Delhi District Court
State vs Mohd. Mobin @ Sonu S/O. Sh. Ibrahim on 5 September, 2013
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE - 01
(EAST) :KARKARDOOMA COURTS : DELHI
SC No. 02/12
FIR No. 245/11
PS Gandhi Nagar
Under Section : 363/366/376 IPC
State Versus Mohd. Mobin @ Sonu S/o. Sh. Ibrahim
R/o. Mohalla Baradari, Near Mohua Masjid,
Shahjan Pur, Distt. Shahjahan Pur (UP)
Date of Institution of Case : 05.01.12
Date on which Judgment Reserved : 04.09.13
Date on which Judgment Delivered : 05.09.13
J U D G M E N T :
1. The case of the prosecution is that daughter of complainant Sunita (PW3), who is (hereinafter mentioned as prosecutrix) aged 15 years went missing on 25.8.11. In her complaint she had shown suspicion on accused Sonu S/o. Sh. Ibrahim who used to reside in her neighbourhood. She has alleged that accused had taken her daughter after giving her enticement. On this complaint SI Arvind Kumar (PW12) prepared rukka and got the FIR registered u/s. 363 IPC. On 13.9.11 IO PW12 with other police officials reached Shahjahan Pur, UP and raided at the house of accused with the help of local police. Prosecutrix was recovered from his house. Accused was apprehended. Both were brought to Delhi and their medical examination was got done. Statement of prosecutrix was got recorded u/s. 164 CrPC. After investigation police filed chargesheet against the accused u/s. 363/366/376 IPC.
2. Charge u/s. 363/366/376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution examined 12 witnesses. PW1 HC Jai Veer Singh proved the FIR Ex.PW1/A and endorsement on rukka Ex.PW1/B. PW2 Ct. Omwati had accompanied IO to Shahjahanpur on 13.9.11. She proved arrest memo, personal search memo and disclosure statement of accused as Ex.PW2/A to PW2/C, seizure memo Ex.PW2/D vide which two pulandas handed over by doctor after medical examination of prosecutrix were seized by IO. She also proved seizure memo Ex.PW2/E vide which three pulandas given by doctor after medical examination of accused were seized. PW3 Smt. Sunita is the complainant and she proved her complaint Ex.PW3/A. PW4 is the prosecutrix, she admitted her signatures on her statement u/s. 164 CrPC Ex.PW4/A. PW5 Sh. Rajeev Kumar, TGT (Mathematics), Sarvodya CoEd. Sec. School, Old Seelampur proved affidavit Ex.PW5/A filed at the time of admission of the prosecutrix, admission withdrawal register Ex.PW5/B and certificate issued by Vice Principal regarding age of prosecutrix as Ex.PW5/C and PW5/D. PW6 Shahjade is the uncle of accused. PW7 HC Pramod Kumar of PS Gajrola, Distt. Amroha, UP joined investigation with Delhi Police, he proved recovery memo of prosecutrix Ex.PW7/A. PW8 ASI Gokul Ram had gone to Shahjahanpur, UP on 11.9.11 with son of complainant in search of prosecutrix but failed to find her. PW9 Ct. Vijay took exhibits to FSL on 24.11.11 and deposited the same at FSL Rohini. PW10 WSI Darshana Devi has remained IO for sometime and has filed challan. PW11 Ct. Mahender Singh had accompanied IO on 13.9.11 to Shahjahanpur when accused was arrested and prosecutrix was recovered. PW12 SI Arvind Kumar is the IO, he proved rukka Ex.PW12/A, copy of school identity card of prosecutrix Ex.PW12/B, his application before Ld. M.M for recording statement of prosecutrix as Ex.PW12/D. His application for applying copy of statement Ex.PW12/E, FSL report Ex.PW12/F and PW12/G.
4. Statement of accused was recorded u/s. 294 CrPC wherein he admitted his MLC as Ex.PA1 and MLC of prosecutrix as Ex.PA2.
5. On the basis of the incriminating evidence against the accused , his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that on 22.8.11 prosecutrix met him at Jafrabad and asked him to take her away as she wants to marry with him. She threatened to cut her wrist in case he did not take her with him. He took her to Khayala and from there they went to Meerut and then Shahjahanpur. At Shahjahanpur prosecutrix converted to Islam and on 6.9.11 they did Nikah in Masjid with her consent. She had given an affidavit to District Collector on 6.9.11 mentioning that she is major and converted to Islam. She filed a complaint u/s. 200 CrPC before CJM and there her statement was recorded in the Court on 13.9.11 where she has stated that she had married with him after converting to Islam. She had married with him at her own free will. Parents of the prosecutrix demanded Rs.2 Lacs from him but he showed his inability to pay this amount, due to this reason this false complaint was made. Prosecutrix deposed against him at the pressure of her parents.
6. Heard arguments of Sh. Maqsood Ahmad, Ld. APP for State and Sh. S.G. Asthana, Ld. Defence counsel for accused persons. Perused the case file.
7. Ld. APP submitted that prosecutrix was minor and less than 16 years of age at the time of this incident. It is argued that she has specifically deposed that accused had raped her without her consent. It is stated that regarding the complaint filed by prosecutrix alongwith other affidavits in the Court at Shahjahanpur, she has specifically deposed that she was forced by accused to do it. It is stated that MLC of the prosecutrix also supports her statement.
8. Ld. defence counsel Sh. S.G. Asthana for the accused submitted that statement of prosecutrix does not inspire confidence as she has made considerable improvements while deposing before this Court which renders her testimony under shadow of doubt. It is stated that prosecutrix and accused had married with each other and this fact stands proved from the case filed by prosecutrix alongwith affidavits in the local Court of Shahjahanpur against her family members. It is stated that even in MLC it is found mentioned that she got married with accused on 2.9.11. It is stated that prosecution has failed to bring any conclusive proof regarding age of the prosecutrix and the affidavit which is stated to have been filed while admitting prosecutrix in the school neither bears thumb impression nor bears signatures nor is attested by Notary and hence cannot be taken as a valid proof for her age. It is stated that prosecutrix was more than 18 years of age, she willingly went with the accused and there they both married and thereafter under family pressure she is making false statement before this Court. In support of his contentions Ld. counsel has relied upon 171(2010) Delhi Law Times 543 (DB) case titled Jitender Kumar Sharma Vs. State & Anr.
9. Prosecutrix while deposing as PW4 has stated that accused used to reside in their neighbourhood for the last 23 years and used to visit their house to meet his brother. About one month at about noon time accused met her outside the gallery of her house, he forcibly took her to his room and there he did sexual intercourse with her against her wish. She returned to her house but did not tell this to anyone as she was scared that her brother might quarrel with the accused. When she used to go to school accused used to follow her asking her to marry him but she used to refuse. On 25.9.11 it was her school holiday and she was going to her sister's house. On the way accused met her and enticed her to come with him and promised to get her clothes and ornaments and keep her happy. She accompanied the accused who took her to Khayala side. From there they went to Meerut and then to Shahjahanpur and then to Lucknow and again returned back to Shahjahanpur, there they stayed for 2 days in the house of uncle (foofa) of accused where accused raped her 45 times. Accused also raped her when they stayed at Shahjahanpur and Lucknow. Police alongwith his brother and Jija reached at Shahjahanpur but accused got the information and he shifted her to his friend's house. Next day in the evening when she was going to market with the accused, police reached there and arrested the accused. They were brought to Delhi. She was taken to GTB Hospital and was medically examined. There her undergarments were seized. She was produced before Ld. M.M and her statement was recorded. During crossexamination prosecutrix admitted that she left the school after passing 9th class in the month of April'11 ; his father has two wives and Sunita is her mother ; for the last 3 years his father is not doing any work due to the illness ; on 25.9.11 she went with accused to Jafrabad ; they stayed in Khayala for 4 days ; from Khayala accused took her to Meerut and then to Shahjahanpur ; she married with accused at Shahjahanpur but without her consent. She admitted that she got her statement recorded before CJM Court, Shahjahanpur which is Ex.PW4/DA1 ; she stated that accused alongwith 45 persons had threatened her to give statement. She admitted that there she told her age as 19 years but stated that she told this age at the instance of accused. She admitted to have filed affidavit with her photograph as Ex.PW4/DA2. She admitted to have filed a case against her brother Ajay vide case No. 3062/2011 before the Court of CJM, Shahjahanpur titled Pooja Vs. Ajay u/s. 323/504/506 IPC PS Sadar Bazar. She stated that accused had forced her to file the said case. She denied the suggestion that they used to love each other, since her family was not agreeing to this alliance, due to this reason she at her own ran away from house with accused with the purpose to marry him and settled down with him in the life.
10. Ex.PW4/A is the statement of prosecutrix wherein she has made the same allegations as deposed by her before this Court. Prosecutrix was recovered from the house of accused at Shahjahanpur, UP. As per IO PW12 on 13.9.11 he alongwith WCt. Omwati (PW2) and Ct. Mahender Singh (PW11) went to Shahjahanpur in search of accused and prosecutrix. They made arrival entry at Local PS Sadar and HC Pramod Kumar (PW7) was taken from local PS. They conducted raid at house of accused. Accused was present in his house. On inquiry accused told that prosecutrix was present in his house. Prosecutrix was recovered and accused was arrested. PW2, PW7 and PW11 have supported the statement of IO PW12 regarding recovery of the prosecutrix from the house of the accused at Shahjahanpur. All these witnesses were crossexamined by accused but nothing has come on record to discredit their statements regarding recovery of prosecutrix from his house at Shahjahanpur. PW6 Sh. Shahjade is the uncle/Foofa of accused. He deposed that accused with prosecutrix (witness identify the prosecutrix as she was present in the Court) came to his house and left her in their house and went back. His daughterinlaw told him that accused had married with that girl. He asked his daughterinlaw that why accused had left the said girl in their house. In his absence accused came to their house and took prosecutrix back with him.
11. During her crossexamination prosecutrix has admitted that she got married with accused at Shahjahanpur. She also admitted that she got recorded her statement before CJM Court in Shahjahanpur which is Ex.PW4/DA1. As per this statement recorded by CJM on 13.9.11 u/s. 200 CrPC in complaint against his brother Ajay u/s. 323/504/506 IPC PS Sadar Bazar, she has stated that his brothers Ajay and Pappu wanted to marry her with a person who is a gambler and alcoholic, they also used to beat her and on 22.8.11 in the absence of her family members she left her house and had married with accused with her consent. She has further stated that on 10.9.11 Pappu and Ajay had come there to take her back, she refused to go with them, they had beaten her and abused her. Ex.PW4/DA2 is an affidavit admittedly filed by prosecutrix wherein she has mentioned that she is major and has converted to Islam. This affidavit was filed by prosecutrix in the Court of CJM alongwith her complaint against her brothers. As per prosecutrix accused had forced her to file this case.
12. Prosecutrix went missing on 22.8.11 and was recovered on 14.9.11. As already discussed, it is admitted by her that during this duration she stayed with the accused at Shahjahanpur, filed a criminal complaint against her brothers and deposed before the Court of CJM mentioning that she is major and had left her house willingly and had married with accused. From these circumstances it can be safely presumed that she willingly left her house with the accused, stayed at Shahjahanpur with him and filed a criminal complaint against her brother u/s. 200 CrPC before the Court of local CJM.
13. Age of the prosecutrix is very material consideration to decide culpability of the accused for the offence for which he is charged. As per complainant PW3 prosecutrix was aged about 15 years at the time of this incident. As per prosecutrix she was aged 17 years at the time of recording of her statement before this Court i.e. on 11.5.12. Ex.PW5/B is the copy of the admission withdrawal register of Sarvodya CoEd. Sec. School, Old Seelampur, as per which her date of birth is 6.5.96. Accordingly, as per this record prosecutrix was aged about 15 years 4 months at the time of this incident.
14. The Ld. counsel for the accused has submitted that admittedly by PW5 date of birth of prosecutrix was mentioned in the school records on the basis of affidavit Ex.PW5/A filed by PW3 at the time of admission of prosecutrix in the school. It is stated that Ex.PW5/A is not a valid document as it is neither attested by Notary nor bearing signatures nor thumb impression of the mother of the prosecutrix. It is stated that in this affidavit date of birth of the prosecutrix is mentioned as 6.5.96 but there is no documentary proof that on what basis this date of birth was mentioned in the affidavit. PW5 during his crossexamination has admitted that Ex.PW5/A is not an affidavit as it is not attested and signed by Notary and no birth certificate issued by MCD was filed at the time of admission of prosecutrix by her parents. I agree with the contention raised by Ld. defence counsel that affidavit Ex.PW5/A is not a valid document as it is neither attested nor bearing signatures or thumb impression of either parent of prosecutrix.
15. The law is settled that in the absence of any documentary proof regarding age of the prosecutrix, the statements of parents regarding her age needs to be considered. Complainant PW3, who is mother of the prosecutrix in her examinationinchief itself has given her age as 15 years and 16 years. It shows that she herself is not sure about age of prosecutrix. As already discussed prosecutrix while deposing as PW4 has given her age as 17 years and in her affidavit given at the Court of Shahjahanpur i.e. Ex.DW1/A, she has given her age as 19 years. In view of the aforesaid reasons, in my opinion, the prosecutrix was between 16 to 17 years at the time of this incident.
16. It is admitted case of the accused that she was recovered from Shahjahanpur by the police. The other contention raised by Ld. defence counsel is that prosecutrix was duly married with the accused. Though no formal proof regarding marriage has come on record but as per the statement of the prosecutrix as Ex.DW1/C dated 13.9.11 recorded in the Court of CJM, Shahjahanpur and her affidavit Ex.DW1/A, she has stated to have married with accused after converting to Islam. Ex.PA2 is the MLC of the prosecutrix, on which it is mentioned "according to patient got married on 2.9.11 at Shahjahanpur, UP". As per the MLC her vagina can admit two fingers. It is also mentioned in the MLC that patient had intercourse for last 45 days back and not changed her undergarments. Ex.PW12/F and Ex.PW12/G is the FSL report which is of no help to the prosecution as the semen sample get putrefied and semen could be detected on the samples of the prosecutrix.
17. In support of his submissions Ld. counsel has relied upon Jitender Kumar Sharma (Supra). In this case under similar circumstances, two minors ran away from home and got married as per Hindu Rites & Customs. An FIR was registered by the police of minor girl. Prosecutrix on recovery clearly stated that she left her home on her own free will. The Court discussed the Hindu Marriage Act, Guardianship and Wards Act, 1890 and Hindu Minority & Guardianship Act, 1956 and Prohibition of Child Marriage Act, 2006 and observed that continuing criminal proceedings against petitioner (accused) would be an exercise in futility and would not be in the interest of justice. Accordingly, the Court quashed all the proceedings against the accused.
18. As already discussed, age of the prosecutrix at the time of this incident is found to be 1617 years. From the manner in which from 22.8.11 to 14.9.11 she remained with accused, moved with him from one place to another, her statement that accused raped her does not inspire confidence and cannot be believed. As already discussed, filing of a criminal complaint by prosecutrix before CJM Shahjahanpur against her brothers establishes that she willingly left her house with accused and married him. Her statement that accused enticed her to come with him stating that he will get her clothes, ornaments and will keep her happy again does not inspire confidence and is not trustworthy.
19. In view of the facts and circumstances of this case, it is held that prosecution has failed to prove its case against accused beyond reasonable doubt. Accused is thereby acquitted from the offences punishable under Section 363/366/376 IPC File be consigned to the record room.
ANNOUNCED IN OPEN COURT ON 05.09.2013 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS : DELHI