Delhi District Court
Additional Sessions Judge (North) : ... vs Dinesh And Anr. 2010 Jt 2010[2 on 15 December, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 33/10
ID No. 02401R0174552010
State
Vs.
1 Hasan Khan
S/o Abdul Barik Khan
R/o Hospital Chowk,
P.S. Tajpur, Distt. Samastipur
Bihar
2 Joya Khan
D/o Abdul Barik Khan
R/o Hospital Chowk,
P.S. Tajpur, Distt. Samastipur
Bihar
3 Waqar Ahmed
S/o Iftekar Ahmed
R/o G-1/92, Madangiri,
Ambedkar Nagar,
Delhi.
FIR No. 368/09
PS Burari
U/S 363/366/368/376/34 IPC
Sessions Case No. 33/10 Page 1/27
2
Date of Institution: 13.04.10
Date of reserving for judgment: 29.11.11
Date of pronouncement: 15.12.11
JUDGMENT
In the present case, charge has been framed against accused Hasan Khan in respect of offences U/S 363, 366 and 376 IPC. The allegation in the charge is that on 14.08.09 at about 6:00 AM at H.No. A-22, Gali No. 1, Hardev Nagar, Jharoda, Burari, he [accused Hasan Khan] kidnapped the prosecutrix, a minor girl below the age of 18 years from the lawful guardianship of her mother and without her consent.
2 It has been further alleged that on the aforesaid date, time and place, he [accused Hasan Khan] kidnapped prosecutrix with intent that she might be compelled to marry against her will or that she might be forced/seduced to illicit intercourse.
3 It has also been alleged that on the aforesaid date and thereafter, he [accused Hasan Khan] committed rape upon the prosecutrix at H.No. G-1/92, Madangir, Ambedkar Nagar,Delhi. 4 A separate charge has been framed against accused Hasan Khan, Joya Khan and Waqar Ahmed in respect of offence U/S 368 r/w Section 34 IPC. The allegation in the charge is that in between 14.08.09 and 17.01.10 at H.No. G-1/92, First Floor, Madangir, Ambedkar Nagar, Delhi, they [accused] in furtherance of their Sessions Case No. 33/10 Page 2/27 3 common intention, wrongfully concealed or confined prosecutrix, a minor girl, below the age of 18 years, knowing that she has been kidnapped.
5 Accused pleaded not guilty to said charges and claimed trial. 6 To prove its case, prosecution has examined 23 witnesses. They are A.K. Kashyap(PW-1), SI Diwan Ikram Khan(PW-2), Inspector Radhey Shyam Prasad Singh(PW-3), Subhash Chander Mishra(PW-4), Constable Mupendra Singh(PW-5), Suresh Kumar(PW-6), Nidhi Kumari(PW-7), Dr. Ruby Kumari(PW-8), Dr. S. Lal(PW-9), Raj Kumar(PW-10), HC Sanjay Kumar(PW-11), Dr. Alka Goel(PW-12), Israr Babu(PW-13), SI Umesh Kumar(PW-14), HC Pradeep Kumar (PW-15), W. Constable Kavita(PW-16),HC AmarNath(PW-17), Mahalakshmi Devi(PW-18), SI Ravinder Singh(PW-19), HC Rajiv Kumar(PW-20), Constable Avdesh Singh(PW-21), Constable Rajbir(PW-22) and SI Sanjay Kumar (PW-
23).
7 Statements of accused have been recorded U/S 313 CrPC, wherein they have denied the allegations of prosecution. They have submitted that they have been falsely implicated in this case at the instance of Mahalaxmi, mother of prosecutrix. They are innocent. Accused Hasan Khan has submitted that prosecutrix is his legally wedded wife. He married with prosecutrix at Tipu Sultan Masjid, Kolkata and marriage certificate was issued by the Registrar and Qazi, Sessions Case No. 33/10 Page 3/27 4 Govt. of West Bengal in this regard. The relatives of prosecutrix were against this marriage. Therefore, he has been falsely implicated in this case, at the instance of Mahalaxmi Devi. When he was in JC, prosecutrix used to meet him.
8 Accused Joya Khan has submitted that her brother accused Hasan Khan had married prosecutrix as per Muslim rites and customs. She visited Delhi to meet them. She has been falsely implicated in this case, at the instance of mother of prosecutrix.
9 Accused Waqar Ahmed has submitted that in the first week of September, 2009, accused Hasan Khan and prosecutrix came to him and told him about their marriage. Since, it was an inter-religion marriage, the family members of prosecutrix were against this marriage and were harassing them. Accused Hasan Khan told him that he was looking for a job in Delhi. He allowed accused Hasan Khan and prosecutrix to reside at his home, till the time, they found suitable accommodation. Prosecutrix never told him that she had been kidnapped. He never felt that prosecutrix has been kidnapped by accused Hasan Khan as she was living happily and moving freely everywhere by putting vermilion.
10 Accused Hasan Khan has examined Amrish Kumar, Asstt. Supdt. Central Jail No. 3, Tihar as DW-1.
11 I have heard arguments from ld. counsels for accused and ld. Addl. PP for State. Ld. counsel for accused Hasan Khan and Joya Sessions Case No. 33/10 Page 4/27 5 Khan has prayed for acquittal of accused by submitting that no offence of kidnapping is made out against accused Hasan Khan as prosecutrix was not minor. He has further submitted that no offence of rape has been committed by the accused as prosecutrix was major and was a consenting party. Ld. counsel for accused Waqar Ahmed has also prayed for acquittal by submitting that accused did not conceal or confine the prosecutrix at premises No. G-1/92, Fist Floor, Madangir, Delhi as she was living there with accused Hasan Khan with her own will.
12 On the other hand, ld. Addl. PP has prayed for conviction of all accused by submitting that prosecution has proved its case and material witnesses have supported prosecution case. 13 In the present case, PW-7 is the star witness of this case, being the prosecutrix. She has deposed in the year 2008, she and her mother were living in Darbhanga, Bihar at their parental house. Her father had expired. One Rahul Kumar met her mother, through Ram Babu Jha. Rahul Kumar used to visit their house. He got sold their house and asked her mother to accompany him to Kolkata. He also told her mother that there was better education for her [PW-7]. Thereafter, he took them to Kolkata at the house of his Mausa, whose name she came to know, later on, as Naushad. On the same day, he introduced them with Pankaj Mishra. They were told that Pankaj was pursuing doctorate degree and his parents are also doctors. Pankaj had Sessions Case No. 33/10 Page 5/27 6 asked her mother to get her [PW-7] married with him. But her mother refused by saying that she [PW-7] was less than 15 years of age. Pankaj Kumar Mishra used to take her [PW-7] at different places. He used to tease her and also used to commit rape upon her. She told him that she would disclose this fact to her mother, on which he threatened her that if she disclosed the fact to her mother, he would kill her. So, she did not disclose this fact to her mother. She does not remember the date and month , when accused Pankaj Mishra had teased and raped her as she was at new place and her mother was alone. But, it was in the year 2008, when Pankaj Mishra took her to a Kali Mata Mandir and married her against her wishes. One day he was talking on telephone with his mother. From that talking, she came to know that his name was not Pankaj Mishra but Hasan Khan @ Rocky, son of Abdul Bariq Khan, resident of Village Tajpur, Distt. Samastipur, Bihar. She and her mother asked him about his reality, on which he told her and mother that he was Muslim and his real name was Hasan Khan @ Rocky Khan and the name of Rahul Mishra was Irfan Khan, who was his brother-in-law(Jija). She and her mother came to know that they [she and her mother] were taken to Kolkata under conspiracy. Thereafter, accused Hasan Khan took her and her mother to his native village Tajpur, Distt. Samastipur, Bihar. He kept her [PW-7] there against her wishes. Her mother lodged a Sessions Case No. 33/10 Page 6/27 7 criminal case, against the accused. The police produced her before the Magistrate in Samastipur, who recorded her statement. Thereafter, by the order of Magistrate, she was allowed to live with her mother. She took her to Patna and they started living there. One day, when she and her mother were passing through Kankarbagh Colony, Patna, Bihar, in a rickshaw, accused Rocky Khan, Irfan and parents of Rocky Khan forcibly dragged her [PW-7] from the rickshaw and took her to a house of their relative in Patna. Her mother again lodged a criminal case against accused persons. The police got her recovered from the house of accused persons and produced her before concerned Magistrate at Patna, who recorded her statement. By the order of Magistrate she was allowed to live with her mother. Thereafter, her mother took her to Delhi. They started living in a rented house at Hardev Nagar, Delhi. The accused persons followed them. One day, accused Hasan Khan came near her house and took her forcibly to the house of his friend namely, Waqar Ahmed at Madangiri and kept her there forcibly. Accused Rocky Khan and his relatives took her to Delhi High Court and advised her to make her statement. They also advised her [PW-7] to tell her age as 18 years before the court. They also advised her to depose before the court that she had married accused Rocky Khan with her own sweet will. They also threatened her that if she did not depose in Sessions Case No. 33/10 Page 7/27 8 the court, as per their advise, they would kill her mother. Thereafter, on her persuasion, accused Rocky Khan allowed her to talk to her mother. She talked with her mother on telephone. Accused Rocky Khan asked her to advise her mother to make compromise in the cases of Samastipur and Patna and to tell her mother that she was in Kolkata, though she was in the house of Waqar Ahmed, in Delhi. Accused Joya Khan always kept eye upon her and did not allow her to remain alone or to talk with anyone. Accused Hasan Khan told her that if she would advised her mother to make compromise with him in the cases of Bihar, he would allow her to talk with her mother, otherwise not. One day, she talked with her mother secretly, and told her that she was living in Delhi at Madangiri, at the house of Waqar Ahmed with accused Rocky Khan and not in Kolkata. Thereafter, her mother took local police there and got her recovered from the house of accused persons. The police had produced her at Tis Hazari Court and the MM recorded her statement Ex. PW7/A U/S 164 Cr.PC. She was medically examined by doctor in the hospital. Accused Hasan Khan committed rape upon her at Delhi. Accused Joya Khan used to keep surveillance upon her at the house of accused Waqar Ahmed.
14 In cross-examination by ld. counsel for accused Hasan Khan and Joya Khan, PW-7 has deposed that she was the student of 8th Class in the year 2008 but she did not pass 8th Class. Her father was not alive when she passed 3rd Class. Thereafter, she joined Darbhnaga Sessions Case No. 33/10 Page 8/27 9 Central School, which was nearby her village. Rahul was not known to her and her mother before his introduction to them by Ram Babu Jha. Ram Babu Jha was known them, being resident of their village. Her mother had faith upon Ram Babu Jha. They never stayed in hotel at Calcutta but stayed at the house of Mausa of accused but she cannot tell for how many days they stayed there. There were markets and houses in that place and it was a thickly populated area. She does not know for how many days, she and Hasan Khan were together. She does not know for how long on a particular day, she used to stay out of house with accused Hasan Khan. He used to take her in public park. There used to be many people in the park. She went to see movie alongwith Hasan Khan once or twice. They used to roam in the market. She never liked to roam but accused Hasan Khan used to take her forcibly. Her mother used to trust Hasan Khan. She never loved or liked Hasan Khan. She has identified 15 photographs Mark A-1 to A-15 and has deposed that she is smiling in the photographs because accused had asked her to smile. She did not marry accused Hasan Khan. She never appeared or applied for the purpose of conversion of religion in any court of law at Calcutta. Accused obtained her signatures forcibly on blank papers on affidavit mark DA. She has denied Sessions Case No. 33/10 Page 9/27 10 that at her nikahnama with Hasan Khan, her mother was also present there. She has admitted signatures of her mother in the nikahnama Mark DB. She has denied that after conversion of religion, she adopted her name as Sofia Khanam. Accused married her in Kali Mandir. Her mother never complained any authority in Calcutta. Accused Hasan Khan took her in his house in Bihar from Calcutta. Her mother was also alongwith her at that time. They came back to Bihar in January. She did not go to her mother's house and lived with Hasan Khan at his house at Tajpur. She did not make any complaint either in Calcutta or in Bihar regarding her forcible stay with Hasan Khan to any person due to the threat, given by accused. She has admitted that she made the statement Mark D-3 before the Magistrate in Bihar, but she made the same under the pressure of accused Hasan Khan. When the parents of accused threatened her, the police officials were present with her. Policemen were also in collusion with the parents of the accused. The Chief Judicial Magistrate asked her whether she was giving statement voluntarily but she did not disclose to Ld. CJM. The CJM recorded her statement as per her version. She has denied that the statement made by her was true and was made voluntarily and that today she is deposing falsely. Her medical was also conducted by Sessions Case No. 33/10 Page 10/27 11 the board of doctors. She has denied that she stated her age more than 18 years. She never stated in statement to the CJM, Distt. Samastipur that she was married to Hasan Khan at Tipu Sultan Masjid, Kolkata. She does not know what was her age mentioned in the medical, conducted by the board of doctors at Samastipur. She stated her name as Sofiya Khan before the Ld. CJM as she was under pressure. She was again taken away by accused Hasan Khan from Kankarbagh Colony, which is a thickly populated area and there were many markets in the surrounding. But she never raised any hue and cry because she was under threat. But she cannot tell the place, where she was taken by accused. He kept her with his relatives. She does not remember for how many days she remained there but she stayed there for some days. She cannot tell when her mother brought her to Delhi. It was summer season in Delhi. She stayed with her mother in Delhi for about 10-15 days after return from Bihar. She used to receive threatening calls from Hasan Khan on her mobile at Delhi also. Her mother made complaint to the higher police officials about the threats received during their stay in Delhi. She cannot say whether police officials called her to the police station in this regard. She never put her signature on any complaint of threat. The accused Hasan Khan took her from her Sessions Case No. 33/10 Page 11/27 12 house at Delhi and she stayed with him in Delhi at some other place, after two days, after receiving threat from him. The accused took her in a four wheeler vehicle. She did not raise any hue and cry despite the fact that it was a thickly populated area as she was under threat. She never met any police official nor she saw any police official during her entire stay at Delhi. She saw several police officials in the premises of Hon'ble Delhi High Court. She does not remember for how many times she visited Hon'ble Delhi High Court. She used to go by auto rickshaw to the Hon'ble Delhi High Court. Accused Hasan Khan took her to the lawyer but she cannot tell the place. She never went to Ambedkar Nagar police station. She never moved any writ petition before the Hon'ble Delhi High Court. But she appeared before the Hon'ble Delhi High Court. Hon'ble Justice made queries from her personally and recorded her statement also. She filed writ petition in Hon'ble High Court of Delhi, wherein she was co-petitioner with the accused Hasan Khan alias Rocky. The petition was against the State of NCT of Delhi, SHO P.S. Ambedkar Nagar, S.P. Of Samastipur, Bihar, SHO P.S. Tajpur, Samastipur, Bihar, SSP, Patna, Bihar, SHO P.S. Kankarbagh, Patna, Bihar and her mother Smt. Mahalakshmi Devi. In that petition, she prayed for protection from respondents Sessions Case No. 33/10 Page 12/27 13 and direction to them not to interfere in the matrimonial life of petitioners and to quash the FIR No. 146/09 P.S. Tajpur, registered against petitioner No. 2 i.e. accused Hasan Khan. The certified copy of said writ petition is Ex. PX [colly]. Accused Hasan Khan took her to Puna. Her mother did not accompany her there. There was a marriage function of his relatives. She has admitted her presence in the CDs of marriage Mark X-1 and X-2, alongwith accused and his family members. She has denied that she had deposed to the Magistrate U/S 164 CrPC under threat or pressure of her mother or any person. She has denied that during her medical examination, she told her age as 17 ½ years to the doctor. Nobody was liable for her premature abortion as it happened naturally. Her mother accompanied her when she came to depose U/S 164 CrPC in Delhi. She has denied that she made statement under the pressure of her mother as her relatives were against the marriage. She made a voluntary statement before the court. She has denied that she is more than 18 years of age and she married accused Hasan Khan of her own free will and had sexual intercourse of her free will, being a legally wedded wife of accused Hasan Khan. She has denied that due to the threats from her mother and relatives, she is deposing falsely or that accused Hasan Khan is innocent.
Sessions Case No. 33/10 Page 13/27 1415 In cross-examination by ld. counsel for accused Waqar Ahmed she [PW-7] has deposed that in the year 2009 accused Hasan Khan took her to the house of accused Waqar Ahmed at Madangir. She never met any SI Gulab Khan, who was appointed as a Protection Officer by the Hon'ble Delhi High Court in the writ petition filed by her. The house comprised of four storeys, where she was living with accused at Madangir. She never went outside the house except attending the proceedings before Hon'ble Delhi High Court. Accused Hasan Khan took her to Pune in train. Train was full of passengers but she did not complain to any passenger as she was under threat. First time she told her mother about her location at Madangir when the proceedings of Hon'ble Delhi High Court were going on. Accused Waqar used to call her Bhabhi and was polite to her. She has denied that she used to visit neighbourers frequently and also went to park to play badminton with one girl namely Poonam. Whenever accused used to say to put sindur on forehead, she used to do the same as she was under threat. She has denied that she used to go to market alone. She has denied that she was residing voluntarily with accused Hasan Khan and his friend Waqar. She has denied that she telephoned her mother on the day, when she left with Hasan Khan from Delhi that she was fine and would come back. She Sessions Case No. 33/10 Page 14/27 15 was not well, when she deposed before the Ld. MM and she could not make a proper statement. Accused Joya Khan used to live of her own and she never interfered in her affairs. She was not kidnapped by accused Waqar and Ms. Joya Khan. Police did not record her statement but only obtained her signature on paper. 16 Since, accused Hasan Khan is charged for the commission of offence of kidnapping and rape, the first question that arises for consideration is as to what was the age of prosecutrix on the date of commission of offence i.e. on 14.08.09.
17 In the present case, PW-1 A.K. Kashyap has issued the Transfer Certificate Ex. PW1/B, wherein the date of birth of prosecutrix has been shown as 12.04.95. As per transfer certificate, prosecutrix was 14 years 3 months and 12 days old. In other words, she was below the age of 18 years.
18 In Jabbar Singh V. Dinesh and Anr. 2010 JT 2010[2] SC 603, relied upon by Ld. Counsel for accused persons, it has been observed by Hon'ble Supreme Court that "the entry of date of birth in the admission form, the school records and transfer certificates, did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and, therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determining the age of Respondent No. 1 at the time of commission of the alleged offence."
Sessions Case No. 33/10 Page 15/27 1619 In State of Maharashtra V. Gajanand Hemant Janardhan Wankhede [2008] 8 Supreme Court Cases 38, relied upon by Ld. Addl. PP, Hon'ble Supreme Court had set aside the judgment of Hon'ble Bombay High Court which acquitted the respondent by setting aside the conviction, recorded by Ld. Addl. Sessions Judge U/S 363,366 and 376 IPC. Hon'ble Supreme Court observed that "there was no basis for the High Court to conclude that the entry cannot be taken to be above suspicion. High Court had abruptly concluded that normally for various reasons the guardians do understate the age of their children at the time of admission in the school without any material or basis for coming to such conclusion. High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of prosecutrix was not established and the school leaving certificate and school register are not conclusive."
20 It is worth noting that case, relied upon by Ld. Addl. PP, has striking feature that no question was put to the victim in her cross- examination about her date of birth.
21 In Birad Mall Singhvi V. Anand Purohit, AIR 1988 SC 1796, it has been observed by Hon'ble Supreme Court that "an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the Sessions Case No. 33/10 Page 16/27 17 age was recorded....
The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the date of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value."
22 In Bami Bewa v. Krushna Chandra Swain, AIR 2004 Orissa 16, it has been observed that "a document admissible in accordance with Section 35 of the Evidence Act, will automatically not be credible simply because it has been admitted as evidence. A document admitted as evidence is to be considered subject to relevancy and by assessing the evidence as a whole and not in isolation."
23 In the present case, PW-1 could not produce any document, on the basis of which he could say that the date of birth of prosecutrix was 12.04.95. He has categorically deposed that date of birth of the child used to be entered by them on the basis of declaration by the parents. He has admitted that no birth certificate, issued by any local authority, at the time of admission of prosecutrix in the school, was produced. He [PW-1] was not sure as to whether, the father or the mother or any guardian or anybody else had come to school at the time of admission of prosecutrix. Moreover, in the Transfer Certificate Ex. PW1/B the attendance of prosecutrix has been shown as 80% despite the fact that she left the school in the middle of Sessions Case No. 33/10 Page 17/27 18 Sessions i.e. October-November, as deposed by the prosecutrix. Further, in the Admission record Mark A, proved by PW-1, the name of father of prosecutrix has been shown as Ashwani Prasad Singh. In other words, as per admission record, the father of prosecutrix was alive at the time of her admission. But PW-18 Smt. Mahalaxmi, the mother of prosecutrix has deposed that her husband had expired on 19.05.03. It is significant to note that as per Admission Record, prosecutrix was admitted in school on 24.06.03. It is worth noting that father of prosecutrix had died on 19.05.03 i.e. before her admission in school still he has been shown alive by mentioning his status as Ashwani Prasad Singh, instead of Late Sh. Ashwani Prasad Singh. Moreover, in the Admission record, Mark A, the occupation of father of prosecutrix has been shown as farmer but when the occupation of her father was asked to PW-7, she has deposed that her father was a military man.
24 Further, PW-5 Constable Mupender Singh has proved the record pertaining to writ petition filed by the prosecutrix before Hon'ble High Court of Delhi. The record is Ex. PW5/A-1 to 93 [colly]. A perusal of this record shows that a medical board was constituted on the directions of Bihar Police to ascertain the age of prosecutrix. As per the documents Mark D-1 and D-2 [pages 61 and 62 of Ex. PW5/A1 to 93], the Medical Board has opined the age of Sessions Case No. 33/10 Page 18/27 19 prosecutrix between 18-18 ½ years. Besides this, the statement of prosecutrix U/S 164 Cr.PC has been recorded in case FIR No. 146/09, which has been registered by the police of P.S Tajpur, Distt. Samastipur, Patna, Bihar against accused Hasan and Others U/S 366A, 419, 420 r/w Section 34 IPC. The girl was produced by PW-2 SI Diwan Ikram Khan before the Magistrate for her statement. The said statement of prosecutrix recorded by the Magistrate is Mark D-3. In that statement, prosecutrix has stated her age as 20 years. Moreover, in cross-examination by ld. counsel for accused Hasan Khan, PW-5, Constable Mupendra Singh, has admitted that a complaint Ex. PW5/DA has been received from Sofia Khan alias Nidhi W/o Hasan Khan by SHO, Ambedkar Nagar. In this complaint, she has deposed herself as major. She has also mentioned that she has married Hasan Khan voluntarily and was living happily with him in Delhi at the house of his friend.
25 Further, in the writ petition Crl. No. 1241/2009 filed by the prosecutrix, an order has been passed by His Lordship Hon'ble Mr. Justice Sh. V.K. Jain on 09.12.09. In this order, His Lordship has mentioned that the prosecutrix had stated her date of birth as 30.09.1990. It is further mentioned in this order that prosecutrix had married with accused Hasan Khan on 06.01.2009, when she was more than 18 years old.
Sessions Case No. 33/10 Page 19/27 2026 Further, the prosecutrix has filed an affidavit Mark DA before Ld. Executive Magistrate Ist Class Hawrah, Calcutta, at the time of registration of her marriage with accused Hasan Khan. In this affidavit, she has mentioned her age as about 19 years. 27 Further, in the Marriage Certificate Mark DB, issued by Shahi Imam, Tipu Sultan, Shahi Masjid, 185 Dharamtaka, Kolkata, the prosecutrix has shown her age as 19 years.
28 Thus, in view of above analysis of evidence, the Transfer Certificate Ex. PW1/B and Admission Record Mark A cannot be relied upon and it is concluded that prosecutrix was not minor on 04.08.09 and accordingly, was not kidnapped by accused Hasan Khan. Thus, accused Hasan Khan is acquitted of offence U/S 363 IPC. 29 Now, the next questions, which arise for consideration are whether accused Hasan Khan kidnapped the prosecutrix with an intention that she might be compelled for marriage and accused Hasan Khan committed rape upon the prosecutrix or as to whether prosecutrix was a consenting party so far as, the offence of rape is concerned.
30 In the present case, PW-7, the prosecutrix has proved on record in her cross-examination by ld. counsel for accused Hasan Khan that accused Hasan Khan used to take her in the garden/public park and there used to be many public persons. She went to see movie alongwith Hasan Khan. They [Hasan Khan and prosecutrix] used to Sessions Case No. 33/10 Page 20/27 21 roam in the park. Her mother used to trust Hasan Khan and therefore, her mother used to leave her [prosecutrix] alone in the company of Hasan Khan. All these things continued till January-February, 2009. PW-7 has admitted that 15 photographs Mark A-1 to A15 pertain to her. She has deposed that the photographs were taken at Kolkata when she was staying there. It is worth noting that these photographs Ex. A1 to A15 do not show that any force or threat was used by Hasan Khan upon the prosecutrix. Rather, the photographs show that prosecutrix has been in love with accused Hasan Khan and she was enjoying his company. Thus, I am of the considered view that the testimony of PW-7 to the effect that she passed the smile in these photographs on the asking of Hasan Khan, does not seem to be trustworthy. It is significant to note that accused Hasan Khan took her to his house after their return from Kolkata. Her mother was also with her at that time. She did not go to her mother's house but lived with Hasan Khan at his house at Tajpur, Samastipur, Patna, Bihar. She did not make any complaint regarding her forcible stay with accused to anyone. She did not make any complaint to anyone during her stay with her mother in Bihar. Accused Hasan took her from her house in Delhi in a four wheeler scooter. She did not raise any hue and cry despite the fact that it was a thickly populated area. She never met any police official nor saw any Sessions Case No. 33/10 Page 21/27 22 police official during her stay in Delhi. She saw several police officials in the premises of High Court of Delhi. Accused Hasan Khan took her to the lawyer. She appeared before Hon'ble High Court of Delhi, where Hon'ble Judge made enquiry from her personally and recorded her statement. Further, PW-7 has admitted that she filed a writ petition in Hon'ble High Court of Delhi alongwith accused Hasan Khan against SHO, P.S. Ambedkar Nagar, SHO, P.S. Tajpur, SHO, P.S. Kankarbagh, Patna and her mother Mahalaxmi Devi etc. praying that she be provided protection from the respondents so that they might not interfere in her matrimonial life and prayed that FIR No. 146/09 registered against accused Hasan Khan in Samastipur, Bihar be quashed. The certified copy of petition is Ex. PX. It is also significant to note that accused Hasan Khan took her to Pune. Her mother did not accompany her. At Pune, there was marriage function of relative of accused Hasan Khan. PW-7 has been shown the CDs Mark X-1 and X-2, wherein she has admitted her presence in the family function alongwith accused and his family members.
31 Since, prosecutrix has been visiting to different places with accused Hasan Khan but did not lodge any complaint to any authority Sessions Case No. 33/10 Page 22/27 23 against him and the only pretext taken by her is that she was under the pressure and threat, which was extended by accused Hasan Khan to her, I am of the considered view that the story of being under threat does not seems to be trustworthy. She has been appearing in various courts i.e. in Delhi, Patna and Bihar and has been giving her statements to Ld. Magistrates and Hon'ble Judges. She had ample opportunities to disclose the facts to them and therefore, the statements given by prosecutrix to the Hon'ble Judges and Magistrates cannot be disbelieved only on the bald allegation of prosecutrix that she did not disclose facts to these authorities under threat by accused Hasan Khan.
32 It is further significant to note that accused has examined Asstt. Supdt. of Police, Jail No. 3, Tihar as DW-1, to prove that the prosecutrix was in love with accused Hasan Khan and she visited Tihar jail to meet him. DW-1 has produced the meeting slip and visitor pass dated 15.04.10. The copy of same is Ex. DW1/A. A perusal of this document shows that prosecutrix went to Tihar Jail to meet accused Hasan Khan on 15.04.10 and has shown her relationship in this visitor pass with accused Hasan Khan as his friend. The copy of visitor's pass Ex. DW1/A cannot be disbelieved only because it is a computer generated copy. I am of the considered view that Asstt. Jail Supdt. is a responsible officer and will not produce a false record in the court.
Sessions Case No. 33/10 Page 23/27 2433 Thus, keeping in view the photographs Mark A1 to A15 and the fact that prosecutrix has been going to different places with accused Hasan Khan and did not lodge any complaint to any authority and later on filed a writ in Hon'ble Delhi High court for her protection from her mother, the police of Bihar as well as of Delhi, I am of the considered view that offence of rape by accused Hasan Khan upon prosecutrix is not proved beyond reasonable doubt and it is concluded that she was a consenting party. I am of the considered view that prosecution has miserably failed to prove that prosecution was kidnapped by accused Hasan Khan with an intention to compel her for marriage or seduce her to illegal intercourse. Thus, accused Hasan Khan is acquitted of offences U/S366 and 376 IPC.
34 In the present case, all accused have been charged in respect of offence U/S 368 r/w Section 34 IPC.
35 In Puran Singh V. State of Bihar, JT 2001 [8] SC 647 it has been observed by Hon'ble Supreme Court that prosecutrix was brought to the house of one 'P' and 'L' and was kept there for five months. Prosecutrix did not disclose there about her kidnapping. There was nothing to show that 'P' and 'L' had knowledge about her kidnapping : Prosecutrix brought with vermilion in her parting of hair could be misunderstood to be married. It was held that conviction of 'P' and 'L' under section 368 could not be sustained."
Sessions Case No. 33/10 Page 24/27 2536 In the present case, PW-6 Suresh Kumar is the landlord of the house, in which the prosecutrix is alleged to have been concealed or confined by all accused. PW-6 has deposed that he had given one room set of his house to accused Waqar Ahmed on rent for a sum of Rs. 3,500/- per month. Accused Waqar Ahmed is still his tenant. As and when he used to go to the rented room of Waqar Ahmed, he had seen accused lady, present in court and the main accused, present in court, but he does not know their names. PW-6 has pointed out towards accused Joya Khan and Hasan Khan being the lady accused and main accused, who used to remain with accused Waqar Ahmed in the rented house. One girl was also present with the accused persons. He has further deposed that he asked WaqarAhmed about the remaining accused. Accused Waqar Ahmed replied that they were his relatives and had come to live with him. 37 In cross-examination by ld. counsel for accused Waqar Ahmed, PW-6 has deposed that he did not observe that the prosecutrix was forcibly kept in the premises by accused as she had been going to the market and park with the accused persons. She used to play badminton in the park. She used to play badminton with lady accused, present in court and with other ladies. The prosecutrix used to go alone in the neighbourhood to see another girl. She never made complaint of accused persons to him.
Sessions Case No. 33/10 Page 25/27 2638 It is significant to note that accused Waqar Ahmed has stated in his statement U/S 313 Cr.PC that he allowed accused Hasan Khan and prosecutrix to live in his house as they told him that they have married each other one year back. Since, it was an intercaste marriage between them, the family members of girl's side were harassing them. It is the case of accused Waqar Ahmed that he allowed accused Hasan Khan and prosecutrix to live in his house till accused Hasan Khan got a suitable accommodation in Delhi. The prosecutrix never complained him about any incident of kidnapping. He himself observed that there was no kidnapping of prosecutrix as she used to move freely in the locality after putting sindur on her forehead.
39 Accused Joya Khan has stated in her statement U/S 313 Cr.PC that she has been falsely implicated in this case by the mother of prosecutrix. She is the resident of Bihar. Her brother Rocky alias Hasan Khan married Nidhi as per Muslim rites and ceremonies. She visited Delhi to meet them and police arrested her in this case. 40 Since, the prosecutrix had been visiting with accused to different places and has been enjoying his company by using different means of transports and appearing before different authorities by putting sindur in her parting, I am of the considered view that in these circumstances, it cannot be said that she was wrongly confined or Sessions Case No. 33/10 Page 26/27 27 concealed by accused persons. I am of the considered view that prosecution has miserably failed to prove its case U/S 368 r/w Section 34 IPC beyond reasonable doubt against accused persons. Accordingly, accused Hasan Khan, Joya Khan and Waqar Ahmed are acquitted of the offences, they were charged with. 41 In this case, accused Hasan Khan, Joya Khan and Waqar Ahmed are on bail. In view of amended provisions of Section 437A CrPC, accused are directed to furnish personal bond and surety bond in the sum of Rs. 10,000/- for a period of six months with the directions that they will appear before Hon'ble High Court as and when any notice is received by them in respect of any appeal filed by the State against the judgment.
Announced in the open court today
on 15.12.11 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
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