Delhi District Court
State vs . Amir Mian on 3 March, 2011
IN THE COURT OF SH. NAVEEN ARORA : ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE : (SE) DELHI
STATE VS. Amir Mian
FIR NO: 261/99
P. S. New Friends Colony
Date of institution of case : 04.12.1999
Date on which case reserved : 03.03.2011
for judgment
Date of judgment : 03.03.2011
JUDGEMENT U/S 355 Cr.P.C
.:
a) Date of offence : 08.02.1999
b) Offence complained of : U/S 365/506/451/34 IPC
c) Name of complainant : Saima Praveen
d) Name of accused, his : (1) Ameer Mian
parentage & residence S/o Sh. Shahid Mian
(2) Sh. Sameer Mian
S/o Sh. Shahid Mian
Both R/o House No. I45, Muradi Road,
Batla House, Okhla, New Delhi.
e) Plea of accused : They are falsely implicated.
g) Final order : Accused persons are acquitted.
BRIEF FACTS AND REASONS FOR DECISION:
FIR NO. 261/99 State Vs. Amir Mian In the present case, the charge sheet was filed U/s 365/506/451/34 on the basis of complaint of complainant Saima Praveen who in her complainant dt.230499 stated that she is student of BA First Year in Jamia College and accused Aamir, Samir, Soab and Juneb are residing in House in front of house of complainant with their parents Sahid and Sahida. In November 1998 accused Amir had stopped her on her way and introduced himself stating that he is residing in front of her house but she did not talk to him. Again on one occasion he did not same thing which she informed to her parents and parents of the complainant called the father of accused and complained about his conduct to which father of accused assured that this will not happened again but in December 1998 Amir proposed her for marriage which she again refused and when it was told to her parent by her an altercation took place but due to the intervention of neighbour the matter was resolved but due to this truss BP of the father of complainant went high and he was admitted to AIIMS Hospital. It was further submitted that one day when she went to attend the class in College and from there she went to Library from there she lost her certificate and photographs and when on 08021999 she went to her college to tress them, there at Library Gate accused Aamri and Samir were standing and they asked her to accompany them and threatened of dire consequence if she refused. Amir showed her revolver and Samir were having knife and at the same time one Gypsy came there wherein 810 boys were sitting and they took her in that Gypsy, earlier they had planned to take her to Rampur but they changed her plan and took her to Nizamuddin Basti and obtained her signature on various papers but some altercation took place among themselves and by taking advantage of said fact the complainant fled from that spot and reached back her home. On reaching home she saw that her father was not well and doctor was saying that he should not be given any shock as it may result into some mishappening. On seeing this she did not disclose FIR NO. 261/99 State Vs. Amir Mian anything to her parents. On 01041999 Accused Amir and Samir trespassed into her house and starting fighting despite this she did not tell anything to her parents but when same incident had occurred on 150499 and tried to took her away forcibly, she told everything to her parents, hence this complaint which was lodge don 23041999 i.e after 8 days of incident of 15041999.
Cognizance of the offence was taken vide order dt. 04121999 and accused persons were summoned and supplied the copy of the charge sheet and charge was framed against the accused on 25012001 U/s 365/451/506/34 IPC wherein accused persons pleaded not guilty and claimed trail.
In Prosecution Evidence, prosecution examined the following witnesses:
1 Complainant Saima Praveen as PW1 who in her examination in chief reiterated her original complaint though she added one fact that when she ran from Nizamuddin Basti she met a person who asked her about the reason of running and she told him the entire story and that gentleman dropped her in her house in a auto. She proved on record her complaint as EX.PW1/A. During her cross examination she stated that she had never seen Amir in her house before 1998. She stated that she never gone with Amir out before 1998.
She admitted the photograph Mark A to be her own photograph but she stated that she had never taken any such photograph with Amir. She stated that she never lodged any complaint to the police regarding of loss of her documents and she lodged the complaint later on as she wanted to have duplicate documents and said complaint was lodge in May 1999 i.e after filing of this complaint. She stated that she never wrote any letters to Amir nor she sent any greeting cards to him nor she gave any such statement to the police that she was studying with Amir in same college and she develop friendship with him. She was confronted with her statement FIR NO. 261/99 State Vs. Amir Mian EX.PW1/DA where it was found recorded. She denied that she made any statement to the police that she love with Aamir and she wrote certain greeting cards and letters to him. On her denial she was confronted with her statement EX.PW1/DA where it was found to be recorded. She was denied that they finally decided to marry on 080219989 at Nizamuddin. She denied that letters and greetings cards which are five in number EX.PW1/DB have not been written by her nor she has signed the same. Thereafter she stated that she had stated to the police that at Nizamuddin she was threatened and forced to sign certain documents. She denied that Nikaah was performed by Qazi between her and Amir Mian. She stated that she cannot identify her signatures. She denied her signature on Nikahnama EX.PW1/DC. She stated that she knows English and Urdu and she admitted that EX.PW1/DC is a Muslim Marriage Certificate. She also admitted the filing of Suit of Restitution of Conjugal Rights by accused against her and also habeas corpus and on 2705996 she stated before the court that she does not want to live with accused and wish to live with her parents. She stated that she cannot tell the number of TSR in which she came back at her house from Nizamuddin nor she can tell the name and address of that gentleman who brought her to her house however he gave his name and address. When she was confronted with her statement EX.PW1/A wherein it was not found to be recorded. Rather the incident of kidnapping dated 01041999 and 05041999 was found to be recorded in her original statement. She could not tell at what time she went to PS on 23041999 for lodging the present complaint. She also admitted that whenever her statements were recorded she signed before the police. She denied that accused has falsely implicated at the instance of her parents. She denied that she herself accompanied the accused for Nizamuddin for marriage. She denied that she had not run away from Nizamuddin. She denied that they had gone to Community Centre, NFC for some refreshment. She denied that she got herself photographed with accused at Community Centre being her legally wedded wife. She FIR NO. 261/99 State Vs. Amir Mian admitted that EX.PW1/DD running into 13 pages which are greeting cards and letters have been written by her. Though she volunteered that same are got forcibly written from her at Nizamuddin.
2 Gulzar Begum, mother of complainant as PW2 who also deposed on the prosecution lines and stated that on 080299 when her daughter came back she started weeping . She stated that her daughter remained on bed due to sickness for 1520 days and on two occasions accused entered into her house to kidnapped her. If we see the testimony of PW2, the entire testimony is based upon bald allegation and hearsay evidence and certain allegation of blackmailing for the sum of Rs.1,25,000/ for returning of documents of complainant were levelled for the first time in the court. General allegation of kidnapping were made on 3 occasions but no explanation was given why the matter was not reported to the police. She admitted that she did not tell to the police that accused persons obstructed the way of complainant many times. She denied the entire defence of the accused.
3 Mohd Rashid as PW3 who deposed about some quarrel between both the parties. Witness was declared hostile and during his cross examination by Ld. APP for state nothing material could be brought from his mouth, though in his cross examination he stated that father of complainant is in habit of making false complaints against the accused and h is family members.
4 Firozuddin, father of complainant as PW4 whose testimony is also hearsay testimony and he stated that on 080299 when he came back his home his daughter and wife told the entire incidence to him, though as per complainant she did not tell about the incident to any of her family members on 080299. During his cross examination he stated that incident was told on 140299. He stated that he was told regarding the incident of kidnapping by his wife on the same day i.e 080299 though he asked about the daughter after FIR NO. 261/99 State Vs. Amir Mian 160499. He also denied the entire defence of the accused put to him. He stated the name of the person who brought his daughter is Musahid Mian but he did not tell his name to the police. Again stated that he told his name to the police but the same was not mentioned. He denied that no such incident took place that is why he did not tell the same to the police official. He stated that he does not know since what time he knows Mushad Mian and he is resident of the Gali on the back side of his home.
5 HC Surender Singh as PW5 who deposed about arrest of accused on 140799 vide arrest memo EX.PW5/A on receipt of DD NO.17.
6 Ct. Chander Shekhar as PW6 who deposed about arrest of accused No.2 Samir Mian on 020899 vide EX.PW6/A though he could not answer any question regarding the place or house from where accused was arrested.
7 ASI Anu as PW7 who deposed about registration by her on 230499 on receipt of Rukka and proved the copy of FIR as EX.PW7/A. 8 Sh. Praveen Kumar, Ld. ASJ, Dwarka as PW8 who deposed about recording of statement of Prosecutrix U/s 161Cr. P.C by him on 160799 on the application of IO. In her statement she stated about the same incident that she had to made to sign and write various cards and letters and some performas. It is pertinent to mention here that even in her statement U/s161 Cr. P. C she did not tell about accompanying of any person back to her residence.
9 Sh. Tanzim Alam as PW9 who stated that on 140799 police had taken search of H. NO.I45 Rehman Street, Batla House in his presence but nothing was recovered from said house. The search of said house was proved as EX.PW9/A. He stated that on 01049 and 150499 no such incident of attempt of kidnapping was taken place as alleged by the complainant and he also admitted that there was love affair between the complainant and FIR NO. 261/99 State Vs. Amir Mian accused No.1.
10 SI Ashish Dalal as PW10 stated that on 230499 he received a complaint EX.PW1/A and on making endorsement on it EX.PW10/A he send the rukka a got the FIR registered through Ct. Upender. Thereafter he recorded the statements of witnesses.
Thereafter Prosecution Evidence was closed and Statement of accused persons were recorded wherein they denied all the allegations and stated all their defence as the same had been taken in evidence. No Defence Evidence was led on behalf of accused persons.
I have heard the arguments and perused the record. It is argued on behalf of accused that accused Amir Mian and complainant got married in accordance with Muslim Rites and customs on 080299 in presence of their friends and witnesses and Qazi and as accused has not having any suitable accommodation on his own they decided to stay at their own home till the accused makes the arrangement for the same but when the parents of complainant came to know about the marriage they pressurize her and they got successful in that and accused could not bring her back despite his all efforts taken as per law as mentioned above. It is stated that evidence of PW2 Gulzar Begum and Firozuddin is hearsay evidence and is of no evidentiary value. It is submitted that even the medical record of Firozuddin was not filed on record to show that he was so sick on 080299 and other police witnesses are purely witnesses of investigation and their testimonies are no bearing in this case and as far as PW Rashid and Tanzim are concerned they had rather supported the case of accused and not of complainant. It is submitted that now the evidence remains of PW1 Shaima Praveen which is material for deciding the controversy in question. It is submitted that the photographs of the accused and complainant placed on record clearly shows that at the time of marriage she was not under any kind of threat of coercion and whatever documents she signed i.e Nikahnama and FIR NO. 261/99 State Vs. Amir Mian other eight papers she signed voluntarily with her consent as no variance has shown in her signatures which would have come if she had signed under threat or coercion. It is submitted that Nikahnam is nicely printed colorful documents and not the blank documents which she has signed under force allegedly. It is submitted that in the absence of any medical documents of Firozuddin the fact of his illness remains unproved and in the absence of such documents the entire story of prosecution goes as that was the basic reason for not disclosing the factum of kidnapping & forcefully marriage to him by the complainant and in the absence of that documents there is no explanation that if complainant was kidnapped why she remained silent for two months. It is submitted that there was no occasion for the accused to attempt kidnapping of complainant on 01041999 and 150499 when he had all the valid documents of marriage with him. It is also submitted that there is no explanation given by the complainant that if she had not disclosed anything to her parents then she would definitely going to college in normal course and otherwise her parents would have asked about her conduct and if she was going regularly to the college then there was no occasion for the accused for going to here house for kidnapping in presence of her parents, rather he would have kidnapped her on her way to college.
It is submitted that the allegation of the complainant are vague and fabricated that is why there does not seems to be any logic behind it and they are made just to get rid off the accused and marital relations between them. It is submitted that complainant had admitted her handwriting and signatures on greeting card and manner in which those greeting cards are written shows that they are not written under coercion or pressure and merely by saying that they were signed or written under pressure does not serve any purpose under the eye of law especially when prosecution witnesses are saying that accused and complainant were having love affairs and which is not being denied by the prosecution itself. The photographs of FIR NO. 261/99 State Vs. Amir Mian complainant placed on record does not show any sign of fear on the face of complainant It is submitted that witnesses specially the complainant and her family members have improved their statements before the court and most of their statements are based upon bald allegation and concocted facts as mentioned above.
I have heard the arguments and perused the record. It is an admitted fact that the greeting cards and the letters placed on record are written and signed by the complainant herself but no explanation has come that why some one would ask to write greeting cards under such a force as it is not expected from some one to write greeting in such a fancy manner under such threats of life. Prosecution witness Tanzim in his evidence has clearly stated that both the parties were having love affair between them and facts alleged by the complainant that she has kidnapped by 810 persons who were coming in Gypsy a vehicle which is meant for at the most for 57 persons, there would be no space left in gypsy for kidnapping the complainant. There are various contradiction in the statements of prosecution witnesses such as the incident that one gentleman brought her back from Nizamuddin to her house, neither his name and address has been mentioned in the complainant. Complainant no where mentioned about him and father of complainant saying that said person is residing at back gali and he knows him and if any person bring a girl back to her home in such circumstances in my opinion he would have definitely and the said fact to her parents especially when said person knows the father of girl and in the present case his role has been mentioned in the incident in such a manner that he did his role and thereafter he disappeared and never informed the parents of the girl about the incident which is not probable. Interestingly that person who was allegedly known to the father of complainant was not made witness in this case even. The photograph placed on record does not show any sign of fear on the face of girl to show that she was under pressure or threat at the time of signing Nikahnama as when she went FIR NO. 261/99 State Vs. Amir Mian with accused in Gypsy. There was no explanation as to why she was not made any hue or cry when she was kidnapped from public place i.e public library where students are always present. In my opinion, no reasonable person would ever try to kidnap any person from public place like that where he can be easily noticed. It is surprising even in the complaint of complainant there is no mentioned of raising any hue or cry at the time of kidnapping or thereafter. There is no explanation that as to why she remained silent after 080299 till 230499 despite the happening of three incidents as alleged by the complainant and her family member which does not seems to be probable. If we see all these facts collectively I come to the conclusion that entire case of the complainant is based upon bald assertions and concocted story just to put pressure upon the accused to not to enforce the contract of marriage entered into between complainant and accused No.1.
It is pertinent to mention here that after considering all the facts, a civil decree of restitution of conjugal rights was also passed in favour of accused which still holds good in the eyes of laws as the same was not set aside till dated and despite the order of Court the complainant remarried & went abroad. Having regard to the facts of case and conduct of complainant. I am of the opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Hence, accused persons are acquitted for the offence U/s 365/506/411/34 IPC. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ( NAVEEN ARORA )
TODAY ON 03rd March, 2011 ACMM/SAKET
FIR NO. 261/99 State Vs. Amir Mian
FIR NO. 261/97 PS: New Friends Colony
03.03.2011
Present: APP for the State.
Both accused in person with Counsel.
Vide my separate judgement both accused persons are acquitted for the offence U/s 365/506/451/34 IPC. Their P/B & S/B stands discharged. File be consigned to Record Room.
(NAVEEN ARORA)
ACMM/SE/03.03.2011
FIR NO. 261/99 State Vs. Amir Mian