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In his cross examination by ld. Defence counsel had deposed when he went to the house of mother of the prosecutrix on 01.05.2009, the mother of the prosecutrix had informed him that the prosecutrix was already with her brother in law Rakesh (Jija). He did not go to the house of Rakesh to inquire from prosecutrix on that day or thereafter. He recorded the statement of prosecutrix on 01.05.2009 in BJRM Hospital, where aforesaid brother in law of the prosecutrix brought her. WCT. Babita was present there. He did not inquire from the occupier of the STD Booth, from where prosecutrix had made call to her Jija Rakesh. He does not know where the said STD Booth is situated, as he did not make any inquiry in this regard. he did not make any inquiry in respect of phone call received by the brother in law (Jija) of the prosecutrix. He denied the suggestion that, no such STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 21 OF 49 phone call was received to the Jija of the prosecutrix nor any such call was made by the prosecutrix from any STD Booth or that prosecutrix was not confined anywhere. He further stated he did not make any inquiry regarding the lady about which the prosecutrix stated in her statement that, she was having an eye upon her at the instance of accused Habib. He does not remember whether he had asked from the said landlady about the lady, which was kept there by accused to keep eye on prosecutrix. He had not asked from the prosecutrix what was the age, height or other details of the said lady as he was not told by the prosecutrix about the same. He did not inquire from the prosecutrix after reading her statement u/s. 164 Cr.P.C. about the lady, which was keeping eye on her. Accused Habib was arrested by ACP Ravinder Grewal in case FIR No.97/09, PS Swaroop Nagar, on 29.04.2009 and at that time he was with him. He did not inquire from the accused either on 29.04.09 or on 30.04.09 about the whereabouts of the prosecutrix. He was aware that on 29.04.09 and 30.04.09 that prosecutrix was kidnapped by accused. He did not inquire about the prosecutrix from the accused, as he was busy in investigation of Case FIR No.97/09. He cannot give any reason, why he did not inquire from the accused on 29.04.2009 or 30.04.2009 about the prosecutrix. He STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 22 OF 49 did not inquire from the prosecutrix, who was confining her on 29.04.2009 or on 30.04.2009. The house in which prosecutrix was confined was having 16 rooms hut type. These all 16 rooms were occupied. All rooms were situated on the ground floor. The landlady was residing in some other house. The latrine and bathroom of all the 16 rooms were common. The house was of 1000 sq. yds. The distance between the room where prosecutrix was confined and latrine and bathroom was about 10­15 steps. For going to the latrine bathroom, one has to pass through the open space in front of the those rooms. The room where the prosecutrix was confined was first room of the house and last room of the house was nearest to the latrine and bathroom. He admitted that, if a person goes for a latrine and bathroom, then he will be visible to occupants of the other rooms. He had asked the occupants of those rooms to know about the facts of this case, but they did not tell anything, even they had refused to told their names by saying that, they are labourer only. He did not give any notice to any such occupants of the rooms that if they will not cooperate to the police, then they are also liable for the punishment. There were some commercial houses near the said house. He did not notice whether there were any other house in which people were residing. Nobody including landlady from the STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 23 OF 49 said house or from the neighbourer has told him that, he has ever heard shouting/cry of prosecutrix during her confinement in the said room. When he went to the said room, where prosecutrix was confined, it was locked. Accused had himself brought the keys from the occupant of the nearby room. He did not interrogate the person from whom accused had brought the key of his room. He also did not inquire from him, who and when had handed over the key of his room. He further deposed that the articles including clothes of prosecutrix which were recovered from the said room on 04.05.09 were not got identified by him through prosecutrix. The landlady has informed that, one another girl also used to come there in the said room, where prosecutrix was confined and used to reside there. The landlady has informed him that, accused has told her that, the lady which he has brought to reside is his sister. The said girl also told to the landlady that she is the sister of accused and she had come to reside with him as her mother has expired. He had verified the date of birth of prosecutrix D from her school. He did not receive the birth certificate of prosecutrix. He did not make any investigation with regard to the shop from where accused had purchased two glass of cold drinks after consuming the said drinks prosecutrix became unconscious. At the time of kidnapping prosecutrix, she was STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 24 OF 49 residing at her parental house situated at Guru Nanak Nagar, Bhalaswa Dairy.

17. Now in the light of aforesaid judgments I shall examine the testimony of PW1 /D. She had deposed that in the th year 2009, she was studying in class 9 in the Government Girls Senior Secondary School, Adarsh Nagar, and used to come to school from her house at Bhalaswa Dairy. She further deposed that, on 27.12.2008, she was coming from Bhalaswa Dairy to STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 35 OF 49 Adarsh Nagar market for the purpose of shopping and accused Habib met her and stopped his vehicle in front of her and he stated that R her friend and one boy namely Lal were sitting in the said vehicle and they want to took with her. She sit in the said vehicle but could not see anyone and tried to come out of the vehicle, but accused caught hold her hand and said, he wanted to talk about R and Lal and started plying the vehicle. She asked why he has started his vehicle. He replied that, let's go somewhere to take some eatables and drink and have talk there. After some distance, accused Habib stopped the vehicle and brought some cold drink and became unconscious. Thereafter she became unconscious and when she retained her consciousness, she found herself in a room and the door of the room was bolted from outside. In the night accused Habib came to the room and woke up her and she asked him why he has brought her there. He replied that she should take food and which were brought by him, but she had not taken food, thereafter, accused Habib started beating her and also started misbehaving with her. Thereafter accused Habib tried to do wrong act with her and when she resisted, then accused started beating her and told her to allow accused whatever accused wanted to do and he cannot leave the said room and then accused removed her cloths STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 36 OF 49 and had physical relationship with her against her wish ans without her consent. In the next morning accused left the room and left one lady in the house to keep eye on her, if she used to go toilet the said lady accompany to her during night time. She was confined in the said room for about four months and during that time, accused raped her several times. She further deposed that one day accused brought R in her room, R was her friend and she was in school uniform. She asked R, as to why she had come and she told her that, she has come to see her. She asked R to take her away but she replied that, she cannot do so, then she asked to inform her family members but she refused to so the same. Thereafter, R left the room. She further stated that one day accused Habib brought Lal to the said room and said Lal saw her but he did not speak to her nor she did speak to Lal and Lal left the said room. Lal and R were aware that, she had been confined in the said room by accused Habib. After some days accused brought R again to the said room and on that occasion, R remained with her in the said room for about 13 days and on th the 13 day, she left the room with accused Habib. She further stated that she had asked accused Habib and R to take her also but they refused to do so and on the subsequent day, she had got an opportunity to escape from the said room STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 37 OF 49 and she ran away from the said room and reached at STD booth from where she had made a telephonic call to her brother in law (Jija) Rakesh and her brother in law came with another person and took her to her house. Her mother and younger Jija also came there. She remained in the house for two days and thereafter, she was taken to PS­Swaroop Nagar by her jija and other family members and there IO had prepared the recovery memo Ex.PW1/A and thereafter he taken her to BJRM Hospital where she was medically examined. She was taken to the court where ld. MM had recorded her statement Ex.PW1/B. Police had shown her the car in which accused had taken her and which she had correctly identified and same is seized vide seizure memo Ex.PW1/C. In her cross examination, she had stated that, in her statement recorded by the ld. MM, she had stated that accused Habib was brother of R in relation and accused Habib, R and Lal have conspired in taking her away. She admitted that Habib used to drop her school on some occasion, but she denied the suggestion that due to said reason she had developed friendship with accused Habib. She admitted the suggestion that her mother used to object on her dropping at school by accused. She admitted the suggestion that she wrote diary Ex.PW1/D1 to STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 38 OF 49 Ex.PW1/D3 and said diary written in her handwriting, she voluntarily stated that most of the diary got written from her forcefully. She was also shown photograph Ex.PW1/D4 and on seeing the said photograph she had stated that she admitted that in the said photograph other person is accused Habib beside her but she stated that said snap got forcibly snapped. She also stated that, photograph/drawing/picture in the file Ex.PW1/D5 were got prepared from her forcefully. She further stated that she does not know the location of STD Booth. She denied the suggestion that she did not go to the STD booth to make any call and that is why she could not tell about the STD booth.

30. However, in view of aforesaid discussion prosecution has failed to proved that accused kidnapped the prosecutrix to compel her for marriage, or forced her to have illicit intercourse or seduce her to do illicit intercourse as prosecutrix 'D' being above 16 years of age was capable to give consent for sex. Therefore, in my view prosecution failed to prove offence u/s. 366 IPC.

31. Accused has also been charge for offence punishable under Section 376 IPC, but as discussed above, in my view, the prosecutrix D had gone with the accused voluntarily and resided at the house at village Rajokari for almost four months and had committed sex with the accused with her own consent STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 48 OF 49 and since she was above age of 16 years, therefore, she was capable to give the consent for sex. Therefore, I also acquit accused from charge of rape punishable u/s. 376 IPC.

32. As far as other offence i.e. 328 IPC is concerned in view of aforesaid discussion the testimony of the prosecutrix 'D' to the extent that she was given intoxicating substance in the cold drink by the accused due to which she become unconscious, I do not find same reliable acquit him for offence u/s. 328 IPC.

33. In view of the aforesaid facts and circumstances, Accused stands convicted for offence punishable u/s. 363 IPC. However, accused stands acquitted for offence punishable u/s. 366/376/328 IPC. Now to come up for order on sentence.