Delhi District Court
State vs . Mohd. Mister on 3 December, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 98/2012
Unique Case ID: 02404R0245812012
State Vs. Mohd. Mister
S/o Mohd. Haroon
R/o House No. 474, Gali No. 6
Dharamshala Wali Gali,
Shalimar Gaon, Delhi.
(Acquitted)
FIR No. : 158/2012
Police Station : Shalimar Bagh
Under Section : 376/366/363 Indian Penal Code
Date of committal to Sessions Court : 16.10.2012
Date on which orders were reserved : 03.12.2012
Date on which judgment pronounced : 03.12.2012
JUDGMENT
Brief Facts:
(1) As per the allegations on 6.6.2012 at 2:00 PM at House No. 474 Gali No. 6, Dharam Shala Wali Gali, Shalimar Bagh, Delhi, the accused Mohd. Mister kidnapped the minor girl 'S' aged about 15 years (name of the girl is withheld being the case under Section 376 IPC) from the lawful guardianship of her parents and thereafter between 6.6.2012 to 8.6.2012 at the house of Mukhtar at Kapashera Border he committed rape upon her.
State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 1 of 24
Case of Prosecution in Brief:
(2) The case of the prosecution in brief is that on 11.6.2012 the prosecutrix 'S' along with her mother came to the Police Station and gave a complaint to the Duty Officer regarding rape having been committed with her which complaint was recorded vide DD No. 80B.
Thereafter, statement of the prosecutrix was recorded wherein she told the IO she along with her family was residing at House No. 474 Gali No. 6, Dharamshala Wali Gali, Shalimar Village, Delhi on rent and in the adjoining room of the same house the accused Mohd. Mister was also residing along with his jija namely Umru. She has further stated that one day Mohd. Mister told her that he loves her and wanted to marry her and would keep her happy. She further told the IO that on 6.6.2012 at 2:00 PM Mohd. Mister called her in the gali and asked her to accompany him for site seeing and thereafter he made her to sit in an auto and took her to Paharganj and after taking her to various places during the day, he took her to Kapashera border in a bus at the house of his mausi and kept her in the room of one Mukhtar. The prosecutrix has further told the IO that when she asked the accused to take her home, he told her that he would take her home in the morning as it was already night at that time and thereafter in the night, he committed rape with her against her wishes and told her that he would marry her in the morning. She told the IO that on the next morning, when she asked Mohd. Mister to take her State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 2 of 24 home, he told her that he would marry on next day and on that night also he committed rape upon her without her wishes. She has further told the IO that on 8.6.2012 her mother and the jija of Mohd. Mister namely Umru came to Kapashera and her mother took her home and when her mother asked her what had happened she narrated the entire story to her mother after which she came to the police station. (3) On the basis of the above statement of the prosecutrix, a rukka was prepared, FIR was registered and the investigation was initiated. During investigations the accused Mohd. Mister was arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(4) Charges under Section 363/366/376 Indian Penal Code were settled against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as eighteen witnesses:
Public Witnesses:
(6) PW5 Vijay has tendered his examinationinchief by way State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 3 of 24 of affidavit which is Ex.PW5/1. According to him on 12.6.2012 he along with SI Sarita, Ct. Sachin and accused Mohd. Mister reached at Meter No. 279, near old Dak Khana, Kapashera Village at about 2:50 PM and on the directions of the IO he made video clip of the house and also took the photographs. The witness has proved the photographs Ex.PW5/A to Ex.PW5/K and the CD containing video film and photographs Ex.PW5/L. This witness has not been cross examined on behalf of the accused and hence the testimony has gone uncontroverted.
(7) PW13 Rabina Khatoon has deposed that she used to make Dibbies (small container) of jewelry articles in the factory at Sahipur Village, Delhi. She has deposed that she has four children i.e. one son and three daughters and her eldest daughter Shahzadi Khaton who is already married and the next is the prosecutrix 'S' who is aged about 16 years and who was allured and kidnapped by Mohd.
Mister who was also residing with his brother in law (Jija) Umru in their adjoining house, on 06.06.2012. According to the witness, on 08.06.2012 Umru informed her that her daughter 'S' and Mohd. Mister were residing at the house of Mukhtar, cousin of Mohd. Mister at Kapashera, Delhi. The witness has deposed that thereafter she alongwith Umru went there and brought her daughter Shabnam Khatoon back to her house and her daughter 'S' informed her that Mohd. Mister committed sexual intercourse with her two times State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 4 of 24 during her stay at Kapasherea. According to the witness, Umru assured her about marriage between her daughter 'S' and Mohd. Mister but Parents and guardian of Mohd. Mister did not come forward for the marriage. The witness has deposed that she came to know that Mohd. Mister was already married and having a living wife and one son. She further deposed that thereafter she along with her daughter 'S' went to the police station Shalimar Bagh and informed the above said facts to the police on 11.06.2012 and one lady police officer interrogated her and her daughter 'S' and her (S) statement was recorded and she was taken to BJRM Hospital for medical examination and FIR was registered. According to the witness the police also came with them to her house where Mohd. Mister was present and he was arrested at her instance and also at the instance of her daughter 'S'. The witness has deposed that she also put her thumb impression on the arresting documents of accused Mohd. Mister i.e. arrest memo Ex.PW10/A bears thumb impression at point D. The witness has deposed that the accused Mohd. Mister was interrogated by the IO and whatever he told the same was recorded by the IO vide disclosure statement Ex.PW10/C bearing her thumb impression at point D. She has identified the accused Mohd. Mister in the court.
(8) In her cross examination by Ld. Amicus Curiae for the accused, the witness has deposed that the accused Mohd. Mister was State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 5 of 24 residing in her neighbourhood along with his brother in law Umru, Sister of accused Mohd. Mister used to call her as "Bua" but she is not related to her. Witness has admitted that Mohd. Mister used to come to her house and used to talk with her mother. According to the witness she used to go for her work at 9.00AM and returned back at 9.00 PM. She has deposed that accused Mohd. Mister told her that he wanted to marry with her daughter 'S' before kidnapping her daughter 'S' and he also told her that his wife did not want to live with him. The witness has deposed that she refused for marriage because accused was already married and having a son. According to the witness on 06.06.2012 when she returned back from her work at about 9.009 PM then she came to know that her daughter was kidnapped from the house. The witness has deposed that on 06.06.2012 she returned to her house at lunch time at about 1.00 PM and at that time her daughter 'S' was missing and she searched for her daughter for two days but she could not be recovered. She has deposed that she did make complaint to the police due to fear of social ostracization and feeling humiliated. She does not remember the name of the IO. She has denied that they lodged a false case against the accused Mohd. Mister or that she is deposing falsely. (9) PW15 'S' is the prosecutrix. She has deposed that she has been residing at the given address along with her parents, younger brother and younger sister and her elder sister was already married. State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 6 of 24 She has deposed that the accused Mohd. Mister was residing in the house of his brother in law namely Umru in their neighbourhood and he used to visit their house and used to talk with her and he told her that he wanted to marry her and thereafter on 06.06.2012 at about 1.00 PM she along with Mohd. Mister went outside of the house. According to the witness the accused took her in a auto (TSR) towards Dariya Ganj, Pahar Ganj and he told her that he wanted to marry her and further told her that after the marriage they would come back. The prosecutrix has deposed that thereafter Mohd. Mister took her to Kapashera in the house of his cousin whose name she does not recollect. According to the witness, they remained there for two days and both nights he committed rape with her and he told her that he would marry her on the next day. She has further deposed that on the next day on 08.06.2012 her mother came at Kapashera along with Umru and thereafter they took her to their house. She has further deposed that the parents of the accused Mohd. Mister did not reach Delhi for the purpose of their marriage, so their marriage could not be performed. She has deposed that she was aware that accused Mohd. Mister was already married and was having living wife and a son and thereafter she along with her mother went to PS Shalimar Bagh and made a complaint against Mohd. Mister and police recorded her statement vide Ex.PW11/B and she put her thumb impression at point A. She has deposed that the police took her to State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 7 of 24 the BJRM Hospital where her medical examination was conducted and thereafter they returned back to the police station. (10) The prosecutrix has further deposed that thereafter at her instance accused Mohd. Mister was apprehended from the house of Umru and she put her thumb impression on the arresting documents and Ex.PW10/A bears her thumb impression at point E. She has also deposed that on the next day she also went to the Kapashera where Mohd. Mister committed rape with her and she pointed out the same to the IO. The witness has deposed that police also took her to the Rohini Courts for recording of her statement before a Magistrate and her statement was recorded by him and she put her thumb impression on her statement recorded by Ld. MM which is Ex.PW15/A bearing her thumb impression at point A. She has identified the accused Mohd. Mister in the court.
(11) In her cross examination by Ld. Amicus Curaei for accused, the witness has deposed that the accused Mister was residing near their neighbourhood and used to visit their house and used to talk with them and that he was in love with her and she also in love with him and they both wanted to marry. She has deposed that the accused did not allure her for going from her house. She has deposed that she herself accompanied accused Mister to go away from her house and did not raise any alarm. She has admitted that she was aware about the marital status of the accused i.e. that he was State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 8 of 24 already married and was having a living wife and a child. The witness has admitted that the accused had not divorced his wife and had clarified this fact was told to her. According to the witness she is totally illiterate. She has deposed that she has given her actual age as 15 years on the basis of what was told to her by her parents. She admits that her parents do not have any document regarding her age. She deposed that they are four brother and sister and she is the second child of her parents and her eldest sister is married and her younger siblings are studying whereas her younger brother is studying class 5 and her sister is studying in class 3. She admits that she is unable to give her exact date and year of birth. She has denied that she is deliberately concealing her actual date of birth. Medical / Forensic Evidence:
(12) PW8 Dr. M. K. Panigrahi has deposed that on 12.06.2012 at about 12.45 PM he medically examined Mohd. Mister brought by SI Sarita with alleged history of sexual assault with a victim girl who was referred from BJRM Hospital. According to the witness, after medical examination of the patient, he prepared report which is Ex.PX8 (already admitted) bearing his signatures at point A. He has deposed that in her opinion there was nothing to suggest that the above person examined Mohd. Mister was not capable of performing sexual intercourse. The witness has not been cross State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 9 of 24 examined on behalf of the accused and his entire testimony has gone uncontroverted.
(13) PW12 Dr. Prem has deposed that on 17.08.2012 at 10.30 AM the prosecutrix 'S', aged about 15 years was brought at the casualty of the BJRM Hospital by SI Durga Kapri for bone age determination test and she was medically examined at the casualty by Dr. Azia Manzoor under his supervision and no fresh (external) injury was seen at the time of examination on the person of the prosecutrix 'S' after which Dr. Azia Manzoor prepared the MLC No. 45785 vide Ex.PW12/A and he put his signatures at point A in his presence. The witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted. (14) PW16 Dr. Mohit Tiwari has deposed that on 11.6.2012 at 11:30 PM patient Mohd. Mister, aged 22 years, male was brought to the hospital by Ct. Sachin with alleged history of sexual assault five days back. According to the witness, the patient was examined by Dr. Roshan, JR, under his supervision vide MLC PX5 and after medical examination of the patient, his blood samples were collected and he was referred for further examination for potency test to higher centre. The witness has identified the signatures of Dr. Roshan, JR at point A on the MLC PX5 having seen him while signing and writing during the official course of duties. The witness has not been cross examined on behalf of the accused and his entire testimony has gone State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 10 of 24 uncontroverted.
(15) PW17 Dr. Niyati Srivastava has deposed that on 11.06.2012 at about 8.45 PM the prosecutrix 'S', female, 15 years was brought at casualty of the hospital by Lady Ct. Sapna for medical examination with alleged history of sexual assault and Dr. Mohit Tiwari medically examined her and prepared the MLC Ex.PW17/A bearing his signatures at point A and he referred the patient to Gynae Department for further examination. The witness has deposed that in the Gynae Department she medically examined the above said prosecutrix with alleged history of sexual assault five days back and after her medical examination she gave her observations from point X to X1 bearing her signatures at point B and had not found any external injuries. She has deposed that she also prepared the sexual assault kit in respect of the prosecutrix and handed over all the exhibits to the police in sealed condition with sample seal. The witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted. Police Witnesses:
(16) PW1 ASI Bhupinder has tendered his examinationin chief by way of affidavit which is Ex.PW1/1. According to the witness on 11.6.2012 he was posted at ERV Vehicle No. DL IC M 4204 as Driver and had taken the prosecutrix, her mother, Ct. Sapna State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 11 of 24 and the IO to the BJRM Hospital for medical examination of the prosecutrix and brought them back. He also took the accused along with the IO to the Hospital for his medical examination on 12.6.2012 at about 2 AM and thereafter returned back in the police station. (17) In his cross examination by Ld. Amicus Curaei for accused, the witness has deposed that he does not remember the exact time when he took the prosecutrix, her mother, Lady Ct. Sapna and IO to the hospital but it was night time. According to him they reached at the hospital within 20 minutes and remained in the hospital for about one hour but he did not make his departure and arrival entry for the above said proceedings and has voluntarily added that he made entry in this regard in her log book. The witness has denied that she did not took the above said persons or that she is deposing falsely.
(18) PW2 HC Yograj has tendered his examinationinchief by way of affidavit which is Ex.PW2/1. He was working as MHC (M) and has made various entries pertaining to this case and has relied upon entry in Register No. 19 bearing S. No. 4504/12 copy of which is Ex.PW2/A, entry in Register N. 21 vide RC No. 58/21/12 copy of which is Ex.PW2/B bearing his signatures at point A and receipt issued by FSL copy of which is Ex.PW2/C. The witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted.
State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 12 of 24 (19) PW3 HC Gulab has tendered his examinationinchief by way of affidavit which is Ex.PW3/1. According to him 12.6.2012 he was posted at ERV Vehicle No. DL 1C M 4202 as Driver and on the instructions of the SHO he had taken the prosecutrix to Nirmal Chhaya in the safe custody of W/Ct. Sanju. The witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted.
(20) PW4 Ct. Vikrant has tendered his examinationinchief by way of affidavit which is Ex.PW4/1. According to him on 13.6.2012 he received from the IO one sealed sexual assault kit, one pullanda containing blood sample of accused sealed with the seal of BJRM Hospital which he had deposited in the malkhana. He has relied upon documents i.e. entry in register no. 21 vide RC No. 58/21/12 copy of which is Ex.PW2/B and receipt issued by FSL copy of which is Ex.PW2/C. The witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted.
(21) PW6 HC Ravinder Singh has tendered his examination inchief by way of affidavit which is Ex.PW6/1. According to him he was posted as duty officer and on receipt of the rukka, he registered the FIR in this case copy of which is Ex.PW6/A and also made endorsement on rukka which is Ex.PW6/B. In his cross examination State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 13 of 24 by Ld. Amicus Curaei for accused, the accused has deposed that SI Sarita came to me and handed over the rukka to me at 9.00 PM and at that time SI Sarita accompanying with prosecutrix and her mother. According to him it took only 10 minutes in recording the FIR but he does not remember the name of computer operator who recorded the FIR on her instruction on the basis of rukka. The witness has denied that he recorded the FIR at antetimed.
(22) PW7 Ct Sanju has tendered her examinationinchief by way of affidavit which is Ex.PW7/1. According to the witness on 12.6.2012 at about 4:30 PM on instruction of the SHO, she took the victim to Nirmal Chhaya in official Gypsy driven by HC Gulab. The witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted.
(23) PW9 L/Ct. Sapna has deposed that on 11.06.2012 she along with SI Sarita took the prosecutrix and her mother to BJRM Hospital in the official vehicle ERV bearing No. DL 1C M 4204 for medical examination of prosecutrix and thereafter received the MLC and medical examination kit of sexual assault in respect of prosecutrix from the doctor in sealed condition with sample seal and she handed over the same to the IO who seized the same vide Ex.PW9/A. (24) In her crossexamination by Ld. Amicus Curiae for accused, the witness has deposed that the medical examination of State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 14 of 24 prosecutrix was conducted inside the room and she was present outside of the room and that the said medical examination took about 30 minutes. She has denied that she is deposing falsely at the instance of the investigating officer.
(25) PW10 Ct. Sachin has deposed that on 11.06.2012 at about 9:30 PM he along with IO, prosecutrix and her mother reached at house No. 474, gali No. 6, Shalimar village, Delhi by official vehicle and at the instance of mother of prosecutrix Mohd. Mister was apprehended and prosecutrix also identified him and he was interrogated by the IO and he confessed about his involvement and thereafter IO arrested Mohd. Mister vide Ex.PW10/A, his personal search was taken vide Ex.PW10/B and his disclosure statement was recorded by the IO vide Ex.PW10/C. The witness has deposed that the accused Mohd. Mister was taken to BJRM Hospital for medical examination and he was medically examined there and doctor handed over his blood sample to him in sealed condition along with sample seal and he handed over the same to the IO who seized the same vide seizure memo Ex.PW10/D. The witness has further deposed that thereafter accused Mohd. Mister was taken to Hindu Rao hospital for potency test but same could not be done there and he was called on 12.06.2012 for potency test and they returned back to the PS and he was kept in the lock up. According to the witness on 12.06.2012 he along with IO took Mohd. Mister to Hindu Rao hospital for potency State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 15 of 24 test and after his potency test Mohd. Mister pointed out the place of incident i.e. meter No. 279, near purana dakhkhana Kapeshera and pointed out the room where he had committed rape upon the victim. He has deposed that pointing out memo was prepared by the IO vide Ex.PW10/E and the victim and her mother also met them there. The witness has deposed that thereafter he took the accused Mohd. Mister to the Ashok Vihar for preparation of the search slip and thereafter accused was produced before the Hon'ble court and he was remanded to Judicial Custody. The witness has identified the accused Mohd. Mister in the court.
(26) In his cross examination by the Amicus Curiae for accused, the witness has deposed that they proceeded from police station at about 9:30 PM on 11.06.2012 towards Shalimar village but he did not make any departure DD and has voluntarily added that the IO might have done the same. The witness has deposed that the accused Mohd. Mister was arrested at Shalimar Village and prosecutrix and her mother were with them at that time and that the accused Mohd. Mister was arrested around 11 PM. He has deposed that they reached at BJRM hospital at about 12 midnight and remained at the hospital for about 45 minutes and they left the hospital at about 1 AM. According to the witness at about 1:40 AM they reached at Hindu Rao hospital and within 15 minutes they left the Hindu Rao Hospital.
State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 16 of 24 (27) PW11 SI Sarita has deposed that on 11.06.2012 at about 7 PM the prosecutrix came at the police station along with her mother and made complaint to the duty officer and DD No. 80 B was recorded by the duty officer and the same was handed over to her for further proceedings which is Ex.PW11/A. According to the witness, she examined the prosecutrix who made allegations of rape against one Mohd. Mister. She recorded her statement in detail which is Ex.PW11/B and took 'S' to BJRM hospital along with her mother and lady constable Sapna for medical examination. She has deposed that after medical examination of prosecutrix, she received her MLC and L/ Ct. Sapna handed over the medical examination kit in respect of the prosecutrix to her in sealed condition with sample seal and she seized vide seizure memo Ex.PW9/A and thereafter they returned back to the police station. She has deposed that she made endorsement Ex.PW11/C on the statement Ex.PW11/B and handed over the same to the duty officer for registration of the FIR and after registration of the FIR No. 158/12 investigation was handed over to her after which she recorded the statement of the witnesses and deposited the seized articles in the malkhana. According to the witness thereafter she along with the prosecutrix, her mother and Ct. Sachin reached at the house of prosecutrix at 474, gali No. 6, Shalimar Gaon and at her instance, the accused Mohd. Mister was apprehended. The witness has deposed that she interrogated the State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 17 of 24 accused who confessed about his involvement in commission of rape with victim and thereafter he was arrested vide Ex.PW10/A, his personal search was taken vide Ex.PW10/B and his disclosure statement was recorded vide Ex.PW10/C and thereafter they took accused Mohd. Mister to BJRM hospital for his medical examination and received the blood sample of accused Mohd. Mister in a sealed condition and seized the same vide Ex.PW10/D. The witness has deposed that the potency test of the accused could not be done and he was referred to Hindu Rao Hospital and on 12.06.2012 his potency test was conducted there and medical report was received. According to the witness, the accused Mohd. Mister took them to the place of incident to the Kapshera village, they also called the photographer Vijay in the presence of the victim. The witness has deposed that the accused pointed out the place of incident and she (witness) prepared the site plan of the third room of the ground floor of the house meter No. 279, near Old Dakhkhana, Kapshera village vide Ex.PW10/E. The witness has deposed that the cousin of the accused namely Mukhtar disclosed that 06.06.2012 accused Mohd. Mister came to him in the above said house. According to the witness the photographer Vijay took the photographs and also prepared the videography of the place of incident. The witness has deposed that the victim also pointed out the place of incident and she (witness) prepared the site plan Ex.PW11/D and thereafter accused State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 18 of 24 was sent to Ashok Vihar for preparation of search slip through Ct. Sachin and thereafter accused Mohd. Mister was produced before the hon'ble court and was sent to JC. The witness has deposed that she also got recorded the statement of victim U/s 164 Cr. PC. (28) In her cross examination by Ld. Amicus Curiae for accused, the witness has deposed that they reached at Shalimar village at about 10:30 PM along with Ct. Sachin, victim and her mother. She has deposed that the prosecutrix pointed out the room where accused Mohd. Mister was residing and identifying him correctly and he was taken in custody by her and she (witness) took the accused to the BJRM hospital at about 11:15 PM. According to the witness they took accused to Hindu Rao Hospital at about 12.30AM and remained there for about 3045 minutes. The witness has deposed that the photographer Vijay joined the investigation on 12.06.2012 at about 1.30 PM and he took photographs of the place of incident and also of the adjoining room and also of the passage. The witness has denied that the accused Mohd. Mister did not make any disclosure statement or that accused Mohd. Mister did not point out any place of incident. She has further denied that she prepared the documents herself at the police station and obtained the signatures of witnesses and thumb impression of Mohd. Mister at the police station. She has also denied that Mohd. Mister was called at the police station from his house and falsely implicated in this case at the State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 19 of 24 instance of the prosecutrix Shabnam Khatoon.
(29) PW14 SI Sanju Rai has deposed that on 13.06.2012 on the direction of the ACP she took over the investigations of this case and brought the prosecutrix to the Rohini Courts before the Ld. MM from Nirmal Chhaya for recording of the statement U/s 164 Cr. PC and after statement was recorded by Ld. MM, she made request for copy of statement vide Ex.PX4. The witness has deposed that the prosecutrix was handed over to her parents. This witness has not been cross examined on behalf of the accused and hence his testimony has gone uncontroverted.
(30) PW18 SI Durga Kapri has deposed that on 16.8.2012 the further investigations of this case was marked to her and she after going through the file came to know that the ossification test of the prosecutrix was not got conducted. According to the witness, on 17.8.2012 she took the prosecutrix to BJRM Hospital where her ossification test/ age determination test of the prosecutrix was got conducted and the age of the prosecutrix was estimated as 1819 years. The witness has deposed that later she obtained the ossification test report of the prosecutrix which is Ex.PW18/A. She has deposed that thereafter she interrogated Mohd. Mukhtar the cousin of the accused in whose room the accused kept the prosecutrix and also interrogated one Mohd. Idrish who was the tenant in the adjoining room and after preparing the charge sheet, she filed the State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 20 of 24 same in the court through the SHO concerned. This witness has not been cross examined on behalf of the accused and hence his testimony has gone uncontroverted.
Statement of Accused & Defence Evidence:
(31) After going through the evidence which came on record and having found nothing incriminating against the accused since the star witness of the prosecution i.e. prosecutrix 'S' did not support the case of the prosecution and there being no other evidence, either Scientific, forensic or circumstantial to connect the accused with the alleged offence, the statement of accused under Section 313 Cr.PC was dispensed with.
FINDINGS:
(32) I have gone through the testimonies of various witnesses examined by the prosecution and other material placed on record. I have also considered the oral submissions made before me on behalf of the State as well as the accused. Firstly in so far as the identity of the accused is concerned, the same is not disputed as both the prosecutrix and the accused were previously known to each other.
Even otherwise the accused has been named in the FIR and also identified in the court by the prosecutrix. I hold that the identify of the accused stands established.
State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 21 of 24 (33) Secondly in so far as the age of the prosecutrix is concerned, the same is disputed. As per the original complaint, the prosecutrix has claimed that she was 15 years of age but now in the court in her cross examination she has stated that she was not aware of her date of birth and has also admitted that whatever age her parents have told her she has stated in her complaint and the court. According to the ossification test report Ex.PW18/A, the estimated age of the prosecutrix as on 27.8.2012 is around 18 to 19 years, which has not been disputed by the accused and there is no record to controvert the same, indicating that at the time of alleged incident, the prosecutrix was a major (above 18 years of age). (34) Thirdly it is evident from the testimony of the prosecutrix that she had voluntarily eloped with the accused being in love with him. She has admitted that even prior to the incident there was talk of marriage between her and the accused and it was thereafter that the prosecutrix and the accused went out together. The prosecutrix has admitted that she was aware of the matrimonial status of the accused that he was already married and was having living wife and child and that he had not divorced his wife and this aspect also finds independent corroboration from the testimony of PW13 Rabina Khatoon the mother of the prosecutrix. The prosecutrix also admits that she had made this complaint to the police out of fear of social ostracization and humiliation. It is writ large that State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 22 of 24 the prosecutrix was a major at the time of the incident and in any case had attained the age of consent and was consenting party when she herself eloped with the accused voluntarily and stayed with him during which period physical relations were made by the accused with her as both of them were in love and wanted to marry. (35) Fourthly the medical evidence confirms that the hymen of the prosecutrix was torn (prosecutrix herself states that physical relations were made between her and the accused during the period she stayed with him).
(36) Lastly the proceedings regarding the apprehension and arrest of the accused have not been disputed.
(37) Hence in view of the above, it is writ large that the present case was registered since the age of the prosecutrix was given as less then 15 years. However, during the trial, it has been established that the prosecutrix was a major (i.e. between 18 to 19 years of age and was also aware of the matrimonial status of the accused despite which she eloped with him and made relations with the accused being in love with him where there is the question of kidnapping / abduction or rape. The provisions of Section 376 IPC cannot be invoked only to compel the accused to fall in line or to marry the complainant as the complainant in the present case is seeking to do.
State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 23 of 24 (38) I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused under Section 363/366/376 Indian Penal Code and hence the accused Mohd. Mister is hereby acquitted of the same. He be released if not wanted in any other case. The surety of the accused be discharged, as per rules.
(39) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 03.12.2012 ASJ (NW)II: ROHINI
State Vs. Mohd. Mister, FIR No. 158/12, PS Shalimar Bagh Page 24 of 24