Delhi District Court
State vs . Safiq S/O Sh. Abu Tahir on 22 April, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 55/13
Unique Case ID No.02405R006392012
State Vs. Safiq s/o Sh. Abu Tahir
R/o House No.162, C-Block,
Roshan Pura, Najafgarh,
New Delhi.
Date of Institution :05.03.2012.
FIR No.259 dated 17.12.2011.
U/s. 363/366/376 IPC
P.S. Chhawla
Date of reserving judgment/Order :20.04.2013.
Date of pronouncement :22.04.2013.
JUDGMENT
1. Accused has been charge sheeted by the Police for having committed the offence punishable u/s 363/366/376 IPC.
2. The prosecution's case is that a missing report was lodged regarding disappearance of prosecutrix namely A.K. (her real name has been withheld in order to protect her identity) on 16.12.2011. The information about her disappearance was given by her mother i.e. complainant Mrs. Sakatun when she visited Police Station on 17.12.2011. Her statement was recorded by SI Vikas Yadav wherein she stated that she is a junk dealer. She further stated that on 16.12.2011, her daughter A.K. had left her house at 11 am for collection of junk but she did not return thereafter. She searched for her at her own end but without any success. She also expressed suspicion that a boy named Shafiq may have enticed away her daughter.
SC No.55/13 Page 1 of 113. It is further the case of the prosecution that SI Vikas Yadav got the FIR registered on the basis of aforesaid statement of the complainant and started the investigation himself. During the course of investigation, the prosecutrix as well as the boy named Shafiq were apprehended from Dhansa Bus Stand Najafgarh at the instance of complainant. Statement u/s 161 Cr.P.C. of the prosecutrix was got recorded and she was sent to Nari Niketan for safe custody. The statement u/s 164 Cr.P.C. of the prosecutrix was got recorded on 24.12.2011 wherein, she stated that accused Shafiq was on visiting terms to their house. On 16.12.2011, she had gone near BDO office at 11 am where Shafiq met her who was on a motorcycle and offered her to drop her home. She stayed on the motorcycle and took her to village Pataudi where they stayed in his brother's house. Next day, accused solemnised nikah with her by force and during the same night, accused committed sexual intercourse with her forcibly. Thereafter he gave threats to her. She had talked on phone to her mother on 22.12.2011. Thereafter she returned to Najafgarh alongwith the accused where police apprehended them.
4. On the basis of aforesaid statement of the prosecutrix, Section 366/376 IPC was added to the FIR and further investigation was handed over to ASI Saroj Bala. ASI Saroj Bala obtained one day's PC remand of the accused, during the course of which, he got recovered the motorcycle used by him in kidnapping the prosecutrix. She obtained copy of the Nikahnama from the Maulvi who had solemnised the Nikah and recorded the statements of various witnesses u/s 161 Cr.P.C. The bone age determination test of the prosecutrix was got conducted on 24.1.2012. After the SC No.55/13 Page 2 of 11 completion of the investigation, charge sheet was laid before the concerned ld. Magistrate who committed the case to the Court of Sessions.
5. Upon committal of the case to the court of Sessions, charges for having committed the offences punishable u/s 363, u/s 366 IPC and u/s 376IPC were framed against the accused on 4.4.2012. The accused pleaded not guilty to the said charges and accordingly the trial was held. The prosecution has examined 16 witnesses to prove the charges against the accused. The accused was examined u/s 313 Cr.P.C. on 20.02.2013 wherein he claimed false implication and he denied all the incriminating facts and circumstances put to him. He further stated that the prosecutrix had accompanied him of her own will and performed Nikah with him willingly without any force, coercion and deception. According to him, the prosecutrix had disclosed her age to him as well as to the Mullah as 18 years. She had told him that her brother had gone to another village for fixing her marriage but she wanted to marry him only. It is for this reason, he stated, that she had called him near BDO Office on the aforesaid date, wherefrom she accompanied him. He did not know at any point of time that the age of the prosecutrix was below 16 years.
6. The accused also examined three witnesses in his defence. DW-1 and DW-2 are the witnesses to the Nikahnama performed between the accused and the prosecutrix in village Pataudi. DW-3 is the wife of DW-1 and deposed that the accused and the prosecutrix had stayed in their jhuggi at Pataudi for 2 nights and during this time, Nikah was solemnised between them.
SC No.55/13 Page 3 of 11The girl had told her that she had accompanied accused with her own wish and without any force.
7. I have heard ld. APP for State, ld. Counsel for accused and have perused the entire material on record.
8. It is not in dispute that the prosecutrix had accompanied the accused to Pataudi, Gurgaon, Haryana on 16.12.2011 and Nikah had been solemised between the two on 19.12.2011. What needs determination from this court is whether the prosecutrix was enticed away by the accused as claimed by the prosecution or she had accompanied the accused on her own volition and whether or not was the Nikah performed with the free consent of the prosecutrix. Of course it also needs to be seen whether the sexual intercourse between the two was with the consent of the prosecutrix or the accused had forced himself upon her.
9. The prosecutrix or her mother had not produced any document regarding the date of birth or the age of the prosecutrix. So the prosecutrix was subjected to the bone age determination test which was conducted by PW-4 Dr. L.R. Richhele, who opined her age to be 15 to 16 years. In his cross examination, he has deposed that he has given the range of the age of the prosecutrix as 15 to 16 years and it does not require any further variation. However, since he has not given a specific finding that the age of the prosecutrix was below 16 years, I find it prudent to hold that possibly the prosecutrix may have been more than 16 years old on the date of incident. However, there is no material on record to SC No.55/13 Page 4 of 11 hold that the age of the prosecutrix was more than 18 years on the date of incident. Even if one more year is added to the age of the prosecutrix, as opined by PW-4, still it will be only 17 years and in any case, her age cannot be taken to be more than 18 years at the time of incident.
10. Even if the age of the prosecutrix is taken as below 16 years, then also her marriage with the accused and the subsequent sexual intercourse between the two is not an offence at all. Admittedly the prosecutrix and the accused belong to Muslim religion. According to Mohammedan law, a girl can marry without the consent of her parents once she attains age of puberty and she has a right to live with her husband even if she is below the age of 18. The age of puberty, in the absence of any evidence to the contrary, is presumed to be 15 years. Therefore, under Mohammedan Law, a girl who has reached the age of puberty, which in normal course is 15 years, can marry without the consent of her guardian. (See Mrs. Tahra Begum vs. State of Delhi & ors. WP (Crl.) 446/2012 decided on 09.05.2012). And sexual intercourse by a husband with a wife, the wife being above 15 years of age, is not rape. Thus the issue which survives for determination remains the same as to whether the prosecutrix accompanied the accused on her own will and whether the 'Nikah' between the prosecuterix and the accused was performed with her consent and whether she was a willing party to the sexual intercourse between the two.
11. The prosecutrix has been examined PW-1. As it had transpired that she knew the meaning of oath, her deposition had SC No.55/13 Page 5 of 11 been recorded on oath even if she had disclosed her age to be only 14 years. She deposed that she is working as a junk dealer and has three brothers. She knew accused Safiq as he used to come to their house, being friend of her brothers. On 16.11.2012, she had gone near BDO Office where accused Safiq met her. Accused was on a motorcycle and offered her to drop her at her house. She sat on the pillion seat of the motorcycle and the accused took her to Pataudi where they stayed in the house of someone. Next day, accused performed Nikah with her in presence of some mullah by deception. The said Mullah was in control of accused. She had refused to marry but the accused forcibly performed Nikah with her. Thereafter accused asked her to perform sex with her but she refused, however, accused established physical relations with her forcibly. After four to five days, she made a call to her mother. She came to Delhi alongwith accused and they were apprehended by the Police. At that time, her mother was accompanying the Police. She was aware that the accused was already married and she did not want to marry him. After she was apprehended by the Police, she was taken to a hospital for medical examination and then to the ld. MM where her statement was recorded which she proved as Ex. PW1/A. She also proved her statement recorded by the Police as Ex. PW1/B.
12. In the cross examination, she denied that she was in love with the accused Safiq. She admitted that the Nikahnama bears her thumb impression but added that she had affixed her thumb impression on the directions of Mullah. She also admitted that her nikahnama bears the signatures of two witnesses. She deposed that when Mullah inquired from her about her consent to SC No.55/13 Page 6 of 11 the Nikah, she had said 'Yes' on account of threat as she was frightened so she did not tell anybody that she was not ready for marriage so that she had put her thumb impression under pressure.
13. In further cross examination recorded on 20.2.2013, she deposed that after she sat on the motorcycle of the accused, accused did not drive it in the direction of her house but in the opposite direction. She did not raise any alarm. She asked accused why he is driving in opposite direction but he did no give any answer. He took her to village Pataudi. They did not stop on the way. She did not raise any alarm on the way. They stayed in a house in village Pataudi for five to six days and there were two more boys present in that house. She further deposed that when she had left her house, on 16.12.2011, she was wearing a check colour suit and when she was apprehended by the Police she was wearing a red colour saree which was given to her by the accused. She had left her suit in that house in Pataudi. About 20 persons were present when the accused performed Nikah with her. She further deposed that accused had called her mother from his mobile phone and made her to talk to her mother on two occasions. Firstly, on the day of nikah, after performance of Nikah and then after they had reached Delhi. She had told her mother that Nikah had been performed between her and accused. She further deposed that when they were staying in Pataudi, accused used to go out of the house during day time but used to return in half an hour and during that period, the bhabhi of the accused used to be with her. She did not complain to the bhabhi of the accused about the actions of the accused. She further deposed SC No.55/13 Page 7 of 11 that she did not raise any alarm even when she was subjected to forcible sexual intercourse which had taken place in some other house than the house in which Nikah was performed. She did not narrate this incident to anybody from that day till her statement was recorded in the Police Station at Delhi. She admitted that at the time of her medical examination, she told the doctor that she had married to the accused four days back and she did not give consent for her gynecological examination.
14. A close scrutiny of the testimony of the prosecutrix would reveal that she had willingly accompanied the accused to village Pataudi, Gurgaon and the Nikah as well as the sexual intercourse between the two had also taken place with her consent. It is manifest that accused neither offered any enticement to the prosecutrix nor exerted any force or pressure upon her to accompany him to Pataudi. The accused simply asked the prosecutrix to sit on his motorcycle and the prosecutrix obliged him. Even no threats have been issued by the accused to the prosecutrix at that point of time or any time thereafter. After the prosecutrix sat on the motorcycle of the accused, he drove the motorcycle in the direction opposite to her house. The prosecutrix did not request him to stop the motorcycle and allow her to go home. It appears that she sat calmly on the motorcycle till they reached village Pataudi. The nikah between the two was performed in the presence of about 20 persons and she had also informed her mother about the performance of marriage on phone from the mobile phone of the accused. She did not tell anybody in the village Pataudi that she has been brought by the accused forcibly from Delhi, not even to the Mullah who performed Nikah SC No.55/13 Page 8 of 11 and the two witnesses to the Nikah ceremony. The prosecutrix has also stated in her cross examination that accused used to go out of house in Pataudi during day time and during that period she used to remain with the bhabhi of the accused but she did not tell even her also that the accused has brought her forcibly. She did not raise any alarm when she was subjected to sexual intercourse by the accused. She did not narrate the incident to anybody till she reached Delhi where she was received by her parents. More importantly she did not give her consent for gynecological examination when she was taken to the hospital by the Police officials after the registration of the FIR.
15. An analysis of the deposition of the prosecutrix demonstrates that it is neither credible nor trust worthy and does not inspire any confidence. She has admitted her thumb impression on the Nikah nama. She further deposed that when the Mullah inquired from her about her consent for the Nikah, she had stated Yes on account of the threats but has nowhere explained who had given her the threats and what were the threats. It seems to be a fabricated allegations far being true.
16. The overall conduct of the prosecutrix at the time when she accompanied the accused from Delhi, during her stay with the accused at Pataudi and on return from Pataudi, shows that she was a willing party to the whole episode and she was not made to do anything by force or under threats.
17. PW-3 is the Mullah who had solemnised marriage of the accused with the prosecutrix. DW-1 and DW-2 are the SC No.55/13 Page 9 of 11 witnesses to the said marriage. PW-3 has deposed that he confirmed through the witnesses that the bride and the groom are willing for the marriage and accordingly he solemnised Nikah between the two. He proved the photocopy of the Nikahnama as Ex. PW3/A which has been seized by the Police during the course of investigation from him vide seizure memo Ex. PW3/B. According to DW-1 and DW-2, they had asked both the accused as well as the prosecutrix whether they were willing for the Nikah and both replied in affirmative and accordingly, the Nikah between the two was performed. There is nothing in the cross examination of these two witnesses to discredit them. I see no reason to disbelieve these two defence witnesses DW-1 and DW-2, whose deposition is supported by the testimony of PW-3 who is the witness of prosecution itself. Therefore, there does not remain any iota of doubt that the prosecutrix had willingly solemnised Nikah with the accused and no force or pressure had been exerted upon her. In such circumstances where the prosecutrix had eloped with the accused herself and willingly performed nikah with him, it can't be believed that the sexual intercourse between the two was not with her consent. More so, when she did not raise any alarm at the time of sexual intercourse, if it was not with her consent. DW-3 has also deposed that the prosecutrix had told her that she accompanied the accused from Delhi on her own wish and without any force. This also renders that allegations of kidnapping, forcible nikah and forcible intercourse are baseless.
18. The arrest of the accused and the apprehension of the prosecutrix at Dhansa Bus stand as projected by the prosecution, is also doubtful. According to the prosecution, the accused and the SC No.55/13 Page 10 of 11 prosecutrix were apprehended from Dhansa Bus Stand on their return from Pataudi at the instance of mother of the prosecutrix. However, the mother of the prosecutrix appearing as PW-11 has turned hostile on this point and has stated that she had not pointed out to the police her daughter at Dhansa Bus Stand. She also denied the suggestion that accused and her daughter were apprehended from Dhansa Bus Stand at her instance.
19. Upon overall assessment of the evidence lead by the parties, it comes out that the prosecution has failed to prove the charges against the accused beyond doubt. There is no credible or trustworthy evidence on record that the prosecutrix was either enticed away or taken by force by the accused from Delhi to Pataudi. There is ample evidence to demonstrate that the prosecutrix performed nikah with the accused willingly. I also do not find any cogent evidence on record to suggest that prosecutrix was below 16 years of age at that time and that she had not consented to sex with the accused. Hence essential ingredients of all the three offences i.e. u/s 363 IPC, u/s 366IPC and u/s 376 IPC, with which the accused has been charged, are missing in this case.
20. Resultantly, the accused is liable to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 22.04.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.55/13 Page 11 of 11