Delhi District Court
State vs . on 15 February, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Mohd. Anwar
S/o Late Mohd. Ali
R/o Jhuggi No.E44,
New Seemapuri
Delhi.
2. Smt. Momina
W/o Late Mohd. Ali
R/o Jhuggi No.44, New Seemapuri.
Delhi.
(DISCHARGED)
FIR No. 198/08
P.S. : Seemapuri
U/s : 363/366/376/109/506/34 IPC
Sessions Case No. : 85/2008
Date of Institution of case : 23.09.2008
Date on which reserved for Judgment : 27.01.2011
Date of Judgment : 15.02.2011
JUDGMENT:
The present case stands registered on the statement of one Ms.Shagufta aged 14 years. She stated that she was residing Sessions Case No. 85/2008 Page1/21 2 with her parents. In her neighbourhood, Mohd. Anwar was residing who usually used to meet her at her jhuggi.
She further stated that on 17.6.2008, in the evening Anwar met her outside her jhuggi. He told her that he would marry her (Shagufta) as he was divorcing his wife. He also told her that he would keep her very well and would take her to nice places. On this she went with him. Accused took her to some place in Haryana. There he committed rape with her. On 20.6.2008, during noon time accused left her at New Seemapuri and she came to her jhuggi. Due to fear she did not tell anything to anybody and told her family that she had gone to the house of her khala. Shafuta further stated that during night time she told all the facts to her mother and her mother told all the facts to her father. Her parents caught the accused with help of the neighbours and accused was also given beatings by the public. Her father took Anwar to the police station. She came to the police station and made statement before the police in the presence of her parents.
On this statement of the complainant FIR was registered. Accused Anwar was arrested. Statement of prosecutrix was got recorded under section 164 Cr.PC.
On 02.07.2008, on the basis of secret informer, accused Smt. Momina was arrested.
Sessions Case No. 85/2008 Page2/21 3
After completion of investigation, challan was filed in the court for the offences punishable under sections 363/366/376/109/506/34 IPC.
Ld.M.M after supply of copies etc, committed the case to the court of Sessions.
Vide orders dated 29.09.2008, my Ld. Predecessor framed a charges for the offences punishable under section 363/366/376/506 IPC, to which the accused pleaded not guilty and claimed trial.
Vide the same orders dated 29.09.2008, accused Momina was discharged by my Ld.Predecessor as there were no allegation against her.
In support of its case, the prosecution examined 17 witnesses.
PW1 Shagfuta is the complainant in this case. She was put certain preliminary question as she was 14 years, and then she was examined on Oath.
Shagufta stated that on 17.6.2008, at about 7.00 p.m she had gone to bring water from street. On the way, accused Anwar came there armed with knife and forced her to accompany her on the point of knife. She stated that accused told her that he would kill her parents and also kidnap her sister. Out of fear, she accompanied him. Accused first took her to Gariba Gardens and Sessions Case No. 85/2008 Page3/21 4 then to Sahibabad. He kept her at Shahibabd railway station in the night and in the morning he took her to Haryana to the house of one of his relatives. She further stated that accused told his relatives that she (Shagufta) was his wife. In the night he came to her room and committed rape with her against her consent, four times.
Shagufta further stated that after three days her father came and saved her. Police recorded her statement Ex. PW 1/A. She was brought to Delhi and medically examined. Her mother handed over her clothes to the police, which she (Shagufta) was wearing at the time of the incident. She further stated that her statement was also recorded by a Magistrate in Karkardooma Courts. The accused was arrested by the police.
PW2 Dr.Bhawna Aggarwal stated that on 21.6.2008 she examined a girl named Shagufta 14 years who had given history of rape twice, by a boy on 18.06.2008. Doctor further stated that on examination she had found the hymen torn and she had given emergency contraceptive to the patient. She proved the MLC prepared by her as Ex. PW 2/A. She further stated that patients urine pregnancy test was negative.
PW3 Smt. Jahan Ara is the mother of the prosecutrix. She stated that on 17.6.2008, her daughter Shagufta Sessions Case No. 85/2008 Page4/21 5 had had gone to fetch water and did not turn up thereafter. They searched for her and then informed the police. On 20.6.2008 her daughter came back. On 18.6.2008 they came to know the whereabouts of Shagufta. Then her husband and son went and brought Shagufta to Delhi.
PW3 further stated that she asked her daughter as to where she had gone, on which Shagufta told her that accused had taken her at the point of knife to Haryana under the threat of killing her (Shagufta) father and brother and also kidnapping her elder sister. She further stated that Shagufta also apprised her that accused Anwar had committed rape with her four times. Her daughter had completed 13 years and she was running in her 14th year. She further stated that she had seen accused in Lucknow and the accused has married thrice. She further stated that matter was reported to the police and her daughter was medically examined.
PW3 further stated that her daughter was wearing salwar suit on the day when she went missing. The police had taken her daughter to GTB Hospital and the clothes worn by her daughter were seized by the police. She identified her signatures on the memo Ex.PW3/A. This witness identified the clothes of her daughter as Ex. P1.
PW4 HC Sunil Kumar stated that on 21.6.2008 SI Sessions Case No. 85/2008 Page5/21 6 Rakesh Kumar deposited with him five sealed parcels, one sealed with seal of RK and rest sealed with seal of GTB along with two sample seals. He made entry in Register No.19, at Srl.No.183 and Item No. 3273 and proved the copy of the same as Ex. PW 4/A. PW4 further stated that on 26.6.2008, he sent five sealed parcels and two sample seals through Ct.Nandu Pathak vide RC No. 213/21 for depositing the same at FSL Rohini. He made entry in this regard.
He further stated that on 27.03.2009 result was received from FSL which was handed over to the IO and he (PW
4) made entry in this regard on Ex. PW 4/A. PW4 also proved the copy of the RC as Ex. PW 4/B. PW5 Faeem is brother of the prosecutrix and he stated that on 17.07.2008 his sister Shagufta went missing. They made efforts to trace her but she could not be traced. His father lodged a missing report in this regard with the police. He further stated that on 20.07.2008 Shagufta came back in evening hours and on asking she told that she was taken away by Mohd. Anwar. He further stated that Shagufta also informed that Mohd. Anwar had done "Bura kaam" with her. PW5 further stated that they traced Mohd. Anwar, public persons gathered there and gave beatings to Mohd. Anwar and Mohd. Anwar had also hit his head against wall Sessions Case No. 85/2008 Page6/21 7 due to which he sustained injuries on his head. He further stated that his father took Mohd. Anwar to hospital and then to police.
PW6 Mohd.Saeed is the father of the prosecutrix. He stated that Baby Shagufta is his third female child and at the time of the incident she was aged 13. He further stated that on 17.06.2008, Shagufta went missing and he made search for her and thereafter he made complaint to the police on 19.06.2008. Later on he received phone call from Kallu brother of accused who informed him that Shagufta had been kidnapped by Anwar and had been kept somewhere in Haryana and then asked him not to make any complaint. Thereafter Kallu, brother of accused Anwar took them to Sona Karanki, Haryana where accused Anwar and his (PW6) daughter were found. When he was bringing his daughter and accused to Delhi, accused ran away from Shahadra Metro Station. He brought his daughter to police station Shahdara from where he was sent to PS Seemapuri. He lodged a complaint at Police Station Seemapuri.
PW6 further stated that in the same night he received call from accused Anwar and accused threatened to kill him but he told accused to meet him and have talks with him. He further stated that he called on the same number and came to know that it was number of STD Booth near Jain Mandir. He further stated that he Sessions Case No. 85/2008 Page7/21 8 went near Jain Mandir and accused was found there. Public persons gathered there and accused struck his head against wall and he was also given beatings by the public. He brought the accused to his house and informed the police. Thereafter he took the accused to the police station where accused was arrested vide memo Ex.PW 6/A. His daughter was got medically examined, she was then produced in the court and her custody was handed over to him.
PW6 further stated that he made inquires from his daughter who told him that accused has kidnapped her on the point of knife and thereafter accused committed rape on her four times. He further stated that he produced the slip Mark X regarding birth of his daughter which was seized by the police vide memo Ex.PW 6/B. He further stated that after this case he had been receiving threats from family of accused.
PW7 Dr.Amit Gupta stated that on 21.6.2008, patient Anwar was examined by Dr.Anshul Goel under his supervision vide MLC Ex.PW7/A and MLC Ex.PW 7/B. Dr.Amit Gupta identified the signatures and handwriting of Dr.Anshul and stated that Dr.Anshul had since left the hospital and his present whereabouts were not known.
PW8 Ms.Najish stated that her parental house was Sessions Case No. 85/2008 Page8/21 9 situated at Shahid Nagar, Fblock, Jaipal Chowk UP which is a tenanted house. She further stated that she could not tell the exact date but it was about 2 2 ½ back, when the police came to her and made inquiry about her uncle i.e the accused. She stated that accused had come to her house along with a girl aged about 1718 years and she made inquires from accused about the girl he had brought to her house. Accused informed her that he wanted to marry that girl who was residing in the same vicinity where her Chacha i.e accused was residing. PW8 asked the accused to take away the girl from there and also asked about telephone number of the parents of that girl but the accused did not give telephone number of the parents of the girl and due to fear and took that girl away in the morning. Thereafter some persons came to her (PW8) house and gave the telephone number and then she made telephone call to the parents of that girl. Father of that girl came to her house then accused and the girl were apprehended and given beatings and taken away from there. PW8 further stated that police had made inquires from her and she stated some of the facts to the police. During the stay of accused and that girl at her house, the girl slept with her (PW8).
This witness was crossexamined by Ld.Addl. PP and she admitted that the name of the girl brought by accused was Sessions Case No. 85/2008 Page9/21 10 Shagufta and she was aged 14 years. She also admitted it to be correct that she had informed about the accused and girl Shagufta to her (PW8) mother from mobile phone number 9811838710.
PW9 Constable Ramzan Khan stated that on 23.7.2008 he joined investigation of this case with IO W.ASI Pushpa and Mohd. Saeed. They went to village Karanki, Sohana Distt. Gurgaon, Haryana. Firstly they reached at Police Post of the area and then they reached at village Karanki where they met Naizma. She was interrogated by the IO and Nazima told that accused Anwar had come with a girl on 18.06.2008 aged about 14 15 years, stayed there for one night and slept in the same room together. He further stated that Nazima also told that due to suspicion her family member made phone call to the relatives of the girl.
PW10 Lady Constable Pooja stated that she had joined the investigation of this case on 21.6.2008 with SI Rajesh Kumar. She was handed over the custody of prosecutrix Shagufta. She (PW10) took her to GTB Hospital for medical examination and got her medically examined. After medical examination she handed over the pullanda to the IO which was seized vide memo Ex.PW10/A. She also stated that accused Anwar was got medically examined through Ct. Sandeep and the IO seized the the Sessions Case No. 85/2008 Page10/21 11 parcels handed over by Ct.Sandeep vide memo Ex.PW 10/B. This witness was crossexamined by Ld.Addl.PP wherein she admitted that IO had recorded statement of prosecutrix and got the FIR registered, she also admitted it to be correct that father of prosecutrix had handed over age proof of Shagufta and accused Anwar was arrested in her presence and his disclosure statement was also recorded in her persons. She also admitted it to be correct that accused Anwar was produced in the court from where he was sent to J.C and samples were deposited in the malakhana.
PW11 ASI Inder Pal stated that on 21.6.2008 he was working as Duty Officer. At about 12.30 p.m SI Rakesh Kumar handed over to him rukka on the basis of which he recorded FIR in this case and proved the copy thereof as Ex.PW11/A. He also proved his endorsement Ex.PW11/B on the rukka.
PW12 ASI Dharamveer Singh stated that on 18.06.2008 he was working as DD writer. One Mohd. Saeed came to the police station and lodged a missing report of his daughter Shagufta. He recorded the said report in DD Register vide DD entry No. 29A and proved the copy thereof as Ex.PW 12/A. PW13 Sh.Raj Kumar Tripathi Ld. A.C.M.M stated that on 26.6.2008, he recorded statement of prosecutrix Sessions Case No. 85/2008 Page11/21 12 Ms.Shagufta under section 164 Cr.P.C which is Ex.PW 13/A and gave his certificate Ex.PW13/B regarding the correctness of the same. He further stated that copy of the statement was given to the IO vide his application Ex.PW13/C. PW14 Constable Nandu Pathak stated that on 26.6.2008 on the directions of IO he collected parcels from MHC (M) Seemapuri vide RC No. 213/021 and deposited them at FSL Rohini in intact condition. He further stated that he handed over the receipt of the same to the MHC(M).
PW15 SI Rakesh Kumar is the IO of the case. He stated that on 21.06.08, one Mohd. Shahid, father of complainant Shagufta came to the PS along with the accused and also produced before him the MLC of the accused. Mohd. Shahid also told him that accused Mohd. Anwar had kidnapped his daughter Shagufta on 17.06.08 and that he (Mohd. Shahid) had already lodged a missing report vide DD No. 29A in this regard. He (Mohd. Shahid) also told that his daughter Shagufta had returned back on 20.06.08 and she had gone to her Khala (Mausi) house.
IO was further informed by Mohd.Shahid that Shagufta had disclosed all the facts to her mother regarding kidnapping by accused and accused having raped her. The neighbours also came to know about the incident and had beaten Sessions Case No. 85/2008 Page12/21 13 accused Mohd. Anwar. IO stated that he called Shagufta to the police station. Both Shagufta and accused Mohd. Anwar were sent for medical examination in GTB Hospital through Lady Ct. Puja and Ct. Sandeep. After receiving of the MLC, IO recorded the statement of Shagufta which is Ex.PW1/A, put his endorsement Ex.PW15/A, the rukka was handed over to the Duty Officer and case was registered vide FIR Ex.PW11/A. Lady Ct.Puja also handed over to him one sealed pullanda duly sealed with the hospital seal along with a sample seal and the same was seized by him vide seizure memo Ex.PW10/A. Ct.Sandeep also produced before him the three sealed parcels along with a sample seal of the hospital and the same was seized by him vide seizure memo Ex. PW10/B. Complainant's mother Jahan Ara had also come to the PS and she produced before him a cream colour salwar suit allegedly belonging to the complainant Shagufta and the same was worn by her at the time of commission of offence. The same was sealed vide seal of RK and seized vide seizure memo Ex.PW3/A. IO further stated that Complainant's father, Mohd. Shahid handed over to him a photocopy of discharge ticket Ex.P15/A from Lucknow showing the birth of female child as 16/11/93 and the same was seized vide seizure memo Ex.PW6/B. The accused was interrogated and arrested vide arrest memo and personal search Sessions Case No. 85/2008 Page13/21 14 memo Ex. PW6/A and PW15/B. His disclosure statement Ex.PW15/C was recorded.
IO further stated that both the accused and prosecutrix were produced in the court for necessary directions, the prosecutrix was handed over to her father on the orders of the court. He also got recorded the statements of prosecutrix U/s 164 Cr.P.C, sent the exhibits for forensic examination on 26/06/08, recorded the statements of the police officers in this regard. After that he was transferred and the case file was handed over the MHC (R). IO identified the case property as Ex. P1.
PW16 ASI Pushpa stated that on 20.07.2008 the investigation of this case was marked to her. Shagufta had told her that accused has taken her to Village Sona to the house of his niece (bhatiji). In the village Sona she met Najish, niece of accused and Najish told her (IO) that accused had brought Shagufta to her house. IO further stated that she recorded statement of witnesses, prepared the challan and filed the same in the court.
PW17 Dr.Ranjit Singh produced the summoned record comprising of Indoor Patient and Discharge Register of the year 19931994. As per record on 16.11.93 patient Jahan Ara was admitted in the hospital vide entry No. 2807 and she was discharged on 21.11.93 vide discharge ticket Ex.P15/A. He further Sessions Case No. 85/2008 Page14/21 15 stated that as per their records a female child was born to Jahan Ara on 16.11.93. He proved the copies of entires of Indoor Patient and Discharge Register as Ex. PW17/A and PW 17/B. Statement of accused was recorded under section 313 Cr.P.C wherein he denied allegation against him and stated that he has been falsely implicated in this case by the police on asking of the father of the prosecutrix as father of prosecutrix was demanding money and he could not give him money. Accused further stated that he had not taken Shagufta anywhere and that he was undergoing treatment at IHBAS Hosiptal, Shadhara.
Accused preferred to lead defence evidence. Dr.Suman appeared from IHBAS but Ld.Counsel for the accused stated that he did not want to examine her, so the DE was closed.
I have heard Sh. Mukul Kumar Addl.PP for the State and Sh. Jagdeep Sharma Amicus Curie. I have also gone through the case file.
It was submitted by Ld.Addl.PP that testimonies prosecutrix Shagufta, her father and brother prove that the accused had kidnapped the prosecutrix under threat. It was further the contention of the Ld.Addl.PP that the prosecution has proved that the prosecutrix was aged 13 years the accused committed rape with her against her consent. As per Ld.Addl.PP the accused was Sessions Case No. 85/2008 Page15/21 16 liable to the convicted.
On the other hand, it was contended by Ld.Counsel for the accused that accused has been falsely implicated in this case. It was further the contention of the Ld.Counsel that the prosecutrix had gone with the accused of her own free will and that she used to meet the accused prior to the incident and that she was in love with the accused. It was further contended by Ld.Counsel that the prosecutrix was more than 16 years of age and as per Ld.Counsel the accused was liable to the acquitted.
I have considered the rival contentions.
The two things that are to be considered in a case under section 366/376 IPC are the age and consent of the girl.
First of all we take the consent part of the prosecutrix in this case. PW1 Shagufta when appeared in the witness box stated that accused forced her to accompany him on the point of knife. The accused first took her to Gariba Garden, then to Sahibabad and kept her at Sahibabad Railway Station in the night and in the morning he took her to Haryana to the house of his relative.
Prosecutrix admitted that they had stayed at the Sahibabad Railway Station. She also admitted that they had travelled in the train. She also admitted that they stayed at the Sessions Case No. 85/2008 Page16/21 17 house of the relative of the accused at Haryana.
Prosecutrix stated that accused had abducted her at the point of knife. When crossexamined she stated that she did not see any knife while they were in train. She further stated that did not could say in which hand the accused was holding the knife.
It is quite surprising that the prosecutrix traveled with the accused in the public places, stayed at the railway station but no where did the prosecutrix get an opportunity to tell anybody that the accused has abducted her. She had admitted that there were shops and public persons were going and coming on the way. She could have told anybody that she was being taken by the accused forcibly. But she did not do so.
It is quite well known fact that police persons are present at the railway station but prosecutrix stated that she did not see any police person at the railway station. Prosecutrix traveled in the train for a long distance, many persons were present in the train, but the prosecutrix did not anyone that the accused was taking her forcibly.
Prosecutrix further stated that they had stayed at the house of the relative of the accused, the food was served to them by niece (bhatiji) of the accused, she further stated that she met 45 villagers, but the prosecutrix did not tell anybody that she had been Sessions Case No. 85/2008 Page17/21 18 brought by the accused forcibly nor tried to flee from the company of the accused. She stated that she met 45 villagers there but she did not tell anybody anything nor complaint against the accused.
It was held in a case 2002 (1) C.C.Cases (HC) 127 in case titled Ramu Vs. State of Haryana, prosecutrix did not raise hue or cry when taken in rickshaw, neither when taken from Bus stand, Delhi, it was held that it was not case of abduction and kidnapping, rather it was a case of prosecutrix's eloping with the accused.
It is also important to be noted that the prosecutrix in her statement before the court, has stated that she went along with the accused under threat. On the other hand, in her statement Ex.PW 1/A, on the basis of which the FIR was registered, the prosecutrix did not disclose that she went along with the accused under threat. Rather her statement Ex.PW1/A shows that she went along with the accused of her on will.
Hence, from the conduct of the prosecutrix that even when she had an opportunity to save herself and run away from the clutches of the accused, but she did not do so. It is hard to believe that prosecutrix did not get even a single opportunity to tell anybody that she had been kidnapped by the accused. If she wanted to save herself, she would have made all the efforts to do so. But Sessions Case No. 85/2008 Page18/21 19 she did not do so. Merely saying that she did not tell anybody anything because accused has told her not to do so, or that accused had threatened to kill her, is no excuse. Hence, it appears that the prosecutrix was a consenting party, hence it cannot be said that the accused had abducted the prosecutrix.
Now we come to the age part of the prosecutrix. Prosecutrix Shagufta when appeared in the witness box stated her age to be 14 years. During her crossexamination by the Ld.Counsel she stated that her elder brother was aged 20 years, her elder sister is aged 18 years, thereafter there was one other sister Shahana and she (prosecutrix) was younger to Shahana. She further stated that she was residing in Delhi since last 2022 years approximately but she did not know how old she was when she came to Delhi.
PW3 Smt. Jahan Ara who is mother of the prosecutrix also stated that her daughter Shagufta was aged 14 years. This witness when appeared in the witness box on 21.04.2009 stated her (PW3) age to be 37 years. She further stated that her eldest child i.e son was born in the year 1985, her second child Shehnaz was born in the year 1987. As per her statement, her third daughter was aged more 18 years. This means that at the time PW3 Jahan Aara was married, when she was aged 11or 12 years Sessions Case No. 85/2008 Page19/21 20 and her first child was born when she was aged 1213 years which appears improbable.
Prosecution has examined PW17 Dr.Ranjit Singh who produced the Indoor Patient and Discharge Register pertaining to birth of a daughter to PW3 Jahan Ara. But it not corelated as to which child the said record pertains. It is only mentioned that a female child was born on 21.11.93 to Jahan Ara. Who was that female child is not clear.
PW3 has mentioned in her statement that her daughter Shagufta was studying was studying in school. No certificate from the school has been produced to prove the age of the prosecutrix which could have been the best evidence to determine the age of the prosecutrix.
It is also important to note that for determination of the age of the prosecutrix, the IO did not got the conducted the ossification test of the prosecutrix.
No reasons has been assigned as to why the school certificate was not collected by the IO or as to why the ossification test of the prosecutrix was not conducted.
It is also important to be noted that prosecutrix PW1 Shagufta has stated in her crossexamination that she was residing in Delhi for 2022 years. This means that the prosecutrix is at least Sessions Case No. 85/2008 Page20/21 21 aged about 20 to 22 years.
In view of the above discussion, I am of the considered opinion at the time of the alleged incident, the prosecutrix was major in age and she went along with the accused of her own and she was a consenting party to the sexual intercourse.
Therefore, the prosecution has failed to prove the charges against the accused. Hence, the accused is acquitted of the charges against him.
Accused is in J.C. He be released forthwith if not wanted in any other case.
File be consigned to Record Room.
Announced in open court on this 15.02.2011 (Surinder Kumar Sharma) ASJ/North East Karkardooma Courts, Delhi Sessions Case No. 85/2008 Page21/21