Delhi District Court
State vs (1) Imran Ansari on 9 November, 2010
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.29/10/09
Unique Case I.D. No.02402R0059902009
FIR No.253/2006
Police Station New Ashok Nagar
Under Section 363/376 (2)(g)/366A IPC
State Versus (1) Imran Ansari
S/o Irfan Ansari @ Chhote
R/o Village Badapur, Mohalla Pakka
Bagh, District Bijnour, U.P.
(2) Layeek Ahmad Ansari
S/o Late Sh. Rafiq Ahmad Ansari
R/o Village & PS Badapur,
Mohalla Satyan, Tehsil Nagina,
District Bijnour, U.P.
Date of Institution : 24.03.2009
Date of judgment reserved : 27.10.2010
Date of judgment : 09.11.2010
JUDGMENT
Two accused, namely, Imran Ansari and Layeek SC No.29/10/09 State vs Imran Ansari etc. Page 1 of 21 Ahmad Ansari have been sent to face trial by the police of PS New Ashok Nagar, for the offences punishable under Section 363/376 (2)
(g)/366A IPC.
2 Briefly stating, the facts of the prosecution case are that on 12.04.06, Smt. Rafiqan(PW7)( hereinafter referred to as the complainant) came at Police Station New Ashok Kumar and lodged the missing report of her daughter Noor Bano(PW1) vide DD No.47B Ex.PW19/A to the effect that she was missing since 07.04.06. The said missing report was recorded by DD writer HC Ramveer(PW19) vide Rojnamcha Ex.PW19/A1. The said DD was marked to SI Rajesh Dangwal(PW20) for inquiry. He got flashed message on all India basis vide Ex.PW20/A. He also informed the same to Missing Persons Squad vide form Ex.PW20/B but Noor Bano could not be traced.
3 On 12.06.06, the complainant(PW7) came to the Police Station and made statement that accused Layeek Ahmed was residing in her house as a tenant about six months ago and she was having suspicion that her daughter Noor Bano(PW1) might have been kidnapped by accused Layeek Ahmed. On the basis of statement of complainant(PW7), the duty officer HC Beer Pal(PW17) SC No.29/10/09 State vs Imran Ansari etc. Page 2 of 21 recorded the FIR Ex.PW7/A and investigation of the same was assigned to SI Rajesh Dangwal(PW20). Investigating Officer made efforts to trace out Noor Bano and got issued hue and cry notice Ex.PW20/C but she could not be traced.
4 On 16.10.07, complainant(PW7) produced the prosecutrix(PW1) in the Police Station. Inquiries were made from the prosecutrix in the presence of lady SI Santosh Sharma(PW16) and lady Ct. Shikha(PW4). Investigating Officer recorded statement of the prosecutrix under section 161 Cr.P.C. Prosecutrix was got medically examined in LBS Hospital by Dr. Sunita Yadav(PW5) vide MLC Ex.PW5/A. Doctor handed over the pulandas containing exhibits of prosecutrix to lady Ct. Shikha(PW4) who then handed over the same to the Investigating Officer. The same were seized vide seizure memo Ex.PW4/A. The same were deposited in malkhana vide entry No. 1986 Ex.PW2/A with MHCM HC Mukesh Kumar (PW2). Investigating Officer prepared recovery memo Ex.PW2/B of the prosecutrix.
5 On 17.10.07, prosecutrix(PW1) was produced by Investigating Officer vide application Ex.PW 8/A before the Court for her statement under section 164 Cr.P.C. On 18.10.07, statement SC No.29/10/09 State vs Imran Ansari etc. Page 3 of 21 under section 164 Cr.P.C. Ex.PW8/B of the prosecutrix was recorded by Sh S.K.Malhotra(PW8), the then Ld. M.M. On the application Ex.PW8/C moved by the Investigating Officer, copy of statement was supplied to the Investigating Officer. Lady SI Santosh Sharma(PW16) moved an application before Ld. M.M. for sending the prosecutrix (PW1) to Nari Niketan but the custody of the prosecutrix was handed over to her mother i.e. complainant(PW7).
6 Efforts were made by the Investigating Officer to trace out the accused persons but in vain. On 26.12.08, Investigating Officer(PW20) along with Ct. Upender Singh(PW11) had gone to Bijnor, UP where from accused Imran Ansari was apprehended. He was arrested vide memo Ex.PW11/A and his personal search was conducted vide memo Ex.PW11/C. Disclosure statement Ex.PW11/G of accused Imran Ansari was recorded. Information of arrest of accused Imran Ansari was given to his brother Rijwan. Accused Imran Ansari was brought back to Delhi and he was identified by prosecutrix(PW1) as the same person who kidnapped her after inducing her. Accused Imran Ansari was got medically examined vide MLC Ex.PW6/A. Doctor handed over pulandas containing underwear and semen sample of accused Imran Ansari which were SC No.29/10/09 State vs Imran Ansari etc. Page 4 of 21 seized vide seizure memo Ex.PW11/F. Investigating Officer deposited sealed pulandas with MHCM HC Mukesh Kumar(PW2) who deposited the same in the malkhana vide entry No. 2060/08 Ex.PW2/B. His potency test was done by Dr. Arvind Kumar(PW18) in GTB Hospital vide his report Ex.PW18/A. Dr. Arvind handed over two sealed voils to the Investigating Officer which were seized vide memo Ex.PW11/E. Accused Imran Ansari was produced before the Court and his police custody remand was taken vide application Ex.PW20/D. Thereafter, further investigation of the case was entrusted to ASI Rajender Singh(PW12) by the order of SHO 7 ASI Rajender Singh(PW12) along with accused Imran Ansari, Ct. Virender Kumar(PW13) and Ct. Upender Singh (PW11) went to Mumbai in search of accused Layeek Ahmed Ansari. Accused Layeek Ahmed was arrested from Saakar Cinema Hall, Tilak Nagar, Chimbur, Mumbai vide arrest memo Ex.PW11/B and his personal search was conducted vide memo Ex.PW11/D. Accused Layeek Ahmed made disclosure statement Ex.PW11/H. On 31.12.08, accused Layeek Ahmed was produced in Vikhroli Court, Mumbai and his three days transit remand was obtained vide application Ex.PW20/E. Accused Layeek Ahmed was brought to Delhi and was SC No.29/10/09 State vs Imran Ansari etc. Page 5 of 21 produced before SI Rajesh Dangwal(PW20), on 1.1.2009, who was assigned further investigation of the case. Accused Layeek Ahmed was sent to hospital in the custody of Ct. Sanjeev(PW14) where he was medically examined by Dr. Rajini Lohia(PW3) vide MLC Ex.PW3/A. Doctor handed over four sealed samples containing exhibits of accused Layeek Ahmed which were seized vide memo Ex.PW14/A. The said pulandas were deposited in malkahana vide entry No. 1362/09 Ex.PW2/C. 8 On 2.01.09, accused Layeek Ahmed was produced before Dr. Arvind Kumar(PW18) for conducting his potency test, which was conducted vide report Ex.PW18/B. On 5.01.09, since the Doctor advised the prosecutrix to undergo HIV test, therefore, same was conducted upon her. OPD ticket in this regard is Ex.PW10/A and HIV report is Ex.PW10/B. Entries in this regard were made in LBS Hospital in PID register at Sl. No. 49 and 63 Ex.PW10/C and Ex.PW10/D respectively.
9 On 13.01.09, HC Pramod(PW15) took the exhibits to FSL, Rohini vide RC No. 02/21 and reports of FSL Ex.PW20/X and Ex.PW20/X1 were collected by the Investigating Officer. Sh. Jai Kartar Singh(PW9), Teacher of MCD Primary School, Harijan Bansti, SC No.29/10/09 State vs Imran Ansari etc. Page 6 of 21 Gharoli, Delhi, produced the school leaving certificate Ex.PW9/A of the prosecutrix. He also produced admission register Ex.PW9/B and form Ex.PW9/C filled up by the mother of the prosecutrix. He also produced the affidavit Ex.PW9/D. 10 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where the accused persons were supplied with the copies of the chargesheet and the documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused persons. 11 The charges under Section 376(2)(g) as well as under
section 363/366A/34 IPC were framed against both the accused persons on 11.05.09 which reads as under: That on 7.4.06 from area of Gharoli Extension, Mulla Colony, Delhi within the jurisdiction of Police Station New Ashok Nagar, you both in furtherance of your common intention kidnapped the prosecutrix Noorbano aged about 15 years from the lawful guardianship of her parents and thereby committed an offence punishable under section 363/34 IPC, within the cognizance of this Court.
Secondly, on 7.4.06 at Khora Colony, Delhi within the jurisdiction of Police Station New Ashok Nagar, you both committed rape upon the person of SC No.29/10/09 State vs Imran Ansari etc. Page 7 of 21 aforesaid prosecutrix turn by turn and thereafter you both forced her for prostitution at Delhi and Mumbai and thereby committed an offence under section 376(2)(g) IPC and within the cognizance of this Court.
Thirdly, on 7.4.06 from area of Gharoli Extn. Mulla Colony, Delhi, within the jurisdiction of Police Station New Ashok Nagar, you both in furtherance of your common intention kidnapped the prosecutrix Noorbano, aged about 15 years from the lawful guardianship of her parents, with intent that she may be or knowingly it to be likely that she will be forced or seduced to illicit intercourse with other persons and thereby committed an offence under section 366A/34 IPC, within the cognizance of this Court.
12 Accused persons pleaded not guilty to the charges and claimed trial.
13 The prosecution has examined twenty witnesses in support of its case. Out of those witnesses, PW1 Noor Bano is the prosecutrix whereas complainant PW7 Smt. Rafiqan is her mother. PW 4 lady Ct. Shikha, PW11 Ct. Upender Singh, PW13 Ct. Virender Kumar, PW 14 Ct. Sanjeev and PW16 Lady SI Santosh Sharma remained associated with investigation of the case conducted by Investigating Officers PW20 SI Rajesh Dangwal and PW12 ASI SC No.29/10/09 State vs Imran Ansari etc. Page 8 of 21 Rajender Singh. PW2 HC Mukesh Kumar was the MHCM at the relevant time whereas PW 17 HC Birpal was the duty officer and PW19 HC Ramveer Singh was the DD writer in the Police Station at the relevant time. Exhibits were deposited in FSL by PW15 HC Pramod. PW5 Dr. Sunita Yadav medically examined prosecutrix. PW6 Dr. Kumar Gaurav proved the MLC of accused Imran Ansari whereas accused Layeek Ahmed Ansari was medically examined by PW3 Dr. Rajni Lohia. Potency test on both the accused persons was conducted by PW18 Dr. Arvind Kumar. PW10 Ved Parkash proved the record of HIV test of the prosecutrix. PW8 Sh. S.K. Malhotra was the Ld. M.M. Who recorded statement of the prosecutrix under section 164 Cr.P.C. PW9 Sh Jai Kartar Singh produced school record of the prosecutrix.
14 The statements of the accused persons have been recorded under Section 313 Cr.PC. Both the accused persons have either shown their ignorance or denied the present case against them. However, they did not lead any evidence in their defence. 15 I have heard Shri Pankaj Sanghi, learned APP for the State and Shri M.R.Chanchal, learned defence counsel for accused persons. I have carefully gone through their submissions and the SC No.29/10/09 State vs Imran Ansari etc. Page 9 of 21 record of the case.
16 The learned Addl PP for the State has submitted the prosecutrix was a minor girl at the time of incident and the case of the prosecution has been fully supported by her and her mother during her examinationsinchief. It is further argued that the version given by prosecutrix and her mother during crossexamination is not worthy to acquit the accused persons. The prosecution has been able to make out its case against the accused persons beyond reasonable doubt. 17 On the other hand, the learned defence counsel for the accused persons has argued that the prosecution has failed to establish that the prosectrix was minor at the relevant time. It has further been argued that the prosecutrix was a major girl. After performing marriage with accused Layeek, she accompanied with him to her matrimonial house where she lived during the period in between. It has further been argued that the allegations levelled against the accused persons are false and the prosecutrix and her mother have not supported the story put forth by the prosecution. He has argued that the accused persons are entitled for acquittal. 18 Case of the prosecution is that the prosecutrix was a minor girl when she was kidnapped by accused persons from the SC No.29/10/09 State vs Imran Ansari etc. Page 10 of 21 lawful guardianship of her parents with intent to force her to have illicit intercourse with other persons. It is also case of the prosecution that after kidnapping the prosecutrix, both the accused persons committed gang rape upon her.
19 To substantiate these allegations, prosecution has examined the prosecutrix Noor Bano as PW1. In her testimony, she has deposed that she knew both the accused persons as accused Layeek Ahmed Ansari was her tenant in 2006 and accused Imran Ansari was his friend. On 7.4.06 at about 2.30 p.m. when she had gone to fetch water from the tap in street, both the accused were standing in the street behind her street. Accused Layeek called her and she went to him. When she was taking turn in the street, accused Imran caught hold of her hand whereas accused Layeek put a handkerchief on her mouth due to which she became unconscious. When she regained consciousness, she found herself in a closed room where accused Layeek and his friends were liquor. After 23 minutes, accused Imran came in the room. Both the accused and their friends started fondling her. When she protested, both the accused threatened to eliminate her brother and father. Accused Layeek removed her clothes and committed rape upon her against her wishes and SC No.29/10/09 State vs Imran Ansari etc. Page 11 of 21 thereafter and accused Imran also committed rape upon her. 34 associates of accused Imran also committed rape upon her one by one. At that time, she was 15 years old. She was kept in that room for about one month and during that period accused Layeek used to call male persons and she was subjected to submit to them physically by having sexual contracts with them. Accused Layeek took her to Mumbai after one month where she was kept in a closed room and she was forced to indulge in prostitution. Whenever she resisted, she was given beatings by accused Layeek. All this continued for about one year. Thereafter, accused Layeek took her to Badahpur Kasba, District Bijnor and kept her in a house. She further stated both the accused used to commit rape upon her as per their wish and against her wish. She further stated that accused Layeek used to commit unnatural offence with her by forcibly putting his penis in her mouth and he also used to commit sodomy but putting his penis from her back side.
20 After a few days sister of accused Layeek, namely, Shahnaj came there to whom prosecutrix told her entire plight. She took the prosecutrix to a STD booth from where she made telephonic call and had a talk with her mother. Her mother said that she would SC No.29/10/09 State vs Imran Ansari etc. Page 12 of 21 send her father to the Bus Stop of Badahpur. On the next day, prosecutrix reached the Bus Stop and found her father there. She was brought to Delhi and her mother took her to Police Station. She further stated that her statement under section 164 Cr.P.C. Ex.PW 1/A was recorded. She also stated that her recovery memo Ex.PW1/B was prepared.
21 During the course of cross examination, prosecution entirely demolished the case of the prosecution as she stated that accused Layeek and Imran are known to her and both of them belonged to Ansari community. She also belonged to Ansari community. She stated that accused Layeek is her husband and she was married to her on 15.03.05. Nikah was performed at her parental home and family members as well as relatives from both sides participated in the same. She identified her signatures and thumb impression of her father on Nikahnama Ex.PW1/DA. She was not sent to matrimonial home just after Nikah but was sent after about one year of Nikah. She was sent along with her husband in the presence of her family members. She categorically stated that she was 18 years of age when her Nikah was performed. Her husband took her to Barahpur and remained there for about one and half years. Accused SC No.29/10/09 State vs Imran Ansari etc. Page 13 of 21 Layeek and his family members kept her happy for about 15 months and thereafter on some misunderstanding and petty issues, accused started humiliating her. As Imran played the middle man in her marriage, she complained to him that accused Layeek was humiliating her on petty issues. She categorically stated that accused Imran never committed rape upon her or sodomy on her. She further stated that Layeek never committed any act of sodomy with her and also did not commit any wrong act with her after the marriage. Her mother did not like accused Layeek before the marriage or even after marriage whereas she was having deep love and affection towards him even earlier to marriage. She has further stated that on a day prior to the day of her coming to Delhi, she had conversation with her mother on phone as accused Layeek had quarrel with her. Her mother sent her father to Barahpur and her inlaws sent her with her father happily. She further stated that she had not gone to Nainital, Agra, Masoorie or Mumbai at any point of time. She further stated that her father got mentioned her wrong date of birth in the affidavit given in the school at the time of her admission. She further stated that her father wrongly estimated her age and mentioned the age of her younger sister Danista in place of her. According to her, she was SC No.29/10/09 State vs Imran Ansari etc. Page 14 of 21 matured and major at the time of her Nikah. She further stated that she was pressurized by some lady police official at the time of making statement before the Ld. Magistrate. She had made statement before the Court earlier which was not correct as she was pressurized by some police officials at the time of her giving statement before this Court and that is why she deposed against her husband. 22 Ld. Addl PP for the State reexamined the prosecutrix (PW1) wherein she denied entire case of the prosecution. She was declared hostile by Ld. Addl PP and was cross examined wherein she stuck to her stand that nothing wrong was committed upon her by accused persons and she was never kidnapped by them. 23 Complainant(PW7), mother of the prosecutrix has also demolished the case of the prosecution. Initially, she, during her examinationinchief supported the prosecution case but during her cross examination by Ld. Defence Counsel, she has stated that the prosecutrix Noor Bano is 2223 years old. She admitted that her husband got prosecutrix admitted in school by mentioning her age as an estimate which was wrong. Her family members including her husband wanted to get married prosecutrix with accused Layeek Ahmed but complainant was not consenting to the same. She further SC No.29/10/09 State vs Imran Ansari etc. Page 15 of 21 stated that prosecutrix got engaged with accused Layeek about one and a half years prior to this case. In the engagement, accused was given Rs.51/ while doing Roka. Her husband and other family members got performed Nikah ceremony of prosecutrix and accused Layeek but the complainant did not sit in the Nikah ceremony as she was not happy with Nikah. She further stated that her husband sent the prosecutrix with Layeek to his house at Barahpur, Bijnor, UP, but the complainant was not happy with the Nikah and also in sending her to matrimonial home at Barahpur. She further stated that her daughter was residing happily with accused Layeek after her marriage and they were on visiting terms with her inlaws. She further admitted that prosecutrix was major and had attained puberty when she was got married. She further stated that her husband brought the prosecutrix from Barahpur, Bijnor as she had sent her husband for taking prosecutrix to Delhi. She further stated that since Imran was friend of Layeek and did not act according to their wishes, that is why they put him with Layeek in the present case. She admitted that accused Layeek was residing in their house as a tenant. There was love affair between Layeek and the prosecutrix before the incident and the complainant scolded them after noticing the same. She SC No.29/10/09 State vs Imran Ansari etc. Page 16 of 21 disliked the relationship between them. She further stated that due to misunderstanding and misconception, she got the present case registered. She admitted that whatever she has deposed in her examinationinchief was at the instance of police officials. 24 The complainant was reexamined by the prosecution wherein she also stuck to her stand taken during her cross examination at the hands of Ld. Defence Counsel. She was declared hostile and was cross examined by Addl PP for the State wherein she denied the case of the prosecution in toto.
25 The basic question involved in the present case is whether the prosecutrix was minor or major at the time of commission of alleged offence. Though case of the prosecution is that she was 16 years of age as on 7.4.06 when she was allegedly kidnapped and raped, nevertheless to the admission of the prosecutrix in her cross examination, she has given her age as 18 years at the relevant time. The complainant(PW7), mother of the prosecutrix who would be the best person to tell date of birth of her child, has stated that prosecutrix was 2223 years old at the time when her statement was recorded in the court. If this version of complainant (PW7) is accepted to be correct, then at the time of incident, the SC No.29/10/09 State vs Imran Ansari etc. Page 17 of 21 prosecutrix was easily be assumed to be of 1819 years. 26 To substantiate its case that the prosecutrix was minor at the time of alleged incident, prosecution has examined Jai Kartar Singh(PW9), teacher of the school when prosecutrix was studying. He produced school leaving certificate and admission register of the school wherein date of birth of prosecutrix is mentioned as 4.5.1991. He has stated that father of the prosecutrix annexed his affidavit at the time of admission wherein also, her date of birth is mentioned as 4.5.1991. However, date of birth of prosecutrix as 4.5.1991 was entered in the school records on the basis of affidavit submitted by father of the prosecutrix. However, the prosecutrix(PW1) during her cross examination has categorically stated that her father got mentioned her wrong date of birth in the affidavit in the school at the time of her admission. She further stated that her father wrongly estimated her age and mentioned the age of her younger sister Danista in place of her date of birth. Similar is the version of the complainant(PW7) i.e. mother of the prosecutrix. She admitted that her husband got the prosecutrix admitted in school by mentioning age as an estimate which was wrong. Therefore, in view of this evidence, it can not be said that date of birth of prosecutrix SC No.29/10/09 State vs Imran Ansari etc. Page 18 of 21 mentioned in school records is correct.
27 The prosecution has not produced any municipal record to authenticate that the date of birth of the prosecutrix was 4.5.1991. The prosecutrix was not even subjected any ossification test which could have thrown some light as to her age at the relevant time. In the absence of such evidence and in view of categorical statement of the prosecutrix(PW1) and her mother(PW7), it can safely be inferred that prosecutrix was major at the time of alleged incident. 28 Accused persons have been charged for offences U/s 366A/34 IPC which provides that whoever, induced any minor girl under the age of eighteen years with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse, shall be punishable under this section. As per my findings above that prosecutrix was major i.e. above 18 years of age at the time of alleged incident, therefore, provisions of section 366A IPC are not attracted in the present case.
29 It has also been alleged against the accused persons that they kidnapped the prosecutrix and kept her confined in a room in Delhi, Mumbai as well as in Barahpur, Bijnor, UP where she was raped. The prosecutrix(PW1) as well as her mother i.e. complainant SC No.29/10/09 State vs Imran Ansari etc. Page 19 of 21 (PW7) have categorically stated that the prosecutrix was married to accused Layeek on 15.03.05 i.e. about one year prior to present incident. It has also been stated by the prosecutrix(PW1) and her mother(PW7) that prosecutrix was sent with accused Layeek to her matrimonial home after solemnization of marriage with him and thereafter she remained at her matrimonial home at Barahpur, Bijnor. The prosecutrix has denied the case of prosecution that she was ever kidnapped by accused persons or was taken to Mumbai. She has categorically stated that nothing wrong was done with her by either of the accused persons. Prosecutrix has admitted that her Nikah was performed with accused Layeek vide Nikahnama Ex.PW1/DA. 30 In view of the statement of the prosecutrix (PW1) as well as her mother i.e. complainant (PW7), I am of the considered opinion that the prosecution has failed to make out any case against the accused persons. From the totality of evidence led, it has nowhere been established that the accused persons kidnapped the prosecutrix (PW1), rather it has come on record that prosecutrix was sent with accused Layeek after performing her marriage with him to the matrimonial home wherein she enjoyed her married life. It has also not found proved that any wrong act or rape was ever committed by SC No.29/10/09 State vs Imran Ansari etc. Page 20 of 21 any of the accused upon the prosecutrix against her wish. 31 In view of the facts and circumstances of the present case mentioned above, it is hereby held that the prosecution has failed to make out case against the accused persons beyond reasonable doubt that they ever kidnapped the prosecutrix or that they committed gang rape upon her. The prosecution has also failed to establish that the prosecutrix was kidnapped by accused persons from the lawful guardianship of her parents with intent to force her or seduce her to illicit intercourse. Consequently, both the accused persons, namely, Imran Ansari and Layeek Ahmad Ansari are hereby acquitted of the charges framed against them under Section 376(2)(g) IPC as well as u/s 363/366A/34 IPC.
32 Both the accused persons be released from jail immediately, if not required in any other case.
Announced in the open Court ( P.S. TEJI )
Dated: 09.11.2010 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts
Delhi
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