Delhi District Court
State vs 1. Jamal Nasir S/O Jalil Ahmad on 21 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.02402R0077662008
SC No. 132/13 Date of assignment : 12.03.2012
FIR No. 455/07 Date on which arguments
PS. Shakarpur were heard : 21.04.2015
U/s. 376/493/495/496/ Date of judgment : 21.04.2015
506/34 IPC, 306 r/w sec. 511 IPC
& u/s 323/506/426 IPC
323/506/34 IPC, 306 r/w sec. 511,108 IPC
State Versus 1. Jamal Nasir S/o Jalil Ahmad
R/o H.No.811, Guru Ram Das Nagar,
Ramesh Park, Delhi.
2. Musharrat W/o Jamal Nasir
R/o H.No.811, Guru Ram Das Nagar,
Ramesh Park, Delhi.
3. Mohd. Anees S/o Mohd. Isman
R/o 801, Haweli Azam Khan, Chttli
Kabar, Jama Masjid, Delhi.
4. Nilofar W/o Mohd. Anees
R/o 801, Haweli Azam Khan, Chttli
Kabar, Jama Masjid, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 11.06.2007 a PCR call was received SC No.132/13 State vs. Jamal Nasir etc. page 1 of 22 that a girl (prosecutrix) has committed suicide at Vishwakarma Park. This information was recorded at police station Shakarpur. SI Bahnu Pratap alongwith constable reached at Vishwakarma Park where the prosecutrix was found alive but lying unconscious on the floor and was bleeding from her left arm. The prosecutrix was taken to the LBS Hospital where she was found unfit for statement. However, a suicide note was found in her diary. On 12.06.2007 the prosecutrix was discharged from the hospital.
2. On 14.06.2007 the prosecutrix submitted a written complaint to the SHO PS Shakarpur wherein she made following allegations against the accused persons:
(a) Eight years back, the prosecutrix was residing at Guru Ram Das Nagar near Ramesh Park.
Accused Jamil Nasir was running a cloth factory in front of her house. Accused Jamil Nasir told the prosecutrix that he is an unmarried person and he is in love with her and wants to marry her. Prosecutrix also developed love for the accused Jamil Nasir.
(b) On 08.06.2001, the accused Jamal Nasir called the prosecutrix at his factory. Four other persons were also present there and one of them was a Qazi and other three persons were stated to be witnesses. Accused SC No.132/13 State vs. Jamal Nasir etc. page 2 of 22 Jamil Nasir told the prosecutrix that they would perform marriage (nikah). He also asked the prosecutrix to change her religion to Islam by reciting Kalma. He also took the signatures of the prosecutrix on a printed nikahnama and then they sent the prosecutrix to her house. Accused Jamal Nasir made physical relations with the prosecutrix and both resided as husband and wife. In the evening, the accused Jamal Nasir used to go somewhere else for the night.
(c) After one month, accused purchased a flat bearing no. 172B, Second Floor, Shakarpur and he got shifted the prosecutrix to that flat where also they both resided as husband and wife. At that place also, the accused Jamil Nasir did not remain with the prosecutrix at nights. After about six months of their marriage, the prosecutrix asked the accused as to why he keeps going to his parents' house every night. Then accused disclosed to the prosecutrix that he is a married person and he had got married with her by telling a lie. Prosecutrix compromised with her life and continued to live with the accused Jamil Nasir as his wife.
(d) In July, 2006, the first wife of accused Jamil Nasir (Musharrat Khan) came to the house of the prosecutrix. She beat the prosecutrix and addressed her as a 'call girl'. She also asked the prosecutrix to leave her husband (accused Jamal Nasir) otherwise she would get SC No.132/13 State vs. Jamal Nasir etc. page 3 of 22 her killed. The accused Jamil Nasir told his first wife that he does not know the prosecutrix. Thereafter he got the said flat vacated from the prosecutrix under allurement and took another flat near Anarwali Masjid. After two months, the prosecutrix and the accused Jamil Nasir vacated the said flat also and then they shifted to some place at Vishwakarma Park on rent. The accused did not pay rent of both flats and he paid Rs. 10,000/- as security after taking the amount from the prosecutrix.
(e) On 11.06.2007 at about 3:00/3:30 pm accused Anees @ Asim, brother of accused Jamal Nasir and his wife came to the house of the prosecutrix. They asked the prosecutrix to leave accused Jamal Nasir otherwise she would face dire consequences. They also called accused Jamal Nasir who told the prosecutrix to leave him and said that he did not know her. Prosecutrix told him (accused Jamal Nasir) that he had performed nikah with her, on which accused Jamal Nasir said that he has already torn the nikahnama. Prosecutrix felt that there was no hope left for her life and she became severally depressed. On 11.06.2007, she consumed ten sleeping pills. The prosecutrix also cut veins of her left arm with a blade.
(f) Prosecutrix alleged that accused Jamal Nasir, his wife Musharrat, his brother Asim and his wife are responsible for her bad condition. Accused Jamal Nasir SC No.132/13 State vs. Jamal Nasir etc. page 4 of 22 made physical relations with her after concealing fact of his first marriage. Prosecutrix requested that justice be done to her.
3. On the basis of the complaint of the prosecutrix, FIR No.455/07, u/s 495/376/306/34 IPC was got registered against the accused persons at police station Shakarpur. Prosecutrix was got medically examined at hospital on 17.6.2007 and sample were got collected. Accused persons were arrested and the samples were sent to FSL, Rohini.
4. After completion of investigation, chargesheet under sections 495/376/108/34 IPC was filed against the accused persons.
5. Since the major offence in this case was triable by the Court of Sessions, vide order dated 06.03.2012, learned M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
6. Vide order dated 17.09.2012, charge under sections 376/493/495/496 IPC, 506/34 IPC and 306 r/w sec. 511 IPC was framed against Jamal Nasir by my learned predecessor. Further charge under sections 323/506/426 SC No.132/13 State vs. Jamal Nasir etc. page 5 of 22 IPC was framed against Musharrat and charge under sections 323/506/34 IPC, 306 r/w sec. 511,108 IPC was framed against accused Mohd. Anees and Nilofar. Charges were read over to the accused persons to which they pleaded not guilty and claimed trial.
7. In support of its case, prosecution has examined three witnesses i.e. sister of the prosecutrix as PW1, the prosecutrix as PW2 and Sh. Ashok Kumar as PW3.
8. PW2 (the prosecutrix) has not supported the case of prosecution on material aspects. She deposed that eight years back, she was living at Guru Ramdas Nagar and the accused Jamal Nasir was running a cloth factory in front of her house. Prosecutrix developed friendship with him. Wife of accused Jamal Nasir namely Musharrat Khan also used to meet Jamal Nasir at his factory and she (prosecutrix) knew about the marriage of accused with Musharrat since the beginning of her friendship with accused. Prosecutrix deposed that she developed intimacy with accused Jamal Nasir. In the year 2001, the prosecutrix and the accused performed nikah as per Muslim rites and customs and before performing nikah she had changed her religion to Islam and changed her name. She has also deposed that after nikah with accused Jamal Nasir, the SC No.132/13 State vs. Jamal Nasir etc. page 6 of 22 prosecutrix joined as a yoga teacher but due to some physical problem in her backbone, she was unable to attend her duties and she left the job. Prosecutrix further deposed that after nikah accused Jamal Nasir kept her well for five or six years as his wife but then he sustained huge losses in his business. Due to this reason he could not maintain her properly. In the circumstances, she went under depression and used to remain mentally upset. Accidentally she sustained some injuries on her left arm and she became unconscious. When she regained consciousness, she found herself at LBS hospital. Police reached the hospital and made enquiry from her. She stated about the incident 11.06.2007 and the aforesaid facts to the police. She further deposed that at that time her signatures were obtained on some papers and after some days she was informed that a rape case has been registered against the accused persons. She proved her complaint as Ex.PW2/A and MLC as Ex. PW2/B. She further deposed that accused Jamal Nasir failed to maintain her financially and she sought divorce from him and accordingly, the prosecutrix and accused Jamal Nasir had mutually got divorced on 08.04.2013 and now she is residing separately. Prosecutrix also deposed that accused Anees @ Asim is brother of accused Jamal Nasir and she knew him and his wife co-accused Nilofar. She deposed SC No.132/13 State vs. Jamal Nasir etc. page 7 of 22 that they never tortured or threatened her in any manner. The prosecutrix further deposed that during subsistence of her marriage with accused Jamal Nasir, she and accused Jamal Nasir made physical relations with her free will and consent as he was her husband. She deposed that she does not know as to why this case has been registered against the accused Jamal Nasir.
9. Since the prosecutrix did not support the case of the prosecution, she was cross examined by the learned Addl. Public Prosecutor. During her cross examination also, she did not support the case of prosecution and denied that on 14.06.2007 she had produced a written complaint Ex.PW2/A before the police against the accused persons. She admitted that on 08.06.2001 she recited kalma and got converted by reciting kalma before a Qazi. The prosecutrix also deposed that after their nikah they started living together in day time as husband and wife but in the evening accused used to go away. She denied that she had earlier stated that after six months of her nikah, accused Jamal Nasir informed her that he is already a married person and he had performed nikah with her by telling a lie. This witness also denied that in July, 2006, first wife of accused Jamal Nasir came to her flat and beat her and damaged household articles. She also denied that at that SC No.132/13 State vs. Jamal Nasir etc. page 8 of 22 time the first wife of the accused asked the prosecutrix to leave the accused and addressed her as a 'call girl.' Prosecutrix further denied that on 11.06.2007 at about 3:30 PM, accused Asim @ Anees and his wife came to her house and threatened the prosecutrix to leave accused Jamal Nasir. She also denied that at that time accused Jamal Nasir told her to go away from his house and said that he does not know her. Prosecutrix also denied that she was under depression and thus she consumed ten sleeping pills and cut veins of her left arm with a blade. She further denied that accused Jamal Nasir, his wife, his brother and his wife compelled her to take such decision because accused Jamal Nasir got married and made physical relations with her after concealing the factum of his first marriage. She further denied that at the time of her medical examination, she had narrated the incident to the doctor also.
10. This witness was cross examined on behalf of the accused. During her cross examination, the prosecutrix stated that she had not gone through the contents of the complaint Ex.PW2/A before signing the same. She also deposed that the accused persons had never harassed her. She also deposed that she does not want any action against the accused persons as they have not committed SC No.132/13 State vs. Jamal Nasir etc. page 9 of 22 any wrong act with her.
11. PW1 the elder sister of the prosecutrix deposed that in the year 2007 she was residing with the prosecutrix at Vishwakarma Park. She deposed that the prosecutrix got married with accused Jamal Nasir. This witness further deposed that in the year 2006-2007 when she reached at her house at Vishwakarma Park, Laxmi Nagar, her sister was lying unconscious. Police took the prosecutrix to the hospital and this witness also went to the hospital to meet her sister. In the hospital, the prosecutrix was in semi conscious condition. Next day her sister was discharged. This witness further deposed that after discharge from the hospital, the prosecutrix told her that her husband had losses in his business and they both were facing financial crisis. She deposed that her sister was upset as she has no job at that time. This witness further deposed that after marriage her sister lived with the accused Jamal Nasir for about 6-7 years and due to financial crisis her sister went under depression. She further deposed that the police did not record her statement.
12. Since this witness also did not support the case of the prosecution, she was cross examined by the learned Addl. Public Prosecutor for the State. During cross SC No.132/13 State vs. Jamal Nasir etc. page 10 of 22 examination, she deposed that the divorce between the prosecutrix and accused Jamal Nasir had taken place with their consent. This witness also deposed that after one week of marriage of prosecutrix, she (this witness) met the prosecutrix who informed her that the accused was already a married person. She denied that the accused got married with the prosecutrix after concealing the factum of his earlier marriage. She denied that on 11.6.2007 brother of accused Jamal Nasir alongwith his wife came to the house of the prosecutrix and pressurised her sister to leave accused Jamal Nasir otherwise she would face dire consequences. She further denied that her sister (prosecutrix) had cut veins of her arm with blade.
13. During her cross examination on behalf of accused, this witness stated that when the prosecutrix disclosed her about her nikah with accused Jamal Nasir she was quite happy and she never complained anything against the accused persons in any manner.
14. PW3 Sh. Ashok Kumar deposed that he has been residing at MB-169, Master Block, Shakarpur, Delhi since 1981. That house No 172 MB is situated near his house. He deposed that he does not know who is residing in the said house as he used to leave his house for his shop at Karol SC No.132/13 State vs. Jamal Nasir etc. page 11 of 22 Bagh in the morning and come back late night. He stated that the police never met him.
15. As this witness did not support the case of prosecution, he was also cross examined by the learned Addl. Public Prosecutor for the State. During cross examination, he denied that he stated to the police that the prosecutrix was residing with her husband Jamal Nasir at 172, MB Block and her sister. He also denied that in February,2007 the above said person had sold and vacated the aforesaid flat. He denied that he knows the prosecutrix and Jamal Nasir being their neighbour. This witness did not identify the accused Jamal Nasir and stated that he does not know him.
16. The testimony of prosecutrix (PW2) would show that she has not supported the case of the prosecution on material aspects. Prosecutrix was cross examined by the learned Addl. Public Prosecutor for the State. Even during her cross examination, she has not supported the case of prosecution. PW1 and PW3 have also not supported the case of the prosecution.
17. Perusal of chargesheet and material attached with the chargesheet would show that the remaining SC No.132/13 State vs. Jamal Nasir etc. page 12 of 22 prosecution witnesses were either the police officials who were involved in the investigation of this case or the doctors who had medically examined the prosecutrix and the accused and one public witness. None of these witnesses have personal knowledge about the allegations made by the prosecutrix against the accused. Since the material witnessed 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 statement of accused under section 313 Cr.P.C. was also dispensed with.
18. I have heard arguments addressed by learned Additional Public Prosecutor for the State and learned defence counsel and perused the record.
19. The accused Jamal Nasir is facing trial for the alleged commission of offences punishable under sections 376/493/495/496/506/34 IPC, 306 r/w sec. 511 IPC, accused Musharrat is facing trial for the commission of offences punishable under sections 323/506/426 IPC and accused Mohd. Anees and Nilofar are facing trial for the commission of offences punishable under sections 323/506/34 IPC, 306 r/w sec. 511,108 IPC.
SC No.132/13 State vs. Jamal Nasir etc. page 13 of 22 Accused Jamal Nasir
20. This accused is facing trial for the commission of offences punishable under sections 376/493/495/496 IPC, 506/34 IPC and under section 306 r/w sec. 511 IPC.
Sections 493, 495 and 496 IPC read as follows:
"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.-- Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
"495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.--Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
"496. Marriage ceremony fraudulently gone through without lawful marriage.--Whoever, dishonestly or with a fraudulent intention, goes SC No.132/13 State vs. Jamal Nasir etc. page 14 of 22 through the ceremony of being married, knowing that he is not hereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
21. As far as offences punishable under sections 493/495/496 IPC are concerned, the prosecutrix has deposed that eight years back from the registration of the present case, she was living at Guru Ramdas Nagar and the accused Jamal Nasir was running a cloth factory in front of her house. She developed friendship with the accused Jamal Nasir and this friendship developed into love affair. In the year 2001, accused Jamal Nasir and the prosecutrix got married (nikah). Before performing marriage, the prosecutrix changed her religion into Islam by reciting kalma before Qazi and she also signed the nikahnama. She has also deposed that after marriage she resided with the accused for about five or six years as his wife. Prosecutrix has further deposed that due to losses in his business, accused Jamal Nasir could not maintain her and she sought divorce from him. She stated that they have mutually divorced from each other on 08.04.2013 and since then they have been living separately. Prosecutrix has also deposed that wife of accused Jamal Nasir used to come to meet Jamal Nasir at his factory and she knew SC No.132/13 State vs. Jamal Nasir etc. page 15 of 22 about the marriage of the accused with Musharrat since the beginning of her friendship with the accused Jamal Nasir.
22. During cross examination on behalf of State also, the prosecutrix admitted that at the time of marriage, accused Jamal Nasir asked her to adopt Islam religion by reciting Kalma. Thereafter a Qazi recited Kalma and she signed the nikahnama and they started residing as husband and wife. Prosecutrix has denied that after six months of her marriage, she came to know that the accused was already a married person and he had performed marriage (nikah) after concealing his first marriage.
23. Prosecutrix has rather deposed that the accused Musharrat Khan wife of accused Jamal Nasir used to visit at his factory and she knew about the marriage of accused Jamal Nasir since the beginning of her friendship with accused Jamal Nasir.
24. In view of deposition of the prosecutrix (PW2) and her sister (PW1) no incriminating evidence has come on record to connect the accused Jamal Nasir for the commission of offences punishable under sections SC No.132/13 State vs. Jamal Nasir etc. page 16 of 22 493/495/496 IPC. Thus, this accused Jamal Nasir is entitled to be acquitted of the alleged commission of offences punishable under sections 493/495/496 IPC.
25. As far as offence punishable under sections 376 IPC is concerned, the prosecutrix has deposed that she got married with accused Jamal Nasir as per Muslim rites and ceremonies and they resided as husband and wife. She has further deposed that this accused made physical relations with her as per her will and consent as she was his wife. She also deposed that since beginning of her friendship with accused Jamal Nasir, she was aware that the accused was already a married person. In the circumstances, no incriminating evidence has come on record to connect accused Jamal Nasir for the commission of offence punishable under section 376 IPC and he is entitled to be acquitted of the alleged commission of offence punishable under section 376 IPC. Even otherwise sexual intercourse between the husband and wife after marriage, even if such marriage is based on deception does not amount to an offence of rape. [See Mahesh Kumar Dhawan vs. State of M.P. & Anr. (2012 CRI.L.J. 1639)].
26. Insofar as offence punishable under section 306 read with section 511 IPC is concerned, the prosecutrix has SC No.132/13 State vs. Jamal Nasir etc. page 17 of 22 deposed that after five or six years of her marriage with accused Jamal Nasir, he sustained huge losses in the business and due to this, he could not maintain the prosecutrix properly. Due to this reason, the prosecutrix went under depression and used to remain mentally upset. She has also deposed that accidentally she sustained injuries on her left arm and became unconscious.
27. During her cross examination on behalf of State, the prosecutrix has denied that on 11.06.2007, accused Asim @ Anees and his wife came to her flat and pressurised and threatened her to leave the accused Jamal Nasir or she would face dire consequences. She also denied that at that time, the accused Jamal Nasir asked the prosecutrix to go out of his life. She has also denied that due to this reason she went under depression and consumed ten sleeping pills and cut veins of her left arm with a blade. She further denied that she had stated in her complaint that all the accused persons compelled her to take such decision.
28. No incriminating evidence has come on record to connect the accused Jamal Nasir with the alleged offence punishable u/s 306 read with section 511 IPC. Thus this accused is entitled to be acquitted of the charge of the SC No.132/13 State vs. Jamal Nasir etc. page 18 of 22 commission of offence punishable under section 306 read with section 511 IPC.
29. As far as offence punishable under section 506/34 IPC is concerned, again the prosecutrix has not supported the case of the prosecution that the accused had threatened her. The prosecutrix has deposed that accused persons never harassed her. In view of testimony of proswecutrix, no incriminating evidence has come on record to connect accused Jamal Nasir for the commission of offence punishable under section 506/34 IPC. Thus, this accused is entitled to be acquitted of the alleged commission of offence punishable under section 506/34 IPC.
Accused Musharrat
30. Accused Musharrat is the first wife of the accused Jamal Nasir. This accused is facing trial for charge of commission of offences punishable under sections 323/506/426 IPC. As per the case of the prosecution, this accused came to house of prosecutrix in July, 2007 and beat her and also threatened her to leave accused Jamal Nasir otherwise she would be killed. It is also the case of the prosecution that this accused also caused damage to SC No.132/13 State vs. Jamal Nasir etc. page 19 of 22 household articles belonging to the prosecutrix.
31. During her deposition, the prosecutrix has not supported the case of the prosecution against this accused also. She denied that in July, 2006 this accused came to her house and beat the prosecutrix, damaged her household articles and criminally intimidated her to leave her husband otherwise she would be killed. In the circumstances, no incriminating evidence has come on record to connect accused Musharrat for the commission of offence punishable under section 323/506/426 IPC. Thus this accused is entitled to be acquitted of the alleged commission of offence punishable under section 323/506/426 IPC.
Accused Mohd. Anees and Nilofar
32. Accused Anees is brother of accused Jamal Nasir and accused Nilofar is wife of accused Anees. The prosecutrix in her evidence has denied that on 11.06.2007 both these accused persons visited her house and threatened her to leave accused Jamal Nasir otherwise she would face dire consequences. Prosecutrix has also denied that these co-accused persons had abetted her to commit suicide and then she consumed sleeping pills. The SC No.132/13 State vs. Jamal Nasir etc. page 20 of 22 prosecutrix has deposed that she accidentally sustained injuries in her left arm. In the circumstances, no incriminating evidence has come on record to connect these accused persons with the offence of abetment to commit suicide. There is also no incriminating evidence to connect these accused persons for the commission of offences punishable under section 323/506/34 IPC. Thus both the accused persons are entitled to be acquitted of the alleged commission of offences punishable under sections 323/506/34 IPC and under section 306 read with section 511 and 108 IPC.
33. In view of above discussion, it is held that the prosecution has not been able to prove its case against the accused Jamal Nasir for the offences punishable under sections under sections 376/493/495/496 IPC, 506/34 IPC and under section 306 r/w sec. 511 IPC. Thus, the accused Jamal Nasir is acquitted of the offences punishable under sections 376/493/495/496 IPC, 506/34 IPC and under section 306 r/w sec. 511 IPC.
34. Further, the prosecution has also not been able to prove its case against the accused Musharrat for the offences punishable under sections 323/506/426 IPC and thus she is acquitted of the offences under sections SC No.132/13 State vs. Jamal Nasir etc. page 21 of 22 323/506/426 IPC.
35. Further, the prosecution has also not been able to prove its case against the accused Mohd. Anees and Nilofar for the offences punishable under sections 323/506/34 IPC and under section 306 read with section 511 and 108 IPC and thus they are acquitted of the offences under sections 323/506/34 IPC and under section 306 read with section 511 and 108 IPC. It is ordered accordingly.
36. File be consigned to record room after necessary compliance.
Announced in the open court on 21.04.2015 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.132/13 State vs. Jamal Nasir etc. page 22 of 22