Delhi District Court
Ld. Counsel Has Relied Upon Judgments ... vs . State, 1999 (4) on 8 October, 2007
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IN THE COURT OF PRAVEEN KUMAR, ADDITIONAL
SESSIONS JUDGE: KARKARDOOMA COURTS:DELHI.
Case ID Number 02402R0022122005
SC No. 4/2007
FIR NO. 319/04
POLICE STATION Mandawali
Under Sections 363/366/376 IPC
File received on transfer 03/01/07
Date on which reserved for 29.9.07
judgment
Date of decision 08/10/07
State
Vs
Mohammad Farukh
s/o Mohd. Mazeed
r/o Moolchand Basti,
Rajghat, New Delhi. .......Accused
JUDGMENT
1. Accused Farukh was arrested by the police of P.S. Mandawali and was challaned to the court for trial for the commission of the offences punishable u/s 363/366/376 IPC. In nutshell, case of the 2 prosecution is as under :
2. On 11.6.04 SI Manvinder Singh received DD No.21A whereupon he along with Constable Pawan reached Nehru Camp, Mandawali. Complainant Ajmati met him and she lodged the complaint regarding missing of her daughter Ishrat. On the complaint of Ajmati, FIR was registered and the matter was investigated. On the intervening night of 28/29 June 2004 on receiving secret information, prosecutrix Ishrat was recovered from the Jhuggi at Yamuna Pushta. She was interrogated and was taken to LBS Hospital for her medical examination. However, prosecutrix refused to undergo medical examination. On next day she was produced before Ld. M.M. and her statement u/s 164 Cr.P.C. was recorded. As accused could not be traced, he was declared P.O. and challan was filed in the court. On 1.9.05 accused was arrested and was got medically examined in the hospital. Thereafter, supplementary challan was filed against the accused in the court. 3
3. Statement of accused was recorded u/s 313 Cr.P.C. when a chance was given to him to explain the incriminating evidence against him. Accused pleaded that he was apprehended from his house and has been falsely implicated in the present case. He did not examine any witness in his defence.
4. Prosecution in support of its case has examined ASI Shiv Pal Singh as PW1, Ishrat as PW2, Gopal Sharma as PW3, Dr. Shahabuddin, Ld. M.M. as PW4, Dr. Renu Awana as PW5, Lady Ct. Bimla as PW6, Ct. Pawan as PW7, Ajmati as PW8, Constable Subash as PW9, SI Manvinder Singh as PW10.
5. I have heard Ld. APP for the State and Sh. Bakshish Singh, Advocate, counsel for the accused. I have carefully gone through the case file. Ld. Counsel has argued that accused has been falsely implicated in this case as prosecutrix in her statement u/s 161 Cr.PC as well as u/s 164 Cr.PC did not support the prosecution case and 4 her testimony in the court implicating the accused in the present case is of no value. He has further argued that recovery of the prosecutrix is doubtful as she was not recovered from the custody of the accused. Prosecutrix refused to undergo medical examination and her ossification test was also not conducted. Except the school leaving certificate, there is no evidence to prove that prosecutrix was minor on the day of alleged incident. In support of his contentions Ld. Counsel has relied upon judgments Satbeer Vs. State, 1999 (4) RCC 164. On the other hand, Ld. APP for the State has argued that prosecution has proved its case against the accused beyond reasonable doubt.
6. In her statement u/s 161 Cr.PC which was recorded by the I.O. on 28/29 June 2004 prosecutrix stated her age to be 19 years and disclosed that as she was in love with the accused Farukh, she on her own accompanied him on 10.6.04. She further disclosed that she had married accused Farukh and, thereafter, they remained as husband and wife. In her statement u/s 164 Cr.PC which was 5 recorded by the Ld. M.M. on 29.6.04, she claimed herself to be major stating her age as 19 years. She did not support the prosecution at that time and had reiterated her statement u/s 161 Cr.PC before the Ld. MM. Thus, the statement of the prosecutrix in the court does not inspire confidence wherein she has claimed herself to be minor and has deposed against the accused implicating him in committing rape upon her.
7. In her examination in chief she (PW2) deposed that police came to the house of mother of accused at Rajghat along with one Phool Mohammad. This fact is contrary to the statement of I.O. PW10 SI Maninder Singh as well as the recovery memo Ex.PW2/A. Recovery Memo Ex.PW2/A does not bear the signatures of Phool Mohammad. Further, Phool Mohammad has not been made a witness to this case.
8. PW2 in her cross-examination deposed that she had told her age as 18 years to the police on the day when she was recovered and in the 6 court at the time of recording of her statement u/s 164 Cr.PC she had told her age as 15 years to the concerned Magistrate. However, as per record she stated before the police as well as before the Magistrate her age as 19 years. She admitted the fact that she had told the police in her statement that she was in love with the accused Farukh who was her neighbour and had accompanied him of her own sweet will on 10.6.04. However, she denied that she had married the accused on her own free will or had sex with him. She was confronted with her statement Ex.PW2/A where it is not so recorded.
9. From the evidence on record, it is crystal clear that prosecutrix was a consenting party because she did not implicate the accused in her statement u/s 161 Cr.PC as well as u/s 164 Cr.PC and she also refused to undergo medical examination when she was produced in the LBS Hospital on 29.6.04.
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10.The next question that arises is as to what was the age of the prosecutrix at the time of incident. If the prosecutrix was not more than 18 years of age when the incident took place, in that eventuality the consent of the prosecutrix would be of no importance.
11.As per school record, the date of birth of the prosecutrix is 12.9.92. If this is the true date of birth, she was about 12 years of age at the time of the commission of the offence. The prosecution has based its case on the evidence of the School Leaving Certificate of the prosecutrix. The said certificate is Ex.PW3/D in which the date of birth of prosecutrix has been mentioned as 12.9.92. PW2 in her cross-examination deposed that she studied in a government school in Pandav Nagar and, thereafter, took admission in some other government school in 5th standard though she did not attend the classes.
12.PW 3 is the teacher of the MCD Primary School, Samaspur Jagir, 8 Pandav Nagar. She has stated that she has seen the age certificate in respect of the prosecutrix and the said certificate Ex.PW3/A was issued by her on the basis of the record. She had brought the admission register and according to the entry No.677, the prosecutrix was admitted in the school on 16.8.03. In her cross- examination she admitted that no verification was done with regard to the date of birth mentioned in the School Leaving Certificate Ex.PW3/D.
13.Father of the prosecutrix was not made a witness in this case. The mother of the prosecutrix was examined as a witness (PW8) in this case. She is stated to be aged 30/32 years and was married about 17/18 years ago. In her cross-examination she deposed that her first child was born after 2 years of marriage and, thereafter, there is a gap of 1½ / 2 years between each of the child. She is having six children and her youngest son is stated to be six years. She further deposed that she was 17 years of age when her first child was born. 9 The testimony of PW8 in this regard does not inspire confidence because if her testimony is taken to be true, it is not possible that she would have given birth to her first child at the age of 12 years. Thus, I am of the opinion that PW8 is not telling the true age of her daughter in the court.
14.In the circumstances as PW2 stated herself to be major at the first instance when she was recovered by the police, the testimony of PW8 regarding the age of the prosecutrix does not inspire confidence. Mere school record will not be of much importance in determining the age of the prosecutrix. It is not shown as to on what information the age of the prosecutrix is recorded in the school. In this case, there is no ossification test carried by the prosecution. No explanation is given as to why it was not carried out. Prosecutrix refused to get herself medically examined after she was recovered by the police. I.O. in his cross-examination admitted that the doctor before whom the prosecutrix was produced had recommended 10 ossification test of prosecutrix for ascertaining her age but he did not get ossification test of the prosecutrix conducted. Thus, in this case except for the school leaving certificate, there is no evidence coming forth to show that prosecutrix was minor at the time of the incident. No evidence has been shown to the court to presume that birth of the prosecutrix was not registered in the government or the record of the local body. From all these circumstances, it will be hazardous to presume that prosecution has established its case beyond reasonable doubt that the prosecutrix was minor at the time of alleged incident. Had there been some reliable evidence to support the age as mentioned in the school leaving certificate, the case could have been different.
15.PW8 has deposed that she went to the Police Station and lodged the report Ex.PW8/A. However PW 10 has deposed that on receiving DD No.21A he went to Nehru Camp Mandawali and met PW8 who lodged the complaint regarding missing of her daughter. The 11 testimony of PW8 and PW10 in this regard is contrary to each other. Prosecutrix was not recovered from the custody of the accused. There is nothing on record to prove that the jhuggi from where the prosecutrix was recovered, belonged to the accused. No public person was made a witness at the time of recovery of the prosecutrix. PW2 has deposed that one Phool Mohammad was with the police at the time when she was recovered by the police. However, Phool Mohammad was not made a witness and he is also not a witness to the recovery memo Ex.PW2/9.
16.In these circumstances and for the above said reasons, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, accused is acquitted. He be released from jail, if not required in any other case. File be consigned to Record Room.
Dictated & announced today in (PRAVEEN KUMAR) open court on 8.10.07. ADDL.SESSIONS JUDGE:KKD:DELHI 12 13