House where they came to know that one girl/victim namely 'S' (name withheld to keep her identity confidential), aged 14 years, used to work as maid at H50, IIIrd Floor, Muradi Road, Batla House in the house of one Juhi who used to beat and harass her. Sh. Dan Singh Bhandari and Smt. Usha officials from NGO Butterflies Child Helpline on receiving complaint, reached at the police station and went to the spot. Victim 'S' told them about the entire story and made rape allegations on the brother of Juhi. SI Jitender Singh was handed over the further investigation of the case. Medical examination of victim 'S' was got conducted and her bony age xray was also got conducted. Thereafter, statement of victim 'S' was recorded wherein she stated that she is working as maid for the last 34 years. Her madam/employer Juhi brought her from her village and she(victim 'S') used to do household work. She (victim 'S') used to work from 6 AM to 10 PM and on committing any mistake, her madam/employer Juhi used to beat her. Farhin Talat, daughter of Juhi, on the pretext of cooking of food had hit tong (chimta) on her right hand due to which she suffered burn injuries on her right hand. Employer/ Juhi had also beaten her and had also got her beaten by her son namely Nadeem. Victim 'S' further stated that Nadeem had committed rape with her two years back without her consent and intimidated to kill her if she disclosed anything to anybody.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 2 of 52 Thereafter also, accused Nadeem committed rape with her without her consent. One week before reporting the incident, Nadeem had lastly committed rape with her and also did carnal intercourse. On 10.04.2012 her employer Juhi had beaten her on which she went outside the house while crying. Wife of Mohd. Gulam, who reside in front of their house, took her inside her house. Police was called by someone and she was medically examined. On the statement of victim 'S' complaint was got registered. Site plan was prepared. Accused Mohd. Nadeem was arrested and his medical examination was also got conducted. Prosecutrix/victim 'S' was sent to Global Family Home on the directions of CWC, Lajpat Nagar. Statement of prosecutrix/victim 'S' under Section 164 Cr.P.C was got recorded. According to bone age Xray report, age of prosecutrix/victim 'S' comes to be between 14 years to 15 years and 8 months whereas as per age estimation report of prosecutrix conducted at Safdarjung Hospital, the age of the prosecutrix / victim 'S' comes to be between 14 years to 16 years. Accused Talat Farhin got anticipatory bail from Delhi High Court and bail application of accused Juhi was rejected by the Delhi High Court. Juhi surrendered before the court and thereafter she was arrested in the case and was released on bail. Exhibits were sent to FSL, Rohini for examination. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 376/377/323 IPC, 23 JJ Act against the accused Mohd. Nadeem, under Section 323 IPC , 23/26 JJ Act, 3/14 Child Labour Act, 16 Bonded Labour Act against the accused Juhi and under Section 324 IPC and 23 JJ Act against the accused Farhin Talat in the court.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 3 of 52
2. Since the offence under Section 376 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 376/377/323 IPC, 23 Juvenile Justice(Care and Protection of Children) Act,2000 and 3/14 The Child Labour (Prohibition and Regulation) Act, 1986 was made out against the accused Mohd. Nadeem. Prima facie case under Section under Section 324 IPC, 23 of Juvenile Justice (Care and Protection of Children) Act, 2000 and 3/14 The Child Labour (Prohibition and Regulation) Act, 1986 was made out against the accused Farhin Talat. Prima facie case under Section 324 IPC, 23 of Juvenile Justice (Care and Protection of Children) Act, 2000 and 3/14 The Child Labour (Prohibition and Regulation) Act, 1986 was made out against the accused Juhi Khanam @ Farhana Talat Accordingly, charges was framed upon the accused persons to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined twenty seven witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW3 is prosecurix 'S' who had deposed that she was brought from her native village to the house of accused Juhi where she used to wash clothes, clean utencils and also used to sweep and wash the floor of the house and also used to cook food for the family of Juhi. She came to SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 4 of 52 the house of accused Juhi about 4 years back prior to the incident. She used to work since 6 AM in the morning and after finishing her work she used to sleep. For any fault at her side, accused Juhi, Nadeem, Chintu and daughter Farhin used to beat her and whenever she used to be late in cooking or any other work, accused persons used to beat her. On one occasion, when she became late in making the bread, Farhin @ Khushboo burnt her right hand with the burning chimta. Accused Nadeem committed rape with her and she told the incident to his mother Juhi who did not believe her and asked her not to tell anything to anybody.
Whenever she used to talk to anyone, accused persons used to think that she was backbiting about them and used to beat her. Accused committed rape with her thereafter also when her mother had gone to her native village and accused Farhin and her brother Chintu had gone to college. Accused Nadeem committed rape with her when she was doing the household work and told her not to share the same to anyone. Accused Nadeem used to remove her clothes and used to rape her and also used to penetrate his penis into her anus. One day, she does not remember the exact date, accused Juhi had beaten her so she came out of their house while weeping and went to the house of Gulab uncle and remained there till evening. In the evening, accused Juhi, Farhin and one friend of Farhin came to the house of Gulab uncle and were taking her back to their home by beating her. Accused Juhi slapped her when she brought her to their house. By that time, Gulab uncle called up the police and police came there. She narrated the incident to the police. Police got her medically examined vide MLC Ex.PW4/B. Police recorded his statement which is already on record Ex.PW3/A. Her statement was also recorded by the SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 5 of 52 magistrate which is already Ex.PW9/B. She was also produced before the CWC. Accused Nadeem was apprehended in her presence and arrested him vide arrest memo Ex.PW4/D and conducted his personal search memo Ex.PW4/E. After completing the proceedings, police got her lodged in Global Family Home (NGO) and recorded her statement. All the three accused persons were correctly identified by the witness in the court.
6. PW26 is Inspector Satish Bhati, who deposed that on 31.05.2013 she was entrusted the investigation of the case. She recorded the statement of public witness Naseem and SI Jitender, prepared charge sheet and submitted the same before the court concerned.
7. PW27 is Inspector Jitender Singh, Investigating officer who deposed that on 11.04.2012 after receiving a call the said DD entry was entrusted to ASI K.P. Singh for further investigation. ASI K.P. Singh brought the prosecutrix along with NGO officials to the police station and when the prosecutrix revealed about the incident of the case, he along with ASI K.P. Singh, two NGO officials (one lady) left for the hospital vide DD No. 4A Ex.PW24/A and got the prosecutrix Shehnaz medically examined at AIIMS. After the medical examination of the prosecutrix the doctor in the hospital handed over one pullanda sealed with the seal of hospital along with sample seal vide seizure memo Ex. PW4/C. They came back to police station where he recorded statement of prosecutrix 'S' and prepared rukka Ex.PW27/A and handed over same to DO for registration of the case. Thereafter, he along with NGO officials, ASI K.P. Singh and the prosecutrix went at the spot where accused Nadeem was found present outside his house. At the instance of SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 6 of 52 prosecutrix 'S' accused Nadeem was arrested vide arrest memo Ex.PW4/D and personal search was conducted vide personal search memo Ex.PW4/E. He also prepared site plan Ex.PW27/B at the instance of prosecutrix. They went to Shelter home Prayas, Tuglakabad where he recorded the supplementary statement of the prosecutrix and also recorded the statement of NGO officials. He than got the accused medically examined. After medical examination, the doctor in the hospital handed over one sealed pullanda duly sealed with the seal of hospital along with sample seal which he took into possession vide memo already Ex.PW18/A. Prosecutrix 'S' was sent to Global India, NGO. He recorded the statement of witness PW Mohd. Gulab, neighbour of the accused persons and also recorded the statement of other witnesses. Statement of prosecutrix under Section 164 Cr.P.C was got recorded and prosecutrix was again medically examined pursuant to her averments before the CWC that she was sodomized and for external injuries. On 19.04.2012 the ossification test of the prosecutrix was got conducted in Safdarjung Hospital. SDM , Defence Colony recorded the statement of prosecutrix. On 11.05.2012 he deposited the exhibits with FSL, Rohini. Accused Farhin was granted anticipatory bail but he formally arrested her and than the investigation of the case was transferred to W/ASI Satish Bhati and he deposited the case file to MHC(R). He has correctly identified all the accused person in the court.
Formal Witnesses:
8. PW1 is HC Yogender Singh who had deposed that upon receipt of rukka Mark X through SI Jitender Singh he recorded the formal FIR. Computerized print out of FIR on record is Ex.PW1/A. After SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 7 of 52 registration of FIR he handed over the rukka and copy of FIR back to SI Jitender as he was entrusted with the investigation of the said case. He has duly proved his endorsement on rukka Ex.PW1/B.
9. PW2 is Mohd. Gulab who deposed that accused persons are residing in Flat number 50, IIIrd Floor Muradi Road, Batla House, Jamia Nagar, Delhi. The inside ambiance of his house as well as the house of accused persons is visible from the flats of each other as their balconies are opposite to each other. Shehnaz a minor girl aged about 12/14 years used to work as maid servant at the house of accused persons, used to cook food and wash the clothes etc. for the accused persons. Whenever the accused persons used to beat her for any issue, she used to come to the balcony and used to often narrated the incidents of beating either to his daughter namely Saima or to his wife namely Nasima in the balcony. Two/three days prior to the incident, prosecutrix Sehnaz was showing her arm/hand which was burnt and she told that Farheen had burnt her hand on the issue that one bread burnt while she was making bread. She had also told that when she complained about the conduct of the Farheen to her mother, her mother also had beaten her. On 10.04.2012 when accused Juhi had beaten the prosecutrix Shehnaz, she came to their home while weeping and told his wife that she was beaten by the accused persons. She further told his wife that accused Nadeem often used to have sexual intercourse with her and when she complained of the same to his mother Juhi, she used to beat her. (Same was objected by the counsel for accused being hearsay). On 10.04.2012 one girl from the flat of accused persons inquired from them about the presence of Shehnaz in their house and on their answer in the affirmative, she asked not to tell about the presence of SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 8 of 52 Shehnaz to the accused persons. After about one hour, accused Juhi, Farheen, one more girl and accused Nadeem and his brother Nazim came to their house. Accused Farheen asked about Shehnaz. He told them that she is present in his house. Accused persons entered in his house. Shehnaz was sitting in a room with his daughter. He told them that he had consoled the prosecutrix but by that time accused Farheen went to the room where Shehnaz was sitting and caught hold of her hairs and brought her outside while dragging. On his wife objection, accused Farheen also pulled the hairs of his wife. His wife was ill and therefore she fell on the ground and fainted. His daughter grappled Shehnaz and asked the accused persons not to take her as she was weeping but accused persons snatched her forcefully and took her away and while going accused Juhi and Farheen intimidated them they will see them/teach them a lesson. He was advised to make a call at 100 number as well as to call up the NGO. He accordingly called on 100 number and also called NGO. The PCR Personnel came there by leaving their van on the main road. At that time, 12/14 boys who were called by the accused persons were trying to break the iron gate of his flat by kicking the same with legs. They were also abusing him and PCR personnel. Local police also arrived there. ASI K.P. Singh along with other police personnel brought the prosecutrix down stairs from the house of accused persons. They inquired from the prosecutrix and she told them that she wants to stay at his house so the police brought the prosecutrix to his flat. Police personnel and two persons i.e. one male and one female came from the NGO and they took the prosecutrix Shehnaz with them. On 11.04.2012 she had given a written complaint Ex.PW2/A in police station Jamia Nagar. IO recorded SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 9 of 52 his statement to this effect. All the three accused persons were correctly identified by the witness in the court.
10. PW4 is Ms. Usha Rai, Care Taker, Butterfly Child Helpline (NGO) who had deposed that on 10.04.2012 she was on night duty at the aforesaid NGO. She received a complaint that a minor girl aged about 13/14 years, working as maid servant in the house no. H50, Batla House, Jamia Nagar, was beaten up by her masters/mistress. Accordingly, she along with her associates Sh. Dan Singh Bhandari reached at the police station Jamia Nagar and gave handwritten complaint Ex.PW4/A to the SHO. Thereafter, they along with police reached at the spot and they met prosecutrix 'S' who was looking scared. They brought her to the police station and on examination she revealed that she had been working in the house of the accused persons for the last three years prior to the incident and she used to wash, utensils and sweeping etc. She told that son of accused Juhi namely Nadeem had developed physical relations with the prosecutrix and also had carnal intercourse against the order of nature. When she stated the same to the mother of accused Nadeem, she scolded her and also beaten her. Prosecutrix 'S' also told that she was burnt by tong (chimta) and told that she was also beaten by daughter of accused Juhi. Police than took the prosecutrix 'S' to hospital along with PW4 and got the prosecutrix 'S' medically examined vide MLC Ex.PW4/B. After medical examination, doctor handed over the exhibits to the police which were taken into possession vide memo Ex.PW4/C. They than took the prosecutrix 'S' to Prayas, NGO. The prosecutrix was produced before the CWC and accused was arrested vide arrest memo Ex.PW4/D and his personal search was prepared vide personal search memo Ex.PW4/E. Her SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 10 of 52 statement was recorded to this effect. She stated that she cannot identify the accused Mohd. Nadeem now as much time has elapsed when she had seen him at the time of his arrest and thereafter, she never saw him.
11. PW5 is Sh. Dan Singh Bhandari who deposed on the lines of PW4. He stated that accused Nadeem had committed rape with her about two years back and also told that the accused Nadeem had again committed rape about one week back. He further stated that he cannot identify the accused Nadeem now as I had seen him in the night on that day and much time has elapsed when I saw him at the time of his arrest and thereafter, he never saw him.
12. PW6 is HC Ram Kishore who had deposed that he along with SI Rishi Sharma and L/Ct. Poonam came to Saket Court and accused Juhi had surrendered before the court Ld. MM. IO interrogated her and arrested her vide arrest memo Ex.PW6/A. IO recorded his statement to this effect. Accused Juhi was correctly identified by the witness in the court.
13. PW9 Ms. Mona Tardi Kerketta, Metropolitan Magistrate had deposed that she had recorded the statement of prosecutrix 'S' under Section 164 Cr.P.C and duly proved on record Ex.PW9/A to Ex.PW9/D.
14. PW14 is Ms. Nasima Qamar who had deposed that prosecutrix 'S' is employed as maid in the house of accused persons and her balcony and balcony of accused faces each other. About two three days prior to 10.04.2012 her daughter informed her that 'S' is weeping in the balcony of the accused persons. She went to her balcony and enquired her. She told her that she has been burnt by hot chimta by accused Farhin. On 10.04.2012 prosecutrix 'S' came to her house and was SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 11 of 52 weeping and saying "Aunty Save me". She stated that accused Farhin, her mother and accused Mohd. Nadeem used to beat her and they had also beaten her at that time. She asked her to go back otherwise accused persons will quarrel with her. At this she said " you please save me otherwise I will consume poison". At that one girl was standing in the balcony of prosecutrix 'S' whose name 'S' told to her as Gulshan. She told Gulshan that prosecutrix 'S' had come to her house. At this, Gulshan asked her not say this otherwise accused persons will again beat the prosecutrix 'S'. After sometime, Farhin along with her one friend came to her house and the mother and brother of Farhin had also come to her place but they were standing at some distance. Farhin asked her as to in what capacity she had provided shelter to 'S' and taking her back by catching her Ponitail (choti). When she objected, Farhin pushed her by catching her hair due to which she fell on the ground after which she took the prosecutrix 'S' with her. Her husband called at 100 number and he went downstairs for taking the police personnels. During that time, accused Farhin and accused Mohd. Nadeem again came to their place with 8/10 more persons and started hitting the iron gate of her house and abusing. The police came to their house when the accused persons were standing outside her gate . Police called up prosecutrix 'S' to her house and enquired from her. Prosecutrix 'S' narrated the entire incident to the police. Police asked her to provide shelter to prosecutrix 'S' but she refused seeing the conduct of the accused. Thereafter, NGO officials came there and police recorded her statement to this effect. Accused Mohd. Nadeem, Juhi and Farheen were correctly identified by the witness in the court.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 12 of 52
15. PW16 is Smt. Ravinder Kaur who had deposed that in the year 2012 she was working as Programme Officer, Child Protection in Butterfly (NGO). On 10.04.2012 at about 11 PM they received call from a persons, neighbour near the spot, that a girl who is working in his neighbourhood is often beaten up. On receiving the call two NGO staff namely Ms. Usha and Mr. Dan Singh went to the spot and met the girl/prosecutrix 'S' who informed that she was working in the house No. H50, Batla House, Jamia Nagar of Mr. Nadeem. She told them she was sexually abused by Nadeem and physically beaten up by Nadeem and his sister. She told that her hand was burnt with a hot tong (chimta). They then reported the matter to the police and legal proceedings were done. Prosecutrix 'S' was taken to AIIMS hospital for medical examination and then the girl was provided temporary shelter. On 11.04.2012 she went to meet the girl and produced the girl before the Child Welfare Committee with a detailed report of the incident based upon the information given to her by her team. It was brought to the notice of the CWC that MLC report of prosecutrix 'S' does not state anything about the physical injury marks clearly visible on the hands of the child / prosecutrix 'S'. The CWC members noticed the injury marks and directed the hospital to do reexamination and record all the relevant injuries including the gynaecological findings. Prosecutrix 'S' was placed at Global Family Shelter Home at Sangam Vihar. Child/prosecutrix was taken for medical examination and was examined by Dr. Uruj along with two more doctors. She stated that while she was with girl / prosecutrix 'S', she informed that she was repeatedly raped by Nadeem and she even reported this to Nadeem's mother who never believed her rather accused her. Prosecutrix SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 13 of 52 'S' further told her that besides vaginal intercourse she was forced for anal sex by Nadeem. PW16 stated that prosecutrix 'S' was terrified, traumatized and in deep stress.
16. PW17 L/Ct. Poonam Yadav who had deposed that on 23.05.2012 she along with SI Rishi Sharma and HC Ram Kishore had come to Saket where accused Juhi had surrendered before the concerned court. IO interrogated the accused and arrested her vide arrest memo already Ex.PW6/A. Personal search memo was prepared which is Ex.PW17/A. IO had recorded her statement to this effect. Accused was correctly identified by the witness in the court.
17. PW18 is Ct. A. Rehman who deposed that on 11.04.2012 he along with SI Jitender Singh and accused Mohd. Nadeem reached at house No.H50, IIIrd floor, Batla House, Jamia Nagar which was found locked. They then took accused Nadeem to AIIMS hospital and got him medically examined. After medical examination, doctor handed over one sealed envelope sealed with the seal of hospital along with sample seal to the IO. IO seized the same vide memo Ex.PW18/A. Thereafter, they came to Saket Court and the IO got the accused sent to judicial custody. IO recorded his statement to this effect. Accused Mohd. Nadeem is present in the court today and correctly identified by the witness.
18. PW19 is HC Dharamvir who deposed that on 10.04.2012 he was posted as duty officer at PS Jamia Nagar from 4 PM to 12 Midnight when at about 10.50 PM a PCR call was received in the police station regarding a quarrel at H.No. 39, IIIrd Floor, Muradi Road, Batla House which was reduced into writing by him in Roznamcha as DD No. 50A. Copy of the same was sent to ASI K.P. Singh through HC Narender SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 14 of 52 for further course of action. The copy of the same on record is Ex.PW19/A.
19. PW21 is Ms. Savita, UDC who has brought the original file containing the proceedings qua the production of prosecutrix 'S' before Child Welfare Committee, Lajpat Nagar. As per record, prosecutrix 'S' was produced before the CWC by SI Jitender and Butterfly NGO official Ms. Ravinder Kaur on 11.04.2012. The statement of prosecutrix was recorded by the respective members of the CWC and the Ld. Members of the CWC issued directions for getting the prosecutrix medically examined, for getting her statement under Section 164 Cr.P.C recorded, for getting the ossification test done and that the child be kept in the Global Family Trust (NGO). The proceedings done before the CWC on 11.04.2012 in Form10 is Ex.PW21/A (OSR).
20. PW22 is Ct. Hukam Chand who deposed that on 11.04.2012 at about 12.25 AM one Sh. Daan Singh Bhandari and Smt. Usha Rai had come to the police station from Butterfly Child Line located at U4, Green Park Extension, New Delhi. He entered their arrival at police station in the Roznamcha at DD No. 3B. He has duly proved on record Ex.PW22/A.
21. PW23 is SI Rishi Sharma who has deposed that on 23.05.2012 on the directions of the SHO he along with HC Ram Kishore and L/Ct. Poonam had come to the Saket Courts. Accused Juhi had surrendered before the concerned MM. He interrogated the accused and arrested her vide arrest memo already Ex.PW6/A and her personal search was conducted by L/Ct. Poonam vide memo Ex.PW17/A. IO recorded his statement to this effect. Accused Juhi and Nadeem were correctly SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 15 of 52 identified by the witness in the court.
22. PW24 is ASI K.P. Singh who deposed that on 10.04.2012 he was entrusted the DD No. 50A and he along with staff members reached there. At the spot, he came to know that the prosecutrix 'S' aged 14 years used to work as Maid servant at the house of one Ms. Juhi at H.No. H50, Jamia Nagar. He also came to know that the prosecutrix 'S' often used to make complaints to one Mohd. Gulab staying in the opposite house while standing in the balcony regarding the ill treatment given to her by her mistress. NGO officials from Butterfly namely Sh. Daan Singh and Ms. Usha Rai were also present. Prosecutrix 'S' also told the NGO about the rape and unnatural offence having been committed with her by accused Nadeem. SHO arrived at the spot. Prosecutrix was brought to the police station. Investigation was entrusted by the SHO to SI Jitender Kumar. They then took the prosecutrix 'S' to AIIMS Hospital for her medical examination where her medical examination was conducted. The doctor handed over the exhibits to SI Jitender and he made entry in the Roznamcha to this effect in his own handwriting as DD No. 4A. Copy of the DD No. 4A is Ex.PW24/A (OSR). His statement was recorded by the IO. Thereafter he along with SI Jitender and NGO officials had gone to the house of accused persons where accused Nadeem was found present. The IO interrogated him and arrested him and brought him to the police station. Leaving the accused in his custody, the IO took the prosecutrix to Prayatan (NGO) and came back and recorded his statement to this effect. Accused Nadeem is correctly identified by the witness in the court.
23. PW25 is HC Ct. Surender who deposed that on 11.04.2012 SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 16 of 52 he was posted at police station Jamia Nagar when SI Jitender deposited two sealed pullandas along with two sample seals which were deposited in Malkhana vide entry no. 804 of register no.19 and the copy is Ex.PW25/A (OSR). On 11.05.2012 the pullandas along with sample seal and form FSL was sent to FSL through SI Jitender vide road certificate no. 34/21/12. Copy of the road certificate is Ex.PW25/B. The proof of receipt was received by him from SI Jitender, copy of the same is Ex.PW25/C (OSR).
Medical Witnesses:
24. PW7 is Dr. Yatish Aggarwal who had deposed that on 19.04.2012 as per the directions of CWC, Lajpat Nagar, a medical board consisting of himself, Dr. Kuldeep Singh, Dr. Manish Kumath was constituted. Xray of the prosecutrix was done and the prosecutrix was produced before the court. He radiologically examined the Xray plates of the prosecutrix and prepared detailed report Ex.PW7/A in which he opined the age of the prosecutrix between 14 to 16 years. He along with other members of the board also gave a joint report Ex.PW7/B. He stated that all the members of the board were collectively of the opinion that the age of prosecutrix was between 14 to 16 years.
25. PW8 is Dr. Manish Kumath who had deposed that on 19.04.2012 as per the directions of CWC, Lajpat Nagar, a medical board consisting of himself, Dr. Kuldeep Singh, Dr. Yatish Aggarwal was constituted. He conducted the physical examination of the prosecutrix and they collectively opined that the age of the prosecutrix is between 14 to 16 years. The joint report on record is already Ex.PW7/B. He stated that all the members of the board were collectively of the opinion that the SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 17 of 52 age of prosecutrix 'S' was between 14 to 16 years.
26. PW10 is Dr. Deepak who had deposed that on 11.04.2012 at about 2.30 PM patient/accused Mohd. Nadeem was brought to Department of Forensic Medicine and Toxicology by SI Jitender Singh. He had medically examined the patient/accused and prepared detailed MLC Ex.PW10/A. Upon examination, he opined that there is nothing to suggest that the person examined is incapable to perform sexual intercourse under normal circumstances. During the course of medical examination, he collected the blood in gauze and sealed the same with the seal of hospital along with sample seal and handed over to the police.
27. PW11 is Dr. Prasad T.V who had deposed that Xray plates pertaining to prosecutrix 'S' were radiologically examined by Dr. Pratibha who prepared the detailed report Ex.PW11/A and after examination she opined the age of the prosecutrix between 14 to 15.8 years. PW11 has duly identified the signatures and handwriting of Dr. Pratibha on record.
28. PW12 is Dr. Asit Kumar Sikary who had deposed that on 14.04.2011 at about 1.30 PM patient/prosecutrix 'S' was brought to the Gynae Department, AIIMS by the NGO Official. After her gynaecological examination of the patient/prosecutrix 'S' however, she refused for medical examination by a male doctor vide endorsement marked by her and signed by the NGO official Ms. Ravinder Kaur at point B. He has duly proved his signatures at point 'C' on the MLC Ex.PW12/A and stated that MLC was prepared by Dr. Maumita Naha.
29. PW13 is Dr. Sujata Rawat who had deposed that as per record prosecutrix 'S' was brought to the casualty of AIIMS Hospital by SI Jitender and was medically examined by Dr. Maumita Naha who has SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 18 of 52 prepared the detailed report already Ex.PW12/A. Upon examination, Dr. Maumita Naha had opined that the hymen of the prosecutrix is torn, vaginal pachulous. She had duly identified the signatures and handwriting of Dr. Maumita Naha who has left the services of the hospital and her whereabouts are not known.
30. PW15 is Dr. Uruj Jahan who deposed that prosecutrix 'S' was brought to the casualty of AIIMS Hospital by ASI K.P. Singh and was also accompanied by her father. She had medically examined the prosecutrix and prepared detailed MLC in her own handwriting already Ex.PW4/B. Upon examination she opined the hymen of the prosecutrix to be ruptured. She referred the patient for bony age and collected three vaginal smears and sealed the same with the seal of hospital and handed over the same to the police along with the seal.
31. PW20 is Dr. Kuldeep Singh who had deposed that on 19.04.2012 as per the directions of CWC Lajpat Nagar the Medical Board comprising himself, Dr. Yatish Aggarwal, Radiolosit and Dr. Manish Kumath, Forensic Expert was constituted. The Xrays of the prosecutrix were duly done and the prosecutrix was produced before the Board. He conducted the dental examination of prosecutrix and he along with the other members of the Board also gave a joint report which on record is Ex.PW7/B. All the member of the Board were collectively of the opinion that the age of the prosecutrix 'S' was between 14 to 16 years. Statement and Defence of accused :
32. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. It is stated by accused Mohd.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 19 of 52 Nadeem that wife of our neighbour Mohd. Gulab used to remain sick and his mother often used to allow the prosecutrix to visit the house of Mohd. Gulab to extend a helping hand in their household chores due to the illness of the wife of Mohd. Gulab. Later on prosecutrix started insisting upon them that she wants to stay in the house of Mohd. Gulab only. They ascertain the facts from the Nana Nani of prosecutrix who did not allow the prosecutrix to stay in the house of Mohd. Gulab. Even that, prosecutrix used to leave for his house without their knowledge and Mohd. Gulab used to extend threats to them that he will call some NGO to intervene in the matter. On the day of incident, prosecutrix had gone to the house of Mohd. Gulab who called the police and demanded Rs. 10 Lakhs from them for not taking any action against them knowing that father of prosecutrix is in Saudi Arabia and earning handsome salary. When they refused, Mohd. Gulab threatened them and stated that he is earning Rs. 75,000/ per month and will teach them a lesson and will falsely implicate them all in the false case. Accused further stated that they do not wish to lead defence evidence and the same was closed.
33. Written Arguments filed on behalf of the accused persons. Oral arguments also advanced from both sides. Complainant had also filed written arguments. I have heard the Ld. Defence counsel for the accused and Ld. Additional Public Prosecutor for state and have carefully perused the record.
Arguments of Ld. APP for state:
34. Ld. Additional Public Prosecutor for state has argued from the side of complainant that DNA report has not supported since samples were collected after more than seven days from the last date of abuse. It SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 20 of 52 is stated that the statement of the prosecutrix coupled with the statement of NGO officials PW4 and PW5 are sufficient for proving the case against the accused persons. It is stated that multiple old burn marks over right forearm; old scratch marks over right scapular region; old scar mark seen over left shin bone; hymen torn and vaginal patulous, were seen during the examination of the prosecutrix which corroborates her statement that she was beaten up by the accused persons. Her hymen was also found torn which supports credence to the testimony. It is stated that statement of the child is sufficient to convict the accused persons. Ld. counsel for complainant has cited judgment of Lillu Vs State of Haryana 2013 (2) KLJ 762, Lokesh Mishra Vs State of NCT of Delhi Crl. A. No. 768/2010, Beeru Vs State of NCT Crl. A. No. 1079/2010, State of Rajasthan Vs Vinod Kumar AIR 2012 SC 2301, Delhi Victims Compensation Scheme, 2011 , Jarnail Singh Vs State of Haryana Crl. A. No. 1209/10, Satyapal Vs State of Haryana AIR 2009 SC 2190, Sheo Shankar Singh Vs State of Jharkhand 2011 (2) UJ SC 0985. It is argued that now the age of the prosecutrix should be determined as per the provisions of Juvenile Justice Act as per the mandate of Supreme Court in Jarnail Singh case (Supra).
35. It is also argued that even if the girl was allegedly raped earlier, it cannot give a license to any person to rape her again and the defence of the accused that she was earlier having relations with one boy, has no credence. In support of this case she has cited judgment of State of UP Vs Pappu @ Yunus and Another AIR 2005 (SC) 1248. The delay in FIR cannot be a ground not to rely upon the evidence of the victim. In this case the complainant has relied upon Satyapal Vs State of Haryana SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 21 of 52 AIR 2009 SC 2190. It is stated that child is a minor, aged about 12 years when she was employed with the accused. She was in their custody and as such, could not gather courage to report the abuse. The NanaNani and other family members instead of taking care of the child had employed her at the house of accused at the tender age hence, child has lost faith in them and due to fear she did not report the matter. It is stated that in view of the crime of this nature which has a social stigma attached to it, it is not easy to child to talk about the same to anybody. Moreover, accused Mohd. Nadeem had threatened her also. It is also stated that defence of the accused is inconsistent, selfcontradictory and conflicting. On the one hand they stated that there is no case of sexual abuse and on the other hand they submitted that accused had consensual sex with the child. They falsely suggested that they have been falsely implicated at the instance of Mohd. Gulab. The defence of the accused are varying, inconsistent and irreconcilable. Finding no defence they have wrongly attributed ill motive to PW4 and PW14. Failure of the investigation team to conduct the investigation should not weaken the case of prosecution as is held in Sheo Shankar Singh Vs State of Jharkhand 2011 (2) UJ SC 0985 of Apex Court. It is stated that from the testimony of the prosecutrix, the offence of unnatural offence as well as rape is duly proved against the accused persons. Accused had voluntarily caused hurt to the prosecutrix by burning her by 'chimta' and committed offence under Section 324 IPC. The MLC also supports about the old burn marks. It is stated that all the three accused persons had committed cruelty upon the child 'S' and committed offence under Section 323 IPC. It is stated that the child is residing in the children home and the formal members have abandoned SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 22 of 52 the child as a result of social stigma. The child was in the custody of the accused and accused had taken the liberty of the child and abused her sexually and physically.
Arguments of Ld. Defence Counsel for accused:
36. It is argued by the counsel for accused that there are four DD entries of the same incident. DD No. 50A dated 10.04.2012 at about 10.50 PM is about a quarrel at H39, Muradi Nagar, Batla House, 2nd entry of DD No. 3B at 12.25 AM for rescuing the prosecutrix, third entry of DD No. 4A dated 11.04.2012 by the NGO Butterfly and the fourth entry of DD No. 60B dated 11.04.2012 by PW2 Mohd. Gulab. It is argued that for proving the age of the prosecutrix the prosecution has relied upon the age ossification test report which opined her age to be between 1416 years and taking margin of two years, the prosecutrix comes out to be major. He has cited following judgment in this regard:
1. Jyoti Prakash Rai Vs State of Bihar AIR 2008 Supreme Court 1696
2. Naresh Kumar Vs State of NCT of Delhi, C.A. No. 313/10
37. It is further argued that the conduct of the prosecutrix is doubtful and her statement does not inspire confidence. It is stated that as per her deposition her Nana and Nani used to visit her during her stay in the house of the accused and lastly came one month prior to the incident but she never informed about the rape/maltreatment/beatings by the accused. Further as per her deposition, there were seven more flats adjacent to the house of the accused and flat of PW Mohd. Gulab. She never informed Mohd. Gulab or any other neighbour or NGO before 10.04.2012 about the rape or beatings by the accused persons. No SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 23 of 52 specific date of rape or of beatings is given. Prosecutrix has stated that she is working for the last 12 years with the accused. PW2 states that he knows that she is working for the last 1 year and five months i.e. since November, 2010 and the incident of FIR is April, 2012. It is stated that prosecutrix has never lodged any complaint against the accused prior to the lodging of FIR. PW4, PW5 who are the NGO officials as well as PW2 have not mentioned about the allegations of rape by the accused Mohd. Nadeem in the complaint filed at the police station. If all these allegations would have been true prosecutrix must have informed about this to her grandparents/mother. PW24 has admitted that he visited the place of incident where the complainant was illtreated. It is stated that the statement of the prosecutrix establishes that either she is putting allegations against the accused persons or she was consenting party to it and that is why she never complained to anybody. It is admitted by the prosecutrix that she did not report the matter regarding the allegations of rape earlier. The MLC of 11.04.2012 does not mention about any external injury. The second MLC was done on 14.04.2012 after three days during which she was in NGO. The FSL result is not supporting the prosecution.
No recovery of 'Chimta' etc. is there. The site plan could not be made at the instance of prosecutrix. PW27 states that he could not enter the house. He has cited Crl. A. No. 371/12 Sajid Vs State of NCT of Delhi. It is stated that since the prosecutrix did not inform her Nana and Nani or to the neighbouring persons of the seven flats it amounts to consent or conspiracy of Mohd. Gulab, NGO officials and police as the father of the accused is working in Saudi Arabia and the prosecutrix was in constant touch with Mohd. Gulab.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 24 of 52
38. I have heard the Ld. Defence counsel for the accused, Ld. APP for state and counsel for complainant and have carefully perused the record.
Conclusion:
39. Before appreciating the facts of this case, it is necessary to know the ingredients of the offences by resorting to the provisions of relevant sections for which the accused are facing trial.
40. Section 323 IPC: Section 319 IPC provides that whosoever causes bodily pain, decease or infirmity to any person is said to cause hurt. The offence of causing hurt voluntarily is punishable under section 323 IPC.
41. 324. Voluntarily causing hurt by dangerous weapons or means: Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
42. Section 23 of Juvenile Justice (Care and Protection of Children)Act, 2000: Whoever, having the actual charge of or control over, a juvenile or the child, assault, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 25 of 52 abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
43. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 26 of 52 Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
44. 376. Punishment for rape (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a terms which may extend to two years or with fine or with both; Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a terms of less than seven years.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed ; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 27 of 52 advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age ; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a terms of less than ten years.
Explanation1. Where a women is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation2. "Women's or children's institution" means an institution , whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation3. "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 28 of 52
45. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
46. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
47. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 29 of 52 trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case ".
48. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she was a consenting party to the incident or not.
49. Age of the prosecutrix: The prosecutrix is a poor maid. It is not the case of either side that she had studied in any school. So far as the age of the prosecutrix is concerned, the prosecution has relied upon the age ossification test report dated 19.04.2012 duly proved by the concerned doctors of the board. As per the age ossification report dated 19.04.2012 after the joint physical, dental and radiological examination, the age of the prosecutrix was opined to be between 14 years to 16 years.
50. Ld. Counsel for the accused has argued that in view of the judgment in Jyoti Prakash Rai Vs State of Bihar AIR 2008 Supreme Court 1696 and Naresh Kumar Vs State of NCT of Delhi, C.A. No. 313/10, the age of the prosecutrix should be considered after taking margin of 2 years on the higher side and as such, the age of the prosecutrix comes to be 18 years and as such, she was major.
51. On the other hand, Ld. Counsel for complainant has relied SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 30 of 52 upon a judgment of Apex court in Jarnail Singh Vs State of Haryana Crl. A. No. 1209/10 decided on 01.07.2013 in which case Hon'ble Apex court has held that age of the prosecutrix should be decided in terms of the provisions of Section 7 A of Juvenile Justice Act, r.w. Rule 12 of Juvenile Justice Rules as is done in the case of the accused because when the age is to be assessed there is no difference in an accused or a victim, as both are minor and there should not be any different rules for assessing the age of an accused or a victim. It is stated that if we go by this judgment then in view of the provisions of Juvenile Justice Act, 2000 the age of the prosecutrix should be assessed towards the lower margin of one year and as such, she comes to be 13 years and was a minor.
52. On this aspect, Ld. Counsel for the accused had taken several opportunities for quoting the relevant judgments/citations to show that the age of the prosecutrix should be assessed in view of the orders of High Court cited above by him. He also took adjournments for producing the latest law on the point. As determination of the age of the prosecutrix was germane to the decision of this case, the counsel was afforded opportunities by the court to produce the relevant law.
53. After taking adjournments Ld. Counsel for accused has cited the judgment of Luv Kumar @ Bittu Vs State of Delhi, Crl. A.No. 586/2003 decided by Delhi High Court on 24.03.2015, Aqeel Ahmed Vs State Crl. A.No. 494/2000 decided on 28.04.2014 by Delhi High Court. He has also cited Dinesh Kumar Vs State Crl. A. No. 496/2001 decided on 31.01.2014 by Delhi High Court. He has also filed the copy of the order of Supreme Court in Writ Petition No. 12/15 filed by the accused SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 31 of 52 before Supreme Court for clarification on the aspect of age in view of the judgment of Supreme Court in Jarnail Singh (Supra). The said writ petition was withdrawn by him on 30.01.2015. He has also filed copy of the order in the writ petition Crl. No. 406/15 filed by him before the Delhi High Court for clarification on this aspect of age which was also withdrawn by him on 27.02.2015. Along with these orders of withdrawal of the writ petitions in High Court and Supreme Court he has filed copy of the writ petition filed in Supreme Court.
54. I have seen all the citations produced by both sides on the issue of assessment of age of the prosecutrix based on the age ossification test report. It is settled law that in view of the provisions of Constitution of India ,the law of Supreme Court is binding on all the lower courts. With due regard to the citations of Delhi High Court produced by the accused it is pertinent to mention that in none of the authorities of Delhi High Court, the authority of Supreme Court in Jarnail Singh Vs State of Haryana decided on 01.07.2013 is reffered and as such, there was no occasion before the court in any of the judgment passed by Delhi High Court to deal with the judgment of Jarnail Singh Vs State of Haryana passed by Hon'ble Apex Court.
55. Hon'ble Apex Court in the judgment of Jarnail Singh Vs State of Haryana (supra) has categorically held that there is hardly any difference in so far as the issue of minority is concerned between a child in conflict with law and a child who is a victim of crime and therefore it would be just and appropriate to apply Rule 12 of 2007 rules to determine the age of the prosecutrix as well. In the said case, the court has observed in connection with Rule 12 framed under Juvenile Justice (Care and SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 32 of 52 Protection of Children) Act, 2000 : "Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 33 of 52 liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
56. In the case of Jarnail Singh (Supra) the court has relied upon the school records of the prosecutrix on the basis of Rule 12 of Juvenile Justice (Care and Protection) Act, 2000. In view of the above judgment passed by the Hon'ble Supreme Court, it is now settled that the age of the prosecutrix shall be assessed as per the provisions of Juvenile Justice Rules and Rule 12, in so far as relevant, provides : (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 34 of 52
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i),(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
57. In the present case, the age ossification report gives the age of the prosecutrix between 14 to 16 years on 19.04.2012. The offence is alleged to be committed since 2 years prior to reporting of matter on 10.04.2012. If we take the margin of 1 year to the lower side in terms of Rule 12 of JJ Rules, then her age comes to be 13 years and as such the prosecutrix is held to be minor on the day of offence.
58. Consent of the prosecutrix: The most material witness to prove the offence is the prosecutrix herself. It is settled law that the SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 35 of 52 conviction of the accused can be based on the sole testimony of the prosecutrix.
59. It will be useful to refer to the observations of Apex Court in the case titled as Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 wherein Hon'ble Supreme court has held that: " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age.
60. In 2010 III AD (DELHI) 448 titled as Shanker Sahai Vs. State it has been held that : " testimony of prosecutrix, if believed, can be sole basis of conviction in rape case. No rule of law or of practice requires corroboration before her testimony can be accepted and acted upon."
61. Similar view has been taken in 2009 VI AD (DELHI) 37 SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 36 of 52 Arshad Vs. State wherein it has been held that:
"Conviction of the offender in rape case is based on sole testimony of rape victim may be a child provided if it inspires confidence of the court."
62. The prosecutrix in this case is a minor. As per the bony age ossification report of the prosecutrix, her age is held to be 13 years by this court . The Indian Evidence Act 1872 does not prescribe any particular age as a determinative factor to treat the witness to be competent witness. As per section 118 of Indian Evidence Act, 1872, all the witnesses shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, weather of body or mind or any other cause of the same kind. An explanation has been incorporated by the legislature to clarify that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers. Thus, so far as the competency to appear as a witness, the legislature has underlined the basic requirement of a person's understanding of the obligation to speak the truth and to give an accurate impression and possession of the mental capacity at the time of the occurrence concerning which he has to testify and to receive an accurate impression of it. This would be moreso in the case the witness is a child of tender years. It is necessary to ascertain as to whether the witness had a memory sufficient to retain and independent recollection of the occurrence, capacity to understand simple question about it and the capacity to express his / her memory of occurrence.
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 37 of 52
63. The Apex court has observed that the omission to administer an oath goes to the credibility of the witness and not his competency which is in effect under section 118 of Indian Evidence Act, 1872.
64. So far as the competency of a child to testify as a witness is concerned, the courts in India have relied on the proposition formulated by Justice Brewer in Wheeler vs. United States 159 US 523 (1895) who had opined that the evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convicted about the quality thereof and reliability can record conviction, based thereon.
65. The reservation expressed with regard to evaluating the testimony of a witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy pray to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. (Ref: Panchhi vs. State of U.P. MANU/SC/ 0530/ 1998 : 1998 Cri.L.J 4044).
66. It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from other dependable evidence. (Ref : Dattu Ramrao Sakhare & Ors. vs. State of Maharashtra MANU/SC/1185/1997 : (1997) 5 SCC 341; Suryanarayana vs. State of Karnataka MANU/SC/0001/2001 :
SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 38 of 52 2001 Cri.L.J. 705).
67. In the case of Dhirender Vs State of NCT of Delhi , Crl.
A.No. 121/2008 decided on 29.09.2009, Hon'ble Justice Geeta Mittal of Delhi High Court has beautifully summed up the law propounded by Apex Court in various pronouncements eg. Sakshi Vs Union of India & Ors. AIR 2004 SC 3566, Sudesh Jhaku Vs K.C.J & Ors. 1998 Crl. L. J. 2428 and various other pronouncements wherein the Hon'ble Apex Court has referred to the necessity of examination of a rape victim under screen and in camera and has also held that the trial judge may permit a social worker or other friendly, independent or neutral adult in whom the child has confidence to accompany the child and to be present and accessible to the child at all times during his or her testimony. Though, the care should be taken that such person does not influence the child's testimony.
68. In the present case, the prosecutrix has appeared in the court as PW3 and has substantiated the prosecution case. She has stated that she is a resident of District Sitamarhi, Bihar and was brought from her native village to the house of accused Juhi where she used to wash clothes, clean utensils and also used to sweep and wash the floor of the house and also used to cook food for the family. She has stated that she had come to the house of accused Juhi four months prior to the incident. She has further stated that she used to work since 6 AM in the morning and after finishing her work she used to sleep. She has stated that for any fault on her part while doing the household chores accused Juhi, Nadeem, Chinto and daughter Farhin used to beat her. Whenever she used to be late in cooking food or in their work, they used to beat her. She has also SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 39 of 52 deposed that on one occasion she became late on making breads on which accused Farhin @ Khushboo burnt her right hand with the burning chimta. While deposing the witness has shown her right hand where there were certain marks which she stated to be received from the burning chimta. She has also stated that accused Nadeem committed rape with her. She told her mother Juhi about the rape but she did not believe her version and asked her not to tell anybody about the incident. She also stated that whenever she used to talk to anybody the accused persons used to think as if she was back biting them and they used to beat her. She also stated that accused Nadeem had continuously raped her and when Juhi had gone to her native village and Farhin and Chintu had gone for college and she was alone at home and was doing the household work, at that time accused Nadeem committed rape with her. As per her testimony accused committed rape when she was doing work in the kitchen and continuously for two days thereafter he committed rape with her and said not to share the incident with anybody. She also stated that accused Nadeem used to remove her clothes and used to commit rape with her and used to penetrate his penis into her anus. She also stated that one day date of which she does not remember, accused Juhi had beaten her so she came out of her house while weeping and went to the house of Mohd. Gulab uncle and remained there till evening. In the evening accused Juhi, Farhin and one friend of Farhin came to the house of Mohd. Gulab and were taking her back to their home by beating her. Accused Juhi had slapped her. By that time Mohd. Gulab had called the police whereafter the police had arrested the accused persons.
69. The testimony of the prosecutrix remains intact. Nothing SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 40 of 52 adverse came out in the cross examination of the prosecutrix. Accused had put suggestion to her which was denied by the prosecutrix that she was brought back from Jaipur as she had developed illicit relations with one boy. She has also denied the suggestion that she has left with one boy namely Tauqir for six months after coming back from Jaipur. Ld. Counsel for accused has relied upon the testimony of the prosecutrix in her cross examination wherein she has submitted that her Nana and Nani used to come to the house of Juhi to meet her. Ld. Counsel for accused has argued that it is not possible that if the Nani and Nani of the prosecutrix were coming to meet her, she will not disclose about the beating to them or will not state about the rape being committed by accused Nadeem. The prosecutrix has stated in her cross examination that she did not tell about the beatings to her Nana and Nani as she was scared. She has also stated in her cross that the occupants of the neighbouring buildings were aware about the beating given by the accused persons. A suggestion was also put to the witness that she had developed illicit relations with Mohd. Gulab and she wanted to work in his house and for this reason her relatives i.e. Nana and Nani, Ammi and Abba did not come to meet her to the NGO for the last 1 ½ years as they wanted her to continue work in the house of Juhi.
70. The suggestion as put by the accused persons to the prosecutrix are contradictory. At one side they stated that the prosecutrix had developed relations with one Tauqir for six months after coming back from Jaipur and on the other side they named PW Mohd. Gulab as the person with whom the prosecutrix is having illicit relations. It is worthwhile to mention that PW Mohd. Gulab has also appeared as a SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 41 of 52 witness, who is aged around 42 years and the prosecutrix is only held to be 13 years. There is a wide age gap between the prosecutrix and PW Mohd. Gulab making it remote possibility that both of them were having relations. Further, PW Mohd. Gulab is having his wife as well as his daughter as stated by him. If the Nana and Nani and the parents of the prosecutrix were not meeting her since she was having illicit relations with Mohd. Gulab the accused could have produced them in the court as a witness, But none of the witness is produced from the side of accused persons so as to prove their averments.
71. The MLC of the prosecutrix shows that her hymen was found ruptured. The last episode was one week ago from the date prosecutrix was medically examined. The MLC corroborates the statement of the prosecutrix on the point that she was sexually abused in the past.
72. The prosecutrix was admittedly working as a maid in the house of the accused persons. The accused were certainly in a dominant position qua the prosecutrix being a maid. In this case the testimony of the prosecutrix that she was scared and was asked by the accused persons not to tell about the incident to anybody can be believed.
73. The submissions of the counsel for the accused that the prosecutrix has even refused to go along with her parents and Nana and Nani cannot have much relevance because as per the statement of the prosecutrix they were not inclined to keep her and that is why she refused to accompany them from the NGO as they had brought the prosecutrix to work as maid at a tender age, perhaps for this reason the prosecutrix has lost faith in them. It is only when she was rescued by the police when PW2 had called the police, only then she got the courage to disclose SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 42 of 52 about the illtreatment given to her. The statement of the prosecutrix if taken as a whole shows that the same is not spoken as a sophisticated child. Rape is one such dark reality in Indian society that devastates a woman's sole, shatters her self respect and for a few, purges there hope to live. It shakes the insight of a woman who once was a 'happy person', and had no clue of being a victim of said horrifying and nightmarish encounters. In India, it can be said that rarely will a girl or woman make false allegations of sexual assault because of various reasons, some of which are listed by Hon'ble Supreme Court in the case of Bhardara Bhoginbhai Hirji Bhai Vs State of Gujarat AIR 1983, SC 753 as : "(1) A girl or a woman in the tradition bound non permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred; (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours; (3) She would have to brave the whole world; (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered; (5) If she is unmarried, she would apprehend that it would be, difficult to secure an alliance with a suitable match from a respectable or an acceptable family; (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself; (7) The tear of being taunted by others will always haunt her; (8) She would feel extremely SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 43 of 52 embarrassed in relating the incident to others being over powered by feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo; (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy; (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour; (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence; (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
74. The prosecutrix was minor when she was employed with the accused persons and since many years she was in the custody of the accused. Since her Nana, Nani and parents did not keep her with them and at a small tender age, she was sent to the house of accused to work as a maid, perhaps she had lost faith in her relatives and had no belief that they will keep her or will rescue her and perhaps for that reason, she continued to tolerate the illtreatment meted out to her by the accused as there was no one towards whom she could look to for the redressal of her grievances. The beatings given by the accused and her loss of faith in her relatives made her scared due to which she could not muster courage to SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 44 of 52 report the matter to the police earlier and continued to tolerate the ill treatment.
75. The submission of counsel for the accused that the statement of the prosecutrix lacks credibility as she did not disclose the incident to neighbours, does not appear to be sound because in the crime of this nature where a social stigma is attached to it and also because of shame and bashfulness of a female it is not easy for a child to disclose the incident to anybody. The prosecutrix is a minor child of 13 years who has no shelter and no relative to come to her rescue.
76. Ld. Counsel for accused has argued that there was delay in loding of FIR. The delay in lodging of FIR in such like cases is not material as is held in iota of judgments.
77. In 2012 VIII AD (Delhi) 651 titled as Pankaj Kumar and Ors. Vs State (NCT of Delhi ), Crl. Appeal No. 1305/2011, Crl. Appeal No. 1306/2011 & Crl. Appeal No. 1432/2011 decided on 27.09.2012 by Hon'ble Justice Mr. A.K. Pathak, Judge, Delhi High Court it has been held that: "There is no law that mere delay in recording of FIR and /or statements of the witnesses by itself, will be sufficient to discard the prosecution story. Delay if explained will not be fatal. However, in case sufficient reasons are not furnished to explain the delay in recording the statements of material witnesses, it casts a cloud of suspicion on the credibility of the prosecution story."
78. The delay in lodging of the FIR is also to be seen in this case SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 45 of 52 from a different perspective. The girl in this case belongs to a low strata of society and she was working as a maid in the house of accused. She was lodged there in the house of accused permanently. She must not be having so much independence nor she has courage to go alone to the police station to lodge the report when she did not find any secure hands around her.
79. PW2 and PW4 have deposed that prosecutrix had disclosed to them about the beatings given by accused person. A girl who was beaten up by her employers and who was just a maid in the house of accused cannot come in open to make the complaint. The law is settled in iota of judgment that delay in rape matter is not very material.
80. In state of HP Vs Prem Singh Hon'ble Supreme court considered the issue at length and observed as under : "6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a traditionbound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR."
Thus, in view of the above, the delay in lodging FIR in sexual offences has to be considered with a different yardstick. If the instant case is examined in the light of the aforesaid settled legal proposition, we are of SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 46 of 52 the considered opinion that the delay in lodging the FIR has been satisfactorily explained".
81. The accused persons have taken different contradictory defence. One hand they say that they are falsely implicated, on the other hand, it is argued by the counsel for accused that the sex may be a consensual sex. At one hand they put allegations of illicit relations of prosecutrix with a boy at Jaipur, then with Tauqir, then with Mohd. Gulab but all these allegations are vague. The accused also suggested that Mohd. Gulab used to sexually exploit her with consent of his wife, who remains to be ill. They also suggested that they are falsely implicated at the instance of prosecutrix, Mohd. Gulab, police officials and NGO persons. These varying defence of accused are wholly irreconcilable, contradictory and inconsistent. Even otherwise if the submissions of the accused are believed only for the sake of arguments, even then the past conduct of the girl does not give liberty to the accused to sexually abused her.
82. It is held in State of U.P. Vs Munshi AIR 2009 SC 370 that : "Even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a license to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 47 of 52 promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher pedestial than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally ".
83. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 48 of 52
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
84. It is for the court to consider in each case whether as a result of cross examination the witness stands discredited or can still be believed in regard to any party of his testimony . In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
85. In the present case no discrepancy is found in the statement of the prosecutrix. There is nothing on the record which shakes her testimony. Her testimony inspires confidence. Even the medical evidence also corroborates her statement. As per the MLC of the prosecutrix, her hymen was found torn and vagina patulous. So far as DNA is concerned since the exhibits were taken after about one week of the last episode of rape, no profile could be generated. But it does not mean that this renders the testimony of prosecutrix and her MLC nugatory.
86. As per the MLC of the accused Nadeem it is opined that there is nothing to suggest that he is incapable of performing sexual intercourse under normal circumstances.
87. So far as defence of the accused is concerned the accused persons have not produced a single witness to prove their defence. Even otherwise their defence that the prosecutrix had implicated them at the SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 49 of 52 instance of PW Mohd. Gulab is not proved by them by leading evidence.
88. The MLC of the prosecutrix also shows that there were multiple old burn marks over her right forearm, old scratch mark over white scapular region, and old scar marks were seen over her left shin bone. The MLC of the prosecutrix supports her version that she was beaten up by the accused persons whenever there is some fault in her duties. She has specifically deposed against the accused Mohd. Nadeem, Farhin Talat and Juhi khanam that they used to beat her. She has also stated that Farhin had burnt her hand with a hot chimta when she was cooking bread which was burnt by her. This fact is also corroborated by the statement of PW14 Smt. Naseema Kamat who has stated that about 23 days prior to 10.04.2012 her daughter informed her that the prosecutrix is weeping in the balcony of accused persons. She went and enquired from her who told her that she was burnt by hot chimta by accused Farhin. The prosecutrix was disclosing her beatings and plight to PW14 on the earlier occasions also. Even on 10.04.2012 she had ran to the house of PW Gulab and Naseema asking to save her. PW Naseema told her to go back otherwise the accused will quarrel with her upon which she stated to save her otherwise she will consume poison. PW Naseema also stated that after some time accused Farhin along with her friends came to her house and asked her as to in what capacity she has given shelter to the prosecutrix and was taking her by catching her pony tail and when PW Naseema raised objection Farhin even pushed her catching her hair due to which she fell down. Accused Farhin and Nadeem brought 810 more persons who started hitting the iron gate of her house and her husband called the police. The police came and SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 50 of 52 enquired about the incident from the prosecutrix. Hence, the statement of prosecutrix is also supported by PW Naseema as well as PW Gulab also. The manner in which accused Farhin was forcibly dragging the prosecutrix by catching hold of her pony tail speaks volume about the conduct and behaviour of PW Farhin towards the minor prosecutrix and court can assess from the said conduct as to how rude she could have been towards the child in the past at the time when nobody is around the prosecutrix who can come to her rescue. I do not find any point to doubt the testimony of the prosecutrix on the point of giving beatings to her by the accused persons. The old burn marks were also shown by the witness during her examination in the court and multiple old burn marks were also found on the right forearm. The MLC of the prosecutrix corroborates her statement. The prosecutrix was a minor child and was working as a maid servant. She was assaulted by the accused persons for the unnecessary mental and physical sufferings. The accused Farhin had given her burn injuries by means of hot 'chimta' and voluntarily cause hurt by means of heated substance. Hence, in view of the testimony of the prosecutrix coupled with the medical evidence, the offence under Section 324 IPC and Section 23 of Juvenile Justice Act is proved against the accused Farhin and the offence under Section 323 IPC of voluntarily causing hurt and under Section 23 of Juvenile Justice Act is proved against the accused Juhi. The offence under Section 376/377/323 IPC and 23 JJ Act is proved against the accused Mohd. Nadeem.
89. However so far as Section 3 r.w. Section 14 of Child Labour (Prohibition and Regulation) Act, 1986 is concerned, the Section punishes the employer for employing the child below 14 years of age in any of the SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 51 of 52 occupations as set forth in Part A of the schedule or in any workshop wherein any of the processes setforth in Part B are carried out. Part A and Part B of the Act does not cover the employment as a maid servant. Hence, Section 3 r.w. Section 14 of Child Labour (Prohibition and Regulation) Act, 1986 is not made out against the accused persons.
90. In view of the above said discussion, prosecution has proved its case beyond reasonable doubt and therefore accused Mohd. Nadeem is held guilty and convicted for the offence under Section 376/377/323 IPC and 23 Juvenile Justice Act, accused Farhin Talat is held guilty and convicted for the offence under Section 324 IPC and Section 23 of Juvenile Justice Act and accused Juhi Khanam @ Farhana Talat is held guilty and convicted for the offence under Section 323 IPC and 23 of Juvenile Justice Act. However, all the three accused persons are acquitted of the offence under Section 3 r.w. Section 14 of Child Labour (Prohibition and Regulation) Act, 1986.
ANNOUNCED IN THE OPEN COURT ON 06.06.2015.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA/POCSO ASJ01/SED/NEW DELHI SC No. 45/12 State Vs Mohd. Nadeem etc. Page No. 52 of 52