Delhi District Court
State vs . Abdul Atik Page No. 1/19 on 14 July, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0413202015
SC No. : 10/16; 2481/16 (new)
FIR No. : 116/15
U/s. : 366/376/34 IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Abdul Atik
S/o Shri Rafik Ahmad
R/o House no. A163,
Navjeev Camp,
Govind Puri, Delhi ......................... Accused
Date of Institution : 29.01.2016
Judgment reserved for orders on : 11.07.2017
Date of pronouncement : 14.07.2017
J U D G M E N T
Facts :
1. A criminal complaint u/s 200 of the code of criminal procedure was filed by the prosecutrix (name withheld to protect her identity) against the accused Abdul Atik and others inter alia that when she was in class XIIth, the accused used to stop her on the way and taunt her. On 10.04.2014 when she was going to her job, he stopped her and made her sit in his vehicle. He was with his friends. He told her that he loves her and wants to marry her. He poured some liquor in her mouth as a result, she became FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 1/19 unconscious. On her regaining consciousness, he told her that now she is his wife. He made physical relation with her when she was unconscious. She told it to her family who met his family. They asked them not to go to the police since the matter relates to the prestige of both the families. They assured them that they would make the accused understand and he would divorce her. She alleged that the accused did not divorce her and used abusive and vulgar language. He threatened her to come back lest he would commit rape upon her. She alleged that the accused used to call her mother on her mobile and threaten her to kill her and her family. He also sent obscene messages on the mobile of her mother. On 02.09.2014, she made complaint at the police station vide DD no. 50B but no action was taken. She again made complaint on 07.10.2014 vide DD no. 43B and on 10.10.2014 vide DD no. 71 but no action was taken. The police told them that they would get the matter compromised. She alleged that on 30.10.2014, the accused called on the mobile of her mother, abused and threatened her to kidnap and defame in the society. She again made complaint on 31.10.2014 vide DD no. 58B. On 03.11.2014, she gave complaint to the Women Cell, ITO and senior police officers but no action was taken.
Investigation:
2. On this complaint, status report was called from the SHO, police station Govind Puri. On the directions of the Court, the case u/s 366/376/34 IPC was registered. On 30.01.2015, the prosecutrix was got medically examined. Her hymen was found torn. Her statement u/s 164 Cr.P.C. was got recorded wherein she alleged that on 10.07.2014 when she FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 2/19 was going to school to give her resume, the accused came and beat her. He threatened her if she would not marry him, he would kill her family members. He administered some liquid, forcibly made her sit in the vehicle and took her to Tis Hazari Court where he obtained her signatures forcibly and told her that they have performed nikah. One day, she was going to purchase something. He came from behind, gagged her mouth, took her in his house and committed sexual intercourse with her forcibly. Her nikahnama and school certificates were collected. On 23.10.2015, the accused was arrested. He was got medically examined. He was found capable of performing sexual intercourse under normal circumstances. After the investigation, he was sent for trial for the offences punishable u/s 366/376/34 IPC.
Charge:
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide order dated 03.03.2016, prima facie case was made out against the accused u/s 366/34, 328/376 and 506 IPC IPC. Charge was framed. The accused pleaded not guilty and claimed trial.
Prosecution Evidence:
4. To substantiate its allegations against the accused, prosecution examined as many as fifteen witnesses.
PW1 is the prosecutrix. She testified on oath that in 2011, she was studying in eleventh class in a School at Kalkaji. The accused Abdul Atik used to chase her. He used to ask her for marriage but she refused. He FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 3/19 used to threaten her. She told it to her parents. They went to his house and complained his parents, who assured them that they would make him understand but he did not change his behaviour.
She stated that after the schooling, she joined as teacher in a school at Govind Puri where she worked for 67 months. During that period also, he used to chase her and ask for marriage.
She stated that on 10.07.2014, she was going for an interview to a school at Tuglakabad. He met her on the way. He forcibly made her sit in his car in which 23 persons were already sitting. He slapped her and made her drink something forcibly. She became unconscious. When she regained consciousness, she found herself in Tis Hazari Court complex. He was with her. He showed her a paper and told her that now they are married and she is his wife. She told him that she would not accept this marriage. He threatened to kill her family and abduct her sister. She informed her parents. They went to his house and requested his parents to pacify the matter lest they would complain to the police. His parents requested her parents not to make complaint and gave assurance that they would get the matter settled. On 14.08.2014, he divorced her in the presence of local people. She stated that before FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 4/19 giving divorce, once the accused committed sexual intercourse with her against her will and without her consent. She, however, does not remember the date, time and place of incident. He assured her that he would give her all the papers on the next day but he never gave the papers rather he told her that she is still his wife. Her father contacted his maternal grand mother and requested her to make the accused understand but she did nothing. She stated that the accused filed a case against her parents alleging that they have confined and forced her to take divorce. She told the entire facts to the police but they did not take any action. The accused then withdrew his complaint but he continued harassing her. On 02.09.2014 she went to police station and gave complaint but the police did not take any action. On 07.10.2014 and 10.10.2014, she again went to the police station but the police instead taking any action asked her to compromise with the accused. She then filed the complaint Ex.PW1/A. She proved her MLC Ex.PW1/B and statement u/s 164 Cr.P.C. Ex.PW1/C. On being crossexamined by Ld. Addl. PP, she stated that she does not remember if on 10.07.2014 when she regained consciousness, she felt that the accused had committed sexual intercourse with her.
FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 5/19 She improvised her version and stated that on 10.07.2014, the accused had forced her to sign some papers. She denied the suggestions that on one day, she was going to the market, accused came from behind, gagged her mouth, forcibly took her to his house, committed sexual intercourse with her and threatened her to defame her if she would not withdraw her case. She, however, admitted that she had told it to the Court in her statement Ex.PW1/C. She stated that since she was perplexed, she had told this fact.
On being crossexamined, she admitted that she knew the accused since 2011. She had met him for the first time in the college Jamia Milia Islamia where she had been studying. She denied that they used to love each other. She stated that she was using mobile during the period from 2011 to 2013. She stated that the mobile nos. 9873633376 and 8826031483 are of her mother and sister. She stated that she does not remember the time when she left the house for an interview on 10.07.2014 or when the accused met her on the way. She stated that she was not carrying mobile on that day. She denied that she had gone with the accused of her own to Tis Hazari where in the chamber of Mr. Komal Advocate, documents of FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 6/19 their marriage were prepared and thereafter they went to Kazi where their nikah was performed and thereafter he dropped her at her house at 6 p.m. She denied that she went to Tis Hazari with the accused on his motorcycle. She denied having sent messages Mark B or they married each other willingly. She denied that her parents forced the accused to give her divorce since they belong to different castes and they did not want to marry her in different caste. PW2 Irshad stated that on 10.07.2014, the accused called him in Tis Hazari Court for his nikah with the prosecutrix. He with his friend went there. He performed nikah with her in their presence and he also signed on the nikahnama Ex.PW2/A. He stated that he had asked the prosecutrix if she is happy which she answered in affirmative.
PW3 is the mother of the prosecutrix. She stated that she has three daughters and one son. Prosecutrix is her eldest daughter. She told her that on 10.07.2014 when she was going to give her resume, the accused met her, gave her liquid laced with sedative, took her to Tis Hazari Court in a car and obtained her signatures on some papers saying that he has performed nikah with her. She told it to her husband and they went to the house of the accused, met his FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 7/19 parents where they agreed for a settlement. She stated that when the prosecutrix told her that the accused had raped her and did not return the nikahnama, they made the complaint to the police. She admitted that she and the accused belong to different castes. She admitted that she was using mobile nos. 9873633376 and 8826031483 from 2011 to 2014 and from the above numbers, the calls were made on the number 9910003881 of the accused. She explained that the calls were made after the missed calls and the SMSs. She denied that the prosecutrix had friendship with the accused since 2011 and had relations with him. She stated that as per the terms of the settlement, accused had to give divorce to the prosecutrix and hand over original nikahnama to her. She stated that since the prosecutrix and the accused belong to different castes and their marriage did not take place with their consent, they had objection. She admitted that she had received a notice from the accused as to the alleged confinement of the prosecutrix but she denied that after the notice, they talked to his family members and agreed to send her to their house. PW4 Ct. Dharmender had taken the accused to AIIMS for his medical examination.
PW5 is the father of the prosecutrix. He deposed on FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 8/19 the lines of PW3.
PW6 Dr. Krishan Kumar proved the MLC of the accused Ex.PW6/A. He stated that the accused was capable of performing sexual intercourse under normal circumstances.
PW7 HC Udai Bhan was present when the accused was arrested vide arrest memo Ex.PW7/A. PW8 Javed was the witness of nikah of the accused with the prosecutrix. He stated that the Kazi had prepared the nikahnama and it was read over to the prosecutrix and the accused. He stated that willingness of the prosecutrix was obtained. She had told them that she loves the accused and wants to marry him.
PW9 Riyazuddin Amini was the Kazi who had performed nikah of the accused with the prosecutrix. He stated that on 10.07.2014 at about 3 p.m., the accused, the prosecutrix and two witnesses had come in chamber no. B145, Tis Hazari. They showed him their affidavits and age proofs. They thereafter went to Masjid Sher Shah Suri near Tis Hazari where he performed their nikah as per Muslim Sheriyat Law with their consents. They signed the nikahnama Ex.PW2/A and he also made entry in the register Ex.PW9/A. FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 9/19 PW10 Ms. Anu Aggarwal stated that a complaint was filed by the prosecutrix on which an action taken report was called from the SHO. In that report, it was stated that the prosecutrix married to the accused on 10.07.2014 and it is a case of matrimonial dispute. Since, there were allegations of abduction and making physical relations forcibly, she directed the SHO to register the FIR vide order Ex.PW10/A. PW11 SI Jitender made endorsement Ex.PW11/A on the complaint and got registered the case vide FIR Ex.PW11/B. On 02.09.2014, he also received DD no. 50B, made inquiry and gave his report Ex.PW11/C that their nikahnama is genuine.
PW12 Insp. Kiran Sood prepared the chargesheet. PW13 HC Suresh was the duty officer. He proved the recording of FIR Ex.PW11/B. PW14 Dr. Tuhina proved the MLC of the prosecutrix Ex.PW1/B, prepared by Dr. Nisha. She stated that no samples were collected since the alleged intercourse was five months ago. Her hymen was torn and there was no fresh tear / active bleeding.
PW15 Ms. Neha, Ld. MM proved the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/C. FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 10/19 Statement of The Accused U/s 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that he had met the prosecutrix for the first time when she was in Jamia Milia Islamia college from where he had been doing graduation.
Her parents never met his parents nor he stalked her. He stated that the prosecutrix used to call him everyday in the morning and ask him to meet. They used to go for outing. On 09.07.2014, she sent him a message from the mobile phone of her mother and asked him to meet on 10.07.2014 at Tuglakabad red light. She wanted to marry him. They went to Tis Hazari, contacted a lawyer, got prepared affidavits and he did nikah with consent of the prosecutrix. He never forced her nor threatened her. He stated that on 18.07.2014, the prosecutrix came in his house to live with him. His mother came to know of their marriage. She called his maternal aunt who called the mother of the prosecutrix. She took the prosecutrix with her and did not send her back. He stated that he never divorced the prosecutrix and she is still his wife. He admitted to have filed a case against the parents of the prosecutrix. He stated that he never made physical relation with the prosecutrix and her complaint is false. He stated that the parents of the prosecutrix wanted the prosecutrix to marry in the same caste and they had forced the prosecutrix to make complaint against him. DEFENCE EVIDENCE :
6. In defence, the accused did not examine any witness. ARGUMENTS & CONTENTIONS :
7. I have heard the arguments advanced by Ld. Counsel Sh. Atul Gupta FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 11/19 and Tarun Kumar for the accused and Addl. PP Mohd. Iqrar for the State. Findings:
8. The accused has been charged with the offences of abduction with the intention to compel the prosecutrix to marry him and seduce her to illicit intercourse, committing rape after giving her sedative and criminal intimidation. As such, before adverting to the merits of the case, a reproduction of the definition of the offences would be necessary and relevant.
9. Abduction in common language means carrying away of a person by fraud or force. According to Section 362 IPC, abduction takes place when a person by force compels, or by any deceitful means induces another person, to go from any place. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in itself but when it is accompanied by a certain intention to commit another offence, it perse becomes punishable as an offence. If the abducted person is a woman and the intention is that she may be compelled, or is likely to be compelled, to marry any person against her will, or may be forced or seduced to illicit intercourse, or is likely to be so forced or seduced, section 366 IPC applies.
The offence has the following ingredients:
(i). Kidnapping or abducting any woman;
(ii). Such kidnapping or abducting must :
a. With intent that the woman may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or b. In order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse; or FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 12/19 c. By criminal intimidation, or abuse of authority, or by compulsion inducing any woman to go from any place, with the intent that she may be or with knowledge that it is likely that she will be forced or seduced to illicit intercourse with some person.
10. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons;
(b) .........
(c) ........
(d) ........
under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
11. Section 506 IPC provides that whoever commits the offence of FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 13/19 criminal intimidation shall be punished ..... Criminal intimidation as defined u/s 503 IPC means that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
12. A bare perusal of the testimony of the prosecutrix / PW1 would show that she knew the accused since 2011. They used to live in the same locality. They had met at Jamia Milia Islamia college where she used to go for studies. She was using mobile phone. As per the bills, there used to be talk on the mobile number of the accused from the mobile numbers of the mother and the sister of the prosecutrix.
13. PW1 has stated that the accused used to follow her and ask her to marry him. She told it to her parents who contacted his parents and asked them to make the accused understand but the accused did not change his behaviour and he used to harass and threaten her. It continued for three years. In the instant case, the complaint was made for the first time on 02.09.2014 i.e. after the alleged incident of 14.08.2014 when the accused allegedly married the prosecutrix. I am unable to understand why the prosecutrix or her parents remained silent for three years and did not make any complaint.
14. PW1 / prosecutrix has stated that on 10.07.2014 when she was going for an interview to a school at Tuglakabad, the accused met her on FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 14/19 the way. He was in the car with 2 - 3 friends. He forcibly made her sit in the car, slapped her, made her drink something and she became unconscious. When she regained consciousness, she found herself in Tis Hazari Complex. The accused was with her. He showed her a paper and told her that now they are married and she is his wife. When she told him that she would not accept his marriage, he threatened her. She informed her parents who contacted the parents of the accused who assured them that they would get the matter compromised and they requested them not to make complaint to the police. On 14.08.2014, the accused divorced her in the presence of local people.
15. PW2, PW8 and PW9, who were the witnesses of the marriage of the prosecutrix with the accused, have stated that on 10.07.2014, the accused had performed nikah with the prosecutrix in their presence and they had also signed on the nikahnama Ex.PW2/A. PW2 and PW8 have stated that they have asked the prosecutrix if she is happy, she answered in affirmative. PW8 has stated that the Kazi had prepared nikahnama and it was read over to both of them. The willingness of the prosecutrix was obtained. She had told them that she loves the accused and wants to marry him. PW9 has stated that at about 3:00 p.m., the accused, the prosecutrix and two witnesses had come in the chamber no. B145, Tis Hazari and shown him their affidavits and age proofs. They, thereafter, went to masjid Sher Shah Suri where he performed their nikah as per Muslim Sheriat Law with their consents. He also proved the entry in the register Ex.PW9/A. Perusal of the documents would show that both prosecutrix and the accused had signed on those documents and affixed their photographs. As FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 15/19 regards giving divorce by the accused, the accused has stated that he never divorced the prosecutrix and she is still his wife. In the instant case, the prosecution did not examine any person from the locality in whose presence the accused had allegedly divorced the prosecutrix as claimed by the prosecutrix in her testimony. The documents placed on record and the testimonies of the witnesses would show that both the prosecutrix and the accused were major when they did nikah.
16. As regards the incident of rape, the prosecutrix did not give any date, time and place of incident when the accused committed sexual intercourse with her forcibly. Prosecutrix / PW1 has stated that the accused once before giving divorce had committed sexual intercourse with her against her will and without her consent. It is highly unbelievable that the prosecutrix did not remember the place and the time where and when the alleged offence took place. It is not the case that the prosecutrix is illiterate. She is quite educated and matured. In the crossexamination by Ld. Addl. PP, she has denied that when she was going to the market, the accused came from behind, gagged her mouth, took her to his house forcibly, committed sexual intercourse with her forcibly and threatened her to defame in the society if she would not withdraw her case. She admitted that she has stated this fact in her statement to the Magistrate Ex.PW1/C but explained that she was perplexed. How can this witness be believed who made such a severe allegation when such incident did not happen. She is also not certain whether on 10.07.2014, the accused had committed sexual intercourse with her. She did not state in her statement Ex.PW1/C that on 10.07.2014, the accused had committed sexual intercourse with her FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 16/19 forcibly which fact she had alleged in her complaint Ex.PW1/A.
17. Facts and circumstances of the case show that the prosecutrix and the accused knew each other and talk to each other. They belong to different castes. Her parents did not want her to marry in different castes. They decided to marry each other against the wishes of their parents. She willingly went with the accused to Tis Hazari Court where they did nikah in the presence of PW2 and PW8. PW9 performed their nikah in the masjid near Tis Hazari Courts. When the parents of the prosecutrix came to know of their marriage, they forced the prosecutrix to make complaint. PW11 has stated that he had verified the nikahnama from the Kazi. Conclusion:
18. After scanning the evidence led by the prosecution, I have come to the conclusion that the prosecutrix and the accused were major and educated. They knew each other for a long time. They belong to different castes. They had apprehension that their parents would not agree for their marriage in different castes. They voluntarily went to Tis Hazari Court where they did nikah and executed a nikahnama Ex.PW2/A. The accused never abducted the prosecutrix nor forced / compelled or induced her to go with him to Tis Hazari nor seduced her to illicit intercourse. Their physical relations if any were consensual which took place after their marriage. The accused never forced upon her nor committed sexual intercourse with her forcibly. When her parents came to know of their marriage, they made the prosecutrix make the complaint against the accused though their relations were consensual.
19. I am conscious of the legal proposition that the conviction in FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 17/19 such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
20. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
21. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 18/19 or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
22. In the light of what has been stated above, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused Abdul Atik of the offences punishable under section 366/34, 328/376 and 506 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
23. File be consigned to the Record Room.
Announced in the open court today i.e. 14.07.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 116/15 PS : Govind Puri State Vs. Abdul Atik Page No. 19/19