Delhi High Court
State vs Hasim on 29 January, 2014
Author: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.822/2009
STATE .....Appellant
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Ms.Charu
Dalal, Advocate.
versus
HASIM ..... Respondent
Through: Mr.C.B.Singh, Advocate.
% Pronounced on : January 29, 2014
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J
1. "Run Away Marriages' are manifestation of a generational change due
to variety of factors, including increased interaction between the sexes, with
young boys and girls attaining maturity rapidly. It is a complex problem with
inter play of social, economic, religious, caste, educational factors, including
sex education and vulnerability and backwardness of the weaker sex having its
impact. The Child Marriage Restraint Act, 1929 as well as relevant provisions
of the Hindu Marriage Act are social legislations aimed at protection and
development of the vulnerable sex and have to be interpreted and worked
accordingly. The consequences of considering such marriages as void or
voidable need to be evaluated since the State as well as the social reformists
who have not been successful to change the mindset of the people tuned to
early marriages. By an estimate, prevalence of child marriages in the major
States of West Bengal, Rajasthan, Bihar and Madhya Pradesh varies from 56
to 59%. Moreover, it is also to be noted that any adverse fall out of any law
CRL.A.822/2009 Page 1 of 16
that makes such underage marriages as void or voidable would be borne by
none other than the women and their progeny."[ AIR 2006 Delhi 37].
2. This Court was constrained to make the above observations in
view of the increasing number of habeas corpus petitions by the parents
for production of their wards who leave their parental house in these run
away marriages. This Court deliberated on the growing tendency in
minor girls leaving their homes to marry a person of their choice,
entering into physical relationship with them after performing marriage
and the validity of such marriages.
3. This Court has been dealing with the rising number of Runaway
Marriages which not only cause mental agony to the family of the couple
but also compel the couple to run for shelter to protect their lives and
escape honour killing. While parents of such girls suffer due to social
stigma attached with such marriages, the family of the boy is harassed
not only by the family of the girl but also by the police to pressurize
them to disclose the whereabouts of the boy. If the police is able to
recover the couple, the 'husband'' is generally accused of kidnapping
and rape. Most of the time, such girls turn out to be minor. In such
circumstances, either the girl has to stay in Nari Niketan and wait for the
release of the husband or to return to the parents and succumb to their
wishes to marry the person of their choice and stand as a witness against
the person with whom she is in love. The opposition to the marriage by
the parents to such marriages is mostly on account of
caste/religion/disparities in social status, and with a view to break the
matrimonial alliance they continue pressing the charge of kidnapping and
rape on the boy.
CRL.A.822/2009 Page 2 of 16
4. 'N' (name withheld to conceal the identity of the prosecutrix) a
Hindu girl fell in love with Respondent, a Muslim boy. This is an
unfortunate case where perhaps different religion of the Respondent and
the prosecutrix 'N' was the biggest hurdle in their way to marry each
other. They wanted to marry crossing this hurdle, hence firstly nikah was
performed on 11.02.2005 and thereafter notice for intended marriage
under the Special Marriage Act was also given. However, destiny had
something else in store for them. While going through the Trial Court
record, we notice the wedding card of 'N' filed along with an application
seeking her exemption from appearance in the Trial Court for the reason
that she was to get married on 13.05.2007 with another boy of her
religion. Thus, the prosecutrix was got married to another boy at the age
of 14 years 6 months and 26 days and we are left to ponder over whether
the Respondent can be convicted under Section 376 IPC, as the
prosecutrix had not attained the consenting age while entering into
physical relationship with him as his wife.
5. Before examining the culpability of the Respondent, the question
staring in our face is the effect of her marriage on 13.05.2007 with
another boy and consummation of that marriage, as even for that purpose
she would be under 15 years of age. As per Exception to Section 375
IPC, sexual intercourse by a man with his own wife, the wife not being
under 15 years of age, is not rape. Thus, with nikahnama dated
11.02.2005 available on record and she having performed nikah with the
Respondent after attaining the age of puberty, if entering into
relationship with the Muslim husband is to be termed as rape, then what
about the marriage performed by the parents of the prosecutrix in
CRL.A.822/2009 Page 3 of 16
contravention of the provisions of the Prohibition of Child Marriage Act
and she being under 15 years of age on that date, even consummation of
that marriage, technically speaking, would amount to rape. However, we
leave this question unanswered, as it is only the State which has
impugned the order of acquittal passed by the learned Trial Court
acquitting the Respondent of all the charges in respect of kidnapping and
rape of the prosecutrix.
6. The State challenged the acquittal of the Respondent by filing
Criminal Leave Petition No.77/2009 on the ground that the Respondent
had been acquitted of the charge of rape for the reason that the
prosecutrix was consenting party, ignoring the fact that as per school
record she was a minor. Thus, leave was granted by this Court vide
order dated 21.10.2009 observing that consent to have sexual intercourse
with the accused by the prosecutrix would be insignificant in case she
was a minor.
7. This criminal appeal has been preferred by the State impugning
the judgment/order dated 14.11.2008 in Sessions Case No.58/06 passed
by the learned Addl. Sessions Judge, Delhi in case FIR No.238/2006
under Sections 363/366/376 IPC, P.S. Sangam Vihar, whereby the
Respondent Hasim was acquitted of the charge under Sections
363/366/376 IPC on the ground that the prosecutrix was consenting party
and had left the home of her own to join the company of the person with
whom she was in love.
8. Facts
vide DD No.7A giving rise to this appeal are that on
26.02.2006 PW-3 Shri Subedar Yadav visited Police Station Sangam
Vihar to lodge the missing report of his daughter 'N'. He reported that
his daughter 'N' had left home on 24.02.2006 at about 6 a.m. without
informing anyone. Earlier also she had left home and was brought back
by the police. While giving her description, he further informed that he
was searching for his daughter at his own level, but on not being able to
find her, he had come to report the matter. He did not suspect anyone
behind her missing. Thereafter, on 20.03.2006, he lodged the FIR
Ex.PW-3/A wherein he named the Respondent Hasim, who was residing
in their neighbourhood and was a hairdresser by profession, to be the
person who had enticed his daughter.
9. After registration of the FIR under Section 363 IPC, efforts were
made to search the missing girl and the suspect and ultimately on
03.04.2006 both were recovered by I.O. ASI Karambir Singh along with
other police officials of P.S. Sangam Vihar from Dingerpur, Distt.
Moradabad (U.P.), in the presence of the father of the prosecutrix and
were brought to Delhi. They were sent to AIIMS for medical
examination. The alleged history given by 'N' in presence of her mother
before PW-2 Dr.Gagandeep Kaur and recorded on the MLC of the
prosecutrix being relevant for the just decision of this appeal is extracted
hereunder:-
____________________________________________________
"AIIMS HOSPITAL EMERGENCY DEPTT.
(CASUALTY CARD)
Main Emergency
Time: 18 hr 53 min.
Date of arrival : 03.04.06
Casualty No.: CS-42292-2006
Name: 'N' (name withheld by us) Age: 14 yrs. Sex: Female
D/o : Subedar Yadav
Brought by: LC Rekha 3413/SD/PS Sangam Vihar
Referred from:
Local Address: 2107/10, L-I, Sangam Vihar, ND.
_________________________________________________________
3/4/06/8.15 p.m
-H/o staying with a man from last 5 months at Moradabad without
consent of parents.
-H/o regular intercourse with that person.
-Brought back home by parents in February, stayed at home for 10
days and went back to Moradabad.
-LMP - 14/2/06- lasting for 3-4 days. Menstruation 5 months back.
-Had periods 3 times after that.
-Patient not willing for any medical examination.
RTI of 'N' RTI of Mother
(Durga Devi)
Adv.: - X Ray for Bone age estimation
- Urine for pregnancy test."
The prosecution has failed to get the ossification test conducted of
the prosecutrix to ascertain her bony age.
10. Thereafter, the prosecutrix was produced before the learned M.M
for getting her statement recorded under Section 164 Cr.P.C. wherein she
stated that on 23rd or 24th of February maternal uncle and aunt of the
Respondent took her to Dingerpur where she stayed with the
Respondent, who forcibly did 'galat kaam'. She did not complain to
anyone as she was under fear and she was brought back to Delhi by
police and that she wanted to live with her parents. She further stated that
she did not want the Respondent to be punished and that he be set at
liberty.
11. After completion of the investigation, charge sheet was filed in the
Court. Since the Respondent pleaded not guilty to the aforesaid charge,
the prosecution examined 11 witnesses in order to bring home the guilt
of the Respondent. In his statement recorded under Section 313 Cr.P.C.,
the Respondent denied the case of the prosecution and claimed the
prosecutrix to be major.
12. In order to appreciate the testimonies of PW-1 'N'and her father
PW-3 Shri Subedar Yadav, it is necessary to examine the different
versions coming on record at different stages. Minute examination of
evidence of the prosecutrix, PW-1 'N' and her father PW-3 Shri Subedar
Yadav makes it clear that they have not been consistent while deposing
before the Court. Their versions continued changing colour at every
level. The same can be better understood/appreciated from the following
illustration tables:
PW-1 'N' ( the prosecutrix)
Version as recorded in Version as Version as recorded
the statement under recorded in the before the Court.
Section 161 Cr.P.C. statement under
Section 164 Cr.P.C
(i) She was residing (i) Kasim's (i) She did not
at Sangam Vihar with Mama and Mami remember the date or
her family. enticed her away month, but Hasim came
(ii) Hasim was on 23rd or 24th of to the roof of her house
working at a barbar shop February and took at 6 a.m. from the roof
in the neighbourhood. her to Dingerpur, of the adjoining house.
(iii) On 24.02.06 at Moradabad where (ii) He asked her to
about 6 am he came to she stayed with accompany him as he
her roof and enticed her Kasim. would marry her and
away on the pretext of (ii) Kasim provide her everything.
giving her everything forcibly did (iii) He also told that
and offering to marry 'galatkam', but she his maternal aunt
her. did not complain to (Mami), who was
(iv) On being anyone as she was residing nearby, was
induced, she put in fear. sick and she should
accompanied him from (iii) Police accompany him to see
the roof itself. In a three- brought her and her.
wheeler, they reached she wanted to live (iv) She accompanied
Anand Vihar ISBT and with her parents. Hasim to the house of
from there they went to (iv) "Mein Use his Mami which was at
Sambhal and from there Saja Karana Nahi a short distance from
to village Dingerpur Chahti aur Use her house.
(Moradabad). Chhod Diya Jaye". (iv) She found that
(v) Hasim had been his Mami was not sick.
daily committing (v) Hasim gave a
'galatkam' with her. glass of water and after
drinking it she felt
giddiness.
(vi) She was made to
sit in TSR and taken to a
place from where they
boarded a bus and
reached the village
Dingerpur, Moradabad
to the house of Bua of
Hasim where they
started living together.
(vii) Hasim used to
have sexual intercourse
everyday against her
wishes.
(viii) She made
complaint to his Bua and
Fufa, but they did not
listen.
(ix) Her father came
along with police and
both of them were
recovered and brought
back to Delhi.
(x) She was taken to
hospital for medical
examination, but she
refused for the same as
recorded on the MLC
Ex.PW-1/A & B at point
'Á'.
(xi) She made
statement under Section
164 Cr.P.C. Ex.PW-1/ C
before the learned M.M..
(xii) In cross-
examination she was
confronted with some of
the improvements made
by her in her deposition
before the Court.
(xiii) She also admitted
having solemnized
marriage with the
Respondent as well as
correctness of
Nikahnama and visit to
the Court for the
purpose of Court
marriage.
(xiv) She also admitted
about the correctness of
history given by her
before PW-2 Dr.
Gagandeep Kaur and
recorded on the MLC
Ex.PW-1/A & B.
(xv) She also admitted
that at the time when she
gave the history, her
mother was present.
This fact is also
corroborated from the
MLC Ex.PW-1/B
whereon apart from the
signatures of 'N', thumb
impression of her
mother is also there
recording their
unwillingness for
medical examination.
PW-3 Shri Subedar Yadav (father of the prosecutrix)
Version as Version as Version as Version as
recorded in the recorded in the recorded in his recorded
DD. FIR. statement under before the
Court.
Section 161
Cr.P.C.
(i) The (i) With
(i) (i) He along with (i) On 24.02.06
prosecutrix left reference to the the police reached when he was
home on 24.02.06 information Village of Hasim in his village,
at 6 a.m without given in Ex.PW- where father of he was
informing 7/A, he had come Hasim informed informed by
anyone. to know that his that Hasim and his son from
(ii) She had left daughter had 'N'were living at Delhi that 'N'
home in similar been enticed Dingerpur. was missing.
manner earlier away by Hasim,
(ii) (ii) His son
also and was Hairdresser. (ii) When they further
brought back by reached Dingerpur, informed that
the police. Hasim and 'N'were 'N' left for
(iii) He did not school on
present there and
suspect anyone 24.02.06 but
recovered by the did not return.
police. (iii) (iii) He
informed the
(iii) On being police that his
questioned by the daughter was
police, his daughter wearing
informed that school
Hasim came to uniform.
their roof (iv) and (iv) Hasim,
Barber of the
enticed her away
locality was
stating that he also missing
would give her and suspected
everything and to be the
marry her. person who
had taken
Thereafter, he
away his
brought her to daughter.
Dingerpur and (v)
had (v) Enquiries
raped her. made from the
relatives of
(i) Hasim led
them to the
house of Bua
of Hasim
where the
prosecutrix
and Hasim
were found
staying there.
(vi) They were
brought to
Delhi and sent
for medical
examination.
(vi) He was
informed by
his daughter
that Hasim
came from the
roof of
adjoining
house and
kidnapped her
and took her
on the pretext
that her Mami
was unwell.
(iii) (vii) At the
house of his
Mami, he gave
some drink.
Thereafter his
daughter
became
unconscious
and on
regaining
consciousness,
she found
herself in the
village.
13. The Trial Court record contains the nikahnama along with its
English transliteration as well as the original notice of intended marriage
having the photograph of the prosecutrix and the Respondent and the
affidavit of the prosecutrix wherein she admits having performed nikah
with the Respondent. The prosecutrix not only admitted that she
performed nikah with the Respondent but also admitted that she had
gone to the Court for getting the said marriage registered under the
Special Marriage Act.
14. There is clear distinction between rape and consensual sex. Here,
in the present case, she consented for sex as a wife after performing
nikah with the Respondent on 11.02.2005. It is a case where the
prosecutrix entered into physical relationship on account of her love and
passion for the Respondent. In order to join his company, she left home
not once but twice.
15. The prosecution is seeking conviction of the Respondent mainly
on the ground that as per school record her date of birth is 17.10.1992.
Thus, at the time of entering into physical relationship with the
Respondent in February, 2006, she being below 16 years of age, had not
attained the consenting age. Thus the Respondent should have been
convicted for committing the offences punishable under Sections
363/366/376 IPC.
16. Admittedly, ossification test has not been got conducted in this
case to ascertain the age of the prosecutrix despite being so advised by
the doctor. No material has come on record as to on what basis the date
of birth was recorded at the time of admission in Govt. Girls Sr.
Secondary School, Sangam Vihar in VIth standard. It is not even brought
on record as to who filled in the form for admission in VIth standard, as
her father does not claim to be the person who got her admitted. Even
there is no material on record that she was admitted in VIth standard on
the basis of school leaving certificate issued by some primary school and
on what basis date of birth was recorded at the time of her initial
admission. As per School Leaving Certificate Ex.PW-6/B, date of
admission of the prosecutrix in the school is 29.04.2004 and date of
leaving the school is 18.03.2006. Out of possible attendance during the
relevant school year which should have been 244 days, actual attendance
was only for 132 days and leave period is 112 days. In the absence of
any material on the basis of which date of birth was recorded at the time
of her admission in the said school and failure of the prosecution to get
the ossification test conducted despite being advised so by the concerned
doctor, we are of the view that benefit of doubt in case of proven consent
must go to the Respondent.
17. In the instant case, following facts are established beyond
reasonable doubt:
(i) The prosecutrix was in love with the Respondent. As the
prosecutrix was Hindu by religion and the Respondent was a
Muslim boy, so as to provide legal status to their relationship,
she left home and performed nikah in 2005. She also initiated
steps for getting the marriage registered under Special
Marriage Act.
(ii) She left home twice of her own to marry the Respondent and
live with him as his wife.
(iii) The prosecutrix at no point of time made any complaint to
anyone that she had been forcibly taken or raped by the
Respondent.
(iv) Even at the time of her being found on 03.04.2006 by the
police in the presence of her father as well as at the time of her
medical examination by the doctor in the presence of her
mother, she did not complain of being sexually assaulted by
the Respondent under any threat or by putting her under fear.
In fact, she had run away not once but twice but ultimately had
to marry the person chosen by her family which speaks of the
volume of influence exercised upon her after she was
recovered second time by the police.
(v) The learned Trial Court has taken into account the facts and
circumstances of the case while arriving at the conclusion that
none of the ingredients for the offences under Sections
363/366 of IPC are made out against the accused and accused
is also clearly entitled for acquittal for the offence of rape as
contained in Section 376 of IPC as well.
18. From the testimonies of the prosecutrix (PW-1), her father Shri
Subedar Yadav (PW-3) and the nikahnama, it stands proved that the
prosecutrix was in love with the Respondent and first time she ran away
to perform nikah with him. She was brought back by the police and
restored to the custody to her parents. Perhaps she did not disclose about
the nikah being performed by her after being brought back to her parents
by the police, she just stayed for about 10 days and again left home and
continued staying with the Respondent for about 5 months and had
physical relationship with him as his wife.
19. Legal position is well settled that while dealing with an appeal
against acquittal, in the absence of perversity in the judgment and order,
interference by the Appellate Court exercising its extra ordinary
jurisdiction is not warranted. In Mrinal Das and Ors. Vs. The State of
Tripura AIR 2011 Sc 3753, the Supreme Court has observed as under:-
"8. It is clear that in an appeal against acquittal in the absence of
perversity in the judgment and order, interference by this Court
exercising its extraordinary jurisdiction, is not warranted.
However, if the appeal is heard by an appellate court, being the
final court of fact, is fully competent to re-appreciate, reconsider
and review the evidence and take its own decision. In other words,
law does not prescribe any limitation, restriction or condition on
exercise of such power and the appellate court is free to arrive at
its own conclusion keeping in mind that acquittal provides for
presumption in favour of the accused. The presumption of
innocence is available to the person and in criminal jurisprudence
every person is presumed to be innocent unless he is proved guilty
by the competent court. If two reasonable views are possible on the
basis of the evidence on record, the appellate court should not
disturb the findings of acquittal. There is no limitation on the part
of the appellate court to review the evidence upon which the order
of acquittal is found and to come to its own conclusion. The
appellate court can also review the conclusion arrived at by the
trial Court with respect to both facts and law. While dealing with
the appeal against acquittal preferred by the State, it is the duty of
the appellate court to marshal the entire evidence on record and
only by giving cogent and adequate reasons set aside the judgment
of acquittal. An order of acquittal is to be interfered with only when
there are "compelling and substantial reasons" for doing so. If the
order is "clearly unreasonable", it is a compelling reason for
interference. When the trial Court has ignored the evidence or
misread the material evidence or has ignored material documents
like dying declaration/report of ballistic experts etc., the appellate
court is competent to reverse the decision of the trial Court
depending on the materials placed.
20. In the circumstances, as the prosecutrix 'N' had eloped and
performed nikah with the Respondent and had sexual intercourse with
him as his wife, we do not find any merit in the plea of the prosecution
that it stands proved that she was under 16 years of age at that time and
as such her consent becomes immaterial and the Respondent should have
been convicted for taking away the prosecutrix from the lawful
guardianship of her parents and committing rape on her.
21. We are satisfied upon perusal of the material on record that no
offence under Section 363/366/376 IPC has been established against the
Respondent. We do not find any perversity in the decision of the Trial
Court and there is no ground to interfere with the order of acquittal.
Hence the appeal fails and is hereby dismissed. TCR be sent back
alongwith with a copy of this order.
(PRATIBHA RANI)
JUDGE
(REVA KHETRAPAL)
JUDGE
January 29, 2014
'dc'
