Delhi District Court
State vs Guddu @ Haseen Babu S/O Hazur Mohd. on 18 October, 2016
IN THE COURT OF SHRI SANJAY SHARMAI
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 45008/2015
FIR No. 331/2013
PS Gokalpuri
Under Section 363/366A/376/506 IPC
and Section 6 POCSO Act
State Versus Guddu @ Haseen Babu S/o Hazur Mohd.
R/o D105, Gali No. 6, Bhagirathi Vihar, Delhi
Date of institution of case : 18.2.2015
Date on which judgment reserved : 06.10.2016
Date of judgment pronounced : 18.10.2016
J U D G M E N T :
1.On 01.8.2013, complainant Shamshuddin lodged missing report regarding his sister/victim - a minor girl aged about 15 years stating that she was studying in Tentwala School, Old Mustafabad and that she left for her school at about 7.00 am but had not returned back to her house. Present FIR was accordingly registered under Section 363 IPC.
Thereafter, being dissatisfied by the investigation, complainant made complaint to the DCP Office, NorthEast submitting that on 01.8.2013, her sister went to her school and while she was returning back to her house, at the same time his younger brother was going to school, he saw his neighbour SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 1 of 16 Guddu forcibly putting the victim into a Maruti Van with the help of his 34 associates and fled away and thereafter, he stated about it to the complainant. Complainant further alleged in the said complaint that on 07.8.2013, he received phone call from the accused who informed that the dead body of the victim would reach his house by the next day.
Subsequently, on 19.8.2013, victim reached at the PS herself and stated to the IO that she had gone with her friend Gulafsha to her native village Sambhal, UP. Her statement was recorded under Section 164 CrPC in which she disclosed the same facts. On her said statements, IO/ASI Habib Ahmed Khan prepared a cancellation report.
Thereafter, on the complaint made by the complainant, investigation was marked to SI Deepak Bhardwaj who made inquiries from the Qazi and other witnesses regarding nikah of the accused with the victim and added Section 419/420/366/376(i)/506/494 IPC in the FIR. Subsequently, on further investigation by SI Vivek Sharma, Section 4/8 of the POCSO Act and Section 9, Prohibition of Child Marriage were also added in the FIR.
SI Anita was assigned further investigation of this case, who applied for recording statement of the victim under Section 164 CrPC, again. Same was accordingly recorded in which the victim disclosed that the accused had forcibly married her and took her to Sambhalpur where he threatened to kill her and her brother Rashid and had also made physical relations with her without her consent.
Accused was arrested on 27.12.2014 and after completion of investigation, charge sheet was filed against him for the offences punishable SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 2 of 16 under Section 366/376(i)/506/419/420/494 IPC, Section 4/8 of the POCSO Act and Section 9, Prohibition of Child Marriage. Copies of the charge sheet were supplied to the accused.
3. On hearing arguments and upon considering the material placed on record, charge for the offences punishable under Section 363/366A/506/476 IPC and Section 6 of the POCSO Act was framed against the accused, vide order dated 08.4.2015, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 20 witnesses at the trial.
PW1 was the victim herself and she deposed about the incident. PW2 HC Surender Singh was the Duty Officer who proved the FIR. PW3 HC Vijay Pal deposited the exhibits at FSL.
PW4 Shamshuddin was the brother of the victim and complainant of this case.
PW5 Aamish was the younger brother of the victim who saw the accused forcibly putting the victim alongwith 34 other boys in a Van and fleeing away.
PW6 Dr. Sushma proved the MLC of the victim.
PW7 Dr. Sharad Verma proved the MLC of the accused.
PW8 Shri Dhanpat - Record Keeper from the Office of Registrar (Births & Deaths) testified that the birth certificate placed on record though bears stamp of his office but it was a fake certificate.
PW9 Irshad Khan was an Imam in a Masjid at District Sambhal. He SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 3 of 16 had to prove the Nikahnama but he denied to have prepared the same and thus, was a hostile witness.
PW10 Jiauddin, PW11 Mohd. Aslam Khan @ Chhote Khan and PW12 Mohd. Amir allegedly stood witness in the nikah but they all turned hostile.
PW13 Hassnain Raza was the Imam who proved the Nikahnama between the accused and one Reshma performed on 25.8.2013.
PW14 Ct. Sumit was a witness to the arrest of accused and he also took him for medical examination at GTB Hospital.
PW15 SI Deepak conducted part investigation of this case and collected the Nikahnama as well as age and attendance documents from the school of the victim.
PW16 SI Habib Ahmed Khan was the initial IO who recorded statement of the complainant and got the present case registered. Subsequently, he got the victim medically examined at GTB Hospital and also applied for recording her statement under Section 164 Cr. PC.
PW17 SI Vivek Sharma was one of the IO in this case and was a formal witness.
PW18 SI Anita was assigned investigation of this case on 30.9.2014 and she deposed about the medical examination of the victim on 18.10.2014 and regarding her subsequent statement recorded under Section 164 Cr.PC on the same day. She further proved the arrest documents of the accused.
PW19 Ms. Doly Goyal - Teacher from the school of the victim proved her school admission record.
SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 4 of 16 PW20 Dr. Nusrat Jahan proved the medical observation reports of the victim dated 19.8.2013 and 18.10.2014.
5. Statement of the accused was recorded separately under Section 313 CrPC and all the incriminating evidence was put to him which he denied. He claimed that about 23 days before the date of incident, a quarrel had taken place between the victim and her brother Rashid who gave her merciless beatings on which she went from her house with her friend Gulafsha and after some days she returned to her house. He declined to lead evidence in his defence while claiming that he had never kidnapped the victim or committed rape with her and the victim gave false statement at the behest of her brothers and further added that he got married on 25.8.2013 but the victim was in love with him and when she lost hope of getting married with him after his marriage, she falsely implicated him in this case.
6. I have heard Ld. Addl. PP for the State, Shri DPS Tomar - Advocate from Legal Aid for the accused and have carefully gone through the records.
7. The victim is alleged to have been abducted on 01.08.2013 at about 12.30pm, after her school and while she was returning to her house. She reported at PS Gokal Puri on 19.08.2013. Her statement under Section 161 CrPC was recorded on the same day wherein she stated that on 01.08.2013 her brother Rashid had given beatings to her on some domestic issue and out of anger she went with her friend Gulafsha to her village at Sambhal, UP and stayed there. She further stated that when she made a call at her house, she came to know that her family members had lodged a complaint and as such, SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 5 of 16 she returned back alone. She made no allegations of any kidnapping or abduction against anyone, stating that she was never kidnapped or abducted by anyone and she had gone her own and returned likewise. On the same day, her statement under Section 164 CrPC was also recorded wherein too, she made similar statement, stating that on 01.08.2013, she went away with her friend Gulafsha out of anger and went to Sambhal and had returned back on 19.08.2013 at 06.00am on her own and that she had not grievances against anyone.
8. On 19.08.2013 itself, statement of the mother of the victim was also recorded under Section 161 CrPC by the IO and she reiterated similar facts as stated by the victim. On the basis of these statements, the first IO, ASI Habib Ahmad had prepared a cancellation report but in the meanwhile, the complainant made a complaint to the DCP and the matter was transferred to PG Cell.
9. The case of the prosecution is full of improbabilities and the maternal witnesses have made numerous improvements of material facts which makes their deposition highly doubtful. This would include the victim as well. After the case was reinvestigated, the main IO of this case again applied for the recording of the statement of the victim under Section 164 CrPC, which was accordingly recorded on 18.10.2014 i.e. after more than one year and two months. In the said statement, the victim stated that she was kept under fear by the accused and as such, she had not submitted herself for medical examination. She further stated that the accused had forcibly married her on SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 6 of 16 02.08.2013 and had taken her to Sambhal under compulsion. She alleged that the accused had threatened to kill her brother when she came for the first time to make the statement and as such, she made a false statement. She also stated that the accused had made forcible physical relations with her at Sambhal. Believing on her said statement, the then IO had gone to Sambhal and had collected an alleged nikahnama between the accused and the victim and also recorded the statements of the various persons who had witnessed the said nikah as also the statement of the maulvi and the imam who had allegedly performed the said nikah. However, at the trial all the said witnesses turned hostile and even failed to identify the accused.
10. The victim herself in her deposition before the Court as PW1 gave an improved version. She deposed that on 01.08.2013 after her school was over at about 12.30pm, she was returning back home alone and when she reached at the corner of Gali No.6, she met the accused accompanied by fourfive other boys, who was known to her being a resident of rear street to her house and also since his sister was her friend. She deposed that the accused put a handkerchief on her mouth and pulled her inside a black colour van standing nearby and this incident was seen by her younger brother Amish, though she could not see him. She further deposed that she became unconscious and when she gained her senses, she found herself at a house at Sambhal. She further stated that on 02.08.2013, the accused forcibly entered into a marriage with her in the same house in the presence of a maulvi and thereafter, he had intercourse with her against her wishes. She further stated SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 7 of 16 that she was kept there for 20 days during which period, the accused had regular intercourse with her against her wishes and thereafter, he brought her back to Delhi in a bus and that a van was waiting at the bus stand in which the brother, father and mother and sisterinlaw of the accused were present and then brought her to the house of the maternal uncle of the accused and on the next day, she was dropped outside PS Gokal Puri with a threat that she should tell the police that she had gone alongwith her friend or else they would kill her brother and that she had made the statement accordingly. She also deposed that she had refused for her internal medical examination at the behest of the mother of the accused who had already instructed her in this respect.
11. In the crossexamination, she was duly confronted with her previous statements regarding her improvements made during her deposition. She had never stated in any of her previous statements that the accused had put a handkerchief on her mouth and dragged her into a van and thereafter, she became unconscious. The identity of those fourfive persons, accompanying the accused, could not be disclosed by her though she deposed that they also travelled in the van. She was also confronted with her previous statement regarding the fact deposed by her that the accused had forcibly married her or that she was beaten by him, or that after the alleged nikah, the accused had sexual intercourse with her against her wishes (in the statement under Section 161 CrPC it was recorded that after nikah they resided as husband and wife). She was further confronted with the said statement regarding the SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 8 of 16 fact deposed by her that when she was brought back to Delhi, a van was waiting at the bus stand in which the mother, father and sisterinlaw of the accused were present and they brought her to the house of the maternal uncle of the accused, or that on the next day, she was dropped outside the PS by them with the threat that she should say to the police that she was take away by her friend or else, her brother Rashid would be killed and further that she was instructed by the IO ASI Habib Ahmad that she should tell the Ld. MM that she had gone with her friend. She was also confronted with regarding the fact deposed by her that she had refused for her internal medical examination at the behest of the mother of the accused, who had instructed her in this regard. The numerous material improvements make her testimony doubtful.
12. In her further crossexamination, she admitted that she had called the accused on his mobile phone on 01.08.2013 for fifteen times. On this, a court question was put to her, as to why she had called the accused so many times, to which she answered that since she used to generally talk to the accused, therefore, she called him. Later on, she also admitted that she was in love with the accused.
13. The falsity of the deposition of the victim is writ large in her deposition herself. She claimed to have been abducted by the accused on 01.08.2013 whereas she admitted that she had called the accused fifteen times on that day and was in love with him. Why a person who was in love with the victim and who had been talking to her continuously, would abduct SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 9 of 16 her in the manner as alleged by her? Furthermore, the story of abduction is highly improbable, which is gathered from the crossexamination of her brother Amish, examined as PW5.
14. According to PW5 on 01.08.2013, at about 12.30pm, he was going to the school while his sister was coming back. They both studied in the same school in different shifts i.e. the victim in the morning and PW5 in the evening shift. He deposed that at the corner of the gali accused and three four boys forced the victim to sit in a black colour Maruti van and took her away. He deposed that he followed the van and raised alarm but no one came for the help. He deposed that he informed his mother and elder brother about the incident at about 01.30pm. On the contrary PW4, his brother deposed that he was informed by PW5 about the incident after about one or two days. This is highly unlikely. Either PW5 had not seen anything and was deposing falsely or PW4 was deposing falsely. It is not possible for a brother, who was then aged about 14 years and studying in class 8 that he would keep silent and would not call for help on seeing his sister being abducted by a person known to him. Furthermore, in the crossexamination, PW5 admitted that he was having a mobile phone at that time but he never tried to inform the police. In the crossexamination, PW5 deposed that the place of incident was situated at a distant of about 100 or 150 meters from the gate of the school. He further deposed that there were more than two thousand girls studying in the school, who were coming out and the students of second shift shift had also started gathering. He further deposed that he SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 10 of 16 only raised an alarm but did not seek any help personally from any person and after thirty minutes of the incident, he returned back to his house. He also deposed that his mother or brother did not make any call to the PCR in his presence, though he had told the name of the accused to them. This is again highly improbable that the accused would dare to commit such an act in the presence of thousands of students and their guardians, most of whom must have come to pick up their wards and in such a crowded area. It is again highly improbable that even despite his naming the accused to his brother and mother as her abductor, they would not have informed the police immediately. The FIR was lodged at 09.35pm i.e. almost nine hours of the incident. There no explanation to this delay when there was an eye witness and when the identity of the accused was known.
15. The other brother of the victim, PW4 who is also the complainant of this case simply deposed about his lodging the missing report and the other fact of PW5 informing him about the incident after one or two days and thereafter reporting of the victim at the PS. He was accordingly declared hostile by the prosecution and was crossexamined by the Ld. Addl. PP, wherein he admitted all the facts as put to him by the Ld. Addl. PP, in a parrot like manner. He admitted in the said crossexamination that on 03.10.2013, he had gone to Sambhal with the police where a school bag of the victim was found which he identified and in the crossexamination he deposed that the said bag was taken to PG Cell office and was shown to the victim there. The part IO, PW15 had also deposed about this bag containing SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 11 of 16 clothes of the victim. On one hand, this bag was never seized as case property nor produced before the Court and on the other hand if the IO and PW4 are to be believed and the bag was containing clothes of the victim. It would mean that she had taken along them with her and that she had gone after making preparations to leave her house.
16. The victim was also produced before the doctor for medical examination on 19.08.2013 and as per PW6 Dr. Sushama, she gave history of lost on 01.08.2013 and found on 19.08.2013. She made absolutely no allegations before the doctor. PW1 victim had earlier deposed that she was asked by the mother of the accused to refuse for medical examination but when she so asked her, has not been stated. Even otherwise, once she was under police protection and that of her family members, there could not have been any fear factor.
17. The other allegation made by the victim that she was forced into marriage by the accused on 02.08.2013 at Sambhal, has been totally demolished by the alleged witnesses of the said nikah, i.e. PWs 9, 10, 11, 12, 13, who not only refused to have witnessed the nikah between the accused and the victim but had also refused to identify the accused and further denied their signatures on the said nikahnama. PW9 denied to have prepared the nikahnama and also denied that it was having his signatures at any place on it.
18. PW13, the imam of the masjid, who had allegedly executed the nikah deposed that he had executed the nikah between the accused and one SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 12 of 16 Reshma on 25.08.2013 on the basis of the nikahnama, Ex.PW13/A. He, however, failed to identify the accused as the same person whose nikah was performed by him. This date deposed by this witness i.e. 25.08.2013 assumes importance as in the crossexamination, the victim PW1 had admitted that the accused got married on 25.08.2013. This means that the accused had never entered into the marriage with the victim but got married with one Reshma on 25.08.2013 and all the allegations in this regard are false.
19. PW15 deposed that he had gone to Sambhal on 03.10.2016 and had met one Mohd. Aslam, examined as PW11, who had informed him that the victim had met him and informed him that her relatives used to beat her and she was in love with the accused and further that they performed a nikah there. This deposition also goes against the prosecution case and would shown that the victim had eloped with the accused but nikah could not be proved.
20. PW16 ASI Habib Ahmad was the first IO and he had prepared a cancellation report on the basis of statement of the victim recorded by him wherein, she made absolutely no allegations against anyone. However, later on the victim made allegations against this witness as well, of not investigating the matter properly. Thus, it is seen that none of the alleged fact could be proved by the prosecution regarding kidnapping of the victim by the accused or her being taken away by the accused to Sambhal or the accused having performed any nikah with her and even of physical relations/sexual intercourse. It may be reminded that the second statement of SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 13 of 16 the victim under Section 164 CrPC was recorded after one year and two months and during this period, she remained with her family. Hence, the possibility of her being tutored cannot be ruled out. It is a settled law that such a statement should be promptly recorded so as to avoid any tutoring or manipulations. It is a fact admitted by the victim herself and also the defence of the accused that he had a fight with the brother of the victim a few days before the alleged kidnapping and therefore, his false implication cannot be ruled out.
21. There is a reasonable apprehension that the victim had never gone alongwith the accused as she had firstly stated that she had gone alongwith her friend Gulafsha. It was never investigated whether any person in the name of Gulafsha ever existed and if so, she was never interrogated whether the victim had met her or gone with her.
22. Lastly, the age of the vicitm could also not be proved on record and it could not be proved that she was a minor. The victim herself could not deposed the date of birth of her brothers or sister. It was never asked from PW4, her elder brother. The only piece of document relied upon by the prosecution was her school record proved by PW19, who deposed that the victim was admitted in their school in class 6 on the basis of SLC issued by the previous school and the date of birth was entered in their records on the basis of the SLC, as 22.07.1998.
23. In Rakesh Kumar Vs. State 109 (2004) DLT 826, there was no birth certificate issued by the MCD regarding the date of birth of the victim. There SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 14 of 16 was only a statement made by her mother which was made the basis of her age but during deposition, she failed to depose the date of birth of her children. In that case, a transfer certificate issued by the principal of the school was relied upon. It was observed and held that "in absence of birth certificate and other reliable material regarding the date of birth, it cannot be said with certainty that the date of birth of Poonam is 01.03.1975 as given in the school certificate, is her correct date of birth. It is a matter of common knowledge that at the time of admission in the school, parents generally tend to get the age of their ward recorded on the lower side so that they do not become over age while searching job and they remain in service for longer period". Similar observation was made in Devanand Vs. State (NCT of Delhi) 2003(1) RCR (Crl.) 777 Delhi HC, wherein the SLC was not found to be a reliable piece of evidence in the absence of any other authentic document. Hence, the abovesaid school record of the victim is of no help to the prosecution to establish the age of the victim.
24. Apart from that the copy of the birth certificate of the victim was also placed on record, Mark A wherein her date of birth has been mentioned as 22.07.1998. However, this certificate was found to be a forged and fabricated document, as deposed by PW8 from the office of Registrar, Births and Deaths. The said witness deposed that the said certificate or its record was not available in their office. As per the record, the certificate bearing number 2510 (Mark A) was dated 23.07.1998 and the certificate was a fake document. Thus, the complainant had used a fake certificate to show the age SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 15 of 16 of the victim. The presumption would go in favour of the accused that the victim was major.
25. From the above discussion, it is clear that the accused had never abducted the victim. She was in love with him and either she eloped with him or had falsely implicated him as he entered into marriage with another girl or because of the enmity with her . The factum of marriage could also not be proved. In cases of rape, the medical examination is of foremost importance, which can prove the allegations and is the only other corroborative evidence, which is missing in this case.
26. Considering the conduct of the victim and the above facts, the benefit of doubt has to be given to the accused. Accordingly, I hold that the prosecution has failed to proved it case against the accused beyond reasonable doubt and accused Guddu @ Haseen Babu is acquitted of the offences punishable under Sections 363/366A/376/506 IPC and Section 6 of the POCSO Act. He be set at liberty.
File be consigned to record room after complying with the provisions of Section 437A CrPC.
PRONOUNCED IN OPEN COURT ON 18th day of October 2016 (Sanjay SharmaI) Addl. Sessions Judge01 (NE) Karkardooma Courts, Delhi SC No. 45008/2015 FIR No.331/2013 PS Gokalpuri page 16 of 16