Delhi District Court
State vs . Mohd. Nazim on 29 September, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 06/11)
Unique ID case No. 02404R0026432008
State Vs. Mohd. Nazim
FIR No. : 321/10
U/s : 363/366/376 IPC
P.S. : Jahangir Puri
State Vs. Mohd. Nazim
S/o Sh. Nafis Ahmad
R/o C396, Jahangir Puri,
Delhi.
Permanent Add.: Village Radhana,
Innayatpur Kamba, P.S. Kithore,
District Meerut, U.P.
Date of institution of case 22.02.2011
Date on which, judgment has been reserved29.09.2012
Date of pronouncement of judgment 29.09.2012
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JUDGMENT:
1 The case of the prosecution as briefly stated in the charge sheet is that on 17.09.2010 Sh. Ibrahim Khan, father of prosecutrix, came to PS Jahangir Puri and got his complaint recorded with the Duty Officer. In the said complaint, he stated that his he along with his family including three children are staying at Jahangir Puri and his youngest daughter, who is studying in 5th Class, was missing from 16.09.2010 since 8:00 PM. He gave description of his daughter as well as clothes she was wearing on that day. He further stated that he had tried to search for his daughter of his own and had come to know that one boy namely Nazim, residing in their neighbourhood at CBLock, had allured his daughter and taken her with him. He prayed that action be taken in the matter.
2 On the basis of this complaint, a case FIR No.321/10 u/s. 363 IPC was registered and investigations were commenced. Efforts were made to search for the missing girl by flashing All India Message yet there was no clue. After registration of the FIR, investigation of the case was marked to SI Sri Bhagwan. Investigations were carried out. Search was made for the prosecutrix as well as the accused, On 18.09.2010, prosecutrix was produced in the PS by her father and and after her medical examination, IO got the statement of prosecutrix recorded u/s 164 Cr.P.C. In her said statement u/s.164 CrPC, prosecutrix alleged that on 16.09.2010 after taking money from her home she was going to the house of her sister Amana SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 2 of 28 3 Khatoon and when she reached the road, accused Nazim called her from behind on the pretext of some urgent work and that she only knew accused but had no talks with him and that she refused him while saying that she was going to the house of her sister and that on this, he told her that he wanted to marry her, but prosecutrix refused for the same and that on this, she was made to sit in an auto forcibly and taken to Azadpur and was threatened that in case, she raised alarm, she would be killed and that from there, accused took her to Chandni Chowk via metro and that by that time, it was already 8.00 pm and thereafter, he took her to a hotel and in the said hotel, he forcibly raped her and also beat her and kept her there for the entire night. She further told that in the morning, accused took her to Azadpur via metro and made her to stand with his friends Suraj and Niyab (Nawab) for about half an hour and went to his owner Pappu and that after about one hour, accused Nazim returned and told his friends that Pappu had asked him about the girl and he told him that the girl was not with him. She further told that after great persuasion made by Aamir, brother of accused, and Pappu, owner of accused, she was sent to her house and that accused Nazim threatened her that in case, she told anything to anyone, he would kill her jija.
3 On the basis of the statement made by prosecutrix u/s.164 CrPC, Sections 366 and 376 IPC were added. Prosecutrix was medically examined. On the advice of the doctor, ossification test of the prosecutrix was got conducted.
Accused Nazim was arrested and was also got medically examined. After
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completion of the investigation, the charge sheet was prepared and filed in the court for trial.
4 Subsequently, accused Suraj was got declared P.O. vide order dated 25.05.2011 and his supplementary charge sheet was also filed before learned MM and was committed to the Court of session. Other accused Niyab (Nawab) was not arrested.
5 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/366/376 IPC were framed against the accused Nazim. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
6 In order to prove its case, prosecution has examined 21 witnesses, out of which PW4 Ibrahim Khan, PW5 prosecutrix, PW6 Amna Khatoon, PW9 Mubarak Ali and PW21 SI Vineeta Prasad are the only material witnesses. Remaining witnesses are formal witnesses being the doctors, who examined prosecutrix and accused; Principal, who produced the documents regarding the date of birth of prosecutrix; learned Magistrate, who recorded statement of prosecutrix u/s.164 CrPC, and other link witnesses and Police witnesses, having played role in the investigations or having joined investigations with the IO.
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7 The PW5, prosecutrix, deposed that she did not remember date and
month, however, the incident had taken place in the year 2010 when an altercation took place between prosecutrix and her father due to which she left her house in a fit of anger in noon time and reached at Kashmere Gate where accused Nazim, whom she knew as he was residing in her neighbourhood, met her and she narrated to him about her altercation with her father. Prosecutrix further deposed that thereafter accused made her understand to go back to her house but she did not agree and she along with accused Nazim remained at Kashmere Gate near the gate of ISBT and spent whole noon and night there and that on the next morning at about 10:00 AM, she returned back to her house and accused Nazim also accompanied her upto street of her house. She further deposed that accused Nazim did not commit any rape (Galatkam) upon her nor did he kidnap her from her house and on reaching the house, she came to know that her parents had already got a case registered against accused Nazim and thereafter she was taken to PS by her parents where inquires were made from her and thereafter her medical examination was got conducted by the Police.
8 This witness was declared hostile by learned Additional PP and during her crossexamination, thereafter she termed it correct that she had stated in her statement Mark X that on 16.09.2010, she was going to CBlock to the house of her elder sister via Subzi Market road on foot. Prosecutrix, however, denied having stated in her statement Mark X that when she reached in front of 800 wali gali C SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 5 of 28 6 Block, accused met her and told her "Idhar Mere Paas Aa Ja" or that on this, she told him that she was going to the house of her sister or that on this accused Nazim told her that he would marry her or that she refused his proposal for marriage. Prosecutrix also denied having stated in her statement Mark X that accused Nazim told her that he would kidnapped her or that in the meantime one TSR came there in which two boys were sitting or that she was forcefully made to sit in the said TSR by them and taken to Azadpur or that they also told her that they would beat her if she raised alarm. The prosecutrix also denied that accused and his two accomplices took her to a hotel in Chandni Chowk in Metro Train or that at the said hotel accused Nazim took her to one room while the two boys namely Niyab (Nawab) or Suraj went to other room or that accused Nazim committed rape upon prosecutrix on that night. The prosecutrix further denied having stated that on 17.09.2010, accused and his accomplices brought her back to Azadpur in a Metro Train or that accused Niyab (Nawab) went somewhere or that accused made telephonic call to Pappu, Jija of prosecutrix, or that when said Pappu asked accused Nazim about prosecutrix, he denied that she was with him or that from Azadpur accused Nazim and Suraj brought prosecutrix to Vijay Vihar, Rohini, in a TSR or that she was made to wander in TSR for the whole day or that on 17.09.2010 at about 7:00 PM, accused Nazim and Suraj were standing with prosecutrix at Vijay Vihar road or that at about 8:00 PM Pappu, Jija of prosecutrix came there on which accused Nazim and Suraj ran away leaving prosecutrix there or that Jija prosecutrix took her back to her house or that prosecutrix told all the facts to him and thereafter she was taken SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 6 of 28 7 to PS. The PW5 further denied that on 25.09.2010 at about 5:30 PM, she saw accused while going to house of her sister at CBlock via Subzi Market or that on reaching house of her sister, she told her Jija Mubarak Ali about it or that her said Jija overpowered accused Nazim while he was going towards BC Block Market via 600 wali gali, at a distance of 4 - 5 paces from his house or that accused was identified by her as the same person who proposed marriage to her several times prior to the incident which was declined by her.
9 The prosecutrix further denied that Police also reached there or that accused was produced before the Police or that he was arrested by the Police at her instance. The Ex.PW5/B is arrest memo of accused and Ex.PW5/C i.e. the personal search memo of accused were shown to prosecutrix, who identified her signatures on both the memos but denied that said documents were signed by her at the time of arrest of accused. The prosecutrix denied that accused Nazim had pointed out place from where he and his coaccused had kidnapped prosecutrix, to the Police or that pointing out memo of said place was prepared vide Ex.PW5/D at his instance. The prosecutrix denied having made any supplementary statements to Police regarding the manner of arrest of accused or joining investigation pursuant to arrest of accused. She further denied having stated in her supplementary statement Mark X2 that on 16.09.2010 at about 8:00 PM, when she was going to the house of her sister at CBlock, accused Nazim dragged her in a TSR in which two boys were already present or that one of the said boys, who had covered his face with a SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 7 of 28 8 handkerchief, gagged mouth of the prosecutrix due to which she could not raise alarm, however, she kept moving her legs but TSR driver did not stop the TSR or that said boys threatened prosecutrix and took her to Azadpur Metro Station and from there to Chandni Chowk. Prosecutrix also denied that while accused Nazim remained with her in a room in hotel at Chandni Chowk, he had tied her hands and mouth and thereafter he raped her.
10 During her further crossexamination, prosecutrix termed it correct that she was studying in MC Primary Girls School, CBlock, Jahangir Puri in Ist Shift and that her date of birth is 05.04.1996. The prosecutrix also termed it correct that the contents of her statement Ex.PW5/A u/s.164 CrPC were stated by her, however, she stated that she had stated so under nervousness before the learned MM and that she did not state the fact of said nervousness to the learned MM although learned MM asked her about the same as she had never visited the Court prior to the said date. Prosecutrix also denied that whatever she had stated before learned MM in her statement Ex.PW5/A was correct or that accused Nazim had actually kidnapped her and taken her to Chandni Chowk near Jama Maszid in a hotel or that he kept her in a room there for whole night and committed rape upon her. 11 The prosecutrix was crossexamined by learned counsel for accused. During her crossexamination by learned defence counsel, prosecutrix termed it correct that her father was having grudge against accused Nazim and that is why he SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 8 of 28 9 had been got falsely implicated in the present case and that whatever was told to her by the Police, she stated the same facts before the learned MM in her statement u/s. 164 CrPC and that her signatures were obtained on Ex.PW5/B and Ex.PW5/C in the Police Station.
12 PW4 Sh. Ibrahim Khan is the father of the prosecutrix. He deposed about factum of missing of prosecutrix on 16.09.2010 and his having lodged case FIR Ex.PW4/A at PS Jahangir Puri on 17.09.2010. The PW4 also deposed that after about one month, accused Nazim was overpowered by his soninlaw (damaad) when he was wandering in the street of CBlock, Jahangir Puri and that prosecutrix was also recovered by his soninlaw (damaad) and thereafter he along with his soninlaw took his daughter to PS from where his daughter was taken to the hospital for her medical examination where she was got medically examined and that his daughter told him that accused Nazim had committed rape upon her. 13 This witness was declared hostile by learned Additional PP and during his crossexamination, he termed it correct that he had expressed his suspicion upon accused Nazim, in his statement Ex.PW4/A recorded on 17.09.2010, for having kidnapped his daughter. The PW4 denied having stated in his supplementary statement Mark A that on 17.09.2010 he along with Police officials tried to search his daughter Salma in CD Park, Jahangir Puri jhuggis but no clue could be found. PW4 further termed it correct that his daughter had told him that accused Nazim SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 9 of 28 10 was one of the boy amongst boys, who had kidnapped her and taken her to a hotel near Jama Masjid, Chandni Chowk, Delhi and raped her and that she also disclosed the name of other boy as Suraj. PW4 denied having stated in his supplementary statement Mark B that his daughter told him that accused Nazim and Suraj ran away after leaving her at Vijay Vihar, Rohini or that they brought her from there to PS. PW6 termed it correct that when they took their daughter to PS, Police prepared document regarding recovery of her daughter.
14 The PW4 was crossexamined by learned counsel for accused. During his crossexamination by learned defence counsel, PW4 termed it correct that police officials outside the Court had told him the facts stated by him in his statement. He denied that accused Nazim had been falsely implicated by him in the present case in the connivance with the Police, as he had grudge against him. 15 PW6 Smt. Amna Khatoon is the sister of the prosecutrix. She deposed that on the day of incident, she returned home from work at about 8:00 PM and at about 10:00 PM her father came to her house and asked her about prosecutrix and that PW6 told him that she did not know about her and that on the next day prosecutrix returned back to the house.
16 This witness was declared hostile by learned Additional PP and during her crossexamination by learned Additional PP, PW6 denied that she had stated in SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 10 of 28 11 her statement Mark A that on 16.09.2010 when her father came to her house, he told her that prosecutrix had left her house on pretext of going to house of PW6 but had not returned back or that on hearing this, PW6 recollected that accused Nazim, who was working with Pappu, a relative of PW6, was having evil eye on prosecutrix or that PW6 made call to Pappu and told him to give complete information or that said Pappu assured PW6 that if accused Nazim was responsible for such an act, he (Pappu) would teach him (accused) a lesson. The PW6 further denied having stated in Mark A that on 17.09.2010 Pappu brought accused Nazim to his house, in presence of PW6, and asked him about prosecutrix or that accused Nazim denied that prosecutrix was with him but stated that he could take them to her or that on this Pappu and accused Nazim went to bring prosecutrix back but on way accused Nazim ran away and PW6 was informed about it by Pappu telephonically. The PW6 also denied that on the same day at about 7:00 / 8:00 PM, Pappu made a telephone call to PW6 to inform her that he had traced out whereabouts of the prosecutrix or that he asked PW6 and her husband to accompany him or that since physical condition of husband of PW6 was not so well, they asked Pappu to bring her back as they had already got FIR registered regarding missing of prosecutrix or that Pappu subsequently brought back the prosecutrix, who was in turn was produced before SI Bhagwan by PW6 and her father or that thereafter medical examination of prosecutrix was got conducted.
17 PW9 Sh. Mubarak Ali is the husband of PW6 Amna Khatoon. He
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deposed that prosecutrix is his sisterinlaw (sali) and that one day in the year 2010 when he returned home, he came to know from his inlaws that prosecutrix had left home after altercation with her parents and that on the next day she returned back. He further deposed that one day when he returned back from work, he was called to PS, where accused Nazim was already present, and that accused was personally searched in his presence.
18 This witness was declared hostile by learned Additional PP and during her crossexamination by learned Additional PP, PW9 denied that having stated to Police in statement Mark Y that accused Nazim along with his two associates had kidnapped prosecutrix, though PW9 admitted that his inlaws had got a case registered against accused Nazim. He denied that on 25.11.2010 he had apprehended accused Nazim, on being alerted about his presence by prosecutrix or that he then called the Police and handed over accused to the Police or that accused was arrested and personally searched in his presence by Police vide Ex.PW5/B and Ex.PW5/C respectively or that accused pointed out place of occurrence to Police vide Ex.PW5/D or that accused made disclosure statement Ex.PW9/A in presence of PW9.
19 PW10 Ms. Nirmala is the Principal, MCD (Nigam Prathmik Balika Vidyalaya), Jahangir Puri, and she deposed that the prosecutrix was admitted in their school on 20.07.2006 in Class II on the basis of admission form and as per SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 12 of 28 13 school record, the date of birth of the prosecutrix is 05.04.1996 which was recorded as per particulars furnished by mother of the child and that no age proof was taken as child was admitted under compulsory education scheme. She proved the original certificate issued by their school in respect of date of birth of prosecutrix as Ex.PW10/A and report card as Ex.PW10/B and photocopy of admission form as Ex.PW10/C. 20 PW11 is the IO of the case. He deposed about the investigations carried out by him and documents prepared by him during the course of investigations of the present case which was marked to him after registration of case FIR Ex.PW1/B. He also deposed that on 17.09.2010 complainant Ibrahim Khan (PW4) came to Police Station and got recorded his statement Ex.PW4/A and that on the basis of said statement, he prepared rukka Ex.PW11/A and that the said rukka was presented before the Duty Officer and on the basis of it case FIR No.321/10 u/s.363 was registered. He further deposed that after registration of the case, the investigation was assigned to him and thereafter he along with complainant searched the prosecutrix but could not trace her out.
21 He further deposed that on 18.09.2010, complainant Ibrahim produced the prosecutrix before him in the Police Station and Fardh Brahmadagi of prosecutrix Ex.PW4/B was prepared in this regard and that he made inquiry from the prosecutrix and thereafter her medical examination was got conducted through SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 13 of 28 14 PW15 lady Head Constable Anuradha from BJRM Hospital and after getting her medical examination, HC Anuradha handed over one sealed carton sealed with the seal of Hospital, containing medical examination kit containing samples collected after examination of the prosecutrix by the concerned doctor along with sample seal of BJRM Hospital and he took the same into possession vide seizure memo Ex.PW11/B and that PW15 also handed over the MLC of prosecutrix to him; and that since it were late hours, the prosecutrix was kept in safe custody of PW15 and on the next morning prosecutrix was produced before the concerned MM for getting her statement recorded. PW11 further deposed that statement of prosecutrix u/s. 164 CrPC was recorded by learned MM Sh. Neeraj Gaur and he also obtained the copy of proceedings u/s.164 CrPC by moving an application in this regard and thereafter the prosecutrix was handed over to her parents. 22 PW11 then deposed that on 25.11.2010, he received an information about the apprehension of accused Mohd. Nazim in CBlock, Jahangir Puri and after receiving this information, he along with PW18 HC Narender went there and one Mubarak Ali produced accused Mohd. Nazim before him. He further deposed that accused Nazim was arrested vide arrest memo Ex.PW5/B and his personal search was conducted vide personal search memo Ex.PW5/C. He further deposed that during the course of interrogation, accused Mohd. Nazim made disclosure statement Ex.PW9/A and thereafter accused Mohd. Nazim led the Police party to main road, Subzi Market, Gali 800 Wali, CBlock, Jahangir Puri, Near Mazar Peer Baba and SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 14 of 28 15 pointed out the place while saying that accused along with one Suraj and Niyaz had kidnapped the prosecutrix and pointing out memo Ex.PW5/D was prepared by PW11 at the instance of accused. He further deposed that accused Nazim was taken to BJRM Hospital and his medical examination was got conducted vide MLC No. 18248 Mark X and after medical examination doctor handed over one small bottle containing blood sample sealed with the seal of BJRM Hospital along with sample seal and PW11 took the same into possession vide seizure memo Ex.PW11/D and thereafter accused was put in the lockup. 23 PW11 further deposed that on the next morning, the accused was produced before the Court concerned and from there he was remanded on two days Police remand and that during the Police remand, accused Mohd. Nazim led Police party to different places in UP and Delhi in the search of other coaccused persons namely Suraj and Niyaz but they could not arrested and thereafter accused was produced before the Court concerned and from where he was remanded on JC and thereafter further investigation of case were handed over to SI Vinita. 24 The PW11 was crossexamined at length by learned counsel for accused. During his crossexamination by learned defence counsel, PW11 deposed that on 17.09.2010, PW4 Ibrahim Khan came alone to the PS at around 5.00/5.15 pm for making complaint Ex. PW4/A which is in his handwriting. PW11 denied that he had written complaint Ex. PW4/A of his own and later taken thumb SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 15 of 28 16 impression of complainant on it. PW11 deposed that complainant Ibrahim Khan remained in the PS for about half an hour and that after registration of the case on 17.9.10, he started investigation on the same day and made search for the prosecutrix and the accused and that he left the PS at around 6.00 pm on the same day for the purpose of searching for the prosecutrix and the accused and that when he left the PS, only the father of prosecutrix was with him. He further deposed that first of all, they reached at CD Park, Jahangir Puri and thereafter, he made search at nearby places including Metro Station Jahangir Puri and that on that day father of prosecutrix did not accompany him for the same.
25 The PW11 also deposed that on the next day i.e. 18.09.2010, he carried out further investigations in the case, when the father of prosecutrix brought her to the PS. He denied that the statement of prosecutrix u/s 164 Cr.P.C was got recorded after he and her father pressurized her. The PW11 further deposed that he continued to search for the accused and that finally accused Nizam was arrested on 25.11.2010 and that he received the information of apprehension of accused on 25.11.10 at around 5.40 pm and left PS immediately on receiving said information. He further deposed that no public persons were found present at the place of apprehension of accused and that prosecutrix and her relative/Jija Mubarak Ali, who had apprehended the accused, were present there. He denied that the accused was not arrested from Cblock, Jahangir Puri and that all the writing work was done at the PS or that he prepared various memos like disclosure statement etc. of his own SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 16 of 28 17 and obtained signatures of accused and witnesses on it later on. 26 PW11 denied that he did not conduct the investigation in the present case in a fair manner or that he had conducted the investigation under the influence and pressure of father of prosecutrix and falsely implicated accused Nazim. 27 PW1 ASI Laique Ahmed is the duty officer. He deposed that on 17.09.2010, he was working as duty officer at PS Jahangir Puri and on that day, he received a rukka from SI Sri Bhagwan for registration of the case and after receiving the rukka, he made endorsement Ex.PW1/A on it and thereafter FIR No. 321/10 u/s.363 IPC was got registered by him through computer operator and thereafter computerized copy of FIR and rukka in original were sent to SI Sri Bhagwan through Ct. Bijender. He proved computerized copy of FIR as Ex.PW1/B. 28 PW3 W/Ct. Reena deposed that on 25.11.2010 at about 5:40 PM, she received PCR call through intercom from wireless operator that, "H.No.647, C Block, Jahangir Puri, Shivaji Park Ke Paas Kuchch Samey Pehle Larki Ke Saath Rape Kiya Tha, Jisko Pakar Rakha Hai" and same was reduced in writing by her vide DD No.68B dated 25.11.2010 and the said DD was handed over to SI Sri Bhagwan and she proved the said DD as Ex.PW3/A. SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 17 of 28 18 29 PW7 Lady Ct. Meenu deposed that on 26.11.2010 at about 01:10 am (midnight) SI Sri Bhagwan got recorded entry regarding his return to PS after attending call of case FIR No.321/10 and also about depositing case property with MHCM and she recorded the said information into writing vide DD No.2B dated 26.11.2010 and proved the attested copy of said DD as Ex.PW7/A. 30 PW15 HC Anuradha had taken the prosecutrix for medical examination and deposed regarding the same.
31 PW18 HC Narender was present at the time of arrest of accused by the IO and deposed regarding the same.
32 PW17 HC Om Prakash had taken the accused for ossification test on instructions of IO and deposed regarding the same.
33 PW20 Ct. Pankaj had taken the accused to BJRM Hospital for his X rays along with IO SI Vinita Prasad and deposed regarding the same. 34 PW8 Ct. Jasbir had taken the exhibits in the case to FSL Rohini on instructions of IO while PW2 HC Phool Kumar was posted as MHCM at PS Jahangir Puri at the relevant time and they deposed regarding the same.
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35 PW14 Dr. Seema identified handwriting and signatures of Dr.Amit, the
then CMO, Dr. Deepak, the then JR and Dr. Anjali, the then SR (Gynae), who had examined the prosecutrix on 18.09.2010. She deposed that the examination of patient Salma was conducted by Dr. Deepak, the then JR and after examination, the patient was referred to SR (Gynae) Dr. Anjali, who also later on examined the patient and Dr. Amit was the CMO at that time. She proved the handwriting of Dr. Deepak on MLC Ex.PW14/A and endorsement Ex.PW14/B made by Dr. Anjali thereupon.
36 The PW14 further deposed that on 28.11.2010 Dr. Suhail had examined the patient Mohd. Nazim vide MLC No.18285 Ex.PW14/C under her supervision and as per the MLC, there was no fresh injury on the person of patient and that the patient Mohd. Nazim was again examined by Dr. Ritu, the then CMO on 31.12.2010 vide MLC No.131876 Ex.PW14/D and there was no fresh injury on the person of accused. She further deposed that the patient Mohd. Nazim was again examined by Dr. Parveen, the then JR on 26.11.2010 vide MLC No.18253 Ex.PW14/E and there was no fresh injury on the person of patient.
37 PW13 Dr. Gopal Krishna, CMO, BJRM Hospital deposed that on 26.11.2010 he conducted medical examination of Mohd. Nazim vide MLC No. 18248 Ex.PW13/A and deposed regarding the same.
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38 PW16 Dr. Rajeev deposed that on 26.11.2010 patient Mohd. Nazim was
medically examined by Dr. Parveen under his supervision vide MLC Ex.PW14/E and deposed regarding the same.
39 PW19 Ms. Anita Chhari proved the report of examination of biological samples in the case as Ex.PW19/A and the serological report as PW19/B. 40 PW12 Sh. Neeraj Gaur, learned MM had recorded the statement of prosecutrix u/s.164 CrPC. He proved the said statement as Ex.PW5/A. The application filed by IO was proved as Ex.PW12/A and while the certificate given by PW12 was proved as Ex.PW12/B and further stated that a copy of statement was supplied to the IO vide application Ex.PW12/C. 41 PW21 SI Vinita Prasad is the second IO of the case and deposed that on 30.11.2010 the investigations of the present case was assigned to her and that she received the case file of the present case from MHCR and that accused Mohd. Nazim was already in JC, however, the other accused namely Suraj could not be arrested. She further deposed that she got the exhibits of the case sent to FSL, Rohini for analysis and also recorded the statements of MHCM and the Constable, who took the exhibits to FSL and that she had also recorded the supplementary statements of prosecutrix, Amna Khatoon, sister of prosecutrix, and Pappu Khan Saifi. She further deposed that after completion of investigation, charge sheet was SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 20 of 28 21 presented before the Court concerned and that she later collected the FSL reports Ex.PW19/A and Ex.PW19/B from MHCM and filed the same in the Court. 42 After closing of prosecution evidence, statement of accused Nazim was recorded u/s 313 Cr.P.C. The accused stated that he is innocent and had been falsely implicated in the case at the instance of Pappu, his then employer, who was related to prosecutrix and her father as Pappu had to pay his dues in a sum of Rs. 20 / 25 thousand to him and that his signatures were obtained forcibly by the Police on some blank papers and printed performs and later on those papers were converted into various memos against him. The accused declined to lead evidence in his defence.
43 Arguments have been addressed by learned defence counsel for the accused as well as learned Additional PP for the State.
44 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused beyond reasonable doubt and that prosecutrix has proved her statement u/s.164 CrPC wherein she has made clear allegations of being kidnapped and raped by the accused and his two accomplices. He has contended that though prosecutrix failed to support the prosecution case, when she appeared to depose before the Court, considering the fact that she is a minor aged about 15 years (about 14 years at the time of incident), statement u/s.164 CrPC SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 21 of 28 22 which was made before learned MM immediately after the incident ought to be given due weightage. He thus contends that from the statement of prosecutrix as well as other material placed on record by it, the prosecution has succeeded in proving the guilt of accused beyond reasonable doubt and has accordingly prayed that accused Nazim be convicted u/s.363/366/376 IPC.
45 Learned counsel for the accused on the other hand 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 prosecutrix is unreliable and untrustworthy witness as she has constantly changed her version. He has drawn attention to the crossexamination of prosecutrix wherein prosecutrix has admitted that no one had committed rape upon her nor she was kidnapped by any one. It is thus contended that based on the testimony of the prosecutrix itself, accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly.
46 I have heard the arguments put forward by ld. Addl. PP and learned defence counsel for the accused Nazim and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
47 In the present case as per case put forth by the prosecution, accused is
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alleged to have kidnapped the prosecutrix on 16.09.2010 when she was going to the house of her sister and that she was kidnapped with intent that she be forced or seduced to have illicit intercourse and / or to compel her to marry accused and with such intention accused committed rape upon the prosecutrix against her wishes and without her consent. The factum of missing of prosecutrix apparently came to notice of Ibrahim Khan, father of prosecutrix, on 16.09.2010 itself when he went to house of his elder daughter i.e. PW6 Amna Khatoon at about 10:00 PM and came to know that prosecutrix had not reached there though she had left her house at about 8:00 PM stating that she was going to the house and said sister Amna Khatoon. The PW6 Amna Khatoon was first person to have suspected accused Nazim, who was employee of her relative Pappu, and told PW4 Ibrahim Khan that accused Nazim was having an evil eye on prosecutrix. As per the story developed by the prosecution, PW6 Amna Khatoon made a call to her relative Pappu and told him about illegal acts committed by accused Nazim and said Pappu in turn assured that if accused Nazim was responsible for such acts then he would teach him a lesson. On 17.09.2010 Pappu brought accused Nazim to his house, in presence of PW6, and asked accused about the prosecutrix, however, accused Nazim denied that prosecutrix was with him. He then stated that he could take them to her. On this said Pappu and accused Nazim went to bring prosecutrix back but on the way accused Nazim ran away and PW6 was informed about it by her relative Pappu telephonically at about 7:00 / 8:00 PM on the same day Pappu informed PW6 that her sister had been traced out and asked her and her husband to accompany him, SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 23 of 28 24 however, since husband of PW6 was not well, they asked Pappu to bring prosecutrix back. Subsequently, Pappu brought prosecutrix back and thereafter she was produced before the IO on 17.09.2010 i.e. the day after the incident. After about two months i.e. on 25.11.2010, PW9 Mubarak Ali, husband of PW6 Amna Khatoon and Jija of the prosecutrix, apprehended the accused Nazim, on being informed by the prosecutrix, who had seen the accused going towards BC Block Market via 600 Wali Gali, and thereafter he was handed over to the Police. It is pertinent to note that PW6 Amna Khatoon and PW9 Mubarak Ali have completely failed to support the prosecution case and denied the role assigned to them in the case put forth by the prosecution. Rather PW6 Amna Khatoon was most casual and stated that on the day of incident, she had returned back from work at about 8:00 PM and at about 10:00 PM her father came to her house and asked her about the prosecutrix and she told him that she did not know about her and that on the next day prosecutrix returned back. She denied that she had ever expressed her suspicion over accused Nazim in missing of prosecutrix from her house or that she had sought help of one Pappu, who was her relative and employee of accused Nazim, to search for her missing sister or that with the help of said Pappu, prosecutrix was ultimately traced out and brought back home on 17.09.2010. PW9 Mubarak Ali too denied that he had apprehended the accused on 25.11.2010 or that accused Nazim was responsible for kidnapping of his sisterinlaw (sali). He also denied having joined the proceedings / investigations carried out after arrest of the accused and stated that his signatures were taken on some papers when he was SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 24 of 28 25 called to PS on one day after he returned back to home from work. He also stated that prosecutrix had left home after altercation with her parents and returned back on the next day.
48 The material witness namely Pappu, who finds mentioned in statement of prosecutrix u/s.164 CrPC as well as statement made by PW6 Amna Khatoon u/s. 161 CrPC to the IO has not been impleaded as a witness to the case and thus there is a material link missing from the case of prosecution which itself creates doubt regarding it. Further the prosecutrix has also given different versions regarding the incident while in her statement u/s.161 CrPC Mark X to the IO and in her statement u/s.164 CrPC Ex.PW5/A, she has alleged that accused and his two accomplices had kidnapped her and that later accused had raped her, when she appeared to depose before the Court as PW5, she exonerated accused of all the allegations. She rather stated that on the day of incident, she had an altercation with her father and had left her house in a fit of anger and had met accused Nazim at Kashmiri Gate and that accused make her understand return back to her house but she did not agree and that she and accused remained at Kashmiri Gate near the gate of ISBT for the whole of noon and night and on the next day morning at about 10:00 AM, she returned back to her house accompanied by accused, who left her at the street of her house. She denied that accused had committed any wrong act / rape / galatkam upon her or had kidnapped her from her house. She also stated that she came to know, when she returned back to her home, that her parents had got case registered against accused SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 25 of 28 26 Nazim. Despite her lengthy crossexamination by learned Additional PP, nothing which could be of any aid to prosecution in linking accused Nazim to alleged kidnapping and rape of the prosecutrix could be brought out. 49 Further the manner in which prosecutrix was traced by her family is contrary from the statements of witnesses recorded by the IO. As per the prosecution case and statement of prosecutrix, Mark X, after being confined and raped by accused Nazim on 16.09.2010, she was brought back by accused and his accomplices Niyab (Nawab) and Suraj to Azadpur Metro Station from where Niyab (Nawab) went away somewhere while accused Nazim made telephonic call to Pappu, Jija of prosecutrix and when her Jija asked accused Nazim as to whether prosecutrix was with him, accused Nazim replied in negative. Thereafter prosecutrix was brought by accused Nazim and Suraj to Vijay Vihar, Rohini in TSR and they kept wandering for the whole day in the TSR and on 17.09.2010 at about 7:00 PM while accused Nazim and Suraj were standing with prosecutrix at Vijay Vihar road, her Jija Pappu came there at about 8:00 PM and on seeing him, accused Nazim and Suraj ran away while Pappu was brought back to house by her Jija. As already observed hereinabove, the prosecutrix had Jija by name of Mubarak Ali and Pappu was related to Amna Khatoon, sister of prosecutrix. There is nothing on record to show that prosecutrix had any Jija by name of Pappu and no such Pappu has been examined and thus the manner in which prosecutrix was recovered by her family members is also doubtful specially when we consider testimony of PW4 SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 26 of 28 27 Ibrahim Khan, father of prosecutrix, who claimed that prosecutrix was recovered after about one month from the time when she went missing. Ibrahim Khan, who was examined as PW4 stated that prosecutrix had gone missing on 16.09.2010 and that he lodged his complaint at PS Jahangir Puri on 17.09.2010 and that after about one month, accused Nazim was overpowered by his soninlaw (Damad) while wandering in street of CBlock, Jahangir Puri and that prosecutrix was also recovered by his Damad. This witness was crossexamined at length by learned Additional PP but he denied having gone for search of his daughter with the police on 17.09.2010. He also denied having been told by his daughter i.e. prosecutrix that accused Nazim and Suraj had run away leaving her at Vijay Vihar, Rohini. Thus there is a doubt about the manner in which the prosecutrix was recovered and further a doubt about the manner in which the accused was apprehended and the entire case put forth by the prosecution does not inspire any confidence. 50 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused had kidnapped prosecutrix on 16.09.2010 or that he had kidnapped the prosecutrix with intent to force her or seduce her to have illicit intercourse or that he had to compel prosecutrix to marry him or that he had committed rape upon prosecutrix without her wishes and without her consent. Accordingly, I acquit accused Mohd. Nazim of the charged offences, giving him benefit of doubt for the offences u/s. 363/366/376 IPC.
SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 27 of 28 28 File be consigned to the record room. (Announced in the open Court ) (Illa Rawat) (Today on 29.09.2012) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 28 of 28 29 FIR No. 321/10 P.S. Jahangir Puri 29.09.2012 Present: Addl. PP for the State. Accused Nazim on bail with counsel Sh. M.A. Khan.
PW19 Ms. Anita Chhari, SSO, PW20 Ct. Pankaj and PW21 SI Vinita Prasad are present. They are examined, crossexamined and discharged.
At request of learned Additional PP, PE is ordered to be closed. Statement of accused u/s.313 CrPC recorded. Accused does not want to lead any evidence in his defence.
Final Arguments heard.
Judgment shall be passed during the course of the day.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 29.09.2012 At 4:00 PM Present: Addl. PP for the State.
Accused Nazim on bail with counsel Sh. M.A. Khan.
Vide separate judgment, announced today in the open Court, accused Nazim has been acquitted of the charged offence.
SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 29 of 28 30 Accused request that his previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bond of the accused is extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 29.09.2012 SC No. 06/11 State Vs. Mohd. Nazim Page Nos. 30 of 28