Delhi District Court
State vs Wasim Haider S/O Abdul Hamid on 18 February, 2015
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0209902013
SC No. 238/13 Date of assignment : 02.08.2013
FIR No. 63/13 Date on which arguments
PS. Harsh Vihar were heard : 13.02.2015
U/S.366/506/376/ Date of judgment : 18.02.2015
323/384 IPC
State Versus Wasim Haider S/o Abdul Hamid
R/o H. No. 1529, Tulshi Nitetan,
Ghaziabad, UP.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 30.04.2013, the prosecutrix lodged a complaint against the accused at police station Harsh Vihar. In her complaint, she made following allegations:
(a) Prosecutrix is aged about 31 years. She had got married in the year 2001 and she has a son aged about six years out of that wedlock. Before marriage, accused Wasim Haider was her friend and he wanted to marry her. Accused is a Muslim by religion and due to this reason, she refused to marry him. In the year 1997, the SC No.238/13 State vs. Wasim Haider page 1 of 23 accused had got married. After six months, wife of accused expired and the accused again proposed marriage to the prosecutrix but she again refused.
(b) The accused made physical relations with the prosecutrix by force and due to fear of her reputation, she did not disclose about the same to anyone. In 2000, accused again got married to another girl and he has three children from that marriage. He used to beat his wife and then divorced her. Thereafter he performed third marriage with another girl. Accused then made this third wife indulge in prostitution.
(c) On 22nd January, accused got married with the prosecutrix under threat of killing her son. Accused used to beat the prosecutrix with a cable wire and he also tried to press her neck. Prosecutrix was already a married lady and is residing at Bank Colony with her mother, husband and son. Her husband is a simple man and accused also beat him. Accused had also threatened the prosecutrix to ruin her reputation and to kill her son.
Accused had also threatened the prosecutrix that he will force her in prostitution.
2. On the basis of above complaint, the instant FIR No. 63/13 u/s 376/506 was got registered against the accused at police station Harsh Vihar. The prosecutrix was SC No.238/13 State vs. Wasim Haider page 2 of 23 got medically examined at GTB Hospital. Accused was arrested and he was got medically examined. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned Metropolitan Magistrate. During investigation, age proof certificate of the prosecutrix was collected from Government Girls Secondary School, Janta Flats, Nand Nagri, Delhi where she was studying and her date of birth is 27.09.1980. After completion of investigation, charge- sheet u/s 376/506 IPC was filed against the accused.
3. Since the major offence in this case was triable by the Court of Sessions, vide order dated 24.07.2013, learned M.M, Karkardooma Courts committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 17.08.2013 passed by my learned predecessor, a charge u/s 366/506/376/323/384 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined eleven witnesses i.e. prosecutrix as PW1, mother of the prosecutrix as PW2, W/Ct. Santosh as PW3, HC Rishiraj Tyagi as PW4, Dr. Badri Narayan Sharma, Casualty Medical SC No.238/13 State vs. Wasim Haider page 3 of 23 Officer as PW5, Dr. Daisy, Senior Resident, GTB Hospital as PW6, Ct. Sunil Kumar as PW7, husband of the prosecutrix as PW8, Ms. Susheel Bala Dagar, learned Metropolitan Magistrate as PW9, W/SI Vinita as PW10 and SI Prateek as PW11.
6. Out of these witnesses PW1, PW2 and PW8 are the material witnesses of the case and their testimonies shall be discussed at later stage.
7. PW4 HC Rishiraj is the duty officer who deposed that on 30.04.2013 he was posted at police station Harsh Vihar and was working as duty officer from 4.00 pm to 12 night. On the basis of rukka produced by W/SI Vinita, he got registered FIR No.63/13. He proved the computerised copy of FIR as Ex. PW4/A and endorsement made by him on the rukka as Ex. PW4/B.
8. PW3 W/Ct. Santosh deposed that on 30.04.2013 prosecutrix alongwith her mother came to the police station. Statement of the prosecutrix was recorded by the IO. This witness took the prosecutrix to GTB Hospital for medical examination. Thereafter they tried to trace out the accused and reached at Bhopra Border where SI Prateek met them and they reached at H.No.1529, Tulsi Niketan, SC No.238/13 State vs. Wasim Haider page 4 of 23 Ghaziabad and the accused was arrested vide memo Ex.PW1/D on the pointing out of prosecutrix. Personal search of accused was conducted vide memo Ex. PW1/E.
9. PW6 Dr. Daisy deposed that on 30.04.2013 she was working at GTB Hospital as Senior Resident. On that day, prosecutrix aged about 31 years was brought in the hospital for medical examination by SI Vinita. Prosecutrix was medically examined by her vide MLC Ex. PW1/B. This witness also proved the continuation sheet of medical examination of prosecutrix prepared by her as Ex. PW1/C and Ex. PW6/A.
10. PW7 Ct. Sunil Kumar deposed that on 01.05.2013 he was posted at police Harsh Vihar and on that day he took the accused to GTB Hospital for medical examination. After medical examination, he handed over the sealed parcels alongwith sample seal to Investigating Officer which were seized vide memo Ex. PW7/A.
11. PW5 Dr. Badri Narayan Sharma from GTB Hospital deposed that on 01.05.2013, the accused was medically examined by Dr. Irshad, JR who has left the hospital and his whereabouts are not known. He deposed that he can identify his signature and handwriting as he SC No.238/13 State vs. Wasim Haider page 5 of 23 had seen Dr. Irshad, JR signing and writing during the course of his official duties. This witness proved opinion given by Dr. Irshad at point X.
12. PW9 is Ms. Susheel Bala Dagar, learned Metropolitan Magistrate had recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the same as Ex.PW1/G.
13. PW11 SI Prateek deposed that on 30.04.2013 he was posted at police station Harsh Vihar. On that day he was called at Bhopra Border by W/SI Vinita through duty officer. At about 11.00 pm he reached at Bhopra Border where he met SI Vinita, prosecutrix and W/Ct. Santosh. Thereafter they went to the house No.1529, Tulsi Niketan, Ghaziabad, UP in search of accused. Accused was arrested on the pointing out of the prosecutrix vide arrest memo Ex.PW1/D and his personal search Ex.PW1/E was conducted. Disclosure statement Ex.PW10/B of the accused was recorded.
14. PW10 W/SI Vinita deposed that on 30.04.2013 she was posted at police station GTB Enclave and senior officer called her at police station Harsh Vihar for investigation of the present case. She reached at police SC No.238/13 State vs. Wasim Haider page 6 of 23 station Harsh Vihar where she met duty officer and prosecutrix was also present there. Prosecutrix produced a complaint to her and narrated all the facts to her. She called one counselor from NGO namely Shelter for counseling of the prosecutrix. Investigating Officer made endorsement Ex.PW10/A on the complaint and got the case registered. The prosecutrix was got medically examined at GTB Hospital vide MLC Ex.PW1/B and Ex.PW1/C. In the meantime Ct. Sandeep reached at the hospital and handed over copy of FIR to the IO. She informed the duty officer to send a male staff at Bhopra Border. Thereafter IO alongwith prosecutrix and lady constable Santosh went for the search of accused. At Bhopra Border, SI Prateek met them and he joined the investigation. This witness deposed that they reached at H. No.1529, Tulsi Niketan Ghaziabad, UP, the prosecutrix pointed out towards the accused and accused was apprehended and arrested vide arrest memo Ex. PW1/D and his personal search Ex. PW1/E was conducted. Accused also made disclosure statement Ex.PW10/B. IO recorded the statement of the prosecution witnesses.
15. Ct. Sunil took the accused to GTB Hospital for medical examination and after medical examination, Ct. Sunil produced three sealed pullandas with the seal of SC No.238/13 State vs. Wasim Haider page 7 of 23 Hospital to the IO which were seized vide memo Ex. PW7/A. The statement of the prosecutrix was got recorded by NGO and the same is Ex. PW10/D.
16. On 01.05.2013, the statement of the prosecutrix was got recorded by the learned Metropolitan Magistrate. IO also recorded the statement of the husband of the prosecutrix. On 02.05.2013, prosecutrix produced her original School Leaving Certificate Ex.PW10/E to her which was seized vide memo Ex.PW1/F. This witness recorded the statement of the witnesses. During investigation, prosecutrix alongwith her husband came to the police station and produced two photographs which were seized vide memo Ex. PW10/J. After completion of investigation she prepared the challan and filed in the court.
17. The relevant witness who have knowledge about the incident are prosecutrix (PW1), her mother (PW2) and her husband (PW8).
18. Prosecutrix (PW1) during her examination in chief deposed that her marriage was solemnised in the year 2001 and she has a son aged about 6 years out of this marriage. She has deposed that she knew the accused since 1996 as he used to run a cycle repairing shop near SC No.238/13 State vs. Wasim Haider page 8 of 23 residence of her mother. Accused is a Muslim by religion. Friendship between the prosecutrix and the accused developed. She has also deposed that the accused wanted to marry her but due to difference in the religion she refused to marry him. She further deposed that the accused solemnised his marriage in the year 1997 with another girl. After six months of his marriage, his wife expired. Accused again proposed to the prosecutrix but she again declined. Prosecutrix has alleged that in the year 1998, she was living at a hostel and accused was residing at the gali no.1, Bank Colony, Mandoli Extension in a rented house. Prosecutrix has further deposed that it was the winter season and she was present at the bus stop from where she used to board the bus. Accused took the prosecutrix to his room where he was living on rent and there he made physical relations with her without her consent. The prosecutrix did not tell about the incident to anyone due to fear of her reputation. She has further deposed that in the year 2000, accused solemnised his marriage with one Heena and he has three children from this marriage. Thereafter he divorced his wife. She further deposed that in the year 2001, accused had performed third marriage with one Chandni at a village and brought her Delhi. He left her for prostitution with a lady called Ammaji. She further deposed that on 22.01.2013, accused SC No.238/13 State vs. Wasim Haider page 9 of 23 solemnised nikah with her under threat that he will kill her son. She further deposed that the accused beat her by cable wire and she brought the said cable wire in the court which is Ex.P1. The wire was handed over to MHC (M) for safe custody. The prosecutrix deposed that she was beaten by the accused with the help of belan and he broke her left arm. She further deposed that her husband was not aware that the accused solemnised nikah with her or he had caused injury on her arm. Prosecutrix further deposed that her husband came to know this fact on 30.04.2013 when accused was arrested. She further deposed that on 29.04.2013, accused took her in an auto rickshaw and two boys were also with him. He threatened the prosecutrix to sell her to Ammaji. She further deposed that she stayed at the house of accused from 26.01.2013 to 03.02.2013 after solemnisation of marriage with the accused. She also deposed that she told lie to her husband that she was busy in doing her duty day and night. Prosecutrix deposed that she lodged a complaint Ex.PW1/A against the accused. Her statement Ex.PW1/G was got recorded u/s 164 Cr.P.C. She also deposed that accused had taken her gas cylinder, TV trolley and her clothes and half of her articles are still in the possession of the accused. She also deposed that her gold bangles weighing sava tolas are also with the accused. She also deposed that the accused also sold her SC No.238/13 State vs. Wasim Haider page 10 of 23 plot and he has taken Rs.5000/- as an earnest money and handed over the same to her.
19. The prosecutrix was cross examined on behalf of accused. During her cross examination, she deposed that she used to have telephonic conversation with the accused and accused also used to call her. Prosecutrix also admitted that she and the accused had been talking on telephone for the last six or seven years. Prosecutrix also admitted that the accused used to talk with her in the night till his mobile balance got exhausted and he also used to get her mobile phone connection recharged and used to talk with her. The prosecutrix further deposed that she used to talk with the accused on phone sometimes in the bathroom and sometimes on the terrace so that her husband would not know about their conversation. She deposed that she was working as a health attendant and she had taken leave from 26.01.2013 to 06/07.02.2013. She also admitted that during this period she stayed at the house of accused. Prosecutrix also deposed that she told her husband that her patient had given her accommodation on the top floor and she would be living with the patient during the period from 26.01.2013 to 06/07.02.2013. She also deposed that her articles were shifted at the house of accused by brother of accused. The SC No.238/13 State vs. Wasim Haider page 11 of 23 prosecutrix was confronted with her photographs Ex.PW1/DA1 to Ex. PW1/DA7 pertaining to her marriage with accused which was solemnised on 22.01.2013. The prosecutix has admitted that these photographs were taken at the house of brother of accused. She also admitted that the suit which she was wearing in the photographs was purchased from Dilshad Garden market on 22.01.2013. She also deposed that she alongwith accused, his brother and wife of his brother went to the market to purchase the said suit and she knew the purpose of purchasing the said suit. She also stated that she did not make any complaint against the accused prior to the present complaint dated 30.04.2013. She also admitted that on the Holi festival, she celebrated the Holi festival at the house of accused and in the afternoon on the day of Holi, accused took her to a Zoological Park alongwith his family. She also admitted that before 30.04.2013, she used to go to the market with the accused.
20. PW2 mother of the prosecutrix has supported the case of her daughter. She has deposed that the accused was residing at Sunder Nagri on rent and they were also residing at Sunder Nagri on rent. She further deposed that the accused used to beat her daughter and son in law after consuming liquor and used to take her SC No.238/13 State vs. Wasim Haider page 12 of 23 daughter from her house by force. She also deposed that when she tried to stop the accused, he threatened to kidnap and kill her grandson. Accused also threatened that in case matter will be reported to the police, he will kill her grandson. She further deposed that on the day when the accused was arrested in the present case, she came to know that accused had solemnised marriage with her daughter.
21. This witness was cross examined on behalf of accused. During her cross examination, she admitted that she visited Ajmer Sharif with the accused and they stayed for one night at a hotel at Ajmer. PW2 also admitted that her son left the home with a girl and later on he got married with that girl and the accused had signed their marriage certificate as a witness. She also admitted that the prosecutrix and the accused used to reside in a rented house which was taken on rent by her (PW2) at village Taharpur.
22. PW8 husband of the prosecutrix deposed that he got married with the prosecutrix in 2001 and were residing at Chandi Chowk and thereafter they shifted to Babarpur. He deposed that he knows the accused as he was residing at the back lane of his house when he was SC No.238/13 State vs. Wasim Haider page 13 of 23 residing at Tulsi Niketan. This witness deposed that accused used to beat him, his wife and son. He further deposed that the accused used to come after taking liquor. The accused asked his wife to perform nikah with him. Accused also threatened to kill his wife if she will lodge a complaint to the police. He deposed that the accused broke the mobile phone of his wife after hitting it with the wall.
23. This witness was cross examined on behalf of the State as he was resiling from his earlier statement on some aspects. During his cross examination, he admitted that the accused forcibly took his wife and on his resistance he beat him due to which he sustained injuries. He further deposed that the accused threatened to kill him, his wife and child if he will disclose anything to any person. He also deposed that the accused had taken his wife forcibly several times and due to threat he did not disclose this fact to any person.
24. This witness was cross examined on behalf of the accused. He deposed that he cannot tell the date, month and year when the accused beat him and he did not make any complaint against the accused to the police. The accused asked his wife to enter into nikah with him but he SC No.238/13 State vs. Wasim Haider page 14 of 23 did not make any complaint to the police in this regard. He admitted that the accused used to make telephone calls to the prosecutrix. He denied that he vacated the house of one Ved Prakash Sharma as he had found the accused and Kanta in compromising position. He deposed that the gas cylinder, TV trolley and other house hold articles are in his possession and these articles were never taken by anyone from his house and the prosecutrix is having gold bangles and gold necklace with her.
25. After the prosecution evidence was closed, statement of accused u/s 313 Cr.P.C was got recorded. Accused stated that he and the prosecutrix were in love with each other since 1996. He also stated that he got married with the prosecutrix on 22.01.2013 with free will and consent of the prosecutrix and now they are residing together. He stated that due to some misunderstanding between him and the prosecutrix, present case was got registered against him.
26. In his defence, the accused has examined one Sh. Ajay Aggarwal as DW1, Sh. Shankar as DW2 and Sh. Deepak Gupta as DW3.
27. DW1 Sh. Ajay Aggarwal deposed that he is SC No.238/13 State vs. Wasim Haider page 15 of 23 running a cycle repairing shop at Tulsi Niketan, Bhopra, Ghaziabad, UP. He deposed that he knows the accused for the last 15-16 years and he had attended the nikah of accused with prosecutrix on 22.01.2013. He deposed that he never heard of any quarrel between the accused and the prosecutrix.
28. DW2 Sh. Shankar is the real brother of the prosecutrix. He has deposed that he is doing the job of kharad and he knows the accused for the last 17-18 years. He has further deposed that his sister (prosecutrix) and the accused knew each other for the last 17-18 years and both used to meet each other often. He deposed that the prosecutrix solemnised her marriage with the accused of her own free will and this fact is in the knowledge of all his family members. He also deposed that due to some matrimonial dispute, his sister lodged a complaint against the accused. He has deposed that now the accused and his sister (prosecutrix) are again residing together as husband and wife.
29. DW3 Sh. Deepak Gupta has deposed that he is running a Parchoon shop at 1512, Tulsi Niketan. He deposed that he knew the accused and the prosecutrix for the last 5-6 years as they are residing together as husband SC No.238/13 State vs. Wasim Haider page 16 of 23 and wife in his neighbourhood. He has also deposed that the prosecutrix used to purchase goods of daily use from his shop on credit and thereafter the accused used to make the payment of the said goods.
30. DW1, DW2 and DW3 were cross examined by the learned Addl. PP for the State.
31. I have heard arguments addressed by learned Additional Public Prosecutor for the State and Sh. Ravi Kaushal, Advocate for accused and perused the record.
32. The accused is facing trial for the commission of offences punishable u/s 366/506/376/323/384 IPC.
33. The deposition of the prosecutrix has been noted above. In substance she has deposed that she developed friendship with accused in the year 1996. The accused proposed marriage to the prosecutrix but she declined the proposal as they belonged to different religions. In the year 1997, the accused got married with one Mini but Mini expired soon thereafter. In the year 1998, the prosecutrix and the accused resumed their friendship and started making physical relations sometimes at the house of accused and at other times at the house of SC No.238/13 State vs. Wasim Haider page 17 of 23 prosecutrix. In the year 2000, accused got married with one Heena and he had three children from this wedlock. Thereafter accused divorced his wife Heena. In the year 2001, the prosecutrix got married to PW8 and she has one child out of this wedlock. Accused also solemnised his third marriage with one Chandni but then made her indulge in prostitution. On 22.01.2013, the prosecutrix and the accused solemnised marriage as per Muslim rites and ceremonies. The prosecutrix lodged the complaint on 30.04.2013.
34. As per the deposition of the prosecutrix, she has been repeatedly raped by the accused. She was first time raped in the year 1998. Further as per the prosecutrix her relationship with accused from 2006 to the date of filing of the complaint Ex.PW1/A including her solemnisation of marriage was also by force and physical relations during this period constitute rape.
35. The accused has denied that in the year 1998 he made physical relations with the prosecutrix. He has further denied of making physical relations with the prosecutrix before solemnisation of marriage on 22.1.2013. Accused has maintained that since 22.01.2013 he and the prosecutrix have been residing as husband and wife.
SC No.238/13 State vs. Wasim Haider page 18 of 23
36. DW2 the real brother of the prosecutrix has supported the accused as he has deposed that the prosecutrix entered into marriage with the accused of her own will and this fact was in the knowledge of all his family members. He has further deposed that due to some matrimonial dispute, the present complaint was lodged by the prosecutrix against the accused but now again they are residing together as husband and wife at the address mentioned in his evidence.
37. Other defence witness have also deposed on the same lines as of DW2.
38. On 23.01.2015, 31.01.2015, 03.02.2015 and 13.02.2015 the prosecutrix herself appeared in the court and she stated that she has been residing with the accused since 25.09.2014. She also stated that she does not want any action against the accused.
39. Be that as it may, the prosecutrix has stated that in the year 1998, accused made physical relations with her by force but she did not recollect date and month. The present complaint was lodged in the year 2013. No complaint was filed by the prosecutrix prior to the present SC No.238/13 State vs. Wasim Haider page 19 of 23 complaint. In such circumstances, it would be difficult to accept the deposition of the prosecutrix that she was raped in the year 1998 by the accused.
40. It is further the case of prosecution that she was forced to enter into matrimony with the accused on 22.01.2013 and consequent physical relations between them were without her consent and by force. In her evidence, the prosecutrix has admitted that during the period from 26.01.2013 to 6/7.02.2013 she stayed at the house of accused without informing her husband. Rather she told a lie to her husband that she was attending to her patient day and night during that period. Prosecutrix has also admitted that during her matrimony with her husband (PW8), she and accused used to talk on mobile phone at odd hours in the bathroom or the terrace so that her husband may not know about her relationship with the accused. During cross examination, the prosecutrix was confronted with photographs Ex.PW1/DA1 to Ex. PW1/DA7 of her marriage with the accused in which she is seen in joyful mood. The prosecutrix in her cross examination admitted these photographs and also admitted that the suit which she was wearing in photographs at the time of marriage was purchased by the accused, his bhabhi, his brother and prosecutrix herself. She also admitted that SC No.238/13 State vs. Wasim Haider page 20 of 23 after their marriage, the prosecutrix stayed with the accused at his house during the period from 26.01.2013 to 06/07.02.2013. She admitted that she and the accused used to have long telephonic conversations with each other. Moreover, subsequent conduct of the prosecutrix for resuming her cohabitation with the accused during the trial of the case is also indicative of the fact that the deposition of the prosecutrix on material aspects is not correct. It is not material here to discuss whether the marriage between the prosecutrix and the accused was as per law or not. In the circumstances, the evidence of her mother (PW2) and her erstwhile husband (PW8) are also of no use as there is ample evidence on record including the evidence of the brother of the prosecutrix (DW2) to show that there was no force or coercion and the prosecutrix had acted of her own volition. Apart from this, the deposition of the husband of the prosecutrix (PW8) reading as a whole would show that he had no personal knowledge about the fact of the case. It appears that he choose to be a witness at the instance of the prosecutrix being her husband. In the circumstances, I find substantial force in the defence of the accused that the present prosecution is an outcome of a dispute which was essentially in the nature of a matrimonial dispute between the prosecutrix and the accused.
SC No.238/13 State vs. Wasim Haider page 21 of 23
41. In view of above, I am of the opinion that the prosecution has failed to prove that the prosecutrix was subjected to rape by the accused. Hence, the accused is liable to be acquitted of the offence punishable u/s 376 IPC.
42. As far as the offences punishable u/s 366/506/323/384 IPC are concerned, I have held above that the evidence of the prosecutrix is not believable on material particulars. There is no evidence to substantiate the allegations u/s 366/506/323/384 IPC. Apart from this, the allegations of beating to the prosecutrix are not supported by the medical evidence. She has even not given the specific particulars such as date and month when she was allegedly beaten by the accused. The erstwhile husband of the prosecutrix (PW8) has deposed that articles of the prosecutrix are with her. The allegation of extortion of sava tola gold bangles of the prosecutrix by the accused is also without particulars. Considering the nature of evidence which has come on record, it must be held that these charges against the accused u/s 366/506/323/384 IPC are also not proved. Hence, the accused is entitled to be acquitted of the offences punishable u/s 366/506/323/384 IPC.
SC No.238/13 State vs. Wasim Haider page 22 of 23
43. In view of above discussion, it is held that the prosecution has not been able to prove its case against the accused for alleged commission of offences punishable u/s 376/366/506/323/384 IPC. Thus, accused Wasim Haider is acquitted of the offences punishable under sections 376/366/506/323/384 IPC.
44. File be consigned to record room after necessary compliance.
Announced in the open court on 18.02.2015 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.238/13 State vs. Wasim Haider page 23 of 23