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2010 DIGILAW 412 (PNJ)

Rafiq v. State Of Haryana

2010-01-18

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. This judgment of mine shall dispose of two connected appeals no.1365-SB of 2002 and 1218-SB of 2002, having arisen out of the same judgment and as such are decided together. 2. Two minor girls namely Usha and Rehana were kidnapped by the accused-appellants Rafiq and Farid (herein referred as the accused) on 11.6.2000 from Rahul Colony, within the jurisdiction of Police Station, NIT, faridabad, raped and ultimately were recovered in their company by the fathers of the prosecutrixes on 13.6.2000 respectively. As such the accused were prosecuted for the offence under Sections 363/366/376 IPC. Accused- appellant masook Ali, who had concealed the prosecutrixes along with the accused in his house, knowing fully well that they were abducted and to be raped was also charged under Sections 368/216 IPC. Ultimately, on trial, the learned Additional sessions Judge, Faridabad, vide judgment dated 3/5.6.2002 convicted and sentenced all the three accused as under :- Masook Ali u/s 368 IPC : To undergo rigorous imprisonment for five years and to pay fine of rs.2000/-Rafiq and Farid u/s 363 IPC : To undergo rigorous imprisonment for five years and to pay fine of rs.2000/- each. U/s 366 IPC : To undergo rigorous imprisonment for seven years and to pay fine of Rs.3000/- each. U/s 376 IPC : To undergo rigorous imprisonment for ten years and to pay fine of rs.5000/- each. 3 The brief resume of facts is that after Usha went missing on 11.6.2000, Devi Singh, her father (complainant), while searching her met SI dharam Pal on 12.6.2000 and got recorded his statement that on 11.6.2000, at about 6/7 p. m. when he returned to his house, after doing his days job, he found Usha, his 12 years old daughter, a student of 5th class missing from the house. On enquiry from his wife Krishna, she disclosed that at about 4.00 p. m. Rehana had taken her to her house for bringing some photographs. The complainant went to Rehanas house where her parents were not there, but Rehanas elder sister namely Afsana could not disclose the whereabouts of Rehana. On enquiry from his wife Krishna, she disclosed that at about 4.00 p. m. Rehana had taken her to her house for bringing some photographs. The complainant went to Rehanas house where her parents were not there, but Rehanas elder sister namely Afsana could not disclose the whereabouts of Rehana. The complainant further disclosed that on further enquiry, he came to know that the accused Farid and Rafiq, who were living as a tenant in the house of Dharam singh were also missing from their houses, therefore, he suspected their implication in alluring the girls and taking them away for illegal purpose. During investigation, both Rehana and Usha were recovered from the company of the accused Farid and Rafiq at Plat Form No.13 of old Delhi Railway Station. Statement of both the prosecutrixes were recorded. In their statements they also disclosed that Masook Ali had given them shelter, knowing that they would be raped and prevented the accused from taking them to their houses, therefore, he was also arrayed as an accused. Both, Usha and Rehana, were got medico- legally examined. Statements of the witnesses were recorded. On completion of the investigation all the three accused were challaned. Finding a prima facie case against the accused, they were charged for the aforesaid offences, to which they pleaded not guilty and claimed trial. 4. In order to substantiate the charge, the prosecution examined Dr. Mrs. Veena Sharma (PW1), ASI Krishan Devi (PW2), HC Hari Chand (PW3), Muneer khan (PW4), Rehana prosecutrixes (PW5), Usha prosecutrixes (PW6), Devi Singh complainant (PW7), Dr. Sudhir Khurana (PW8), Ranjit Singh Head Master (PW9), C. Abdul Gaffar (PW10), Ashok Kumar Draftsman (PW11), SI Dharam Pal (PW12) and sister Irene Principal St. Josephs Convent School, Faridabad (PW13 ). Ultimately, the evidence of the prosecution was closed by order. 5. When examined under Sec.313 Cr. P. C. they pleaded their false implication in the case. No evidence was led in defence. The trial ended in conviction of all the three accused. Arguments heard. Record perused. 6. In order to prove the age of both the prosecutrixes, the prosecution examined Muneer Khan (PW4) father of the prosecutrix Rehana, Rehana herself (PW5), Usha (PW6) and her father Devi Singh complainant (PW7 ). From their statements it is duly established on the record that both the prosecutrixes were below 16 years of age at the time of their abduction. In order to prove the age of both the prosecutrixes, the prosecution examined Muneer Khan (PW4) father of the prosecutrix Rehana, Rehana herself (PW5), Usha (PW6) and her father Devi Singh complainant (PW7 ). From their statements it is duly established on the record that both the prosecutrixes were below 16 years of age at the time of their abduction. No rebuttal evidence led by the accused in order to prove if they were over 16 years of age and were in a position to give consent. In cases, where the age of the prosecutrixes is less than 16 years, consent of the prosecutrixes in such cases becomes immaterial. In order to prove the abduction, both Rehana and Usha appeared in the witness box. Rehana while appearing as PW5 has given the minute details of the occurrence and the manner in which they were abducted and raped. She disclosed that on 11.6.2000, at about 4.00 p. m. she had gone to the house of usha to accompany her to the market to get photographs. Usha accompanied her to the market. She further disclosed that in the way Usha asked Rehana that she wanted to first go to her maternal grand mothers house, upon which latter agreed. When they reached near Chimni Bai Dharamshala, accused Farid and Rafiq met them and asked as to where they were going. At this, Usha replied that they were going to her maternal grand mothers house. At this, both the accused made them to sit in a rickshaw on the pretext that they will drop them to the stated place, but, instead of taking them to the said house, they took them to the rose garden and started alluring them. The accused promised that they would take them to their parents in the village for meeting them. They will also purchase new clothes for them. She further disclosed that as it was already 10.00 p. m. , therefore, they requested both the accused to drop them at their houses as their parents were waiting for them. But, the accused insisted to accompany them to their village and accordingly they took them to gandhi Colony in a rickshaw and both of them were bolted from inside the room owned by the accused Masook Ali. But, the accused insisted to accompany them to their village and accordingly they took them to gandhi Colony in a rickshaw and both of them were bolted from inside the room owned by the accused Masook Ali. After leaving them there, Farid and Rafiq went back to the Rahul Colony and they came back at 12 in the mid night. Both of them as well as Farid and Rafiq were stayed inside the room at the instance of Masook ali and he told them that they could do whatever they liked and he would be ready to face consequences. Thereafter, Farid and Rafiq committed rape upon them against their wishes. Rafiq committed rape upon Rehana, whereas, Farid committed rape upon Usha. They also threatened not to raise hue and cry and in case they did so, they will be killed. On the next day i. e. on 12.6.2000 Rafiq and Farid were ready to take them to their village. However, Masook Ali was of the view that if they take them to their village, they could be caught by their parents. On 13.6.2000, at about 4.00 p. m. when the accused took them to the Railway station Old Delhi for taking them to their village, both Devi Singh and Muneer khan came and spotted them. This testimony of Rehana has been fully supported in all minute details by Usha. Similarly, Muneer Khan (PW4) and Devi Singh (PW7)have also narrated the occurrence which they came across. SI Dharam Pal (PW12)Investigating Officer of the case has proved the various documents. Sister irene, Principal, St. Josephs Convent School, NIT 5, Faridabad proved the birth certificate Ex. PL for proving that date of birth of Usha was 17.3.1989. 7. There is no denying a fact that the present case was registered on the basis of the complaint submitted by Devi Singh (PW7) and that the prosecutrixes Usha as well as Rehana both minors below 16 years of age, were recovered from the company of the accused Rafiq and Farid from the Railway station old Delhi. As regards the argument of the learned counsel for the accused that there is delay in lodging the FIR which has not been explained. As regards the argument of the learned counsel for the accused that there is delay in lodging the FIR which has not been explained. In this regard, it may be observed that the delay in lodging the FIR has been duly explained by Devi Singh (PW7) as he has categorically testified that he had gone in search of his daughter and for that purpose he had visited the Bus stands, railway stations, relatives apart from other places. As his minor daughter was kidnapped, therefore, the complainant in order to avoid defame to his reputation in the society must have tried to find out his daughter at his own level and when he failed in his efforts, had no option but to report the matter to the police on the next day. Muneer Khan (PW4) father of the prosecutrix Rehana, also supported the testimony of the complainant Devi Singh. Both these witnesses were put to lengthy cross examination but nothing could be elicited which may be sufficient to discredit their trustworthiness. Rehana (PW5) and Usha (PW6) have also supported the prosecution version in all minute details. Minor discrepancies in their statements are not of much importance as the same do not effect the substratum of the case. Their testimony further finds corroboration from the medical evidence as Dr. Mrs. Veena Sharma (PW1), who medico-legally examined both the prosecutrixes has categorically deposed that both the prosecutrixes were of 13 and 12 years of age. She further deposed that hymen of prosecutrixes were found torn and their vagina admitted two fingers with difficulty and tenderness was present. She further deposed that possibility of rape being committed upon them cannot be ruled out. On appreciation of the aforesaid evidence and going through the records of the case, it appears that the accused Farid and Rafiq, both abducted Usha and Rehana, both minor girls from the lawful guardianship of their parents with an intention to compel them to illicit intercourse. Both of them took the prosecutrixes to the house of masook Ali, who knowing fully well gave them shelter and bolted the room from outside and concealed them with an intention that they may commit rape upon them. He also did not guide them properly while releasing them from the confinement. However, he directed them not to go to their parents as they could be caught. He also did not guide them properly while releasing them from the confinement. However, he directed them not to go to their parents as they could be caught. As such, the offences for which they were charged stand fully proved against them. 8. As regards the quantum of sentence, learned counsel has prayed for taking a lenient view qua the sentence of fine. Keeping in view the nature and gravity of the crime, the sentence of imprisonment awarded against them commensurate the gravity of the offence, however, having appreciated the fact, that the accused hail from poor families, they may not be able to pay such huge amount of fine. As such, some indulgence is required to be made in the sentence of fine. Resultantly, both the appeals stand dismissed with the modification in the sentence of fine by reducing the same to Rs.5000/- each qua accused Farid and Rafiq for all the offences. However, sentence of fine qua accused Masook Ali is reduced to Rs.1000/-.