Delhi District Court
State vs . 1. Meharban Ali on 5 February, 2016
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FIR No. 354/13
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 23/14
Unique ID No. : 02404R0036262014
State Vs. 1. Meharban Ali
S/o Sh. Usman
R/o Village Syohara,
Tehsil - Dhampur,
District - Bijnaur, U.P.
2. Sehzad
S/o Mohd. Yaqoob
R/o E - 504, Ekta Camp,
Haiderpur, Delhi.
FIR No. : 354/13
Police Station : Narela
Under Sections : 376/365/120B IPC
Date of committal to session Court : 05/02/2014
Date on which judgment reserved : 04/02/2016
Date on which judgment announced : 05/02/2016
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FIR No. 354/13
PS - Narela
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 25/05/2013, on receipt of DD No. 41A dated 24/05/2013, SI Seema with complainant Barkati, D/o Mohd. Nisaar reached at House No. F - 615, J.J. Colony, Bawana, Narela, Delhi, where Prosecutrix (name withheld being a case u/s 376 IPC), D/o Mohd. Nisaar met, who disclosed that Meharban who is the resident of Bijnaur, who in conspiracy with his Jija (Brotherinlaw) Sehzad, after inducing her, took her to the Jhuggi of Sehzad, where he committed Galat Kaam with her. During this, SI P. L. Meena and Beat Constable Vinod also came there and the Prosecutrix told that Meharban can be found with his Jija who lives in Ekta Camp Jhuggi, Haider Pur. Thereupon, SI Seema alongwith SI P. L. Meena and Constable Vinod with complainant Barkati and Prosecutrix reached at Ekta Camp where Meharban was not found but his Jija met, who was brought to the Police Station. NGO Nazma Khan, C/o Nav Shrishti was also called in the Police Station for councelling of the Prosecutrix. Prosecutrix, after writing, gave a complaint in front of 2 of 42 3 FIR No. 354/13 PS - Narela NGO Nazma Khan. Sehzad was kept in the custody of SI P. L. Meena and Constable Vinod. Thereafter, SI Seema with W/Constable Raj Bala took the Prosecutrix for her medical examination at SRHC Hospital, Narela, Delhi, where medical examination of the Prosecutrix was conducted vide MLC No. 53/13. The contents of the complaint given by the Prosecutrix (name withheld), D/o Mohd. Nisaar, R/o F - 615, J. J. Colony, Bawana, Delhi is to the effect that, she is the resident of the above address. She was knowing Meharban who is the resident of Bijnaur, Syohara, for the last 10 months, who was running a chicken meat shop in Sabzi Mandi at a distance from her house in her colony and she usually used to purchase meat from the shop of Meharban Ali. One day, Meharban Ali said to her that he wants to have friendship with her, but she refused, but Meharban Ali used to say to her that he wants to have friendship with her as he likes her too much, as and when she used to go to purchase meat from his shop. One day, when she went to the shop of Meharban Ali to purchase meat then Meharban asked her as to what is her idea about the friendship, on which she said in the affirmative and did the friendship with him and they became the friends. They used to talk with each other and they both used to go here and there 3 of 42 4 FIR No. 354/13 PS - Narela also. About 78 months ago, Meharban Ali said to her that he has developed love for her and he loves her too much and he took her to the house of her Jija at Ekta Camp Jhuggi, Haider Pur, Pitam Pura, where Sehzad Jija of Meharban Ali also met, who (Sehzad) asked Meharban Ali, as to who this girl is and from there he has brought her, on which Meharban Ali said that he loves this girl and her name is Prosecutrix (name withheld), then Meharban Ali and Sehzad by going a little away, talked separately and on coming back Meharban Ali asked Sehzad to go away and on hearing this Sehzad came out of the Jhuggi and Sehzad bolted the Jhuggi from outside and thereafter, Meharban Ali, after forcibly laying her on a Takhat and after removing her wearing salwar by forcibly opening its cord (Nada), he forcibly committed Galat Kaam with her, she resisted too much but Meharban Ali did not listen to her. After some time, she had worn her clothes, Sehzad, Jija of Meharban Ali came back in the Jhuggi, to whom (Sehzad) she told about the incident on which Sehzad said nothing matters, he will get perform her marriage with Meharban Ali but she should not say anything to anyone (Koi Baat Nahi Teri Meharban Ali Se Shaadi Kara Denge, Tu Kisi Se Kuch Nahi Kehna) and Meharban Ali said that he has a true love for her and he will 4 of 42 5 FIR No. 354/13 PS - Narela certainly perform the marriage with her, on which she thought that now it will be right to perform the marriage (Jo Maine Socha Ki Ab Shaadi Kar Lene Mei Hi Thik Rahega). She did not tell about the incident to anyone. Meharban Ali was deferring the marriage sometimes by five days, then fifteen days and he kept on misleading her and Meharban Ali kept on thereafter making physical relations with her and he kept on giving the false assurance of marriage. When she said to his Jija Sehzad about Meharban Ali, that on that day, he (Sehzad) had said, that he (Sehzad) will perform her marriage with Meharban Ali and now Meharban Ali, by not performing the marriage with her is cheating her and giving the false assurance. During this Sehzad started keeping Meharban Ali on his shop and he (Sehzad) did not allow her to meet him (Meharban Ali) and he (Sehzad) kept concealed Meharban Ali and in the month of March, she did the vomiting and went to the Doctor and got her checkup on which the Doctor said that she is pregnant and thereafter, she, many times told Meharban Ali to perform the marriage and also told about her pregnancy on which he asked her to wait for a month, then he will perform the marriage. After one month,she again said to him (Meharban Ali) and his Jija to perform the marriage but both of them 5 of 42 6 FIR No. 354/13 PS - Narela refused for performing the marriage and Sehzad turned out Meharban Ali and said that he is not here and had gone to Sultan Puri. She, after going to Sultan Puri, searched for Meharban Ali too much but she did not find him. About two days back, she told her sister Barkati and Barkati told Meharban Ali on the phone, on which he (Meharban Ali) said that he will perform the marriage and is coming tomorrow, but he has not come till date. Meharban Ali and his Jija Sehzad hatched a conspiracy and Meharban Ali committed a Galat Kaam upon her due to which she is pregnant. Legal action be taken against Meharban Ali and Sehzad. On the basis of the complaint, from the inspection of the MLC, finding that offences u/s 365/376/120B appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Seema. During the course of investigation site plan was prepared. Statements of the witnesses were recorded. On 25/05/2013, accused Sahzad was arrested on the identification of the Prosecutrix and his medical examination was got conducted from SRHC Hospital vide MLC No. 963/13. On 26/05/2013, accused Meharban Ali was arrested on the identification of the Prosecutrix and his medical examination was got conducted from SRHC Hospital vide MLC No. 6 of 42 7 FIR No. 354/13 PS - Narela 2413 and the sealed exhibits, handed over by the Doctor after his medical examination were taken into Police possession. Statement of the Prosecutrix u/s 164 Cr.P.C. was got recorded.
Upon completion of the necessary further investigation challan for the offences u/s 365/376/120B IPC was prepared against accused Meharban Ali and Sehzad and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/365/120B IPC was made out against accused Meharban Ali and Sehzad. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and 7 of 42 8 FIR No. 354/13 PS - Narela examined 09 witnesses. PW1 - Constable Raj Bala, PW2 - HC Ram Mehar, PW3 - Constable Vinod, PW4 - Dr. Nisha Agarwal, Medical Officer (Gynae Specialist), Sector - 9, Polyclinic, Bahadurgarh, Haryana, PW5 - Prosecutrix (name withheld), PW6 - Dr. Rajesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi, PW7 - Mohd. Nissar, PW8 - Dr. Brijesh Patel, CMO, Dr. BSA Hospital, Rohini, Delhi and PW9 - SI Seema.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Constable Raj Bala, who deposed that on 25/05/2013, she was posted as Constable at PS Narela, on that day, she was on night emergency duty from 8:00 p.m. to 8:00 a.m. At about 11:40 p.m. Prosecutrix (name withheld) came to PS and gave a complaint to W/SI Seema. IO informed NGO and after sometime Ms. Nazma Khan member NGO came to PS. On the directions of IO she alongwith Ms. Nazma Khan put (took) the Prosecutrix to SRHC Hospital and got conducted the medical examination of Prosecutrix (name withheld). The UPT of Prosecutrix was found positive. Thereafter, she and member 8 of 42 9 FIR No. 354/13 PS - Narela NGO came to PS with Prosecutrix (name withheld). She handed over the MLC of Prosecutrix (name withheld) to IO. Her statement was recorded by IO.
PW2 - HC Ram Mehar is the Duty Officer, who deposed that on 25/05/2013, he was posted in PS Narela and was on duty from 8:00 p.m. to 8:00 a.m. On that day, at about 12:40 a.m., W/SI Seema handed over a Tehrir to him, on the basis of which he got recorded FIR No. 354/13, u/s 365/376/120B IPC through the Computer Operator on the computer installed in PS. He obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under his lawful control. Nothing adverse took place during the period as to cause any error regarding the information feed (fed) in the Computer. The copy of FIR is Ex. PW2/A bearing his signature at Point 'A' (OSR). He handed over the copy of FIR to W/SI Seema. Constable Vikas (CIPA Computer) issued a Certificate u/s 65B of The Evidence Act. He identifies the signature of Constable Vikas. The Certificate u/s 65B of The Evidence Act is Ex. PW2/B bearing the 9 of 42 10 FIR No. 354/13 PS - Narela signature of Constable Vikas at Point 'A'. He made endorsement on the Rukka and the same is Ex. PW2/C, bearing his signature at point 'A'.
PW3 - Constable Vinod, who deposed that on 26/05/2013, he was posted as Constable at PS Narela. On that day, he joined the investigation of this case with IO SI Seema. On that day, he alongwith IO and Prosecutrix (name withheld), went to Bus Terminal Narela where Prosecutrix pointed towards one person who was standing at the bus terminal by identifying him as Meharban Ali. IO interrogated the accused Meharban Ali (and arrested and his personal search was taken) vide arrest memo Ex. PW3/A and personal search memo Ex. PW3/B both the memos bearing his signatures at point 'A'. Thereafter, they alongwith accused Meharban Ali went to Juggies Haider Pur where accused Meharban Ali pointed towards Jhuggi No. 504 by stating that in this Jhuggi the offence was committed. IO prepared pointing out memo which is Ex. PW3/C bearing his signature at point 'A'. IO also recorded the disclosure statement of Meharban Ali which is Ex. PW3/D bearing his signature at point 'A'. On the directions of IO he took the accused Meharban Ali to SRHC Hospital and got conducted his medical 10 of 42 11 FIR No. 354/13 PS - Narela examination. After the medical examination of accused Meharban Ali, Doctor handed over one sealed parcel Exhibit to him. He handed over the sealed parcel to IO which was taken into Police possession vide seizure memo Ex. PW3/E bearing his signatures at point 'A'. He correctly identified accused Meharban Ali present in the Court. His statement was recorded by IO.
PW4 - Dr. Nisha Agarwal, Medical Officer (Gynae Specialist), Sector - 9, Polyclinic, Bahadurgarh, Haryana, who deposed that on 25/05/2013, she was working as SR Gynae at SRHC Hospital, Narela, Delhi. On that day, at 12:05 a.m., one girl/Prosecutrix (name withheld) D/o Mohd. Nisar, Aged 19 years female, has been brought to the Hospital by Police for her medical examination with alleged history of having in sexual relation with Meharban for last 10 months. She conducted the Gynecological examination. Her UPT was positive. She prepared detailed MLC Ex. PW4/A bearing her signature at point 'A'.
PW5 - Prosecutrix is the victim who deposed some facts 11 of 42 12 FIR No. 354/13 PS - Narela regarding the incident and marked her statement made to the police Mark PW5/PX and proved her statement recorded u/s 164 Cr.P.C. Ex. PW5/A. She resiled from her previous statement and was also cross examined by the Learned Addl. PP for the State.
PW6 - Dr. Rajesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi, who deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr.Amit Kumar who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr.Amit Kumar as he has seen his signing and writing during the official course of the duties. As per the MLC No. 2413, on 26.05.13 patient Meharban Ali was produced in the hospital through Ct. Vinod who was medically examined by Dr.Amit Kumar. The MLC is Ex. PW 6/A, bearing the signature of Dr. Amit Kumar at point A. PW7 - Mohd. Nissar is the father of the Prosecutrix, who deposed that Prosecutrix (name withheld) is his daughter. He does not know anything about the incident as he was away at his village. He 12 of 42 13 FIR No. 354/13 PS - Narela knows Meharban Ali and his jija (brotherinlaw) Shehzad Ali. Meharban Ali and Shehzad Ali are present in the court (correctly identified). His daughter/Prosecutrix (name withheld) has since married with Meharban Ali and she is having two children. He has nothing more to say. He resiled from his previous statement and was also cross examined by the Learned Addl. PP for the State.
PW8 - Dr. Brijesh Patel, CMO, Dr. BSA Hospital, Rohini, Delhi, who deposed that on 27.05.2013 he was working as CMO BSA Hospital. On that day one patient/Prosecutrix (name withheld) D/o Mohd. Nissar, Age19 years female was brought to hospital with referral from SRHC Hospital with alleged history of sexual assault, for Ultra sound. He filled up the requisite Form and referred the said patient for Ultrasound. The requisite Form for referring the patient for Ultrasound is Ex. PW8/A, bearing his signature at point A. PW9 - SI Seema is the Investigating Officer (IO) of the case, who deposed that on 25.05.2013 she was posted PS Narela. On that day Barkati D/o Md. Nissar came in the PS Narela and on the receipt of 13 of 42 14 FIR No. 354/13 PS - Narela DD No.41A, she alongwith SI P.L. Meena, Constable Vinod and Prosecutrix (name withheld) reached at the spot i.e. H. NO. F615, JJ Colony Bawana, Narela where victim (name withheld) D/o Nissar met them. They alongwith Prosecutrix (name withheld) went to the house of Sahzad i.e. Ekata Camp Haiderpur, where brother in law (Nandoi of the Prosecutrix) namely Sahzad met them and they came back to PS Narela alongwith Sahzad and Prosecutrix. NGO Nazma was also called in the PS. After counseling of Prosecutrix (name withheld) she had given a written complaint to her and same was attested by NGO Nazma Khatun. Thereafter custody of accused Sahzad was handed over to SI P.L. Meena and Constable Vinod. She took the Prosecutrix to SRHC hospital alongwith Constable Raj Bala and she got conducted the medical examination of Prosecutrix. She obtained the MLC of Prosecutrix and she made her endorsement on the written complaint of Prosecutrix (name withheld) Ex. PW9/A bearing my signature at point A. Thereafter they came back to PS Narela and original rukka was handed over to duty officer for getting FIR registered. After registration of the case duty officer handed over original rukka and computerize copy of FIR to her. Thereafter she alongwith Prosecutrix reached at the house of Prosecutrix 14 of 42 15 FIR No. 354/13 PS - Narela i.e. H. No. F615, JJ Colony, Bawana. She recorded the statement of father and mother of the Prosecutrix. Thereafter they alongwith the Prosecutrix came back to PS Narela and accused Shahzad was arrested vide arrest memo Ex.PW9/B bearing her signature at point A and bearing thumb impression of accused at point A and personal search of accused Shahzad was taken vide memo Ex.9/C bearing her signature at point A. Accused Shahzad made a disclosure statement which is Ex. PW9/D bearing her signature at point A. Accused Shahzad led them to Ekata camp Haiderpur and accused pointed out the place of incident and she prepared the pointing out memo Ex.PW9/E bearing her signature at point A. She recorded the supplementary statement of the Prosecutrix. Thereafter they came back to PS Narela and she got conducted the medical examination of the accused Shahzad through Constable Vinod. After medical examination Constable Vinod came to the PS and she recorded the statement of Constable Vinod. Thereafter accused was produced the concerned court and he was sent JC. On 26.05.2013 she alongwith Constable Vinod No.3395 went to the house of Prosecutrix. Prosecutrix also joined the investigation and they went to ABlock, Bus Terminal JJ colony, Bawana in search of accused Maharban Ali. On the 15 of 42 16 FIR No. 354/13 PS - Narela pointing out of Prosecutrix accused Maharban Ali present in the court (correctly identified) (was arrested) vide memo Ex.PW3/A bearing her signature at point A and personal search of accused Maharban Ali was taken vide memo Ex.3/B bearing her signature at point B. Accused Maharban Ali made a disclosure statement which is Ex. PW3/D bearing her signature at point B. Accused Maharban Ali led them to Ekata camp Haiderpur and accused pointed out the place of incident and she prepared the pointing out memo Ex.PW3/C bearing her signature at point B. Thereafter they came back to PS Narela and she got conducted the medical examination of the accused Thereafter they came back to PS Narela and she got conducted the medical examination of the accused Shahzad through Constable Vinod. After medical examination Constable Vinod came to the PS and Constable Vinod handed over the exhibits to her same were taken into possession vide seizure memo Ex.PW3/E bearing her signature at point B. She recorded the statement of Constable Vinod. Thereafter accused Maharban Ali was produced before the concerned court and he was sent to JC. They came back to PS Narela and case property was deposited in the malkhana. On 26.05.2013 she moved an application for getting record statement U/s 164 Cr. PC 16 of 42 17 FIR No. 354/13 PS - Narela before Learned MM vide application Ex.PW9/F bearing her signature at point A and got recorded the statement of Prosecutrix and she obtained the copy vide application Ex.PW9/G bearing her signature at point A. On 27.05.2013 she got conducted the ultrasound of stomach of prosecutrix. As per ultrasound report she was pregnant of four months. After completion of the investigation she filed the chargesheet in the Court. Both the accused Meharban Ali and Shezad are present in the Court (correctly identified).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that on 13.01.2016 accused Sehzad made the statement in the Court and admitted his medical examination vide MLC No. 963/13 dated 25.05.2013 conducted at SRHC Hospital Narela, Delhi Ex. PX1. He had stated that he has 'no objection', if the concerned doctor is not examined in the Court as witness.
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7. Statements of accused Meharban Ali and Sehzad were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused Meharban Ali and Sehzad did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that Prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against them.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Sh. Ashok Kumar, Learned Addl. PP for the 18 of 42 19 FIR No. 354/13 PS - Narela State and Sh. Deepak Sharma, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 376/365/120B IPC against the accused Meharban Ali and Sehzad is that about 7/8 months prior to 25/05/2013, they both hatched a criminal conspiracy to abduct Prosecutrix (name withheld), D/o Mohd. Nisar, Aged around 19 years with intent to commit rape upon her and thereafter, in pursuance of the above said criminal conspiracy, accused Meharban Ali took her at the house of accused Sehzad at Ekta Camp Jhuggi, Haider Pur and thereafter he forcibly committed rape upon Prosecutrix (name withheld) against her will and without her consent and thereafter accused Sehzad assured Prosecutrix (name withheld) to get solemnized her marriage with Meharban Ali and asked her not to disclose this incident to anybody thereafter Prosecutrix (name withheld) became pregnant and accused Meharban Ali did not marry with her and accused Sehzad also refused to get her marriage solemnized with his coaccused Meharban Ali.
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of 19 of 42 20 FIR No. 354/13 PS - Narela the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW5 - Prosecutrix in her statement recorded in the Court on 05.08.2015 while giving her particulars has stated her age as 22 years.
Since PW5 - Prosecutrix has stated her age as 22 years on 05.08.2015 at the time of recording her evidence/statement in the Court and the date of alleged incident is 7/8 months prior to 25.05.2013, on simple arithmetical calculation, the age of the Prosecutrix comes to 19 years, 02 months and 20 days as on 25.10.2012 on the date of alleged incident 7/8 months prior to 25.05.2013.
Moreover, the said factum of age of PW5 - Prosecutrix has also not been disputed by the accused. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW5 - Prosecutrix was aged 19 years, 02 months and 20 days as on 25.10.2012 on the date of incident 7/8 months prior to 25.05.2013.
20 of 42 21 FIR No. 354/13 PS - Narela MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW4 - Dr. Nisha Agarwal, Medical Officer (Gynae Specialist), Sector - 9, Polyclinic, Bahadurgarh, Haryana has deposed that on 25/05/2013, she was working as SR Gynae at SRHC Hospital, Narela, Delhi. On that day, at 12:05 a.m., one girl/Prosecutrix (name withheld) D/o Mohd. Nisar, Aged 19 years female, has been brought to the Hospital by Police for her medical examination with alleged history of having in sexual relation with Meharban for last 10 months. She conducted the Gynecological examination. Her UPT was positive. She prepared detailed MLC Ex. PW4/A bearing her signature at point 'A'.
PW8 - Dr. Brijesh Patel, CMO, Dr. BSA Hospital, Rohini, Delhi has deposed that on 27.05.2013 he was working as CMO BSA Hospital. On that day one patient/Prosecutrix (name withheld) D/o Mohd. Nissar, Age19 years female was brought to hospital with referral from SRHC Hospital with alleged history of sexual assault, for Ultra sound. He filled up the requisite Form and referred the said patient for Ultrasound. The requisite Form for referring the patient for Ultrasound 21 of 42 22 FIR No. 354/13 PS - Narela is Ex. PW8/A, bearing his signature at point A. Despite grant of opportunity, PW4 - Dr. Nisha Agarwal, Medical Officer (Gynae Specialist), Sector - 9, Polyclinic, Bahadurgarh, Haryana and PW8 - Dr. Brijesh Patel were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical/ gynecological examination vide MLC Ex. PW4/A of PW5 - Prosecutrix and the requisite Form for referring her for Ultrasound Ex. PW8/A stands proved on the record.
MEDICAL EVIDENCE OF THE ACCUSED MEHARBAN ALI
15. PW6 - Dr. Rajesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi has deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr.Amit Kumar who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr.Amit Kumar as he has seen his signing and writing during the official course of the duties.
22 of 42 23 FIR No. 354/13 PS - Narela As per the MLC No. 2413, on 26.05.13 patient Meharban Ali was produced in the hospital through Ct. Vinod who was medically examined by Dr.Amit Kumar. The MLC is Ex. PW 6/A, bearing the signature of Dr. Amit Kumar at point A. Despite grant of opportunity, PW6 - Dr. Rajesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination of accused Meharban Ali vide MLC Ex. PW6/A stands proved on the record.
MEDICAL EVIDENCE OF THE ACCUSED SEHZAD
16. It is to be mentioned that on 13.01.2016 accused Shezad made the statement in the Court and admitted his medical examination vide MLC No. 963/13 dated 25.05.2013 conducted at SRHC Hospital Narela, Delhi Ex. PX1. He had stated that he has 'no objection', if the concerned doctor is not examined in the Court as witness.
23 of 42 24 FIR No. 354/13 PS - Narela Perusal of the MLC Ex. PX1 shows the medical examination of accused Sehzad and also interalia indicates no signs of any fresh external injury.
In view of above and in the circumstances, the medical examination of accused Sehzad vide MLC Ex. PX1 stands proved on the record.
17. Now let the testimony of PW5 Prosecutrix be perused and analysed.
PW5 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In the year 2013 I was residing alongwith my parents at F 615, J. J. Colony, Bawana, Delhi. About 78 months prior to the 24/05/2013, initially I was having friendship with Mehraban Ali resident of Sayohara, Distt. Bijnore, UP and later on physical relations developed between us with my own consent. He was working in a chicken shop which was situated at a some distance of my residence. I used to visit the shop of Mehraban Ali to purchase the chicken so, I came to know him. I can identify the Mehraban Ali, if shown to me.
24 of 42 25 FIR No. 354/13 PS - Narela At this stage, the wooden partition has been removed. Accused Mehraban Ali is present in the Court (correctly identified).
The wooden partition now has been restored to its original position.
Once I visited the chicken shop of accused Mehraban Ali he asked me what about my friendship with him on which I replied that I agree for friendship with him on which our friendship developed and thereafter the physical relations were established between us with my own consent and he had assured to perform the marriage with me. The chicken shop at Bawana was closed down by its owner and accused Mehraban Ali had told me that he is going to sit on the shop of his Jija namely Shahzad Ali at Haider Pur as his Jija Shahzad had gone to his village in connection with some marriage. When his Jija Shahzad Aki (Ali) returned back I told me (him) about my physical relations with accused Mehraban Ali and also informed him regarding my pregnancy from accused Mehraban Ali on which Shahzad Ali assured me that after discussing the matter at the house of accused he will get perform my marriage with accused Mehraban Ali. Mehraban Ali had also told that he is ready to perform the marriage with me. Thereafter, I came back to my house at Bawana from Harider Pur.
I can identify Shahzad Ali Jija of accused Mehraban Ali, if shown to me.
At this stage, the wooden partition has been removed. Accused Shahzad Ali is present in the Court (correctly identified).
The wooden partition now has been restored to its 25 of 42 26 FIR No. 354/13 PS - Narela original position.
On the next day I received a telephonic call from accused Mehraban Ali that he was going for in search of work. Thereafter, he has switched off his mobile phone and I was not knowing the whereabouts of accused Mehraban Ali. My parents came to know about my pregnancy and they took me to the Doctor at Maharishi Balmiki Hospital, Puth Khurd. In the hospital Doctor confirmed my pregnancy thereafter we came back to our house and I was beaten up by my parents. My parents also took me to private Hospital for termination of my pregnancy but the Doctor refused for termination of my pregnancy being of 5 months. When my parents were in the process of throw (throwing) me out from the house, some neighbour advised that to lodge the report with the Police and it may be that the whereabouts of Mehraban Ali may become known (Ho Sakta Hain Kahin Se Mehraban Ali Ka Pata Chal Jaye). Then I alongwith my sister Barkati Begum went to the PS Narela on 24/05/2013 and lodged my report.
At this stage the complaint dated 24/05/2013 shown and read over to the witness who identifies her signature at point 'A' and denies the contents thereof. The said complaint is Mark PW5/PX.
My statement u/s 164 Cr.P.C. was also recorded by the Ld. MM.
At this stage a sealed envelope sealed with the seal of "SK" lying on the judicial file is opened from which the proceeding u/s 164 Cr.P.C. is taken out. The statement u/s 164 Cr.P.C. is shown to the witness, who identifies her signature at point 'A' and the said statement is Ex. PW5/A. Now, I have married with accused Mehraban Ali and is also having two children."
26 of 42 27 FIR No. 354/13 PS - Narela From the aforesaid narration of PW5 - Prosecutrix, it is clear that in the year 2013, she was residing alongwith her parents at F 615, J. J. Colony, Bawana, Delhi. About 78 months prior to the 24/05/2013, initially she was having friendship with Mehraban Ali resident of Sayohara, Distt. Bijnore, UP and later on physical relations developed between them with her own consent. He was working in a chicken shop which was situated at a some distance of her residence. She used to visit the shop of Mehraban Ali to purchase the chicken so, she came to know him. She correctly identified accused Mehraban Ali present in the Court. Once she visited the chicken shop of accused Mehraban Ali he asked her what about her friendship with him on which she replied that she agrees for friendship with him on which their friendship developed and thereafter the physical relations were established between them with her own consent and he had assured to perform the marriage with her. The chicken shop at Bawana was closed down by its owner and accused Mehraban Ali had told her that he is going to sit on the shop of his Jija namely Shahzad Ali at Haider Pur as his Jija Shahzad had gone to his village in connection with some 27 of 42 28 FIR No. 354/13 PS - Narela marriage. When his Jija Shahzad Ali returned back she told him about her physical relations with accused Mehraban Ali and also informed him regarding her pregnancy from accused Mehraban Ali on which Shahzad Ali assured her that after discussing the matter at the house of accused he will get perform her marriage with accused Mehraban Ali. Mehraban Ali had also told that he is ready to perform the marriage with her. Thereafter, she came back to her house at Bawana from Harider Pur. She correctly identified accused Shahzad Ali present in the Court. On the next day, she received a telephonic call from accused Mehraban Ali that he was going for in search of work. Thereafter, he has switched off his mobile phone and she was not knowing the whereabouts of accused Mehraban Ali. Her parents came to know about her pregnancy and they took her to the Doctor at Maharishi Balmiki Hospital, Puth Khurd. In the hospital Doctor confirmed her pregnancy thereafter they came back to their house and she was beaten up by her parents. Her parents also took her to private Hospital for termination of her pregnancy but the Doctor refused for termination of her pregnancy being of 5 months. When her parents were in the process of throwing her out from the house, some neighbour advised that to lodge the report with the Police 28 of 42 29 FIR No. 354/13 PS - Narela and it may be that the whereabouts of Mehraban Ali may become known (Ho Sakta Hain Kahin Se Mehraban Ali Ka Pata Chal Jaye). Then she alongwith her sister Barkati Begum went to the PS Narela on 24/05/2013 and lodged her report. She identified her signature at point 'A' on the complaint dated 24/05/2013 but denied the contents thereof. The said complaint is Mark PW5/PX. Her statement u/s 164 Cr.P.C. was also recorded by the Ld. MM. She identified her signatures at point 'A' on the statement u/s 164 Cr.P.C. and the said statement is Ex. PW5/A. Now, she has married with accused Mehraban Ali and is also having two children.
PW5 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "It is wrong to suggest that the complaint Mark PW5/PX was given by me to the Police after getting it written from someone else. I had not stated to the Police in my statement Mark PW5/PX that accused Meharban Ali took me to the house of his Jija Sehzad Ali at Ekta Camp, 29 of 42 30 FIR No. 354/13 PS - Narela Haider Pur where Sehzad Ali asked form (from) him as to who this girl is on which Meharban Ali said that he loves this girl and her name is Prosecutrix (name withheld). (Confronted with the statement Mark PW5/PX, from portion 'A' to 'A' where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that accused Meharban Ali took me to the house of his Jija Sehzad Ali at Ekta Camp, Haider Pur where Sehzad Ali asked form him as to who this girl is on which Meharban Ali said that he loves this girl and her name is Jannati. I had not stated to the Police in my statement Mark PW5/PX that Sehzad and Meharban Ali went aside (Ek Taraf) in the Jhuggi and they conversed with each other and then Meharban Ali asked Sehzad to go out of the Jhuggi on which Sehzad went out of the Jhuggi and bolted the Jhuggi from outside. (Confronted with the statement Mark PW5/PX, from portion 'B' to 'B' where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that Sehzad and Meharban Ali went aside (Ek Taraf) in the Jhuggi and they conversed with each other and then Meharban Ali asked Sehzad to go out of the Jhuggi on which Sehzad went out of the Jhuggi and bolted the Jhuggi from outside. I had not stated to the Police in my statement Mark PW5/PX that thereafter Meharban Ali after using force made me laid on a Takhat and forcibly removed my worn salwar after opening its cord (Nada) and forcibly committed Galat Kaam with me and I resisted too much but Meharban Ali did not listen to me and after some time I put on my clothes. (Confronted with the statement Mark PW5/PX, from portion 'C' to 'C' where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that thereafter Meharban Ali after using force made me laid on a Takhat and forcibly removed my worn salwar after opening its cord (Nada) and forcibly committed Galat Kaam with me and I resisted too much but Meharban 30 of 42 31 FIR No. 354/13 PS - Narela Ali did not listen to me and after some time I put on my clothes. I had not stated to the Police in my statement Mark PW5/PX that after some time, Sehzad Ali, Jija of Meharban Ali came into the Jhuggi and I narrated the whole incident committed upon me by Meharban Ali to me on which Sehzad Ali said, nothing matters (Koi Baat Nahi) and my marriage will be performed with Meharban Ali and Meharban Ali said that he has a true love for me (Mai Tujhse Saccha Pyar Karta Hoon). (Confronted with the statement Mark PW5/PX, from portion 'D' to 'D' where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that after some time, Sehzad Ali, Jija of Meharban Ali came into the Jhuggi and I narrated the whole incident committed upon me by Meharban Ali to me on which Sehzad Ali said, nothing matters (Koi Baat Nahi) and my marriage will be performed with Meharban Ali and Meharban Ali said that he has a true love for me (Mai Tujhse Saccha Pyar Karta Hoon). I had not stated to the Police in my statement Mark PW5/PX that I thought now it will be right to make marriage with Meharban Ali (Maine Socha Ki Ab Shadi Kar Lene Mei Hi Thik Rahega) hence, I did not disclose about the incident to anyone. (Confronted with the statement Mark PW5/PX, from portion 'E' to 'E' where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that I thought now it will be right to make marriage with Meharban Ali (Maine Socha Ki Ab Shadi Kar Lene Mei Hi Thik Rahega) hence, I did not disclose about the incident to anyone. I had not stated to the Police in my statement Mark PW5/PX that Meharban Ali was giving the time of five days then of 15 days for performing the marriage but he kept on misleading me and Meharban Ali kept on continuing making physical relations with me and kept on giving me the false assurances of marriage. (Confronted with the statement Mark PW5/PX, from portion 'F' to 'F' where it is so 31 of 42 32 FIR No. 354/13 PS - Narela recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that Meharban Ali was giving the time of five days then of 15 days for performing the marriage but he kept on misleading me and Meharban Ali kept on continuing making physical relations with me and kept on giving me the false assurances of marriage. I had not stated to the Police in my statement Mark PW5/PX that during this Sehzad Ali made Meharban Ali to sit on his shop and he (Sahzad Ali) kept Meharban Ali concealed from me. In the month of March (2013), I vomited and I went to the Doctor where on check up, Doctor told me that I am pregnant, on which I insisted upon Meharban Ali to perform the marriage and had told him about my pregnancy on which he asked me to wait for a month, then he will perform the marriage. (Confronted with the statement Mark PW5/PX, from portion 'G' to 'G' where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement Mark PW5/PX that during this Sehzad Ali made Meharban Ali to sit on his shop and he (Sahzad Ali) kept Meharban Ali concealed from me. In the month of March (2013), I vomited and I went to the Doctor where on check up, Doctor told me that I am pregnant, on which I insisted upon Meharban Ali to perform the marriage and had told him about my pregnancy on which he asked me to wait for a month, then he will perform the marriage.
It is correct that Police had taken me to the Hospital for my medical examination. It is correct that accused Meharban Ali and Sehzad Ali were arrested on my identification. It is wrong to suggest that I am concealing the true and actual facts in the Court in order to save the accused as I have already married with the accused Meharban Ali and Sehzad Ali being his Jija. It is wrong to suggest that I am deposing falsely."
32 of 42 33 FIR No. 354/13 PS - Narela PW5 - Prosecutrix was not crossexamined on behalf of accused despite grant of opportunity.
On analysing the entire testimony of PW5 - Prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that in the year 2013, she was residing alongwith her parents at F 615, J. J. Colony, Bawana, Delhi. About 78 months prior to the 24/05/2013, initially she was having friendship with Mehraban Ali resident of Sayohara, Distt. Bijnore, UP and later on physical relations developed between them with her own consent. He was working in a chicken shop which was situated at a some distance of her residence. She used to visit the shop of Mehraban Ali to purchase the chicken so, she came to know him. She correctly identified accused Mehraban Ali present in the Court. Once she visited the chicken shop of accused Mehraban Ali he asked her what about her friendship with him on which she replied that she agrees for friendship with him on which their friendship developed and thereafter the physical relations were established between them with her own consent and he had assured to 33 of 42 34 FIR No. 354/13 PS - Narela perform the marriage with her. Now, she has married with accused Mehraban Ali and is also having two children. During her cross examination by Learned Addl. PP for the State she negated the suggestions that the complaint Mark PW5/PX was given by her to the Police after getting it written from someone else or that she had stated to the Police in her statement Mark PW5/PX that accused Meharban Ali took her to the house of his Jija Sehzad Ali at Ekta Camp, Haider Pur where Sehzad Ali asked from him as to who this girl is on which Meharban Ali said that he loves this girl and her name is Prosecutrix (name withheld) or that she had stated to the Police in her statement Mark PW5/PX that Sehzad and Meharban Ali went aside (Ek Taraf) in the Jhuggi and they conversed with each other and then Meharban Ali asked Sehzad to go out of the Jhuggi on which Sehzad went out of the Jhuggi and bolted the Jhuggi from outside or that she had stated to the Police in her statement Mark PW5/PX that thereafter Meharban Ali after using force made her laid on a Takhat and forcibly removed her worn salwar after opening its cord (Nada) and forcibly committed Galat Kaam with her and she resisted too much but Meharban Ali did not listen to her and after some time she put on her clothes or that she had stated to 34 of 42 35 FIR No. 354/13 PS - Narela the Police in her statement Mark PW5/PX that after some time, Sehzad Ali, Jija of Meharban Ali came into the Jhuggi and she narrated the whole incident committed upon her by Meharban Ali to her on which Sehzad Ali said, nothing matters (Koi Baat Nahi) and her marriage will be performed with Meharban Ali and Meharban Ali said that he has a true love for her (Mai Tujhse Saccha Pyar Karta Hoon) or that she had stated to the Police in her statement Mark PW5/PX that she thought now it will be right to make marriage with Meharban Ali (Maine Socha Ki Ab Shadi Kar Lene Mei Hi Thik Rahega) hence, she did not disclose about the incident to anyone or that she had stated to the Police in her statement Mark PW5/PX that Meharban Ali was giving the time of five days then of 15 days for performing the marriage but he kept on misleading her and Meharban Ali kept on continuing making physical relations with her and kept on giving her the false assurances of marriage or that she had stated to the Police in her statement Mark PW5/PX that during this Sehzad Ali made Meharban Ali to sit on his shop and he (Sahzad Ali) kept Meharban Ali concealed from her or that she is concealing the true and actual facts in the Court in order to save the accused as she has already married with the accused Meharban Ali and Sehzad Ali being his Jija or 35 of 42 36 FIR No. 354/13 PS - Narela that she is deposing falsely.
As discussed hereinbefore, PW5 - Prosecutrix has been found to be aged around 19 years, from the testimony of PW5 - Prosecutrix, nothing is being indicated that about 7/8 months prior to 25/05/2013, accused Meharban Ali and Sehzad hatched a criminal conspiracy to abduct PW5 Prosecutrix with intent to commit rape upon her or that thereafter, in pursuance of the above said criminal conspiracy, accused Meharban Ali took her at the house of accused Sehzad at Ekta Camp Jhuggi, Haider Pur and there he forcibly committed rape upon her against her will and without her consent or that thereafter accused Sehzad assured her to get solemnized her marriage with accused Meharban Ali and asked her not to disclose this incident to anybody or that thereafter Prosecutrix became pregnant and accused Meharban Ali did not marry with her or that accused Sehzad also refused to get her marriage solemnized with accused Meharban Ali.
Now, let the testimony of PW7 - Mohd. Nissar, father of the Prosecutrix be perused and analysed.
36 of 42 37 FIR No. 354/13 PS - Narela PW7 - Mohd. Nissar is the father of the Prosecutrix, who in his examinationinchief has deposed that Prosecutrix (name withheld) is his daughter. He does not know anything about the incident as he was away at his village. He knows Meharban Ali and his jija (brotherinlaw) Shehzad Ali. Meharban Ali and Shehzad Ali are present in the court (correctly identified). His daughter/Prosecutrix (name withheld) has since married with Meharban Ali and she is having two children. He has nothing more to say.
PW7 - Mohd. Nissar, father of the Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "My no statement was recorded by the police.
At this stage, the statement dated 25.05.2013 is read over to the witness who denies of having made any such statement to the police. The statement dated 25.05.2013 is Mark PW7/PA.
I have not stated to the police in my statement Mark PW7/A that accused Meharban Ali had initially proposed to marry with my 37 of 42 38 FIR No. 354/13 PS - Narela daughter Jannati Begum, he did not marry with my daughter in collusion with his jija Shehzad Ali, but he (Meharban Ali) established physical relations with her due to which she became pregnant (confronted with statement Mark PW7/PA where it is so recorded).
It is wrong to suggest that I have stated to the police in my statement Mark PW7/A that accused Meharban Ali had initially proposed to marry with my daughter Jannati Begum, he did not marry with my daughter in collusion with his jija Shehzad Ali, but he (Meharban Ali) established physical relations with her due to which she became pregnant.
It is wrong to suggest that I am concealing the true and the actual facts in order to save the accused who are now my relatives. It is wrong to suggest that I have compromised the matter with the accused. It is wrong to suggest that I am deposing falsely. "
PW7 - Mohd. Nissar, father of the Prosecutrix was also crossexamined by the Learned Counsel for the accused which is reproduced and reads as under: "It is correct that I am today making the statement voluntarily without being under any pressure, threat or inducement."
On careful perusal and analysis of the testimony of PW7 -
38 of 42 39 FIR No. 354/13 PS - Narela Mohd. Nissar, father of the Prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. He negated the suggestions, as were put to him by the Learned Addl. PP, that he has stated to the police in his statement Mark PW7/A that accused Meharban Ali had initially proposed to marry with his daughter/Prosecutrix (name withheld), he did not marry with his daughter in collusion with his jija Shehzad Ali, but he (Meharban Ali) established physical relations with her due to which she became pregnant or that he is concealing the true and the actual facts in order to save the accused who are now his relatives or that he has compromised the matter with the accused or that he is deposing falsely.
18. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Meharban Ali and Sehzad. The hostility of PW5 - Prosecutrix and that of PW7 - Mohd. Nissar, her father has knocked out the bottom 39 of 42 40 FIR No. 354/13 PS - Narela of the case of the prosecution. There is nothing on record to indicate that about 7/8 months prior to 25/05/2013, accused Meharban Ali and Sehzad hatched a criminal conspiracy to abduct PW5 Prosecutrix aged around 19 years with intent to commit rape upon her or that thereafter, in pursuance of the above said criminal conspiracy, accused Meharban Ali took her at the house of accused Sehzad at Ekta Camp Jhuggi, Haider Pur and there he forcibly committed rape upon her against her will and without her consent or that thereafter accused Sehzad assured her to get solemnized her marriage with accused Meharban Ali and asked her not to disclose this incident to anybody or that thereafter Prosecutrix became pregnant and accused Meharban Ali did not marry with her or that accused Sehzad also refused to get her marriage solemnized with accused Meharban Ali.
I accordingly, acquit accused Meharban Ali and Sehzad for the offences punishable u/s 376/365/120B IPC.
19. In view of above discussion, I am of the considered opinion 40 of 42 41 FIR No. 354/13 PS - Narela that as far as the involvement of accused Meharban Ali and Sehzad in the commission of offences punishable u/s 376/365/120B IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Meharban Ali and Sehzad beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Meharban Ali and Sehzad. I, therefore, acquit accused Meharban Ali and Sehzad for the offences punishable u/s 376/365/120B IPC after giving them the benefit of doubt. Accused Meharban Ali and Sehzad are on bail. However, u/s 437A Cr.P.C accused Meharban Ali and Sehzad shall furnish a personal bond in the sum of Rs. 20,000/ each with a surety in the like amount each and the accused and the surety shall also require to annex their latest passport size photographs alongwith their latest residential proof (vide State Vs. Virender Yadav & Anr. 2014 1 AD (DELHI) 389) which shall remain in force for six months and they to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
41 of 42 42 FIR No. 354/13 PS - Narela Announced in the open Court (MAHESH CHANDER GUPTA) on 5th Day of February, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 42 of 42