Delhi District Court
State vs Miraj Ahmed on 12 November, 2010
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - I (EAST)
KARKARDOOMA COURTS : DELHI
SC No. 01/2009
Unique Case ID No. 02402R0637852008
FIR No. 683/2005
PS Shakarpur
Under Section 363/366/376 IPC
State Versus Miraj Ahmed
Miraj Ahmed S/o Riyaz Ahmed
R/o Sugar Mill Colony Campus,
Hardoi, PS Kotwali, Hardoi, UP
Date of Institution of Case : 02.1.2009
Date on which Judgment Reserved : 09.11.2010
Date on which Judgment Delivered : 12.11.2010
JUDGMENT :
The case of the prosecution in brief is that on 05.8.2005 complainant Ram Lal Bagga went to PS Shakarpur and lodged his complaint alleging that on 05.8.2005 her daughter Aanchal Bagga had left for her School at about 7.30 PM from her house No. L-29, Laxmi Nagar, Delhi and did not came back till 2.00 PM and on inquiries, he had found that she did not went to her School on that day. Complainant raised suspicion over the accused Miraj Ahmed to have kidnapped her daughter as he was also missing from his rented house which was infront of the house of complainant. Case was registered and the local police took over investigation during which the age of the victim Aanchal Bagga was found to be 15 years, 6 FIR No. 683/2005 1 of 10 months and 21 days, as per the MCD and school records. Subsequently, the investigation was marked to Crime Branch and SI DP Singh flashed message regarding the missing of the victim at all India level and he made all other efforts to trace out the victim as well as the accused. Coercive process was also got issued against the accused and he was ultimately declared Proclaimed Offender on 10.1.2006.
2. On 21.5.2007 complainant got an information from one Shri Vinayjeet Lal Verma - Standing Counsel at High Court Lucknow Bench through the local police regarding his appearance in a Writ Petition No. 2925 (M/B) of 2007 titled as Mrs. Aanchal Bagga @ Smt. Hameeda Vs. Ram Lal Bagga & others which was found to be filed by Aanchal Bagga seeking protection from her parents. IO/SI DP Singh and complainant appeared in the proceedings before the Hon'ble Lucknow High Court and the said Writ Petition was disposed of observing the marriage of the victim with the accused as unlawful marriage and it was declared null and void and the custody of the victim was handed over the IO. However, the accused did not appeared in the said proceedings.
3. Thereafter the prosecutrix/victim was brought to Delhi and her statement U/S 161 Cr. PC was recorded in which she disclosed about her physical relationship with the accused while she was minor. Accordingly, Section 376 IPC was added. Her statement U/S 164 Cr. PC was also got recorded.
4. Subsequently, accused Miraj Ahmed obtained anticipatory FIR No. 683/2005 2 of 10 bail from the Hon'ble High Court of Delhi on 06.2.2008. He was formally arrested in this case on 03.3.2008.
5. Thereafter charge sheet was filed against the accused for the said offences punishable under Section 363/366/376 IPC.
6. After the case was committed to the Court of Sessions and on considering the material placed on record, charge was framed against the accused for the offences punishable under Section 365/366/376 IPC dated 26.3.2009 to which he pleaded not guilty and claimed trial.
7. The prosecution examined 10 witnesses in all to substantiate the allegations. PW1 Shri Amrit Sharma - Sub- Registrar (Death & Birth), proved the entry in the Register regarding birth of the victim Aanchal Bagga and her birth certificate as Ex.PW1/A and PW1/B respectively.
PW2 Aanchal Bagga was the victim and she deposed as to how she developed friendship with the accused and accompanied him to his native place at Hardoi, Lucknow. However, she deposed that she accompanied the accused with her own consent and further stated her date of birth as 14.1.1988 instead of 14.1.1990. She was cross-examined by Ld. Addl. PP for the State after she was declared hostile, in which she she stated that she never had opportunity to tell her actual date of birth to the police.
PW3 ASI Ram Sultan was the Duty Officer and he proved the copy of FIR as Ex.PW3/A and his endorsement made on the ruqqa as Ex.PW3/B . PW4 HC Virender was a witness to the arrest FIR No. 683/2005 3 of 10 of accused and he proved his arrest memo and personal search memo as Ex.PW4/A and PW4/B respectively.PW5 Lady Ct. Kamlesh got the victim/prosecutrix medically examined at Baba Saheb Ambedkar Hospital, Rohini and handed over the seal parcel given to her by the doctor, to the IO which was seized vide memo Ex.PW5/A . PW6 Ms. Sushma Gulati, PRT Asstt. Teacher from the school of the prosecutrix proved her School Admission Record as Ex.PW6/A to PW6/D. PW7 Ram Lal Bagga was the father of the victim and complainant of this case. He deposed regarding missing of her daughter from her house and his lodging the complaint at PS Shakarpur about her. He proved the said complaint as Ex.PW7/A . PW8 Shri Vipin Kumar Rai, Ld. MM recorded the statement of the prosecutrix vide Ex.PW2/A and proved the proceedings as Ex.PW8/A to PW8/E. PW9 Dr. Manmeet had medically examined the victim and proved her MLC as Ex.PW9/A .
PW 10 Ins. DP Singh from Crime Branch was the IO of this case and he deposed about the investigation proceedings in detail carried out by him in this case, as stated herein above. He proved certain documents of the proceedings held at the Hon'ble High Court, Lucknow including the orders of the Court as Ex.PW10/A to PW10/E. He also proved the order of Ld. MM declaring the accused as Proclaimed Offender as Ex.PW10/F.
8. Statement of the accused was recorded under Section 313 Cr. PC and the entire incriminating evidence was put to him which he denied and pleaded innocence. He took the defence that the victim had gone with her with her own consent and she was major at FIR No. 683/2005 4 of 10 that time. He did not led any evidence in defence.
9. I have heard Shri Ashok Kumar - Ld. Addl. PP for the State and Shri MS Hussain - Advocate for the accused.
10. The present case of the prosecution is solely based on the testimony of the prosecutrix/PW2 who has not at all supported the prosecution case. She categorically and specifically deposed that it was she who induced the accused to take her away under threat of committing suicide as she wanted to marry him. She further deposed that for about 1½ years, she alongwith the accused resided at different places between Lucknow and Hardoi and in January 2007 she accepted Islam religion as she was much fancied by Islam and even changed her name to Hameeda and thereafter entered into nikah with the accused. In her cross-examination by Ld. Defence Counsel she further deposed that before contracting nikah with the accused, she never had any physical relations with the accused as it was contrary to the tenets of Islam. She also deposed that her date of birth was wrongly mentioned by her parents in the school and MCD records and that her actual date of birth was 14.1.1988 while it was got recorded as 14.1.1990.
11. It is clear from the testimony of the prosecutrix that she was neither induced, enticed nor forced in any manner by the accused for taking her out of her lawful guardianship. It is also clear that the accused never committed rape upon her and had physical relations only after they entered into a legal marriage.
FIR No. 683/2005 5 of 10
12. The factual position is that even at present the prosecutrix is residing with the accused as his legally wedded wife and two children have been born from this wedlock . Even in the Court, during her cross-examination she categorically refused to accompany her parents stating that her real home was that of the accused. She has already attained majority.
13. As per the Exception to the Section 375 IPC, sexual assault by a man with his own wife, the wife not being under 15 years of age, is not rape. As per the deposition of the prosecutrix, she contacted sexual relations with the accused only after nikah with him, that is to say after she became her legally wedded wife, in January 2007. As per the records produced by the prosecution , her date of birth is 14.1.1990, though disputed by her. Even by that date of birth , she was well above 15 years of age when she contracted marriage with the accused. Hence, in view thereof, the offence under Section 376 IPC could not be proved against the accused.
14. As per the prosecution case, the prosecutrix was 15 years and seven months of age when she eloped with the accused. However, as already stated above, there was no inducement or enticement etc. on the part of the accused for taking away the prosecutrix out of the lawful guardianship of her parents.
15. Ld. Counsel for the accused relied upon a judgment delivered in Jitender Kumar Sharma Vs. State & Anr. 171 (2010) Delhi Law Times 543 (DB) Delhi. In that case, two minors eloped and entered into the marriage. On a petition filed by them for FIR No. 683/2005 6 of 10 quashing of the FIR, the Hon'ble High Court while quashing the FIR held that continuing proceedings pursuant to the FIRs would be an exercise in futility and would not be in the interest of justice. Poonam has clearly stated that she left her home on her own and of her own free will. This cuts through the case of kidnapping and insofar as the offence punishable under Section 376 IPC is concerned, the present case falls under the exception to Section 375 IPC inasmuch as Poonam is Jitender's wife and she is above 15 years of age.
16. Though it was argued by Ld. Addl. PP for the State that the marriage between the accused and the prosecutrix was declared null and void by the Lucknow Bench of the Allahabad High Court but the fact remains that they both are still residing together as husband and wife. There is no other evidence on record to suggest that the accused committed rape upon the prosecutrix and for this the prosecution has relied on the testimony of the prosecutrix herself. According to her, she had sexual relations with the accused only after her nikah which took place in January 2007. Even as per the date of birth relied by the prosecution i.e. 14.1.1990, she completed 17 years of age at the time of her said nikah . She never deposed that the accused used any criminal force for having sexual relations with her which means that she consented to the sexual intercourse. Therefore, even if the marriage between the accused and the prosecutrix was declared to be null and void, even then the accused cannot be held guilty for rape, the prosecutrix being above 16 years of age and a consenting party.
FIR No. 683/2005 7 of 10
17. Thus, in view of the aforesaid, the prosecutrix could not prove that the accused in any manner enticed or took away the prosecutrix from the custody of her parents with intention to secretly or wrongfully confine her and thus, the offence under Section 365 IPC could not be proved against him. Similarly, the charge of rape as against the accused could not not be proved in view of the above factual position .
18. It may lastly be added that it is one of the typical case of run away marriage and any adverse order at this stage would ruin the life of both the prosecutrix and the accused who are happily residing as husband and wife with two minor children and the prosecutrix has already attained the age of majority.
19. In view of the aforesaid, I am of the considered opinion that the prosecution has failed to prove its case against the accused for the offences punishable under Section 365/366/376 IPC. Accordingly, accused Miraj Ahmed is hereby acquitted of the said offence. He is set at liberty. His bail bond stands discharged.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 12th day of November 2010 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) - I KARKARDOOMA COURTS : DELHI FIR No. 683/2005 8 of 10