Delhi District Court
Fir No. 445/2013 : State vs Mustkim: Ps Aman Vihar on 5 February, 2018
FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 70/2014)
State Vs. Mustkim
FIR No. : 445/2013
U/s : 363/366 IPC
P.S. : Aman Vihar
State Vs. Mustkim
S/o Sh. Abdul Zabar
R/o D413, Gali No. 3,
Gauri Shankar Enclave,
Prem NagarIII, Delhi.
Date of institution of case 18.12.2013
Date of arguments : 08.01.2018
Date of pronouncement of judgment : 05.02.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 21.09.2013 complainant is father of the victim came to PS and lodged his complaint that his daughter P who is working in a shoe factory went for collecting her salary on 17.09.2013 at 6.30p.m. but has not returned since then. He was Page 1 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar searching for her daughter in the relatives and known persons but when he could not find her he has come to PS to lodge the complaint. FIR u/s 363 IPC was registered. On 13.10.2013, victim P along with her mother came to PS and the IO took the victim for medical examination. Statement of victim was recorded u/s 164 Cr.P.C who stated that on 17.09.2013, accused promised to marry her and as such she went with him to Ajmer and resided there for many days. On 13.10.2013, they came back to Delhi and accused left her at New Delhi Railway Station where wife of accused came and gave beatings to her and thereafter, she brought the victim to PS. In the chargesheet, offence u/s 366 IPC was added. Accused was arrested and after completion of investigation chargesheet was filed. Copies supplied.
2. Initially, Charges punishable u/s 363 and 366 IPC were framed against the accused on 20.01.2014. Later on, victim was examined on 19.03.2014 where she for the first time stated that accused made her drink some cold drink at railway station and she became unconscious and when she regained consciousness, she found herself at Ajmer with accused. Page 2 of 17
FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar There, accused did galat kaam with her i.e. he made physical relations with her. After this statement, charges were amended and charges punishable u/s 328 & 420 IPC and punishable u/s 6 of the POCSO Act and in the alternative punishable u/s 376(2)(n) IPC were added to the charges already framed against the accused who pleaded not guilty and claimed trial.
3. To bring home the guilt, the prosecution has examined as many as 14 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. in which he chose not to lead DE and took the plea that he has been falsely implicated in the case.
4. PW1 is the victim herself who after amendment of the charges was examined afresh as Ex.PW5. Her testimonies recorded on 19.03.2014 and 26.08.2014 are reproduced herein for the sake of brevity: "I reside at the above given address alongwith my family. I used to work in a shoe factory situated at prem NagarI, Delhi and accused Mustakim present in the court today (correctly identified) also used to work Page 3 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar in the same factory as Contractor(Thekedar).
On 17.09.13 accused Mustakim had asked me to come to Railway Station Nangloi to receive the wages for the work done by me in the said show factory and there at Railway Station Nangloi he made me to drink one cold drink perhaps Limca type and thereafter I became unconscious. When I regained consciousness I found myself in Ajmer and accused Mustakim was also with me. There at Ajmer accused had taken one room on rent in one hotel and he kept me locked in that room. He had also done "galat kaam"
with me in the said room. By 'galat kaam, I mean to say that he made physical relations with me i.e. the relations of type which are between the husband and wife."
"I am residing at the above mentioned address with my family and including my parents, one elder sister and two younger brothers. I am illiterate. Though I was admitted in a school in first class by my father, I only went there for about 1012 days.
In the month of September, 2013, I was working in shoe factory behind RC Plaza, near Nangloi. In that factory, accused Mustkin was Page 4 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar working as contractor (thekedar). Accused used to distribute our salary every month in the factory itself. On 17.09.2013, accused called me at railway station Nangloi on the pretext of collecting my salary from him as he had urgent work at native village and he was leaving Delhi by train. I accordingly went to the railway station Nangloi. At the railway station, accused offered me cold drink and after consuming it I became unconscious thereafter I regained my consciousness in the train at Ajmer at about 5 AM. I was taken to a room by accused and I was kept there under lock. I was kept in that room for about 27 days and during this period accused used to established physical relations with me without my consent. After 27 days, accused asked me to bring me back to Delhi. I was happy to come back to Delhi and on 13.10.2013, at about 5 AM we reached at New Delhi railway station. There accused left me alone on the pretext of going to bathroom. I do not know how wife of accused Mustkin reached at railway station. First she gave beatings to me and thereafter she called the police and handed over me to the police. The wife of accused had also snatched money in some of Rs. 6000/ from me. The wife of accused had also threatened me not to disclose about the incident to anyone otherwise I will be killed and she would get my sister lifted by gundas. Police brought me to PS Aman Vihar and from there I was taken to SGM hospital where I refuse to my internal gynecological examination vide my statement encircled at point A and it bears my signatures at point A and B. I was brought by the police earlier Page 5 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar also to the Court where my statement was recorded u/S 164 CrPC. Further examination of witness deferred for want of original proceedings u/S 164 CrPC."
"At this stage the witness has been shown her statement U/s 164 CrPc which is already exhibited as Ex.PW4/B from the judicial file on which she identifies her signatures at point A on each page. Vol. In my statement U/s 164 CrPc I had mentioned about the facts of my love affair with accused at the instance and under pressure of accused.
From Railway Station wife of accused brought me to the police post, Prem Nagar and produced me before the police. There my parents were called by the police and my recovery memo was prepared which is Ex.PW5/A which bears my signatures at point A. My statement was recorded by one lady in the PS and that statement is Ex.PW5/B which bears my signatures at point A. I was also produced before CWC, Awantika by the police where I was counseled and my custody was handed over to my parents.
Accused Mustakim is present in the court today (Correctly identified by the witness).
XXXXXX By learned counsels for accused Deferred at it is 1.30 pm."Page 6 of 17
FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar "I have gone to school for many days. I have probably studied till 1st or 2nd class. I do not remember, when stopped going to school. I started going to factory 2/3 months prior to September 2013. I worked in said factory for about 6 months. Accused was working in the said factory prior to my joining the same. Since, accused and I was working in the same factory we used to meet daily. As and when we were given our salary, we were not made to sign any voucher etc. We used to get salary on 15 th of every month at about 7.00/7.30p.m. Accused was assisted by one worker in distributing the salary. We were giving salary inside the factory premises. Generally, I used to work in the factory from 9.00a.m. to 9.00p.m. The factory was at a distance of 15/20 minutes walking distance from my house. I was the only person from my family, working in the factory. I used to return back all by myself at night and none from my family used to come to pick me up. I reached railway station at about 7.00 pm on 17.09.2013. On that day, I had not gone for work. I had gone to Railway Station to take my salary at the instance of the accused. Accused had informed me on my phone, from his phone, to come to railway station. I do not have any mobile phone now. I do not remember the mobile phone number of the accused or my own mobile phone now. When I reached railway station, the accused gave my salary in a sum of Rs.5,500/. Railway station is at a distance of more than half an hour from my house on foot. I did not tell any one at my house that accused had called me to railway station to give me my salary. It Page 7 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar is wrong to suggest that in September 2013 also, I was given my salary at factory on 15th September or that accused had not called me to the railway station to give me my salary on 17.9.13. We had perhaps stayed at Hotel in Ajmer. Vol. I was not permitted to go out by the accused and he had kept me locked in a room. I do not know, name of the hotels, where the accused had kept me. Accused used to bring food himself. Accused had brought one pair of clothes for me, from the market. I do not know, if Ajmer is in Delhi or outside Delhi. I had asked one passerby about the place, where I was and I was told by him that it was Purani Delhi. I do not know, what was the time, when I asked the said passerby. I do not know, what place, in Purani Delhi, I was at that time. I did not tell that person that accused was taking me away forcibly. I had taken my phone to Railway station, but the same was taken away by the accused and so, I could not tell my family members that accused was taking me away forcibly. Accused had made me drink something at Nangloi Railway Station and I was not in my senses. I could not call my family members on the way from railway station to Hotel as I was not in my senses.
(At this stage, Ms. Dhameshwari, Advocate, (previous counsel for the accused) has appeared and sought discharged as accused had engaged another counsel) I did not go to the Ajmer Dargah in Ajmer. I do not know. In which area of the city, the hotel, where we stayed, fell. It is wrong to suggest Page 8 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar that I had gone of my own free and accord with the accused. We left for Delhi about 27/28 days.
(At this stage, the witness is shown one photograph and after seeing the same, the witness denies that she had got the said photograph taken with the accused. The witness further states that photograph has been got made (morphed) by the accused. (banwai hui hai). She further stated that photograph is quite old and she was never so fat.) The photograph is marked as Mark X. It is wrong to suggest that I was having an affair with the accused or that I knew the accused since four years prior to the incident. It is wrong to suggest that I have willing gone with the accused to Ajmer for Delhi. Again it was about 8/9 pm. We reached Delhi at about 4/5 am. I do not know the name of the train. I did not tell any passenger in the train that accused had taken me forcibly and was bringing me back to Delhi as I was much perplexed. As soon as, we came to Delhi, accused left me on pretext of going to Bath room and his wife came there soon after, so I did not have time to tell the police at the police booth about the acts of the accused. It is correct that I had stated in my statement u/s 161 Cr.P.C. dated 13.10.2013 and in my statement u/s 164 Cr.P.C. i.e. Ex.PW4/B that we had stayed at Dargah at Ajmer for several days. Vol. I had said so, as wife of accused had threatened me. It is wrong to suggest that wife of the accused had not threatened me or that she had given me beatings as she had come to know Page 9 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar of my affair with the accused. It is wrong to suggest that since, I had gone with the accused voluntarily, I refused for my medical examination. It is wrong to suggest that I am deposing falsely in order to falsely implicate the accused. It is wrong to suggest that wife of the accused had not snatched away Rs.6,000/ from me. I was taken to PS Nangloi at about 8.00 am. I remained at PS till about 10/11 am. My parents were informed by the wife of the accused as well as police officials about my presence at PS. My parents reached PS within 10/15 minutes. I remained at PS for about 2/3 hours after my parents came. It is wrong to suggest that I falsely implicated the accused at the instance of my parents or I deposed falsely against him."
PW2 is the Teacher who produced the school record of victim pertaining to her date of birth and has stated that as per affidavit given by the mother of the child, the date of birth was recorded as 10.02.1999. In the cross examiantion, the witness admitted that no MCD birth certificate was submitted with the admission form.
PW3 is the NGO who couseled the victim on 14.10.2013. There is no relevant cross examination.
PW4 is the Ld. M.M. who recorded the statement u/s 164 Cr.P.C. Page 10 of 17
FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar There is no cross examination.
PW6 is the doctor who examined the victim vide MLC Ex.PW6/A. Victim refused her internal examination. There is no cross examination.
PW7 is the doctor who examined the accused vide MLC Ex.PW7/A. There is no cross examination.
PW8 is the W/Ct. who brought the victim from Nari Niketan for recording her statement u/s 164 Cr.P.C. There is no material cross examination.
PW9 is the duty officer who has proved on record the FIR Ex.PW9/B. There is no cross examination.
PW10 is the Ct. who joined investigation when accused was arrested vide arrest memo Ex.PW10/A. There is no material cross examination.
PW11 is the doctor who initially examined the victim and then referred her to SR Gynae. There is no cross examination.
PW12 is the mother of the victim who stated that her victim daughter was missing since 17.09.2013. She searched for her daughter but could not find her but later on she came to know that the accused who was working in Page 11 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar the same factory where victim was working was also missing. On the strength of this information, present complaint was lodged. On 13.10.2013, her daughter came back and she informed the police and her daughter was medically examined and was sent to Nirmal Chhaya. There was no cross examination.
PW13 is the father of the victim who has supported the case of prosecution and has deposed similarly on the lines of his wife PW12. There is no cross examination.
PW14 is the IO who arrested the accused and collected the documents pertaining to age of the victim and filed the chargesheet.
5. In his statement u/s 313 Cr.P.C. the accused has stated that he has been falsely implicated in this case at the instance of parents of the victim and no such incident ever took place.
6. It has been argued for the accused that victim has made contradictory statement in the court, in statement u/s 164 Cr.P.C and in the statement Page 12 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar given to the police. She never made any allegations about physical relations between her and the accused at any time before her statement recorded in the court. She even did not tell the doctor that she had any sexual relations with the accused and she had made considerable improvement in the statement given in the court and no offence u/s 6 of POCSO Act or u/s 376 IPC is made out. It is also argued that victim never stated to the police or to Ld. M.M. that accused gave her some stupefying drink because of which she lost her consciousness and here also, she has made considerable improvement for the first time in the court and no offence u/s 328 is made out. It is also argued that the prosecution has not proved the age of victim and she was more than 18 years old on the date of alleged kidnapping and as such offence u/s 363 IPC is also not proved. It is stated that victin being major went with the accused for her own and no offence is made out against accused.
On the other hand, Ld. APP has argued that the victim was a minor and her consent was immaterial and all the earlier statements given to the police and u/s 164 Cr.P.C. were given under the influence of the accused Page 13 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar and prosecution has proved all the offences charged for beyond reasonable doubt and accused should be convicted.
7. I have heard the submission and perused the record.
8. As far as the date of birth of the victim is concerned, in her school, her date of birth is recorded as 10.02.1999. The same was done way back when she was admitted in the school on 27.07.2007. There is no reason to presume that mother undermentioned age of the victim for future benefits. The mother of the victim appearing as PW12 had categorically stated that her daughter was aged about 1415 years at the time of incident. There is no cross examination to this witness. There is no suggestion to the parents of the victim or to the victim that she was major on the date of her leaving Delhi for Ajmer. In facts, when the accused has not even suggested that the victim was less than 18 years when she was taken to Ajmer by the accused, coupled with the statement of PW2 who produced the school record of the victim, the prosecution has proved that victim was less than 18 years of age Page 14 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar on 17.09.2013 when she was taken to Ajmer by the accused on the pretext of marriage.
9. Coming to offences charged for, victim in her statement Ex.PW5/B which was given to the police has specifically stated that accused did not commit any wrong act with her at Ajmer. In the statement u/s 164 Cr.P.C. she has stated that she went to Ajmer as the accused promised to marry her but did not say anything about physical relations established by the accused with her. Even in the MLC, in the alleged history, the victim herseld has stated that she left at her own will on 17.09.2013 and there was no history of sexual assault. She also refused her internal examination. It was only for the first time in the court, the victim stated that she was made to drink some stupefying cold drink and thereafter she became unconscious and accused did galat kaam with her at Ajmer. She made considerable improvement in the statement given in the court and leveled allegations of physical relations for the first time in the court. She also refused her internal medical examination thereby, taking away a valuable right of the accused as Page 15 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar far as medical evidence of establishing physical relations is concerned. Her testimony given in the court in respect of making her drink some stupefying object and that accused made physical relations with her at Ajmer cannot be believed. She did not make even any whisper about these facts in her statement given to doctor in hospital, Ld. M.M., to CWC or to the police and these facts stated in the court seems to be afterthought and cannot be believed. Accused as such is acquitted for the offence punishable u/s 328/366/420 IPC and 6 of POCSO Act or in the alternate u/s 376(2)(n) IPC.
As far as offence punishable u/s 363 IPC is concerned, the accused admittedly was a minor on the date of alleged kidnapping. Her consent as such is not relevant. Otherwise also, her statement recorded u/s 164 Cr.P.C. as well as recorded by the police Ex.PW5/B shows that accused took her with a promise to marry or on the pretext to marry her. It means that her consent if any was obtained on false promise of marriage which by no means can be said to be a voluntary consent which otherwise is immaterial in case of taking away a girl below 18 years of age. As a matter of fact, accused enticed the victim to go with her to Ajmer on the pretext of Page 16 of 17 FIR No. 445/2013 : State V/s Mustkim: PS Aman Vihar marriage when he was already married. It is not disputed by accused that he was not already married as his wife met victim at Railway Station at Delhi on 13.10.2013 and brought the victim to PS. It is also not disputed by accused that he and victim went to Ajmer. It was suggested in the cross examination to victim that "It is wrong to suggest that I had gone of my own free and accord with the accused." It means that the fact that victim was taken to Ajmer is undisputed. Prosecution as such has proved the commission of offence punishable u/s 363 IPC. The accused is as such is convicted for the offence u/s 363 IPC.
(Announced in the open ) (Amit Kumar)
(Court on 05.02.2018) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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