Delhi District Court
State vs Shakir on 18 March, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0219422013
SC No. 234/13 Date of institution : 29.07.2013
FIR No. 147/12 Date of argument : 18.03.2014
PS Vivek Vihar Date of judgment : 18.03.2014
U/S 363/366-A/376 IPC
State versus Shakir
S/o Mohd. Sarif
R/o village Khoksi, PS Sharanpur
Distt. Madhopura, Bihar.
AND
SC No. 272/13
PS: Vivek Vihar
Smt. Jasoda
W/o Sh. Mukandi Lal
R/o E-42/119, Sonia Colony,
Jhilmil Industrial Area,
Shahdara, Delhi
........ Complainant
Versus
1. Shakir S/o Sharif
2. Zakir S/o Sharif
3. Sharif
SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 1 of 26
All R/o Jhuggi Sonia Colony,
Opposite Shahdara Diesel Service,
Jhilmil Industrial Area,
Shahdara, Delhi
4. Ashok @ Bhura
S/o Sh. Devi Lal
R/o Jhuggi No. E-42/ 156, Sonia Colony,
Jhilmil Industrial Area,
Shahdara, Delhi.
5. Sanju
S/o Dhunda
R/o Jhuggi No. 105, Sonia Colony,
Jhilmil Industrial Area,
Shahdara, Delhi
6. Musha
R/o Jhuggi No. 105, Sonia Colony,
Jhilmil Industrial Area,
Shahdara, Delhi
........Accused persons
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet in FIR No.147/12, u/s 363/366A/376 IPC is that on 20.5.2012, the complainant (father of the proseuctrix/victim) came to police station Vivek Vihar and made his complaint to SI Manish Kumar. In his complaint, the complainant made the following allegations:
SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 2 of 26(i) He is a labourer by profession. On 12.4.2012 his daughter (victim/prosecutrix) aged about 14 years alongwith her mother went to house no. C-185, top Floor, Vivek Vihar, Phase-I, Delhi where she was working as a maid servant. At about 2.00 p.m., the prosecutrix left that house under pretext of going to bathroom. She went to terrace of the house but did not come back. The accused has taken the prosecutrix away after enticing and alluring her and she be traced out.
2. SI Manish Kumar got the case registered u/s 363 IPC and started investigation. Efforts were made to search the prosecutrix through WT message, missing person form, NCRB, PRO, Doordarshan but she was not traced out. On 10.4.2013, SI Manish, complainant and other police officials went to Sahrasa, Bihar in search of the prosecutrix. On 12.4.2013 the prosecutrix was found at Sahrasa Basti, Police Station Sadar, Distt. Sahrasa, Bihar alongwith the accused and the accused was arrested. The information regarding arrest of accused was given to his maternal aunt Sitara W/o Mohd. Nazir. The accused was brought to Delhi after obtaining transit remand. The prosecutrix was examined by the police and offence u/s 376 IPC was added in the FIR. The prosecutrix was also got medically examined and she informed her age as 19 years. She refused her internal SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 3 of 26 medical check up by the doctor. Thereafter the prosecutrix was produced before the Child Welfare Committee. As per the order of Child Welfare Committee, the prosecutrix was kept at Sanskar Ashram. Accused was got medically examined at Hedgewar hospital vide MLC no.1177/13. The exhibits were seized by police. On 15.4.2013 the statement of the prosecutrix was got recorded u/s 164 Cr. P.C. As per the order of Chairman, Child Welfare Committee, the prosecutrix was handed over to her parents. SI Manish collected the age proof of documents such as first attended school certificate, photocopy of admission register, photocopy of admission form, photocopy of admit card of the prosecutrix from Nagar Nigam Prathmik Vidhyalaya, C-Block, Vivek Vihar, Delhi. As per the school record, the date of birth of the prosecutrix is 05.07.1999. Thereafter the investigation of this case was handed over to SI Shweta and after completion of investigation, chargesheet was filed u/s 363/366/376 IPC against the accused.
3. vide order dated 22.7.2013, Ld. M.M. committed this case to the court of sessions and on allocation, it was assigned to this court.
4. Vide order dated 26.08.2013, charge u/s 363/366- A/376 IPC was framed against the accused to which he SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 4 of 26 pleaded not guilty and claimed trial.
5. It may be noted here that prior to registration of the present FIR, the mother of the prosecutrix had also filed a complaint u/s 200 Cr.P.C. (SC No.272/13) before the court of learned ACMM, East District Karkardooma Courts against the accused, his family members and friends (total six in number). In her complaint she has stated that she is working as a maid servant and her daughter (prosecutrix) was working as a maid servant at the house No. C-185, Top Floor, Vivek Vihar, Phase-I, Delhi in the house of Smt. Shashi. On 12.4.2012 at about 2.00 pm Smt. Shashi made a telephonic call on the mobile phone of her husband stating that (prosecutrix) has gone somewhere and was not in the house. The husband of the complainant sent his son at about 2.30 pm to the complainant. The complainant reached at C-185, Top Floor, Vivek Vihar, Phase-I, Delhi where her daughter was not found and she enquired from Smt. Shashi about her daughter( prosecutrix) who told her that she had already left at about 2.00 pm.
6. The complainant has alleged that the accused persons namely Shakir, Zakir, Ashok @ Bhura and Sanju used to chase the complainant and her daughter on foot and vehicle. On 10.03.2012 when the complainant with her SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 5 of 26 daughter was coming back from their job, on the way, she went to attend the call of nature and when she came back, she found that the accused Shakir had forcibly caught hold of the hand of her daughter (prosecutrix) and he was trying to take her with him. Two other friends namely Ashok and Sanjay were also with accused Shakir. The complainant saved her daughter from the accused persons. She further alleged that her daughter told her that the accused persons were trying to take her to Mumbai on the pretext that they would make her heroine. It is further alleged that the complainant told about the activities of the above said accused person to accused no.3 and 6 and they apologised for the acts of the above said accused persons. She further alleged that on 02.04.2012 at about 3.30 pm when she alongwith her daughter (prosecutrix) was coming back to their home from their job, the accused Shakir restrained them on the way at Railway Fatak, Vivek Vihar, Delhi stating that she belongs to schedule caste/ Balmiki and he would not leave her as the complainant has defamed him in the locality. Accused also threatened the complainant to kidnap her daughter. It is further alleged that on 12.04.2012, her daughter (prosecutrix) was kidnapped by the accused persons. The husband of the complainant went to police station Vivek Vihar to lodge the complaint regarding kidnapping of his daughter but the police only obtained his signatures on the SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 6 of 26 blank papers. It is also stated that accused persons threatened the complainant to kill her and her family in case they will take any legal action against the accused persons. Hence the present complaint u/s 323/341/354/361/366/504/ 506/34 IPC and u/s 3(i) (ii) (x) (xi) & 3 (v) of The Schedule Castes and Schedule Tribes (Prevention of Atrocities), Act.
7. The said complaint was assigned to Ms. Suchi Laler, learned MM East KKD Courts and learned MM called the status report from the concerned police station. The police informed the court that a case u/s 363 IPC has already been registered in respect of the incident and the investigation is pending. Thereafter vide order dated 11.10.2013 passed by learned CMM, the present case was sent to Ld. District & Sessions Judge, Shahdara, Delhi for assignment of the case to this court. Vide order dated 22.10.2013 passed by Ld. District & Session Judge, Shahdra, the case was assigned to this court for disposal in accordance with law.
8. Thereafter on 23.10.2013 my learned predecessor, in view of provisions of section 210 Cr. P.C. ordered that the complaint case be consolidated with the main sessions case bearing SC No 234/13. It was also ordered that the proceedings will be conducted in the main case.
SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 7 of 269. In support of its case, prosecution has examined 19 witnesses in all i.e. PW1 is the prosecutrix; PW2 is the mother of prosecutrix, PW3 father of the prosecutrix, PW4 Ms. Kusum Jauhri, PW5 W/HC Dayawati, PW6 Ct. Siya Ram, PW7 Dr. Nupur Garg, PW8 HC Rajendra Kumar, PW9 Ct. Om Prakash, PW10 HC Rohtash Singh Pilaniya, PW11 Sh. A.K. Singh, PW12 Ms. Susheel Bala Dagar, Ld. MM, PW13 Ms. Lalita, PW14 HC Ram Kishore, PW15 ASI Suman, PW16 Dr. A. Shah, PW17 SI Malti Bana, PW18 SI Manish Kumar and PW19 SI Shweta.
10. PW1 Prosecutrix deposed that in the year 2012 she was working as a maid servant alongwith her mother. On 05.07.2012 she left her house with the accused to marry him after intimating her mother. She deposed that she has studied upto 4th class. She further deposed that she was born in the year 1994. She got admitted in the school at the age of 8/9 years. She has two brothers and one sister. Her brother is the eldest child of her parents and thereafter she was born. She further deposed that she alongwith accused went to Seharsa, Bihar where their Nikah was performed as per Muslim rites and ceremonies. She remained with the accused for about a year. During the said period they maintained physical relations as husband and wife. She SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 8 of 26 deposed that accused did not maintain physical relation with her against her will at any point of time. She was also having pregnancy of three months from the accused but same got terminated as she slipped from the stairs. She states that she was 18 years of age when she left her house with the accused. She deposed that she does not want to pursue the present case and does not want to depose anything against the accused. She further deposed that she had also gone to Bangalore alongwith accused where she stayed for about three months. Her father lodged a report against her and the accused and thus she was brought to Delhi from Bihar. She averred that her parents wanted to separate her from the accused. She has deposed that her parents wanted her to indulge in prostitution. When she refused, her wrist was burnt by burning cigarette. The witness had also shown 19 black marks on her left arm. She deposed that on 22.08.2013 she again left the house of her parents without the knowledge of her parents due to above reason. She was produced before learned MM where her statement was recorded.
11. As this witness did not support the case of prosecution, she was declared hostile and was cross examined by learned Addl. PP for the State. During cross examination, she deposed that her elder brother is aged about 22 years and she is two years younger to her elder SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 9 of 26 brother. She denied that her date of birth is 05.07.1999 or that she was 14 years old when she was kidnapped by accused. She denied that she was minor at the time of taking by the accused. She denied that accused maintained physical relations when she was minor. During cross examination on behalf of the accused, this witness maintained that she was 18 years old when she left her house and got married with accused. She was not under pressure when she accompanied accused. She states that she was given beatings by her parents and she was being forced to indulge in prostitution. This witness produced her original Nikahnama, copy of the same as proved as PW1/DA. The documents of her marriage attested by Notary Public Purnea, Bihar were also produced which got collectively exhibited as Ex.PW1/DC. She stated that on 22.8.2013 she lodged a complaint with DCP against her parents, copy of the same is Ex.PW1/DD. She maintained that her parents lodged a false complaint against her and the accused. She also maintained that she was born in the year 1994 but her parents had mentioned her incorrect date of birth i.e. 05.07.1999 only to secure her admission.
12. PW2 mother of prosecutrix deposed that she has four children but she does not remember the date of birth of her elder son as she is illiterate. She states that thereafter SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 10 of 26 prosecutrix was born who is aged about 14 years but she does not remember her date of birth. She deposed that in the year 2012 the prosecutrix left her house alongwith accused. She deposed that the accused teased her daughter in the month of March-2012 when she was at station of Vivek Vihar. In the month of April-2012 when she was going to Metro Station, Vivek Vihar alongwith the prosecutrix, accused reached there and told them that he will not spare her daughter. She deposed that on 12.4.2012 accused kidnapped her daughter and her husband lodged a police report against the accused. Police did not take any action so she filed a complaint before Ld. MM. The copy of complaint is proved as Ex. PW2/A. She deposed that her daughter was traced by the police from Seharsa, Bihar and was brought to Delhi. This witness had accompanied the prosecutrix for her medical examination. On 22.8.2013 the prosecutrix left her house at about 5.00 am for easing herself and did not come back to parental home. During cross examination, she deposed that she got married at the age of 16 years and now she is 34 years old (statement of this witness was recorded on 27.8.2013). Her daughter left the house on 12.4.2012 from the kothi where she used to work as maid servant. She tried to trace out her daughter.
13. PW3 father of the prosecutrix deposed on the SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 11 of 26 same lines as the mother of the prosecutrix. He deposed that his daughter is aged about 15 years but he does not remember the date of birth of his daughter. His daughter was working in the house at Vivek Vihar as maid servant. On 12.4.2012 at about 2.00 pm he received a telephone call from the owner of the house that prosecutrix was not there. He sent his son for searching his daughter and he came to know that the prosecutrix was kidnapped by some boys Bhura, Shareef, Zakir, Sanju and Shakir. At 4.00 pm he went to police station and lodged a report. A complaint was made before the court and on the directions of the court, the present case was got registered. On 22.8.2013 his daughter again left his house. He deposed that his daughter was recovered from Seharsa, Bihar.
14. PW4 Ms. Kusum Jauhri, Principal, Nagar Nigam Prathmik Vidyalaya, C-Block, 1st Shift, Vivek Vihar deposed that as per the school record, the date of birth of the prosecutrix is 05.07.1999. This witness also brought the relevant records available in the school regarding the prosecutrix. The certificate issued by this witness on the letter pad of the school regarding the date of birth of prosecutrix is Ex. PW4/A, the photocopy of serial no. 7194 regarding the admission of the prosecutrix is Ex. PW4/B, the photocopy of admission form is Ex.PW4/C and the affidavit SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 12 of 26 given by the father of the prosecutrix is proved as Ex. PW4/D. This witness stated that the prosecutrix left the school on 19.07.2009 in 5th class.
15. PW8 HC Rajendra Kumar is the duty officer who proved the FIR as Ex. PW8/A. He also proved the DD no.4A dated 13.4.2012 as Ex.PW8/B which was recorded by HC HC Harbinder Singh.
16. PW7 Dr. Nupur Garg, Senior Resident ( Gynae), Dr. Hedgewar hospital identified the signature and hand writing of Dr. Kanika Garg, SR on her MLC Ex. PW1/B who medically examined the prosecutrix.
17. PW10 HC Rohtash Singh Pilaniya deposed that on 10.4.2013 he joined the investigation with SI Manish Kumar, W/HC Dayawati and Ct.Siya Ram and went to Seharsa Basti, Bihar. They recovered the prosecutrix and apprehended the accused. Accused was arrested vide arrest memo Ex.PW6/A and his personal search was conducted vide memo Ex. PW6/B. Accused was brought to Delhi on 14.04.2013 after obtaining transit remand.
18. PW9 Ct. Om Prakash deposed that on 14.04.2013 he took the accused to Hedgewar hospital for his medical SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 13 of 26 examination. After his medical examination, sealed parcels alongwith sample seal were received from the hospital which were seized by the IO vide memo Ex. PW9/A.
19. PW16 Dr. A. Saha from Dr. Hedgewar hospital deposed that on 14.4.2013 he examined accused vide MLC Ex. PW16/A.
20. PW15 ASI Suman deposed that on 15.4.2013 on the direction of SI Malti she produced the prosecutrix before Ld. MM for recording her statement u/s 164 Cr. P.C. and her application in this regard is Ex.PW12/A. Application for receiving the copy of statement of the prosecutrix is Ex.PW12/D.
21. PW12 Ms. Susheel Bala Dagar, Ld. MM-2, Shahdara deposed that on 15.4.2013 the statement Ex.PW1/A of the prosecutrix u/s 164 Cr. P.C. was recorded by her.
22. PW11 Sh. A.K. Singh, Chairperson of Child Welfare Committee, Dilshad Garden, Delhi deposed that on 16.4.2013 the prosecutrix was produced before him by SI Shweta Sharma. The custody of the girl ( prosecutrix) was handed over to her father. During cross examination he stated that SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 14 of 26 the police brought the ration card of the prosecutrix alongwith other documents in which the age of the prosecutrix was shown as 18 years. He also deposed that the prosecutrix also disclosed her age as 18 years.
23. PW13 Ms. Lalita Caretaker, Sanskar Ashram, Dilshad Garden, Delhi deposed that on 14.4.2013 the girl was brought to Sanskar Ashram and on 16.4.2013 she was handed over to her parents.
24. PW18 SI Manish Kumar is the investigating officer of this case. He deposed that on 13.4.2012 missing report of the prosecutrix vide DD No. 4A Ex. PW8/B was marked to him. The age proof of the prosecutrix was produced by her father and according to that she was 13 years old. The school record was verified and seized from the school authorities vide memo Ex. PW18/A. The present case was got registered on the statement of father of the prosecutrix on which he made endorsement Ex.PW18/B and the case was registered u/s 363 IPC against the accused. WT message and missing person form, NCRB were flashed on the net to trace out the prosecutrix but she could not be traced. On 8.4.2013 he received an information that the prosecutrix and the accused are available at Seharsa Basti, Bihar. Accordingly, he alongwith HC Rohtash, W/Ct. Dayawati, Ct.Siya Ram and the SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 15 of 26 complainant went to abovesaid place on 10.4.2013 where the prosecutrix and the accused were apprehended. The accused was arrested and he was brought to Delhi after obtaining transit remand and they were produced before SI Shweta.
25. PW5 W/HC Dayawati deposed that on 10.04.2013 she joined the investigation of this case. She alongwith SI Manish, HC Rohtash, Ct.Siya Ram and complainant went to Bihar where they arrested the accused and after obtaining transit remand accused and the prosecutrix were brought to Delhi.
26. PW6 Ct. Siya Ram also deposed that on 10.04.2013 he joined the investigation of this case. He alongwith SI Manish, HC Rohtash, W/HC Dayawati and complainant went to Bihar. The accused was arrested vide memo Ex. PW6/A and his personal search memo Ex. PW6/B was conducted. Accused made disclosure statement Ex.PW6/C. After obtaining transit remand, accused was brought to Delhi.
27. PW14 HC Ram Kishore is the MHC (M) deposed that on 14.4.2013 W/ASI Shweta handed over the sealed parcels and sample seal to him and he made entry in the SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 16 of 26 register no.19 and the same as Ex. PW14/A.
28. PW19 SI Shweta deposed that on 13/14.4.2013 she was called in the police station Vivek Vihar where the prosecutrix and the accused were present. Mother of the prosecutrix had also accompanied her. The prosecutrix was taken to Hedgewar hospital for her medical examination but she refused for her medical examination. Thereafter the prosecutrix was produced before Child Welfare Committee and she was sent to Sanskar Ashram, Dilshad Garden, Delhi. Accused was also taken to Hedgewar hospital for his medical examination. After medical examination, the sealed exhibits were received from the hospital and were seized vide memo Ex.PW9/A and deposited in the malkhana in intact condition. Thereafter the custody of the prosecutrix was handed over to her parents by Child Welfare committee. Further investigation was handed over to SI Malti on 19.4.2013.
29. PW17 SI Malti deposed that on 22.4.2013 the investigation of this case was handed over to her. During investigation she recorded the statements of the witnesses and prepared the challan.
30. After completion of prosecution evidence, statement of accused u/s 313 Cr. P.C was recorded in which SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 17 of 26 accused states that he does not want to lead defence evidence. He also stated that he and the prosecutrix were in love with each other. Prosecutrix was major and she left her house as per her own will and married him without any force. Now they are living happily as a married couple. He also states that as per ration card, prosecutrix is 19 years old at the time of leaving her house.
31. I have heard arguments addressed by learned Addl. PP for the State and the learned defence counsel and perused the record.
32. The accused is facing trial for the commission of offences u/s 363/366-A/376 IPC. The prosecutrix in her statement has stated that she had left her house with the accused Shakir to marry him after intimating her mother. Thereafter the accused and the prosecutrix went to Seharsa, Bihar where their Nikah was performed as per Muslim rites and ceremonies. She remained with the accused for about one year. During that period, they maintained physical relations as husband and wife. Prosecutrix also stated that accused did not maintain physical relations with her against her will at any point of time.
33. It may be added here that prosecutrix and the SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 18 of 26 accused are still residing together as husband and wife as is apparent from the judicial record.
34. The fact of marriage between the accused and the prosecutrix is established by Ex. PW1/DA i.e. copy of Nikahanama showing that the accused and the prosecutrix got married on 16.7.2012 as per Muslim rites and ceremonies. In her statement u/s 164 Cr.P.C. Ex.PW1/A, the prosecutrix has also stated the same thing.
35. The prosecutrix has deposed that the accused made physical relations with her consent and will. In view of the statement of prosecutrix, the statements of PW2 (mother of the prosecutrix) and PW3 (father of the prosecutrix) are of no consequence.
36. Ld. Addl. PP for the State contended that even if the accused and the prosecutrix got married, sexual intercourse by the accused with prosecutrix would still fall within the definition of rape u/s 375 IPC. She refers to documents Ex. PW4/A to PW 4/D which were issued by the school authorities of Nagar Nigam Prathmik Vidyalaya, C- Block, 1st shift, Vivek Vihar to show the date of birth of the prosecutrix as 05.07.1999. The FIR is dated 20.05.2012. Ld. Addl. PP for the State relied on the exception attached to SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 19 of 26 section 375 IPC which stipulates ''Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape''.
37. Section 376 provides for a milder punishment in case of sexual intercourse by a man with his wife, wife being above 12 years of age but below 15 years of age. In such case, the punishment is imprisonment of either description for a term which may extent to two years or with fine or with both.
38. There is no evidence on record that the accused had sexual intercourse with the prosecutrix before the date of their marriage. It is not the case of the prosecution that the prosecutrix was below 12 years of age on the date of marriage between the prosecutrix and the accused. Under these circumstances, the issue will arise as to whether the prosecution has been able to show that the prosecutrix was below 15 years of age at the relevant time.
39. The prosecutrix and the accused have maintained that she was above 18 years of age at the relevant time. The affidavit Ex. PW4/D on the basis of which age of the prosecutrix was got recorded in the school records has overwriting on the year of date of birth of the prosecutrix.
SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 20 of 26PW11 Sh. A.K. Singh, Chairperson, Child Welfare Committee, Dilshad Garden, Delhi stated that on 16.4.2013 prosecutrix was produced before him by police official. The police official had brought the ration card in which the age of the prosecutrix was shown as 18 years. PW19 SI Shweta who had taken the prosecutrix to Child Welfare Committee was unable to admit or deny as to whether the ration card containing the name of the prosecutrix was shown to the Chairperson of Child Welfare Committee. The MLC of the prosecutrix Ex.PW1/B was got done on 14.4.2013 in which the doctor had advised for age determination. Nothing has brought on record about the outcome of the age determination of the prosecutrix. In the DD entry Ex.PW8/B dated 13.04.2012 recorded at police station Vivek Vihar, the age of the prosecutrix is shown as 18 years. Apart from this Ex.PW8/B i.e DD No.4A dated 13.4.2012 lodged by the father of the prosecutrix also records the age of prosecutrix as 18 years. There is also a photocopy of aadhaar card bearing no. 496507104367 issued by Central govt. in which the year of the birth of the prosecutrix is shown as 1996. This aadhaar card refers to prosecutrix as would be apparent from the name, parentage and the address as mentioned in the aadhaar card. This aadhaar card is bearing date as 30.6.2011 i.e. date before the present incident of 12.4.2012. The prosecutrix in her statement recorded on 27.8.2013 stated SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 21 of 26 that her brother Kamlesh is aged about 22 years and she is two years younger than her brother Kamlesh. In other words, she maintained that she was 19 years of age at the time of incident. She also stated that she got admission in the school when she was 8-9 years of age. PW2 (mother of the prosecutrix) was unable to tell the date of birth of the prosecutrix. PW3 (father of the prosecutrix) stated that he did not obtain the birth certificate of the prosecutrix from MCD.
40. Under these circumstances, I am of the opinion that prosecution has failed to establish that the prosecutrix was below 15 years of age at the relevant time. Thus, prosecution has not been able to prove that accused has committed offence u/s 376 IPC.
41. As far as offence 363 IPC is concerned, section 363 IPC provides punishment for kidnapping of minor as defined under section 361 IPC.
42. Section 361 IPC stipulates that whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of the such guardian, is said to kidnap such minor or person SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 22 of 26 from lawful guardianship.
43. Section 366-A IPC provides punishment for the offence of procuration of minor girl. Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend extend to 10 years and with fine. Section 366-A embodies an aggravated form of offence of kidnapping as defined under section 361 IPC.
44. No material has come on record to show that the accused had induced the prosecutrix to leave her parental home. The prosecutrix has deposed that she left the house of her parents of her own free will to marry the accused and after informing her mother. Thereafter she got married with accused. They are still residing as husband and wife. It is not the case of the prosecution that accused used any force at any point of time.
45. In the judgment Lawrence Kannandas V. The State of Maharashtra [ 983 Crl. L. J. 1819], Hon'ble Bombay High Court after referring the judgment of Hon'ble SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 23 of 26 Supreme Court in the case of S. Varadarajan V. State of Madras ( AIR 1965 SC 942) held as follows:
''In order to come within the mis-chief of that section the accused must have either taken away the minor girl or must have enticed the minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions ''taking'' and ''enticing'' evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful guardians. Neither of the sections would have any application if the girl has, of her own accord, come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place.''
46. Similarly, in Madan Lal v. Dr. Jaswant Batra [1994 Crl. L.J 1767], the Hon'ble Delhi High Court observed as follows:
''The most important ingredient of this section is taking or enticing away a minor or a person of unsound mind from keeping of the lawful guardian. Before a person is said to he kidnapped a minor, there must be some proof of his having done something which led to removal of the minor from the keeping of his/ her guardian.''
47. The evidence that has come on record is only to the effect that the prosecutrix has left the lawful guardianship of her father of her own. No evidence has come on record to show taking, enticing or allurment on the part of accused. Since there is no evidence on record to show that accused had enticed or took away the prosecutrix from the SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 24 of 26 lawful guardianship, the mandatory requirements of section 361 IPC are not fulfilled. Thus 366-A IPC is also not proved.
48. In view of above discussion, it is held that the prosecution has not been able to prove its case. Thus, the accused Shakir is acquitted for the offences u/s 363/366- A/376 IPC in case FIR No. 147/12, PS Vivek Vihar.
49. Insofar as the private complaint of the mother of the prosecutrix is concerned, during the course of trial no evidence has come on record to substantiate the allegations in the complainant which are in addition to allegations made in the present session case No. 234/13. The present complaint has been filed by the mother of the prosecutrix against the accused and several other persons who are either related to the accused or are his friends. It is alleged in the complaint that the accused said the complaint that she belongs to schedule caste/Balmiki and he would teach her a lesson as the complainant has defamed him in the locality.
50. Even otherwise considering that the prosecutrix and the accused are residing together as husband and wife, it is most improbable that the accused had any ill will against the prosecutrix and her mother on account of their belonging to schedule caste/ Balmiki.
SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 25 of 2651. In view of evidence on record, the complaint case (SC No.272/13) filed by the complainant is also dismissed. A copy of this judgment be also placed in the complaint case.
52. Files be consigned to record room after necessary compliance.
Announced in the open court on 18.03.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No. 234/13 state v. Shakir & SC No. 272/13 Jasoda v. Shakir etc. Page 26 of 26