Delhi District Court
State vs . on 5 February, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA;
ADDITIONAL SESSIONS JUDGE: NORTH EAST
KARKARDOOMA COURTS: DELHI
State
vs.
Abbas Hussain Munim
S/o Jahid Hussain
R/o Village Banderkheda
PS Jahanganj,
Distt. Farukhabad (U.P)
FIR NO: 132/2008
PS: Seelampur.
U.sec: 363/368/376 IPC
I.D No.: 02402R0575192008
Sessions Case No: : 57/2009
Date of institution of case: : 20.08.2008
Date on which reserved for Judgment : 07.01.2011
Date of Judgment : 22.01.2011
JUDGMENT
Briefly stated the facts of the case are that on 21.3.2008 at about 4.10 p.m one Mohd. Yusuf went to the Police Station and gave his statement that on 15.3.2008 his daughter Zeba Khatoon aged 12 ½ years had gone to her school, i.e Madarsa, Jama Masjid, New Seelampur. He further gave the Sessions Case No. 57/2009 Page1/22 2 description of his daughter and the clothes which she was wearing. Mohd. Yusuf further stated that he had lodged a missing report on 15.3.2008. He further stated that he had come to know that one boy who was working on a shop of beads whose name was Abbas Hussain @ Munim, was also missing from the said date. He further stated that he had suspicion that Abbas Hussain had enticed away his daughter Zeba Khatoon.
On this statement of Mohd Yusuf, FIR in this case was registered under section 363 IPC. Prosecutrix Zeba Khatoon was searched. All India W.T. message was flashed and missing persons squad was also informed.
On 15.3.2008, wife of the complainant namely Mehtul Nisha informed the police that Zeba Khatoon had returned home alone. Statement of prosecutrix Zeba Khatoon was recorded under section 161 Cr.P.C wherein she alleged that she was kidnapped by Abbas Hussain and also alleged rape by him. Section 376 IPC was added. Prosecutrix was got medically examined.
Accused Abbas Hussain was arrested in the case on the basis of secret information. After completion of investigation, challan was filed in the court for the offences punishable under section 363/368/376 IPC.
Ld. M.M after supply of copies etc, committed the case to the court of Sessions.
My Ld.Predecessor vide orders dated 17.01.2009 framed a charge for offences punishable under section 363/368/376 IPC to which the accused pleaded not guilty and claimed trial.
Sessions Case No. 57/2009 Page2/22 3
In support of its case, the prosecution examined 17 witnesses. PW1 Mohd. Yusuf is father of the prosecutrix. He stated that on 15.3.2008, his daughter Zeba aged 12 ½ years had left the house at 7.00 a.m for school at New Seelampur, Kblock near Masjid. He further stated that as she did not return and his mother lodged missing report with the police in evening of 15.3.2008. He further stated that they continuously searched for their daughter but she could not be found. He further stated that Abbas @ Munim who used to work in the neighbourhood, used to misbehave with his (PW1) daughter prior to 15.3.2008. He further stated that Abbas was also missing from his house. PW1 further stated that on 21.3.2008, he lodged a complaint Ex.PW 1/A with the police. He further stated that after registration of the case, police came to his house and at his (PW1) instance site plan was prepared.
PW2 HC Ram Rattan stated that on 13.5.2008 ASI Raj Kumar deposited with him two sealed pullandas sealed with seal of MLC GTB Hospital along with sample seal, three pullandas containing clothes, sealed with seal of MLC GTB Hospital along with sample seal. He made entry regarding this at Srl. No. 4203 in register No.19 and proved the same as Ex.PW 2/A. PW2 further stated that on 17.6.2008, vide RC NO. 20/21 five pullandas were taken by HC Muninder Singh for depositing them at FSL Sessions Case No. 57/2009 Page3/22 4 Rohini vide which he made entry at pointX. He further stated that on 20.02.2009 the pullandas along with the report were received from FSL Rohini regarding which he made entry at pointX1.
PW2 further stated that on 13.05.2008 ASI Raj Kumar deposited with him jamatalashi of Abbas Hussain regarding which he made entry at Srl.No. 4204 in register no.19 and proved the photocopy of the same as Ex.PW 2/B. PW3 Zeba @ Shiba stated that in the year 2008 she used to study at Fezan Public School in Vth standard and used to go to school along with her younger sister Ruksar. She further stated that Abbas used to work at the shop of one Ikrar and he (Abbas) used to tease her in the street while she used to go to school. She further stated that accused used to say that he loves her and that wanted to marry her. The accused used to say that he will take her away from this place for marrying her. She further stated that the accused was after her for onetwo years. She further stated that her age was 14 years as on date (on the day she made deposition before the court). She further stated that she used to scold the accused whenever he tried to talk to her on the way. She used to tell him that she will complain to her mother in this regard. She further stated that she complained to her mother regarding the activities of Abbas and thereafter her mother got Abbas terminated from his job.
PW3 further stated that on 15.3.2008 she was going to take Sessions Case No. 57/2009 Page4/22 5 examination at Faizan Public School and after taking examination when she was coming back from school, the accused met her on the way and asked her to accompany him. She further stated that she refused to accompany the accused and on this the accused forcibly took her to bus stand after giving her threats that if she (Zeba) dared to raise alarm, he would kill her. The accused then took her to Muradabad in a bus where the accused took her to Karola colony. She further stated that she did not know for how long she stayed at Karola Colony at Muradabd, but she stayed in a house in Karola Mohalla where other tenants were also residing in that house. She further stated that accused also resided with her in that house and he used to say that he would reside with her as husband. She had not married the accused. She further stated that the accused used to abuse her and also had sex with her against her consent and forcibly and whenever she (Zeba) used to refuse for the same, accused used to beat her. She further stated that accused had sex with her several times forcibly.
PW3 further stated that the accused was having some money with him however later the accused opened a biriyani thela and for that he took her earring and nose pin and sold them. The accused ran his biriyani thela for one day and earned Rs.75/. She further stated that she stayed at Muradabad for about two months and when the accused spent all his money, he brought her (Zeba) to Delhi and left her at traffic signal of Seelampur on 12.5.2008. She further stated that her house was situated nearby that traffic Sessions Case No. 57/2009 Page5/22 6 signal light. She further stated that on 13.5.2008 her parents called the police and her statement was recorded by the police. She further stated that the accused asked her to marry him during her stay at Muradabad but she refused for marrying the accused. She further stated that during her stay at Murdabad she was nostalgic for her parents and her home. She was feeling home sickness, but the accused did not allow her to talk to her parents on phone and also did not allow her to go outside. She further stated that the accused also used to keep her hungry many times. She further stated that her statement was once recorded in the police station and once in the court by Madam Niyay Bindu. She was medically examined. She further stated that at that time when accused left her at traffic Signal Seelampur, she was wearing green coloured suit and when she was taken for medical examination she was wearing black coloured suit and her mother was present with her when she was taken for medical examination. This witness identified her signatures on her statement Ex.PW 3/A. PW4 Mehru Nisha is mother of the complainant. She stated that Zeba is her daughter and she was having six daughters and Zeba is eldest. She further stated that her marriage took place about 7 years back. She was illiterate. She further stated that she does not remember the age of her daughter Zeba but her youngest daughter is three years old. She stated that her daughter Zeba used to study at Faizan Public School at Seelampur in VIth or Vth class. She (Zeba) had gone to take examination and thereafter she went Sessions Case No. 57/2009 Page6/22 7 missing and did not return home. A person named Abbas had taken her daughter away to a place which she does not know, but she came to know that Abbas had taken her daughter to Muradabad. She further stated that her daughter Zeba apprised her that Abbas had taken her to Muradabad. Abbas had left her daughter at red light, Seelampur. She further stated that during the period, her daughter went missing, Abbas was also missing and they had suspicion on Abbas that he might have taken her daughter. She further stated that she does not know what Abbas was doing but he used to reside at the place of one Ikrar. Abbas used to tease her daughter Zeba prior to her dis appearance and she was not aware as to when her daughter went missing.
She further stated that when her daughter came back, they informed the police. Police got her daughter medically examined. Thereafter she (Zeba) was handed over to them. Her motherinlaw had lodged report with police. She further stated that her daughter Zeba told her that Abbas kept her as his wife at Muradabad and had physical relations with her daughter against her will.
This witness was crossexamined by Ld.Addl.PP wherein she admitted it to be correct that on 15.3.2008 her daughter had gone to take examination. She also admitted it to be correct that her daughter had stated to her that Abbas had enticed her away to her daughter Zeba was weeping. Her daughter has also complained to her that Abbas had physical relations with her (Zeba) many times against her will. She also admitted it to be correct that Sessions Case No. 57/2009 Page7/22 8 age of her daughter was 13 years at the time of incident and that the statement of her daughter was also recorded in the court. She further stated that she had accompanied her daughter to hospital where her daughter was medically examined. She identified the salwar of her daughter as Ex.P1 She also admitted it to be correct that her (PW4) marriage took place about 15 years back and not seven years back.
PW5 Smt.Shahjahan is grandmother of the prosecutrix. She stated that Zeba was residing with her parents at H.No.E9/36 Nehru Market, New Seelampur. She further stated that on 15.3.2008 Zeba Khatton went to Jama Masjid School in the morning at about 7.00 a.m for appearing in examination but she did not return back. She further stated that she made search in the locality but she (Zeba) could not be traced. At that time Zeba was aged about 12½ years and she was in school uniform. She further stated that she lodged a missing report Ex.PW5/A. She further stated that on 21.3.2008 her (PW5) son Yusuf returned back from the village and they made search for Zeba. Then they came to know that accused Abbas Hussain was also not available at his house since the day of missing of her grand daughter. They made inquires and it was confirmed that Abbas had kidnapped Zeba. Thereafter named FIR was lodged against him by her (PW5) son on 21.3.2008.
PW6 HC Dal Chand is the Duty Officer. He stated that on Sessions Case No. 57/2009 Page8/22 9 15.03.2008, Smt.Shahjahan came to the police station at about 5.35 p.m and lodged a missing report of her granddaughter Baby Zeba Khatoon aged about 13 years. He further stated that he recorded the said information vide DD Entry No.23A. The copy of the said DD was handed over to ASI Prem Singh for necessary action. He proved the copy of the DD Entry as Ex.PW 6/A. PW7 ASI Prem Singh stated that on 15.3.2008 Duty Officer handed over to him DD No.23A (Ex.PW5/A) regarding missing of Baby Zeba Khatoon aged 12½ years lodged by her grandmother Smt.Shahjahan W/o Abdul Razaq. He further stated that on receiving said DD he got flashed WT message, informed missing persons squad and also issued posters regarding missing of the girls vide Ex. PW7/A, PW 7/B and PW7/C. He further stated that he made search for the girl but she could not be traced.
PW7 further stated that on 21.3.2008 he along with Ct. Narender was on patrolling duty at Nehru market and at about 4.15 p.m, Complainant Yusuf, father of missing girl met and informed that his daughter had been kidnapped by Abbas @ Munim and Abbas was also not available at his house since 15.3.2008. He further stated that he recorded statement of Yusuf which is Ex.PW1/A, made his endorsement Ex.PW7/D and handed over the rukka to Constable Narender to get the FIR registered. He further stated that Ct.Narender got the FIR No.132/08 registered and returned back and handed over to him original rukka and copy of FIR Ex.PW7/E. He further stated that he prepared site plan at instance of complainant Yusuf which is Ex.PW7/F. Sessions Case No. 57/2009 Page9/22 10 PW7 further stated that he made search for Baby Zeba Khatoon and suspect Abbas but they could not be traced on that day. He recorded statement of witnesses. He further stated that on 24.3.2008 he was transferred and he submitted the file to MHC(M).
PW8 SI Fateh Singh stated that on 21.03.2008 at about 5.40 p.m on receipt of rukka from Ct. Narender Kumar sent by ASI Prem, he recorded FIR NO. 132/08 vide DD NO. 22A and proved the copy of the same as Ex.PW 7/A. PW9 Dr.Rashmi Varshney stated that patient Zeba Khatoon was examined by Dr.Manisha Goel who had since left the services of the hospital and her whereabouts were not known. Dr.Rashmi further stated that she could identify the signatures and handwriting of Dr.Manisha as she had seen her writing and signing during the course of official duty. She further stated that on examination hymen of patient was found ruptured and the patient was advised pregnancy test which was later on found to be positive. She further stated that salwar, pubic hairs, and two vaginal slides of the patient were taken. She proved the MLC as Ex. PW 9/A. PW10 Lady Ct. Suman stated that on 13.05.2008 she joined investigation of this case with the IO ASI Raj Kumar and they reached at the house of Zeba Khatoon at H.No. E9/26, New Seelampur where Smt.Mehtul Nisha and Zeba Khatoon met them. IO joined them in investigation and Sessions Case No. 57/2009 Page10/22 11 recorded statement of Zeba Khatoon, Zeba told that she was taken away by a boy who had left left at red light of Seelampur. She proved the memo Ex. PW 10/A prepared in this regard. She further stated that thereafter prosecutrix Zeba was taken for medical examination to GTB Hospital and her mother also accompanied them. There in the hospital Zeba was got medically examined. After examination Doctor handed over to her three parcels alongwith sample seal which she handed over to the IO who seized the parcels. PW10 further stated that thereafter in her custody Zeba was produced in the court and in the court. In the court, Zeba was handed over to her mother vide memo Ex.PW 10/B. PW12 Satish Kumar Sub Registrar (Birth and Death) produced the birth register in respect of Baby Zeba Khatoon daughter of Mohd. Yusuf and stated that as per the record, the date of birth of Zeba Khatoon is 24.09.1995 and proved the copy of the relevant entry as Ex.PW 12/A. PW13 Ikrar stated the he was running a shop at premises No. E 11, Nehru Market, Seelampur. Accused Abbas was working in his shop as a clerk and he used to look after his work. He further stated that accused left his shop 78 months prior to the incident. He stated that he was informed by phoofee (bua) of Zeba Khatoon that Zeba had been kidnapped and made inquires from him (PW13) about Abbas. He told them them that Abbas had left the services of his shop. He (PW13) came to know later on that Abbas Sessions Case No. 57/2009 Page11/22 12 and Zeba Khatoon had been recovered.
This witness was crossexamined by Ld.Addl.P.P for the State and he admitted it to be correct that sister of accused Abbas was married with one Dulare Mian who was his (PW13) neighbour in Aligarh. He knew the accused and for this reason he had kept accused Abbas as his (PW13) Clerk. He also admitted it to be correct that Mohd. Yusuf was also residing near his shop along with his family members and Zeba Khatoon was elder daughter of Mohd. Yusuf. He also admitted it to be correct that after leaving his services accused was working somewhere in Nehru Market.
PW14 HC Munender Kumar stated that on 17.6.2008 on the directions of ASI Raj Kumar he collected exhibits of this case along with FSL Form vide RC NO. 20/21 and got them deposited at FSL Rohini. He further stated that after depositing the parcels, he handed over the acknowledgment of the same along with copy of RC to the MHC(M).
PW15 Ct.Narender stated that on 21.3.2008 he had joined investigation of this case with IO ASI Prem Singh and while they were patrolling in the area of Nehru Market, one Mohd. Yusuf met them and IO recorded his statement. He further stated that thereafter IO put his endorsement on the statement. prepared rukka and handed over the same to him for getting the FIR registered. PW15 further stated that he got the case registered, returned back to the spot and handed over rukka and copy of FIR Sessions Case No. 57/2009 Page12/22 13 to the IO. Thereafter he accompanied the IO to the house of Mohd. Yusuf where IO recorded statement of Yusuf and his wife. Thereafter they made search for the accused but the accused could not be found.
PW17 Dr.Parmeshwar Ram stated that MLC No. B3027/08 of one Abbas was prepared by Dr.Gautam Jain who was working under him, who had since left the services of the hospital and his present whereabouts were not known. He further stated that he could identify the signatures and handwriting of Dr.Gautam Jain as he had seen him writing and signing during the course of his officials duty. He stated that as per record there was nothing to suggest that accused was not capable of sexual intercourse. He further stated that as per record Dr.Gautam Jain had taken blood sample and also seized the underwear of the patient Abbas. Dr.Parmeshwar Ram further stated that as per record patient was not cooperating in giving semen sample.
PW11 ASI Raj Kumar is the IO of the case and he stated that on 09/04/2008 the case file of the present case was handed over to him for investigation, he had gone through the case file and found that the kidnapped girl Zeba had not been recovered and the accused had also not been arrested till date. He further stated that he made search of the prosecutrix and the accused but they could not be traced. IO further stated that on 13.05.2008, he received information from complainant Smt Mehtul Nisha that the kidnapped girl had returned back to home and he along with Ct. Sushil and Lady Ct. Sessions Case No. 57/2009 Page13/22 14 Suman reached at the house of complainant Mehtul Nisha where complainant produced the kidnapped girl Zeba and told that the accused Abbas R/o Village Bandarkhera, Farukhabad, UP had left prosecutrix Zeba at Seelampur red light and from there she came to the House. IO further stated that he prepared memo Ex.PW10/A, interrogated the prosecutrix Zeba and recorded her statement U/s 161 Cr.P.C. Thereafter the girl was taken to GTB Hospital for her medical examination in the custody of Lady Ct.Suman. The mother of prosecutrix also accompanied them. There prosecutrix was got medically examined and he (IO) collected MLC Ex. PW11/A. He further stated that Lady Ct. Suman produced 3 parcels received from the Doctor duly sealed with the seal of GTB Hospital along with sample seal. He seized the same vide Ex.PW10/B. Thereafter he brought the prosecutrix in Karkardooma court, produced her before the concerned court along with application for recording her statement The custody of the prosecutrix was handed over to her mother Mehtul Nisha. He further stated that he recorded statements of lady Ct.Suman and Mehtul Nisha.
IO further stated that when he alongwith Ct.Sushil were returning to PS and had reached Main Market Seelampur. The secret informer gave information that the boy who had kidnapped Zeba was present at Bus Stand Seelampur. On this information he along with Ct.Sushil and informer reached at Seelampur Bus Stand where informer pointed out a boy. IO further stated that he with the help of Ct. Sushil apprehended the boy pointed out by the Sessions Case No. 57/2009 Page14/22 15 informer and made formal inquiry and that person told his name Abbas Hussan @ Munim. He interrogated the accused Abbas Hussain and arrested him vide memo Ex. PW11/B and conducted his personal search vide memo Ex. PW11/C. He further stated that he got the accused medically examined at GTB Hospital, collected his MLC Ex.PW11/D. The Doctor had handed over 2 parcels stated to be containing underwear and blood sample of the accused along with sample seal to Ct. Sushil who produced the same to him and he seized the same vide memo Ex.PW11/E, then returned back to the Police Station, deposited all the exhibits in Malkhana, put the accused in lockup and recorded the statement of Ct. Sushil. IO further stated that on next day he produced the accused before the concerned court where he was sent to Tihar Jail.
IO further stated that on 16.05.2008, he came to the court where the prosecutrix Zeba was also produced by her mother in the court of Ms.Niyay Bindu, MM, KKD. He proved the proceedings u/s 164 Cr.P.C. as Ex.PW3/A. He further stated that he obtained the copy of the statement recorded U/s 164 Cr.P.C. He further stated that he returned back to the Police Station. Later on he got sent the exhibits of the present case to FSL Rohini through HC Muninder, recorded statement of HC Muninder, verified MCD Birth Certificate of the prosecutrix from the concerned office of sub registrar birth and death, Shahdara Zone, MCD and the same was found correct. He proved the certificate as Ex. PW11/H and verification report as Ex.PW11/J. Sessions Case No. 57/2009 Page15/22 16 Thereafter he recorded the statement of concerned official, completed investigation, prepared challan on the direction of SHO and filed the same in court. He further stated that thereafter he had collected the FSL result Ex.PW11/K and file the same in the court.
PW16 Constable Sushil Kumar had joined the investigation of the case with the IO ASI Raj Kumar (PW11) and he corroborated the testimony of PW11 on all material points. He stated that on 13.05.2008 he had visited the house of complainant where statement of Zeba Khatoon was recorded. Later on, on the basis of secret information, accused Abbas was arrested vide memo Ex. PW11/B and PW 11/C. He further stated that he had accused for his medical examination.
Statement of accused was recorded under section 313 Cr.P.C wherein he denied all the allegations against him. He stated that he is innocent and he has been falsely implicated in this case. He further stated that age of prosecutrix was much more than as alleged by her parents. He further stated that prosecutrix married him on 14.02.2008 at Seelampur in presence of witness Wasim, Afroz Bano and Mohd. Israil. Nikah was performed by Qazi Sayeed Ali Hussain.
Accused preferred to lead defence evidence and examined two witnesses in his defence.
DW1 Umeed Ali stated that he is teacher in Madarsa and performs Nikah also. He further stated that he did not know Abbas personally Sessions Case No. 57/2009 Page16/22 17 but few people had come to him and told him that he (DW1) had to perform a Nikah. He further stated that he performed the Nikah of Abbas with Zeba and he (DW1) had taken the consent of the girl Zeba before performing her Nikah with Abbas. After Nikah Zeba had given her consent and also signed Nikahnama and proved the copy of the Nikahnama as Ex.DW1/A. DW2 Mohd Israil stated that he is student in Madarsa. When he was studying there, Abbas came there for Nikah and asked him (DW2) to become a witness of Nikah. DW2 further stated that he was present at the time of Nikah and he had also heard the consent of girl at the time of Nikah. He further stated that no one has pressurized the girl to perform Nikah.
I have heard Sh. Mukul Kumar Addl.PP for the State and Sh.Shahad Anwar Counsel for the accused. I have also gone through the case file.
It was submitted by Ld.Addl.PP for the State that the accused has kidnapped a minor girl aged 12½ years from the lawful guardianship of her parents and committed rape with her. It was further the contention of the Ld.Addl.P.P that accused committed sexual intercourse with the prosecutrix without the consent of the girl. As per Ld.Addl.P.P date of birth of prosecutrix Zeba was 24.9.1995 and she was minor at the time of the incident, therefore the accused was liable to be convicted. As per Ld.Addl.PP the Nikah performed by accused with prosecutrix was also not valid.
On the other hand, it was submitted by Ld.Counsel for the Sessions Case No. 57/2009 Page17/22 18 accused that prosecutrix was not minor at the time of the incident and that she had accompanied the accused of her own free will. It was further the contention of the Ld.Counsel that prosecutrix married the accused of her own free will and stayed with accused has his legally wedded wife at Muradabad. As per Ld.Counsel statements of defence witnesses prove that the prosecutrix had married the accused of her own free will and had given her consent for the marriage.
I have considered the rival contentions.
The main contention of the Ld.Counsel for the accused is that the prosecutrix was more than 16 years and she married Abbas of her own sweet will. It was also submission of the Ld.Counsel for the accused that the prosecutrix accompanied the accused of her own will and went to Muradabad with her own consent.
The first thing that is to be seen is that whether the prosecutrix was more than 16 years of age at the time of the incident. The contention of the Ld.Defence Counsel was that the prosecutrix more than sixteen (16) years of age at the time of incident. But the accused did not lead any evidence in support of this plea.
In this regard I refer to the testimony of PW12 Satish Kumar Sub Registrar (Births and Deaths) and he proved on record the date of birth Zeba as 24.9.1995 on the basis of the entry in their Register. IO ASI Raj Kumar stated that he verified the MCD birth certificate of the prosecutrix from the Sessions Case No. 57/2009 Page18/22 19 office of Sub Registrar and found the birth certificate to be correct. Nothing could come out in the cross examination of this witness which could shake his credibility.
It was contented by Ld.Counsel for the accused that the school certificate has not been produced. In this regard, it is pertinent to mention here that when the prosecution has produced on record the birth certificate of the MCD, then the school leaving certificate does not hold much value as in my view, birth certificate issued by the MCD is more authentic as entries in the relevant register are made at the time of the birth of the child Hence, it is proved that the prosecutrix was 12½ years at the time of the incident.
So far as, the contention of Ld.Defence Counsel that prosecutrix went to Muradabad along with the accused, where they resided as husband and wife after the performance of Nikah by them is concerned, when it is proved that the prosecutrix was 12½ years at the time of the incident, then the consent of the prosecutirx does not matter.
Therefore, the contention of the Ld.Counsel that prosecutrix was major at the time of the incident and accompanied the accused of her own free will, does not stand any where and is to be ignored.
The other contention of the Ld.Counsel that the prosecutrix had given her consent for marriage. In the light of the fact that prosecutrix was a minor at the time of the incident, the consent of the prosecutrix for giving her Sessions Case No. 57/2009 Page19/22 20 consent does not matter. When a girl is minor, as per Muslim law, then father of the girl gives the consent. Even otherwise no suggestion was put to the prosecutrix that she had married the accused.
In his statement under section 313 Cr.P.C accused stated that on 14.2.2008 in the presence of witnesses, his Nikah was performed by Qazi Sayeed Ali Hussain. However, in his defence accused examined DW1 Ummed Ali, who stated that he had performed the Nikah of Abbas with prosecutrix Zeba, Therefore the accused has himself contradicted his own defence as to who had performed his Nikah.
Even if, for the sake of arguments it is believed that Nikah had taken place, considering the fact that prosecutrix was 12½ years and admittedly at the time of alleged Nikah the father of the prosecutrix Zeba was not present. In the present case the prosecutrix was 12½ years so, her father was required to give his consent for the Nikah of Zeba. Therefore, the accused has failed to prove that he had Nikah with the prosecutrix.
The other contention of the Ld.Counsel was that the prosecutrix did not raise any noise, nor did she tell anybody the fact that accused had taken her forcibly, nor did the prosecutrix tell anybody during her stay with the accused at Muradabd that she has been kidnapped by the accused is concerned, in my view is without any merits as the prosecutrix was aged only 12½ years and a girl at that time was in her tender age. The prosecutrix has Sessions Case No. 57/2009 Page20/22 21 stated that accused has threatened to kill her if she made any noise. The accused kept the prosecutrix at a new place, therefore it would not have been possible for the prosecutrix to talk to anybody freely.
All the prosecution witnesses are consistent and corroborative. There are no infirmities in their statements. Nothing could come out in the crossexamination of the prosecution witnesses, hence there is no reason to disbelieve their statements.
Hence, from the statements of the prosecution witnesses, it is proved that on 15.03.2008, the accused kidnapped Zeba, a girl of 12½ years with the intention to force her to illicit intercourse. He took Zeba to Muradabad and kept her there for several days and during his stay at Muradabad, he committed rape with Zeba several times.
Hence, in my view the prosecution has been to prove its case against the accused for the offences punishable under section 366/376 IPC.
In the present case, the charge against the accused was framed for the offences punishable under section 363/368/376 IPC.
Now the question is that whether the accused persons can be convicted under section 366 IPC as no charge has been framed under the said section.
In my considered opinion, the accused can be convicted for the offences punishable under section 366 IPC as no prejudice would be caused to the accused in his defence. In this regard I am supported by a recent judgment Sessions Case No. 57/2009 Page21/22 22 of Hon'ble Delhi High Court passed on 30.09.2010 in Crl. Appeal No. 95/2010 in the case of Shahid Riza @ Raju Vs. State wherein the reliance was placed upon Willie ( William) Slaney Versus State of M.P. AIR 1956 SC
116. The Counsel for the accused has relied upon 2001 (2) Crimes 88 (Kerla), 2004 Criminal Law Journal 539 (Gujrat), 2005 (4) RCR (Criminal) 696 Punjab and Haryana and 2006 (1) RCR Criminal 41 Delhi.
I have perused the all the Judgments relied upon by the Ld.Defence Counsel but the same are not applicable to the facts and circumstances of the present case.
Therefore the accused is held guilty for the offences punishable under sections 366/376 IPC and is convicted there under. Announced in open court on this 22.01.2011 (SURINDER KUMAR SHARMA) ASJ/North East Karkardooma Courts, Delhi Sessions Case No. 57/2009 Page22/22 23 IN THE COURT OF SURINDER KUMAR SHARMA;
ADDITIONAL SESSIONS JUDGE: NORTH EAST KARKARDOOMA COURTS: DELHI State vs. Abbas Hussain Munim S/o Jahid Hussain R/o Village Banderkheda PS Jahanganj, Distt. Farukhabad (U.P) FIR NO: 132/2008 PS: Seelampur.
U.sec: 363/368/376 IPC
ORDER ON SENTENCE
05.02.2011
Present: Sh. Mukul Kumar Addl.P.P for the State.
Convict in J.C with Sh. Shahad Anwar Advocate.
Arguments heard on the point of sentence.
It was submitted by Ld.Addl.PP for the State that the convict does not deserve any leniency as he has kidnapped a girl of tender age of 12 ½ years and kept her in his custody for about 2 months. During the said period of two months, the convict, committed rape several times with the prosecutrix.
On other hand, it was submitted by the Ld.Counsel for the convict, that a lenient view be taken against the convict on the quantum of Sessions Case No. 57/2009 Page23/22 24 sentence. It was submitted that convict is not a previous convict nor any other case is pending against him in any court of Law. It was further the submission of the Ld.Counsel for the convict that the convict did not commit any offence as the prosecutrix herself eloped with the convict and thereafter they performed Nikah and started living as husband and wife.
I have heard both the sides.
Keeping in view the over all facts and circumstances of the case, the convict is hereby sentenced to undergo Rigorous Imprisonment for eight (8) years with fine of Rs.10,000/ for the offence punishable under section 366 IPC. In default of payment of fine, the convict shall further undergo Simple Imprisonment for three (3) months.
The convict is further sentenced to undergo Rigorous Imprisonment for eight (8) years with fine of Rs.10,000/ for the offence punishable under section 376 IPC. In default of payment of fine, the convict shall further undergo Simple Imprisonment for three (3) months.
Both the sentences shall run concurrently. The convict be given benefit under section 428 Cr.P.C.
A copy of Judgment and order on sentence be given to the convict free of cost today itself.
File be consigned to Record Room.
Announced in open court on this 05.02.2011 (SURINDER KUMAR SHARMA) ASJ/North East Karkardooma Courts, Delhi Sessions Case No. 57/2009 Page24/22 25 Sessions Case No. 57/2009 Page25/22