Delhi High Court
Jamal Ahmed vs The State on 8 December, 2009
Author: V. K. Jain
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.Nos. 311/1999 and 312/1999
Reserved on : 16th November, 2009
% Date of Decision: 8th December, 2009
Crl. Appeal No. 311/1999
# Mohd. Imran Khan ..... Appellant
! Through: Mr. Sudhir Nandrajog, Sr.
Advocate with Ms. Saahila Lamba,
Advocate
Versus
THE STATE ..... Respondent
Through: Mr. Amit Sharma, APP for
the State.
AND
Crl. Appeal No. 312/1999
# Jamal Ahmed ..... Appellant
! Through: Mr. Sudhir Nandrajog, Sr.
Advocate with Ms. Saahila Lamba,
Advocate
Versus
THE STATE ..... Respondent
Through: Mr. Amit Sharma, APP for
the State.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be
reported in the Digest? YES
Crl.Appeals 311-312/1999 Page 1 of 33
: V.K. JAIN, J.
1. These are two criminal appeals arising out of the judgment
dated 29th May, 1999 and the Order on Sentence dated 31 st May,
1999 whereby both the appellants were convicted under section
366 of IPC read with section 34 thereof and under section 376 of
IPC. Both the appellants were sentenced to undergo RI for 4
years and to pay fine of Rs.2000/- each or to undergo SI for 2
months each in default under section 366 of IPC read with
section 34 thereof. They were further sentenced to undergo RI
for 7 years each and to pay fine of Rs.3000/- each or to undergo
SI for 3 months each in default under section 376 of IPC. The
sentences were directed to run concurrently.
2. The FIR in this case was lodged by deceased Prabhu Dayal,
father of the prosecutrix. He alleged that he had two children
one son and one daughter, the son being elder. He further
stated that his daughter, who had gone to house of her friend in
Noida on 24th November, 1989, informed her cousin Satish
Anand on 25th November, 1989 that she would be going to
Pragati Maidan to visit the exhibition being held there and that
he should come there to pick her up from Ahmad Food Stall,
where Mohd. Imran Khan and Jamal Ahmed were working. He
further alleged that when Satish Anand went to Ahmad Food
Stall in Pragati Maidan, neither the prosecutrix nor the appellant
Mohd. Imran Khan and Jamal Ahmed met him. He further
alleged that he was informed that the prosecutrix was seen in
the exhibition ground along with the appellants and was to come
back home in evening. When she did not come back till evening
he went to Pragati Maidan on 26th November, 1989 and came to
know that his daughter was seen with the appellants. He also
informed that in the year 1988 he had put up a stall in Pragati
Maidan, in front of a shop in which the appellants were working
and that his wife Devki and his daughter also used to visit the
stall for helping him. He further informed that a missing report
was lodged by him at PS Vinay Nagar on 27th November, 1989.
3. The prosecutrix came in the witness box as PW 3 and
stated that on 25.11.1989 she had gone to Pragati Maidan as her
cousin Satish Anand had to pick her up from there. On reaching
Pragati Maidan at about 1.30 P.M. she did not find her cousin at
gate No.1 where he was supposed to meet her. She kept looking
for him for about 2-3 hours, but did not find him. She further
stated that she had told her brother to meet her at Ahmad Food
Stall and since she did not find him at gate No.1, she went to
Ahmad Food Stall, where both the appellants met her. They
were already known to her as her father had put up a stall in
Pragati Maidan in the year 1988, opposite the stall of the
appellant. She further stated that the appellants told her that
her brother was waiting for her at the gate and took her to gate
No.3. The moment they came out they whipped out a knife and
told her that in case she tried to run away and raised alarm, they
would kill her. She was forcibly taken by them to ISBT, in a
three wheeler scooter, and from there she was taken to Merrut
by a bus. In Merrut she was taken to hotel Ajanta and both the
accused raped her in room No.101 of the hotel. In the morning
she was taken to the house of their sister and from there she
was brought back to Delhi to the house of elder brother of
appellant Jamal. There also she was raped by both the
appellants in the night. On 27th November, 1989 they locked her
inside the house and went away. They returned in the evening
and again committed rape on her. In the evening of 28th
November, 1989 the appellant Jamal Ahmed came along with
elder brother and brother in law of Mohd. Imran Khan and left
her in their custody. They took her to Pragati Maidan and from
there she was taken to a flat behind G.B. Pant Hospital where
both the appellants were present. After some time the police
arrived there and recovered her. Her underwear P1 was seized
by the police. She was produced before a Magistrate where her
statement Ex.F3/A was recorded.
4. PW 7 Dr. R.K. Sharma, CMO, NDMC has proved the Birth
Certificate Ex.PW7/A prepared by his staff and signed by him at
point A. During cross-examination he admitted that another
Birth Certificate Ex.PW7/DA was also signed by him. PW 9 Vijay
Kumar is the Medical Record Officer of the Safdarjung Hospital
who brought the original birth register dated 2 nd September,
1974 and stated that as per the birth register there was entry
regarding birth of a female child to Devki wife of Prabhu Dayal
on 2nd September, 1974. The copy of the birth entry is
Ex.PW9/A.
5. PW 12 Data Ram is the Reception Officer of Ajanta Hostel,
Delhi Road, Merrut. He has stated that on 25 th November, 1989
one Manoj had come to the hotel along with a girl. He identified
the appellant Jamal Ahmed as the boy referred by him a Manoj
and also produced the entry made in the register regarding stay
of Manoj and a girl Mohini. PW14 Inspector R.K. Gulia has
stated that on 28.11.1989 they conducted a raid at Government
flat No.36/96 in G.B. Pant Hospital. The prosecutrix was found
there along with both the appellants. According to him he was
taken to that house by Mahboob Khan, brother-in-law of the
appellant Mohd. Imran Khan Khan. PW13 constable Samunder
Singh has corroborated the deposition of PW14 regarding the
recovery of the prosecutrix.
6. In his statement under section 313 Cr.PC the appellant
Jamal Ahmed denied having taken the prosecutrix with him and
having raped her. He claimed that he was introduced to the
prosecutrix by Mohd. Imran Khan and she used to treat him as
her brother. The appellant Mohd. Imran Khan also denied
having taken the prosecutrix with him and having raped her. He
has claimed that Jamal Ahmed used to visit his place and had
introduced him to the family of the prosecutrix.
7. Two witnesses have been produced in defence. DW1 M.M.
Alam has stated that in the year 1989 the appellant Jamal Ahmed
had come to him regarding marriage of the appellant Mohd.
Imran Khan with the prosecutrix who told him that she wanted
to marry Mohd. Imran Khan . DW2 Sayeed Akhtar is the
brother-in-law of the appellant Mohd. Imran Khan . He has
stated that on 27th November, 1989 police officials took Mohd.
Imran Khan with them. DW4 Mohd. Shaqir has stated that on
27.11.89 some police officials had taken Mohd. Imran Khan to
police station from U.P. pavilion in Pragati Maidan. The
appellant Mohd. Imran Khan has himself come in the witness
box as DW 5 and has stated that he had become friendly to the
prosecutrix and on 25th November, 1989 she met him at his
residence and told her that her mother had turned her out of the
house. He stated that the prosecutrix and the appellant Jamal
Ahmed went to Merrut to consult Shri Mustaq Alam, Advocate
who was known to Jamal. Jamal Ahmed went to the house of the
advocate along with the prosecutrix and asked him to bring his
brother Zaheer, who was a friend of the advocate. He could not
reach Bahadurgarh and came to home. Thereafter he had no
contact with the prosecutrix or Jamal. On 27 th November, 1989
he was arrested from his restaurant from Pragati Maidan and
was taken to the police station.
8. The first issue which comes up for consideration in this
case is as to what was the age of the prosecutrix on the date she
is alleged to have been kidnapped and the dates she is alleged to
have been raped. When the prosecutrix came in the witness box
on 21st May, 1992, after about 2½ years of the alleged
kidnapping and rape, she stated that she was aged 17 years.
The documents available on the trial court file show that the
complainant Shri Prabhu Dass, father of the prosecutrix, who
was cited as a prosecution witness died, during pendency of the
trial. On the summons issued to Shri Prabhu Dass as a witness
for 7th May, 1996 it was reported that he had died and a copy of
his death certificate was also submitted by his wife Devki to the
police official who went for service of summon upon him. The
death certificate would show that Shri Prabhu Das died on 10th
November, 1995. This factual position was admitted by the
learned counsel for the appellants during arguments. It was for
these reasons that the father of the prosecutrix despite being the
informant could not be produced in the witness box.
9. The mother of the prosecutrix having not been cited as a
witness was not produced in the witness box. Obviously, while
conducting investigation, the Investigating Officer could never
have anticipated that the father of the prosecutrix would die
during pendency of trial and will not be able to come into
witness box. Therefore, it was not necessary for him to cite the
mother of the prosecutrix as a witness, in order to prove her
age. Therefore, no adverse inference can be drawn against the
prosecution on account of non-production of the parents of the
prosecutrix in the witness box to prove her date of birth.
10. As per the Birth Certificate Ex.PW7/A produced by the
prosecution the date of birth of the prosecutrix was 2 nd
September, 2004. The authenticity of this document has been
duly proved by PW 7 Shri R.K. Sharma, CMO, NDMC who has
signed this document at point 'A'. This public document finds
corroboration from the birth register of NDMC which was
brought by PW 9 Shri Vijay Kumar Harnal of Safdarjung Hospital
and a true copy of the relevant entry made in that register is
Ex.PW9/A. The particulars given in Ex.PW 9/A match those
given in the certificate Ex.PW7/A. Therefore, both the documents
are corroborative of each other.
11. The Investigating Officer who came in the witness box as
PW 15, specifically stated that this Birth Certificate was given to
him by the father of the prosecutrix and that he had also
obtained the photocopy of proof of the birth of the prosecutrix
from Safadarjung Hospital, which is Ex. PW15/B. A perusal of
Ex. PW 15/B would show birth of a female child to Smt. Devki in
Safdarjung Hospital on 2nd September, 1974. This is yet another
document which corroborates the authenticity of Ex.PW 7/A and
PW 9/A. The Birth Certificate Ex.PW7/A having been produced
by none other than the father of the prosecutrix and its
authenticity having been duly verified by the Investigating
Officer from the record of the hospital and the document finding
full corroboration from the Birth Register of NDMC, I see
absolutely no reason to doubt its authenticity. As regards the
certificate Ex.PW 7/DA produced by the appellants and shown to
PW 7 during cross-examination, I find that the material available
on record shows that this certificate does not pertain to the birth
of the prosecutrix. Though the name of the father of the child
has been shown as Prabhu Dass the name of her mother has
been shown as Devi Rani in this document. A perusal of the FIR
would show that the name of the mother of the prosecutirx is
'Devki' and not 'Devi Rani'. During the course of the trial , the
process issued by the court to Shri Prabhu Dass, father of the
prosecutrix was received by his wife a number of times. The
summon of Prabhu Das for 8 th November, 1994 received by one
Devki and the report of the process server shows that she was
the wife of Prabu Das. The summon of Prabhu Das for 12
October, 1995 was received by Devki and as per the report of
the process server she was the wife of Prabhu Das. When the
summon of Prabhu Das was issued for 7th May, 1996, it was
Devki who met the process server and informed him that Prabhu
Das had died and she also handed over a copy of the Death
Certificate to the process server. Thus, there can be no doubt
that the name of the mother of the prosecutrix was Devki and
not Devi Rani. Therefore, certificate Ex.PW7/DA cannot be in
respect of the birth of the prosecutrix. A perusal of the FIR
shows that late Shri Prabhu Das, father of the prosecutrix, had
two children including the prosecutrix. The certificate Ex.PW
7/A filed by the prosecution shows that the woman who gave
birth to the child to which the certificate pertains had two living
children on the date of registration of birth. On the other hand,
the certificate Ex.PW7/DA filed by the appellants does not
contain any entry regarding the number of living children. This
is yet another circumstance which shows that the certificate
Ex.PW7/DA does not pertain to the prosecutrix.
12. There is no corroborative evidence which would assure the
court that Ex.PW7/DA pertains to the prosecutrix. On the other
hand, there is ample corroborative documentary evidence in the
form of Ex.PW9/A and PW 15/B which gives complete assurance
to the court that Ex.PW 7/A is the certificate pertaining to the
birth of the prosecutrix. Therefore, no reliance can be placed
upon the Birth Certificate produced by the appellants.
13. It was contended by the learned counsel for the appellants
that in his cross-examination the Investigating Officer stated
that the Birth Certificate produced by the father of the
prosecutrix did not relate to the prosecutrix. In my view the
arguments is based upon a complete misreading of the
deposition of the Investigating Officer. The sentence relied upon
by the learned counsel for the appellants has been picked up by
him out of the context and a careful examination of the entire
statement of the Investigating Officer would show that in his
examination-in-chief he has specifically stated that the
certificate Ex.PW7/A giving the date of birth of the prosecutrix
as 2nd September, 1974 was verified by him from Safdarjung
Hospital vide Ex.PW15/B. His deposition in the cross-
examination to the effect that the Birth Certificate of the
prosecution did not relate to her and that he did not verify about
the Birth Certificate from NDMC, obviously refers to PW7/DA
which the appellants claim to be the Birth Certificate of the
prosecutrix. In his cross-examination the Investigating Officer
also stated that he had submitted before the court, at the time of
hearing of the bail application, that the Birth Certificate was
genuine but did not relate to the prosecutrix. Obviously, he
would not be saying so in respect of the Birth Certificate which
he himself filed with the charge sheet and authenticity of which
he himself had verified from Safdargjung Hospital vide
Ex.PW15/B. It appears that during arguments on the bail
application the appellants relied upon Ex.PW7/DA, and it was in
respect of this document that the Investigating Officer submitted
before the court that though the document was genuine, it did
not relate to the prosecutrix. Hence, I am satisfied that
Ex.PW7/DA does not pertain to the birth of the prosecutrix and
Ex.PW7/A is her genuine Birth Certificate issued by NDMC. As
per the Birth Certificate Ex.PW7/A the prosecutrix was born on
2nd September, 1974. Therefore, on 25th November, 1989, she
was less than 16 years old.
14. As per the report of the CW1 Dr. U.C. Garg Ex.CW1/A, the
age of the prosecutrix was between 16-17 years. Relying upon
his opinion it was contended by the learned counsel for the
appellants that the prosecutrix was more than 16 years of age on
the date she is alleged to have been kidnapped and that since
there could be variation of up to 2 years in the age determined
by Ossification Test, she could be more than 18 years old on the
relevant date.
15. In my view it is not appropriate for the court to give
preference to the medical opinion in the form of Ossification
Test over unimpeachable and authentic documents are available
in the form of Birth Certificate of the NDMC produced by the
prosecution which also finds corroboration from the record of
the hospital Ex.PW15/B and Birth Register of NDMC Ex.PW9/A.
In the case of Madan Gopal Kakkad vs. Naval Dubey & Anr.
(1992) 3 SCC 204 the Hon'ble Supreme Court, inter alia,
observed as under:
"34. A medical witness called in as an expert
to assist the Court is not a witness of fact and
the evidence given by the medical officer is
really of an advisory character given on the
basis of symptoms found on examination. The
expert witness is expected to put before the
Court all materials inclusive of the data which
induced him to come to the conclusion and
enlighten the Court on the technical aspect of
the case by explaining the terms of science so
that the Court although, not an expert may
form its own judgment on those materials after
giving due regard to the expert's opinion
because once the expert's opinion is accepted,
it is not the opinion of the medical officer but
of the Court."
16. In Vishnu vs. State of Maharashtra AIR 2006 SC 508, the
Birth Certificate of Municipal Corporation and register of the
hospital where the prosecutrix was born showed that she was
less than 16 years of age. On the other hand as per the
Ossification Test her age was 18-19 years with error of margin of
six months on either side. It was contended before the Hon'ble
Supreme Court that determination of the age of the prosecutrix
having been scientifically proved by conducting Ossification
Test, should be accepted. Rejecting the contention, the Hon'ble
Supreme Court, inter alia, held as under:-
24. In the case of determination of date of
birth of the child, the best evidence is of the
father and the mother. In the present case, the
father and the mother - PW-1 and PW-13
categorically stated that PW-4 the prosecutrix
was born on 29.11.64, which is supported by
the unimpeachable documents, as referred to
above in all material particulars. These are the
statements of facts. If the statements of facts
are pitted against the so called expert opinion
of the doctor with regard to the determination
of age based on ossification test scientifically
conducted, the evidence of facts of the former
will prevail over the expert opinion based on
the basis of ossification test. Even as per the
doctor's opinion in the ossification test for
determination of age, the age varies. In the
present case, therefore, the ossification test
cannot form the basis for determination of the
age of the prosecutrix on the face of witness
effects tendered by PW-1 and PW-13,
supported by unimpeachable documents.
17. The judgment in the case of Vishnu (supra) was followed by
the Hon'ble Supreme Court in Arjun Singh vs. State of H.P. AIR
2009 SC 1568. In view of the above referred authoritative
pronouncements of the Hon'ble Supreme Court, no reliance can
be placed upon the report of Ossification Test in the face of the
unimpeachable documentary evidence produced by the
prosecution.
18. I am, however, in full agreement with the learned counsel
for the appellant that the facts and circumstances of the case
rule out any reasonable possibility of the prosecutrix having
been forcibly kidnapped or raped against her consent as claimed
by her. According to the prosecutrix after reaching Pragati
Maidan on 25.11.1989 she looked for her cousin at gate No.1 as
he had asked her to meet him there. On the other hand, the
father of the prosecutrix alleged in the FIR that the prosecutrix
had asked her cousin to meet him at Ahmed Food Stall. If the
prosecutrix was to meet with her cousin at Ahmed Food Stall,
there was no occasion to her to go first to gate No.1 of Pragati
Maidan. According to the prosecutrix, she was brought by the
appellant to gate No.3 of the Pragati Maidan and was forced to
board a Three Wheeler Scooter, with two knives having been
kept on her person by the appellants. She has further stated that
the direction of the auto rikshaw was towards ITO and not
towards Zoo. If that be so, the prosecutrix must have crossed
Mathura Road in order to reach the side where the auto rikshaw
was parked because Pragati Maidan is on that side of the
Mathura Road which goes towards Zoo whereas the auto
rikshaw was parked on that side of the Mathura Road which
goes towards ITO. The Prosecutrix has admitted that there were
lot of people in Pragati Maidan as Trade Fair was going on at
that time. As a matter of fact, Pragati Maidan and its
surrounding areas are extremely overcrowded during trade fair
which is held every year between 14 th November to 27th
November. It is not possible to accept that no one noticed the
prosecutrix going all the way from gate no. 3 of Pragati Maidan
up to other side of the Mathura Road with two knives having
been put on her side. Had that been the case a number of
persons would have noticed it and would have immediately
called the police.
19. Had the appellants put knives on the person of the
prosecutrix at a crowded place like Pragati Maidan in day time,
she would definitely have raised alarm because on account of
presence of a large number of persons, she would not be
intimidated even if knives are put on her person, confident as
she would be that on alarm being raised by her the appellants
would be caught by the persons who are present there and
would be handed over to the police. This is more so when the
appellants were not stranger to her, they being previously
known to her.
20. According to the prosecutrix she travelled in an auto
rikshaw from Pragati Maidan to ISBT and both the appellants
were sitting on her side with knives on her person during the
course of the journey. Had that been the case, it could not have
escaped the attention of the auto rikshaw driver and he would
have caught the appellants and handed over them to the police
instead of taking the prosecutrix and the appellants to the ISBT.
21. According to the prosecutrix they boarded a bus for Merrut
from ISBT. A large number of persons including the police
officers always remain present at ISBT. It is difficult to accept
that knives had been put on the person of the prosecutrix when
she remained at ISBT and boarded the bus from there but that
was not noticed by any person present at the Bus Terminus. If a
young girl is being escorted by two boys who have kept one knife
each on both her sides, that would immediately draw the
attention of some or the other person present at a busy place
like a Bus Terminus and the persons wilding knives would
immediately be caught and handed over to the police. According
to the prosecutrix she travelled in a bus from Delhi to Merrut
and other passengers were also present in the bus. She has
stated that knives were kept on her person even during the bus
journey. Had that been the case, the prosecutrix would
definitely have raised alarm because she knew that on account
of presence of a large number of passengers in the bus, it would
not be possible for the appellants to harm her and since the bus
was moving they also will not be able to escape. In any case,
had the appellants kept knives on the person of the prosecutrix
during bus journey they could not have escaped the attention of
their fellow passengers.
22. The prosecutrix has stated that in Merrut she was brought
to hotel. She must have got down at a Bus Terminus at Merrut
and must have taken some means of transport for going from
Bus Terminus to the hotel. No alarm was raised by the
prosecutrix either at Bus Terminus in Merrut or during journey
from Bus Terminus to the hotel. Had she been under threat,
should would definitely have raised alarm and the appellants
would have been caught by the persons present at the Bus
Terminus or the persons present on the road while they were
travelling from Bus Terminus to the hotel.
23. In the hotel also the prosecutrix did not raise any alarm.
She did not complain either to the receptionist or any waiter.
Had she not been a consenting party she would have never have
gone towards the room and would have told the receptionist that
she was being coerced to go into the room.
24. The prosecutrix has stated that from hotel she was taken to
the house of the sister of the appellants. Again she did not raise
any alarm when she came down from the room or when she was
being taken to the house of the sister of the appellants. She did
not make any complaint to the family of the sister of the
appellants that she had been subjected to rape and had been
brought under intimidation. The prosecutrix came to Delhi from
Merrut. For that purpose she must have travelled in a bus or a
train from Merrut to Delhi and would have got down either at
ISBT or a railway station in Delhi. Had she not been a willing
and consenting party, she would have raised alarm at any of
these places. Her failure to do so despite having repeated
opportunities that she had accompanied the appellants on her
own and that she was not under any kind of threat or
intimidation when she accompanied the appellants to Merrut
and was subjected to sexual intercourse firstly in a hotel and
then in a house in Delhi.
25. As regards charge under Section 363 and 366 of IPC, in
order to prove kidnapping the prosecution was required to prove
that the appellants had taken or enticed the prosecutrix out of
the keeping of her lawful guardian. The object behind Section
361 of Indian Penal Code, which defines kidnapping, is to
protect the minor children from being seduced for improper
purposes and to protect the rights and privileges of guardians
having lawful charge or custody of their minor wards. What is
necessary is either taking or enticement, of the minor. Taking
would include causing to go or getting into possession whereas
enticement involves an idea of inducement, by igniting hopes or
desire in the other. One does not entice other, unless the latter
attempts to do a thing which he or she would not otherwise have
done. In order to bring home conviction for kidnapping, there
must be proof of the accused having done something which led
to the girl going out of the keeping of her guardian. The words
'takes' and 'entices' as used in Section 361 of Indian Penal Code
need to be read together so as to take colour and content from
each other.
26. If the minor leaves her parental home without any
promise, offer or inducement from the accused, it cannot be said
that an offence of kidnapping is made out. Of course, if the
accused lays a foundation by inducement, allurement etc. and
that influences the minor or weighs with her in leaving her
guardian's custody and keeping and going with the accused then
it is difficult to accept that the minor had voluntarily come to the
accused.
27. In the present case, there is no evidence of either of the
appellants having extended any promise or allurement to the
prosecutrix. This is not the case of the prosecution that either of
the appellants had promised to marry the prosecutrix or held out
any other promise to her. The case of the prosecution is that the
appellants had threatened the prosecutrix by putting knives on
her person and being afraid of them she accompanied them to
Merrut. That part of the deposition of the prosecutrix where she
claimed that she had been threatened and two knives had been
put on her person when she was taken from Delhi to Merrut
cannot be believed and is obviously false. The truth appears to
be that since the prosecutrix was previously known to the
appellants, and had become friendly to one of them, she of her
own abandoned the guardianship of her parents and eloped with
the appellants. Though the prosecutrix has been found to be less
than 16 years old, it cannot be said that she was not capable of
knowing what she was doing. She was not of such an age so as
to be unable to decide what was good and what was bad for her.
Had the prosecutrix been about 10 months older, even the
offence of rape would not have been made out against the
appellants in the facts and circumstances of the case. In my
view the facts and circumstances brought on record clearly show
that the prosecutrix willingly accompanied the appellants and
stayed with them till they were caught by the police. The
prosecutrix knew and had the capacity to know the full import
what she was doing. It is, therefore, difficult to say that the
offence of kidnapping has been made out against the appellants
in the facts and circumstances of this case.
28. In order to succeed in a charge under section 366 of IPC, the
prosecution was required to prove that the kidnapping of the
prosecutrix was:
(a) 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
(b) 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.
29. In the present case there is no evidence of either of the
appellants having even made an attempt to compel the
prosecutrix to marry him. The deposition of the prosecutrix to
the effect that she was subjected to intercourse under
intimidation cannot be belied in the facts and circumstances of
this case. Therefore, it cannot be said that the appellants took
the prosecutrix with them so as to force or seduce her to illicit
intercourse. The facts and circumstances of the case indicate
that she was a consenting person to have sexual intercourse
with the appellants.
30. In Shyam and Another versus State of Maharashtra , 1995
Criminal Law General 3974, the prosecutrix had put blame on
the appellants and had deposed that she was threatened right
from the beginning while being kidnapped and was kept till
police recovered her. It was found by the Hon'ble Supreme
Court that she was not truthful as regards the manner of the so-
called taking. The prosecutrix in that case was a grown up girl,
though she had not touched 18 years of age but was still in the
age of discretion. She was found going on the bicycle of the
appellant. The Hon'ble Supreme Court noted that it was not
unknown to her with whom she was going and therefore, it was
expected of her then to jump down from the bicycle or put up
the struggle and in any case raise an alarm to protect herself.
As no such steps were taken by her, the Hon'ble Supreme Court
felt that she was a willing party to go with the appellants of her
own and, therefore, there was no taking out of the guardianship.
The appellants were acquitted of the charge under Section 366
of IPC.
31. In State of Karnataka vs. Sureshbabu, 1994
Crl.L.J.1216(1), it was found that the girl went with the accused
voluntarily. It was held by the Hon'ble Supreme Court that the
requirement of Section 366 of IPC is that taking or enticing away
a minor out of the keeping of the lawful guardianship was an
essential ingredient of the offence of kidnapping. It was held
that in such a case, it is difficult to held that the accused had
taken her away from the keeping of her lawful guardian and
something more has to be shown in a case of this nature, like
inducement.
32. In Mahabir vs. State 55(1994)DLT 428, the appellant
and the prosecutrix were known to each other. The appellant
took the prosecutrix to a place outside Delhi where they stayed
for about fifteen days and had sexual intercourse with each
other. The appellant was convicted under Sections 366 and 376
of I.P.C. A learned Single Judge of this Court noticed that she
had gone to Railway Station, had stood there with the appellant
who also went to purchase tickets and then she had travelled
with him in a compartment shared by other persons. She had
then gone to a house in a tonga and yet she did not lodge any
protest and made no attempt to flee despite having ample time
and opportunity. The learned Single Judge noted that on the day
of reckoning, she surely had crossed mark of sixteen years and
since she was all along a willing party, the appellant was
acquitted of both the charges against him. Thus, despite the
prosecutrix being less than eighteen years of age, the appellant
was acquitted not only of charge under Section 376 but also of
the charge under Section 366 of I.P.C.
33. In Piara Singh vs. State of Punjab, 1998(3) Crimes 570, the
High Court found that the prosecutrix was more than sixteen
years of age at the time of this incident, though, the case of the
prosecution was that she was forteen years of old at that time.
Since the High Court came into conclusion that no force was
used in having sexual intercourse with him, the appellant was
acquitted not only of charge under Section 376 but also of
charge under Section 366 and 366-A of Indian Penal Code. In
this case also, the prosecutrix was not found to be more than
eighteen years of age.
34. In Bala Saheb vs. State of Maharashtra, 1994 Criminal Law
General 3044, it was found that the prosecutrix accompanied the
appellant/accused from her village and stayed with him for two
to three days. It was held that these circumstances clearly show
that offence under Section 363 or 366 of I.P.C. was not made
out.
35. In Chida Ram vs. State, 1992 Criminal Law General
4073, the prosecutrix went to the P.S. and lodged report that she
had gone with the petitioner/accused, of her own accord.
However, during trial, she deposed that she was forced by the
accused/petitioner to go to the police station. She had also
given statement before a Magistrate after lodging report with
the police and in that statement she did not say that she was
forced by the accused/petitioner to go to the Police Post and
lodged the report. A learned Single Judge of this Court observed
that she had ample opportunity to say before the Magistrate,
before whom she was produced at the first instance, that she
was forced by the accused to go to the Police Station and lodged
report. The story set up by her during trial was considered to be
an afterthought and was not believed. It was found that she was
a consenting party in eloping from her house with the
accused/petitioner. It was held that it could not also be called a
case of kidnapping.
36. However, as far as charge under section 376 of IPC is
concerned, the appellants are guilty even if they had sexual
intercourse with the prosecutrix with her consent as the
prosecutrix was less than 16 years old at the time when she was
subject to sexual intercourse.
37. I see no reason to disbelieve the testimony of the
prosecutrix as regards the sexual intercourse with her. It is
extremely unlikely that a young unmarried girl will falsely allege
sexual intercourse with her, since she knows that by making
such an accusation, she would be sacrificing what is most dear
to her. In a tradition bound non-permissive society like ours, a
young girl would be reluctant even to admit an incident of sexual
intercourse with her, conscious as she would be of being
criticized not only by the society but also by her own family
members, relatives and neighbors who may somehow or the
other hold her at least partly responsible for the incident which
happened with her. Even the parents of an unmarried girl would
not report such an incident to the police unless they are
absolutely sure of its truthfulness. The parents of an unmarried
girl would always be aware of the risk that comes to be
associated with the marriage of an unmarried girl who is
subjected to sexual intercourse and that too by two young boys
professing an altogether different religion. They know that if
such an incident becomes public it would be difficult for them to
find a suitable match for their daughter from a respectable
family. Their natural inclination would be to avoid giving
publicity to such an incident lest their family name and family
honour is brought under disrepute on account of an adverse
publicity. Therefore, I find no good ground to reject the
testimony of the prosecutrix to the effect that she was subjected
to sexual intercourse by both the appellants.
38. In his statement under section 313 of Cr.PC the appellant
Mohd. Imran claimed that his co-accused Jamal Ahmed used to
visit his place and had introduced him to the family of the
prosecutrix. On the other hand, the appellant Jamal Ahmed
stated that it was Mohd. Imran who had introduced him to the
family of the prosecutrix. Thus, both of them are contradicting
each other as to who introduced whom to the prosecutrix.
39. When Mohd. Imran came in the witness box as DW5, he
stated that he had become friendly with the prosecutrix and they
had been meeting each other. He also claimed that the
prosecutrix had come to his stall on 22nd November as well as
25th November and she had told him that she had been turned by
her mother out of her home. He further stated that he along
with the prosecutrix and Jamal Ahmed went to Merrut to consult
Shri Mustafa Alam, Advocate. According to him it was Jamal
Ahmed who took the prosecutrix to the house of the advocate
and he himself went to Bahadurgarh to bring the brother of the
advocate but could not reach Bahadurgarh. However, the
appellant Jamal Ahmed has not taken the same stand and has
altogether denied having accompanied the prosecutrix to
Merrut. According to the appellant Mohd. Imran he had no
contact with the prosecutrix or Jamal Ahmed thereafter and was
arrested by the police from his restaurant. On the other hand
testimony of the police officials shows that both the appellants
were arrested from a flat in G.B. Pant Hospital and that time the
prosecutrix was in their company. In fact, the appellant Mohd.
Imran, in his statement under section 313 of Cr.PC denied
having taken the prosecutrix to Merrut and did not claim that
he, along with Jamal Ahmed, had accompanied her to Merrut, he
had come back from there for going to Bahadurgarh to bring the
brother of Shri Mustafa Alam, advocate. Even otherwise it is
difficult to accept to accept that if the appellant Mohd. Imran
was having relationship with the prosecutrix he would leave her
in the company of Jamal Ahmed and come back from Merrut.
His claim that he wanted to go to Bahadurgarh but could not
reach there because the bus had stopped on the way and he did
not know the address of the lawyer and, therefore, he came to
Delhi is totally unbelievable. If one bus had gone out of order,
he would have boarded another bus. His claim that he came
back to Delhi as he did not know the address of the lawyer is ex-
facie false, as he himself stated that Jamal Ahmed had taken
them to the lawyer at Merrut. If he had gone up to the place of
the lawyer along with Jamal Ahmed, there could be no question
of his not knowing the address of the lawyer and not being able
to reach there. Since the appellant Mohd. Imran Khan was
having an affair with the prosecutrix, in normal course of human
conduct he must have remained with her throughout till they
were apprehended by the police.
40. In his statement under section 313 of Cr.PC, Jamal Ahmed
does not say that he along with Mohd. Imran Khan had
accompanied the prosecutrix to Merrut and that in Merrut he
along had taken the prosecutrix to the place of the advocate
whereas Mohd. Imran Khan had gone to Bahadurgarh to bring
the brother of the advocate. He does not say that he had
accompanied the prosecutrix to hotel and had stayed there in
the night with her. He does not say that he alone had brought
the prosecutrix from Merrut to Delhi. During cross-examination
of the prosecutrix it was suggested to her that in the hotel she
and Jamal Ahmed had introduced themselves as brother and
sister. Such a defence is inherently improbable and cannot be
believed. Assuming that Jamal Ahmed alone had taken the
prosecutrix to the hotel and stayed with her in the night, when a
young boy goes to a hotel and takes a room on rent for staying
overnight he would not introduce the girl accompanying him as
his sister because that would immediately create suspicion in the
mind of the hotel staff because a young boy is not likely to stay
with his young sister in a hotel in the night. The appellant Jamal
Ahmed having been identified by PW12 Data Ram as Manoj, it
cannot be accepted that he had not gone to the hotel with the
prosecutrix and had not stayed there in the night with her. If
the names of both the appellants were not got recorded in the
record of the hotel that by itself would not show that they had
not stayed in the room with the prosecutrix. It is quite likely
that the names of them the boys were not entered in the hotel
register because that would have created suspicion on account
of two boys staying with a young girl in one room. Nothing
prevented the appellants from taking the room for one couple
and then both of them staying in the same room during night.
There is yet another possibility that the hotel staff was
persuaded to give room to all the three but the names of only
one male and one female were entered in the register in order to
show, on record, that a couple had stayed in the room.
41. Whatever be the circumstances in which all the three came
to stay in the same room, it is difficult to believe that the
appellant Mohd. Imran Khan who was carrying an affair with the
prosecutrix would have allowed his co-accused Jamal Ahmed a
young man to stay alone with the prosecutrix in a hotel in the
night. Once it is shown that both the appellants had stayed in
the same room with the prosecutrix, it is difficult to accept that
only one of them had sex with her. If either of them did not want
to have sex with the prosecutrix, he would not have stayed in
that room during the night. In any case, had the prosecutrix
been subjected to sexual intercourse only by the appellant Jamal,
she would not have implicated Imran, with whom she was
friendly.
42. It was pointed out by learned counsel for the appellants
that there was delay in lodging the FIR as the prosecutrix went
missing on 25th November, 1989 but her father lodged missing
report only on 27th November, 1989. It was noted by the
Hon'ble Supreme Court in Ravinder Kumar vs. State 2001(VII)
AD(SC) 209 that the law has not fixed any time limit for lodging
FIR and delayed FIR is not illegal. If there is a delay the court
has to look for the reasons which could be many, but the FIR is
not vitiated on account of delay alone. As regards reporting of
cases of elopement of a girl that too with boys of a different
religion one cannot be oblivious to the fact that since in such
cases honour of the family is involved, a lot of thought must have
gone into, before it was decided to lodge FIR. The prosecutrix
being a young girl aged about 15 years at the time she
accompanied the appellants, it is understandable that her father
must have taken time to decide what course of action he should
adopt. Therefore, lodging of FIR in the facts and circumstances
of this case cannot be said to be fatal to the prosecution.
43. For the reasons given in the preceding paragraphs, both
the appellants are acquitted of the charge under section 366/34
of IPC. Their conviction under section 376 of IPC is, however,
maintained. As regards sentence though the minimum
prescribed punishment is imprisonment for 7 years coupled with
fine, the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment
for a term of less than 7 years. The incident in this case took
place in the year 1989. More than 20 years have passed since
then. These appeals are pending for last more than 10 years.
The evidence that has come on record shows that the
prosecutrix had willingly accompanied the appellants to Merrut
and had willing stayed with them in the hotel where she was
subjected to rape. She was more than 15 years old when she
eloped with the appellants. The appellants were young boys
when this incident took place. The main circumstance which
persuades me to take a lenient view in the matter of sentence
and awarding less than the minimum prescribed sentence is the
consent on the part of the prosecutrix to accompany them which
is more than evident from the facts and circumstances of the
case.
44. Keeping in view the facts and circumstances as discussed
in the preceding paragraphs, the appellants are sentenced to
undergo RI for 5 years each and to pay fine of Rs.10,000/- each
or to undergo SI for 3 months in default under section 376 of
IPC.
45. The appellants are directed to surrender forthwith before
the trial court to undergo the remaining portion of the sentence
imposed upon them.
(V.K.JAIN)
JUDGE
DECEMBER 8, 2009
RS
