Delhi District Court
State vs Accused on 24 May, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT) EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No. 02402R0219132009 SC NO. 15/13 Date of Institution:26.10.2012 FIR No.96/08 Date of Argument:23.05.2013 PS Nand Nagri Date of Order :24.05.2013 U/S 363/366/376/174A IPC State Versus Accused Tasleem S/o Sh. Amir Shah R/o Village Nindru, PS Dhampur, District Bijnor UP JUDGMENT
The facts in brief of the prosecution case are that on 26.02.2008 Sh. ____Y____ r/o _______Z_______, Delhi, here in after referred to as the complainant lodged a missing report of his daughter ___X___, here in after referred to as the prosecutrix, that she was missing from his house since 12.02.2008 and that he came to know that a boy who was residing in E-5 Block of Nand Nagri, namely, Tasleem s/o Amira r/o Village Nindru, PS Dhampur, District Bijnor U.P. here in after referred to as the accused, kidnapped his daughter. The prosecutrix could not be traced. WT message on All India basis was flashed and all the agencies of police were informed. Efforts were made many times to trace the prosecutrix even by visiting above SC No.15/13 State vs. Tasleem Page 1 of 19 mentioned place but she could not be traced. IO collected record regarding date of birth of the prosecutrix from Government Girls Senior Secondary School, E-Block, Nand Nagri, Delhi. Initially NBW and subsequently process u/s 82-83 of the Code of Criminal Procedure, here in after referred to as the Code were issued and ultimately the accused was declared proclaimed offender. IO recorded statements of witnesses and after completion of investigation filed a charge sheet against the accused for the offences punishable u/s 363 IPC. Ld. M.M. after recording the evidence u/s 299 of the Code consigned the file to Record Room. The accused after arrest by Proclaimed Offencer Cell, District North East, Delhi was produced in court on 07.08.2012. His wife ___X___ was informed about the arrest of the accused. Accused, his wife ___X___, Master Tushawar and Master Tauheen were produced in the GTB Hospital for their medical examination and their MLC's were prepared. The prosecutrix was produced before Ld. M.M. and her statement u/s 164 of the Code was recorded. The samples which were given by doctors in the hospital were handed over to the IO and same were seized and deposited in the police malkhana and subsequently those were sent to FSL and report from FSL were obtained. After completion of investigation, police filed supplementary charge sheet against the accused for SC No.15/13 State vs. Tasleem Page 2 of 19 his trial for the offences punishable u/s 363/366/376 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to Sh. T.S. Kashyap, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 21.12.2012 the court opined that there was prima facie case for framing of charge against the accused for the offences punishable u/s 366/376/174 A IPC. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
5. The prosecution, in order to prove its case examined ASI Rampal Singh as PW1; Sh. Arun Kumar Verma, Custom Inspector as PW2; Sh. ____Y____, complainant as PW3; Prosecutrix as PW4; Mrs. Asha Kumar SC No.15/13 State vs. Tasleem Page 3 of 19 Principal as PW5; Sh. Sunil Gupta Ld. as PW6; HC Dinesh Kumar as PW7; W/Ct. Nirmal Kaur as PW8; W/Ct. Sudesh as PW9; Ct. Kapil Kumar as PW10; Retd. ASI Rajender Singh as PW11; Ct. Bachhu Singh as PW12; HC Rajbir Singh as PW13; Ct. Bala Sahib as PW14; and W/SI Usha as PW15.
6. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. Accused admitted that the prosecutrix was residing in Nand Nagri alongwith her father and that he was working at Barbar shop near the house of prosecutrix and that his marriage with the prosecutrix was solemnized and that he was taken to GTB Hospital for his medical examination and his samples were taken. He also admitted that out of his relationship with prosecutrix three children were born. He pleaded that the report prepared by PW14 was incorrect. He was residing in the same village at Nindru. No police official visited his place. He further pleaded that he was having ancestral property in the name of his father at village Nindru. He further stated that he and prosecutrix were in love and they solemnized their marriage without consent of the parents of the prosecutrix so the present case was got registered by father of the prosecutrix. He denied rest of the evidence and pleaded that at the time of SC No.15/13 State vs. Tasleem Page 4 of 19 solemnization of his marriage with the prosecutrix his wife was at marriageable age. He committed no offence.
7. In support of his defence, accused examined Sh. Amir Shah his father as DW1; Smt. Roshan Jahan, Village Pradhan of Village Nindru as DW2; and Sh. Israr Ahmad, farmer in Village Nindru as DW3.
8. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
9. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly, that the prosecutrix was abducted by the accused, either by force compelled or by any deceitful means induced the prosecutrix to go from her place and secondly, the prosecutrix was abducted with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
10. In order to prove its case for the offence of rape, SC No.15/13 State vs. Tasleem Page 5 of 19 punishable u/s 376 IPC, the prosecution has to prove firstly, that accused committed sexual intercourse with the prosecutrix and secondly, sexual intercourse was committed against her will or without her consent.
11. In order to prove its case for the offence of disobedience to an order from public servant punishable u/s 174A IPC, the prosecution has to prove firstly, that a proclamation u/s 82 of the Code was issued against the accused; and secondly, the accused failed to appear at the specified place and specified time.
12. On the basis of the evidence of the parties on record and admissions thereof by the accused in his statement u/s 313 of the Code, following facts stands established:
(i) That the prosecutrix with her family was residing with her family at _______Z_______ Delhi;
(ii) That the accused was working at a Barbar shop near the house of the prosecutrix on or before 12.02.2008;
(iii) That the accused and the prosecutrix fell in love and accused took the prosecutrix to Bijnor from her house;
SC No.15/13 State vs. Tasleem Page 6 of 19(iv) That accused was arrested on 06.08.2012;
(v) That the accused was taken to GTB Hospital on 29.08.2012 where his MLC Ex. PX was prepared;
(vi) That out of the physical relations of the prosecutrix and the accused three children were born;
(vii) That the paternity of the children has been confirmed by DNA Profile Test; and
(viii) That the prosecution witnesses correctly identified the accused.
Whether the prosecutrix was minor on the date of incident
13. Let us examine if the prosecutrix was minor on the date of incident. PW3 on this aspect deposed that in the year 2008 he was running a meat shop. His daughter ___X___ was studying in 5th Standard in Government Girls School, A Block, Nand Nagri. He found his daughter missing from the house and he lodged report Ex.PW2/A. He also handed over School Leaving Certificate Ex.PW2/D of his daughter to police which was seized vide memo Ex.PW2/C. At the time of missing of his daughter she was 14 years of the age. In cross examination he admitted that at the time of missing of his daughter he mentioned her age incorrectly and the correct and actual age of his daughter, the prosecutrix was above 16 years. He deposed that date SC No.15/13 State vs. Tasleem Page 7 of 19 of birth of his daughter, as mentioned Ex.PW2/B was 25.12.1993. In cross examination he stated that he told the less age of his daughter to the police so that the police may act swiftly.
14. PW4 on this aspect deposed that she fell in love with the accused and accompanied him to Bijnor where she was got married with him and after 1 ½ year of their marriage she was blessed with a male child and thereafter, they were again blessed with a male child after two years of the first child. At the time when she accompanied with the accused, she was 16-17 years of age. In cross examination conducted by Ld. Additional Public Prosecutor she denied the suggestion that she was 14 years of the age at the relevant time. She also denied her date of birth 25.12.1993 as her correct date of birth. In cross examination conducted by Ld. Defence Counsel she stated that accused had taken her to his village for the purpose of marriage as she fell in love with him. Nikah was solemnized and Nikahnama Ex.PW4/DA was prepared.
15. PW5 proved the school record in respect of the prosecutrix ___X___ and stated that as per school record her date of birth was 25.12.1993. School record was proved as Ex.PW5/A to Ex.PW5/D. In cross examination, SC No.15/13 State vs. Tasleem Page 8 of 19 she stated that date of birth certificate of ___X___ either issued by Municipal Corporation of Delhi or any other authority was not given at the time of admission of the prosecutrix in the school. The genuineness of the School Leaving Certificate was not verified.
16. The evidence discussed here in above has established that the prosecutrix was born either on 25.12.1993 or thereafter, as that date was told as approximate date. The date of occurrence is 26.02.2008. On calculation the age of the prosecutrix comes to more than 14 years.
17. In view of the reasons, discussion and evidence on record and as discussed here in above, it stands established that prosecutrix was minor on the date of incident when she was taken by the accused from the guardianship of her parents.
Commission of offences of kidnapping, abducting or inducing women to compel her marriage and rape on the prosecutrix by the accused.
18. As mentioned above the ingredients of offence of kidnapping stands admitted by the accused. It has been argued by Ld. Defence Counsel that accused and the SC No.15/13 State vs. Tasleem Page 9 of 19 prosecutrix belonged to Muslim religion and as per the Muslim law, a girl even minor was capable to marry with a boy, on attaining the puberty, without the consent of her parents and consequently, her husband and particularly the accused in the present case cannot be held guilty for the offence of kidnapping or for the offence of kidnapping, abducting or inducing women to compel marriage or for the offence of rape.
19. In support of his arguments, Ld. Defence Counsel relied on a case, Mrs. Sahara Begam v. State of Delhi and Ors., 2013 (1) RCR (Civil) 798 wherein the Delhi High Court observed that:
"4. This Court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18. The Patna High Court in the case of Md. Idris vs. State of Bihar & Ors., 1980 Crl. L.J. 764 observed that:
"Whether respondent No.5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Article 251 of Mulla's Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, In absence of evidence, on completion of the age of 15 years. Even in Tyabji's Muslim Law under Article 27 is mentioned that a SC No.15/13 State vs. Tasleem Page 10 of 19 girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mulla's Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man of the woman as his wife. Article 90 of Tyabji's Muslim Law also says that a marriage Is to be presumed on the acknowledgment of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian."
This Court, in Vivek Kumar @ Sanju and Anjali @ Afsana vs. The State and another (Crl. M.C. No.3073-74 of 2006, decided on 23.02.2007) observed that, "There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner No.2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and SC No.15/13 State vs. Tasleem Page 11 of 19 liberty as guaranteed by the Constitution is equally available to minors. A father has not right to forcibly marry off her daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of girl or on the part of boy with whom she ran away and married.***
2. In view of the above judgments, it is clear that a Muslim girl who has attained puberty i.e. 15 years can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e. 18 years." [Emphasis supplied]
20. Turning to the case in hand and on analyzing the prosecution evidence, I find that PW4, the prosecutrix, inter alia, stated that she knew the accused present in the court as he was having a Barbar Shop near her house. They fell in love with each other and she accompanied him to Bijnor on 12.02.2008 where she was got married with the accused. After 1 - 1 ½ years of their marriage, they were blessed with a male child and thereafter, after two years of the first child they were blessed with the second male child. She returned back to her parents house after 1 ½ year of her marriage alongwith her son. In cross examination conducted by Ld. Additional P.P. she denied that the accused kidnapped her. In cross examination conducted by Ld. Defence Counsel she stated that she SC No.15/13 State vs. Tasleem Page 12 of 19 went with the accused to his village as she fell in love with him and in the village her Nikah with the accused was solemnized and before the Nikah accused did not maintain any physical relations with her. The fact that a son was born within 1 ½ year from the date of her marriage itself established that she had attained the puberty on the date i.e. 12.02.2008 when she left her house with the accused. PW4 in cross examination stated that she started mensuration 2 ½ years prior to going with the accused. Thus, the facts of present case and the above referred case are identical and principles of law laid down therein are applicable on the facts of present case. In this situation their marriage cannot be held as void. Resultantly, they were having their right to live together and consummate the marriage. Therefore, the accused cannot be held guilty for the offence of kidnapping, abducting or inducing women to compel her marriage etc. or for the offence of rape.
Offence of non appearance in response to a proclamation u/s 82 of the Code.
21. On analyzing the evidence on record, I come to the conclusion that the prosecution could not established beyond any reasonable suspicion or shadow of doubt that accused failed to appear despite proclamation u/s 82 of the SC No.15/13 State vs. Tasleem Page 13 of 19 Code. The reasons which support my decision are firstly, that it could not be established that the proclamation came in the knowledge of the accused. The proclamation Ex.PW14/B was published in newspaper, 'Amar Ujala' Saptah Sangrah, New Delhi Edition of Sunday, 3rd May 2009. The evidence on record has not proved that this newspaper was having circulation in the rural area of District Bijnor, U.P. PW1 who purportedly visited village of the accused, in cross examination stated that the house of the accused could not be traced at village Nindru, District Bijnor as accused was residing on rent. Father of the prosecutrix told him that the accused was residing in a rented premises but he did not tell him the exact premises. He arrived at village Nindru by bus. He did not have ticket of the bus and he did not place the same on record. He did not claim the expenses incurred by her on visiting that village.
22. The father of the prosecutrix did not support the prosecution case. His testimony is silent on this aspect. He was declared hostile. Even then he failed to support the prosecution case.
23. PW14, who also visited the village of the accused to execute process u/s 82 Cr. P.C., inter alia, stated SC No.15/13 State vs. Tasleem Page 14 of 19 that he accompanied Pradhan of village Nindru to know the whereabouts of accused/complainant. Ct. Lokender was with him. There was no clue of accused and he was not having any immovable property. In cross examination he stated that he did not recollect the name of village Pradhan or name of any person of village to whom he met. He could not say if he visited Mohalla Pir Fatah Ali Shah. The family members of accused were even not found in the village. He was not having any ancestral property.
24. In contradiction to their testimonies, DW1, father of the accused deposed that he was having ancestral house in village Nindru and he has been residing therein alongwith his family including accused Tasleem and his wife. His son never left his house during the period 2008 to 2012. Tasleem was doing the work of Barbar at the shop of Shahjahan Masjid. Police never visited at his house or the village. In cross examination nothing could come out to show that he deposed incorrectly.
25. DW2 deposed that he was village Pradhan of village Nindru for the last 2 ½ year. The police did not visit her village in respect of accused Tasleem who had been residing alongwith his family in his ancestral house and he did not leave the village. He proved a letter issued by her SC No.15/13 State vs. Tasleem Page 15 of 19 as Ex.DW2/A.
26. DW3 on this aspect deposed that in the year 2008 he had let out a shop to accused Tasleem on a rent of Rs.200/-. The police did not reach at village Nindru for inquiring about Tasleem. Tasleem and his wife were residing in the village in their ancestral house.
27. The testimony of the defence witnesses has the same evidentiary value as the testimony of the prosecution witnesses as held in case Pradeep Saini & Anr. v. State, 2010 IV AD (Delhi) 232, wherein the Delhi High Court observed that:
"51. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof has to be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed. As observed by Supreme Court in the decision reported as Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911:-
".....Defence witnesses are entitled to equal treatment with those of the prosecution; and courts ought to overcome their traditional instinctive disbelief in defence witnesses......"
28. On the basis of evidence on record and particularly discussed here in above, it is held that SC No.15/13 State vs. Tasleem Page 16 of 19 prosecution could not prove beyond reasonable suspicion and shadow of doubt that proclamation u/s 82 of the Code which was published in the newspaper Amar Ujala came in the knowledge of the prosecutrix. Resultantly, the accused was not expected to appear before Ld. M.M. on 10.06.2007.
29. Secondly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
30. Thirdly, the accused has succeeded in creating doubt in prosecution case so he is entitled to get benefit of doubt. My decision finds support by the case Ajmer Singh SC No.15/13 State vs. Tasleem Page 17 of 19 and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
31. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
32. Consequent upon the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused Tasleem either committed offence of kidnapping or offence of kidnapping, abducting or inducing woman to compel her marriage, etc. punishable u/s 363/366 IPC or committed rape on the prosecutrix punishable u/s 376 IPC or offence of non appearance in response to a proclamation u/s 82 of the Code. Consequently, by giving SC No.15/13 State vs. Tasleem Page 18 of 19 benefit of doubt to the accused, he is acquitted for the offences punishable u/s 363/366/376/174A IPC.
33. Accused is in J.C. He be released forthwith, if he is not required in any other case.
34. However, accused is directed to furnish within a week from the date of his release from jail, his personal bond for a sum of Rs.10,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
35. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court Dated: 24.05.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.15/13 State vs. Tasleem Page 19 of 19