Sarvar Jahangir @ Raja vs State (Nct Of Delhi)
2016 Latest Caselaw 707 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 13th JANUARY, 2016
                               DECIDED ON : 1st FEBRUARY, 2016

+                        CRL.A.570/2005
      SARVAR JAHANGIR @ RAJA                            ..... Appellant
                         Through :   Ms.Sangita Bhayana, Advocate.

                         versus

      STATE (NCT OF DELHI)                           ..... Respondent
                    Through :        Ms.Meenakshi Dahiya, APP.

AND
+                        CRL.A.549/2005
      AMEEN                                             ..... Appellant
                         Through :   Mr.J.K.Singh, Advocate.

                         versus

      STATE                                          ..... Respondent
                         Through :   Ms.Meenakshi Dahiya, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in these appeals is to a judgment dated 21.04.2005

of learned Addl. Sessions Judge in Sessions Case No.161/01 arising out of

FIR No.146/2001 PS Mayur Vihar by which the appellant - Sarvar

Jahangir @ Raja (A-1) was held guilty for committing offences under

Sections 363/366/376 IPC and appellant - Ameen (A-2) was held guilty

for committing offences under Section 363/366/34 IPC. By an order dated

23.04.2005, they were awarded various prison terms with fine. The

sentences were to operate concurrently.

2. Briefly stated, the prosecution case as stated in the charge-

sheet was that on 11.06.2001 during day-time, the appellants along with

their associate - Munna Khan (since acquitted) kidnapped the prosecutrix

'X' (assumed name) aged around 14 ½ years from the lawful guardianship

of her parents. Subsequently, A-1 committed rape after criminally

intimidating her. On 11.06.2001, 'X' went missing from her home; her

parents searched her at various places but in vain. 'Missing Person

Report' was lodged on 12.06.2001 and the investigation was assigned to

ASI Nahar Singh. Since 'X' was un-traceable, the Investigating Officer

lodged FIR on 15.06.2001. On 16.06.2001, 'X' was found in A-2's

company. A-1 was arrested on 18.06.2001. 'X' was medically examined;

she recorded her 164 Cr.P.C. statement. Statements of the witnesses

conversant with the facts were recorded. Exhibits collected during

investigation were sent to Forensic Science Laboratory for examination.

Upon completion of the investigation, a charge-sheet was filed against A-

1, A-2 and Munna Khan. To prove its case, the prosecution examined

twenty witnesses. In 313 Cr.P.C. statements, the accused persons denied

their involvement in the crime and pleaded false implication. DW-1

(Shamida) appeared in their defence. After considering the rival

contentions of the parties and on appreciation of the evidence, the Trial

Court, by the impugned judgment, convicted the appellants - A-1 and A-2

for the above said offences and acquitted Munna Khan of all the charges.

It is relevant to note that State did not challenge his acquittal. Being

aggrieved and dissatisfied, the appellants have filed the instant appeals.

3. I have heard the learned counsel for the parties and have

examined the file. Learned counsel for A-1 would submit that 'X' and A-1

were in love. 'X' wanted to marry him and for that purpose had visited

him with cash and jewellery at his house. When his mother objected to

that relationship, A-1 was falsely implicated when he was going to leave

'X' at her house. Counsel further urged that 'X' was 'major' on the day of

incident. Reliance on the birth certificate to determine her age by the Trial

Court is misplaced as there are material discrepancies in it. Counsel for A-

2 urged that no role was assigned to him in the crime and he was

convicted merely because of his presence along with A-1. Learned Addl.

Public Prosecutor urged that no sound reasons prevail to disbelieve the

prosecutrix.

4. From the very inception, it was the prosecution's case that

'X' was aged around 14 ½ years and her date of birth was 25.12.1986. In

DD No.14A (Ex.PW-12/A) recorded on 12.06.2001, the informant

disclosed the age of her missing daughter around 14 years. In the FIR

(Ex.PW-1/A) and in the MLC (Ex.PW-13/A), X's age was shown as 14

years. She was a student of 9th standard on the day of incident. During

investigation, X's father Rakesh Kumar produced photocopy of a birth

certificate (Mark 'Y') where her date of birth was recorded as 25.12.1986.

He elaborated that the original had been deposited by him in ASM Public

School, Samachar Apartments, Mayur Vihar phase-I. 'X' in her Court

statement as PW-3 recorded on 21.05.2003 gave her age as 16 years.

Material testimony is that of PW-18 (Dr.Meenu Sehgal), Jr.Asst., NDMC,

Mandir Marg, New Delhi, who brought the record regarding birth of a

female child registered at registration No.11328. As per record, a female

child was born on 25.12.1986 and her birth was registered on 27.01.1987.

She further disclosed that father's name of the female child was Rakesh

Goel and mother's name was Anita; they were resident of 18/400,

Trilokpuri, Delhi. Photocopy of the relevant entry was Ex.PW-18/A. She

further deposed that the particulars given in birth certificate (Ex.PW-18/B)

were correct as per record. She was not cross-examined. Nothing was

suggested to her that this birth certificate did not pertain to 'X'. Merely

because, the father's name has been described as 'Rakesh Goel' which

does not find mention in his testimony when he gave his name only

'Rakesh Kumar' is not sufficient to infer that the birth certificate does not

pertain to 'X'. Nothing is on record to infer if PW-1 (Rakesh Kumar) and

'Rakesh Goel' whose name finds mention in the birth certificate (Mark

'Y') are two different individuals. No such clarification was sought by the

appellants in the cross-examination from PW-1 (Rakesh Kumar). Rather it

was suggested that the said certificate pertained to their daughter

'Mamta'. As per record, Mamta was junior in age to 'X'. This certificate

was prepared long back when X's parents had not anticipated such an

unfortunate incident to happen in future. There was no occasion for X's

parents to manipulate her date of birth long back. The accused persons did

not produce any document to show that 'X' was aged around 18 years or

above 16 years. Since 'X' was below 16 years, her consent to have

physical relations (if any) was of no relevance.

5. On scanning the testimonies of the prosecution witnesses, it

stands established that A-1 and 'X' were acquainted with each other for

the last about 4 - 5 years and they used to remain in constant touch. On

11.06.2001, 'X' had gone at A-1's residence along with cash and

jewellery articles without informing her parents. Thereafter, she

accompanied the appellants without any demur at various places and

remained in A-1's company till 15.06.2001. On 16.06.2001, she was

found in A-2's company while going on a rickshaw. During this period,

'X' did not make any attempt to contact her parents; she did not raise hue

and cry at any stage. She met A-1's relatives but did not complain about

her alleged abduction / kidnapping. Physical relations took place between

'X' and A-1 during this period. She freely roamed in the company of the

appellants even after establishing physical relationship without any

complaint. Apparently, 'X' was a consenting party throughout. She and

A-1 wanted to marry being in love. At the time of medical examination

vide MLC (Ex.PW-13/A), no visible injuries were found on her body

including private parts. There were no struggle marks to infer if physical

relations were established forcibly against her wishes. The appellants were

not armed with any weapon to create fear in her mind not to protest.

6. Undoubtedly, 'X' has exaggerated her version whereby she

implicated Munna Khan and attempted to rope in one Raghav and A-1's

mother assigning superficial role to them. However, during investigation,

they (Raghav and A-1's mother) were not found to be involved in the

crime and were not charge-sheeted.

7. In 313 Cr.P.C. statement, A-1 admitted that he was in love

with 'X' and they both wanted to marry. Since they belonged to different

religions, their parents were not agreeable to their marriage. It is certain

that A-1 had taken 'X' along with him at various places and had

established physical relations with her. No valid reasons exist to

disbelieve the statement of the prosecutrix on that aspect. MLC (Ex.PW-

13/A) corroborates her version where X's hymen was found torn. A-1 had

no reason to keep 'X', a minor, below 16 years with him without the

consent and permission of her parents at a lonely place far away from

their residence. He did not contact X's parents to inform her whereabouts

during this period. Since 'X' was below 16 years of age, her consent to

accompany A-1 or to have physical relations with him was of no

consequence. A-1's conviction under Sections 363/366/376 IPC on that

score cannot be faulted.

8. Regarding A-2, it is on record that he did not establish

physical relation with 'X'. He was not instrumental in taking 'X' away

from the lawful guardianship of her parents. No specific role was assigned

to him if he enticed or instigated 'X' to accompany A-1. As observed

above, A-1 and 'X' were already known to each other since long and were

in love; they wanted to marry. Merely because, A-2 was seemingly aware

of their plan and did not inform X's parents, it cannot be inferred that he

was involved in the crime. No threat whatsoever was ever extended by

him to the victim and for that reason, he got acquittal under Section 506

IPC. A-2 had not provided any facility or support to A-1 in the

accomplishment of crime. His conviction under Sections 363/366 IPC

thus can't be sustained. He deserves benefit of doubt and is acquitted.

9. A-1 has been sentenced to undergo RI for ten years. Nominal

Roll dated 31.07.2006 reveals that he has already undergone five years

and eleven days incarceration besides remission for three months and ten

days as on 29.07.2006. He is not involved in any other criminal case and

is not a previous convict. He was granted interim bail from 25.12.2005 to

22.01.2006 and there are no allegations of its misuse. He was granted

suspension of sentence vide order dated 08.08.2006. Nothing has come on

record to show if after release, he misused the liberty or indulged in any

such criminal activity. It is informed that A-1 aged around 36 years at

present; got married in 2009 and is a father of two minor daughters aged

around 7 years and 4 years. His father has already expired and his mother

is suffering from various ailments. Prayer has been made to modify the

Sentence Order. Learned Addl. Public Prosecutor has no objection to

consider the mitigating circumstances.

10. The victim, in this case, was aged around 14 ½ years on the

day of occurrence. She was taken away by A-1 without any inkling to her

parents and was kept away for about five days. During this period,

physical relations were established with her albeit with consent. The Court

can understand the trauma of X's parents who were not aware of her

whereabouts for so long and continued to search her here and there.

Considering the mitigating circumstances whereby A-1 suffered agony of

trial / appeal for about 15 years; the fact that he is not involved in any

other criminal case and is not a previous convict and the fact that 'X' was

a consenting party, Sentence Order is modified and the substantive

sentence of the appellant is reduced to Rigorous Imprisonment for seven

years under Section 376 IPC. Other terms and conditions of the Sentence

Order are left undisturbed.

11. A-2's appeal is allowed and he is acquitted of the charges.

Bail bond(s) and surety bond(s) of A-2 stand discharged.

12. While maintaining A-1's conviction, the Sentence Order is

modified to the extent that the substantive sentence under Section 376 IPC

would be seven years instead of ten years. He will surrender on 10th

February, 2016 in the Trial Court to serve out the remaining period of

sentence.

13. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for

information / compliance.

(S.P.GARG) JUDGE FEBRUARY 01, 2016 / tr