Delhi District Court
State vs 1. Anees S/O Abdul Gaffar on 15 April, 2015
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0080212015
SC No. 54/15 Date of assignment : 16.03.2015
FIR No. 04/15 Date on which arguments
PS. Welcome were heard : 15.04.2015
U/S. 376/506 IPC Date of judgment : 15.04.2015
State versus 1. Anees S/o Abdul Gaffar
R/o C-183, Kh No.1/143, Gali No.9/4,
Shiv Mandir Marg, Maujpur, Delhi-53.
2. Muntazeer S/o Abdul Gaffar
R/o C-183, Kh No.1/143, Gali No.9/4,
Shiv Mandir Marg, Maujpur, Delhi-53.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 02.01.2015 the complainant/ prosecutrix alongwith her aunt came to police station Welcome and intimated the police officials about the commission of sexual assault on her by the accused persons. She was sent for medical examination to GTB Hospital. After her medical examination, the prosecutrix SC No.54/15 State vs. Anees etc. page 1 of 14 lodged a complaint dated 2.1.2015 wherein she made following allegations:-
(a) The prosecutrix has four brothers and four sisters. Her elder sister got married with the accused Anees on 11.12.2010. Accused Muntazeer who is the brother in law (dever) of the sister of the prosecutrix used to visit the house of the prosecutrix. Accused Muntazeer told the prosecutrix that he loves her.
(b) In January, 2014, accused Muntazeer came to the house of the prosecutrix when she was alone at her home and her family members were not at home. On that day, accused Muntazeer made physical relations with the prosecutrix against her will and consent and threatened her that if she will disclose about the same to any person, he will defame her. Due to fear, the prosecutrix did not disclose the incident to any person.
(c) In June, 2014, sister of the prosecutrix and her husband accused Anees (jeeja of the porsecutrix) invited the family of the prosecutrix for a party (dawat). In the evening when the party was over, sister of the prosecutrix asked the prosecutrix to stay at her home to help her in domestic work. Accused Anees (husband of sister of prosecutrix) said that he will drop the prosecutrix at her home in the morning. Sister of the prosecutrix slept on the terrace and the prosecutrix slept in a room SC No.54/15 State vs. Anees etc. page 2 of 14 downstairs. In the night her jeeja i.e. accused Anees came to the room of the prosecutrix and made physical relations with the prosecutrix against her will and consent. He also threatened the prosecutrix to marry his brother otherwise he will defame her in the society.
(d) On 09.10.2014 on the asking of accused Anees, the prosecutrix alongwith her ID proof went to Seelampur Courts where the accused Anees, Muntazeer and one Shahjad and two other persons were present.
Court marriage of the prosecutrix was got performed on that day. Thereafter the prosecutrix came back. Accused persons asked her not to disclose about her marriage to any person. However after some days, the family of the accused Muntazeer started defaming the prosecutrix. Thus the prosecutrix disclosed the entire incident to her parents. Her parents became angry and told the prosecutrix that they will not send her with accused Muntazeer. Prosecutrix stated that she does not want to live with accused Muntazeer and action be taken against the accused persons.
2. On the basis of the complaint, an FIR No.04/15 under sections 376/506/34 IPC was got registered against the accused persons at police station Welcome. Site plans of both places where the alleged incident of rape took SC No.54/15 State vs. Anees etc. page 3 of 14 place were got prepared at the instance of the prosecutrix. Both the accused persons were taken in custody and were got medically examined at GTB Hospital. Statement of the prosecutrix under section 164 Cr.P.C was got recorded by the learned Magistrate on 03.01.2015.
3. After completion of investigation, chargesheet under sections 376/506/34IPC was filed against the accused persons.
4. Since the major offence in this case was triable by the Court of Sessions, vide order dated 11.03.2015, the learned M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
5. Vide order dated 23.03.2015, a charge under sections 376/506 IPC was framed against the accused Anees. Further charge under sections 376/506 IPC was framed against accused Muntazeer. The charge was read over to them to which they pleaded not guilty and claimed trial.
6. In support of its case, prosecution has examined five witness i.e. the prosecutrix as PW1, Sh. Rajvir Singh, Advocate as PW2, aunt of the prosecutrix as PW3, Sh. Hafiz SC No.54/15 State vs. Anees etc. page 4 of 14 Nawabuddin as PW4 and father of the prosecutrix as PW5.
7. PW1 (prosecutrix) has not supported the case of the prosecution on material aspects. She deposed that she has four brothers and four sisters. Her elder sister was married to accused Anees and since then she has been residing with the accused Anees. Accused Muntazeer (dever of her sister) used to visit her house. The prosecutrix and accused Muntazeer were in love and wanted to marry with each other but her family members were not agreeable for their marriage. Thus, she alongwith accused Muntazeer reached Seelampur Courts complex and got performed the court marriage and also performed nikah on the same day with accused Muntazeer with her will and consent. She further deposed that her marriage was duly consummated and she and the accused Muntazeer made physical relations with each other with her will and consent after their marriage (nikah). Prosecutrix further deposed that at the time of court marriage, certain documents in relation to the marriage were prepared and she put her thumb impression and also signed the nikahnama Ex.PW1/D and put her thumb impression on the same. Prosecutrix further deposed that her family members were angry when they came to know that accused Anees had helped the prosecutrix and co-
SC No.54/15 State vs. Anees etc. page 5 of 14 accused Muntazeer in their marriage. The family members of the prosecutrix pressurised her to make a complaint against the accused persons and sent her to the police station alongwith her aunt where her aunt got prepared the complaint Ex. PW1/A and the police obtained signatures of the prosecutrix on the said complaint. Prosecutrix deposed that contents of the said complaint were not read over to her. On 03.01.2015 she was got medically examined vide MLC Ex.PW1/B. She also deposed that before recording her statement by the learned Magistrate, the police officials read over the complaint to her and asked the prosecutrix to repeat the same allegations and accordingly she made her statement u/s 164 Cr.P.C Ex.PW1/C before the magistrate which was not true and correct. Prosecutrix further deposed that after registration of case, she came to know that a rape case has been registered against her husband (accused Muntazeer) and her brother in law accused Anees. In fact the accused Anees had not raped her. Prosecutrix deposed that at the time of her marriage, she was 19 years of age and her date of birth is 18.01.1995. She proved the photocopy of marksheet issued by her school namely Dr. Zakir Hussain Memorial SSS Jafrabad, Delhi as Ex.PW1/G which records the date of birth of prosecutrix as 18.01.1995. She also proved the photocopy of her Aadhar card as Ex.PW1/H which records SC No.54/15 State vs. Anees etc. page 6 of 14 her year of birth as 1995. Prosecutrix further deposed that the accused persons never threatened her at the time of her marriage with accused Muntazeer. Prosecutrix further deposed that now her parents and the parents of the accused Muntazeer have accepted their marriage.
8. Since the prosecutrix did not support the case of the prosecution on material aspects, she was cross examined by the learned Addl. PP for the State. During her cross examination also, the prosecutrix has denied that in January, 2014 when accused Muntazeer had committed rape on her when she was alone at her home. She also denied that the accused Muntazeer threated to defame her in the society if she will disclose the incident to any person. Prosecutrix further denied that in June, 2014 in the night accused Anees committed rape at his house. She also denied that the accused Anees threatened her by saying to marry with his brother Muntazeer otherwise he will defame her in the society. She also denied that accused Anees forcibly got performed her marriage with accused Muntazeer in presence of one Shehzad and two other persons.
9. During her cross examination on behalf of accused persons, the prosecutrix maintained that she SC No.54/15 State vs. Anees etc. page 7 of 14 made her statement voluntarily and she does not want any action against the accused persons.
10. PW3 aunt of the prosecutrix has also not supported the case of the prosecution. She deposed that on 02.01.2015 she had gone to the police station Welcome alongwith her niece (prosecutrix) but she does not know what had happened in the police station. She further deposed that she is illiterate.
11. Since this witness also did not support the case of the prosecution on material aspects, she was cross examined by the learned Addl. PP for the State. During her cross examination, she deposed that the prosecutrix never told her that the accused Anees and Muntazeer had committed rape on her and obtained her signatures on marriage documents under pressure and threat.
12. PW2 Sh. Rajvir Singh deposed that he was a practicing lawyer/notary at the SDM court at Seelampur. On 09.10.2014 accused Muntazeer and the prosecutrix came to his office for the purpose of their marriage. He proved the marriage agreement Ex.PW1/E and the affidavit produced by prosecutrix as Ex.PW1/F. During his cross examination he deposed that the prosecutrix and the SC No.54/15 State vs. Anees etc. page 8 of 14 accused Muntazeer married each other with ther free will and consent.
13. PW5 father of the prosecutrix deposed that the prosecutrix got married with accused Muntazeer with her consent and she is living with the family of accused Muntazeer happily. He deposed that he has no grievance against the accused persons.
14. PW4 Hafiz Nawabuddin deposed that on 09.10.2014, the prosecutrix and the accused Muntazeer had come to Masjid near Old Delhi Railway Station. He further deposed that he performed their nikah/marriage after taking the consent of the prosecutrix and the accused Muntazeer. This witness deposed that he issued nikahama Ex. PW1/D. During cross examination, this witness deposed that before performing nikah, consent of prosecutrix and accused Muntazeer was taken.
15. In the testimony of the prosecutrix PW1 including the testimonies of PW2, PW3, PW4 and PW5, no incriminating evidence came on record against the accused persons to show that they had committed the alleged offences.
SC No.54/15 State vs. Anees etc. page 9 of 14
16. Perusal of chargesheet and material attached with the chargesheet would show that the remaining prosecution witnesses were the police officials who were involved in the investigation of this case, the doctors who had medically examined the prosecutrix and the accused persons, the learned MM who recorded the statement of the prosecutrix under section 164 Cr.P.C. and a witness from NGO. None of these witnesses have personal knowledge about the allegations made by the prosecutrix against the accused. Since the prosecutrix and other material witnesses did not support the case of prosecution, no useful purpose would have been served in examining the remaining witnesses. Thus, the prosecution evidence was closed and the statement of accused u/s 313 Cr.P.C. was also dispensed with.
17. I have heard arguments addressed by learned Additional Public Prosecutor and learned defence counsel and perused the record.
18. Accused Muntazeer is facing trial for the commission of offences punishable under sections 376/506 IPC. Accused Anees is the brother in law of the prosecutrix and he is also facing trial for the commission of offences punishable under sections 376/506 IPC.
SC No.54/15 State vs. Anees etc. page 10 of 14 Accused Muntazeer
19. This accused is brother in law of the real sister of the prosecutrix and also brother of the co-accused Anees. During her deposition, the prosecutrix has deposed that this accused used to visit her house and she developed intimacy with him which developed into love. Prosecutrix has further deposed that on 09.10.2014 she alongwith accused Muntazeer went to Seelampur court and voluntarily performed marriage with him. She further deposed that she also performed nikah with accused Muntazeer as per Muslim rites and ceremonies and with her free will and consent. Prosecutrix further deposed that after their marriage she and the accused made physical relations with each other with her consent and will. She has also deposed that her parents were not happy with this marriage and at the instance of her family members present case was got registered against the accused persons. Prosecutrix also deposed that she and the accused Muntazeer want to live together as husband and wife and their parents have accepted their marriage.
20. This witness was cross examined on behalf of State. During her cross examination, she denied that in SC No.54/15 State vs. Anees etc. page 11 of 14 January, 2014, accused Muntazeer made physical relations with her by force and without her consent and will. During cross examination on behalf of accused, prosecutrix deposed that the accused made physical relations with her after their marriage with her consent.
21. In the circumstances, no incriminating evidence has come on record to connect this accused with the commission of offence of rape punishable under section 376 IPC. Thus, the accused is entitled to be acquitted of the offence punishable under section 376 IPC.
22. As far as the offence punishable under section 506 IPC is concerned, the prosecutrix has deposed that the accused persons never threatened her and they never pressurised her to perform marriage with the accused Muntazeer. During her cross examination on behalf of State, prosecutrix maintained that accused Muntazeer never threatened to defame her in the society if she will disclose the incident to any person. During her cross examination on behalf of accused persons also, she reiterated that the accused persons never threatened to defame her in any manner. Thus, no incriminating evidence has come on record to connect accused Muntazeer with the commission of offence punishable under section 506 SC No.54/15 State vs. Anees etc. page 12 of 14 IPC. Thus, the accused Muntazeer is entitled to be acquitted of the offence punishable under section 506 IPC.
Accused Anees
23. This accused is the brother in law of the prosecutrix. During her deposition, the prosecutrix has stated that this accused had not done any wrong with her and he never committed rape on her. She also deposed that present complaint was registered only on the pressure of her family members. During her cross examination on behalf of State, the prosecutrix denied that in June, 2014 accused Anees had committed rape on her. In the depositions of PW1, PW3 and PW5, no incriminating evidence has come on record to connect this accused with the commission of offence of rape punishable under section 376 IPC. Thus, this accused Anees is entitled to be acquitted of the offence punishable under section 376 IPC.
24. Insofar as offence punishable under section 506 IPC is concerned, the prosecutrix has also deposed that accused Anees never threatened her in any manner. She has also deposed that both the accused persons never pressurised her to perform marriage with accused Muntazeer or to defame in the society. In the statement of SC No.54/15 State vs. Anees etc. page 13 of 14 the prosecutrix no, incriminating evidence has come on record to connect the accused with the alleged commission of offence punishable under section 506 IPC. Hence, accused is entitled to be acquitted of the offence punishable under section 506 IPC also.
25. In view of above discussion, it is held that the prosecution has not been able to prove its case against the both the accused persons for the offences punishable under sections 376/506 IPC. Thus, both the accused Muntazeer and Anees are acquitted of the charge of having committed offences punishable under sections 376/506 IPC. It is ordered accordingly.
26. Accused persons are stated to be in judicial custody. They be released if not required in any other case.
27. File be consigned to record room after necessary compliance.
Announced in the open court on 15.04.2015 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.54/15 State vs. Anees etc. page 14 of 14