Delhi District Court
State vs Ajay Shukla @ Dinesh on 27 May, 2008
1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
SC No. 166/06
State Versus Ajay Shukla @ Dinesh
@ Rahul son of Shiv Dev
Singh R/o Vill. Aunchha
PS Anuchha Distt
Mainpuri (Uttar Pradesh ).
FIR No. 183/2006
Police Station Tilak Marg
Under Section 363/366/376 IPC
Date of Institution 28.9.06
Date when arguments
were heard 29.4.08
Date of judgment 12.5.08
JUDGMENT
The SHO of Police Station Tilak Marg through learned Assistant Commissioner of Police has challaned the accused for facing trial under sections 363/ 366/376 IPC for kidnapping and raping minor girl 'X'. Keeping in view the provisions of section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs Puttraja (2004 (1) SCC 475) and Om Prakash Vs State of Uttar Pradesh 2006 Cri.L.J. 2913. I do not intent to mention the 2 name of the prosecutrix/victim in this judgment. After supplying the copies to the accused under section 207 CrPC the learned Metropolitan Magistrate committed the case to the court of session under section 209 CrPC.
BRIEF FACTS The prosecution case, in brief, is that on 1/5/2006 Shri Avtar Singh the father of the prosecutrix lodged the complaint with the police alleging that his daughter who was a student of Guru Har Kishan Public School, Old fort Road, New Delhi, and was studying in 10th class and was aged about 15 years had gone to the school in school bus in school dress. On 1/5/2006 his daughter had left for her school from the school to home in the afternoon. He expressed in his complaint the doubt that the accused who was attending the music class his daughter might have seduced his daughter. The matter was investigated by the police of police station of the case. After completing the usual formalities of W./T message to all SSP's in India and to SHO's in Delhi, filling the missing persons form and sending it to missing persons squad and photo display in Doordarshan broadcast and publication in newspapers getting call details of mobile phone No. 971993166 IMEI No. 353400007190601 the prosecutrix was recovered from the possession of the accused from village Auncha, police station Auncha, District Mainpuri, Uttar Pradesh. The 3 statement of the prosecutrix under section 164 CrPC was recorded before learned Metropolitan Magistrate. The medical examination of the prosecutrix was got done. Thereafter, the accused was challaned as referred before. CHARGES AND PLEA OF THE ACCUSED After hearing the prosecution and the accused the prima facie case against the accused for the offences under sections 363 and 376 IPC was found so the charges were framed against the accused accordingly to which the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case the prosecution has examined 12 witnesses in all. PW1 is the prosecutrix and has stated, in brief, is that on 1/5/2006 the accused enticed her and took her at Ghaziabad at the residence of his sister. They remained present there for two days. The accused committed rape on her person against her wishes. Thereafter the accused took her to various other places including Agra after coming to know that police was behind him. Thereafter on one day the police apprehended the accused along with her and brought them to Delhi. She 4 was got medically examined and her statement under section 164 CrPC was got recorded. PW2 is Shri Avtar Singh Chawla the father of the prosecutrix and has stated, in brief, that he came to know about the friendship of his daughter/prosecutrix with the accused prior to 1/5/2006. In the crossexamination the witness stated that from the school where her daughter used to go for the music, he came to know that his daughter was having some friendship with the accused. On that he suspected him to have kidnapped his daughter. He also stated that matter was reported to the police regarding missing of prosecutrix at about 6 p.m. on 1/5/2006 which is proved by him as Ex PW2/A. He also stated that he took the address of the accused from the school. PW3 Shri M. S. Ahluwalia, the office superintendent of Guru Har Kishan Public School, New Delhi who has stated that on 27/7/2006 in his presence the birth certificate of the prosecutrix was handed over by the principal to the investigating officer which was seized by him vide memo Ex PW3/A. The certificate issued by the principal is Ex PW3/B and the photocopy of the application and photocopy of birth certificate are Ex PW3/P1 and P2. PW4 is Head Constable Hira Lal who has proved the copy of the DD No. 20A as Ex PW4/A. The said witness has proved the copy of the FIR as Ex PW4/B. PW5 Constable Rameshwar Dayal 5 has accompanied the investigating officer during investigation, and has proved the seizure of the mobile phone make Nokia having Sim No. 9719931661 which was seized by the investigating officer vide memo Ex PW5/A from one Rajesh Mishra. He along with Sub Inspector Subhash went to village AkbarPur Distt Mainpuri (UP) where Avdesh Kumar met him. On inquiry he disclosed that he did not know anything about his brother Ajay kumar. Thereafter, they went to Mainpuri where one Shyam Singh met them. He told to the investigating officer that he had purchased one Sim no. 9719931661 on the basis of his identify proof and was handed over to Rajesh Mishra of his village. PW5 Constable Rameshwar Dayal stated that they went to Firozabad and went to Harijan Basti where prosecutrix was recovered from the possession of accused. The recovery memo is Ex PW5/B. The personal search of the accused was conducted vide memo Ex PW5/C and the mobile phone of Anil Shukla was seized vide memo Ex PW5/D. PW6 is Constable Rajender Singh stated that he was with the investigating officer on 1/5/2006 statement of complainant were recorded and investigating officer prepared rukka which was handed over to him for registration of FIR, so he went to the police station and after registration of the FIR he reached back the spot and handed over the copy of FIR to the investigating officer. 6 PW7 Constable Mahesh Kumar has stated that he went to the house of accused where the elder brother of the accused met them. On inquiry brother of accused told them, he did not know anything about accused. PW8 is the lady Assistant SubInspector Alka Sharma who has also joined with the investigating officer, PW5 and PW7 and has corroborated their statements. She has also stated that she took the prosecutrix to Lady Harding Medical College for her medical examination. After medical examination, the doctor handed over to her five sealed pulandas and one sample seal which she handed over to the investigating officer and was seized by the investigating officer vide memo Ex PW8/A. PW9 is doctor Sarita Narang and has proved the MLC of the prosecutrix as Ex PW9/A. PW 10 Ms Ravinder Bedi, the learned Metropolitan Magistrate, Patiala House Courts, New Delhi has proved the statement of the prosecutrix recorded by her under section 164 CrPC as Ex PW 10/B on the application of the investigating officer Ex PW 10/A. She has also proved the certificate given by her as Ex PW 10/C. PW 11 subinspector Subhash is the investigating officer of this case. He has proved the various steps taken by him during investigation of the case. He has corrborated the statement of PW5, PW7 and PW8. Regarding recovery of mobile phone, recovery 7 of the prosecutrix, arrest of the accused and taking his personal search etc. He has proved his endorsement Ex PW 11/A on the statement of PW1 Shri Avtar Singh.He has proved that he received three sealed pulandas after medical examination of the accused from the doctor and seized them vide memo Ex PW 11/B. He also stated that the case property was sent to FSL and the report of FSL is ExPX. He also stated that he seized the photocopy of birth certificate Ex PW 11/C and collected the original birth certificate from the office of Sub Registrar Birth and Deaths which is Ex PW 11/P1. PW 12 is Shri Bhupender Kumar, Sub Registrar concerned and had brought the original birth record maintained in the office and has proved the photocopy of the same as Ex PW 12/A. He has also stated that birth certificate Ex PW 11/P1 was issued from his office. PLEA AND DEFENCE OF THE ACCUSED In the statement under section 313 CrPC the accused has admitted that the prosecutrix used to learn music and he used to sing duet with the prosecutrix and friendship developed between them. He denied that he enticed the prosecutrix and took her to Ghaziabad at the residence of his sister and remained there for two days and committed rape on a person, against her wishes. He stated that the prosecutrix has enticed him with the help of her friend namely Simran and the friend of the prosecutrix 8 Simran used to suggest the prosecutrix way to develop friendship with him. He has also submitted that he had gone along with the prosecutrix but he never committed rape with the prosecutrix. He also stated that he and the prosecutrix got married in temple of Shiv at Firozabad, besides that at the the instance of the prosecutrix an agreement was also prepared which was duly notarised before Notary Public on 24/5/2006 at Mainpuri. As such wherever they lived together they lived as husband and wife with the consent of the prosecutrix and there was no pressure from the side of the accused to the prosecutrix to stay with him. He has stated that because the witnesses have enmity with him as he got married with the prosecutrix against their wishes so they wanted to see him behind the bar and have deposed against him. He has also stated that the prosecutrix had earlier on 1/5/2006 also gone along with him but he has not been cooperating with her for the same. But when she started to pressurize him and threatening him about the dire consequences he had to follow her instructions. The accused did not produce any witness in his defence and the plea taken in his statement under section 313 CrPC.
ARGUMENTS The learned Additional Public Prosecutor for the State has argued that the prosecution has been able to 9 prove its case against the accused beyond reasonable doubt. The prosecutrix has supported the prosecution case and has alleged that the accused committed rape on her. The accused has also admitted in his statement under section 313 CrPC that he went with the prosecutrix. It is argued that the the plea of marriage is not tenable as the prosecutrix has not attained majority and was a minor. The medical evidence shows that the accused was capable of performing sex. Therefore, the prosecution has proved its case against the accused and he is liable to be convicted The argument of learned counsel for the accused are that the prosecutrix in the crossexamination has admitted her signature on the marriage agreement Mark X. In her statement under section 164 CrPC the prosecutrix has supported the accused. The landlord from the place where the prosecutrix was recovered along with the accused has stated in statement under section 161 CrPC that they were living as husband and wife. But landlord was not examined by the prosecution The argument is that when the prosecutrix and accused have married each other there is no question of committing rape by accused upon the prosecutrix. It is argued that Exception to section 375 IPC exonerates the accused, the husband of the prosecutrix of the charge of rape as the sexual intercourse between husband and wife above 15 years of age is no offence. 10 FINDINGS I have heard the learned Additional Public Prosecutor for the State and learned counsel for the accused and have gone through the record of the case and relevant provisions of law and carefully.
In this case it is not disputed that the prosecutrix and the accused had gone together from Delhi to Ghaziabad and other places and were having friendship. They used to learn music from the same music school and used to sing duet songs together. The crossexamination of the prosecutrix, PW1 and her father Avtar Singh PW2 indicates that the accused and the prosecutrix had gone together on 1/5/2006. The accused in the statement under section 313 CrPC has admitted this fact but has taken the defence plea that the prosecutrix insisted and he accompanied her and they got married in Shiv temple in Firozabad and executed an agreement of marriage Mark X and lived together as husband and wife. The two questions arise. One, what was the age of the prosecutrix as on the date of alleged kidnapping and rape. Two, whether the accused had married the prosecutrix and is entitled to benefit of Exception to section 375 which defines rape.
As regards the age of the prosecutrix normally, the age recorded in the school certificate is considered to be the correct determination of age provided the parents 11 furnish the correct age of the ward at the time of admission and it is authenticated. However, the date of birth recorded in the school certificate can be believed by the unimpeachable evidence of prosecution witnesses and contemporaneous documents like Date of Birth register of Greater Bombay Municipal Corporation and the register of the Nursing Home where the prosecutrix was born and proved by the doctor.(See Vishnu v. State of Maharashtra 2006 Cr LJ 303 (SC)) The birth certificate, on the point of age, is a conclusive piece of evidence. (See Jarnail Singh v State of Rajasthan 1972 Cr LJ 824, 1972 Raj LW 18; Manna & anor v State of Rajasthan 2001 Cr LJ 3498 (Raj); Mohandas Suryavanshi v State of Madhya Pradesh 1999 Cr LJ 3451 (MP); Rafik Khan Asgarkhan Pathan v. State of Gujarat 2005 Cr LJ 1284 (Guj) (DB)) In the ascertainment of age, the entry in the kotwari book, which is genuine, can be considered a strong piece of evidence. (See Krishna Kumar v State of Madhya Pradesh 1962 Jab LJ 825, (1963) 1 Cr LJ 686) It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence.(See State of Chhattisgarh v. Lekhram 2006 Cr LJ 2139 (MP)).The admission form on the basis of which school certificate was prepared is primary evidence when the primary evidence 12 has not been produced in the Court. The school certificate, which is prepared on the basis of some other document, has no evidentiary value in the eye of law and thus, the prosecution cannot take any advantage of this document which is inadmissible in evidence. There is nothing on record so as to indicate that the primary evidence was lost and if that be the position, secondary evidence is not permissible. (See Jeev Rakhan v. State of MP 2004 Cr LJ 2359 (MP)) The birth registration certificate issued by the Municipal Corporation is the primary evidence where an employee of the Municipal Corporation deposes that concerned birth entry has been made on the basis of information received by the Corporation from the concerned hospital, it means that it is a basic information which has been received by Corporation through proper channel and, therefore, it cannot be said to be an insufficient proof to prove the age of the victim. When a child is admitted in a school, parents of the child usually submit a Form on the basis of cogent evidence on record which will be either the certificate from the hospital where the child is born or the birth registration certificate. When the original evidence which has been produced by the official of the Corporation and proved by him, is there on record, there is no reason to discard the said evidence. But as per the settled principles 13 of law, the certificate issued by the doctor conducting the ossification test is not to be treated as scientific proof which can surpass the actual evidence which are on record wherein also, there can be a variation of two years. (Rafik Khan Asgarkhan Pathan v. State of Gujarat 2005 Cr LJ 1284 (Guj) (DB)) In the light of the case law referred referred before I proceed to examine the evidence on record as to the age of the prosecutrix. The prosecution has proved the application form of the prosecutrix for her admission to the school Ex PW3/P1, the photocopy Ex PW3/P2 of the date of birth certificate issued by Sub Registrar, Birth and Death, Municipal Corporation of Delhi, the date of birth certificate issued by principal of the school Ex PW3/B and also the Birth Certificate Ex PW 11/P1 issued by Sub Registrar (Birth and Death), South Zone Green Park, Municipal Corporation of Delhi. In all these certificates proved by the prosecution the date of birth of the prosecutrix is given as 29/1/1992. Therefore, it is proved on record that the date of birth of the prosecutrix the 29/1/1992. As on the date of alleged kidnapping, i.e. 5/1/2006 the prosecutrix was even a bit less than 14 years old. As the prosecution case is that the accused the prosecutrix remained together for about two months and had sexual intercourse/rape during this period. Therefore, assuming the prosecutrix and the 14 accused got married the Exception to section 375 IPC is inapplicable to the present case the prosecutrix being less than 15 years of age as on the date of commission of rape.
Coming to the second question, referred before, there is no evidence led by the accused to show that to substantiate his pleas taken in the statement under section 313 CrPC that he married the prosecutrix in the Shiv temple. A minor girl incapable of giving consent for sexual intercourse within the meaning of Clause. Sixthly of section 375 IPC being below the age of 16 years cannot be said to be capable of giving consent for marriage which automatically leads to consent for sexual intercourse. Both accused and prosecutrix being Hindu are governed by Hindu law. Section 5 (iii) of The Hindu Marriage Act, 1955 specifies that bridegroom should be of the age of 21 years and the bride of the age of 18 years at the time of marriage as one of the conditions to be fulfilled for Hindu marriage. Therefore, the prosecutrix being incapable of giving consent for sexual intercourse or for the marriage, even if, the marriage took place between them it is no marriage in the eyes of law. It seems that in cases where a minor girl gets married with the consent of her parents, only in such cases the accused husband can take shelter of the benefit of the Exception to section 375 IPC. Any other interpretation does not seem to be reasonable or good for the society. An 15 accused kidnapping a minor and raping her can always force her to get married with him and then claim the benefit of the said Exception to section 375 IPC, therefore, in such cases, where a minor girl incapable of giving consent for sexual intercourse or marriage, performs marriage with the major accused without consent of her parents/guardian, the accused is not entitled to claim the benefit of the said Exception of section 375 IPC.
As already stated, in this case since the prosecutrix was below the 15 years of age the question of applicability of the Exception of section 375 IPC, even otherwise, does not arise. Though there is enough indication of her consent in the evidence on the court from the crossexamination of the prosecutrix and her statement under section 164 CrPC recorded by the learned Metropolitan Magistrate but since the prosecutrix as on the date of alleged kidnapping and rape was certainly below 16 years of age and has stated that the accused had sexual intercourse with her and the facts and circumstances the case that the accused and prosecutrix lived together for about two months also indicate that in the ordinary circumstances sexual intercourse may have happened between them. The plea of the accused that he married the prosecutrix and they lived together as husband and wife is unable to rebut the fact that there was sexual intercourse between them during their stay together 16 so the plea of the accused taken under section 313 CrPC is unable to rebut the prosecution case for the offence of kidnapping and rape. The fact that landlord of the house where the prosecutrix and accused were staying as husband and wife was not examined by the prosecution does not materially affect the prosecution case. It is needless to point out that the prosecutrix below the age of 18 years was a minor and even if she has consented to accompany the accused a major aged about 25 years he had kidnapped the prosecutrix from lawful guardianship as defined in section 361 IPC to commit the offence punishable under section 363 IPC.
In view of the the above discussion the prosecution has been able to prove its case against the accused for the charges under sections 363 and 376 IPC beyond reasonable doubt. The accused is convicted under section 363 and section 376 IPC. Let he be hard separately on the question of sentence.
The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open court on 12.5.08 ( S K Sarvaria ) Additional Sessions Judge New Delhi 17 IN THE COURT OF SHRI S. K. SARVARIA ADDITIONAL SESSIONS JUDGE NEW DELHI SC No. 166/06 State Versus Ajay Shukla @ Dinesh @ Rahul son of Shiv Dev Singh R/o Vill. Aunchha PS Anuchha Distt Mainpuri (Uttar Pradesh ).
FIR No. 183/2006 Police Station Tilak Marg Under Section 363/376 IPC Order on Sentence
I have heard the ld Addl PP for the state and ld counsel for the convict on the point of sentence.
The convict was convicted under section 363/376 IPC vide judgment dt 12.5.08. The ld counsel for the convict has argued that the convict is not a previous convict nor any criminal case is pending against him. It is argued that during pendency of this case his brother and father had expired and copies of their death certificates are filed. It is further argued that convict was working in Delhi and he used to send substantial amount of his income to his native village and there is no body except him to look after his old mother living in his village. It is further argued that prosecutruix has 18 supported the convict in statement under sec 164 Cr. P.C. and everything between them was consent affair which is sufficient and adequate reasons for granting lesser than prescribed minimum punishment to the convict. It is also argued that convict and prosecutrix had married with each other and were living as husband and wife when they were caught by the police on the report of the father of the prosecutrix made to the police.
The ld. Addl PP for state has argued that the convict has committed heinous crime for kidnapping a minor girl out of lawful guardianship of her parents and raping minor girl, therefore, deterrent punishment should be awarded to the convict.
The minimum sentence of imprisonment of seven years is prescribed for the offence of rape under section 376(1) IPC besides fine and the maximum sentence prescribed is life imprisonment. However, as per proviso of sub sec 1 of 376 IPC for adequate and special reasons to be mentioned in the judgment, the court can impose the sentence of imprisonment for less than seven years. The prosecutrix being 14 years or a little more as on the date of commission of offence is the main reason for conviction of the convict for the offence under section 376 IPC .
The punishment to be awarded to a convict should 19 be proportionate to the offence with due regard to the manner and circumstances in which the offence was committed. There certainly is a difference between the commission of offence of rape forcibly for lust and the living together by convict and prosecutrix as husband and wife with love for each other in their heart though on account of prosecutirx being minor, the offence of kidnapping and rape were be deemed to be committed by the convict in this case. There is enough indication in the statement under section 164 Cr. P.C. of the prosecutrix and in her cross examination to gather that the prosecutrix and convict who were going to a music school and were learning music developed love for each other and with consent, ran away from Delhi and were living like husband and wife in District Firojabad. The convict was working there and living with prosecutrix. Therefore, though due to minor age of the prosecutrix the offences are committed by the convict but there is no question of deceit, cheating, brutality or applying force upon the prosecutrix by the convict. Had there been a valid marriage between them or even a proper marriage with the proper consent of minor prosecutrix's guardian, the convict under the similar circumstances would have been entitled to the benefit of lessor punishment of imprisonment up to two years or with fine or with both under section 376 (1) IPC, the prosecutrix being above the age of 12 years 20 and less then 15 years of age as on the date of commission of offence. Therefore, I am of the view that keeping in view the above facts and also the facts that brother and father of the convict had expired during the pendency of the trial and he is stated to be sole earning member of his family who is living in his native village, there are adequate and special reasons for awarding less then the prescribed minimum imprisonment of seven years under section 376(1) IPC.
In view of the above, the convict is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/ under section 363 IPC and he is also to pay fine of Rs. 500/ in default of payment of fine to undergo simple imprisonment for one month. He is also sentenced to undergo rigorous imprisonment under section 376 IPC for two years and to pay fine of Rs 500/ in default of payment of fine to undergo simple imprisonment for one month. Both the substantive sentences of imprisonment shall run concurrently. The period of detention already undergone by the convict during the investigation and trial of the case shall be set off against the term of imprisonment imposed against the convict by this order.
The copy of judgment and order on sentence be given to convict free of cost.
The judgment and order on sentence be sent to the server (www.delhidistrictcourts.nic.in). Announced in the open court on 27.5.08 ( S K Sarvaria ) Additional Sessions Judge New Delhi 21 22