Delhi District Court
State vs 1. Sahrul @ Salman S/O. Sh. Noor Hassan on 6 April, 2017
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 81/2012
Sessions Case No. 17/2016
Assigned to Sessions. 05.03.2016
Arguments heard on 03.04.2017
Date of Judgment 06.04.2017
FIR No. 132/2011
State Vs 1. Sahrul @ Salman S/o. Sh. Noor Hassan
R/o. Village Nannu Patti, P.S. Supaul,
Distt. Supaul, Bihar. (P.O.)
2. Noor Hassan S/o. Sh. Mohd. Rehman
R/o. Village Nannu Patti, P.S. Supaul,
Distt. Supaul, Bihar.
Police Station Nabi Karim
Under Section 342/366/420/174A/34 IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Nabi Karim had filed the challan vide FIR No. 132/2011 dated 05.08.2011 u/s 363 IPC for the prosecution of accused Sahrul @ Salman and Noor Hasan (both P.O.) in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is a Special Fast Track Court for trial of the cases pertaining to crime against women, hence this case was sent by Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi to this court for trial. Keeping in view of section 228 (A) IPC and directions of Supreme Court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
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2. The brief facts of the case are that on 05.082011, complainant Smt. Jagwati has made a complaint Ex.PW1/A in PS Nabi Karim stating therein that she has seven children and prosecutrix was her third child who was 17 years old was present at home on 28.06.2011. Prosecutrix informed her that she was going to take bath. She said to her to go and take bath. It is further alleged in the complaint that after some time she called the prosecutrix from the bathroom if she had finished the bath, but she did not respond and when she went to bathroom, she was not found there. Thereafter, she searched for her but she could not be located. It is further alleged in the complaint that due to her honour and dignity, she had not disclosed to anybody and they kept on searching for prosecutrix at different placed including the houses of their relatives and after some days, they came to know that prosecutrix was in Bihar. It is further alleged in the complaint that on that day prosecutrix was wearing Mehndi colour salwar & Chunni, Gajari colour suit and black colour chappal. It is further alleged in the complaint that her colour was whitish, face round, body medium having light chicken pox marks on her face, she was enticed away by Sahrul @ Salman S/o. Sh. Noor Hasan,Village Nannupatti, P.S. Supol, Distt. Supol, Bihar and she wants legal action against him.
3. On the basis of complaint Ex.PW1/A, FIR No.132/2011 u/s 363 IPC was registered against accused Sahrul @ Salman (since P.O.). During the course of investigation, police could not arrested accused persons namely Sahrul @ Salman and Noor Hasan and they were declared P.O. by Ld. MM vide order dated 02.02.2012. However, accused Noor Hasan was arrested on 18.09.2015 after his surrender before the concerned court and he was chargesheeted vide supplementary chargesheet.
CHARGE:
4. On the basis of material available on record, this court vide order dated 05.05.2016 framed a charge against accused Noor Hasan for the offence punishable u/s 342/366/34 and 420 IPC to which accused did not plead guilty and claimed trial. An additional charge u/s 174(A) IPC was framed against the accused Noor Hasan on SC No.17/2016 State v. Sahrul @ Salman & Others 2/23 dated 29.03.2017 to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution has examined 17 witnesses namely PW1 Smt. Jagwati, PW2 Sh. Nand Kishor, PW3 Sh. Sanjay, PW4 Prosecutrix 'B', PW5 Dr. Monalisa, PW6 Dr. Uma K., PW7 HC Phool Kumar, PW8 Ct. Vijay Dangi, PW9 W/Ct. Jagjeet Kaur, PW10 HC Ramkesh, PW11 ASI Ishwar Singh, PW12 Dr. Ricky, PW13 Sh. Purshotam Pathak, PW14 Ct. N. Laxman, PW15 HC Johri Lal, PW16 SI Ashwani Kumar and PW17 SI Suresh Pal.
6. PW1 Smt. Jagwati is a material witness being mother of prosecutrix and complainant. She stated that prosecutrix was her third child and she was 17 years old at the time of incident. PW1 further deposed that on 28.06.2011 she was present at her House and was lying on the bed as she was not feeling well. Prosecutrix informed her that she was going to take bath. PW1 further deposed that after some time she called the prosecutrix from the bathroom but she did not respond and when she went to bathroom, prosecutrix was not found there. Thereafter, she searched for her but she could not be located. PW1 further deposed that after about one and half week she came to know from Kalam, brother of accused that accused had taken her daughter to Bihar. PW1 on 05.08.2011 lodged the missing report of her daughter/prosecutrix when they failed to locate her. PW1 has proved missing report vide Ex.PW1/A which bears her right thumb impression at point A.
7. PW1 further deposed that during the course of investigation, she along with her brotherinlaw (Behnoi) Nand Kishor and her son Bheem @ Mauji had gone to the house of accused in Bihar. When they reached there prosecutrix was making Chapati on Chulha. Accused Noor Hasan, present in the court (correctly identified), met them but he did not allow her daughter to accompany them and they returned to Delhi. PW1 further deposed that after twofour days of their return from Bihar the said Nand Kishor and her nephew Sanjay along with the police officials had gone to SC No.17/2016 State v. Sahrul @ Salman & Others 3/23 the house of accused in Bihar and they had brought her daughter to Delhi and after coming to Delhi her daughter/prosecutrix was sent to Nari Niketan by the police.
8. In her cross examination by Sh. Ashish Rai, ld. counsel for accused Noor Hasan, this witness deposed that her daughter had taken away Rs. One lac and some wearing ornaments with her and the said amount was of her brother Dhan Singh, who had got retirement from Railway and he had kept Rs. Two lacs comprising notes of 500 denomination with her including the said Rs. One lac in her Almirah. This witness deposed that she had not reported the matter to the police immediately because of their honour and dignity. This witness had denied to the suggestion that prosecutrix did not take with her Rs. One lac and for that reason she did not lodge the missing report of prosecutrix immediately after the incident. This witness had denied to the suggestion that her daughter herself did not talk to her as she did not want to accompany her or that her daughter had accompanied the accused with her free will or that she had not carried any money and ornaments with her.
9. PW2 Sh. Nand Kishor is the maternal uncle of prosecutrix. This witness deposed that prosecutrix is daughter of his sisterinlaw. After 45 days of the incident, Smt. Jagwati, mother of the prosecutrix, had called him at her house and told him that prosecutrix had gone missing. Thereafter, they made inquiry from Sahil, friend of the accused, who was residing in the house of prosecutrix as a tenant and came to know that he had taken the prosecutrix with him. This witness along with his other relatives met Kalam, brother of the accused at Wasim Vihar, Chauhan Patti, Delhi and he telephoned at his native place in Bihar and confirmed them that prosecutrix was with accused Salman. This witness has proved the affidavit given by Kalam, brother of accused vide Mark A and later on he had handed over the said affidavit to the police and police had seized the same vide seizure memo Ex.PW2/A.
10. PW2 further deposed that before registration of the FIR he along with Bheem Singh, brother of prosecutrix and the Sahil, friend of accused had gone to the house of SC No.17/2016 State v. Sahrul @ Salman & Others 4/23 accused in Bihar. Prosecutrix was present there and when they asked the accused Noor Hasan to let the prosecutrix accompanied them, he did not allow her to come with them, rather assured them that he would bring her back to Delhi. Thereafter, they again went to the house of accused Salman in Bihar, but accused Noor Hasan and his family did not let the prosecutrix accompanied them and they returned back to Delhi and thereafter, mother of the prosecutrix lodged the report.
11. PW2 further deposed that after 1015 days he alongwith threefour police officials and Sanjay, nephew of Smt. Jagwati again went to the house of accused Salman in Bihar and brought the prosecutrix back to Delhi. This witness has proved recovery memo of prosecutrix vide Ex.PW2/A.
12. On being cross examined by Sh. Ashish Rai, Ld. Counsel for accused, this witness deposed that Jagwati had made complaint to the police after two months of the incident. This witness had denied to the suggestion that he did not visit the house of the accused Sahrul @ Salman in Bihar or that he is deposing falsely.
13. PW3 Sh. Sanjay. This witness deposed that on 21.08.2011, he was residing with her Bua, Smt. Jagwati at H.No.BB103, Ashoka Basti, Nabi Karim, Delhi and her Bua asked him to go to PS Supol, Bihar to bring back her cousin/prosecutrix as her husband was ill. This witness has proved recovery memo of the prosecutrix vide Ex.PW2/A. PW3 further deposed that her Bua had told her that the prosecutrix was enticed away by accused Sahrul @ Salman and they along with the police officials of Delhi Police brought the prosecutrix to Delhi.
14. PW4 Prosecutrix 'B' is a material witness being victim. She stated that she was born and brought up in Delhi and living in Nabi Karim alongwith her family since her childhood and she got married 34 years ago. She further stated that accused Salman (since P.O.) had been residing opposite to her house and one day, while she had gone on the terrace of her house, accused also came up there after crossing over the SC No.17/2016 State v. Sahrul @ Salman & Others 5/23 Chhajja and had given his mobile number to her. She further stated that she objected to it stating that she was not knowing him. Then, accused told her that he loves her but she refused. Thereafter, accused started harassing her and started coming to her terrace. Thereafter, gradually they started talking to each other and after some time she propose him to marry her.
15. She further stated that accused told her that he was not having money and when she told him that her maternal uncle kept Rs.1 lac in her house, he told her to come up with that amount. Thereafter, she went to meet him near traffic signal Pahar Ganj carrying one lac rupees. It happened in the month of June' 2011. She further stated that when she reached Paharj Ganj at Red Light signal, accused Shahrookh @ Salman met her there and took her to the house of his friend in Panipat by bus and they stayed there overnight. She further stated that next morning, father of accused Noor Hasan present in the court (correctly identified) came there and he asked her about one lacs rupees. She further stated that she handed over the aforesaid amount to him. From there, accused Noor Hasan and his son Shahrookh @ Salman had taken her to their native place at Nanupatti, Bihar by train. She further stated that after the said marriage, they all stayed at the house of bua of accused and during that stay, accused established physical relation with her despite her objection with regard to manner in which marriage was performed and they stayed there for about 34 days after the said marriage. However, accused Noor Hasan had returned to his house next day after their marriage. She further stated that after 34 days accused Noor Hasan again came there and took her along with accused Salman to his village Nanupatti. The family of accused was comprised of his three sisters, two brothers and his mother and father (accused Noor Hasan). She was provided a separate room in the house. She further stated that accused Noor Hasan asked her not to talk with any person in the village.
16. PW4 further deposed that one day, when accused was sleeping, she picked up his mobile phone and made a call to her father in Delhi and she narrated him entire facts of the incident. On coming to know about the incident, her mausa and her SC No.17/2016 State v. Sahrul @ Salman & Others 6/23 younger brother reached in the village of accused to bring her back and accused Noor Hasan threatened her not to accompany her brother and mausa for Delhi. PW4 further deposed that after about 1015 days, her mausa Nand Kishore and her cousin brother Sanjay along with 45 police officials from Delhi came there and they brought her to Delhi despite resistance made by accused persons. This witness has proved her statement u/s 164 Cr.P.C. vide Ex.PW4/A and her MLC vide Ex.PW5/A. She further stated that before her aforesaid medical examination once she had refused to undergo her internal examination and her refusal was recorded vide MLC Ex.PW4/C.
17. This witness further deposed that during her stay at the house of accused at Nanupatti, Bihar, both the accused had taken her to a local court where she was given some piece of paper having written the name Praveen Jahan and she was asked to put her signatures in that name on blank sheet of paper which were converted into a written document. PW4 further deposed that she had got copy of the same from the house of accused and handed over it to police during the course of investigation vide Memo Ex.PW4/B bearing her signature at point A. This witness has proved copy of the said document vide marked 'A'. PW4 further deposed that after her medical examination, the doctor who conducted her examination had also obtained some exhibits, sealed the same and handed over to the police vide seizure memo Ex.4/D. PW4 further deposed that police got done her medical examination to ascertain her age vide MLC Ex.PW6/A.
18. On being cross examined by Sh. Ashish Rai, ld. counsel for accused, this witness deposed that before her marriage she had been residing with her family comprising of her parents, three brothers and four sisters. This witness deposed that her elder maternal uncle namely Dhan Singh had given her Rs. One lac in denomination of 500 rupees to keep the same in their house and she herself had kept the said money in iron almirah and her maternal uncle had told her that he would take back the money as and when he required as his house was under construction and the key of the almirah used to be kept in the Mandir of the house.
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19. This witness deposed that at the time of leaving the house, she was carrying three suits and she was also wearing jewellery at that time and when accused Sahrul @ Salman met her at Paharganj, Delhi, he was carrying a small bag. She further stated that accused Sahrul @ Salman had taken from her Rs.1000/ for shopping and accused Sahrul @ Salman had purchased bus journey ticket from Delhi to Panipat. This witness had denied to the suggestion that accused Noor Hasan had not met her at Panipat. This witness further deposed that the train ticket from Panipat to Supaul, Bihar was purchased by the accused Sahrul @ Salman and there was no quarrel between them during the journey.
20. This witness deposed that as far as she recollect she would have called her Mausaji on his mobile phone after 15 days after reaching the house of accused persons and she had told him that she was with the accused persons in Bihar and they were not letting her to go out of the house. She had also told him that accused Noor Hasan had taken Rs.one lac from her which she had brought from her house. This witness had denied to the suggestion that she was not carrying any such amount of money with her, nor she had given the same to accused Noor Hasan. This witness had denied to the suggestion that she had a conversation with her mother or that willingly she was not ready to come with her mother or that since nothing wrong had happened with her, therefore she did not tell anything to the police or that she has been tutored by her Mausaji to falsely implicate the accused persons in the present case or that she is deposing falsely.
21. PW5 Dr. Monalisa was examined before the Ld. MM. Dr. Ricky had proved the handwriting and signature of PW5 Dr. Monalisa mentioned in MLC Ex.PW5/A.
22. PW6 Dr. Uma K alongwith Dr. Aneeta, Dentist and Dr. Kakkar, Radiologist were members of the board who had conducted the age determination test of the patient vide report Ex.PW6/A and Ex.PW6/B and opined the age of patient as "aged is above 22 years and below 25 years".
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23. PW7 HC Phool Kumar, a formal witness being Duty Officer. This witness has proved rukka produced by SI Suresh Pal vide Ex.PW1/A. This witness has proved computerized copy of FIR vide Ex.PW7/A and subsequent endorsement Ex.PW7/B and certificate u/s 65 B of Indian Evidence Act qua the present FIR vide Ex.PW7/C.
24. PW8 Ct. Vijay Dangi, is the witness of arrest of accused Noor Hassan and he remained with the I.O. during the investigation.
25. PW9 W/Ct. Jagjeet Kaur has got medically examined the prosecutix from Lady Harding Medical College and Hospital vide Ex.PW4/C. Prosecutrix had refused for her internal medical examination vide endorsement at point X to X. IO had also accompanied her to Lady Harding Medical College and Hospital. This witness further deposed that from the hospital they took the prosecutrix to CWC but the office was closed by that time and prosecutrix was sent to Nirmal Chhaya near Tihar Jail, Delhi.
26. This witness further deposed that on 24.08.2011, they took the prosecutrix from Nirmal Chhaya and produced her before CWC, Mayur Vihar, Phase I, Delhi, where her statement was recorded and it was ordered for remedical examination of the prosecutrix. Again they produced the prosecutrix at Lady Harding Medical College and Hospital for her medical examination, where she was medically examined vide MLC already Ex.PW5/A. Medical examining doctor had given her the exhibits pertaining to the prosecutrix in sealed condition alongwith sample seal, which she handed over to the IO which he seized vide seizure memo already Ex.PW4/D.
27. PW10 HC Ramkesh deposed that on 20.08.2011, he along with Ct. Joginder had joined the investigation with the IO in the present case and they had gone to Supol, Bihar in search of accused Sahrul @ Salman and they reached there on 21.08.2011 SC No.17/2016 State v. Sahrul @ Salman & Others 9/23 and reached police station Supol where they made arrival entry and requested SHO to provide police staff to conduct a raid at the house of accused Sahrul @ Salman in village Nanupatti, Supol, Bihar. Accordingly, he provided police staff with one lady police official and they reached at the house of accused Sahrul @ Salman but they came to know that he ran away by jumping from his house and prosecutrix was found present there. This witness further deposed that prosecutrix was handed over to one Sanjay, maternal brother of the prosecutrix and one Nand Kishor, who was the Mausa of the prosecutrix. Thereafter, they along with prosecutrix returned back to Delhi.
28. PW11 ASI Ishwar Singh has arrested the accused Noor Hassan vide arrest memo vide Ex.PW8/A, his personal search was conducted vide personal search memo Ex.PW8/B and recorded his disclosure statement vide Ex.PW8/C. In pursuant to his disclosure statement, accused Noor Hassan led them to Village Supol, Bihar i.e. his native village and with the assistance of Supol police they reached at house no.79, Ninupatti, Supol, Bihar in search of accused Sahrul @ Salman (since P.O.), but he was not there. Thereafter, they returned back to Delhi and accused Noor Hassan was produced before the court and he filed supplementary charge sheet.
29. On being cross examined by Sh. Ashish Rai, ld. counsel for accused Noor Hassan, this witness had denied to the suggestion that accused Noor Hassan had not made his disclosure statement or that his signature had been obtained on blank papers or that aforesaid signed blank papers had been used for the purpose of disclosure statement.
30. PW12 Dr. Ricky has proved the MLC of prosecutrix vide Ex.PW5/A on behalf of Dr. Monalisha Naik. This witness deposed that as per MLC exhibits pertaining to the prosecutrix were also taken, preserved, sealed and handed over to the police.
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31. PW13 Sh. Purshotam Pathak, recorded the statement of the prosecutrix u/s 164 Cr.P.C. vide Ex.PW4/A.
32. PW14 Ct. N. Laxman on 26.03.2012, collected the exhibits from MHC(M), PS Nabi Karim, carried them to FSL Rohini vide Road Certificate Mark A in sealed condition along with sample seal and deposited the same at FSL Rohini. Copy of the acknowledgement with regard to receipt of the said exhibits is proved vide MarkB. He deposed that the said exhibits/case property were not tempered with in any manner till they remained in his custody.
33. PW15 HC Johri Lal is a formal witness being MHC(M). This witness has deposed that on 24.08.2011, ASI Ashwani Kumar had deposited the case property/exhibits of this case in the malkhana vide serial no. 1547 and on 26.03.2012 the said exhibits/case property were handed over to Ct. Laxman in sealed condition. He took the same to FSL Rohini vide Road Certificate no. 119/21 and deposited them there against the acknowledgement. This witness proved copy of the relevant entries, copy of RC and copy of acknowledgement vide Ex.PW15/A, Ex.PW15/B and Ex.PW15/C respectively (OSR). He further deposed that copy of relevant entries of register no.19 and copy of RC bears his signature at point A.
34. PW16 SI Ashwani Kumar is the I.O. of the present case. This witness depose that on 21.08.2011, he along with HC Ramkesh and Ct. Yogender went to PS Supol, Bihar and they took local police and proceeded in the village of accused Sahrul @ Salman at Nanupatti in his search but he fled away by jumping from stairs after seeing them. Prosecutrix was found present there and they brought the prosecutrix to local police station. This witness has proved seizure memo of the prosecutrix vide Ex.PW2/A which bears his signature at point C and the signature of prosecutrix at point A and signatures of said Sanjay and Nand Kishore at point B and D respectively.
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35. During the course of investigation, on 23.08.2011 prosecutrix had handed over him the photocopy of the affidavit MarkA which he seized vide seizure memo Ex.PW4/B.
36. During the course of investigation, on 23.08.2011, this witness got conducted medical examination of the prosecutrix vide MLC Ex.PW4/C in the presence of W/Ct. Jagjeet Kaur. Prosecutrix was produced before CWC on 24.08.2011 and her further medical examination was also got conducted vide MLC Ex.PW5/A. The medical examining doctor of the prosecutrix had also handed over the exhibits pertaining to the prosecutrix along with sample seal to him and he seized the same vide seizure memo Ex.PW4/D.
37. During the course of investigation, this witness had also got the statement of the prosecutrix under section 164 Cr.PC, vide Ex.PW4/A recorded vide his application already Ex.PW13/A and proved copy of the said statement was provided to him on his application already Ex.PW13/B.
38. During the course of investigation, on 24.08.2011, Nand Kishore had also handed over him the Ikrarnaama already MarkA which he took into possession vide seizure memo vide Ex.PW2/B. This witness on the directions of CWC the bony age examination of the prosecutrix was also got conducted and she turned out to be major.
39. This witness had also got the exhibits of this case sent to FSL Rohini through Ct.
Laxman and MHC(M). Since both the accused were not traceable he got them declared as proclaimed offender from the court concerned on 02.02.2012 and prepared charge sheet and submitted in the court.
40. On being cross examined by Sh. Ashish Rai, ld. counsel for accused, this witness deposed that he had recorded the supplementary statements of complainant Smt. Jagwati on 24.08.2011 and 25.08.2011. Complainant had not mentioned in her SC No.17/2016 State v. Sahrul @ Salman & Others 12/23 complaint Ex.PW1/A that prosecutrix had left the house with cash of Rs.1.5 lacs. This witness had denied to the suggestion that prosecutrix had given her statement in the favour of accused persons on 22.08.2011 or that due to this reason he had not placed that statement on record. This witness had denied to the suggestion that since prosecutrix was living with the accused with her consent or that due to this reason he had not verified the facts of affidavit MarkA. This witness had further denied to the suggestion that prosecutrix had made under section 164 Cr.PC under the pressure of her family members.
41. PW16 SI Ashwani Kumar was recalled for reexamination pursuant to the order dated 29.03.2017 on 30.03.2017. PW16 further deposed that on 12.03.2011 process u/s 82 & 83 were issued against both the accused persons pursuant to his application Ex.PW16/D. This witness has proved copy of said order vide Ex.PW16/E. This witness further deposed that the proceedings u/s 82 Cr.P.C. were executed by HC Ram Kesh vide reports Ex.CW1/A and Ex.CW1/B. Proceedings u/s 83 Cr.P.C. was executed by police of PS Supol, Bihar vide reports Ex.PW16/F and Ex.PW16/G and the list of attachment vide Ex.PW16/H.
42. PW16 further deposed that on 02.02.2012 pursuant to his application Ex.PW16/I both the accused persons were declared as proclaimed offender and copy of the order was provided to him dasti vide Ex.PW16/J.
43. PW17 SI Suresh Pal. This witness has proved statement of complainant Smt. Jagwati vide Ex.PW1/A. This witness had made endorsement on the said complaint at point D to D and got the present FIR already Ex.PW7/A registered under section 363 Cr.PC and after registration of the FIR investigation was assigned to ASI Ashwani Kumar.
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STATMENT OF ACCUSED U/S 313 CR.P.C.:
44. After prosecution evidence, statement of accused persons u/s 313 Cr. P.C. was
recorded where accused had denied all allegations, evidence and circumstances put to them. Accused claimed that he is innocent and falsely implicated in the present case. Accused had not preferred to lead D.E. Hence, D.E. was closed. Thereafter, case was fixed for final arguments.
ARGUMENTS :
45. Ld. counsel for accused argued and submitted that accused has surrendered himself before the court on his own and is not previously involved in any other case and is aged more than 70 years. Ld. counsel for accused further submitted that it can be seen from the facts of the case that initially the girl did not make any allegation in her statement u/s 161 Cr.P.C. but later on due to the family pressure she made allegations against the accused persons u/s 164 Cr.P.C. Ld. counsel for accused further submitted that there are documents to the fact that victim married the co accused on her own and she is major. Ld. counsel for accused further submitted that there is delay of FIR and no explanation has been furnished to this effect by the I.O. There is no mention of Rs. Lacs in FIR. Ld. counsel for accused further submitted that the complainant lodged the complaint before the PS Nabi Karim, Delhi after almost 40 days while she had visited twice at the house of the accused.
46. As far as section 174 A IPC is concerned, in this regard there is no evidence of execution of NBW upon the accused and no statement of villagers recorded. Ld. counsel for accused further submitted that prosecutrix is a tutored witness. There is refusal of internal examination by the prosecutrix. I.O. has not verified Nikahnama Mark 'A; with reference to marriage of accused Sahrul and prosecutrix. It is stated by prosecutrix in her deposition that accused Sahrul @ Salman (since P.O.) had enticed her and taken Rs. One lac from her but complainant in her complaint has not mentioned about the Rs. One lac.SC No.17/2016
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47. It is further submitted that on 20.08.2011 I.O. in the present case along with some police personal, some relatives of the complainant as well as with some local police personals raided at the house of the accused and recovered the daughter of the complainant and brought back her to Delhi and on 23.08.2011 police recorded her statement u/s 161 Cr.P.C. but in her statement she told that no crime has done against her. It is further submitted that son of the accused and daughter of the complainant were in love with each other and they both without the permission of the accused came at the house of accused got married.
48. On the other hand, Ld. Addl. PP for the State submitted that statements of prosecutrix, her maternal uncle, her brother and her mother are consistent on material aspects of the case. Prosecutrix has categorically described the role of the accused played in the commission of the offence right from his first meeting with her at house of friend of accused at Panipat till he he along with his son coaccused took her to their native place at Bihar and made her to stay there. Accused through his counsel has not been able to create any dent in the testimony of material witnesses including prosecutrix. He has also not been able to bring any evidence on record to establish or show as to why accused has been falsely implicated in this case and in absence of such explanation deposition of prosecutrix cannot be discarded.
49. Ld. Addl. PP for the State further submitted that sole testimony of prosecutrix in such type of offences is sufficient to bring home guilty of the accused and in this case her testimony recorded in this Hon'ble Court and her previous statement recorded in the court of Ld. Magistrate are also consistent on all material aspects of the case and sufficient to establish the charge framed against accused.
50. Ld. Addl. PP for the State further submitted that prosecution has also been able to prove the charge framed against the accused u/s 174 A I.P.C. by way of clinching evidence. Prosecution has proved the proceedings necessary for getting the accused SC No.17/2016 State v. Sahrul @ Salman & Others 15/23 declared as P.O. Procedural aspects has already been complied with to declare accused P.O. In view of the aforesaid submissions, Ld. Addl. PP for the State has prayed for conviction of accused under all the sections charged against him.
PERUSAL OF RECORD:
51. On perusal of record, it is revealed that on 05.08.2011 Smt. Jagwati, mother of prosecutrix, lodged a report Ex.PW1/A regarding missing of prosecutrix from the house. PW17 SI Suresh Pal made endorsement on the said report and got the present FIR registered.
52. It is further revealed that PW7 HC Phool Kumar recorded the FIR vide Ex.PW7/A, made endorsement vide Ex.PW7/B on the rukka and gave his certificate vide Ex.PW7/C under section 65 of Evidence Act qua the FIR.
53. It is further revealed that on 21.08.2011, PW16 SI Ashwani Kumar along with PW10 HC Ramesh, Ct. Yogender, PW2 Sh. Nand Kishore (Mausa of prosecutrix) and PW3 Sh. Sanjay (cousin brother of prosecutrix) went to the house of accused Noor Jahan and brought prosecutrix to Delhi despite resistance made by accused persons, ladies from neighbourhood also gathered there and stood in front of vehicle of police officials not to allow them to take prosecutrix to Delhi and prosecutrix was recovered vide seizure memo vide Ex.PW2/A.
54. It is further revealed that SI Ashwani Kumar had got recorded statement of prosecutrix vide Ex.PW4/A and her medical examination was also got conducted vide MLC Ex.PW4/C wherein prosecutrix refused to undergo her internal medical examination vide her refusal mentioned therein. PW12 Dr. Ricky had proved the handwriting and signature of PW5 Dr. Monalisa mentioned in MLC Ex.PW5/A.
55. It is further revealed that on 24.08.2011 prosecutrix was again got medically examined by I.O. S.I. Ashwani Kumar on the directions of CWC Mayur Vihar, SC No.17/2016 State v. Sahrul @ Salman & Others 16/23 PhaseI, Delhi vide MLC Ex.PW5/A.
56. It is further revealed that PW16 SI Ashwani Kumar also taken into possession the exhibits pertaining to the prosecutrix vide seizure memo Ex.PW4/D.
57. It is further revealed that police had also got the medical examination of the prosecutrix conducted vide MLC Ex.PW6/C to ascertain her age.
58. It is further revealed that prosecutrix had also given her statement Ex.PW4/A recorded u/s 164 Cr.P.C. wherein she stated the facts of entire incident, the statement was got recorded by PW16 SI Ashwani Kumar vide his application Ex.PW13/A, copy of the same was provided to PW16 SI Ashwani Kumar on his application vide Ex.PW13/B. Statement Ex.PW4/A was recorded by PW13 Sh.
Purshotam Pathak, Ld. MM, Tis Hazari Courts, Delhi.
59. It is further revealed that on 24.08.2011 PW2 Sh. Nand Kishore had handed over the Ikrarnaama MarkA to PW SI Ashwani Kumar vide seizure memo Ex.PW2/B.
60. It is further revealed that PW6 Dr. Uma, Dr. Anita and Dr. Kakkar, members of the Board, conducted age determination test of the prosecutrix vide report Ex.PW6/A and Ex.PW6/B.
61. It is further revealed that on 18.09.2015, accused Noor Hasan surrendered before the concerned court and PW11 ASI Ishwar Singh had arrested accused vide arrest memo Ex.PW8/A and conducted his search vide personal search memo Ex.PW8/B and on interrogation he had made disclosure statement vide Ex.PW8/C.
62. It is further revealed that PW14 Ct. N. Laxman carried the exhibits of this case to FSL, Rohini vide road certificate Ex.PW15/B and deposited them there against acknowledgement Ex.PW15/C. It is further revealed that Ld. Addl. PP for the State tendered the FSL report along with the forwarding letter, running into three pages SC No.17/2016 State v. Sahrul @ Salman & Others 17/23 which is per se admissible under section 293 Cr.P.C. in evidence.
63. Before reaching at any conclusion let the relevant sections i.e. 342/366/420/174A IPC be reproduced, which is as under : Section 342 IPC:
Punishment for wrongful confinement. Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 366 IPC:
Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." Section 420 IPC:
Cheating and dishonestly inducing delivery of property.Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 174A IPC:
Nonappearance in response to a proclamation under section 82 of Act 2 of 1974. Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for term which may extend to seven years and shall also be liable to fine.
64. Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the complaint of Smt. Jagwati Ex.PW1/A stating therein that accused Sahrul @ Salman (since P.O.) s/o. Sh. Noor Hasan has enticed the prosecutrix.
65. The first charges against accused u/s 342/366/34 IPC are that on 29.06.2011, he along with his son/coaccused Salman @ Sahrul (since P.O.) induced the prosecutrix SC No.17/2016 State v. Sahrul @ Salman & Others 18/23 by deceitful means to accompany them to their house Nanupati, Saharsa, Bihar, confined her at the house and compelled her to marry with his son/coaccused Sahrul @ Salman. For the purpose of proving charge u/s 366 IPC, prosecutrix is required to prove that the prosecturix was induced to accompany accused to his native place and further she was compelled to marry with coaccused.
66. The circumstance narrated by prosecutrix PW2 not even remotely suggest that she was induced by accused to accompany his son/coaccused to his native place. Prosecutrix in her examination in chief clearly and categorically stated that after meeting the accused, they started to meet each other and that after some time she purposed him to marry and accused told her that he was not having money and when she told the accused that her maternal uncle had kept Rs. One lacs in her house, accused told her to come up with that money. Prosecutrix further stated that she herself met the accused at Red Light Signal, Pahar Ganj carrying said amount of money. The aforesaid statements of the prosecutrix go a long way to establish that she had accompanied the accused on her own free will. Rather, she herself had proposed to marry him. Prosecutrix has no where stated in her testimony that she was induced by accused Salman to accompany him either to his friend house at Panipat or from there to his native place in Bihar in the present case.
67. Even after a week when mother of prosecutrix PW1 and her maternal uncle PW2 along with other relative visited the house of accused to bring back the prosecutrix. They met the prosecutrix at house of accused and as per their version, accused did not allow her to go with them but at the same time they also stated that accused assured that he would bring the prosecutrix to Delhi. There have been no threat or coercion on the part of accused. Either to force the prosecutrix to not accompany the said persons to Delhi. Rather accused assured them that he himself would bring the prosecutrix to Delhi.
68. When PW2 Nand Kishore and PW3 Sanjay, cousin brother of prosecutrix,visited the house of accused second time along with police officials, both the accused persons SC No.17/2016 State v. Sahrul @ Salman & Others 19/23 ran away from the house and persons from the neighbourhood of accused gathered in frond of police vehicle and prevent them from taking the prosecutrix with them. Prosecutrix was brought to Delhi by police officials and she was subjected to medical examination wherein she had clearly stated that she fled away with her boyfriend (coaccused Sahrul @ Salman) two months back and got married and her consensual relationship with him. She was also carrying marriage certificate with her.
69. In her statement u/s 161 Cr.P.C. Ex.PW16/DA, prosecutrix did not level any allegation against any of the accused persons. Thereafter, she was kept in Nari Niketan. Her statement u/s 164 Cr.P.C. was recorded on next day i.e. 24.08.2011 wherein prosecutrix levelled allegations against accused persons. It is also pertinent to mention her that during stay of prosecutrix at Nari Niketan her mother, PW1 met her and it was she who had brought her for said statement. Therefore, circumstance clearly suggest that the prosecutrix was tutored to make allegations against the accused while she had not stated against accused persons in her previous statement recorded u/s 161 Cr.P.C. Ex.PW16/DA, she had stated nothing against the accused to the doctor who conducted her medical examination.
70. Further, PW10 HC Ramkesh who also accompanied the police officials, PW2 Nand Kishore, maternal uncle of prosecutrix and brother of prosecutrix to the native place of accused persons clearly stated in his cross examination that the prosecutrix was not willing to come to Delhi. Even, this statement of this witness demolish the case of prosecution on all counts. Hence, there is no evidence to prove charge u/s 342 IPC that prosecutrix was confined. Rather when the said officials visited the house of accused persons, she was found making chapatis and did not willing to join them to Delhi. Even, prosecutrix did not said anywhere in her testimony that she was confined by accused persons at the house in Bihar. Hence, prosecution has been failed to prove the case against the accused for offences u/s 342/366/34 IPC beyond reasonable doubt.
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71. There is no direct evidence against present accused regarding kidnapping or sexual harassment. From the testimony available on record, it is proved that there is no evidence against the accused Noor Hasan regarding kidnapping of prosecutrix and sexual harassment. Therefore, it is established beyond reasonable doubt that present accused Noor Hasan is father of accused Sahrul @ Salman (since P.O.), he has been residing in Bihar at the time of incident and was not aware about the proceedings pending against him. Moreover, police has not investigated the case properly in respect of present accused. Merely on allegation in statement u/s 164 Cr.P.C., name of present accused has been revealed and thereafter, court has issued NBW after their non appearance and even court has also issued process u/s 82/83 Cr.P.C. Thereafter, present accused has surrendered before the concerned court and sent to JC. Now question is whether process u/s 82 Cr.P.C. has been compiled with properly according to law. As per record, there is no copy of publication published in the local newspaper where accused resides. Nor there is any photographs of publications of process u/s 82 Cr.P.C./83 Cr.P.C. on conspicuous part of house of accused. It shows that process u/s 82 and 83 Cr.P.C. has not been complied with properly and accused has been declared P.O. which is not correct. Ordersheet of Sh. Anil Kumar, Ld. MM (Central) dated 02.02.2012 reflects that "In view of the report and statement of process server, I find that the proclamation u/s 82 Cr.P.C. has been duly published. Hence, accused is a Proclaimed person. Charge sheet has not been filed in this case yet. Copy of order be given dasti to IO ASI Ashwani Kumar to be filed with final report u/s 173 Cr.P.C." but there is no material on record to show or establish that accused was served with the process u/s 82 Cr.P.C. or that he disobeyed the process in order to make him liable u/s 174A IPC. Moreso, there is also no copy of publication of local newspaper on record. It shows that process u/s 82/83 Cr.P.C. has not been complied with properly. Hence, charge u/s 174A IPC against accused is not proved beyond reasonable doubt.
72. With reference to the allegation forming offence u/s 420 IPC, prosecutrix no where stated in her first statement u/s 161 Cr.P.C. recorded by the police Ex.PW16/DA after her recovery from Bihar about any such amount of money being taken by her.
SC No.17/2016State v. Sahrul @ Salman & Others 21/23 Rather in her deposition in the court, she stated that she herself offered the accused to carry that amount of money with her in order to meet out the expenditure likely to be incurred in the marriage of accused.
73. Prosecutrix has accompanied the accused persons with her free will to their native place, got marriage with accused Sahrul @ Salman (since P.O.). There is no question of being induced by accused Noor Hasan to part with that amount to him. Even the complaint lodged by the mother of prosecutrix also does not talk about any such amount of money being taken by the prosecutrix with her at the time of elopement.
74. There are material contradiction in the deposition of PW1 Smt. Jagwati and PW4 Prosecutrix with reference to amount of money. As per prosecutrix said amount of money was given to her by her maternal uncle Sh. Dhan Singh and it was she who kept the same in Almirah. However, as per testimony of her mother, PW1, her brother, Sh. Dhan Singh had given said amount of money to her. Rather she improves that the same was amount to Rs. Two lacs. PW1 Smt. Jagwati further deposed in the court that at the time of incident she realized that her almirah was opened and when she checked the same, she found Rs. One lac out of Rs. Two lacs. It is not comprehendable that when she had found that Rs. One lac was missing from the Almirah which kept by her at the time of incident why this fact was not mentioned by her in her complaint Ex.PW1/A. In view of the aforesaid discussions, there is no substance in the allegation of cheating qua said amount of money. Therefore, there is no corroboration in the testimony of prosecutrix and her mother. Hence, prosecution has been failed to prove the case u/s 420 IPC against the accused Noor Hasan beyond reasonable doubt.
75. Therefore, considering the aforesaid discussions, this court comes to the conclusion the prosecution has been failed to prove the case against the accused for offences u/s 342/366/420/34 IPC & 174 A IPC beyond reasonable doubt. Accordingly, this court acquit accused Noor Hasan of the charges u/s 342/366/420/34 IPC & 174 A IPC.
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76. In terms of Section 437 A Cr. P.C., accused is directed to execute bail bond in sum of Rs.15,000/ with one surety each in the like amount.
77. Since accused Sahrul @ Salman is not arrested and he has been declared P.O. He may be tried as and when he brought before the court.
78. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 06.04.2017.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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