Delhi District Court
State vs . Mohd. Amir on 25 February, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 67/12)
Unique ID case No. 02404R0214072012
State Vs. Mohd. Amir
FIR No. : 249/12
U/s : 363/366/376/202 IPC
P.S. : Narela Ind. Area
State Vs. 1 Mohd. Amir
s/o Mohd. Mustafa
r/o C74, Near Aam Ka Bagicha,
J.J. Colony, Bawana,
Narela.
2 Tarranum
w/o Mohd. Amir
r/o C74, Near Aam Ka Bagicha,
J.J. Colony, Bawana,
Narela.
Date of institution of case 14.08.2012
Date on which, judgment has been reserved25.02.2013
Date of pronouncement of judgment 25.02.2013
JUDGMENT:
1 Briefly stated the case of the prosecution is that on 17.05.2012 complainant / SC No. 67/12 State Vs. Mohd. Amir Page Nos. 1 of 21 2 prosecutrix came to P.S. along with her mother and made a complaint that on 14.05.2012 at about 3:00 PM, Cheeni, sister of accused Mohd. Amir s/o Mohd. Mustafa, came to her and told her that her brother was calling her. When prosecutrix went to house of accused Mohd. Amir, he enticed her and took her with him to Khajuri, Delhi, on the pretext of marrying her. At the said place accused Mohd. Amir raped the prosecutrix against her wishes and at that time, wife of accused Mohd. Amir was also present. Prosecutrix stated that she was much disturbed by the incident and hence, could not tell anything to anyone at her house. However, later she told about the incident at her home. She prayed that action be taken against accused Mohd. Amir and other persons responsible for the incident.
2 The prosecutrix was taken to SRHC Hospital where her MLC Ex.PW6/A was prepared. The prosecutrix was got counseled through NGO in the hospital itself. Thereafter on complaint made by the prosecutrix case FIR No.249/12 u/s. 363/366/376/202 IPC was registered at P.S. Narela against the accused persons. 3 During the course of investigations, IO inspected the place of incident and prepared site plan Ex.PW13/B. She also recorded statement of witnesses. Accused Mohd. Amir was arrested in the present case on 17.05.2012. He was got medically examined at SRHC Hospital and on his pointing out memo of place of occurrence was prepared vide Ex.PW11/C. 4 On 18.05.2012 the statement of prosecutrix was got recorded u/s.164 CrPC. On 13.07.2012 accused Tarranum, wife of accused Mohd. Amir was also arrested in the SC No. 67/12 State Vs. Mohd. Amir Page Nos. 2 of 21 3 case. During the course of investigations, prosecutrix was got examined by Medical Board for determination of her age. After completion of the investigation, the charge sheet was prepared and filed in the court for trial.
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 Mohd. Amir and charge for the offence under Section 202 IPC was framed against the accused Tarranum. However, both the accused persons 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 14 witnesses : 7 PW1 Smt. Kamlesh is the landlady of the room where the accused Mohd. Amir is alleged to have taken the prosecutrix and thereafter raped her. This witness deposed that on 17.05.2012 accused Mohd. Amir had come to her and had taken a room on rent and that he was accompanied by two women, one of whom was pregnant, and that he told PW1 that pregnant lady was his wife and the other lady was his sister inlaw (Sali), who had come to take care of his wife. The PW1 rented out one room to the accused at monthly rent of Rs.1000/ per month and accused gave her advance of Rs.300/ and assured her that he would pay the balance amount soon. The PW1 further deposed that on the next day at about 12:00 midnight Police came to inquire from her about the accused and that she told the Police that accused would be in her room and that when they went to the said rented room, accused Mohd. Amir was not found there and on inquiry from other tenants, she came to know that accused had left but they SC No. 67/12 State Vs. Mohd. Amir Page Nos. 3 of 21 4 also did not know as to when accused had left. PW1 stated that she did not know what wrong act had been committed by the accused. PW1 identified accused Mohd. Amir as well as his wife / accused Tarranum and stated that accused Tarranum was pregnant when had come with accused Mohd. Amir for taking a room on rent. 8 In her crossexamination, PW1 deposed that she did not execute any rent agreement with her tenants nor was she issuing any rent receipts for the rent / part rent taken by her. PW1 denied that she had not rented out any room to the accused. 9 The PW3, Babita, is the mother of the prosecutrix. She deposed that she was having six daughters and one son and that prosecutrix was her third born child and that at the time of the incident, she was aged about 14 years. The PW3 further deposed that on 14th day of 5th month of the year when she appeared to depose before the Court (PW3 appeared to depose before the Court on 13.12.2012), accused Mohd. Amir had taken away her daughter i.e. the prosecutrix and that daughter of PW3 told her that at that time accused Tarranum, wife of accused had come to call her. When PW3 did not find her daughter despite search, she inquired from mother of accused, who first stated that she did not know anything but when PW3 persisted, she brought back prosecutrix and handed her over to PW3 on 15th of 5th month at about 12:00 Noon. The PW3 further stated that her daughter told her that accused had taken her to a room and there he sent his wife out of the room and committed rape upon her and that when prosecutrix told her everything after coming back PW3 took her to PS for filing her complaint. The prosecutrix was also taken to hospital for medical examination and PW3 accompanied her to the hospital. The PW3 identified both the accused persons.
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10 During her crossexamination PW3 stated that she did not remember the
date of her marriage or the number of years for which she had been married or her age at the time of marriage. She further stated that all her children were born at home and that she did not get entry of their date of birth recorded with MCD. She then stated that she was illiterate.
11 During her further crossexamination PW3 deposed that her children had gone to school and that prosecutrix had also studied in a school upto 5th Class and that PW3 herself had got prosecutrix admitted in school and filed her affidavit regarding her date of birth. She, however, stated that the date of birth was written in the said affidavit by the teacher of the school in which prosecutrix was studying. In her further cross examination PW3 stated that she did not know accused Mohd. Amir and Tarranum from before and that they were staying far away from their house. She further stated that she was doing work of Dai (Delivery woman) and was usually away from home in connection with her work and that on the day when prosecutrix went amiss, she had gone for work and that all her younger children had gone to school and that prosecutrix was alone in the house. She also stated that her neighbour Jaiwaria had accompanied her to PS on the day when she went to file complaint and that his statement was also recorded by the Police. The PW3 denied that accused Mohd. Amir had quarrel with her son and so he had been falsely implicated in the case.
12 The PW4 is the prosecutrix. She deposed that she was residing at house No. C631, CBlock, J.J. Colony, Bawana, Delhi, with her parents, two brothers and five SC No. 67/12 State Vs. Mohd. Amir Page Nos. 5 of 21 6 sisters and that on 14th of 5th month of the year 2012, Cheeni, sister of accused Mohd. Amir, came to her house in the evening to call her stating that her brother was calling PW4. The PW4 further stated that said Cheeni took her to Khajuri to a rented house. She again said that Cheeni took her half way to her brother and then left and that she was taken to Khajuri by accused Mohd. Amir and his wife Tarranum to a rented house. The PW4 then deposed that she told accused Mohd. Amir and his wife that she wanted to go home but they did not allow her to go and that they all slept in the said room. She then deposed that accused Mohd. Amir opened the string of her salwar and when his wife Tarranum objected to it, he gave beatings to his wife. She then stated that accused Mohd. Amir opened chain of his trouser, "Usne apni pesab karne ki jagah, mere pesab karne ki jagah me dal di, muje dard hua aur khoon aya. Maine use bola, muje bacha thahar jayega, to usne kaha, kuch nahi hooga" and that at that time accused Tarranum was also there but she did not save PW4. In the morning, accused Mohd. Amir went for his work while accused Tarranum stayed back. Mother of accused Mohd. Amir came to that place at about 1:00 in the afternoon and took PW4 back to her house at about 2:00 PM and that PW4 told everything to her mother, who in turn told everything to the Police. The prosecutrix was shown the complaint from the judicial file and identified her thumb impression at point "A" on the complaint Ex.PW4/A. She then deposed that the clothes which she was wearing at the time of incident, were seized by the doctor, who examined her and that she had also gone to the Court and given statement before learned MM. She proved her statement u/s.161 CrPC as Ex.PW4/A. The arrest and personal search memo of accused Mohd. Amir were proved as Ex.PW4/C and Ex.PW4/D respectively while the arrest and personal search memo of accused Tarranum were proved as Ex.PW4/E and Ex.PW4/F respectively.
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13 During her crossexamination PW4 deposed that she did not know accused
Mohd. Amir, his wife Tarranum, sister Cheeni and mother from before and that Cheeni had told her name to PW4 when she came to call her and that prior to this incident, she had never gone on asking of unknown person. Specific question was to be put to PW4 as to why accompanied Cheeni on that day even though she do not know Cheeni, accused Mohd. Amir, accused Tarranum, PW4 replied by stating that she had been threatened. She improved upon to state that she was threatened by accused Mohd. Amir and not by Cheeni.
14 During her further crossexamination, contrary to what had been stated by PW4 earlier, she stated that she knew accused Mohd. Amir from before and that on the day of incident she was filling water from tap in front of their house and that at that time accused Mohd. Amir came and told her to accompany him and that PW4 went with him without knowing what he wanted and slept in his house. She also stated that accused Mohd. Amir was staying 3 - 4 galis away from her house and that she had never slept at the house of accused Mohd. Amir before and that she was not knowing that wife of accused Mohd. Amir would make her sleep in her house. She also stated that mother of accused Mohd. Amir was staying separately from him and his wife and that mother of PW4 knew mother and wife of accused Mohd. Amir from before. During her further crossexamination PW4 stated that she had studied upto 5th Class in a school and had stopped studying at the instance of accused Mohd. Amir. She then improved her statement to state that she had left studies because she went to her village. She then again stated that she had left studies two years ago as accused Mohd. Amir told her not SC No. 67/12 State Vs. Mohd. Amir Page Nos. 7 of 21 8 to study. PW4 denied that accused Mohd. Amir had taken her with him as he knew PW4 and her family from before and that since the family members of PW4 were not told where PW4 was going they started searching for her and later when brother of PW4 found her, he had quarrel with accused Mohd. Amir and threatened to implicate accused Mohd. Amir in a false case.
15 PW8, Ms. Mukta, is a member of NGO Child Labour Welfare Society and had gone to SRHC Hospital on 16.05.2012 at asking of the IO to counsel the prosecutrix and deposed regarding the same.
16 During her crossexamination, PW8 stated that a child victim is counseled to speak truth only to ensure that there is no tutoring when the statement of the victim child is recorded. She, however, termed it correct that in the present case when she met the victim child her statement had already been recorded. She also termed it correct that once the child is tutored to give statement in a particular manner then the child keeps repeating the said version without actually telling the truth. 17 PW6, Dr. Swapneel, had examined the prosecutrix and prepared her MLC. He deposed that on 16.05.2012 prosecutrix was brought by Police for examination at about 11:15 PM and gave history of physical assault by person named Mohd. Amir on 14.05.2012 at 5:00 PM and that on physical examination of patient, he did not find any evidence of external injuries and on gynecological examination also he did not find any injury and that the hymen of prosecutrix was "cribriform". He proved the MLC of prosecutrix as Ex.PW6/A. A Court question was asked from the witness to clarify the SC No. 67/12 State Vs. Mohd. Amir Page Nos. 8 of 21 9 medical term Cribriform which was answered by the witness by stating that such type of hymen is found in person habitual of sexual intercourse.
18 PW5, Dr. Mazhar Hussain, was deputed by M.S. SRHC Hospital to depose in place of Dr. Manjul Bijarnia, who had examined the accused and prepared his MLC. He proved the MLC of accused as Ex.PW5/A by identifying the handwriting and signatures of Dr. Manjul Bijarnia and stated that as per observations given thereupon there was no physical findings suggestive of that patient is incapable of sexual intercourse.
19 PW12 Sh. Manish Khurana, learned MM, had conducted the proceedings u/s.164 CrPC and proved the said proceedings as Ex.PW12/A to Ex.PW12/C i.e. the application of the IO as Ex.PW12/A, statement of the prosecutrix as Ex.PW4/B, certificate given by him as Ex.PW12/B and endorsement allowing application filed by IO for supply of copy of statement as Ex.PW12/C. 20 PW2, HC Chetan Kumar, was posted as Duty Officer at P.S. Narela at the relevant time. He proved the computerized copy of FIR as Ex.PW2/A and endorsement made by him on rukka as Ex.PW2/B. 21 PW13, ASI Krishna, is the IO of the case. She deposed that on 16.05.2012 she was posted at P.S. Narela and that on that day prosecutrix and her mother came to PS and met her and that she recorded the statement of prosecutrix Ex.PW4/A and that thereafter she along with Constable Raj Bala, prosecutrix and her mother went to SRHC SC No. 67/12 State Vs. Mohd. Amir Page Nos. 9 of 21 10 Hospital for medical examination of the prosecutrix. After medical examination PW13 obtained the MLC of the prosecutrix as well as the samples taken from the victim in the sexual assault kit and seized the same vide memo Ex.PW7/A. The PW13 further stated that she made endorsement on the statement of prosecutrix vide Ex.PW13/A and handed it over to Ct. Raj Bala for registration of the case and that in the meantime, she along with prosecutrix and her mother went to C363, J.J. Colony, Bawana, Narela, where PW13 prepared site plan Ex.PW13/B at the instance of the prosecutrix and that in the meantime Ct. Raj Bala came to the spot and handed over original rukka and computerized copy of FIR to PW13. The PW13 further deposed that on 17.05.2012 at about 4:00 PM, she and Ct. Narayan reached at the house of prosecutrix and from there they both, along with the prosecutrix, went to the house of the accused at C74, Near Aam Ka Bagicha, J.J. Colony, Bawana, Delhi and there accused Mohd. Amir was arrested at the pointing out of the prosecutrix vide memo Ex.PW4/C and was personally searched vide memo Ex.PW4/D and his disclosure statement was recorded vide memo Ex.PW11/A and that thereafter accused was taken to SRHC Hospital for medical examination and after his medical examination, one sealed pullanda, sealed with the seal of hospital, handed over by the concerned doctor, was seized vide memo Ex.PW11/B. The PW13 then deposed that on 13.07.2012 she along with SI Seema reached house of prosecutrix where prosecutrix also joined investigations with them and they reached at C45 jhuggi, Near Aam Ka Bagicha, J.J. Colony, Bawana, Delhi, where accused Tarranum was arrested at the instance of prosecutrix vide arrest memo Ex.PW4/B and was personally searched vide memo Ex.PW4/F and her disclosure statement was recorded vide memo Ex.PW10/A. Accused Tarranum was also got medically examined at hospital and then brought back to PS and put up in lock up.
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22 On 18.05.2012 PW13 moved an application Ex.PW12/C for recording of
statement of statement of prosecutrix u/s.164 CrPC and on 28.05.2012 PW13 deposited the samples of the present case, after taking the same from MHCM, at FSL Rohini. 23 During her crossexamination PW13 denied that she had not investigated the case properly or that accused had been falsely implicated in the case at the instance of prosecutrix due to enmity with the brother of the prosecutrix. 24 PW10, W/PSI Seema, had joined investigations with IO on 13.07.2012 during the arrest of accused Tarranum and deposed regarding the same. 25 During her crossexamination PW10 stated that in her presence IO had inquired from prosecutrix whether she knew family of accused Mohd. Amir and accused Tarranum from before or not and that prosecutrix had stated that she knew them since one year prior to the incident.
26 PW7, Lady Ct. Rajbala, had taken the prosecutrix for medical examination on 16.05.2012 to SRHC Hospital and deposed regarding the same. She proved her signatures on seizure memo of the samples given to IO by the concerned doctor after examination of the prosecutrix.
27 PW11, Ct. Narayan Singh, had joined investigations with the IO on
17.05.2012 at the time of arrest of accused Mohd. Amir. He had again joined
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investigations with the IO on 18.05.2012 when accused Mohd. Amir had pointed out the place of incident to the IO. He identified his signatures on various memos prepared by the IO.
28 During his crossexamination PW11 deposed that prosecutrix and her family knew family of accused persons as well as the accused persons since before as they were residing in the same jhuggi cluster and were neighbourers. He also deposed that he was posted in the Beat over there about one year ago and had seen them meeting and talking to each other as neighbourers and that there were MCD taps installed in the locality and many persons had put their own submersible motors and installed taps in their jhuggies and that jhuggi cluster where prosecutrix and accused were residing is thickly populated.
29 PW9, HC Rajesh, was posted as MHCM at P.S. Narela at the relevant time. He produced Register No.19 and proved the relevant entries of deposit of samples and other articles at Malkhana and about sending them to FSL as Ex.PW9/A to Ex.PW9/C. 30 PW14, SI Santosh Kumari, is also one of the IOs of the case, who had recorded the statement of mother of the prosecutrix and after completing investigations filed the charge sheet in the Court and deposed regarding the same. 31 PW15, Dr. Rajiv Ranjan, is the Chairperson of the Medical Board which had examined the prosecutrix for assessment of her medical age. He deposed that after radiological, physical and dental examination of the prosecutrix, the Medical Board SC No. 67/12 State Vs. Mohd. Amir Page Nos. 12 of 21 13 opined her estimated age to be more than 17 and less than 18 years as on the date examination report was prepared i.e. 13.08.2012. He proved the said report as Ex.PW15/A. 32 After closing of prosecution evidence, statement of accused Mohd. Amir and Tarranum were recorded u/s 313 Cr.P.C. Accused persons stated that they are innocent and had been falsely implicated in the case due to enmity between accused Mohd. Amir and the brother of the prosecutrix. The accused persons declined to lead evidence in their defence.
33 Arguments have been addressed by learned Amicus Curie for the accused persons as well as learned Additional PP for the State.
34 Learned Additional PP has contended that prosecutrix has fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and has accordingly prayed that accused Mohd. Amir be convicted u/s.363/366/376 IPC and accused Tarranum be held guilty of offence u/s.202 IPC.
35 Learned Amicus Curie for the accused on the other hand has contended that prosecutrix was a major as on the date of incident and that accused persons have been falsely implicated in the case due to enmity between the brother of the prosecutrix and the accused Mohd. Amir. It is further stated that the prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt as their only SC No. 67/12 State Vs. Mohd. Amir Page Nos. 13 of 21 14 material witness i.e. prosecutrix is an unreliable and untrustworthy witness who has repeatedly changed her version and thus accused persons are entitled to be acquitted of all charges in the present case and it is prayed accordingly. 36 I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie for the accused Mohd. Amir and Tarranum 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.
37 In the present case accused Mohd. Amir is facing trial for having kidnapped prosecutrix, a minor aged about 14 years, out of keeping of her lawful guardian i.e. her parents without their consent and further for having taken the prosecutrix to a room situated at Khajuri with intent to force her or seduce her to have illicit intercourse with him or to compel her to marry him and further for having forcibly raped the prosecutrix against her wishes. Accused Tarranum is stated to have intentionally omitted to give information regarding commission of offence by her husband and is facing charge for offence punishable u/s.202 IPC. There is no documentary proof of age of the prosecutrix placed on record by the prosecution. Even though prosecutrix as well as her mother have stated that prosecutrix had studied in the school upto 5th class but no such document from the school was obtained by the IO and placed on record in support of the claim that prosecutrix was aged about 14 years at the time of incident. The prosecutrix was examined by the Medical Board at BSA Hospital and the Medical Board which examined the prosecutrix on 13.08.2012 i.e. within three months of the date of incident which took place on 14.05.2012, opined the age of prosecutrix to be more than 17 years SC No. 67/12 State Vs. Mohd. Amir Page Nos. 14 of 21 15 and less than 18 years. There is nothing on record to doubt the report of the Medical Board and hence the age of the prosecutrix is taken to be above 17 years but less than 18 years as on the date of commission of offence.
38 The prosecutrix is the sole witness to testify regarding the role played by accused Mohd. Amir and his wife Tarranum in the incident of her kidnapping and subsequent rape by accused Mohd. Amir. This witness has, however, changed her version from time to time and made considerable improvements in her testimony. In her complaint Ex.PW4/A prosecutrix stated that on 14.05.2012 Cheeni, sister of accused Mohd. Amir, came to her house and told her that her brother accused Mohd. Amir was calling her and when she reached house of accused Mohd. Amir, he enticed her away stating that he wanted to marry her and took her to Khajuri, Delhi, where he committed rape upon her against her wishes in presence of his wife Tarranum. The prosecutrix does not state how she returned to her house but stated that she was so disturbed about the incident that she could not tell about the incident but later she told her mother about the incident and lodged complaint.
39 The case FIR in the present case was registered on 17.05.2012 after about 3 days of the incident. The statement of prosecutrix Ex.PW4/B was recorded u/s.164 CrPC by PW12 Sh. Manish Khurana, learned MM, on 18.05.2012. In her said statement the prosecutrix deposed that on 14.05.2012 she was returning from factory after collecting money and that Cheeni, sister of accused Mohd. Amir, called her and took her to a Barber shop. At the said shop, prosecutrix met a friend of accused Mohd. Amir, who took her to Khajuri, where accused Mohd. Amir was staying in a rented SC No. 67/12 State Vs. Mohd. Amir Page Nos. 15 of 21 16 accommodation. Accused Mohd. Amir also came there and threatened her in front of his wife to open string of her salwar and threatened to beat her if she did not open her salwar. She specifically stated that wife of accused i.e. accused Tarranum did not say anything as accused Mohd. Amir used to threaten her too (Dara Kar Rakha Tha). Thereafter accused committed wrong act with her. She remained with accused till morning as accused did not permit her to leave. In the morning, mother of accused Mohd. Amir came and left prosecutrix at her house.
40 When prosecutrix appeared to depose before the Court as PW4, she made further improvements in her testimony stating that on the day of incident Cheeni, sister of accused Mohd. Amir, came to her house and took her to Khajuri to rented house of the accused. She then improved upon her statement to state that Cheeni had taken her half way to her brother and then she was taken to Khajuri by accused Mohd. Amir and his wife Tarranum and that prosecutrix told accused Mohd. Amir and his wife Tarranum that she wanted to go home but they did not allow her to do so and then they all slept in the said room. She further stated that accused Mohd. Amir opened string of her salwar and at that time accused Tarranum, wife of accused Mohd. Amir, objected but she too was given beatings by the accused Mohd. Amir and thereafter accused Mohd. Amir raped her and accused Tarranum did not try to save her. She also stated that in the morning mother of accused Mohd. Amir came and brought PW4 back to her house and that PW4 told her mother everything, who took her to PS where PW4 filed her complaint. 41 From the crossexamination of the prosecutrix, as already reproduced in brief hereinabove, it is brought out that contrary to what had been put forth, prosecutrix SC No. 67/12 State Vs. Mohd. Amir Page Nos. 16 of 21 17 and her family knew the family of accused Mohd. Amir from before. Further prosecutrix also states that she had never gone on asking of unknown person prior to the day of incident but when a specific question was asked why she had accompanied Cheeni, sister of accused Mohd. Amir, on that day, prosecutrix stated that she had gone because she was threatened by her. She then improved upon to state that she was threatened by accused Mohd. Amir and not by his sister Cheeni. From the further cross examination of prosecutrix, it appears that she was having certain intimacy with accused Mohd. Amir as she claims that she had left studies in 5 th Class at the instance of accused Mohd. Amir. The mother of the prosecutrix, who was examined as PW3 has again taken pains to state that her family was not knowing family of accused Mohd. Amir and accused Tarranum from before. She also stated that she had been told by prosecutrix that accused Tarranum, wife of accused Mohd. Amir, had come to call her. There is also no explanation as to when the prosecutrix had narrated about the incident to her mother though it is brought out that prosecutrix returned back to her house on the next day after the day she had gone missing. Rather the mother of prosecutrix states that after coming back prosecutrix told her everything and she took her to PS to file the complaint. Since the prosecutrix had gone missing from her house on 14.05.2012 and had returned back to her house on next day, the Police complaint ought to have been filed on 16.05.2012, however, the same has been filed on 17.05.2012 and the delay in filing of the FIR does not stand explained in these facts and circumstances. Further considerable improvements have been made by the prosecutrix as to the manner in which she was taken away from her house. At one place she states that she was called by the sister of the accused Mohd. Amir and at the other, during her crossexamination, she states that she was called by accused Mohd. Amir while she was filling water from SC No. 67/12 State Vs. Mohd. Amir Page Nos. 17 of 21 18 tap outside her jhuggi. The prosecutrix on the other hand told her mother that it was accused Tarranum, who had come to take her away from her house. It is also stated by prosecutrix in her complaint Ex.PW4/A that accused Mohd. Amir had enticed her away on the pretext of marrying her but in her subsequent statement before learned MM i.e. Ex.PW4/B and her statement as PW4 before the Court, prosecutrix does not state anything about being enticed away for marriage by the accused Mohd. Amir. Moreover the role alleged to have been played by accused Tarranum also is not clearly made out from the statements made by the prosecutrix. In one of her statements, she states that wife of accused Mohd. Amir could not do anything as she was herself threatened by accused Mohd. Amir (Dara Kar Rakha Tha) and in the other she states that when accused Tarranum tried to stop her husband, he gave her beatings too. It is noteworthy that at the time of the incident accused Tarranum was 8 months pregnant and in these circumstances if she was being beaten and threatened by her husband, accused Mohd. Amir, as has been stated by the prosecutrix, then it is possible that out of fear of safety of child in her womb, she could not act further. At least she could not have physically obstructed her husband in any manner. Further as per the prosecution case the prosecutrix was taken to a rented accommodation where number of other persons were staying on rent. The prosecutrix was not shown to PW1 Smt. Kamlesh, landlady of the rented house to ascertain if she was the same girl, who had been brought by accused Mohd. Amir and his wife Tarranum when they took accommodation on rent from PW1. The other tenants residing in vicinity have also not been put forth to establish the identity of the prosecutrix as the girl, who was taken to the rented accommodation by accused Mohd. Amir and Tarranum on the day of the incident. The accused persons have taken a defence that since accused Tarranum was in family way accused Mohd. Amir has SC No. 67/12 State Vs. Mohd. Amir Page Nos. 18 of 21 19 taken his sisterinlaw (sali) to the rented accommodation so that she could take care of accused Tarranum. It is thus possible that prosecutrix was never taken to the rented accommodation by the accused Mohd. Amir and Tarranum.
42 It is well settled law that the conviction of the accused persons can be based on sole testimony of the prosecutrix provided it inspires confidence and is found unblemished and untainted by extraneous factors. In the present case the testimony of the prosecutrix is full of embellishments and improvements and does not inspire confidence. In these circumstances some corroboration of testimony of prosecutrix was required, however, neither the medical evidence supports the testimony of prosecutrix nor the FSL report has been produced before the Court in this regard. The other witness examined by prosecution namely PW3 Smt. Babita, mother of prosecutrix, has contradicted the testimony of prosecutrix on several material points like the person, who had come to call the prosecutrix from the house, the intimacy and proximity of their family with the family of the accused persons and the date of filing of complaint with the Police.
43 It has been held in para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled SC No. 67/12 State Vs. Mohd. Amir Page Nos. 19 of 21 20 with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
44 It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : "There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
45 In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it is doubtful that prosecutrix had at all gone with the accused persons or that their instance and even otherwise it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of SC No. 67/12 State Vs. Mohd. Amir Page Nos. 20 of 21 21 kidnapping and rape of prosecutrix does not stand proved.
46 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 Mohd. Amir had kidnapped prosecutrix on 14.05.2012 out of lawful guardian of her parents or that he had kidnapped the prosecutrix with intent to force her or seduce her to have illicit intercourse or that he had compelled prosecutrix to marry him or that he had committed rape upon prosecutrix without her consent and against her wishes. Prosecution has also failed to prove that rape was committed by accused Mohd. Amir in presence of accused Tarranum and that accused Tarranum intentionally omitted to give information in respect of the commission of the said offence. Accordingly, I acquit accused Mohd. Amir of the charged offences u/s. 363/366/376 IPC giving him benefit of doubt and accused Tarranum of the charged offence u/s.202 IPC giving her benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 25.02.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 67/12 State Vs. Mohd. Amir Page Nos. 21 of 21
22
FIR No. 249/12
P.S. Narela Ind. Area
23.02.2013
Present: Ld. Addl. PP for the State.
Accused Mohd. Amir produced from J.C.
Accused Tarranum on bail.
Ms. Dhaneshwari, learned Amicus Curie for both accused persons. Arguments heard.
Be listed for judgment on 25.02.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 23.02.2013 25.02.2013 Present: Ld. Addl. PP for the State.
Accused Mohd. Amir produced from J.C. Accused Tarranum on bail.
Ms. Dhaneshwari, learned Amicus Curie for both accused persons. Vide separate judgment, announced today in the open Court, accused Mohd. Amir and Tarranum have been acquitted of the charged offence.
Accused Mohd. Amir is in custody, be released, if not wanted in any other case.
Accused Tarranum requests that her previously furnished bail bond may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, SC No. 67/12 State Vs. Mohd. Amir Page Nos. 22 of 21 23 previous bail bond of the accused Tarranum 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 25.02.2013 SC No. 67/12 State Vs. Mohd. Amir Page Nos. 23 of 21