Delhi District Court
State vs Accused Persons on 9 December, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0335022011 SC NO.106/13 Date of Institution : 09.12.2011 FIR No.22/11 Date of Argument : 29.11.2013 PS Nand Nagri Date of Order : 09.12.2013 U/S 365/366/376/323/342/406/34 IPC State Versus Accused Persons 1. Anis S/o Munshi Khan 2. Munshi Khan S/o Ismail Khan 3. Kanij S/o Munshi Khan 4. Shamim S/o Munshi Khan 5. Nafis S/o Munshi Khan All R/o F-2/98, Sunder Nagri, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 28.01.2011, __x_____, daughter of ___Y_, resident of __________________z_____________, Delhi, herein after SC No.106/13 State vs. Anis & Ors. Page 1 of 38 referred to as the prosecutrix, lodged a report at PS Nand Nagri alleging that she was residing at the above mentioned address and she was B.A. Pass. She was doing work of stitching of clothes of the ladies at her house. In the year 2008, she fell in love with a boy, namely, Anis, s/o Munshi Khan, r/o F-2/98, Sunder Nagari, Delhi, herein after referred to as the accused no. 1. On the enticement of accused, she agreed to marry him and started roaming with him. Many times, she withdrew money from her bank and she handed over a sum of Rs. 1,50,000/- to the accused who spent all that money. The accused also told her that he handed over all the money to his mother. She disclosed her intention to her family members but they opposed. She, accordingly informed the accused no. 1, who took her from her house on 28.04.2010 on the pretext to marry her and went to Sahibabad, U.P. where they started residing in the house of one Parvesh Yadav as a tenant. She was kept there for about 2 months where the accused used to commit rape on her every day but he did not marry her. Whenever she used to ask the accused to marry her, he used to beat her. Besides beating, he used to ask her to bring money from her house. Even on his refusal, the accused continued to rape her and after staying in the said tenanted room, he left her alone and escaped. His younger brother Nafis, herein after referred to as the accused no. 5 SC No.106/13 State vs. Anis & Ors. Page 2 of 38 took her to their house at F-2/98 Sunder Nagri, Delhi and confined and locked her in a room. At that time, his father Munshi Khan, herein after referred to as the accused no. 2, his mother Kanij, herein after referred to as the accused no. 3 and elder brother Shamim, herein after referred to as the accused no. 4 were also present in said house. They did not allow her to come out from their house and whenever she tried to come out, they used to beat her and always used to lock her inside the room. Somehow on 25.08.2010, she found an opportunity and she came out of the house and informed the police by dialing 100 numbers. She prayed that legal action may be taken against the accused persons. On the basis of her statement FIR No. 22/11, PS Nand Nagri under Section 376/365/366/406/34 IPC was recorded on 28.01.2011 against the accused persons. The prosecutrix was taken to GTB Hospital on 29.01.2011 where she was medically examined and her MLC and continuation sheet/emergency card were prepared. Doctor observed that her hymen was found ruptured. Accused Anis was arrested on 31.01.2011 and his arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. He was also taken to GTB hospital where he was medically examined and MLC was prepared and Doctor opined that there was nothing to suggest that he was not SC No.106/13 State vs. Anis & Ors. Page 3 of 38 capable to perform sexual intercourse. The prosecutrix was produced before Ld. Metropolitan Magistrate and her statement u/s 164 of Code of Criminal Procedure, herein after referred to as the Code was recorded. She reiterated all the averments made in the report. Accused no. 2 to 4, Munshi Khan, Kanji, Shamim and Nafis were also arrested on 11.02.2011 and their arrest memo and personal search memo were prepared. The IO collected the documents and recorded statement of witnesses. After completion of investigation, IO filed a charge sheet against the accused persons for trial of accused no. 1 for the offences punishable u/s 365/366/376/406 IPC and for trial of accused no. 2 to 4 for the offences punishable u/s 365/323/342/406/34 IPC.
02. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Sh. Raj Paul Singh, ASJ by Hon'ble Addl. Sessions Judge, Incharge North East District, Karkardooma Courts, Delhi.
03. The court vide order dated 01.02.2012 opined that prima facie case for framing of charge for the offences punishable u/s 365/366/376/406 IPC was made out against SC No.106/13 State vs. Anis & Ors. Page 4 of 38 the accused Anis and charge for the offences punishable u/s 368/323/34 IPC was made out against the accused Munshi Khan, Kanij, Shamim and Nafis. Therefore, charge against the accused persons for their trial for the said offences were framed and read over to them. The accused persons pleaded not guilty and claimed trial.
04. The prosecution, in order to prove its case partly examined the prosecutrix __x_____ as PW1.
05. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
06. The prosecution, in order to prove its case further examined the prosecutrix __x_____ as PW1; Dr. Priyadarshni Nanda as PW2; Sh. Parmeshwar Ram as PW3; father of the prosecutrix, Sh. ___Y____a as PW4; mother of the prosecutrix ___z-1______ as PW5; Constable Santosh as PW6; Constable Abhinay as PW7; Ct. Prabhu Dayal as PW8; ASI Dal Chand as PW9; Sh. Ram Dev Yadav as PW10; Sh. Ram Bajaj as PW11; HC Manoj Kumar as PW12; Constable Tejpal as PW13; HC Onkar Singh as PW14; Sh. Gaurav Gupta, Ld. MM as PW15; SI Dal Chand as PW16 and ASI SC No.106/13 State vs. Anis & Ors. Page 5 of 38 Kusum Lata as PW17.
07. After closing of prosecution evidence statements of the accused persons under Section 313 of the Code were recorded. All the material and incriminating evidence was put to them. All the accused persons admitted that the prosecutrix was resident of __z___ and they all were residents of F-2/98 Sunder Nagari, Delhi and that house of the prosecutrix was situated near their house. All of them also admitted that accused no. 1 was arrested on 31.01.2011 and remaining accused persons were arrested on 11.02.2011 and their arrest memo and personal search memo were prepared. They also admitted that witnesses identified them correctly in the Court. Accused no. 1 also admitted that he was taken to GTB hospital by PW7 where he was medically examined by PW3 vide MLC Ex. PW3/A. All the accused persons either expressed their ignorance about the material incriminating prosecution evidence or denied rest of the evidence and pleaded that they were innocent.
08. In support of their defence, Mohd. Salim Khan and Abdul Rauf residents of the same locality were examined as DW1 and DW2.
SC No.106/13 State vs. Anis & Ors. Page 6 of 3809. After closing of evidence by prosecution, recoding of statements of the accused persons and defence evidence, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused persons and perused file.
Ingredients of offences
10. In order to prove its case that accused Anis committed an offence of kidnapping, abducting or inducing woman to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
11. In order to prove its case that accused Anis committed an offence of kidnapping or abducting with intent secretly and wrongfully confining a person, punishable u/s 365 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted or SC No.106/13 State vs. Anis & Ors. Page 7 of 38 kidnapped with the intention to cause the prosecutrix to be secretly and wrongfully confined.
12. In order to prove its case that all accused except Anis committed an offence of wrongfully concealing or keeping in confinement, kidnapped or abducted person punishable u/s 368 IPC, prosecution has to further prove that above mentioned four accused wrongfully concealed and confined the prosecutrix knowing that she was kidnapped or abducted by the accused Anis.
13. In order to prove its case that accused Anis committed an offence of criminal breach of trust punishable u/s 406 IPC, prosecution has to prove firstly that prosecutrix entrusted Rs. 1,50,000/- and gold jewellery to accused Anis and secondly that accused dishonestly used or disposed of that property and failed to return the same to the prosecutrix on her demand.
14. In order to prove its case against the accused Anis for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent by the accused Anis.
SC No.106/13 State vs. Anis & Ors. Page 8 of 38Arguments of parties
15. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved all the offences against the accused persons beyond reasonable suspicion and shadow of doubt and the accused are liable to be held guilty and convicted for all the alleged offences.
16. It has been argued on behalf of Ld. Defence Counsel that the prosecutrix was aware that accused Anis was a married man on the date when she eloped with him. He stated that prosecutrix on her own wish made physical relations with accused Anis. The testimony of the prosecutrix has failed to establish any case against the accused Anis.
17. In support of his arguments Ld. Defence Counsel relied on the principles of law laid down in a case Uday v. State of Karnataka, AIR 2003 SC 163. In that case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously SC No.106/13 State vs. Anis & Ors. Page 9 of 38 opposed by their family members. She admitted having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. The Apex Court held that:
"The consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a 'misconception of fact'. A false promise is not a fact within the meaning of the Code. There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them"
18. In support of his arguments Ld. Defence Counsel further relied on a case Hari Majhi Vs. The state, 1990 CRI. L.J. 650, wherein the Calcutta High Court observed that:
"It would be evident from the said evidence that the accused had sexual intercourse with the girl with her SC No.106/13 State vs. Anis & Ors. Page 10 of 38 consent which she, being above the age of 16 years, was competent to give. The prosecution case is that she agreed to sexual intercourse because the accused promised to marry her. But on this ground he cannot be held guilty of rape. The prosecution case does not cover any of the circumstances in S.375 of the Penal Code. In our view, the accused cannot be held guilty of rape for having sexual intercourse with PW1 after having promised to marry her.
19. Ld. Defence Counsel further relied on a case Lakshmana Naik Vs. State by Bantwal Police, Mangalore, 2005(1) Criminal Court Cases 194, wherein Karnataka High Court observed that:
"The Division Bench of this Court in the case of Anthonidas, supra, has dealt with an identical situation, wherein the accused had promised to marry a girl and for that reason she had agreed to have sex with him, ultimately resulting in her pregnancy. On facts, it is held that it does not constitute an offence of rape. In the case of Honayya Vs. State of Karnataka, ILR 2000 Kar. 3385, the accused was convicted by the Trial Court holding that the consent for sexual intercourse was due to misconception or misrepresentation as the accused had promised to marry. In respect of that case this Court held that if a full grown girl consents to sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact."
20. Ld. Defence Counsel further relied on a case Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203, the Supreme Court observed that:
"16. What then is the meaning and content of the expression 'without her consent'? Whether the consent SC No.106/13 State vs. Anis & Ors. Page 11 of 38 given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidentally.
17. The concept and dimensions of 'consent' in the context of Section 375 IPC has been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case.
18. Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows:
"90. Consent known to be given under fear or misconception--A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception;..."
19. Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoyed by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception SC No.106/13 State vs. Anis & Ors. Page 12 of 38 of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
21. Section 90 cannot, however be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent".*** The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly." [Emphasis supplied]
21. Ld. Defence Counsel further relied on a case Deepak Gulati Vs. State of Haryana, 2013 IV AD (CRI) (S.C.) 21, wherein the Apex Court observed that:
"23. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by SC No.106/13 State vs. Anis & Ors. Page 13 of 38 her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre- decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karna lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police.
24. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore- mentioned fact situation."
22. Ld. Defence Counsel further argued that there are various contradictions in the testimonies of prosecution witnesses and those contradictions have made the testimony of the prosecution witnesses unreliable and untrustworthy.
23. On the other hand, Ld. Additional Public Prosecutor for the State argued that testimony of the SC No.106/13 State vs. Anis & Ors. Page 14 of 38 prosecutrix and other witlessness are reliable and trustworthy. She also argued that minor discrepancies and embellishments, if any, are liable to be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the SC No.106/13 State vs. Anis & Ors. Page 15 of 38 trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Material evidence on record
24. The prosecutrix as PW1 stated that accused Anis was residing at ____z_____________, Delhi which was situated near her house. Accused Kanij, mother of accused Anis used to get her clothes stitched from her so she used to go to the house of accused Anis. Gradually she developed friendship with accused Anis and fell in love with him. She was having her account in Corporation Bank bearing no. 4395. She used to deposit money in that account. Her parents also used to save money and used to deposit in the same account. Accused Anis, in the year 2008, when she fell in deep love with him, used to borrow money from her. Sometimes, she used to give 20,000/- and sometimes Rs. 50,000/- to accused Anis after withdrawing the amount from her account but her parents were not aware about it. Lastly, in the month of January, 2010, she withdrew Rs. 60,000/- from her account and gave the same to accused Anis. She was having too much love for accused Anis so, she used to give money to him as and when he demanded. In the month of March, 2010 she told her parents about her relations with the accused Anis SC No.106/13 State vs. Anis & Ors. Page 16 of 38 and expressed her desire to marry with the accused Anis but her parents refused. On 28.04.2010, accused Anis proposed her to marry with him after eloping. As proposed by accused Anis, she went with him from her house without informing her parents. They went to Sahibabad, Indira Garden U.P., where they took a room on rent in the house of one Parvez Yadav and that room was already taken on rent by accused Anis. She stayed with accused Anis for about 2 months. They resided there at second floor. The mother of accused Anis and his younger brother Nafis also used to come there to meet them. As and when she asked accused Anis to marry her, he used to say that he would marry her next day or after some days. Her family members were not aware that she was residing with accused Anis at Sahibabad, U.P. She was wearing one gold chain and one pair of ear tops which were removed by accused Anis and the accused told her that he would give the same to his mother and he also assured her that he would return the same to her after the situation becomes favourable. On 28.04.2010, she went to accused Anis and on 29.04.2010, accused Anis had sexual intercourse with her without her consent and at that time she told accused Anis that they should marry first. She was not willing to have sex with accused Anis but accused Anis committed sexual intercourse with her forcibly without her consent.
SC No.106/13 State vs. Anis & Ors. Page 17 of 38She left her house with accused Anis because accused Anis used to say that he cannot live without her. During her stay with accused Anis for about said two months at Sahibabad, accused Anis used to commit sexual intercourse with her without her consent after an interval of two-three days and on each occasion he used to assure her that since he was intending to marry her, there was no harm in performing sexual intercourse. On each occasion, she used to tell accused Anis that he had not yet married with her but he used to make one pretext or other. Gradually when the entire money which was taken by accused Anis from her was spent and he had already taken her chain and ear tops, he started demanded more money from her but at that time she was not having any money, so she refused to give more money to accused Anis. Accused Anis then gave beatings to her and also used to give threat and also used to force her to bring more money from her house. On account of it, she was too much puzzled. Even thereafter, accused Anis used to commit sexual intercourse with her without her consent. When she could not give more money to accused Anis, he went away leaving her alone in the said rented house. On 22.06.2010 or 23.06.2010, accused Nafis, brother of accused Anis took her to his house no. F-2/98, Sunder Nagri where Shamim brother, Munshi Khan father, Kanij, mother of accused Anis SC No.106/13 State vs. Anis & Ors. Page 18 of 38 were present. After reaching there, these accused persons kept her in a bolted room and they also used to beat her. They also used to give her meals off and on and they used to give beatings to her with danda and also used to tie her with rope. Accused Anis used to live at some other place but as and when he used to come there, he used to beat her. On 25.08.2010, when all of them were sleeping at the house of accused Anis and it was raining and family members of the accused Anis had forgotten to lock the room she got an opportunity to flee away. She made telephone call on number 100 from PCO. After about 15 minutes, police came. Name of the police official was SI Dal Chand. She was taken to police station by police officials. She narrated about the incident to police. Police called her parents in the police station. She came back to her house with her parents. On 18.12.2010, accused Anis threatened her on telephone. On 28.01.2011, she lodged a complaint, Ex. PW1/A and a case was registered. Her complaint, Ex. PW1/A was signed by her at point A. She also made statement Ex. PW1/B before Ld. Metropolitan Magistrate. All the accused persons namely Anis, Munshi Khan, Kanij, Shamim and Nafis were present in the Court. The witness correctly identified them.
25. In cross examination, she stated that she and SC No.106/13 State vs. Anis & Ors. Page 19 of 38 accused Anis fell in love with each other in the year 2004. She altered her statement and stated that she fell in love in the year 2008. In the month of February, 2010, she told her parents regarding her love affairs with the accused Anis and that she was interested to marry with him. Her parents declined her proposal in the February, 2010 itself on the ground that accused Anis belonged to another community. After the refusal of her parents about her marriage with accused, she continued to have relations with the accused Anis. She was also thinking that her marriage with the accused may not be possible. On 28.04.2010, at about 1.30 PM, she left her house and went to the house of accused Anis which was situated nearby. Father, mother, sister and brother of accused Anis meet her there. On 29.04.2010, she accompanied the accused Anis to Sahibabad by Auto. They hired auto at Bhopura border. She did not remember the house number of Sahibabad where she stayed with the accused Anis. Accused Anis was working as Mechanic at that time. Another family was also staying on the same floor where they were staying on the second floor at Sahibabad. She was having talking term with Shashi, wife of a tenant residing in that house. Accused Anis used to leave for work during day time and she used to go market to purchase vegetables and house hold articles with Shashi. The market SC No.106/13 State vs. Anis & Ors. Page 20 of 38 was at a distance of 2 kilometers from her house. Accused Anis was having a Cell Phone. Whenever, he wanted to convey some message, he used to ring the cell phone of Shashi. In between 28.04.2010 and 22.06.2010, she came to Delhi only once to meet her mother on 30.04.2010. Accused Anis told her that her mother wanted to meet her, so she went to GTB Enclave, Flat No. 1532, Janta Flat, Nand Nagri, Delhi to meet her mother. Her mother asked her to return back home but she refused. Her elder brother ___z-2__ informed the police at number 100. Police arrived there and took her and accused Anis, her brother ___z-2__ and her parents to police station Nand Nagri and thereafter, they took them to PS M.S. Park. Police recorded her statement. As accused Anis induced that he would marry her, so she told the IO that she wanted to accompany with accused Anis to Sahibabad. Thereafter, police left her and accused Anis. She accompanied accused Anis to his house no. F-2/98, Sunder Nagri, Delhi. Next morning she accompanied with accused Anis to Sahibabad. Her brothers were having cell phones at that time. One land line number was there at their house. At that time, she was aware about the land line number of her house and cell numbers of her brothers. She denied the suggestion that she consented for physical relations with the accused without any assurance of marriage. She SC No.106/13 State vs. Anis & Ors. Page 21 of 38 further admitted that she did not withdraw any money from her bank during the period 28.04.2010 to 22.06.2010. She explained that there was no money in the account for withdrawal. She did not fell ill at the house of accused at Sunder Nagri, Delhi. She was residing at second floor at the house of accused at Sunder Nagri. His other family members were residing at the same house at first floor. Neighbors used to come only at the first floor. They used not to come to see her at second floor. She made call to the police from public booth which was situated at the distance of 10/12 house from the house of accused. She knew the owner of public booth as it was situated at the corner of their locality. The STD booth was situated one side of the house of the accused and her parental house was situated on the other side of the house of the accused. She preferred to inform the police by using public booth rather to go to her parents' house first. She explained that her family members disowned her. Her medical examination was not conducted on the date when she informed the police by dialing number 100. She was aware that accused Anis was a married man. Name of his wife is Afsana. She did not know as to when marriage of accused Anis took place. She knew this fact at the time when she left with the accused. She did not have any document to prove that she handed over Rs. 20,000/- to accused Anis.
SC No.106/13 State vs. Anis & Ors. Page 22 of 38FINDINGS ON OFFENCES
26. On perusal of file, considering the arguments of Ld. Additional Public Prosecutor for State and Ld. Defence Counsel and on analyzing the evidence on record, in the light of the principles of law laid down in the case Hari Majhi Vs. The state (supra), Lakshmana Naik Vs. State by Bantwal Police, Mangalore (supra), Deelip Singh @ Dilip Kumar v. State of Bihar (supra) and Deepak Gulati Vs. State of Haryana (supra) relied on by Ld. Defence Counsel and State Vs. Jai Hind (supra) relied on by Ld. Additional Public Prosecutor, I come to the conclusion that prosecution has failed to prove its case against accused Anis beyond any reasonable suspicion and shadow of doubt that he either committed offence of abducting or inducing a woman to compel her marriage, etc. or offence of secretly and wrongfully confinement of an abducted person or offence of rape or criminal breach of trust or against other four accused persons beyond reasonable suspicion and shadow of doubt that they committed the alleged offences.
Reasons for Conclusions
27. The reasons which support my decision are SC No.106/13 State vs. Anis & Ors. Page 23 of 38 firstly, that testimony of the prosecutrix could not establish all the ingredients which are necessary for proving the case of the accused for the offences punishable under Section 365/366/368/376/406/323/34 IPC against all or any of the accused persons. The first reason which supports my decision is that her testimony has made it abundantly clear that she left her parents' house with her own will. After leaving her house on 28.04.2010, she met her mother on 30.04.2010. She declined the proposal of her mother to accompany her to her parental house instead she gave a statement to the police that she wanted to go with accused Anis and accordingly, she left with accused Anis and stayed there on her own will.
28. The second reason of my decision is that she was having freedom to go here and there even after she was living with the accused at Sahibabad. If the accused had committed sexual intercourse with her forcibly without solemnization of marriage then there is no explanation as to why she again submitted herself for the sexual intercourse or why she did not report the matter to police immediately? Instead, she opted to stay with him till the accused himself left her. This shows that there was no compulsion on the prosecutrix either to stay with the accused at Sahibabad or to have or not to have physical SC No.106/13 State vs. Anis & Ors. Page 24 of 38 relations with her.
29. The third reason of my decision is that she made vague inconsistent and contrary statement regarding giving of an amount of Rs. 1,50,000/- to the accused. In her statement, nowhere she told as to what exact amount was given to the accused on which particular date. Even otherwise, it could not be established if it was a loan amount or whether it was given to him for the purpose of expenditure as both of them were living together in a rented house away from their own houses. Likewise, the prosecutrix did not give the description of the jewellery which was given by her to accused Anis. She even failed to file any receipt or to tell its exact weight or value. Besides, none of the jewellery articles were recovered during investigation.
30. The fourth reason is that the house of the accused and the house of the prosecutrix were situated in the same locality. The house number of the prosecutrix is ___z-_ and the house number of accused is F-2/98, i.e only 6 house away from the house of each other. The area of the house as told by her is only 25 sq. yds. It is thickly populated area. It is not feasible for anyone to confine a person of that locality who is known to the local people to SC No.106/13 State vs. Anis & Ors. Page 25 of 38 confine her for a long time from 28.06.2010 to 25.08.2010. It is not a case of prosecution that her mouth was tied or she was given intoxicated pills or she was not able to raise alarm for any of the reasons. Confinement of prosecutrix for such a long time in such situation does not seems to me convincing.
31. The fifth reason for my decision is that although, the prosecutrix deposed that she was beaten repeatedly by accused persons even by dandas but when she approached the police and SI Dal Chand contacted her, he did not notice any visible injuries on her person. She was not medically examined on that day instead she was medically examined on 29.01.2011. There is no reason either for the prosecutrix or the IO for non examination of prosecutrix by the Doctor on the date when she was allegedly contacted SI Dal Chand. This has also falsified the statement of the prosecutrix.
32. Secondly, the father of the prosecutrix PW4 did not support the prosecution case and statement of the prosecutrix. He stated that he was staying in Delhi for the last 30/35 years. The prosecutrix is his third daughter. He had saved Rs. 1,50,000/- in her account for her marriage. He had also prepared some ornaments for her marriage.
SC No.106/13 State vs. Anis & Ors. Page 26 of 38Mother of accused Anis used to come to his house for stitching her clothes from her daughter, the prosecutrix. His daughter never told him regarding love affairs with accused Anis. She left her house with the accused Anis in the year 2010. After two months police informed him that his daughter, the prosecutrix was in the police station. He along with his wife went to PS Nand Nagri. They handed over the custody of his daughter to them. The ornaments were taken by the prosecutrix but he did not know as to what did happen with those ornaments? The prosecutrix did not return the ornaments to them. He did not know how prosecutrix spent Rs. 1,50,000/- which were saved for her marriage. He did not support the prosecution case and resiled form his previous statement. He was declared hostile. In cross examination by Ld. Additional Public Prosecutor he gave a contrary statement and admitted that his daughter, the prosecutrix told him to marry with accused Anis but he refused as the accused belonged to other community. He also admitted that prosecutrix left her house on 28.04.2010 with accused Anis and on 25.08.2010 police called him to the police station with his wife and found his daughter, the prosecutrix present there. He denied the suggestion that his daughter told him that accused Anis took her to Sahibabad on the pretext of marriage or that she was brought to the house of accused SC No.106/13 State vs. Anis & Ors. Page 27 of 38 Anis at Nand Nagri and she was confined in the house of accused Anis and his parents or that he was deposing falsely due to the pressure of his neighbour. In cross examination conducted by the Ld. Defence Counsel, he admitted that he did not know the name of the person with whom prosecutrix left on the day of incident. He did not file any case for disowning her daughter, the prosecutrix.
33. Thirdly, mother of the prosecutrix PW5 did not support the prosecution case and statement of the prosecutrix. She stated that her daughter, the prosecutrix was aged about 35 years and she used to stitch clothes in her house. Mother of accused present in the Court used to come to stitch clothes from her daughter. Sometimes, accused Anis used to come to her house with clothes of his mother. One day, her daughter, the prosecutrix told her to marry Anis but she declined the proposal as accused Anis belonged to another community. One day her daughter, the prosecutrix left the house with accused Anis without informing her and her family members. After two months of the incident police called them to PS Nand Nagri and her daughter, the prosecutrix was present there. Police handed over the custody of prosecutrix to them. They returned back to their house. She did not know anything more about SC No.106/13 State vs. Anis & Ors. Page 28 of 38 this case. As she did not support the prosecution case and resiled form her previous statement, so she was declared hostile. In cross examination by Ld. Additional Public Prosecutor, she denied the suggestion that she had she had talked with her daughter, the prosecutrix in the police station Nand Nagri or that she had told her that accused Anis induced her to accompany him to his house or that he had promised her to marry her or that accused Anis had taken Rs. 1,50,000/- which were saved in her account or that the ornaments of her daughter, the prosecutrix were also taken by accused Anis. Thus, the mother of the prosecutrix also failed to support the prosecution case.
34. Fourthly, the inconsistencies found in the testimony of the prosecutrix and other prosecution witnesses are material. For example, on the point of committing sex first time and frequency of sexual intercourse, the prosecutrix in her report Ex. PW1/A mentioned that accused took her from her house on the pretext to marry her on 28.04.2010 and they went to Indira Garden, U.P. where accused used to commit rape on her every day. In the Court as PW1, she deposed that accused used to commit sexual intercourse with her without her consent after an interval of 2/3 days.
SC No.106/13 State vs. Anis & Ors. Page 29 of 3835. On the point of informing her parents about their love affairs, PW1 in her report Ex. PW1/A mentioned that she told her family members for their marriage but they opposed. As PW1, she stated that she told to her parents in February, 2010 regarding her love affairs with the accused and that she was interested to marry with the accused Anis but her parents refused on the ground that he belonged to another community. Father of prosecutrix, PW4 on this aspect deposed that the prosecutrix never told him regarding her love affairs with the accused Anis.
36. On the point of marital status of the accused Anis, the statement of prosecutrix is inconsistent. In her report, PW1/A she has failed to mention the marital status of accused Anis. Same is the position in her statement Ex. PW1/B recorded by Ld. Metropolitan Magistrate. In her examination in chief, PW1 has also failed to tell marital status of accused Anis. In the cross examination, she admitted that accused Anis was a married man on the date when she eloped with him. She told name of his wife as Afsana and explained that she knew the fact of marriage of the accused Anis before leaving with him.
37. On the point of handing over money to accused Anis, she mentioned in her report Ex. PW1/A that she SC No.106/13 State vs. Anis & Ors. Page 30 of 38 withdrew money from her bank and gave about Rs. 1,50,000/- to accused Anis. In her statement Ex. PW1/B made before Ld. Metropolitan Magistrate she stated that in the year 2008, she came to know the accused and when she developed deep love for him after some time, he started borrowing money from her. Sometimes, she gave Rs. 20,000/-, sometimes she gave Rs. 50,000/- and in the month of January, 2010, she gave Rs. 60,000/- to him. Same is the position of her statement made in the Court as PW1.
38. On the point of time when the prosecutrix came to know the accused Anis, PW1 in her examination in chief stated that she knew accused Anis in the year 2008. In cross examination she stated that mother of accused Anis used to stitch clothes by her since the year 2004. She knew accused Anis from her childhood.
39. In view of the inconsistencies and contradictions found in the testimonies of the prosecution witnesses and particularly discussed herein above, I am of the view that these contradictions which are major in nature creates reasonable suspicion and shadow of doubt about truthfulness of the prosecution case.
SC No.106/13 State vs. Anis & Ors. Page 31 of 3840. My decision in this regard finds support by principles of law laid down in a case of Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC) wherein the Apex Court observed that:
"17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)"
41. Fifthly, the delay in reporting the matter to police has not been properly explained. PW1 deposed that she left with the accused on 28.04.2010. In cross examination, she stated that on 29.04.2010, she accompanied accused Anis to Sahibabad by auto. In between 28.04.2010 and 22.06.2010, she came to Delhi only once to meet her mother on 30.04.2010 at GTB Enclave. Her mother requested her to accompany her but she refused. Her elder brother informed the police on number 100. Police arrived there and recorded her statement. She told the IO that she had voluntarily accompanied the accused Anis to Sahibabad. She returned from the house of accused persons on 22.06.2010. She informed the police by dialing number 100. On perusal of SC No.106/13 State vs. Anis & Ors. Page 32 of 38 report Ex. PW1/A, I find that it is dated 28.01.2011. Thus, there is long unreasonable and unexplained delay in lodging the FIR. This has further created the reasonable suspicion and shadow of doubt in the trustfulness of prosecution case.
42. My decision in this regard finds support by principles of law laid down in a case Jagdish v. State, (Delhi), 1987(1) R.C.R.(Criminal) 613, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or SC No.106/13 State vs. Anis & Ors. Page 33 of 38 concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to."
43. Sixthly, the conduct of the prosecutrix has been found as unnatural. As mentioned above, the prosecutrix was aware that accused Anis was a married man. Even then, she eloped with him with the assurance that accused Anis would marry her. It is not a case of the prosecution that the accused ever assured her that he would divorce his first wife and then marry her or she would convert to Muslim religion and then the accused Anis would marry her. She also told that accused Anis had been making physical relations with her every time assuring her that he would marry her but he failed to marry. She could have immediately report the matter to the police regarding his failure to marry her particularly when she admitted that she was having liberty to go to the market along with lady who was residing in the neighbourhood and she was also aware about land line phone of her parents and mobile phone of her brother. This unnatural conduct of the SC No.106/13 State vs. Anis & Ors. Page 34 of 38 prosecutrix has also demolished the prosecution case.
44. Seventhly, the prosecution could not achieve the standard of proving its case as laid down in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
45. Eightly, the evidence on record and particularly discussed herein above, entitles the accused persons to get benefit of doubt.
46. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove SC No.106/13 State vs. Anis & Ors. Page 35 of 38 their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
47. Ninthly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
48. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused persons are given benefit of doubt as the prosecution has failed to prove its case against them beyond any reasonable suspicion or shadow of doubt.
SC No.106/13 State vs. Anis & Ors. Page 36 of 38CONCLUSION
49. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove its case, beyond reasonable suspicion and shadow of doubt against the accused Anis that he either committed the offence of abducting or inducing a woman to compel her for marriage, etc. punishable u/s 366 IPC; offence of secretly and wrongfully confinement of an abducted person punishable u/s 365 IPC; or offence of rape punishable u/s 376 IPC or offence of criminal breach of trust punishable u/s 406 IPC. The prosecution has also failed to prove its case against the accused persons namely Munshi Khan, Kanij, Shamim and Nafis beyond reasonable suspicion and shadow of doubt that they all or any of them in furtherance of their common intention committed offence of wrongful confinement of the prosecutrix punishable under Section 368/34 or offence of voluntarily causing hurt to the prosecutrix punishable under Section 323/34 IPC. Resultantly, accused Anis is acquitted for the offences punishable u/s 365/366/376/406 IPC by giving him benefit of doubt and accused persons Munshi Khan, Kanij, Shamim and Nafis are acquitted for the offences punishable under Section 368/323/34 IPC by SC No.106/13 State vs. Anis & Ors. Page 37 of 38 giving them benefit of doubt.
50. However, accused persons are directed to furnish within seven days their personal bond for a sum of Rs.20,000/- with one surety each of like amount as per provisions of Section 437A of the Code for a period of six months.
51. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court
Dated: 09.12.2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
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