Delhi District Court
State vs Mr. Nazir on 2 May, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 26/2014.
Unique Case ID Number : 02401R0028602014.
State versus Mr. Nazir
Son of Mr. Latif.
R/o B-3/211, Raghubir Nagar, Delhi.
First Information Report Number : 441/13.
Police Station Khayala,
Under sections 323/354D/506/365/376/34 of the Indian Penal Code.
Date of filing of the charge sheet before : 01.02.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 13.02.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 02.05.2014.
Date of judgment : 02.05.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused Nazir has been produced from judicial custody.
Mr. Rajeev Mittal, Amicus Curiae for accused Nazir.
Prosecutrix in person.
Ms.Poonam Sharma, counsel for Delhi Commission
for Women.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
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not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Mr. Nazir, the accused has been charge sheeted by Police Station Khayala, Delhi for the offence under sections 323/354D/506/376/365/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in the month of April, 2013 at N-578, Raghubir Nagar, Delhi (house of the prosecutrix) accused Nazir outraged the modesty of prosecutrix (name withheld to protect her identity) by harassing and teasing her and accused took the photographs of the prosecutrix on his mobile phone and threatened to defame her, if she did not agree to go with him and to leave her husband and children and followed and contacted her to foster personal interaction repeatedly despite clear indication from the prosecutrix of disinterest. About three months prior to the date 06.11.2013 accused Nazir along with his three brothers and one friend Monu (absconding) abducted the prosecutrix and took her to Bengal at the house of his Mama where she was kept about 4 days and thereafter she was taken to Court at Badauan (U.P) with intent that the prosecutrix may be compelled to marry accused Nazir against her will or in order that she may be seduced to illicit intercourse and he also threatened the prosecutrix to kill her if she did not agree for the marriage. Accused Nazir took the prosecutrix to the house of his Bua (paternal aunt) at Guddu (U.P) where accused Nazir committed rape upon the prosecutrix. On 23.10.2013 accused Nazir caught the hand of the prosecutrix in the market of Raghubir Nagar in Delhi, abused her and forcibly dragged her to his house i.e. B-3/211 Raghubir Nagar, Delhi where she was confined, threatened and attacked by accused Nazir with knife voluntarily and when the husband of the prosecutrix Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
State versus Nazir -:: Page 2 of 11 ::-
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came for her rescue, accused Nazir gave beatings to prosecutrix. On 24.10.2013, accused Nazir tress passed into the house of the prosecutrix and forced her to accompany him otherwise he would kill prosecutrix, her husband and her children.
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 01.02.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 13.02.2014.
3. As accused Nazir expressed his inability to engage a lawyer to defend himself, Mr.Rajeev Mittal, advocate, was appointed as amicus curaie vide order dated 26.02.2014.
4. After hearing arguments, charge for offence under sections 354/354D/506/366/376/342/323/451/506 of the IPC was framed against the accused Mr.Nazir vide order dated 12.03.2014. Accused pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined the prosecutrix, as PW1.
6. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
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camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
7. PW1, the prosecutrix, has deposed that earlier she was residing at N-578, Raghubir Nagar, Delhi on rent. She knows accused Nazir since he was her friend and a neighbour. She was residing on the first floor with her husband Mr. Radhey Shyam and two children while accused Nazir was on the ground floor. She can not read or write in Hindi or English languages although she has studied up till 5th class but it was in her native village at Gorakhpur, U.P. She did not have any certificate to show that she is 5th class pass. She had physical relations with accused Nazir with her free consent. She was already married with Mr. Radhey Shyam when she developped friendship with accused Nazir and had physical relations with him. Once she had some quarrel with accused Nazir on some petty matter and at the suggestion of her well wisher, she went to Police Station Khayala to lodge a complaint against accused Nazir. She had made a complaint (Ex.PW1/A) in the Police Station. She was taken to Guru Gobind Singh Hospital for her medical examination. She was produced by the police before the learned Metropolitan Magistrate, where her statement was recorded. (It is pointed out by Additional Public Prosecutor that original statement under section 164 Cr.P.C is not on the judicial file although a copy of the same is annexed. Accused Nazir and the Amicus Curie have submitted that they are not disputing that statement under section 164 Cr.PC of the prosecutrix was recorded and that copy may be Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
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exhibited as it is not in dispute.) Prosecutrix has deposed that she had given her statement (Ex.PW1/B) before the learned Metropolitan Magistrate at the instance of her well wisher as due to some misunderstanding and under the pressure of some one, whose name she did not know. Accused Nazir has not committed any offence and she did not want him to be punished. She did not want to say anything else in this case.
8. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
9. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has deposed that police had not read over the contents of Ex.PW1/A to her before she put her thumb impression. She did not know what is written on Ex.PW1/A. At this stage contents of Ex.PW1/A are read over to the witness in the Court and she denied the same having made to police at the time of lodging the complaint. She denied the suggestion that complaint (Ex.PW1/A) was recorded by the police as per her version. She had not stated to the police that accused Nazir used to chase her and after clicking her photographs from his mobile phone he was teasing her saying that he would defame her. She had not stated to the police that accused was forcing her to accompany him after leaving her husband and children otherwise he would kill her. (She was confronted with the statement Ex.PW1/A). She admitted that the doctor had asked her the history at the time of her medical examination. She voluntarily stated that whatever she had told the doctor, it was at the instance of her well wisher and due to some misunderstanding. She denied the suggestion that whatever she had stated before the doctor is correct Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
State versus Nazir -:: Page 5 of 11 ::-
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and not at the instance of any well wisher. She denied the suggestion that she had made her statement (Ex.PW1/B) before learned Metropolitan Magistrate voluntarily, with her consent and without any misunderstanding and pressure of any one. She denied the suggestion that about three months prior to 06.11.2013, accused Nazir along with his three brothers and friend Mr.Monu (absconding) abducted her and took her to Bengal at the house of mama of accused Nazir, where she was kept for about 4 days and from there she was taken to a Court at Badayun(U.P) and from there she was taken to the house of paternal aunt of accused Nazir at Guddu, UP where accused Nazir committed rape upon her. She denied the suggestion that on 23.10.2013 caught her hand in the market of Raghubir Nagar, Delhi, forcibly abused her and dragged her to his house in Raghubir Nagar, where she was confined, beaten and threatened by the accused. She denied the suggestion that on 24.10.2013, accused tress passed her house and forced her to accompany him otherwise he would kill her, her husband and her children. She denied the suggestion that she is not supporting the prosecution case and deposing falsely as some compromise between her and accused had taken place.
10. She has also been cross examined on behalf of accused Nazir. She has admitted that she had physical relations with accused Nazir with her free consent. She has admitted that accused Nazir is innocent and has not committed any offence. She voluntarily stated that she prays that accused Nazir may be acquitted in the present case.
11. The prosecutrix, has not deposed an iota of evidence of her being raped at all. She has not even mentioned the word "rape" in her evidence nor Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
State versus Nazir -:: Page 6 of 11 ::-
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has deposed anything incriminating against the accused Mr.Nazir regarding them raping her, teasing her, beaten her or threatening to kill her, her husband and her children.
12. In the circumstances, as PW1, the prosecutrix, who is the star witnesses has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to accused Nazir, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix and her husband, the material witnesses, have not supported the prosecution case and is hostile.
13. Statement under section 313 of the Cr.P.C. of the accused Nazir is dispensed with as there is nothing incriminating against him when the prosecutrix, PW1, is hostile and nothing material has come forth in their cross examination by the prosecution.
14. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
15. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
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also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
16. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
17. Consequently, no inference can be drawn that the accused Nazir is guilty of raping the prosecutrix and abducting the prosecutrix along with his three brothers and one friend Monu (absconding) and taking her to Bengal, confining her and compelling to marry him as well as threatening to kill her and husband. There is no material on record to suggest that the prosecutrix was ever raped, abducted, beaten or threatened by the accused Nazir. No case is made out against the accused as there is no incriminating evidence against him.
18. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that accused Nazir is innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
State versus Nazir -:: Page 8 of 11 ::-
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19. Consequently, no inference can be drawn that the accused Mr.- Nazir is guilty of the charged offence under sections 354/354D/506/366/376/342/323/451/506 IPC. There is no material on record to show that in the month of April, 2013 at N-578, Raghubir Nagar, Delhi (house of the prosecutrix) accused Nazir outraged the modesty of prosecutrix (name withheld to protect her identity) by harassing and teasing her and ac- cused took the photographs of the prosecutrix on his mobile phone and threat- ened to defame her, if she did not agree to go with him and to leave her hus- band and children and followed and contacted her to foster personal interac- tion repeatedly despite clear indication from the prosecutrix of disinterest. About three months prior to the date 06.11.2013 accused Nazir along with his three brothers and one friend Monu (absconding) abducted the prosecutrix and took her to Bengal at the house of his Mama where she was kept about 4 days and thereafter she was taken to Court at Badauan (U.P) with intent that the prosecutrix may be compelled to marry accused Nazir against her will or in order that she may be seduced to illicit intercourse and he also threatened the prosecutrix to kill her if she did not agree for the marriage. Accused Nazir took the prosecutrix to the house of his Bua (paternal aunt) at Guddu (U.P) where accused Nazir committed rape upon the prosecutrix. On 23.10.2013 ac- cused Nazir caught the hand of the prosecutrix in the market of Raghubir Na- gar in Delhi, forcibly abused her and forcibly dragged her to his house i.e B-3/211 Raghubir Nagar, Delhi where she was confined, threatened and at- tacked by accused Nazir with knife voluntarily and when the husband of the prosecutrix came for her rescue, accused Nazir gave beatings to prosecutrix. On 24.10.2013 accused Nazir tress passed into the house of the prosecutrix Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
State versus Nazir -:: Page 9 of 11 ::-
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and forced her to accompany him otherwise he would kill prosecutrix, her husband and her children. There is nothing incriminating on the record to indi- cate that the accused has committed any or all of the charged offences.
20. From the above discussion, it is clear that there is no evidence of the prosecution against the accused Mr.Nazir and the prosecution has failed to establish outraging the modesty, abduction, threat, rape and confinement and hurt. The evidence of the prosecutrix, PW1 makes it highly improbable that such an incident ever took place. The evidence of other prosecution witnesses is formal or official.
21. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr. Nazir, for the offence under sections 354/354D/506/366/376/342/323/451/506 of the IPC
22. Consequently, accused Mr. Nazir, is hereby acquitted of the charge for the offence under sections 354/354D/506/366/376/342/323/451/506 of the IPC.
23. Compliance of section 437-A Cr.P.C. is made in the order sheet.
24. Mr.Nazir is in judicial custody. He be set at liberty, if not required in any other case.
25. Case property be destroyed after expiry of period of limitation of Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
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appeal.
26. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
27. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
28. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 02nd day of May, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 26 of 2014.
Unique Case ID Number : 02401R0028602014.
FIR No. 441/2013, Police Station Khyala, Under sections 323/354D/506/376/365/34 of the Indian Penal Code.
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