Delhi District Court
State vs . (1) Rafiq S/O Sannu Khan, on 8 February, 2012
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE03(NE):KARKARDOOMA COURTS: DELHI.
SC NO.67/10
Unique ID No.02402R0279042007
Date of institution:13.4.2007
Date of transfer: 04.03.2010
Date on which reserved for orders:07.2.2012
Date of delivery of order: 08.02.2012
State Vs. (1) Rafiq s/o Sannu Khan,
R/o Village Midha Pur, PS Alau,
Teh. Banga, Distt. Main Puri, U.P.
(2) Jalaluddin s/o Munna Khan
R/o Village Midha Pur, PS Alau,
Teh. Banga, Distt. Main Puri, U.P.
(3) Anees s/o Masjit Khan
R/o Sant Kuniya, PS Samshabad, District
Farukhabad, U.P.
(declared PO vide order dated 06.02.08 of
Ld. MM)
(4) Rehana w/o Anees
R/o Village Sant Kuniya, PS Samshabad,
District Farukhabad, U.P.
(declared PO vide order dated 06.02.08 of
Ld. MM)
FIR NO. 45/07, PS Nand Nagri 1/40
FIR No. 45/07
PS Nand Nagri
U/s 363/368/34 IPC
JUDGMENT:
1. The prosecution case is based upon the complaint of father of the prosecutrix dated 16.1.2007 wherein he stated that he was working as a carpenter. Prosecutrix aged 16 years was his eldest daughter and had studied upto class 4 and was engaged in house hold work. Anees r/o Village Samsabad Santkuiya, P.S. Samsabad Distt. Farukhabad, U.P. , lived as a tenant in his house for the last 45 months and he used to ply auto rickshaw. About three months back, he vacated the tenanted premises. In the intervening night of 11/12.1.2007 in his absence and that of his family members, accused Anees enticed the prosecutrix to accompany him. He tried to trace out his daughter at his level. Today he received a phone call from his daughter that neither should he harass the family (wife and children) of Anees nor should he approach the police otherwise Anees would kill her as she was in his custody. He was sure that Anees had enticed his daughter. Anees was father to five children and legal action may be initiated against him. On the FIR NO. 45/07, PS Nand Nagri 2/40 basis of his complaint, case u/s 363 ICP was got registered by SI Mohan Singh. The matter for further investigation was assigned to SI S.B. Gautam. During pendency of the investigation, the prosecutrix made a telephone call to her parents that she was at village Maidapur, Distt. Mainpuri, U.P. Parents of the girl alongwith mother of Anees reached at village Maidapur, where the prosecutrix was found at a house. Accused Rafiq (chacha of accused Anees) and accused Jalaluddin (cousin brother of accused Anees) took the prosecutrix inside the house on the pretext of getting her ready and made her parents stay over night. However, in the morning they did not handover the prosecutrix to them and informed them that she had gone to some other place. On interrogation it was revealed that accused Anees, who was already married, had been provided shelter by accused Rafiq and Jalaluddin and they had wrongfully confined the prosecutrix at their residence knowing that she had been kidnapped and the accused persons i.e. Rafiq and Jalaluddin were sent up to face trial u/s 368/34 IPC.
2. The main accused Anees and his wife Rehana could not be arrested. On 12.4.2007, the prosecutrix made a call from FIR NO. 45/07, PS Nand Nagri 3/40 Lucknow. On 13.4.07 parents of the prosecutrix reached at Lucknow at Lokesh Nagar, Ganda Nala, Ujala Company from where the girl / prosecutrix was recovered. She was ill. Accused Anees was also caught at the spot. Parents of the prosecutrix wanted to proceed for Delhi, however, due to ill health of the prosecutrix she was got admitted at a hospital in Lucknow. Finding an opportunity accused Anees escaped from there. On 14.4.2007, they arrived at Delhi. On 15.4.2007, the prosecutrix was produced at the P.S. Her statement was recorded wherein she disclosed that she had been kidnapped by accused Anees and his wife. That on the way she jumped from the vehicle, as a result of which, she sustained injuries. She was confined at village Maidapur, at the house of Rafiq and Bhure. Her parents also reached there but she was not handed over to them. She was taken to Lucknow from where she made a call to her parents. The prosecutrix was got medically examined from GTB Hospital. Since accused Anees and Rehana were not traceable, they were got declared proclaimed offenders. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C. After completing necessary formalities, supplementary charge sheet against accused Anees and Rehana was filed u/s FIR NO. 45/07, PS Nand Nagri 4/40 363/366/368/376/34 IPC.
3. Accused Rafiq and Jalaluddin were charged for the offence punishable u/s 368/34 IPC to which they pleaded not guilty and claimed trial.
4. Prosecution has examined 8 witnesses in support of its case. ● PW1 is Mohd. Naseem, father of the prosecutrix, PW2 is Farida, mother of the prosecutrix and PW3 is the prosecutrix herself.
● PW8 is Dr. Ankita Wanchoo who proved the MLC prepared by Dr. Rajni as Ex.PW8/A. ● Four police officials have been examined by the prosecution. PW4 is ASI Mohd. Shamim who recorded the FIR vide Ex.PW4/A, PW5 is Inspector Mohan Singh. He recorded statement of complainant Mohd. Naseem vide Ex.PW1/A and prepared ruqqa on the basis of the same vide Ex.PW5/A. PW6 Const. Prem Chand accompanied IO SI S.B.Gautam on 12.2.2007 to village Maidapur, Distt. Mainpuri, U.P. PW7 is Inspector S.B. Gautam. He stated that on 16.1.2007, complainant Mohd. Naseem came to the police station and gave his statement regarding kidnapping of his minor daughter. After registration of the case it was handed over to him FIR NO. 45/07, PS Nand Nagri 5/40 for investigation. On 10.2.2007, complainant came to the police station and informed him that his daughter was available at village Maidapur, Mainpuri, U.P. The complainant and his wife went to the village but custody of the girl was not handed over to them by the accused persons. On 12.2.2007, he went to village Maidapur, Mainpuri alongwith Const. Prem Chand and the complainant. He tried to locate them but of no avail. Accused Bhure and Rafiq met him and he gave notice to them to appear at Police Station Nand Nagri. On 15.2.2007, accused persons Bhure and Rafiq came to the police station alongwith the complainant. He interrogated the accused persons, arrested them after conducting their personal search. He also recorded their disclosure statements vide Ex.PW1/F to Ex.PW1/G. He searched for the prosecutrix but of no avail. He got the charge sheet filed against the accused persons u/s 363/368/34 IPC. On 15.4.2007, complainant came to the police station alongwith the prosecutrix. He recorded her statement, got her medically examined from GTB Hospital. She was admitted in the hospital for three days. On 18.4.2007, her statement u/s 164 Cr.P.C. was recorded. Accused Anees and Rehana were declared proclaimed offenders and supplementary charge sheet was filed FIR NO. 45/07, PS Nand Nagri 6/40 against them showing them in column No.2 in red ink.
5. Statements of accused persons were recorded u/s 313 Cr.P.C. in which they stated that since the main accused Anees and Rehana were not traceable so they had been falsely implicated due to being their relatives. Accused Anees and his wife Rehana lived at village Sant Kuiya, Distt. Farukhabad, U.P., permanently for more than 25 years while they lived in Distt. Mainpuri.
6. In their defence, they examined two witnesses. ● DW1 is Satya Prakash who stated that accused Rafiq and Jalaluddin who were known to them since their childhood were living in a house situated 34 houses away from his house. Maseet (brother of accused Rafiq and father of accused Anees), sold his house in the village and went to his inlaws house i.e. village Santkuiya, Distt. Farukhabad about 2526 years ago. Thereafter they never visited their village. Maseet and accused Rafiq had inimical terms in connection with selling of the aforesaid house. Accused Anees never came to the village or at the house of accused persons with any girl and the accused persons have been falsely implicated by the police. In his cross examination, he stated that accused Rafiq and Jalaluddin are chacha and bhatija. Rafiq is FIR NO. 45/07, PS Nand Nagri 7/40 chacha and Jalaluddin is bhatija. They were residing in the separate houses. He had not made any written complaint anywhere regarding false implication of the accused persons.
7. The accused Rafiq examined himself as DW2 u/s 315 Cr.P.C. He stated that on 11.2.2007, some police persons came to his village and enquired from him about house of Anees. Thereafter, he alongwith accused Jalaluddin and police persons went to village Santkuiya at the house of accused Anees. Father of accused Anees namely Maseet met them. Thereafter Maseet was taken by the police men to village Amathi for search of accused Anees and they remained in the village for 78 hours and thereafter Maseet was left in the village and police brought him and Jalaluddin to Delhi and implicated in the present case.
8. I have heard Ld. Addl. PP for the State and Ld. Defence Counsel Mr.S.Mansoori and gone through the entire record including the written submissions filed on behalf of the defence.
9. The material prosecution witnesses are PW1 Mohd. Naseem, PW2 Farida and PW3, the prosecutrix. PW1 Mohd. Naseem set the state machinery into motion by filing complaint that the prosecutrix had been missing since the intervening night of FIR NO. 45/07, PS Nand Nagri 8/40 11/12.1.2007. However, the complaint was filed by Mohd. Naseem on 16.1.2007. In his statement before the court he stated that in the year 2007, his daughter, the prosecutrix was 16 year old. In the intervening night of 11/12.1.2007, Rehana w/o Anees came to their house and after inducing his daughter (prosecutrix), kidnapped her. Her husband Anees was also with her at that time. Anees and Rehana used to reside as tenant in their house. However, three months prior to the said incident, they had vacated his house. 12 days, he searched for his daughter (prosecutrix) on his own but could not trace her. On 16.1.2007, they went to the police and he lodged a complaint before the police of police station Nand Nagri. They received a telephonic call from their daughter who stated that she was in the custody of Anees and was present somewhere in village Maidapur, Distt. Mainpuri, U.P. He alongwith his wife went to Maidapur to the house of accused Rafiq. Accused Bhure was also present there at that time. Both the accused were identified by the witness. They enquired about their daughter upon which both the accused assured them that they would allow them to meet their daughter after some time. Later they told them that they did not know the place where his daughter FIR NO. 45/07, PS Nand Nagri 9/40 and accused Anees had gone and turned them out of their house. They came back to Delhi. After 1012 days accused Rafiq and Bhure came to Delhi and after making enquiries from them they were arrested by the I.O. Later on they received a telephonic call from their daughter (prosecutrix), upon which he alongwith his wife went to Lucknow near Ujala Company. His daughter was present there. Accused Anees was also there. As the condition of his daughter was serious, they got her admitted in a local hospital. In the meanwhile, accused Anees managed to run away. Later on they came to Delhi with their daughter and met the police. Police got her medically examined and thereafter produced her in the court.
10. PW2 is Farida, wife of the complainant. She stated that her daughter (prosecutrix) aged about 16 to 17 years was found missing on 11/12.1.2007. On 16.1.2007, Anees telephoned them that her daughter (prosecutrix) was with him and he would sell her. Then she went to police station and got the case registered. Though actually the case was got registered by her husband PW1 Mohd. Naseem. PW1 Mohd Naseem did not say about such telephone call from accused Anees rather he stated that he received FIR NO. 45/07, PS Nand Nagri 10/40 a telephone call from his daughter (prosecutrix). In the complaint Ex. PW1/A filed by complainant Mohd Naseem it is mentioned that he received a phone call from his daughter wherein she stated that should he neither harass the family (wife and children) of accused Anees nor should he initiate any police action otherwise Anees would kill her as she was in the custody of Anees. The threatenings as explained by both the witnesses also differ. PW2 Farida stated that accused Anees threatened to sell the prosecutrix while PW1 Mohd. Naseem stated in his complaint Ex. PW1/A that the prosecutrix told him that Anees was threatening her that he would kill her if his wife and children were harassed by her father. PW2 Farida has stated that on 27.1.2007, her daughter (prosecutrix) telephoned them through one lady that the place was Maidapur, Mainpuri and thereafter that lady cut off the phone. However, PW1 Mohd. Naseem never stated that any such call was received through some lady who cut off the phone rather he stated in his testimony before the court that they received a telephone call from their daughter (prosecutrix) who stated that she was in the custody of accused Anees and was present at village Maidapur, Distt. Mainpuri, U.P. He has testified about only one call received FIR NO. 45/07, PS Nand Nagri 11/40 from the prosecutrix. There is no investigation by the police on the point as to who was the lady who made a telephone call to the parents of the prosecutrix on 27.1.2007. If phone call was received on 27.1.07 why parents of the prosecutrix went to village Maidapur, Mainpuri only on 10.2.07 while the police did not accompany them even then.
11. PW2 Farida has further stated that she made enquiries regarding whereabouts of her daughter from Rehana (wife of accused Anees) who is also a co accused who told them that her chachia sasur was residing in Maida Mainpuri. Thereafter, she along with Rehana and her husband reached at Mainpuri. PW1 Mohd. Naseem has nowhere stated about the fact that accused Rehana accompanied them to village Maida Mainpuri. PW2 Farida further stated that they saw clothes of her daughter lying at the house of accused Rafiq. The house belonged to Rafiq and Jalaluddin and they were identified by the witness. She started crying for her daughter. On this accused Rafiq told her that prosecutrix was there and she was being brought. Immediately her daughter came on hearing her cries. Both the accused persons did not allow her daughter to come to her. She was taken to some FIR NO. 45/07, PS Nand Nagri 12/40 distance and was made to stand there. Both the accused persons snatched clothes of her daughter (prosecutrix) which she had collected from that house. She requested accused Rafiq and touched his feet to release her daughter. On this both the accused persons gave assurance to them that they would release her daughter just then and they also asked them not to worry; that they were releasing her daughter after she wore clothes belonging to her. They stayed there whole night on the assurance that they would release their daughter. Next morning they again requested the accused to release their daughter. On this, both the accused persons told them that Anees had taken away their daughter (prosecutrix) somewhere and they could not do anything else. Both the accused persons told her that prosecutrix remained there for about 56 days with Anees. Thereafter they came back to Delhi while searching her daughter at the instance of mother of accused Anees. In his testimony PW1 Mohd. Naseem nowhere stated about their daughter being brought before them, clothes of their daughter lying at the house of accused Rafiq, PW2 (his wife) collecting the clothes and the clothes being snatched by the accused persons.
12. PW2 Farida has further stated that on 12.4.2007, her daughter FIR NO. 45/07, PS Nand Nagri 13/40 telephoned them from Lucknow that she was at Lucknow with Anees at a place known as Ujala which was disclosed to her daughter by a person running STD booth. Thereafter she alongwith her husband went to Lucknow at the above said place i.e. Ujala. They found the prosecutrix with accused Anees. They caught hold of Anees. Her daughter was not in a good condition as she was not feeling well. They took the prosecutrix to a doctor but the said doctor refused to give any treatment. Thereafter they took the prosecutrix to a big hospital with the help of two other persons. Her daughter remained in that hospital for about three hours. When her husband went for drinking water with those two persons, accused Anees got released himself from her clutches and ran away. They tried to chase him but could not succeed. It has been pointed out by Ld. Defence Counsel that prosecution story is not plausible. It does not stand to reason that the accused was left with PW2 Farida, 37 years old woman while her husband alongwith two other men left for drinking water as it would not be difficult for any adult male to get himself released from a female. The investigating agency has not conducted any investigation about the two persons who accompanied the prosecutrix and the FIR NO. 45/07, PS Nand Nagri 14/40 accused to the hospital as their testimony could have been very relevant. The prosecution witnesses have tried to conceal certain things and therefore, it is not believeable that the mother of the prosecutrix was left with the accused Anees alone and from there he ran away.
13. PW2 Farida has also stated that she had given her statement before the police and the police had not read over her statement to her. In her cross examination she stated that she met Rehana, the absconding accused (wife of Anees) and she took her to her matrimonial home where she met mother of Anees who took her to the house of accused Rafiq. PW1 is silent on the point that if Rehena was present at Delhi and she accompanied them to the village or Rehana was present at the village itself and she took them to her matrimonial home. PW1 is also silent on the point if he and his wife visited the matrimonial home of Rehana and mother of Anees took them to the house of accused Rafiq. PW2 also deposed that she had stated to the police that both the accused persons told them that Anees had taken their daughter (prosecutrix) somewhere and they could not do anything else and her daughter remained there for about 45 days with Anees. She was confronted FIR NO. 45/07, PS Nand Nagri 15/40 with Ex.PW2/DA where it was not so recorded. She stated that her daughter was about 17 year old at the time of incident. She denied the suggestion that the prosecutrix who was above 18 years at the time of incident was having an affair with accused Anees and she left the house of her own will with Anees.
14. PW3 is the prosecutrix. She stated that on 11.1.2007 in the night there was electricity failure in the area. She was sleeping inside the room alongwith her parents, brothers and sisters. On that day, at about 1 or 2 a.m., her mother heard the voice of Anees from outside. Her mother told her to go and see. She went outside the room. She saw Anees and his wife standing outside the room but inside the house. They called her towards them. Anees covered her mouth with his hand. He was having a handkerchief in his hand. He pushed her towards the stairs. She saw there were three persons standing near the stairs. They pulled her outside the house and dragged her towards kabristan. She felt giddiness at that time. The wife of Anees namely Rehana closed the door of the room in which they were sleeping from outside with latch. One marshal vehicle was found parked near kabristan. She was made to sit in the vehicle. Three women were already sitting in the said FIR NO. 45/07, PS Nand Nagri 16/40 vehicle. She started crying and raised alarm. The vehicle had four women and four men including Anees and his wife. She became scared and pleaded them to release her. Thereafter she fell unconscious. The details as narrated by the prosecutrix is totally contradictory to the statement given by other PWs. PW3, the prosecutrix has clearly stated that after kidnapping her when they were going in a vehicle there were four women and four men including Anees and his wife which means Anees and his wife both kidnapped the prosecutrix while PW1 Mohd. Naseem stated in his complaint Ex.PW1/A that he received a call from his daughter, the prosecutrix who stated that he should not harass Anees's wife and his children nor should he initiate any police action which reflects that the family of Anees (wife and children) was still residing close to the house of the complainant. Whereas PW2 Farida testified that she made enquiry about whereabouts of her daughter. Rehana told her that her chachia sasur was residing in Maida Mainpuri. She also stated that she met Rehana who took her to her matrimonial home where she met mother of Anees who took her to the accused Rafiq. Therefore, from the testimony of the prosecution witnesses it is not clear whether Rehana kidnapped the FIR NO. 45/07, PS Nand Nagri 17/40 prosecutrix and accompanied the accused Anees to the village or she remained at Delhi.
15. PW3, the prosecutrix has further stated that when she regained her consciousness she found that the vehicle was passing through a jungle type area. She again requested them to leave her and pleaded with all of them to release her, but they did not listen to her request. Thereafter she jumped from the running vehicle which resulted in injuries on her head and hands. They stopped the vehicle. Anees and his wife came to her and put mud on the back of her head which was bleeding. They wrapped her in a blanket and again took her into the vehicle. Thereafter she fell unconscious. On the next day when she regained consciousness she found herself in the house of accused Rafiq and Jalaluddin at village Maida District Mainpuri. The accused persons had one very big jhuggi at that place. On the one hand prosecutrix has deposed that when she tried to escape by jumping from the vehicle, accused Anees and his wife Rehana brought her back to the vehicle which means accused Rehana played an active part in kidnapping of the prosecutrix whereas PW2 Farida, mother of the prosecutrix stated that she alongwith her husband and Rehana reached at FIR NO. 45/07, PS Nand Nagri 18/40 Mainpuri. From the testimony of PW2 it seems that Rehana accompanied them from Delhi to Mainpuri and she also stated that Rehana, wife of accused Anees took her to her matrimonial home where she met mother of Anees. Had accused Rehana played an active part in kidnapping of the prosecutrix she would not have escorted the complainant and his wife to her matrimonial home to meet her mother in law. PW3, the prosecutrix also stated that she asked Anees and his wife and the accused persons as to why they had brought her there which again reflects that she remained present at the village. The testimony of the witnesses are in contradiction regarding the role played by accused Rehana.
16. PW3 prosecutrix has further stated that whenever, she asked from Anees as to where he had brought her, he used to say that it was Bombay and the accused persons also used to reiterate the same and used to threaten her to stay there in the same condition. She saw pistol in the hands of Rafiq and therefore she became scared. The investigating agency has not made any effort to find out the pistol which was used by the accused persons in the commission of crime and no proper investigation has been done in the matter. PW3, the prosecutrix has also stated that the accused FIR NO. 45/07, PS Nand Nagri 19/40 persons used to keep her in the jhuggi which was closed and they used to beat her. Anees used to beat her and the accused persons used to misbehave with her after consuming liquor and would not allow her to speak. One boy namely Raju, who was son of one of them had a mobile phone. She gave one missed call from his mobile to her house. Anees and accused persons noticed the same and thereafter they took her to the jhuggi where they used to keep her and they put grass around the jhuggi on fire. She started crying and raised alarm. Thereafter they put out the fire and threatened her that in case she attempted to tell anybody about it then she would be killed. She has further stated that on 27.1.2007, in the morning hours, she saw a mobile phone lying. She picked up the phone and went towards the jungle alongwith the daughter of Rafiq for easing themselves and called up her mother from mobile phone. The accused persons were not disclosing the place where they had kept her. She had heard the daughter of Rafiq speaking on telephone to her mother in law that she had reached safely at Maida, Mainpuri. Thereafter she got an idea that the place was not Mumbai but Maida, Mainpuri. She told her mother to get her released from the accused persons otherwise they would kill her FIR NO. 45/07, PS Nand Nagri 20/40 and also told the place where she was kept. Thereafter they came back to jhuggi. She stated in her testimony before the court that the accused persons used to make her drink one glass of juice every day stating that it was pomegranate juice and they used to put two tablets in the same and used to tell her that these were energy tablets. The juice used to taste sour. After drinking the juice, she would feel giddiness and thereafter she used to sleep. She also used to feel loss of power in her limbs. She used to request the accused persons, Anees, his wife Rehana and other women present in the house to release her but they used to threaten her to kill and used to speak, "BOLA MAT KARO, MOHALLE WALE SUN LENGE". The wife of Anees had left. On being questioned by the court "When the wife of Anees left?", the witness stated that wife of Anees left the same day after reaching Maida, Mainpuri. If Rehana left Maida Mainpuri on the same day when did she threaten to kill the prosecutrix. The accused persons were not giving her food and used to keep her hungry. On 28.1.2007, in the evening at about 7 p.m., her mother and father came to the house of accused persons. Her mother and father started crying on seeing her. Her mother held the feet of accused Rafiq and was pleading to him to FIR NO. 45/07, PS Nand Nagri 21/40 release her as she had got her with great prayers. When she saw her mother she walked to meet her but Bhura and Rafiq stopped her and said that she was wearing clothes of their daughter and they would make her ready and thereafter, send her with her mother and then she was taken back to the jhuggi. Accused Anees and two accused persons Rafiq and Jalaluddin started beating her and made her drink the juice. She protested saying it was sour but they forced her to drink and thereafter she felt giddiness and fell asleep. On the next day, she got up and found that her parents were sent back by the accused persons. If parents of the prosecutrix saw her at Maida Mainpuri on 28.1.07 and when she was not handed over to them then why they informed the police only on 10.2.07. She enquired from them as to where her parents were, on this accused Bhura and Rafiq told Anees to take her somewhere else. Thereafter Anees took her to the house of sister of Rafiq. She stayed one night at her house. On the next day, both the accused persons came there and asked Anees to take her somewhere else from there. Thereafter Anees took her to Lucknow. The accused persons used to make call to Anees at Lucknow and Anees also used to give call to them. The wife of Anees and the accused persons were also FIR NO. 45/07, PS Nand Nagri 22/40 visiting at Lucknow. Anees also used to make her drink juice at Lucknow and after drinking the same, she used to fall unconscious and thereafter they would close the door from outside and would tell landlord not to open the door as she was unwell. Thereafter Anees brought his brother and wife to Lucknow and they were also living there to guard her. Thereafter, one day the same marshal vehicle was brought at Lucknow and Rehana also came and she was taken to court at Lucknow. One lawyer asked her as to whether she was willing to marry Anees but she said 'NO' to them. Thereafter Anees and others who had come in the vehicle started forcing her back but the lawyer did not allow them to take her and kept her in their safe custody. Thereafter the lawyer and Anees went out and had some conversation amongst themselves and thereafter the lawyer came back and asked her to marry Anees but she told him again that Anees was married and having four children and she was not willing to marry him. Thereafter the lawyer allowed her to go with them. The accused Anees was accompanied by three other persons to the court who were the same persons who were present when she was abducted from Delhi. Anees hit her with scissors on her stomach on the left side.
FIR NO. 45/07, PS Nand Nagri 23/40 Thereafter Anees left and his sister in law i.e. the wife of his brother made her drink juice and thereafter she became unconscious. One day sister in law of Anees was in the toilet and Anees and his brother were not present in the room and door was open, she went out of the room to one STD booth which was near the room. She requested him to allow her to make a call as she did not have the money. He allowed, however due to being perplexed she could not dial the number properly. Thereafter he offered her his mobile phone to make the call. She told him the number and he made a phone call to her house where her mother picked up the phone and she spoke to her mother. She told her mother that she was in Lucknow and they were planning to shift her to some other place where no body could trace her. At Lucknow, she had over heard Anees speaking to Bhura and Rafiq to demand money from her parents. He himself was also demanding money from her parents. However, the parents of the prosecutrix nowhere stated that any demand of money was raised by Anees. The accused persons had been arrested on 15.2.07 and they were bailed out in October 2007, much after the prosecutrix was recovered so when did she over hear Anees speaking to Bhura and Rafiq to demand FIR NO. 45/07, PS Nand Nagri 24/40 money.
17. PW3 the prosecutrix further testified that the STD Booth owner told her mother on mobile phone that she was kept at Shabana's building in front of Ujala's complex near kabadi shop and also told them the way to reach at that place. He also told them to give him a call before coming and he would disclose the way. She requested the STD booth owner not to disclose this fact to any person. On the next day, in the morning her parents came. She started crying on seeing her parents. They also cried as she was in a bad condition. The STD booth owner and his sister accompanied her parents to the room of Anees. Her parents brought her from there. Anees was not allowing her to go on the pretext that she had married him and also threatened her that in case she accompanied her parents, he would shoot her. On the way to Delhi she fell sick and thereafter she was hospitalized at Civil Hospital at Lucknow. Thereafter she was brought to Delhi and Anees fled away from there. She stated that she was taken to the house. Thereafter she was medically examined.
18. MLC of the prosecutrix has been proved by PW8 Dr. Ankita Wanchoo as Ex.PW8/A. PW8 Dr. Ankita Wanchoo stated that as FIR NO. 45/07, PS Nand Nagri 25/40 per record on 15.4.2007 one Sama Praveen was brought before Dr. Rajni by SI S.B. Gautam PS Nand Nagri with the alleged history of kidnapping and sexual assault since 11.1.2007 till 14.4.2007. There was alleged history of last intercourse on 13.4.2007 and the prosecutrix had changed her undergarments. On examination her abdomen was soft, per specilum hymen torn. As per MLC, Ex.PW8/A the prosecutrix stated that she had last intercourse on 13.4.2007 while she was produced before the doctor for examination on 15.4.2007.
19. It has been contended by Ld. defence counsel that there is nothing on record to suggest that prosecutrix had sustained injuries on her head and hands due to jumping from the running vehicle. The MLC of the prosecution does not show any external injury on her person. Prosecutrix also stated that she was hit by Anees with a scissors on the stomach on the left side. However, as per MLC there were no external injuries on the person of the prosecutrix. Therefore, claim of the prosecutrix that she had been hit with scissors on her stomach is falsified.
20. PW3, the prosecutrix also stated that she was produced before the Ld. M.M. for recording of her statement. Her statement u/s 164 FIR NO. 45/07, PS Nand Nagri 26/40 Cr.P.C. which is proved as Ex.PW3/A is as under: "ANEES PEHLEY HAMARA KIRAYDAAR THA. HAMARE GHAR KE NEECHEY WALE KAMRE MAIN APNI BIWI REHANA AUR PANCH BACHCHON KE SAATH REHTA THA. AMMI NE UNKO KUCHH DIN PAHLEY HI GHAR SE NIKAAL DIYA. EK DIN RAAT KE SAMEY REHANA HAMARE GHAR AAI AUR BAHLA PHUSLA KAR MUJHEY NEECHEY GALI MAIN LE GAI, JAHAN ANEES KE SAATH 23 AADMI AUR KHARE THEI JO MERE MUHAN PER KAPRA RAKH KAR JABARDASTI GHASITTEY HUAI MUJHEY SHAMSHAN KI AUR LE GAYE AUR SAFED MARSHAL GADI MAIN BETHA DIYA JISMEY CHAAR AURAT BHI BETHI THI. MAI BEHOSH HO GAI. THORI DER BAAD HOSH AANEY PER MAI HATHAPAI KARTE HUEY CHALTI GADI SE KOOD GAI AUR MERE SAR AUR SIDHA HAATH TOOTPHOOT GAYE. MUJHEY PHIR GADI MEIN DAAL KAR VEY LOG MUJHEY MAINPURI / MAIDAPUR GAON LE FIR NO. 45/07, PS Nand Nagri 27/40 GAYE. VAHAN SE LUCKNOW AUR NA JAANE KAHANKAHAN LE JATEY RAHEY. ANEES AUR REHANA BHI SAATH THEY.
ANEES NE MERE SAATH GALAT KAAM BHI KIYA. MAIN JAGAH JAGAH SE APNI AMMI KO 65852724 PER PHONE KARTI RAHI AUR PATA LAGNE PER YEH LOG MUJHEY DOOSRI JAGAH LE JATEY RAHEY. PHIR EK DIN AMMI POLICE KE SAATH MAIDAPUR PAHUNCH GAI AUR CHAAR DIN PEHLEY MUJHEY DELHI LE AAI. ANEES NE MERE SAATH JABARDASTI KI HAI, USEY SAJA DILAI JAYE. VOH MUJHEY KENCHIYON SE MAARTA THA.
(English translation: Anees was our tenant. He used to live in the room down stairs with his wife Rehana and five children. He vacated the premises a few days ago. One night Rehana came to our residence and persuaded her to come down stairs in the gali where Anees alongwith 23 people was standing. They put a cloth on her mouth and dragged her towards cremation ground and made her sit in FIR NO. 45/07, PS Nand Nagri 28/40 a white marshal vehicle. Four women were seated in the vehicle. She fell unconscious. When she regained consciousness she started struggling and jumped out of the running vehicle, as a result of which, she got some injuries on her head and right hand.
She was taken to Mainpuri, Maidapur village. She was taken to Lucknow and some other places. Anees and Rehana were with her. Anees did 'galat kaam' with her (sexual intercourse against her wishes). From various places she called up her mother on phone No.65852724 but on coming to know about the phone they would take her to another place.
One day her mother alongwith police reached at Maidapur, four days ago she was brought back to Delhi. Anees had raped her and he should be given punishment. He used to hit her with scissors).
In her statement u/s 164 Cr.P.C. Ex.PW3/A prosecutrix has specifically said that she was brought back from Maidapur where her mother reached alongwith the police. However, this is totally in contradiction to her deposition before the court. Despite information having been received by the complainant and his wife FIR NO. 45/07, PS Nand Nagri 29/40 as to where the prosecutrix was, the police did not accompany them for apprehending the accused whereas prosecutrix has stated that she was brought by the police and her mother from village Maidapur to Delhi. Though as per prosecution story prosecutrix was recovered from Lucknow by her parents.
21. In the instant case the prosecutrix went missing in the night of 11/12.1.2007 while FIR was registered with the police on 16.1.2007 at 10.25 p.m. There is a delay of about four days in lodging the FIR. No plausible explanation has been given by the complainant as to why they did not lodge the FIR just after the alleged incident of kidnapping. They knew from the beginning that prosecutrix had been kidnapped by accused Anees as in his complaint to the police Ex.PW1/A he stated that on 11/12.1.2007 in the night his daughter, prosecutrix was enticed by accused Anees in his absence and that of his family members. PW3, the prosecutrix stated that before kidnapping on 11/12.1.2007, she was sleeping inside a room alongwith her parents, brothers and sisters. At about 1 / 2 a.m. her mother heard the voice of Anees from outside. Her mother told her to go and see. She went outside the room when she was kidnapped by accused Anees and his wife FIR NO. 45/07, PS Nand Nagri 30/40 Rehana. Therefore, the statement of PW1 complainant and PW3 prosecutrix are in contradiction to each other as PW1 Mohd. Naseem has specifically stated in his complaint Ex.PW1/A 'DINAK 11/12.1.2007 KI RAAT MERI LADKI SAMA PRAVEEN KO MERI VAH MERE GHARWALON KI GAIR MOJUDGI MEIN BEHLA PHUSLA KAR BHAGAKAR LE GAYA'. There is delay of four days in lodging of FIR which has not been satisfactorily explained by the complainant. It was held in State of U.P. vs Anil Kumar & Ors, 2006(1) Crimes 312, "Unexplained inordinate delay of more than one day in lodging FIR of the occurrence is fatal to the prosecution case. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the name of actual culprits and the part played by them and names of eye witnesses, if any. Delay in lodging the FIR often results in embellishments, which is a creature of afterthought. On account of unexplained delay the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in the introduction of coloured version of the occurrence." Since in the instant case delay of four days in lodging the FIR has FIR NO. 45/07, PS Nand Nagri 31/40 not been explained satisfactorily, the FIR looses all its corroborative value and authenticity.
22. Though police went to village Maidapur, Mainpuri, however, the police has not prepared any site plan of the house at Maidapur, Distt. Mainpuri where the girl (prosecutrix) was illegally confined by the accused persons. The prosecution case is that the parents of the prosecutrix went to Lucknow on receiving a call from the prosecutrix and the prosecutrix was recovered by them from there from the clutches of the accused. The police neither went to Lucknow nor recorded statement of any witnesses at Lucknow. No site plan of the place of recovery of the kidnapped girl has been placed on record. The fact that the site plan of the place where the prosecutrix was confined and from where she was recovered, was not prepared also dents the prosecution case.
23. The prosecution has completely failed to produce any witness of recovery of the prosecutrix or any witness of the fact that the accused persons had kept or concealed the kidnapped prosecutrix at their house at village Maidapur, Distt Mainpuri, U.P. No independent witness from the village has been examined by the prosecution and the testimony of the witnesses who have been FIR NO. 45/07, PS Nand Nagri 32/40 examined by the prosecution have many loose ends. They are in cogent and inconsistent in their testimony before the court.
24. Ld. defence counsel further contended that the statement of the defence witnesses is plausible and they cannot be discarded. He has relied upon several pronouncements of Hon'ble Supreme Court wherein it was held that testimony of DWs cannot be discarded and there is no reason as to why the testimony of DWs cannot be accepted. He has relied upon 2010(2) C.C.Cases (HC) 374, Parmanand Yadav vs State, wherein it was held that 'the role of a Judge at a criminal trial is that of a neutral umpire. In the journey, where truth has to be discovered, every signpost has to be taken note of and only then the route to be chartered has to be identified and walked upon'.
25. In the instant case testimony of defence witness DW1 Satya Prakash regarding the inimical terms between accused Rafiq and father of accused Anees namely Maseet inspires confidence. It has been specifically stated by the witness that due to sale of house by Maseet there were inimical terms and therefore, there is no question of accused Anees visiting the house of accused Rafiq. Accused Rafiq who examined himself as DW2 stated that Maseet FIR NO. 45/07, PS Nand Nagri 33/40 was his real brother who left their village 2526 years prior to 11.2.2007 after selling his house and due to this reason enmity arose between him and Maseet and thereafter he never came to their village. Accused Anees never came to their village alongwith a girl.
26. Ld. Defence Counsel has also pointed out several contradictions in the statements of the prosecution witnesses. PW3, the prosecutrix stated in her testimony that Anees was living with his wife and four children at the tenanted house. Her parents got the room vacated from Anees as they were quarreling amongst themselves in routine while PW2 Farida, mother of the prosecutrix stated that she got vacated her house from Anees as he was not in a good habit. In her statement u/s 164 Cr.P.C. Ex.PW3/A the prosecutrix stated that one day in the night time Rehana came to their house and enticed her and took her to gali where Anees was standing alongwith 23 persons whereas in her statement before the court she stated that her mother heard the voice of Anees from outside and she asked her to go and see. It is baffling as to why mother of the prosecutrix did not raise alarm or got the FIR registered immediately when her daughter did not return after she FIR NO. 45/07, PS Nand Nagri 34/40 had sent her outside hearing the voice of Anees. The prosecutrix in her statement stated that accused Anees was demanding money from her parents but her parents i.e. PW1 and PW2 did not state about demand of money by the accused.
27. It has also been argued by Ld. Defence Counsel that PW3, the prosecutrix also stated that Anees and the accused persons noticed when she made a missed call from the mobile of Raju, the son of one of the accused, they took her to the jhuggi and put on the grass on fire around jhuggi and on her crying and raising alarm, they put out the fire. This is a very material fact despite which the prosecutrix neither stated about this in her statement u/s 161 Cr.P.C. or to Ld. M.M. in her statement u/s 164 Cr.P.C. and it is a major improvement in her statement before the court which makes her statement unreliable. It has been submitted by Ld. Defence Counsel that in her testimony prosecutrix stated before the court that she went to jungle side but she never raised alarm or told anyone in the village to help her when she was returning back to jhuggi. She stated in her testimony before the court that she was left alone at the jhuggi yet she did not try to rescue herself from the clutches of the accused persons who had detained her illegally and FIR NO. 45/07, PS Nand Nagri 35/40 forcibly and if both the accused persons refused to handover the prosecutrix to the parents of prosecutrix, PW1 and PW2 could have sought help from the local police also but they never went to local police at village Maidapur and there is no substantiating evidence on record to suggest that either the parents of the prosecutrix or the IO ever visited village Maidapur, Distt. Mainpuri. In her statement u/s 164 Cr.P.C., prosecutrix stated that 'PHIR EK DIN AMMI POLICE KE SAATH MAIDAPUR PAHUNCH GAI AUR CHAAR DIN PEHLEY MUJHEY DELHI LE AAI' It appears that she was recovered from village Maidapur where her mother reached alongwith the police whereas according to the prosecution story she was recovered from Lucknow.
28. It has also been pointed out by defence that in her testimony time and again the prosecutrix has stated that accused used to make her drink juice and used to put tablets in the same and thereafter she would fall unconscious but she never mentioned the same in her statement recorded by the police u/s 161 Cr.P.C. or statement u/s 164 Cr.P.C. Ex.PW3/A. It has not been stated by PW1 and PW2 that prosecutrix ever disclosed to them that she was being given juice by the accused persons with tablets in it which would FIR NO. 45/07, PS Nand Nagri 36/40 make her unconscious and therefore, the testimony of prosecutrix is not trustworthy and believeable in any manner. It has been contended by Ld. Defence counsel that the investigation in this case has not been conducted in a proper manner which creates doubt in the prosecution story. PW2 Smt. Farida stated before this court that she took her daughter to a doctor but the said doctor refused to give any treatment and thereafter she was taken to a big hospital at Lucknow where she was medically examined. However, the IO of this case is silent on the point and he did not feel any need to interrogate any doctor or any person from Lucknow to substantiate the plea of the prosecution witnesses. It has also been contended by Ld. Defence counsel that prosecutrix was kept at Lucknow; that accused Anees brought his brother and his wife to Lucknow and they used to guard her but the IO has not made them coaccused.
29. Ld. Defence Counsel has contended that conduct of the police is very doubtful and it has miserably failed to conduct proper investigation in the matter. That one important person who could have been very material prosecution witness has not been arrayed as a witness i.e. the owner of the STD Booth who made a call to the FIR NO. 45/07, PS Nand Nagri 37/40 house of the prosecutrix and spoke to the parents of the prosecutrix but the IO has not made any effort to visit Lucknow or to interrogate the owner of STD Booth. It has also been contended by Ld. Defence Counsel that PW7 Inspector S.B.Gautam in his statement stated that on 10.2.007 , complainant came to the police station and informed him that his daughter was available in village Maidapur, Mainpuri, U.P. and he alongwith his wife had gone to the village but the custody of the girl was not handed over to them by the accused persons. He never asked the complainant as to why he did not inform the police when he received a call from his daughter regarding her being detained at village Maidapur, Mainpuri. He stated that on 12.2.2007 he went to village Maidapur, Mainpuri alongwith Const. Prem Chand and the complainant. However, the complainant never stated that he accompanied the IO to the village. There is no evidence on record, at all, to suggest that IO ever visited village Maidapur, Distt. Mainpuri. No witness from the village Maidapur has been examined, help of local police was not sought and no site plan of the place where the prosecutrix was allegedly detained was prepared which creates a doubt about the prosecution story. In his FIR NO. 45/07, PS Nand Nagri 38/40 cross examination PW7 SI S.B. Gautam stated that they left for village Maidapur, Distt. Mainpuri, U.P. in the night of 12.2.2007 and reached in the late night i.e. 13.2.2007 and remained there for about 23 hours. They called the local police and enquired from many persons but he had not recorded the statement of any public witness. Ld. Defence Counsel contended that village Maidapur is hardly 200250 kilometers away from Delhi. There is no reason as to why witnesses took more than 24 hours in reaching village Maidapur from Delhi. They do not disclose if they stayed somewhere in village. In his statement IO has not disclosed that local police of which police station accompanied them when he went to village Maidapur and therefore, the conduct of the IO is not credit worthy. Ld. Defence Counsel has contended that there are severe lacunas in the investigation which cannot be ignored. The investigating officer did not investigate the case fairly and has falsely implicated the accused persons as he could not nab the main accused i.e. Anees. I find force in the contentions of Ld. defence counsel.
30. Before parting with judgment I would like to put on record that the court is dismayed with the cavalry manner in which the FIR NO. 45/07, PS Nand Nagri 39/40 investigation has been conducted by PW7 Inspector S.B. Gautam. He has done investigation in a very slipshod and shoddy manner without caring for cannons of law. DCP/NE may consider putting the officer on training. Copy of order be sent to DCP/NE.
31. In view of the contradictions, discrepancies and inconsistencies it is wholly unsafe to rely upon the prosecution witnesses as there is considerable doubt about the accused persons having wrongfully confined the prosecutrix alleged to have kidnapped by accused Anees and his wife Rehana. Both the accused persons, accordingly, stands acquitted of the offence charged with. Their bail bonds cancelled. Sureties discharged. File be consigned to record room and it be revived as and when accused Anees and Rehana are apprehended.
Announced in open court (Nisha Saxena)
Dated: 08.2.2012 Addl. Sessions Judge03(NE):
Karkardooma Courts, Delhi.
FIR NO. 45/07, PS Nand Nagri 40/40