Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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RESERVED ON : 29 MARCH, 2016
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DECIDED ON : 05 APRIL, 2016
+ CRL.A. 1006/2014
ZAHEER ALAM ..... Appellant
Through : Mr.S.B.Dandapani, Advocate.
VERSUS
STATE (GNCT OF DELHI) ..... Respondent
Through : Mr.Vinod Diwakar, APP.
AND
+ CRL.A. 1400/2014
RESHMA ..... Appellant
Through : Mr.Neeraj Bhardwaj, Advocate.
VERSUS
STATE ..... Respondent
Through : Mr.Vinod Diwakar, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Aggrieved by a judgment dated 30.04.2014 of learned Addl.
Sessions Judge in Sessions Case No.153/2011 arising out of FIR
Crl.A.1006/2014 & connected appeal. Page 1 of 8
No.219/2011 PS Gandhi Nagar by which the appellants – Zaheer Alam
(A-1) and his wife Reshma (A-2) were convicted for committing offences
punishable under Sections 363/365/376/34 IPC and 363/365/34 IPC &
109 IPC read with Section 376 IPC respectively, they have preferred the
instant appeals. By an order dated 09.05.2014, they were awarded various
prison terms with fine.
2. Allegations against the appellants as reflected in the charge-
sheet were that on 18.08.2011 at about 07.00 A.M. at Main Road Gandhi
Nagar, they, in furtherance of common intention kidnapped the
prosecutrix ‘X’ (changed name), a minor aged around 13 years out of the
lawful guardianship of her parents with an intention to secretly and
wrongfully confine her. After the kidnapping, she was taken to Ludhiana
(Punjab) where she was sexually assaulted by A-1 during the period from
18.08.2011 to 01.09.2011.
3. On 18.08.2011, ‘X’ as usual had gone to school at about
07.00 a.m.; she did not return after school hours and went missing on her
way to school. Efforts were made to search her at various places but she
could not be traced. Finally, victim’s parents approached the police. The
Investigating Officer after recording statement of the victim’s father -
Krishan Lal (Ex.PW-2/A) lodged First Information Report. The victim’s
Crl.A.1006/2014 & connected appeal. Page 2 of 8
parents and the police officials went here and there for her recovery but to
no effect. On 01.09.2011, the Investigating Officer received an
information about X’s presence along with the appellants at Ludhiana
(Punjab). She was recovered from House No.662, Basti Jodhwal at A-1’s
instance. She was brought to Delhi and medically examined; she recorded
her 164 Cr.P.C. statement. The accused persons were arrested. 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 investigation, a charge-sheet was
filed against both the appellants in the Court. The prosecution examined
fifteen witnesses to substantiate the charge. In 313 Cr.P.C. statements, the
appellants denied their involvement in the crime and pleaded false
implication. The trial resulted in their conviction as aforesaid. Being
aggrieved and dissatisfied, they have filed the present appeals.
4. During arguments, learned counsel for A-1, on instructions,
stated at Bar that A-1 has opted to not challenge the findings of the Trial
Court on conviction. He prayed to modify the substantive sentence as he
(A-1) has remained in custody for sufficient duration; he is to take care of
his four minor children in the absence of his wife who happens to be in
custody along with him in this case.
Crl.A.1006/2014 & connected appeal. Page 3 of 8
5. A-2’s counsel, on instructions, informed that A-2 has also
given up challenge to the findings on conviction under Sections
363/365/34 IPC. He, however, urged that the prosecution was unable to
establish beyond reasonable doubt if A-2 had ever abeted her husband (A-
1) to sexually assault the victim. Attention was drawn to X’s statement
wherein she had admitted that at the time of rape, A-2 was not present and
had arrived there later on. Learned Addl. Public Prosecutor urged that A-
2 was privy to the kidnapping and was aware of commission of rape with
the prosecutrix.
6. Since A-1 and A -2 have voluntarily opted to give up
challenge to the findings on conviction under Sections 363/365/34 IPC
and overwhelming evidence too is on record to establish their complicity,
their conviction for the aforesaid offences is affirmed. Similarly, in the
absence of challenge, A-1’s conviction under Section 376 IPC is affirmed.
The prosecutrix has categorically deposed that she was repeatedly
ravished by A-1 in the rented accommodation at Ludhiana (Punjab) where
she was confined after kidnapping. Since ‘X’ was below 16 years of age;
her date of birth being 24.09.1998 as per school record (Ex.PW-1/C), not
under challenge, even her consent (if any) for physical relations with A-1
was of no consequence.
Crl.A.1006/2014 & connected appeal. Page 4 of 8
7. A-2’s submissions denying her complicity in the abetment of
rape by her husband are devoid of force. A-2 had played an active role in
X’s kidnapping from the very inception and it was in her knowledge that
both A-1 and ‘X’ were present in the rented accommodation at Ludhiana
(Punjab). She had stayed there for sufficient period with them after the
incident. At no stage, she bothered to get the prosecutrix released from A-
1’s captivity. She did not inform X’s parents about her whereabouts when
they were frantically searching their lost child. ‘X’ and A-1 lived together
for sufficient duration at Ludhiana far away from Delhi. She did not
initiate any action when her husband did not visit her at Delhi for so long.
PW-9 (Balbir Chand), landlord, deposed that on 13/14.08.2011, A-1 had
come along with a ‘local’ man for taking the room on rent for the family.
The rent was settled as ` 1,100/- per month and ` 100 were paid as advance
on the assurance to occupy it on 18.08.2011. A-1 along with a ‘girl’ to
whom he described his sister-in-law arrived on 18.08.2011 at 04.00 p.m.
in the said room pretending that his wife was in PGI to take care of her
ailing brother admitted there. They both started living in the rented room.
On 20.08.2011 at about 06.30 a.m. A-2 came in the room and stayed there
for about two hours. She went away at around 8 O’clock telling that she
and her brother would go to Delhi from PGI and she would get him
Crl.A.1006/2014 & connected appeal. Page 5 of 8
admitted there. On 25/26.08.2011, A-2 again came carrying a trunk, a
folding bed and some other household goods at about 04.00 a.m. and
started living in the rented accommodation. He further deposed that A-2
did not allow the said ‘girl’ to talk to anyone; she was also not allowed to
go outside. The appellants took the said girl namely ‘X’ with them at
about 7 O’ clock after packing household goods informing that he would
come back after leaving her to an acquaintance. This independent witness
having no familiarity with the complainant at Delhi had no oblique motive
to make a false statement. Apparently, ‘X’ was kept in the rented
accommodation till her recovery by the police. The appellants did not
bother to inform X’s parents about her whereabouts. They had no
occasion or reason to take the prosecutrix, a minor with them at a far away
place without the permission or consent of her parents with whom they
were well acquainted before the occurrence. During this period, not only
the prosecutrix was kept away from her parents, she was sexually
assaulted by A-1 already married to A-2. During that period, A-2 also
stayed in the said accommodation. She misled the landlord about X’s
identity. At no stage, she compelled A-1 to allow the prosecutrix to go to
her parents. Needless to say, she was aware as to what was going on
between the prosecutrix and A-1 during that period. She had played an
Crl.A.1006/2014 & connected appeal. Page 6 of 8
active role in the commission of the offence by A-1 at all stages. She had
facilitated the commission of crime knowing fully well that ‘X’ was
wrongfully confined by A-1 there. A person who aids and abets the actual
perpetration of the crime at the very time when it is committed, comes
under Section 109 IPC. It is not necessary that the accused must be
present at the time of offence. The law does not require that the
instigation should be in a particular form or that it should only in words
and may not be by conduct. From the circumstances referred, it can be
deciphered with certainty that A-2 was privy to the whole episode and
never offered any opposition to it. A-2’s conviction under Sections
109/376 IPC based upon fair appraisal of the evidence cannot be faulted
and is affirmed.
8. Taking into consideration the gravity of the offence whereby
a child aged around thirteen years was subjected to sexual assault
repeatedly by A-1, a married person, aged around forty years, it is not a
case for reduction of sentence awarded by the Trial Court. Both the
appellants were hand in glove with each other. The Court can well
understand the trauma of the victim’s parents who were not aware as to
where their little child was for so long. Sentence Order is based upon fair
reasoning and calls for no intervention. The appeals lack merits and are
Crl.A.1006/2014 & connected appeal. Page 7 of 8
dismissed. Trial Court record be sent back forthwith with the copy of the
order. Intimation be sent to the Superintendent Jail.
(S.P.GARG)
JUDGE
APRIL 05, 2016 /
tr
Crl.A.1006/2014 & connected appeal. Page 8 of 8