Delhi District Court
State vs 1. Suhail on 13 April, 2017
IN THE COURT OF SHRI SANJAY SHARMA-I
JUDGE SPECIAL COURT (POCSO Act)/ADDL. SESSIONS JUDGE - 01 (NORTH-
EAST) KARKARDOOMA COURTS : DELHI
SC No.44648/2015
FIR No.731/2013
PS Gokalpuri
Under Section 366/344/376/120-B/506 IPC and 6 POCSO Act
State Versus 1. Suhail
2. Bade Qureshi
Both S/o Nabiullah and R/o H.No.4929, Gali No. O,
Sartej Mohalla, East, Old Seelampur, Gandhi Nagar,
Delhi-31
3. Mohd. Akil S/o Waliullah
R/o H.No.4896/A, Gali No.1, near Kala Masjid, East Old
Seelampur, Delhi.
4. Moni D/o Iliyas
5. Iliyas S/o Abdul Nazir
Both R/o H.No.B-123, Gali No.10, Valmiki Mohalla,
Malayee Mandir, Vasant Gaon, Vasant Vihar, Delhi
6. Chhote Qureshi S/o Nabiullah
7. Shoiab S/o Manuddin
Both R/o H.No.4929/D-19, Gali No. O,
Sartej Mohalla, East, Old Seelampur, Delhi.
Date of institution of case : 24.12.2014
Date on which judgment reserved : 05.04.2017
Date of judgment pronounced : 13.04.2017
JUDGMENT:
1. On 16.12.2013, the victim, a minor girl, aged about 17 years gave a written statement to the police, addressed to the DCP that about two years ago, Soni W/o Iliyas had met her with Suhail S/o Nabiullah. Suhail started talking with her on phone and also meeting her. On the pretext of marrying her, Suhail took her to the house of his brother Chhote Qureshi several times where he made forcible physical relations with her many times against her wishes. On her weeping and crying, SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 1 of 10 accused Suhail took her to the house of Moni W/o Iliyas at Vasant Vihar where she was kept for about twenty days and with the help of Iliyas and Moni, Suhail again committed rape upon her on the false pretext of marriage. At that time she was about 17 years of age. When Suhail had met her with Moni, she was about 15 years and 6 months of age. When, she got rid of atrocities of Suhail, she asked him to let her go to her parents, otherwise she would commit suicide and that she could not believe that he would deceive her in such a manner and that whenever she got a chance, she would complain against him with the police. Thereupon, Suhail, Bade Qureshi, Chhote Qureshi, Akil Ahmad, Soiab, Moni and Iliyas, all favoured Suhail and gave her assurance to marry her with Suhail and she accorded to it in order to save her life and on 10.10.2013, her marriage/nikah was solemnized with Suhail before a court where her age was shown as 18 years in the marriage agreement, more than one year of her actual age. Thereafter, the said persons brought her to the house of brothers of Suhail at Gandhi Nagar where she was kept for two days. Thereafter, the said persons after a consultation amongst themselves kept her in a separate tenanted premises but Suhail told her that he wanted to live with his parents. She was kept well for a few days but thereafter, all the above persons demanded dowry from her, abused her and gave beatings to her and also threatened to kill her. On 07.12.2013, Suhail left her without informing her and when she called him, he used to give false assurances to her but did not turn up till date. The victim further stated that Suhail had been residing with his parents and threatening her that he would not keep her with him. At that time, she was carrying a pregnancy of about two months and that Bade Qureshi, Chhote Qureshi, Akil Ahmad and Suhail's sisters also started saying that they would not keep her and that Suhail had already left several girls like her and they could do nothing against him and if she tried to initiate any legal action against him, she and her family members would have to face consequences which she could not imagine. She further stated that they also came to her house and threatened her if she would not obey their commands, they would get her killed and they were in contact with bed elements. She stated that she belonged to a poor family and that is why they were ruining her life and were not keeping her with them.
SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 2 of 10
2. On the basis of above statement, the present case was registered for the offences punishable under Sections 366/344/376/120-B/506/34 IPC and Section 6 POCSO Act. The statement of the victim under Section 164 CrPC was recorded. Thereafter, she was subjected to medical examination and after completion of investigation, chargesheet was filed against accused Suhail, Bade Qureshi, Chhote Qureshi, Mohd. Akil, Moni, Iliyas and Shoiab before this Court for the offences punishable under Sections 366/344/376/120-B/506/34 IPC and Section 6 of the POCSO Act.
3. Vide order dated 18.09.2015, charge was framed against all the seven accused for the offences punishable under Section 120-B IPC, 366/344/506 IPC read with Section 120-B IPC. A separate charge was also framed against accused Suhail for the offence punishable under Section 376 IPC and Section 6 POCSO Act.
4. In order to bring home the guilt of the accused, prosecution examined 9 witnesses at the trial:
PW-1 HC Sanjay Kumar was the duty Officer. He proved his endorsement on the rukka as Ex.PW1/A and computerized copy of the FIR as Ex.PW1/B. PW-2 was the victim herself, who deposed about the alleged acts as narrated hereinabove amongst other facts.
PW-3 Sh. Rakesh Kumar Gautam, Public Health Inspector from MCD office, Shahdara, North Zone proved the birth certificate of the victim, which mentions her date of birth as 15.04.1996.
PW-4 Mohd. Haneef was the Qazi to the marriage/nikah solemnized between the victim and accused Suhail. He proved the copy of the nikahnama, as Ex.PW4/A. PW-5 Ct. Budh Prakash was a witness to the arrest of accused Moni.
PW-6 Dr. Nidhi Bansal, proved the MLC of the victim as Ex.PW6/A and proved her MLC sheets as Ex.PW6/B (wrongly mentioned as Ex.PW7/B).
PW-7 lady Ct. Kavita was also a witness to the arrest of accused Moni. She also SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 3 of 10 produced the said accused in the GTB Hospital for her medical examination.
PW-8 SI Urmila was the part IO of this case. She had collected the school records of the victim from her school. She also identified the handwriting and signatures of the main IO of this case, namely ASI Dev Raj, who had expired during trial and proved various documents on his behalf which were collected and prepared during the investigation.
PW-9 Sh. Sunder Lal was an advocate and a Notary Public. He proved the copy of marriage agreement between the victim and accused Suhail as Ex.PW9/A and the entry in respect of notarization as Ex.PW9/B.
5. Statements of the accused were recorded under Section 313 CrPC separately and the entire incriminating evidence was put to them which they denied and pleaded innocence. The chose not to lead any evidence in defence.
6. I have heard Sh. Sukhbeer Singh, Ld. Addl. PP for the State and Sh. Usman Chaudhary & Sh. Shakir Hussain, Ld. Counsel(s) for the accused and gone through the records.
7. The entire case of the prosecution rests upon the testimony of the victim herself. However, her testimony is full of improvements and contradictions and above all it was found that she concealed material facts. She disclosed her age in the complaint made to the police, Ex.PW2/A as 17 years when she was first time allegedly raped by accused Suhail and 15 years and 6 months when she for the first time met accused Suhail through accused Moni. The prosecution has relied upon the birth certificate of the victim in support of her claim regarding her age, which was proved by PW-3. According to the said certificate Ex.PW3/A, the date of birth of the victim was 15.04.1996. However, in the cross-examination, PW-3 deposed that said date was entered in their records on the basis of information given by one Kulsum but her particulars are not known. Thus, the information about the date of birth of the victim came from an unknown source. It is well known that the information about the birth of a child is given either by hospital authorities, if he/she is born in the hospital or by SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 4 of 10 her parents and in some cases by the midwife, if the delivery is performed by her. In the instant case, both the parents of the victim were alive and available but they never informed about the birth/date of birth of the victim to the concerned authorities and as already observed, the identity of the informant Kulsum is unknown and as such, no authenticity can be attached to the said information on which the said date of birth was recorded in the municipal records. Hence, the said date cannot be accepted as the true and correct date of birth of the victim.
8. A startling fact came on record for the first time during the cross-examination of the victim when she admitted that she was married to one Naved Ali, a resident of Bulandsahar, UP on 01.10.2012, which marriage was dissolved on 15.04.2013 vide a written document Ex.DW2/A. She deposed that the said marriage was dissolved since Naved was not physically and sexually competent and had not even touched her. This fact was never stated by the victim either in her complaint before the police or in her statement under Section 164 CrPC or even in her examination-in-chief and thus, she willfully concealed a material fact. She also deposed that all the accused of this case were present in the said marriage with Naved. It is another fact which was never stated by the victim before the said cross-examination. The above part of her cross-examination shows that she was mature enough and understood the relationship of marriage and further that the said marriage was performed with the consent of her parents and was an organized marriage. It was performed in the year 2012 and thus, it cannot be said that she was a minor even at that time. Hence, in my opinion, the prosecution has failed to conclusively prove that the victim was a minor at the time of the alleged incident involving the accused persons of this case.
9. It is also to be noted that in her complaint Ex.PW2/A, the victim stated that she was introduced to accused Suhail by accused Moni about two years ago. The complaint was made on 16.12.2013, which means that she came in contact with Suhail sometimes in November/December 2011, whereas she herself admitted that she was married to Naved on 01.10.2012. It means that she got married to Naved during her courtship with accused Suhail and continued the same during the subsistence of her SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 5 of 10 marriage with Naved.
10. It has also come in the cross-examination of the victim that all the accused were known to her before her alleged friendship or courtship with accused Suhail. She admitted that accused Suhail and his brothers were distantly related to her mother and had been visiting her house. She also admitted that her mother was the khala/mausi of accused Moni being native of the same village and accused Suhail is the brother of accused Moni. All these facts were deliberately concealed by the victim in her previous statements for the reasons best known to her.
11. It is further noticeable that the victim nowhere mentioned any date when she was introduced to accused Suhail or when she was taken away by Suhail for the first time through accused Moni to the house of his brother, accused Bade Qureshi or the date when she was firstly raped by him. She has also not mentioned any date or month or year when she was kept at the house of accused Moni and Iliyas at Vasant Vihar for twenty days. She alleged that she was continuously raped during that period and even before that. She was medically examined through IO on 21.12.2013 when she was found to be carrying pregnancy of about eight weeks. However, the ultrasound report, corrected that period to be 6.2 weeks, which means that she became pregnant sometimes in the second week of October 2013. She was allegedly got married with Suhail on 10.10.2013. It means that accused Suhail had sexual contact with her only after the marriage and the allegations of rape by the said accused before that appears to be doubtful.
12. It was contended by the Ld. Counsel for the accused that it is a case of matrimonial dispute and the victim after consultations had filed a false case against the accused persons. He also submitted that victim was in love with accused Suhail and her marriage was performed with him with the consent of her parents. It was also pointed out and rightly so, that no complaint was ever made by her mother or father to the police while she was missing or was allegedly confined by the accused persons for twenty days. The argument has force as no parent of a young girl would keep quiet for so long if she is missing. It is also noteworthy that the parents or the SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 6 of 10 sister of the victim, who helped her in lodging the present case were neither examined nor cited as witnesses in this case for the reasons best known to the IO. In any case, it creates a shadow of doubt upon the entire case and the allegations made by the victim.
13. In order to put across the above arguments, the Ld. Counsel for the accused referred to the cross-examination of the victim wherein she deposed that her marriage with accused Suhail was attended by her mother and her brother Khalid from her side. She also deposed that the religious ceremony i.e. nikah was performed at her house before execution of the agreement. She also deposed that she knew Dr. Mohsin and Dr. Naushad, who used to work in the Marina Charitable Hospital, Mustfabad where her sister Yasmin was working as a nurse and admitted that those doctors stood witnesses to her nikah with Suhail. She also admitted that accused Moni was the sister of Suhail and they belonged to her native village and thus were known to her before the alleged incident.
14. The marriage between the victim and accused Suhail was got performed by PW-4, Mohd. Haneef, who was working as an Imam at Minara Masjid, who deposed that he performed the nikah between the two on 10.10.2013 and also prepared a nikahnama, Ex.PW4/A. In his cross-examination, he deposed that he was called to perform the nikah by the mother of the victim and it was performed in a house between Gali No.17 and 17½, New Mustfabad i.e. the house of the victim. He further deposed that he had verified the eligibility of the victim for the marriage and had considered the divorce papers of the victim of her previous marriage and was satisfied that her iddat period was complete before the date of nikah. He also deposed that he himself had enquired about the parentage and consent of the victim before her nikah, contrary to the version of the victim, who had denied this fact. PW- 4 further deposed that the mother of the victim informed that the family members of accused Suhail were also present in the nikah, as also the father of the victim. These facts clearly go on to show that nikah was never forced upon the victim but it was performed with her consent and free will and that of her parents, as also the family SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 7 of 10 of the accused. Thus, the victim was never forced into the said nikah as alleged by her. All the allegations in this respect made by the victim have been proved to be incorrect.
15. Similarly, the marriage agreement between accused Suhail and the victim was proved by PW-9, Sh. Sunder Lal, Advocate/Notary Public, who deposed that he notarized the said agreement on 11.10.2013 and proved its copy as Ex.PW9/A and the entry in his register as Ex.PW9/B. He deposed that both the victim and the accused put their thumb impressions and signed on the register and their photographs were also affixed. He deposed that two witnesses signed on the register, who were namely Mohd. Khalid and Salma that is to say mother of the victim. In the cross-examination, he deposed that the victim was apparently happy when he notarized the documents. It only corroborates the fact that it was as consensual marriage between accused Suhail and the victim.
16. As already observed, the victim made material improvements during her examination-in-chief and was duly confronted with her previous statements which require mention.
17. The victim deposed that she stated in her complaint Ex.PW2/A that she started talking to accused Suhail on phone after about one month. One day, accused Moni came to her house and accompanied her with accused Suhail, who was standing outside the house and also asked her mother to send the victim with her as she had recently been operated upon and required help for which her mother agreed and she accompanied Moni, however, instead of taking to her house, accused Moni took her to Kanti Nagar to the house of accused Suhail and he too accompanied them. She also deposed that after accused Suhail committed rape, she started crying on which accused Suhail assured her of dropping at her house. She further deposed that she stated in her complaint Ex.PW2/A that while residing at Vasant Vihar, in the absence of accused Suhail, accused Iliyas made attempts to commit rape with her and that she threatened to kill herself but the accused told her that they would not permit it. She also deposed in her cross-examination that she stated in her complaint SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 8 of 10 Ex.PW2/A that out of fear, accused Suhail called his brothers, accused Chhote Qureshi and Bade Qureshi, Akil and Shoiab, who all told her that her life had been ruined and that she agreed to marry with Suhail under compelling circumstances. All these facts were not recorded in her complaint Ex.PW2/A and she was duly confronted with it.
18. It was also deposed by the victim during her cross-examination that she used to have love talks with accused Suhail and that she intended to marry him. These facts clearly show that the victim was in love with accused Suhail, was major and entered into marriage with him with her consent but somehow matrimonial disputes arose and then she lodged the complaint.
19. The IO of this case, ASI Dev Raj expired before he could be examined as a witness in this case and hence the documents prepared by him were proved by PW-8. The details of the investigation could not come on record nor they could be subjected to cross-examination because of the factum of death of the IO. However, it is observed from records that no places where the victim was allegedly taken by Suhail i.e. either to his house at Kanti Nagar or to the house of accused Moni at Vasant Vihar were ever got identified during the investigation through the victim. No site plan of those places was ever prepared. The victim was allegedly taken to the house of accused Chhote Qureshi after her nikah with Suhail but that house was also not got identified nor any site plan of the said house was prepared. In her cross-examination, victim deposed that she did not know where Chhote Qureshi resided but his house was about two-three storyed. She could not tell the number of rooms on each floor nor could depose the date when she visited his house. She also could not depose the number of family members in his house, though she claimed, she was kept there for two days.
20. It is thus seen that the testimony of the victim on which the prosecution case rests is full of contradictions, improvements and embellishments and the victim has also been found to have concealed material facts. Her age could not be proved satisfactorily on record by the prosecution and therefore, the benefit of the same has SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 9 of 10 to be given to the accused.
21. It is clear that the allegations of rape also could not be proved as against accused Suhail. In fact, the victim herself had refused for her internal medical examination when she was taken to the hospital by the police and as per record, she became pregnant only after her marriage with Suhail. Thus, either no rape was committed by Suhail, as alleged by the victim, or in the alternate she was clearly a consenting party. As far as other allegations against other accused persons are concerned, no evidence of any conspiracy to kidnap the victim or forcing her to marry and enter into illicit intercourse with Suhail came on record. Per contra, the victim was clearly a consenting party to the marriage. Similarly, the allegations of her being kidnapped or confined or threatened could also not be proved against any of the accused.
22. In view of the above discussion, it is held that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. Accordingly, accused Suhail, Bade Qureshi, Chhote Qureshi, Mohd. Akil, Moni, Iliyas and Shoiab are acquitted of the offences punishable under Section 120-B IPC, 366/344/506 IPC read with Section 120-B IPC and accused Suhail is also acquitted of the offence punishable under Section 376 IPC and Section 6 of the POCSO Act. They be set at liberty.
File be consigned to the Record Room after completion of due formalities.
PRONOUNCED IN OPEN COURT ON 13th day of April 2017 (Sanjay Sharma-I) Judge Special Court (POCSO Act), Addl. Sessions Judge-01 (NE) Karkardooma Courts, Delhi SC No.44648/15 - FIR No.731/13 PS Gokalpuri page 10 of 10