Delhi District Court
State vs . Afsar Ali on 27 February, 2018
State vs. Afsar Ali
IN THE COURT OF SH PRITAM SINGH: ASJ-04/
DWARKA COURT: NEW DELHI
Sessions Case No. 440948/2016
State vs. Afsar Ali
Police Station : Dabri
Under Sections : 366 IPC and section 4 of POCSO Act
Date of presentation of charge sheet : 13.02.2014
Date on which judgment was reserved : 27.02.2018
Date on which judgment was pronounced : 27.02.2018
JUDGMENT:
1. In brief, the case of the prosecution is that on 14.08.2013 a complaint was made by father of child victim to the police stating that he resided in a rented house and worked as a laborer. On 09.09.2013 at about 10.00 AM, he went to his work and his wife also went to work at Janak Puri. His daughter, child victim aged 15 years was alone at the house. His wife informed him at about 5.00 PM that the child victim was not at home. A call was received by the son of the complainant from Afsar Ali (accused), who informed that the child victim was with him. The accused had taken away the child victim after enticing her. On this complaint, the present case was registered. On 03.12.2013, the police brought the child victim and accused from Delhi High FIR No. 511/2013 P.S. Dabri Page No. 1 of 20 State vs. Afsar Ali Court to the police station, Dabri. The statement of child victim under section 164 Cr.P.C. was got recorded. The child victim stated in her statement under section 164 Cr.P.C. that she knew the accused for last three years and she had told to her brother that she wanted to marry the accused but her brother did not agree and told her that he would not allow the child victim to marry the accused. Therefore, the child victim and accused decided to run away from their respective houses and on 09.09.2013 they fled from their houses. Child victim and accused had gone to the village of accused and there they married as per Muslim customs and continued to live there. They made an application before the Delhi High Court seeking protection but the same was dismissed. The child victim further stated that accused had not kidnapped her and she had gone on her own will. They were residing as husband and wife after their marriage. Nothing happened between them before their marriage. They made physical relations with consent to each other after their marriage.
2. During the investigation, the medical examination of child victim and accused was conducted. Statement under section 161 Cr.P.C. of the witnesses were recorded. Documents were collected. After completion of investigation, the charge-sheet was filed. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. On 26.03.2014 charge for offence under section 4 of POCSO Act and Section 366 IPC was framed against the FIR No. 511/2013 P.S. Dabri Page No. 2 of 20 State vs. Afsar Ali accused. The accused pleaded not guilty and claimed trial.
3. The prosecution in order to prove the charge against the accused examined thirteen witnesses. Child victim was examined as PW-1, father of child victim was examined as PW-2, HC Mahavir Singh was examined as PW- 3, Mother of child victim was examined as PW-4, Ms. Manu Goel Kharb, MM was examined as PW-5, Sh. Dev Pal Singh was examined as PW-6, Sh. Devender Singh Nain, Teacher in MCD Primary School was examined as PW-7, Dr. Shweta, Emergency Medical Officer, DDU Hospital was examined as PW-8, Dr. Naorem Bobo Singh, Senior Resident, DDU Hospital was examined as PW- 9, W/Ct. Sudesh was examined as PW-10, Ct. Kuldeep Singh was examined as PW-11, HC Dharambir was examined as PW-12, W/Inspector Domnika Purti was examined as PW-13.
4. The following documents were relied upon by the prosecution during its evidence, as under:
(i) MLC of child victim Ex.PW-1/A
(ii) Statement u/s 164 Cr.P.C. Ex.PW-1/B
(iii) Complaint filed by father of child victim Ex.PW-2/A
(iv) Computer generated copy of FIR Ex.PW-3/A
(v) Endorsement on Rukka Ex.PW-3/B
(vi) Certificate in respect of statement u/s 164 Cr.P.C. Ex.PW-5/A
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State vs. Afsar Ali
(vii) Application for supply copy of statement u/s 164 Cr.P.C. Ex.PW-5/B
(viii) Copy of relevant entry in the Notary Register Ex.PW-6/A
vide serial No. 8974 and 8975 (OSR)
(ix) Photocopy of affidavit Ex.PW-6/B
(x) Photocopy of admission form of child victim Ex.PW-7/A
(OSR)
(xi) Photocopy of birth certificate of child victim Ex.PW-7/B
(OSR)
(xii) Photocopy of relevant entry of register Ex.PW-7/C
(OSR)
(xiii) MLC of accused Ex.PW-9/A
(xiv) Rukka Ex.PW-12/A
(xv) Arrest memo of accused Ex.PW-13/A
(xvi) Personal search of accused Ex.PW-13/B
(xvii) Disclosure statement of accused Ex.PW-13/C
5. The statement of accused under section 313 Cr.P.C. was recorded on 17.11.2016. All the incriminating evidence were put to the accused but he replied that he was wrongly implicated in the case. Accused stated that the child victim had gone with him to his native place on her own. He admitted that on 10.09.2013 a Quazi performed his marriage with the child victim. The accused further stated that he had made physical relations with the child victim after their marriage with consent of the child victim.
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State vs. Afsar Ali
6. The accused examined one Pappu as DW-1 in his defence evidence, thereafter, defence evidence was closed on 02.01.2018.
7. Final arguments heard. Record perused and considered.
8. Ld. Additional PP submits that from the evidence of all the prosecution witnesses (PWs) and the documents relied upon by the prosecution, the guilt of the accused is proved beyond reasonable doubt. Ld. Additional PP further submits that though the child victim deposed that the accused had made physical relation with her after their marriage with her consent but as the child victim was minor at that time, therefore, her consent is immaterial. Ld. Additional PP further submits that PW-1, child victim had also deposed that the accused made physical relation with her in the house of sister of the accused at Ghaziabad against her will. Ld. Additional PP further submits that the accused had not only kidnapped the child victim but also compel to marry him and made physical relation with her against her will, therefore, he is liable to be convicted for offence under section 4 of POCSO Act and Section 366 IPC.
9. Ld. counsel for the accused submitted that the statement of child victim, under section 164 Cr.P.C was recorded in which she nowhere stated that accused had made physical relation with her against her will in the house of his sister at Ghaziabad. Ld. counsel further submitted that the child victim stated in FIR No. 511/2013 P.S. Dabri Page No. 5 of 20 State vs. Afsar Ali her statement under section 164 Cr.P.C. that she had left her home on her own and married the accused as per Muslims custom and after their marriage they made physical relation being husband and wife. Ld. counsel for the accused further submitted that the child victim told to the accused that she was more than 18 years old and had even shown her Aadhar card to the accused, in which her year of birth was 1995. Ld. counsel for the accused further submitted that before the marriage the child victim verified an affidavit stating her age as 20 years old. Ld. counsel for the accused further submitted that the child victim was major at the time of leaving her home and she willfully married with the accused, therefore, the accused had neither kidnapped the child victim nor compelled her to marry him nor made forcible physical relation with her.
10. As the charge under section 4 of POCSO Act was also framed against the accused, therefore, it is necessary to ascertain whether the child victim was below the age of 18 years on the date of incident. Section 34 of POCSO Act provides that for determination of age of a child by special court the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 shall be applied. Section 34 (2) of the POCSO Act provides that if any question arises in any proceedings before the special court whether a person is child or not, such question shall be determined by the special court after satisfying itself about the age of such person and it shall record in writing its FIR No. 511/2013 P.S. Dabri Page No. 6 of 20 State vs. Afsar Ali reasons for such determination. The incident in question took place on 09.09.2013, therefore, the Juvenile Justice (Care and Protection of Children) Rules 2007 are applicable to determine the age of the child victim as the said rules were in force at the relevant time and not Juvenile Justice (Care and Protection of Children) Rules 2016 which were come in force on 21.09.2016.
11. Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules 2007 provides as under:
(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;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
12. The child victim had not studied up to 10 th class, therefore, the question of her matriculation or equivalent certificate does not arise in order to determine her age. The prosecution has tried to establish the age of child victim under order 12 (3) (a) (ii) of the JJ Rule 2007 based on her first attended school FIR No. 511/2013 P.S. Dabri Page No. 7 of 20 State vs. Afsar Ali certificate/record. The prosecution has examined PW-7, Sh. Devender Singh Nain, a teacher in MCD, Primary School (Ist Shift) to prove the school record of child victim. PW-7 deposed that as per school record, the child victim was admitted in the school on 22.07.2008 in first standard. PW-7 further deposed that at the time of admission parent of child victim had submitted the birth certificate issued by MCD. As per record, the date of birth of child victim was 21.10.1997. The copy of admission form of child victim Ex.PW-7/A and copy of birth certificate of child victim Ex.PW-7/B.
13. PW-7 dully proved the admission form of the child victim Ex.PW- 7/A. From the deposition of PW-7, it is proved that the date of birth of the child victim is 21.10.1997 and she took admission in first class in MCD Primary School (Ist shift), Mahavir Enclave Part-II/III, New Delhi. Hence, from the school record of the child victim, it is proved that the date of birth of child victim is 21.10.1997. According to the prosecution, the child victim was kidnapped on 09.09.2013 and the accused had made physical relation with the child victim on 10.09.2013. As the date of birth of child victim is 21.10.1997, therefore, she was 15 years, 10 months and 19 days on the day of incident i.e. 09.09.2013, when she was allegedly kidnapped by the accused.
14. Ld. counsel for the accused submitted that the child victim had given the copy of her Aadhar card to the accused in which her year of birth was 1995, FIR No. 511/2013 P.S. Dabri Page No. 8 of 20 State vs. Afsar Ali therefore, the child victim was more than 18 years old on the day of incident i.e. 09.09.2013. There is no legal force in this contention of the Ld. counsel for the accused as it is well settled law that the age of child victim shall be determined as provided under Section Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules 2007 and the Aadhar card cannot be considered to determine the age of child victim. The further contention of Ld. counsel for the accused the child victim has verified the affidavit at the time of her marriage that she was 20 years old at that time. This contention has also no substance because Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules 2007 does not mention any such affidavit. Hence, it is proved that the child victim was 15 years, 10 months and 19 days on the day of incident and as such she was minor.
15. Now the question arises whether the prosecution has proved beyond reasonable doubt that the accused committed offence under section 366 IPC?
Section 366 IPC: Kidnapping, abducting or inducing woman to compel her marriage etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either FIR No. 511/2013 P.S. Dabri Page No. 9 of 20 State vs. Afsar Ali description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
16. PW-1, child victim deposed that she knew the accused prior to the incident as she was residing as tenant in the same building, where she was residing with her family. PW-1 further deposed that they used to meet regularly and became friends. On 09.09.2013, accused took her to Anand Vihar bus stand from auto-rikshaw and from there he took her to his native village in U.P. by bus and they reached there on 10.09.2013. PW-1 further deposed that on the same day i.e. 10.09.2013, accused took her to a court, where he called one Quazi to perform their marriage and their marriage was performed by Quazi. PW-1 further deposed that after marriage accused took her to place where they stayed for 1-2 days. From there, the accused took her to the house of his sister at Ghaziabad and they stayed there for about two months. PW-1 further deposed that accused made physical relation with her on several occasions against her will during their stay in the house of his sister at Ghaziabad. PW-1 further deposed in the month December 2013, the police rescued her form the clutches FIR No. 511/2013 P.S. Dabri Page No. 10 of 20 State vs. Afsar Ali of the accused. PW-1, identified her signature on her statement under section 164 Cr.P.C. Ex.PW-1/B. PW-1 deposed in her cross examination that she was in love with the accused at the time of incident. PW-1 admitted that she used to go out with the accused and they had taken vows for getting married and for staying together. PW-1 further admitted that her family was opposed to her marriage with the accused, therefore, she decided with the accused to run away and get married. PW-1 further admitted that on 09.09.2013, she voluntarily accompanied the accused and left her house in order to get married. PW-1 further admitted that her family was opposed to her marriage with the accused as he was from different religion but she had no objection in getting married with the accused. PW-1 further admitted that her marriage with the accused was performed by Quazi as per Muslims custom and she was residing happily with the accused after the marriage as husband and wife. PW-1 denied the suggestion that accused had not done any forcible act with her after the marriage. PW-1 deposed that accused had raped her in his sister house at Ghaziabad but she did not tell about the forcible act of the accused to anyone. PW-1 admitted that her statement under section 164 Cr.P.C Ex.PW-1/B was her voluntarily statement.
17. PW-2, father of child victim deposed that on the day of incident he had gone for his duty in the morning and his wife had also left the house for her duty in the morning, after leaving their daughter (child victim) and son at house. FIR No. 511/2013 P.S. Dabri Page No. 11 of 20
State vs. Afsar Ali PW-2 further deposed that at around 4.00 PM, his wife returned to her house, she found that her daughter (child victim) was not there and his wife made efforts to trace the child victim in their neighborhood and when child victim could not be traced, his wife had sent his son to the site where he was working, thereafter and his son returned to their house. PW-2 further deposed that after returning to his house, he and his wife went to P.S. Dabri and lodged a complaint regarding missing of child victim, the complaint Ex.PW-2/A. PW-2 further deposed that on the same day in the night, accused Afsar Ali made a telephone call on the mobile of his elder son to the effect that child victim was with him. PW-2 further deposed that he had given the name and phone number of accused to the police in his complaint also. PW-2 further deposed that after about one month of the said incident, the child victim and accused had returned to Delhi. Thereafter, the child victim was taken to hospital by the police, where she was medically examined. PW-2 further deposed that statement of child victim was recorded by Ld. MM. PW-2 further deposed in her cross- examination that he did not know whether the child victim had accompanied the accused voluntarily or not.
18. PW-4, mother of child victim deposed that she alongwith her family was residing as tenant in a house at Janak Puri and accused Afsar Ali was also residing as tenant in the same house. PW-4 further deposed that on the day of FIR No. 511/2013 P.S. Dabri Page No. 12 of 20 State vs. Afsar Ali incident she and her husband had left their house for their jobs and in the evening, when she returned to her house, she found that child victim was missing. Thereafter, she alongwith her husband and her son made efforts to trace the child victim but she could not be traced. They found that accused was also absent from his room and suspecting the accused, they made enquiries from his jija, who was also staying with him in the same room. PW-4 further deposed that she alongwith her husband went to P.S. Dabri and lodged a complaint regarding missing of her daughter (child victim). PW-4 further deposed that after about three months of incident, police had recovered the child victim from the possession of accused Afsar Ali. Thereafter, child victim was taken to DDU hospital for her medical examination and the child victim was got medically examined there. PW-4, in her cross-examination denied the suggestion that the child victim had accompanied accused Afsar Ali on her own.
19. PW-13, W/Inspector Domnika Purti deposed about the investigation carried out by him and proved the documents and memos prepared by him during the course of investigation.
20. PW-1, child victim is the star witness of the prosecution. However, there are contradictions in the deposition of PW-1. On the one hand, the PW-1 deposed that accused took her to Anand Vihar Bus stand and from there he took her to his native village in U.P. On the other hand, PW-1 deposed that she was FIR No. 511/2013 P.S. Dabri Page No. 13 of 20 State vs. Afsar Ali in love with the accused and as her family was opposed to her marriage with the accused , therefore, she decided with the accused to run away and get married. PW-1 further deposed that on 09.09.2013, she voluntarily accompanied the accused and left her house in order to get married. As there are material contradictions in the deposition of PW-1, therefore, it raises doubt in the story of prosecution that the accused kidnapped the child victim and compelled her to marry him. It is also important to mention here that the child victim had stated in her statement under section 164 Cr.P.C. Ex.PW-1/B that she had gone with the accused on her own and as her family members were against her marriage with accused, therefore, she and accused decided to run away to get married. PW-1 had admitted in her cross-examination that her statement under section 164 Cr.P.C. Ex.PW-1/B was her voluntarily statement. Hence, the story of the prosecution that the accused kidnapped the child victim in order to compel her to marry or to have illicit sexual intercourse with him is totally destroyed by the deposition of PW-1. The deposition of PW-2 and PW-4 are not to any help to the prosecution as child victim has categorically deposed that she had gone with the accused with her free will as she was in love with the accused. From the deposition of PW-1 and her statement under section 164 Cr.P.C. Ex.PW-1/B, it is clear that she was fully aware about the consequences of her act of leaving her home and to get married with the accused. In S. Varadrajan vs. State of Madras, AIR 1965 SC 942 the Hon'ble Supreme Court held "Where facts FIR No. 511/2013 P.S. Dabri Page No. 14 of 20 State vs. Afsar Ali indicate that the girl left her father's protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out." The ruling S. Varadrajan vs. State of Madras is applicable to the facts of the case in respect of charge of kidnapping of the child victim. From the deposition of the child victim and her statement under section 164 Cr.P.C. Ex.PW-1/B it is clear that the child victim had left her house on her free will and there was no pressure or enticement was made/done by the accused upon her. Hence, the prosecution failed to prove that the child victim was kidnapped on 09.09.2013. To prove the case under section 366 IPC, first kidnapping has to be proved, when kidnapping is not proved, the charge of kidnapping in order to compel a woman to have illicit relation cannot be proved. Thus, the prosecution failed to prove the charge of offence under section 366 IPC.
21. Whether the prosecution has proved the charge under section 4 of POCSO Act?
Section 4 of POCSO Act. Punishment for penetrative sexual assault
- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for like, and shall also be liable to fine.
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State vs. Afsar Ali
22. PW-1, child victim deposed that accused made physical relation with her on several occasions against her will during their stay at the house of his sister at Ghaziabad. PW-1 further deposed that in the month of December 2013, the police rescued her form the clutches of the accused. As discussed above, PW-1, child victim had not stated in her statement under section 164 Cr.P.C. Ex.PW-1/B that the accused had made physical relation with her against her will. Not only this PW-1, child victim in her statement under section 161 Cr.P.C. to police stated that the accused had made physical relation with her against her will even before their marriage. Therefore, there is contradiction in the deposition of PW-1. PW-1, child victim has taken different stands at different times. What she stated in her statement under section 161 Cr.P.C. was not stated in her statement under section 164 Cr.P.C. and a new version was stated in her deposition before the court. PW-1 has also not given any date or time when the accused had made physical relation with her against her will. Even otherwise, from the deposition of PW-1, it is clear that after her marriage with the accused, they went to the house of sister of the accused at Ghaziabad, where they stayed for about two months. The marriage already took place between the accused and child victim and the child victim deposed in her cross-examination that she was staying happily with the accused after their marriage as husband and wife. Therefore, the deposition of PW-1, child victim that the accused had made physical with her against her will, does not inspire confidence of the court. The FIR No. 511/2013 P.S. Dabri Page No. 16 of 20 State vs. Afsar Ali further deposition of PW-1 that the police rescued her from the clutches of accused in December 2013 has no substance because as per charge-sheet the police brought accused and child victim from Delhi High Court, where they moved petition for protection. Thus, the deposition of PW-1 is not only full of contradictions but there is also improvements in her deposition, therefore, the deposition of PW-1 that the accused has made physical relation with her against her will, can not be relied upon.
23. The accused has admitted in his statement u/s 313 Cr.P.C. that after his marriage with the child victim he had made physical relation with the child victim with the consent of the child victim. PW-1, child victim also stated in the statement u/s 164 Cr.P.C that she and accused had made physical relation voluntarily after their marriage. It is already established that the child victim was below 18 years of age but more than 15 years of age on the day of incident in question. The question arises, whether the physical relations made by the accused with the child victim after their marriage amounts to commission of offence under section 4 of POCSO Act? I think the answer is no. The act of accused making physical relation with the child victim, who was his wife and was above 15 years of age at the relevant time, is protected by the Exception 2 to Section 375 IPC. The Exception 2 to Section 375 IPC provides as under:
Sexual intercourse or sexual act by a man with his own wife, the FIR No. 511/2013 P.S. Dabri Page No. 17 of 20 State vs. Afsar Ali wife not being under 15 years of age, is not rape.
24. Though, the Hon'ble Supreme court in Independent Thought vs. Union of India & Anr., Writ petition (civil) No. 382 of 2013, date of decision 11.10.2017, has amended Exception 2 to Section 375 IPC by removing the phrase "the wife not being under 15 of age" and replacing it with phrase "the wife not being 18 years" however, the Hon'ble Supreme Court has made it clear that the said change/the judgment will have prospective effect. The Hon'ble Supreme Court in Independent Thought vs. Union of India & Anr. (Supra) has held as under:
"In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:-
(i) it is necessary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as follows:
"Sexual intercourse or sexual acts by a man with his own wife, the FIR No. 511/2013 P.S. Dabri Page No. 18 of 20 State vs. Afsar Ali wife not being 18 years, is not rape".
It is, however, made clear that this judgment will have prospective effect."
25. The accused made physical relation with the child victim after their marriage, the child victim had also admitted that she married with the accused with her free will. Thus, the physical relations was made by the accused with the child victim after their marriage and as such his act is covered under the Exception 2 to Section 375 IPC. The law laid down by the Hon'ble Supreme Court in Independent Thought vs. Union of India (Supra) will have prospective effect as held by the Hon'ble Supreme Court. Accordingly, a sexual act done by a man with his wife before, 11.10.2017, even if the wife is minor i.e. between the age of 15 and 18 years is not an offence. The act of making physical relation by the accused with the child victim being his wife before 11.10.2017 does not amount to commission of offence as the child victim was more than 15 year on the day of incident. Hence, the accused cannot be convicted under section 4 of POCSO Act.
26. In view of the above discussion, the prosecution has failed to prove the charge under section 366 IPC beyond reasonable doubt. The prosecution has also not proved the charge under section 4 of POCSO Act against the accused Afsar Ali, beyond reasonable doubt as well as due to the Exception 2 to section FIR No. 511/2013 P.S. Dabri Page No. 19 of 20 State vs. Afsar Ali 375 IPC. Hence, the accused is acquitted from both the charges.
27. The accused has furnished the bonds in compliance of section 437A Digitally signed Cr.P.C and the same are accepted. by PRITAM PRITAM SINGH SINGH Date:
2018.02.28 11:58:58 -0500 Pronounced in the open court (Pritam Singh) on 27.02.2018 ASJ-04/Dwarka Courts New Delhi FIR No. 511/2013 P.S. Dabri Page No. 20 of 20