Delhi District Court
State vs . Mohd. Munajir @ Parvej on 17 December, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 15/2013)
Unique ID case No. 02404R0345752012
State Vs. Mohd. Munajir @ Parvej
FIR No. : 99/12
U/s : 363/366/376 IPC
P.S. : Keshav Puram
State Vs. Mohd. Munajir @ Pravej
s/o Mohd. Azizul
r/o Village Sarhamid, PS Haya Ghat,
Distt. Darbhanga, Bihar
Date of receiving of this case 06.03.2013
Date on which, judgment has been reserved17.12.2014
Date of pronouncement of Judgment : 17.12.2014
JUDGMENT:
1. Briefly stated that the case of the prosecution is that victim S, a student of 8th class left for her school on 18.04.2012 at about 7.00 am, however, neither reached her school on that day, nor did she return back to her home. Lal Babu, brother of the victim made efforts to search for victim S and when, he was unable to trace her, he went to PS Keshav Puram and filed a complaint expressing suspicion that some unknown person had enticed and taken his sister S with him. On basis of said complaint, a case u/s 363 IPC was registered and investigations thereof, were marked to SI Subhash Chand.
SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 1 of 19 2 During the course of investigations, IO made efforts to search for the victim child S as well as the accused by publicity in electronic as well as printed media, but there was no clue of the victim S. During further investigations, it was revelaed that victim S had been kidnapped by accused Munajir @ Parvej. On 07.06.2012, victim S was recovered from village Rasoi, Distt. Sonepat, Haryana. After recovery, IO recorded the statement of victim u/s 161 Cr.P.C, wherein the victim stated that she had got acquainted with the accused Mohd. Munajir since last about 3/4 years and that they both had fallen in love and that accused had asked her parents to marry victim S with him, but the parents of the victim were against their marriage and hence, on 24.04.2012, she met accused Munajir, on the way to her school, and went with him to village Rasoi, Haryana, where they both got married on 27.04.2012 and established physical relations thereafter and also started residing together as husband and wife. The victim categorically stated that they did not have any physical relations prior to their marriage. She also stated that she wanted to live with the accused Munajir, who was her husband.
During the course of further investigations, the victim was taken for her medical examination to BJRM hospital and after her examination, the exhibits collected from her by the concerned doctor, were handed over to W/SI Rajesh, to whom, further investigations of the case had been marked. On 10.06.2012, accused was arrested from jhuggie at Jhakhira. He too was got medically examined at BJRM Hospital and exhibits collected from him were seized by the IO. The IO also got exhibits of the case sent to FSL. She further collected age proof of the victim from the school. As per the school record, the date of birth of victim was found to be SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 2 of 19 3 15.11.1996. Since, the age of the victim was less than 16 years as on the date, she went missing from her house, a charge sheet u/s 363/366/376 IPC was prepared against the accused and was filed in the court of learned Metropolitan Magistrate. The matter was initially committed to the court of Sh. M.C. Gupta and was assigned to this court vide order dated 01.03.2013, passed by the then Distt. & Sessions Judge, N/W, Rohini, Delhi.
2. Arguments on the point of charge were heard and on the basis of the material on record, a charge for committing the offences u/s 363/366/376 IPC was framed against the accused. The accused pleaded not guilty to the charges framed against him and claimed trial.
3. In support of its case, prosecution has examined seventeen witnesses i.e PW1 to PW17.
3. The PW1, Ex. ASI Satbir Singh was working as duty officer of PS Keshav Puram at the relevant time and had got recorded the case FIR in the present case. He proved the computerized copy of as Ex. PW1/A and endorsement made by him on rukka as Ex. PW1/B.
4. The PW2, Liyakat Ali, is stated to have joined the investigations of the present case with the IO and translated the Nikahnama for the IO of the case. This witness, however, denied that the Nikahnama (of marriage between S and the accused) had been translated by him. He stated that on the day of the incident, he SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 3 of 19 4 had gone to chowki and had taken one Maulana with him, who had translated the Nikahnama shown to him at Police Chowki by the IO.
During his crossexamination by learned Addl. PP, the witness stated that he was conversant with Hindi and English language only and had only taken basic training in Urdu Alphabets during his childhood and was not very familiar with Urdu and was unable to read Urdu books and Quran Sharif.
5. The PW3, Lal Babu is the brother of victim S. He is also the complainant in the present case. He deposed that his sister S, who was aged about 15 and half years and was studying in 8th class, had gone missing on 18.04.2012 and that when after making efforts to search for her, he was unable to trace her out, he went to police station and filed his complaint Ex. PW3/A. He further deposed that on 20.04.2012, he received a phone call on his mobile phone from the mother of the accused and was told that his sister S had gone with the accused and that they both were living in the house of sister of accused at Haryana and that a quarrel ensued between him (PW3) and the mother of the accused.
The PW3 further deposed that the accused had been residing in the same building, in which, he (PW3) was residing and the accused used to have food in the house of PW3, for which, he used to pay Rs. 500/700/ per month. He further deposed that the accused was working in a chappal factory as labour and that he used to visit their house frequently and that mother of PW3 used to treat him like her son. The PW3 also deposed that initially accused used to talk to his sister in a normal manner, but two weeks prior to incident, his mother (mother of PW3) had gone to native village to collect pension, payable to her under handicapped kota and SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 4 of 19 5 that taking advantage of her absence, accused started enticing victim S. The PW3 then deposed that sometime, prior to the incident, accused went to Haryana to stay with his sister and stayed there for about one month and that three days prior to the incident, he vacated his tenanted room, which he had been sharing with 34 persons, without disclosing this fact to PW3 and that thereafter, he enticed away sister of PW3. The PW3 then deposed that on 07.06.2012, his sister was recovered by the police from Haryana and was thereafter, kept in Nirmal Chhaya and that she was produced before the court on 09.06.2012 for her statement before ld. MM and thereafter, her custody was handed over to PW3 by the CWC, Nirmal Chhaya. The PW3 also deposed about the arrest of the accused on 10.06.2012 and proved the arrest memo of accused as Ex. PW3/B and his personal search memo as Ex. PW3/C. During his crossexamination by learned Amicus Curie, PW3 stated that his statement had been recorded by the Police in the present case on five occasions. He also stated that he was illiterate and that none of his statements, except complaint Ex. PW3/A, had been read over to him. He also deposed that he knew accused since about four/five years prior to the incident and that there were 31 families residing in the building, in which, PW3 was residing, at the time of the incident. The PW3 also deposed that victim had never made complaint to him or any of his family members about alleged misbehaviour and or illtreatment meted out to her by the accused. From further crossexamination of PW3, it is brought out that after release of the accused in the present case, he had been residing in the house of PW3 along with other family members and that they were happy with the marriage of victim S with the accused. The PW3 denied that since, they were not SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 5 of 19 6 happy with the marriage of accused with victim S, they had turned the accused out of their house.
6. The PW4 is the victim S in the present case. She deposed about going with the accused on 18.04.2012 and about her marriage/nikah with the accused on 27.04.2012, in presence of sister, brotherinlaw and other relatives and friends of the accused. She further deposed that accused never had physical relations with her prior to their marriage and that she was recovered from the house of the sister of the accused at Haryana, pursuant to complaint made by Lal Bahadur her brother. The witness was shown one nikahnama from the judicial file and she identified her signatures thereupon, after which, the nikahnama was exhibited as Ex. PW4/A. The witness also identified her thumb impression and signatures on her statement u/s 164 Cr.P.C i.e. Ex. PW9/B. During her crossexamination, PW4 termed it correct that she had told her age as 18 years to Qazi. She volunteered to state that she had stated so at the instance of other persons present there. During her further cross examination, the PW4 stated that she knew how to read and write in Urdu and that she had gone through the contents of Nikahnama Ex. PW4/A before signing it. The PW4 also stated that she was born at home at Bihar and that her brother Lal Bahadur was older to her by 2/3 years. The PW4 termed it correct that she had voluntarily solemnized marriage with the accused. She also termed it correct that after being released on bail in the present case, the accused had stayed at her parental house for 2/3 months and that her father and mother did not approve her marriage with the accused.
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7. The PW5, Smt. Sunita Mehta, Vice Principal, produced record from Govt. Girls Senior Secondary School, Tri Nagar, Delhi, wherein prosecutrix was admitted in 6th class. The PW5 proved copies of admission form, SLC and mark sheet submitted by one Shamsher (Guardian of the child), as Ex. PW5/A, Ex. PW5/B and Ex. PW5/C respectively, and stated that as per the school record, the date of birth of the prosecutrix/victim was 15th November 1996. The witness also proved the original certificate of date of birth of child S, issued by her as Principal of the school, as Ex. PW5/D and copy of relevant entry in the admission register, qua the prosecutrix, as Ex. PW5/E. During crossexamination, the PW5 stated that she had joined the present school on 28.11.2011. She further stated that she had noted the date of birth of the victim child as 15.11.1996 on the basis of SLC of last school and as per the information given by the parents/guardian of the child. She showed her lack of knowledge as to how Shamsher, whose name was mentioned against the relevant column of parent/guardian signature, was related to the victim child. She further stated that no birth certificate was obtained from the parents/guardian of the victim child at the time of her admission in the school as the child was admitted from feeder school. She further termed it correct that whatever information regarding age of the victim child was given by the parents/guardian of the child, was recorded as it is.
8. The PW6, Dr. Mohit Tiwari, proved the MLC of the accused as Ex. PW6/A by identifying the handwriting and signatures of the Dr. Shailender Kumar, J.R, who had examined the accused on 10.06.2012 under his supervision and deposed regarding the same. He further deposed that as per the MLC, blood SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 7 of 19 8 sample of patient was taken, sealed and handed over to the IO. He further proved the MLC of the accused as Ex. PW6/B by identifying the handwriting and signatures of the Dr. Azia Manzor, the J.R, who had examined the accused on 18.09.2012 under supervision of Dr. Deepak Gupta, CMO and deposed regarding the same. He also deposed that patient was further examined by SR Surgery and as per his opinion, "there was nothing to suggest that accused cannot do sexual act".
9. The PW7, SI Munni Yadav, deposed that on 11.07.2012, he issued a notice u/s 91 Cr.P.C Ex. PW7/A to the Principal, Govt. Girls Senior Secondary School, Tri Nagar, Narang Colony, Delhi for providing information regarding age proof of child victim/prosecutrix and that in response to the said notice, he received certified letter from Vice Principal of the said school, reflecting the age of the child victim as '15.11.1996'. He further deposed that on 27.07.2012, the said Vice Principal also supplied photocopies of admission form, SLC and relevant entry of admission and withdrawal register, under her signatures.
During his crossexamination, he stated that he never made efforts to collect original birth certificate issued by the MCD from the parents of the victim child/prosecutrix.
10. The PW8 Dr. Seema, proved the MLC of the prosecutrix as Ex. PW8/A by identifying the handwriting and signatures of the Dr. Niyati, SR Gynae, who had examined the prosecutrix on 07.06.2012 and found that the uterus of patient 6 to 8 weeks bulky and advised the patient for urine pregnancy test. SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 8 of 19 9
11. The PW9, Sh. Manish Khurana, learned Metropolitan Magistrate, had conducted the proceedings u/s.164 Cr.P.C and proved the same as Ex.PW9/A to Ex.PW9/E i.e. the application filed by IO for recording of statement of prosecutrix u/s.164 Cr.P.C as Ex.PW9/A ; statement of the prosecutrix as Ex. PW9/B ; the certificate given by PW11 as Ex.PW9/C ; application for supply of copy of said statement, filed by IO, as Ex. PW9/D and application for sending the prosecutrix in the custody of her parents as Ex. PW9/E.
12. The PW10 Dr. Prem, identified the handwriting and signatures of the Dr. Gagan, the then JR, who had examined the prosecutrix on 07.06.2012, under his supervision, vide MLC Ex. PW8/A and deposed regarding the same. He further deposed that after local examination, the patient was referred to Gynecology Department for gynecological examination.
13. The PW11, Juber Alam is the father of victim S. He too deposed on the lines of his son/PW3 Lal Babu and stated that the accused, who was residing in the same building, where he (PW3) and his family were residing, used to come to their house (house of PW11), to have food, for which, he used to pay Rs. 250/. He also deposed that about two months prior to the incident, his wife had gone to their native village and taking advantage of this fact, accused enticed his daughter S to go with him (accused).
During his crossexamination, the PW11 stated that he did not remember the age of any of his children and could not tell their age,even by approximation. He also could not tell the date of his nikah and stated that it must SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 9 of 19 10 have been about 25/30 years ago. The PW11 denied that the victim had married the accused after attaining the age of majority with her own free will and consent.
14. The PW12, SI Subhash Chandra, is the investigating officer of the present case and he deposed that on 19.04.2012, PW3/complainant Lal Babu came to the Police Post and informed him that his sister S, aged about 151/2 years had gone to school on 18.04.2012 at about 7.00 am, but had not returned back and that, thereafter, he recorded the statement of PW3 Sh. Lal Babu, made his endorsement, prepared rukka and sent the same to PS through PW13 Ct. Mukesh for registration of the case. He further deposed that thereafter, he along with complainant Lal Babu and Ct. Mukesh and two/three other persons, who were accompanying Lal Babu, went to the nearby areas as well as Parks in search of the prosecutrix, but she could not traced. The PW12 further deposed that on 21.04.2012, PW3/complainant Lal Babu came to the PP and informed that one Munajir, who was residing in the same tenanted house and used to have food at their house, had vacated the tenanted premises three days prior to missing of his sister and that complainant suspected accused Munazir for kidnapping of his sister S and that thereafter, he (PW12) recorded the supplementary statement of complainant u/s 161 Cr.P.C. The witness further deposed that on 24.04.2012, parents of the prosecutrix also came to the PP and that he recorded their statements u/s 161 Cr.P.C, wherein they also expressed suspicion on Munazir for kidnapping of their daughter. The PW12 further deposed that on 25.04.2012, complainant Lal Babu gave him two mobile phone numbers while saying that these numbers were of the family members of Munajir and that he (PW12) obtained the call details of those SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 10 of 19 11 numbers and came to know that location of one mobile number was of Bihar and location of other number was of Village Rasoi, Sonepat, Haryana. He further deposed that complainant also informed him that sister of accused Munazir had also made a call to him, twice or thrice, informing him that his sister/prosecutrix was with Munajir and that in the mean while, he (PW12) visited the village Rasoi along with Ct. Manjeet and met with secret informer and that the said informer was briefed about the facts of the case and one photo of prosecutrix was also given to him.
The PW12 further deposed that on 07.06.2012, he received an information from secret informer that prosecutrix was residing in a house, situated near the factories/fields in village Rasoi, Distt. Sonepat and thereafter, he along with Ct. Manjeet went there in plain clothes to confirm the information and after confirming that prosecutrix was the same girl, they returned to Delhi and took W/Ct. Sarita with them and that thereafter, they again went to Village Rasoi and recovered the prosecutrix from there vide recovery memo Ex. PW12/A. He further deposed that on return to Delhi, they called the parents of the prosecutrix and thereafter, he (PW12), W/Ct. Sarita and prosecutrix went to BJRM Hospital, where the prosecutrix was got medically examined and after medical examination of the prosecutrix, he (PW12) seized the sealed exhibits as well as sample seal vide seizure memo Ex. PW12/B. The PW12 further deposed that thereafter, they returned to the PP and that the prosecutrix was taken to Nirmal Chhaya for her night stay and thereafter, Section 366/376 IPC were added in the present case and that further investigations was assigned to PW15 W/SI Rajesh.
` The witness further deposed that on 10.06.2012, he again joined the investigations of the present case with PW15 W/SI Rajesh and that on the receipt of SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 11 of 19 12 secret information, he along with Ct. Mukesh went to jhuggies of Amar Colony, Rakhi Market, Delhi and that the accused Munazir was apprehended from the house of his brotherinlaw (Jija), and thereafter, he was brought to PP Shanti Nagar and was produced before W/SI Rajesh. He further deposed about arrest and personal search of the accused vide arrest memo Ex. PW3/B and personal search memo Ex. PW3/C. He further proved the disclosure statement made by the accused as Ex. PW12/C and deposed about medical examination of the accused and about seizure of sealed pullandas and sample seal by IO W/SI Rajesh. He further deposed that on 15.06.2012, he took the exhibits of the case from MHCM and got them deposited at FSL, Rohini and handed over the acknowledgment receipt and the copy of RC to the MHCM, on his return, to the PS. During crossexamination by learned Amicus Curie, the witness deposed that on 21.04.2012, complainant Lal Babu came to the PP Shanti Nagar and on that day, he did not inform about receipt of phone call from the mother of the accused. He further stated that they first reached village Rasoi, on 05/0606212 and at that time, none of the family members of the prosecutrix was with them. He further stated that he did not get his arrival entry recorded at the concerned PS of village Rasoi and that at that time, the prosecutrix was residing in one room house with the sister of accused Munazir. He further stated that he did not join any of the villagers or Pradhan of village Rasoi or the sister of the accused as witnesses, on the recovery memo of the prosecutrix, prepared at the time of her recovery. He further stated that brotherinlaw (Jija) of the accused was not joined in the investigations at the time of the arrest of the accused. He further stated that no independent person was joined in investigations at the time of arrest of the accused. He denied SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 12 of 19 13 that the prosecutrix was not recovered in the manner as deposed by him or that they manipulated the record to show her recovery from village Rasoi, whereas, in fact, accused Munajir had taken prosecutrix to Delhi to meet her parents and during this period, father of the prosecutrix informed the police and got accused arrested in this case.
15. The PW13, Ct. Mukesh, had joined the investigating of the present case with PW12 SI Subhash Chandra on 19.04.2012 and had taken the rukka to the PS Keshav Puram and got the present case registered and deposed regarding the same. He had further joined the investigation with the IO SI Subhash Chand on the night intervening 09/10.06.2012 at the time of arrest of the accused and deposed regarding the same. He further deposed that in the morning of 10.06.2012, the accused was got medically examined at BJRM Hospital by him and that after medical examination of the accused, the concerned doctor had handed over the sealed pullandas and sample seal to PW15 IO W/SI Rajesh, in his presence and that same were seized by W/SI Rajesh, vide seizure memo Ex. PW13/A.
16. The PW14, HC Naresh Kumar was posted as MHCM at PS Keshav Puram at the relevant time. He produced the original register no. 19 and 21 and proved the relevant entries of deposit of exhibits of the case at Mal khana and sending them to FSL Rohini as Ex. PW14/A and Ex. PW14/B, respectively. He also proved the copy of RC as Ex. PW14/C and copy of the acknowledgment receipt issued by FSL as Ex. PW14/D. SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 13 of 19 14
17. The PW15, Inspr. Rajesh is the subsequent Investigating officer of the present case and she deposed that on 08.06.2012, on entrustment of the investigations of the present case, she recorded statement of prosecutrix S and other witnesses u/s/ 161 CrPC and also got the statement Ex. PW9/B of prosecutrix recorded u/s. 164 CrPC vide her application Ex.PW9/A and that thereafter, she obtained the copy of statement of the prosecutrix u/s. 164 CrPC, vide her application Ex.PW9/D. She further deposed about sending of exhibits of the present case to FSL Rohini through SI Subhash and about arrest and personal search of the accused vide memos Ex.PW3/B and Ex.PW3/C, respectively. The witness further deposed about disclosure statement Ex.PW12/C made by the accused and about getting the accused medically examined vide MLC Ex.PW6/A and about seizure of pullandas containing exhibits of the accused vide seizure memo Ex.PW15/A During crossexamination by learned Amicus Curie, the witness denied that she did not conduct the fair investigations in the present case or that all the paper work was done while sitting in the PS.
18. The PW16, Ins. Vijay Kumar, only proved the certificate u/s 65B of Indian Evidence Act, by identifying the handwriting and signatures of Ins. Ashok Kumar, as Ex. PW16/A.
19. After closing of prosecution evidence, statement of accused Mohd. Munajir @ Parvej was recorded u/s 313 Cr.P.C, wherein the accused denied the allegations of the prosecution and stated that he is innocent and had been falsely SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 14 of 19 15 implicated in the case and that he had nothing to do with the offence of the present case. The accused further stated that victim S was a major and they both decided to run away and to get married as father of victim S was not agreeable for their marriage and that thereafter, he and victim S got married and had a normal married life. He further stated that he had not committed any offence as he as well as victim were of marriageable age, when they ran away and got married. The accused declined to lead evidence in his defence.
20. Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State. In addition to oral submissions, learned Amicus curie for accused also filed written submissions.
21. Learned Additional PP has contended that accused kidnapped a minor girl, aged about 151/2 years and committed rape upon her and in view of the statement of PW11 Juber Alam, PW2 Lal Babu and other witnesses, prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused be convicted u/s. 363/366/376 IPC.
22. Learned Amicus Curie for the accused on the other hand has relied upon written submissions filed by him and has contended that prosecution has miserably failed to prove its case against the accused and that accused has been falsely implicated in the present case. He has further contended that statement of victim itself shows that she was a major at the time of incident and was a consenting party with the accused. It is lastly contended that no such offence was ever SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 15 of 19 16 committed by the accused and it is prayed that accused be acquitted of the charges leveled against him.
23. I have heard the arguments put forward by ld. Addl. PP as well as learned Amicus Curie for the accused and have carefully gone through the record of the case as well as written submissions filed on behalf of the accused. I have also carefully considered the evidence adduced by the prosecution in support of its case.
24. In the instant case, accused is alleged to have kidnapped and taken victim S, a minor aged about 151/2 years, to village Rasoi, with intention to compel her to marry him and to force her/seduce her to have illicit intercourse with him. It is further alleged that having so kidnapped victim S, accused committed rape under her. .
25. The first issue, which arises for consideration of the court is, whether the victim S was less than 18 years of age, when she went missing from her house. In order to prove that victim was a minor, less than 18 years of age, at the time of the commission of offence, the prosecution has examined PW5 Ms. Sunita Mehta, Vice Principal, who produced the record from the school, wherein the victim child S was admitted in 6th class on the basis of admission form filed by one Shamsher and School Leaving Certificate, issued by feeder school. In the record Ex. PW5/A to Ex. PW5/E produced by PW5, the date of birth of victim is mentioned as 15.11.1996. SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 16 of 19 17
26. The prosecution has also examined Sh. Lal Bahadur, brother of the victim and Sh. Juber Alam, father of the victim as PW3 and PW11 respectively, to prove that victim S was a "child" less than 18 years of age as on the date of commission of offence. The PW3 Lal Bahadur had merely stated that the victim/his sister was aged about 151/2 years (161/2 years, when PW3 appeared to depose before the court) and has not mentioned her exact date of birth. On the other hand, PW11 Juber Alam, father of the victim, could not state anything about the age of the victim. He rather stated that he did not remember age of any of this children and could not tell their age even by approximation. He also stated that he may have been married about 25/30 years ago. He could also not state as to after how many years of his marriage, his children were born. Nothing was put to PW3 Lal Babu and PW11 Juber Alam, during their examination by the State, to clarify who Shamsher, the person, who had filled the admission form of the victim child, at the time of her admission in school of PW5, was and how he was related to the victim child and/or PW3 and PW11. In these circumstances, a doubt is created regarding genuineness/correctness of the date of birth of the victim S as mentioned in the school record and the possibility of victim being above 18 years of age as on the date, she went missing from her house, cannot be ruled out. Iam supported having this opinion by the judgment of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, wherein it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made. Since the prosecution has failed to prove that the victim was less than 18 years of age as on the date of commission of offence, the provisions of POCSO Act are not applicable in the facts and circumstances of the present case.
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27. The next issue, which arises for consideration is whether the accused had kidnapped the prosecutrix from the lawful guardianship of her parents on 24.03.2013 with intention to force her and/or seduce her to have illicit intercourse with him and further committed rape upon her.
28. Admittedly, both victim and the accused are Muslims. As per nikahnama Ex.PW4/A, the victim and the accused had voluntarily married each other on 27.04.2012. the genuineness of nikahnama Ex. PW4/A has not been disputed. Rather victim has stated that she understands Urdu and had signed Nikahnama after reading its contents. The PW4 has further stated that when she had solemnized her marriage with the accused, she was not forced by anyone including the accused for the said marriage and that the accused had established physical relations with her only after their marriage. It is also brought out from the testimony of PW3 Lal Babu and PW4 S that after being released on bail in the present case, the accused had even stayed with the family of victim S for some time. It is difficult to comprehend that the family of the victim would have permitted the accused to stay in their house as their family member, if he was responsible for violating the chastity of their daughter. It appears that victim, who was about 18 years of age, as on the date she went missing with the accused, solemnized marriage with the accused of her own free will and consent and that the family of the victim S also accepted their marriage afterwards, but some reservation continued between the accused and the family of victim S, due to which they continued to pursue the present case. SC No. 15/2013 : State Vs. Mohd. Munajir @ Parvej : Page Nos. 18 of 19 19 However, since, victim S was above 18 years of age at the time she went with the accused and at the time of solemnization of her marriage with the accused and she established physical relations with the accused, after their marriage, of her own free will and consent, no offence is proved to have been committed by the accused.
29. The nutshell of foregoing discussion is that after consideration of the entire material placed on record by the prosecution, I am of the opinion that the case of the prosecution is full of loopholes and prosecution has failed to prove its case against accused Mohd. Munajir @ Parvej beyond reasonable doubt. The prosecution has further failed to prove that accused had taken the prosecutrix, by enticing her, on 18.04.2012 or that he had abducted the prosecutrix with intention to marry her and to force her to have illicit intercourse with him and committed rape on the prosecutrix forcibly without her consent. Accordingly, I acquit accused Mohd. Munajir @ Parvej, of the charged offences, giving him benefit of doubt File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 17.12.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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