Delhi District Court
State vs . Mohd. Shamim S/O Mohd. Alim on 22 November, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST
TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 185/13
Unique Case ID No.02405R0257862013
State Vs. Mohd. Shamim s/o Mohd. Alim
R/o D-129, Ph-1, Sec. 3, JJ Colony
Papan Kalan, Dwarka, New Delhi
Date of Institution :25.10.2013.
FIR No.68/13 dated 10.02.2013.
U/s. 363/366/ 376 IPC.
P.S. Bindapur.
Date of reserving judgment/Order :22.11.2013.
Date of pronouncement :22.11.2013.
JUDGMENT
1. The above named accused has been charge sheeted by the Police for having committed the offences punishable under Section 363/366/376 IPC.
2. It is the case of the prosecution that the prosecutrix namely "S" (real name withheld in order to protect her identity) had gone missing from her house on 09.02.2013. Her father Sh. Laxmi Narayan visited the police station on 10.02.2013 and his statement was recorded by SI Kuldeep Singh in which he suspected that one Shamim who resides in their neighbourhood has enticed away his daughter. On the basis of his statement FIR was registered under Section 363 IPC. Search was made for the prosecutrix as well as the accused Shamim. WT messages were sent to all SSPs in India and all SHOs in Delhi. Missing information was also conveyed to NCRB, CBI, Doordarshan etc.
3. It is further case of prosecution that the prosecutrix herself SC no. 185/13 State Vs. Mohd. Shamim Page no. 1 of 5 appeared in the police station on 01.04.2013. ASI Kuldeep Singh made inquiries from her and recorded her statement wherein she stated that she had been in love with the accused Shamim for the last four years and she is eight months pregnant from the loin of the accused as they had been engaging in physical intercourse. She also stated that she had voluntarily eloped with the accused on 09.02.2013 and had solemnized Nikaah with him on 10.02.2013 in Nizamuddin Dargah. Thereafter accused Shamim also appeared in the police station. He was arrested. Sections 366/376 IPC were added to the FIR. Prosecutrix was taken to DDU hospital for medical examination where it was confirmed that she is eight months pregnant. Her statement under Section 164 Cr PC was got recorded and the she was lodged in Nari Niketan. She is stated to have delivered a baby child. The father of the prosecutrix handed over to the IO the birth certificate of the prosecutrix issued by MCD which showed her date of birth as 20.01.1995.
4. After the completion of investigation chargesheet was prepared and laid before the concerned Magistrate.
5. Upon committal of the case to the court of Sessions, charges under Section 363 IPC, under Section 366 IPC and under Section 376 IPC were framed against the accused on 01.11.2013. The accused pleaded not guilty to the said charges and accordingly trial was held.
6. The prosecutrix has been examined today as PW-1 and her father as PW-2. The relevant portion of the testimony of the prosecutrix is reproduced hereunder:-
"I know the accused present in court today. His name is Mohd. Shamim. He is my SC no. 185/13 State Vs. Mohd. Shamim Page no. 2 of 5 husband. I have got married to him about eight to nine months ago but I do not remember the exact date of marriage.
I know the accused for the last about three or four years. He resides in our neighbourhood. We were in love with each other. We used to meet each other very often. We also had physical relations with each other with my consent. In the end of year 2012, I realised that I had become pregnant and accordingly I informed the accused about the same. He told me that he is ready and willing to marry me. I was also willing to marry him but my parents were against the marriage and did not agree for my marriage with the accused. Accordingly, I and the accused decided to run away and solemnise marriage with each other.
I ran away from my home about eight to nine months ago and accompanied the accused to Nizamuddin where we solemnised Nikah in the Dargah on the next day. Since then I have been staying with the accused as his wife. We have been residing as husband and wife and have also consummated the marriage with my consent.
I have given birth to a male child on 8.5.2013.
The accused neither allured me nor ever threatened me or pressurised me to accompany him. I had gone with the accused voluntarily and on my own volition. I had physical relations with the accused willingly. The Nikah between us was also performed with my will and SC no. 185/13 State Vs. Mohd. Shamim Page no. 3 of 5 consent.
I am also known as Sunita. My parents had got prepared my birth certificate which has been seized by the police officials. In this birth certificate my name has been shown as Sunita. The certificate is Ex. PW1/A.
7. It is thus evident that the prosecutrix has not deposed anything incriminating against the accused. According to her she was in love with the accused and both were having intimate relations. They used to have physical relations with each other with the consent of the prosecutrix as a result of which she had become pregnant. They wanted to marry each other but the parents of the prosecutrix were not in favour of such marriage probably for the reason that the accused belongs to different community. It is for this reason they ran away and solemnized Nikah in Nizammudin Dargah on 10.02.2013.
8. The date of birth certificate of the prosecutrix Ex PW 1/A shows her date of birth as 20.01.1995 implying that she was more than 16 years old when she was having physical relations with the accused since the year 2011 and more than 18 years old when she eloped with the accused on 09.02.2013 and solemnized Nikah with him. Though the said certificate mentions the name of child as Sunita, same has been clarified by PW-2 by saying that the MCD authorities had wrongly mentioned the name of prosecutrix as Sunita in the said certificate and infact the certificate pertains to the prosecutrix only. The prosecutrix herself has mentioned her age as on today as 19 years.
9. Therefore, no iota of doubt can be entertain regarding the fact SC no. 185/13 State Vs. Mohd. Shamim Page no. 4 of 5 that the prosecutrix was more than 16 years old when she established physical relations with the accused and more than 18 years old when she eloped with the accused and solemnized Nikah with him. She has specifically deposed before this court that she had physical relations with the accused willingly and had eloped with him voluntarily. She has also deposed that Nikah between them was also performed with her will and consent.
10. It is useful to note here that the prosecutrix had given similar statement to the police during the course of investigation as well as to the Learned Magistrate. Thus she has been consistently stating that the accused has not committed any offence and she was consenting party to all that took place between the two.
11.The prosecutrix was the star witness for the prosecution. She has deposed absolutely contrary to the allegations levelled against the accused and the charges framed against him. She has not supported the case of the prosecution at all. She has given a clean chit to the accused.
12. In view of the aforesaid deposition of the prosecutrix, it was found futile to carry on the trial of the case any further. For the same reasons, the recording of the statement of the accused under Section 313 Cr PC was dispensed with.
13. Resultantly the accused is liable to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT) Court on 22.11.2013. Addl. Sessions Judge (Special Fast Track Court) Dwarka Courts, New Delhi.
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