Delhi District Court
State vs . Firoz Etc. 1 Of 27 on 31 January, 2013
1
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.17/2011
FIR No.390/10
PS Narela
State
Vs.
1. Firoz s/o Hazrat
R/o E257, JJ Colony, Bawana
Delhi.
2. Munni d/o Yusuf
R/o E253, JJ Colony, Bawana
Delhi.
Date of institution :17012011
Date when arguments concluded:03012013
Date when Judgment pronounced:11012013
Appearances: Ms. Purnima Gupta, APP for the State.
Mr. Sudhir Kumar, counsel for accused Firoz
Ms. Sunita Tiwari, counsel for accused Munni
JUDGMENT
1. Both accused have been forwarded by police to face State vs. Firoz etc. 1 of 27 2 trial u/s 366/376/328/506/34 IPC.
2. Facts of the case are that prosecutrix (herein after referred to victim also) was taken near police post JJ Colony, Bawana on 1692010 at 7.30 PM by accused Munni saying that somebody was calling her there. There she found accused Firoz who was who was residing in her street in H. No.E257. House number of prosecutrix is E251. Munni left her with that boy threatening if she returned she would be killed. That boy i.e. accused Firoz took her to Aligarh threatening if she made noise she would be killed. There in Aligarh she was raped. Her brother Shamshad and accused Munni's father Yusuf reached Aligarh on 18910. Yusuf separated her from brother and took her to the court of Aligarh where she was married forcibly with accused Firoz. On these facts FIR was registered on the statement of prosecutrix who had come to PS on 19910 in the company of her mother and brother. At that very time Shamshad handed over accused Firoz to the police. She was counselled by Ms. Nagina and Nazma Khan. She was examined medicolegally and doctor found no external mark of injury. On 2092010 the accused was examined and doctor found nothing abnormal which may suggest State vs. Firoz etc. 2 of 27 3 that he was incapable of performing sexual intercourse. The statement u/s 164 Cr.PC of prosecutrix was recorded on 279 2010.
3. Vide order dated 3152011 accused Yusuf was discharged and accused Munni was charged u/s 363/34 and 506 of IPC whereas charges u/s 363/34, 506,366 and 376 were framed against accused Firoz. Both accused claimed trial.
4. In order to establish the case prosecuting agency examined 17 witnesses. Accused examined only two witnesses in defence.
5. PW2 Ms. Nazma and Ms. Nagina Khan PW9 counseled prosecutrix PW4 on 1992010 in police station. During counseling prosecutrix told them that it was accused Munni who took her near police post on 1692010 on the pretext that somebody was calling there. After reaching the police post she was handed over to accused Firoz. When she refused to accompany him she was threatened with life. Thereafter, she was taken forcibly by accused Firoz to a jhuggi in Aligarh where she was rapped.
PW3 Hussain Bano is the mother of the prosecutrix. She has six children and victim is at 5th number and is of 14 years. At the State vs. Firoz etc. 3 of 27 4 time of incident she was studying in 5th class. She deposed that her son Asadulla @ Ladoo had met with an accident on 16910 and so all family members were present at home. Accused Munni came to her house to inquire about the well being of Asadulla and left in the company of her daughter. Someone informed her that accused Munni was going with her daughter having her face muffled with a veil. She further deposed that she came to know that Munni had taken her daughter to accused Firoz who resided in the nearby area. House of accused Munni is also situated in front of house of PW3. She further deposed that her son Shamshad and relatives of accused Firoz went to Aligarh in search of victim and Firoz. Both were brought to Delhi from there by Shamshad. After returning Delhi, prosecutrix told all facts to her mother, brother and PW2 deposed by PW2 and PW9.
PW1 Shamshad also stated the age of her sister as 14 years. He deposed that on inquiry from relatives of accused Firoz he came to know that her sister and Firoz were at Aligarh. He alongwith Md. Yusuf, father of accused Munni, went to Aligarh to bring them back. After reaching Aligarh, prosecutrix was found in the house of maternal uncle of accused Firoz. PW1 was kept State vs. Firoz etc. 4 of 27 5 standing outside the house and Md. Yusuf went inside the house and asked Firoz to marry prosecutrix. PW1 further deposed that when he went Aligarh Court, he was told that his sister and Firoz had married each other. On inquiry from the court officials he came to know that minors cannot marry and that he should take his stater back and in this way he brought both i.e. victim and accused Firoz to Delhi and produced before police. He deposed that her sister told him that she was taken forcibly by accused Munni and Firoz so that she could be married forcibly with accused Firoz. In the end he stated that her sister told him that Munni administered some intoxicated substance in the water taken by her due to which she became unconscious and in this way she was taken by Munni near PP.
PW5 Dr. Samir of SRHC Hospital identified the signature and handwriting of Dr. Kavita on MLC Ex.PW5/A as doctor Kavita had left the service of the hospital. After perusing the MLC, PW5 deposed that prosecutrix was brought to the hospital on 1992010 by lady Ct. Jyoti with the history of sexual assault three days back. She had no external injury on the body. Victim was referred to higher centre BSA hospital for examination under anesthesia State vs. Firoz etc. 5 of 27 6 because facility of higher centre was available in BSA hospital where victim was examined by PW6 Dr. Dolly Bansal on the same day.
PW6 deposed that there was no external bruise mark on the body and over genital region of the victim. She stated that hymen was torn but there was no bruise on the hymen and there was no bleeding. After sealing the exhibits, same were handed over to lady Ct. Jyoti and victim was again referred to SRHC hospital. PW6 prepared MLC Ex.PW6/A bearing her signatures at point A. PW7 Lady Ct. Jyoti deposed that she accompanied SI Mahender Singh and victim to SRHC hospital on 19910. From there she accompanied her to BSA hospital. The victim was examined in both hospitals. After examination, PW7 deposed, doctor handed over 10 sealed pullandas which she produced before IO who seized the same vide memos Ex.PW7/A. On the same day accused Munni was arrested from her house No. E253 vide arrest and personal search memoes Ex. PW7/B and Ex. PW7/C respectively.
PW8 Ct. Dilbagh is witness to the arrest of accused Firoz vide State vs. Firoz etc. 6 of 27 7 arrest and personal search memos Ex. PW8/A and Ex. PW8/B. PW11 Dr. Avadesh of SRHC hospital prepared MLC Ex. PW11/A of accused Firoz on 20910 and opined that there was nothing to suggest that he was unable to do sexual intercourse.
PW12 Hanif @ Langra is the maternal uncle of accused Firoz and is also the owner of the jhuggi where victim was taken at Aligarh. He deposed that his nephew came to his jhuggi with one girl and told him that she was going to marry him. Both stayed in his jhuggi that night. Next morning both left for Aligarh court where both got married. He admitted that police visited his jhuggi to record his statement. In crossexamination he deposed that victim told him that she wanted to marry Firoz voluntarily. He further stated that after solemnization of marriage, kazi prepared a Nikahanama and handed over the original copy to the prosecutrix. On the same day victim's brother met PW12 on a tea stall and by that time Firoz and prosecutrix had already married. He deposed that despite insistence by brother, the girl was refusing to accompany him saying that she was legally wedded wife of Firoz but her brother did not relent and put Firoz and prosecutrix in a rickshaw forcibly and brought both to Delhi. PW12 had tried to State vs. Firoz etc. 7 of 27 8 intervene but he was powerless in front of four other henchmen.
PW13 HC Jitender registered FIR Ex. PW13/A on 19910 at 6.45 PM and made endorsement Ex.PW13/B on the rukka.
PW14 HC Pawan Kumar was MHC(M) of PS Narela on 199
10. On that day SI Mahendeer Singh deposited with him one sealed pullanda having seal of SD alongwith sample seal and he made entry Ex. PW14/A in register no.19. Next day SI Mahender again deposited one sealed pullanda sealed with the seal of SRHC alongwith sample seal and he made entry Ex.PW14/B. These pullandas were sent to FSL by PW14 through Ct. Hardesh on 28 1010 vide RC Ex. PW14/C and Ct. Hardesh, after depositing all articles in FSL, handed him over receipt acknowledgment Ex.PW14/D. Result FSL was received in the PS on 2272011.
PW15 HC Hardesh is the carrier of exhibits to the FSL and he did not tamper with the case property until it was in his possession.
PW16 Ms. Vedwati is the principal of Government Girls Primary, MCD School, JJ Colony, Bawana, Delhi where prosecutrix was admitted by her mother Hussain Bano on 1282004 with the date of birth 0231998. She proved admission register as Ex.PW16/A, admission form as Ex. PW16/B and affidavit of mother State vs. Firoz etc. 8 of 27 9 of victim as Ex. PW16/C. She had issued certificate Ex.PW16/D on the application of IO SI Mahender Singh regarding date of birth of the prosecutrix.
PW17 SI Mahender Singh is the IO. He deposed that he recorded the supplementary statement of the prosecutrix and added Section 328 IPC in the chargesheet. He visited the jhuggi of PW12 Hanif on 131210 in the company of victim and her mother and prepared site plan Ex. PW17/C of the place of incident.
On 2072012, both accused did not dispute the proceedings of Magistrate u/s 164 Cr. PC and hence ld. MM was not examined.
6. U/s 313 Cr. PC accused Munni took the stand that accused Firoz was not her relative and she was not knowing him prior to the case in hand. She stated that she has been falsely implicated simply because Asadulla, brother of complainant, who was working as driver with her father had met with an accident on 16910 and sustained injuries for which family of the complainant was demanding Rs.50,000/ from her father and due to non fulfillment of that demand a false case has been registered against her.
Stand of accused Firoz is that he did not abduct or kidnap the State vs. Firoz etc. 9 of 27 10 prosecutrix. Rather she herself rang him up on mobile saying that she was at the bus stand of Bawana Jhuggi and asked him accompany her as her family members were going to marry her with someone whom she did not like. She had further stated to him that if he did not come she would commit suicide. On the asking of the complainant that she wanted to go to her uncle's (chacha) house at Aligarh, he took her there. He married her in Aligarh Court. In the end he stated that Shamshad, brother of victim brought her and him to Delhi on the pretext that marriage between them would be solemnized in Delhi.
7. DW1 HC Anil Kumar proved statement Ex. DW1/A of Asadulla, brother of complainant. He deposed that on 1692010, on receipt of a PCR call regarding accident at Sector5 Bawana, he reached the spot and found two Champion vehicles bearing numbers DL1LJ5437 and DL1LJ7111 there. After reaching hospital he met injured Asadulla s/o Abdul r/o E291, JJ Colony, Bawana. He came to know that both parties namely Asadulla and Suleman had entered into settlement with the help of witnesses and thereafter he recorded statement Ex.DW1/A of injured Asadulla.
State vs. Firoz etc. 10 of 27 11 DW2 Mohd. Yusuf is the father of accused Munni and he deposed that his champion vehicle No. DL1LJ5437 met with an accident on 16910 and it was being driven by his driver Asadulla who was residing opposite to his house at that time. He reached the hospital where Asadulla was admitted and there a settlement had been arrived at with the efforts of police officials and witnesses and statement Ex. DW1/A of Asadulla was recorded on which he signed in Urdu at point A. It was signed by Asadulla also. He further deposed that after reaching home, Asadulla, his mother and brother came to his house and complained that they were not satisfied with the compromise and wanted more money from the opposite party. They were claiming that the accident case was got settled by him (DW2), he should pay Asadulla Rs,50,000/ or 1 lac. On the same day prosecutrix went missing. Three days thereafter he was surprised to know that his daughter Munni had been implicated in this case solely because he failed to pay Asadulla Rs.50,000/.
8. AGE PW1 Shamshad, PW3 Hussain Bano and PW4 prosecutrix deposed the age of the complainant as 14 years. Same State vs. Firoz etc. 11 of 27 12 is mentioned in MLC Ex.PW5/A and PW6/A of the victim prepared in SRHC and BSA hospitals. In statement u/s 164 also, the victim told her age 14 years. PW16 Vedwati brought school register Ex. PW16/A. Victim was admitted in that school on 1282004 in class 1st and her name was deleted from the school records on 244 2009 due to long leave. Admission Form Ex.PW16/B has been thumb marked by her mother. Ex. PW16/C is the affidavit sworn by Hussain Bano. In this document her date of birth is mentioned as 02031998. The offence had taken place on 1692010. So on that day prosecutrix was of 12 years 6 months and 14 days. Defence counsels argued that the school admission form and admission register cannot be believed because these have not been corroborated by any birth certificate issued by Registrar, Birth and Death. In this regard PW3 Hussain Bano was crossexamined and she deposed that prosecutrix was born in village Seharsha, Bihar at home and she did not get registered her birth in the record of Pradhan of the village. So, the school certificate cannot be corroborated with the birth certificate which was never in existence. The next objection is that police did not get conducted ossification test about the age of the victim. On this issue PW6 Dr. State vs. Firoz etc. 12 of 27 13 Dolly Bansal deposed that such test cannot be done without permission of the court. Though it was the duty of the IO to request the hospital authorities to get done the ossification test but he failed in his duty. Moreover, ossification test report is merely the opinion. On the other hand school record is a public document prepared by a public servant in the ordinary course of his duties and a sufficient genuinity is attached to such record due to that reason. To the same effect was held by Hon'ble Supreme Court in State of Chattisgarh v. Lekhram 2006 (5) SCC 736 propounding that register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of section 35 of Evidence Act. In these circumstances, there is no reason to disbelieve the school record about the date of birth of the prosecutrix. The counsel stated that victim was of 20 years as mentioned in the marriage certificate Ex.PW1/B. In that affidavit only the age of the prosecutrix is mentioned. It is not mentioned on which day, in what month and in which year she was born. Her age in that document is vague and hence cannot be relied upon. So, it is held that she was not more than 13 years on the day of commission of offence.
9. THREAT AND KIDNAPPING PW1, PW2 and PW3 deposed that prosecutrix told them State vs. Firoz etc. 13 of 27 14 after return from Aligarh that she was forcibly taken from home by accused Munni on the pretext that somebody was calling her near police post. Thereafter, she was taken to Aligarh where she was raped on 1792010. Prosecutrix did not state in her entire evidence that she ever told these facts to these witnesses. So, depositions of PW1, PW2 and PW3 on these issues are hearsay.
The whole case hinges on the testimony of prosecutrix. She deposed that on 16910 at 7.00 PM she was present at home with all family members. Accused Munni came to her house and told that somebody was calling her near the police booth. She went there in her company where accused was found standing. Accused Munni forced her to go with that boy threatening if she returned, she would be killed. That boy took her to Aligarh in a bus and then to a jhuggi where no other person was present. She was raped on 17910. She remained in that jhuggi throughout the whole day on 17910. On 18910 Munni's father came there and took her forcibly with accused Firoz to Aligarh Court where she was forcibly married with Firoz on the threat given by father of Munni that if she refused, her brother would be eliminated. Her brother Shamshad PW1 reached in Aligarh court and stopped their State vs. Firoz etc. 14 of 27 15 marriage in between and brought both to Delhi. In statement u/s 164 Cr. PC Ex.PW4/C, she had stated that it was Munni who took her to police post from where accused took her forcibly to Aligarh to the house of his uncle where she was raped. She had further stated that her brother and Munni's father came to Aligarh on 189 10 and she was married forcibly with accused by Munni's father. PW1 and PW3 admitted that they had not seen prosecutrix going with accused Munni but in the same breath PW3 deposed that Munni had come to her house to ask well being of her son and at the time of leaving, she took prosecutrix with her. So as per PW2 and PW4 when prosecutrix left her house in the company of accused Munni all family members were present. It means they were aware right from the beginning that victim was in the company of Munni. Why they did not report the matter to the police on 16/17/1892010? It was only reported on 1992010 after return of victim and accused. In examination in chief, version of prosecutrix is that she was taken forcibly to police post by accused Munni but in crossexamination by APP she stated it correct that when she was being taken to accused Firoz, Munni had given her water to drink and after consuming that water she State vs. Firoz etc. 15 of 27 16 became little unconscious. Thereafter, her face was covered with a veil and was taken to PP. She stated in crossexamination that accused was found near PP and he took her to Aligarh at the point of knife. She had not stated these facts in her statement Ex. PW4/C made before the Magistrate and she has been duly contradicted on these points with that statement. She admitted in crossexamination that police post was about 10 minutes away from her house and on the way to PP there were jhuggies around and public persons were passing that way. Had she been threatened by Munni, she would have complained those persons about the threat and they could have rescued her. She even did not inform the police official of the PP. These facts raise serious doubts about the complicity of accused Munni in her kidnapping. Her conduct after her coming in the company of accused Firoz is also quite relevant. In cross examination she deposed that from the bus stop of police post, she and accused Firoz boarded a bus bound to Aligarh. Firoz made her to sit beneath the seat of the bus and he was sitting on the seat. The bus had 2025 passengers. She did not raise noise or attempted to inform anybody about his forcibly taking by accused. She remained in the bus for seven State vs. Firoz etc. 16 of 27 17 hours. Her explanation is that she became unconscious during journey and kept lying on the floor of the bus. A girl of 1314 years cannot be made to sit under the seat because there is no so much space for it. Even if it is presumed that she was made to sit there, she might have been visible to everybody and the passengers would have questioned her presence beneath the seat. They alighted at bus stop Aligarh and proceeded to the jhuggi of PW12 Hanif @ Langra and reached there in five minutes on foot. She admitted that on the way she met several persons and she did not raise any noise. Feeble explanation is that her face was covered with cloth by the accused. She admitted in crossexamination that she was taken by Firoz to a court at Aligarh in a rickshaw and she did not raise any alarm or attempt to call anybody. Several police officials and advocates were present in the court but she did not raise alarm. All these facts suggest that prosecutrix was very well known to accused Firoz previously. Firoz resides in E257 and victim is resident of E251. Proximity of their house might have helped them to come in connection with each other. There is a document Ex.PW1/B termed by defence counsels as Marriage Certificate. It is an affidavit on the stamp paper of Rs.10/ signed State vs. Firoz etc. 17 of 27 18 by accused, victim, Notary Public. Signatures of victim and accused Firoz have been identified by an advocate. Name of the stamp vendor is Mr. Satya Kumar Sharma. IO PW17 stated in crossexamination that neither before 131210 and not thereafter, he made any inquiry from that vendor. He could not assign any reason why Mr. Satya Kumar Sharma was not interrogated. He did not make any inquiry from the advocate of Civil Court, Aligarh who had identified the signature of prosecutrix and accused Firoz. He did not inquire facts from Notary Public Mr. Mishra who had attested the affidavit Ex.PW1/B. He did not make any inquiry from any other person/official of Civil Court, Aligarh regarding gennunity of the contents of the affidavit. In the end he deposed that he was not in a position to assign any reason for not conducting investigation on these issues. It is the case of the prosecution that PW1 brought her sister to Delhi from the jhuggi of PW12 but IO did not record the statement of any of the neighbour of Hanif @ Langra. Investigation on these points was quite necessary in order to know whether the prosecutrix was forcibly taken there or not but IO committed default. PW12 Hanif @ Langra deposed that accused Firoz had come to his jhuggi with State vs. Firoz etc. 18 of 27 19 victim claiming that the girl wanted to marry him. Both stayed in his jhuggi on that night. Next day the girl was taken to court by accused Firoz where both married. In crossexamination PW12 stated that prosecutrix had told him on inquiry that she wanted to marry accused and that she had come there voluntarily. He admitted that PW1 Shamshad came to his jhuggi. At that time he was at a tea stall and accused and victim were in his jhuggi. PW12, in company of PW1 went to jhuggi from tea stall. This witness further deposed the prosecutrix was beaten by her brother as she was refusing to accompany him saying that she was the legally wedded wife of the accused Firoz but her brother was not relenting. Accused and victim were forcibly put in a rickshaw and PW12 could not help because PW1 was accompanied by four other boys. PW1 had also admitted in his cross examination that when he reached to the jhuggi of PW12, his sister was trying to escape from him and hence was not ready to meet him. Conclusion of all these facts is that victim was in friendship with accused Firoz. Her going with accused Firoz seems to be the result of a long allurement/inducement created by the accused in the mind of prosecutrix. It was held by Hon'ble Supreme Court in Thakor Lal State vs. Firoz etc. 19 of 27 20 D. Badgama Vs. State of Gujarat AIR 1973 SC 2313 that word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualize and describe exhaustively, some of them may be quite subtle depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving the ultimate purpose of successful inducement. In the case in hand also, the long association of the victim with the accused and their eloping from the house is the result of successive and long standing inducement exercised by accused to her. The accused Firoz had laid down a foundation by inducement or allurement to have influenced the minor in her leaving in her father's custody and going to the accused. Then what may the reason of implication of accused Munni. On this issue DW1 Md. Yusuf father of accused Munni stated that one Md. Asadulla, brother of prosecutrix used to drive her auto. This fact has been admitted by PW1, PW3 and PW4 also. That Auto met with an accident on 1692010 with another auto and the matter was State vs. Firoz etc. 20 of 27 21 compromised between both parties with the help of police and DW2. As per settlement, medical expenses of Md. Asadulla were to be born by the opposite party. DW2 further deposed that after returning home at 7.00 PM, Asadulla, PW3 and PW1 came to his house to state that they were not satisfied with the compromise got done by him (DW2) and they wanted him to pay a sum of Rs.50,000/ or one lac to Md. Asadulla. DW2 refused to meet this unreasonable demand. On the same day he came to know that prosecutrix had eloped. He further deposed that three days after the incident he came to know that her daughter Munni was falsely implicated in this case due to his nonfulfillment of demand of Rs.50,000/. The compromise Ex. DW1/A was written by DW1. He deposed that on 16910, on receipt of PCR call regarding accident at Sector5, Bawana, he reached there and came to know that injured had been shifted to the MB hospital. After reaching the hospital he met injured Asadulla who had sustained injuries. He further deposed that he came to know that rival parties Asadulla on one side and Suleman on the other side, had entered into settlement with the help of witness who were present at that time and so he recorded statement Ex.DW1/A of Asadulla. Due to State vs. Firoz etc. 21 of 27 22 waivering testimony of PW4 on the issue of her taking, her conduct in the company of accused Firoz and deposition of DW1 and DW2, this court is coming to the conclusion that accused Munni had no role in the kidnapping and threat to victim and rather she left her house due to long inducement by accused Firoz.
Counsel for accused Firoz argued that as the court has come to the conclusion that prosecutrix had left with Firoz voluntarily, his client cannot be held guilty u/s 363 IPC. This argument is not in consonance with section 361 of the IPC where kidnapping has been defined. At the cost of repetition, it is reminded to the counsel that age of the prosecutrix has already been held below 13 years on the date of the incident. She had not even attained the age of discretion.
10. FORCIBLE MARRIAGE Stand of PW4 is that accused Firoz married her forcibly in Aligarh Court. The IO did not record the statement of any neighbour of PW12. He did not make investigation from the stamp vendor and advocate who had identified the signature of prosecutrix and accused Firoz. He did not even contact the Notary Public who had attested the affidavit. PW4 deposed that her State vs. Firoz etc. 22 of 27 23 marriage was stopped by PW1 midway but PW1 is silent on this point. So, prosecution has not substantiated the charge u/s 366 IPC.
11. RAPE In examination in chief prosecutrix deposed that accused committed rape upon her on 17910. PW12 also admitted that victim and accused Firoz had stayed in her jhuggi in the night and on that night he stayed outside the jhuggi with his friend. Version of prosecutrix is not corroborated by MLC Ex.PW5/A prepared by Dr. Kavita and proved by PW5 Dr. Samir. He categorically deposed that no external injury was seen all over her body. She was referred to higher centre as the requisite facilities were not available in the hospital of PW5. That high centre was in BSA hospital where prosecutrix was examined by PW6 Dr. Dolly Bansal. That doctor deposed that on examination, no external burise mark was seen all over the body and over the genital region of the victim. Though hymen was torn but there was no abrasion/ bruise on the hymen. Though medical evidence is not coming in support of the victim, but a glaring suggestion given by accused to her has proved boomrang for him. That suggestion is mentioned as State vs. Firoz etc. 23 of 27 24 under:
"... It is wrong to suggest that I had gone with Firoz out of my free will and I was consented to marry Firoz and had physical relations with Firoz with my consent."
The simple meaning of this suggestion is that there was sexual intercourse between the parties but with consent. The girl has already been held below 13 years. Consent by a girl below 16 years is of no help to the accused. Finding no support from any corner and feeling stunk by his own suggestion, the counsel argued that sexual intercourse had taken place with the consent of the wife as it has been proved by Ex. PW1/B that Firoz had married victim. Again the counsel is batting on a sticky wicket because the accused has failed to prove that there was a marriage with the girl. Ex. PW1/B cannot be said to be Nikahanama. For solemnization of marriage between Mohammdans, presence of Kazi is necessary who takes the consent of the girl in the presence of two vakils. There is no evidence on the file whether any kazi or any vakil was present at that time. So, marriage has gone unproved. Even if it is presumed that marriage has been proved, it is again of no use to the accused because that affidavit is dated 1892010 whereas State vs. Firoz etc. 24 of 27 25 prosecutrix deposed in examination in chief that she was raped on 1792010 and admittedly on that day no marital relation was standing between them.
12. In view of above discussion, accused Maunni is acquitted of the charges levelled against her. Accused Firoz is held guilty u/s 363/376 of IPC. Let he be heard on the point of sentence separately. Bail bonds stand cancelled. Sureties discharged. File be consigned to Record Room.
Announced in the Open Court on 11th day of January, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
State vs. Firoz etc. 25 of 27
26
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.17/2011
FIR No.390/10
PS Narela
State
Vs.
1. Firoz s/o Hazrat
R/o E257, JJ Colony, Bawana
Delhi.
2. Munni d/o Yusuf ) Discharged vide
R/o E253, JJ Colony, Bawana ) Judgment dated Delhi. ) 11.01.2013.
Date of institution :17012011 Date when arguments concluded:03012013 Date when Judgment pronounced:11012013 31.01.2013 ORDER ON SENTENCE Present: Ms. Purnima Gupta, APP for the State.
Mr. Sudhir Kumar, counsel for convict Firoz.
Convict produced from JC.
1. Convict Firoz has been convicted u/s 363 and 376 IPC.
2. Counsel for convict argued that convict Firoz is a young boy of 23 State vs. Firoz etc. 26 of 27 27 years. He is still unmarried and has to maintain his parents i.e. handicapped father of 50 years age whose one hand has been amputated and 47 years old mother who is housewife. Counsel further submitted that convict is the only bread earner of his family and has clean antecedents.
3. Taking into account the facts and circumstance of the case, convict Firoz is sentenced u/s 363 of IPC to undergo RI for three years and a fine of Rs.3,000/ is imposed. In default of payment of fine, he shall further undergo SI for six months. He is further sentenced under Section 376 of IPC to undergo RI for seven years and a fine of Rs.5,000/ is imposed. In default of payment of fine, he shall further undergo SI for two years.
4. Both sentences shall run concurrently.
5. Benefit of 428 Cr.PC be given to convict.
6. Fine not deposited.
7. A copy of Judgment and Order on Sentence be supplied to the convict free of cost.
8. File be consigned to Record Room.
Announced in the Open Court On 31st day of January, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
State vs. Firoz etc. 27 of 27