Delhi District Court
State vs (1) Sajid S/O Musteem on 28 February, 2015
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0120472010
SC No. 100/13 Date of assignment : 10.05.2010
FIR No. 25/10 Date on which arguments
PS. Seelampur were heard : 23.02.2015
U/S.365/366/376/ Date of judgment : 28.02.2015
502(II) IPC
& u/s 212/506 (I) IPC
State Versus (1) Sajid S/o Musteem
R/o K-142, Janta Colony, Welcome,
Delhi.
(2) Majid S/o Mohd. Sajid
R/o E-49/K-142, Janta Mazdoor
Colony, Welcome Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 12.01.2010, a complaint of the prosecutrix was received at the police station Seelampur against the accused persons wherein she made following allegations:
(a) Prosecutrix is a married lady having four SC No.100/13 State vs. Sajid etc page 1 of 36 children. On 29.09.2009 she alongwith her sister-in-law (nanad) Mobina went to Seelampur market as her sister-in-
law wanted to buy some clothes. At that market, accused Majid who is the husband of Mobina met them and asked them to have some refreshments. Thus, they went to a restaurant. Accused Majid made a call to one Dilshad who was his driver to come at the restaurant. Accused Majid told his wife Mobina to purchase clothes of her own as he had received a call from the mother of the prosecutrix and he has to take the prosecutrix to her parental home. Mobina objected and said that first the prosecutrix should go to her home and from there she can go to her parental home. Accused Majid said that even on the occasion of Idd she was not permitted to go to her parental home. This annoyed Mobina and she left that place. Accused Majid told the prosecutrix that within 10 minutes he would get his vehicle and she should wait alongwith Dilshad. He brought an auto rickshaw and proceeded towards bus terminal. Prosecutrix objected but Majid inflicted some injuries on her hand with a sharp object and told her that she should sit quietly otherwise he would kill her daughter of nine months who was alongwith with her at that time. Accused Majid also slapped the prosecutrix and she got scared.
(b) Accused Majid took the prosecutrix to Agra and kept her at a hotel and tried to commit rape on her.
SC No.100/13 State vs. Sajid etc page 2 of 36 When she protested accused beat her and committed rape on her. Next day, the accused threatened her that if she would oppose him, he would get her brother and father killed through his brother Rashid @ Munna who has association with bad elements. Thereafter the accused Majid alongwith the prosecutrix shifted to another hotel where he forced himself and raped her. After that on the pretext of fetching some medicine, accused Majid sent the daughter of the prosecutrix alongwith Dilshad. When the child did not return, the prosecutrix enquired from accused Majid about her daughter. He told her that now her daughter is in his custody and he had sent her daughter to an acquaintance through Dilshad. If she will not obey him, he would get her daughter killed. It is further the case of posecutrix that accused also threatened her that he would kidnap her two school going children.
(c) After some days, the accused took the prosecutrix to Allahabad by a train. When the prosecutrix asked the accused as to why she was being taken to Allahabad, he told her that he would solemnise court marriage with her to avoid legal action against him. When they reached the court premises, lawyers were on strike. Prosecutrix was kept at Allahabad for three days and during that period, accused constantly gave beatings to her and made physical relations with her.
SC No.100/13 State vs. Sajid etc page 3 of 36
(d) From Allahabad, accused Majid took the prosecutrix to Masoorie by train and car where she was kept at a hotel. She was again given severe beating by the accused. When the prosecutrix asked the accused as to why she was being beaten, he told her that when his relatives would come she will not state anything to them and he would kill her alongwith her children. Due to fear she could not say anything. Accused took a room on rent and performed nikah with the prosecutrix. After 15 days co-accused Sajid (father of accused Majid) reached there and he gave Rs.10,000/- to Majid and told the prosecutrix that she should cooperate with him as her husband had lodged a complaint and the police was enquiring from them. He (Sajid) also told the prosecutrix that if she did not save his son, she would have to face dire consequences.
(e) After one month, the accused Majid brought the prosecutrix to Bijnore. He took her to an advocate who asked them to come after a week. Accused Majid kept her at a village. During that period, the accused broke a glass and tried to cut her hand and told her that she would have to perform court marriage with him. After a week, he (accused Majid) took her to the advocate who got some papers signed from the prosecutrix for court marriage and told them to come back after three months as their statements would be recorded in the court.
SC No.100/13 State vs. Sajid etc page 4 of 36 Thereafter the accused Majid took her to Masoorie where she was kept for 15 days. After that the accused Majid took the prosecutrix to Dhampur at a village where his relatives were also present. Younger brother of the accused brought jackets and some clothes and threatened her that if she did not cooperate with his brother, she would have to face dire consequences. After her brother left, accused Majid again beat her and he made a call to his father and demanded some more money. Thereafter father of accused Majid brought some money and stayed there for about three days. He told the prosecutrix that her husband had abused his son and thus in anger accused Majid had brought her and now her husband would not keep her as his wife as he is a respectable person. He also informed the prosecutrix that her daughter has already been sent to her mother and now she would have to spend her life with Majid and he would take care of other things as sister of her husband was their daughter in law. It is alleged that after he left, accused Majid gave blows by legs and fists as a result of which she had some swelling on her abdomen. Wife of one of his relatives took the prosecutrix to a doctor for her treatment where she disclosed everything to the doctor who allowed the prosecutrix to make a call to her mother. Prosecutrix told her mother about the entire incident. Her mother informed the prosecutrix that her husband SC No.100/13 State vs. Sajid etc page 5 of 36 Mehrajuddin was worried about her and he is unable to live without her and she should escape from there. Doctor and the relatives of accused Majid helped the prosecutrix in escaping from the clutches of Majid. Prosecutrix took a taxi from Dhampur and came to Mustafabad and her father paid Rs.3000/- for taxi fare. Prosecutrix requested that legal action be taken against the accused persons.
2. On the basis of above complaint, the instant FIR No. 25/10 u/s 365/366/376/506 was got registered against the accused persons at police station Seelampur on 22.01.2010. On 23.01.2010 a site plan was prepared at the instance of the prosecutrix. The prosecutrix was got medically examined at GTB Hospital. On 02.02.2010 after operation vide MLC No. D-24/10, doctor preserved two pullandas of aborted foetus of the prosecutrix which was seized by the police and sent for DNA analysis. On 09.02.2010, accused Sajid was arrested and sent to judicial custody. On 10.02.2010 accused Majid surrendered in the court and he was arrested in the present case. On 11.02.2010 accused Majid and prosecutrix were produced before Dr. Anupama Rina, incharge DNA Finger Printing Laboratory, Department of Forensic Medicines and Toxicology, AIIMS, Ansari Nagar, new Delhi for DNA test. On 14.03.2010, accused Dilshad was arrested and he was sent SC No.100/13 State vs. Sajid etc page 6 of 36 to judicial custody. After completion of investigation, the chargesheet under section 365/366/376/506/212/34 IPC was filed against the accused persons.
3. Since the major offences in this case were triable by the Court of Sessions, vide order dated 26.04.2010, learned M.M, Karkardooma Courts committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 04.08.2010 passed by my learned predecessor, accused Dilshad was discharged. However, a charge u/s 365/366/376/506(II) IPC was framed against the accused Majid and charge u/s 212/506(I) IPC was framed against accused Sajid to which they pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined sixteen witnesses i.e. ASI Harbir Singh as PW1, prosecutrix as PW2, husband of prosecutrix as PW3, Mahzabeen as PW4, Mobina-sister in law of the prosecutrix as PW5, mother of prosecutrix as PW6, Smt. Shakuntala as PW7, Ct. Ganga Ram as PW8, HC. Jaswant Singh as PW9, Ct. Vijay Singh as PW10, Ct. Mohd. Faisal as PW11, Dr. Garima Yadav, Senior Resident, GTB Hospital, Delhi as PW12, Farid SC No.100/13 State vs. Sajid etc page 7 of 36 as PW13, HC Gajinder as PW14, SI Kusum Lata as PW15 and ASI Laique Ahmad as PW16.
6. Out of these witnesses PW2, PW3, PW5 and PW6 are the material witnesses of the case.
7. PW1 ASI Harbir Singh is the duty officer who recorded the FIR Ex.PW1/A in the present case on the basis of rukka produced by Inspector Ved Singh Malik. He also made endorsement Ex. PW1/B on the rukka.
8. PW2 (prosecutrix) deposed that she has four children. Mobina is her sister in law. She further deposed that on 29.09.2009, her mother in law had gone to attend some marriage at Delhi and she was alone at home. At that time, her sister-in-law Mobina came to her house and she took the prosecutrix to Seelampur market for purchasing some clothes. They went to Seelampur market in a rickshaw. Accused Majid who is husband of Mobina met them and he offered the prosecutrix and Mobina some refreshment. They went to a nearby restaurant and had some snacks. At the restaurant, accused Majid called one Dilshad who was his driver. Accused Majid asked Mobina to purchase the clothes herself as he had to take the prosecutrix to the house of her mother as her mother has SC No.100/13 State vs. Sajid etc page 8 of 36 called her. Prosecutrix further deposed that Mobina her sister-in-law refused to send her with the accused, on which accused Majid told his wife (sister-in-law of prosecutrix) that the prosecutrix was not allowed to go to her parents' home on the occasion of Idd so he has to take the prosecutrix to her parental home. On this Mobina got furious and left the restaurant. Prosecutrix further deposed that at that time she was carrying her daughter aged about nine months. Accused Majid took her daughter in his lap and went to take a TSR. Prosecutrix deposed that after 10 minutes, accused Majid brought a TSR and made her sit in that TSR. She further deposed that when TSR turned towards the bus stand, she raised objections. On that accused Majid threatened to kill her daughter and slapped her and asked the prosecutrix to sit quietly. Prosecutrix deposed that when she tried to make hue and cry, accused Majid caused injuries on her right wrist with a sharp edged object which he was carrying with him. Accused Majid took her to Agra in a bus. She further deposed that at Agra, accused took her to a hotel and beat her. He committed rape on her without her consent. Prosecutrix further deposed that on next day, accused Majid took her to another hotel at Agra. Accused Dilshad also accompanied them to Agra. She deposed that at Agra her daughter was suffering from fever and she asked the accused to get her SC No.100/13 State vs. Sajid etc page 9 of 36 daughter medically treated but the accused did not allow her to take her daughter to a doctor and he sent her daughter to doctor with accused Dilshad. Prosecutrix deposed that when Dilshad did not return back with her daughter, she asked accused Majid about her daughter. Accused Majid told her that he has sent her daughter to the house of his some relative as she (prosecutrix) was creating problems and asked her to obey his instructions. Accused threatened the prosecutrix to get her two school going children killed. Prosecutrix further deposed that the accused also threatened to kill her father and brother Rashid @ Munna. Prosecutrix further deposed that from Agra accused took her to Allahabad by train and they stayed there for three days at a hotel and there also accused beat her and committed rape on her. The prosecutrix deposed that when she asked the accused Majid as to why he had brought her there, he replied that he will take her to the court. She further deposed that as there was strike in the court, accused took her to Massorie by train and car and kept her at a hotel and beat her. Prosecutrix further deposed that when she asked the reason as to why she was being beaten, accused Majid told her that his relatives would come and if she would tell him anything, he will get her children killed. One relative of the accused Majid came at hotel at Massorie and took them to SC No.100/13 State vs. Sajid etc page 10 of 36 his rented house and accused kept her (prosecutrix) there for 15 days. She further deposed that the accused performed Nikah with her at Massorie. She further deposed that after Nikah, co-accused Sajid came there and gave Rs. 10,000/- to accused Majid and told the prosecutrix that her husband will not keep her with him as he is a respectable person and asked the prosecutrix to obey their orders and save accused Majid from legal proceedings. She deposed that the accused Sajid stayed there for one night. From Masoorie, accused took the prosecutrix to Bijnore and then he took her to court where he met an advocate who obtained signatures of the prosecutrix on some papers and asked the accused to come back after one week. Accused took the prosecutrix to a village near Dhampur to the house of his relative. She also deposed that at that time accused caused injuries on her wrist with a broken glass. They remained there for a week. Thereafter they again went to the court and advocate asked the accused to come back after about one month. He again took her to Masoorie and kept her for one month. Accused again beat her at Masoorie. From Masoorie accused again brought the prosecutrix to Allahabad and took her to an advocate who asked the accused to come after about two months. In Allahabad, accused again beat her. He took the prosecutrix to the house of his relative and threatened her not to tell SC No.100/13 State vs. Sajid etc page 11 of 36 anything to his relative. Accused made a phone call to his father and called him at Allahabad. Accused Sajid reached there with some money and stayed there for three days. He also threatened the prosecutrix to obey their directions and told her that her daughter Alia was with her mother and also told her that her husband will not keep her as he is a respectable person. She deposed that the accused Sajid further told her that her husband had earlier abused accused Majid and due to that reason accused Majid had abducted her. Prosecutrix also deposed that Asif, younger brother of accused Majid came to Allahabad and he gave jackets and clothes to accused Majid. She further deposed that accused Majid took a house on rent in a village near Allahabad and kept the prosecutrix in that house. She deposed that in that village, relatives of accused Majid were also living. Prosecutrix fell ill and one relative of accused Majid took her to a doctor who examined her and asked the reason for about her swelling. Prosecutrix has further deposed that she narrated the entire incident to the doctor. Thereafter the prosecutrix made a call to her mother and told her about the entire incident. Prosecutrix also deposed that her mother told the prosecutrix that her husband was disturbed and health of her daughter was not good and advised the prosecutrix to come back. Next day accused Majid gave Rs. 30/- to the prosecutrix and sent her SC No.100/13 State vs. Sajid etc page 12 of 36 again to the doctor with his relative and he left the house. She told his relative that she will go to the doctor alone as his relative was also not feeling well. She deposed that she took a TSR to Dhampur and from there she took a car to Delhi and reached the house of her parents and the taxi fare of Rs. 3000/- was paid by the father of the prosecutrix. She deposed that thereafter she alongwith her husband went to the police station and gave complaint Ex. PW2/A. She was medically examined at GTB Hospital vide MLC Ex.PW2/B. Prosecutrix further deposed that due to her sexual relationship with accused Majid, she became pregnant and on 11.11.2010 she went to police station alongwith her husband. She further deposed that on 11.11.2010, IO took her and the accused Majid to AIIMS hospital where doctor took their blood samples. She further deposed that her abortion was got done on 02.02.2010.
9. The prosecutrix was cross examined on behalf of accused persons. During cross examination, she stated that her husband got typed the complaint Ex.PW2/A. She deposed that she was present at the police station when the complaint was got typed. She denied that her husband (PW3) had divorced her. Prosecutrix has admitted that her real sister had got married with her husband in the year 2004. She denied that after that marriage, she resided at SC No.100/13 State vs. Sajid etc page 13 of 36 her parental home. She admitted that her sister expired due to burn injuries by burst of a stove.
10. The prosecutrix also deposed that at the time of present occurrence, she raised alarm when accused took her to ISBT instead of her house but nobody came ahead to help her and she was slapped by the accused Majid. Prosecutrix further deposed that many persons were present at ISBT when she boarded the bus. She deposed that she raised alarm for help but immediately accused threatened her that if she will continue to raise alarm, he will kill her daughter so she did not raise alarm. She deposed that she was made sit in a bus and the bus was fully occupied by the passengers but she did not raise any alarm as the custody of her daughter was with an associate of accused Majid. Prosecutrix deposed that she stayed at Agra for two days at two different hotels. She further admitted that from Agra she and accused went to Allahabad by train having other passengers but she did not complain to any passenger that she had been abducted and she was being taken forcibly by the accused. She also admitted that the police officials were present at both the stations i.e. Agra and Allahabad but she did not complain to any police official. She further deposed that she was threatened by the accused that he will kill her daughter.
SC No.100/13 State vs. Sajid etc page 14 of 36 She deposed that from Allahabad they went by taxi to Masoorie but she did not complain to the taxi driver but stated that she was under threat. She also admitted that she did not complain to the staff of hotel at Masoorie. She also admitted two photographs which were taken at water fall at Masoorie. She further deposed that her nikah with accused Majid was performed at the house of maternal uncle of accused Majid. She admitted that during her stay at the rented room at Masoorie she did not disclose to the landlady that she was abducted by the accused Majid and she introduced herself as the wife of accused. She deposed that they stayed at Masoorie for 15 days and they went to Bijnore from Masoorie by bus. There were passengers in that bus but she did not complain to any passenger in the bus. She also admitted that on reaching Bijnore, they went to court for court marriage. She also admitted that some police personal were present in the court apart from the advocate but she did not complain to the police officials. She also deposed that she was asked by the advocate that whether she had entered into this marriage of her own consent and she replied in affirmative. She also deposed that she had signed on certain documents. However, she stated that she signed the documents under fear and threat. She also deposed that she had filed her affidavit Ex.PW2/DC before the court of learned ACJM-II, Bijnore. She SC No.100/13 State vs. Sajid etc page 15 of 36 also admitted that despite her travelling by public transports she did not make any hue and cry nor make any complaint that she had been abducted by the accused. She also admitted that her nikah with accused Majid was performed at Masoorie in the presence of four or five persons by a Qazi. She also admitted her signatures on nikah.
11. PW3 husband of the prosecutrix has also supported the case of the prosecution. He deposed that accused had abducted his wife with their daughter on the pretext of taking her to her parental home. He further deposed that the accused took his wife to Agra and he raped the prosecutrix at a hotel. Accused also took his wife to Allahabad for the purpose of court marriage. Thereafter he took his wife to Masoorie and he forcibly married with his wife. He further deposed that the accused detained his wife at Masoorie alongwith her small daughter aged about eight or nine months for about 1½ months and during that period the accused raped his wife repeatedly under the threat to kill their daughter. He also deposed that the accused had also kept his wife forcibly at Bijnore for about 1½ months. He further deposed that co-accused Sajid gave money to accused Majid as the accused Majid was not working. He also deposed that the accused Sajid visited SC No.100/13 State vs. Sajid etc page 16 of 36 accused Majid to provide him money at Bijnore and Masoorie. He also deposed that his wife (prosecutrix) had conversations with her mother through phone calls and her mother also had conversation with him. He further deposed that the mother of prosecutrix made a phone call to her but the lady who attended the call told her that she would help the prosecutrix in escaping. He also deposed that on the next day prosecutrix went to midwife lady and she escaped and ran away from the village and hired a private vehicle for Mustafabad. He also deposed that his father in law informed him about the arrival of his wife and then he went to his in law's house where his wife narrated the whole incident to him. He alongwith his wife and parents went to PS Seelampur and gave her statement to the police.
12. PW6 mother of the prosecutrix deposed on the same lines as the prosecutrix and her husband. She also deposed that after 10/15 days of the incident she had received a telephone call from her daughter (prosecutrix) and when she asked regarding her address, the phone was snatched by the accused Majid. She also deposed that after 10 days they again received a telephone call from the prosecutrix that the accused had threatened to kill her children if they will lodge a complaint to the police. She SC No.100/13 State vs. Sajid etc page 17 of 36 deposed that her daughter was kept at different places.
13. During her cross examination, she denied that husband of the prosecutrix divorced her daughter. This witness deposed that she advised her daughter to marry with accused Majid. She also denied that her daughter was not happy with her husband.
14. PW7 Smt. Shukantla Devi resident of Bijnore deposed that she used to work as midwife. On 2nd January, the prosecutrix alongwith her relative came to her house for treatment and she was having swelling on her stomach. She deposed that on asking of the prosecutrix, she gave desi medicine. This witness also deposed that the prosecutrix wanted to talk with her mother and she allowed her to speak with her mother on the mobile phone of this witness. Thereafter the prosecutrix left her house and did not come back again.
15. PW5 Mobina sister-in-law of the prosecutrix and wife of accused Majid also deposed on the same lines as the prosecutrix and her mother (PW6). During her cross examination, she has admitted that due to present case she was not going to her matrimonial home. She also stated that she does not know if her brother (husband of SC No.100/13 State vs. Sajid etc page 18 of 36 the prosecutrix) had divorced the prosecutrix.
16. PW4 Mehzabeen from Masoorie deposed that she had let out her house to accused Majid and the prosecutrix at Masoorie and they stayed in that room for about two and half months.
17. During her cross examination, she deposed that she had conversations with the prosecutrix several times during her stay in their house. She deposed that the prosecutrix did not complain against the accused. This witness also deposed that she never felt that the prosecutrix was under coercion. She stated that the accused was doing work of painter. During day time, the prosecutrix was living either alone or used to be with this witness. Prosecutrix used to go to market not only with this witness but also with the children of this witness. Prosecutrix used to cook food in her room and also used to have conversation with her mother by using phone of this witness. She also deposed that the prosecutrix also used to go to market alone.
18. PW13 Farid from Bijnore deposed that the accused Majid resided on rent at his house at Bijnore alongwith the prosecutrix who was his wife. He deposed SC No.100/13 State vs. Sajid etc page 19 of 36 that they remained in his house for about 1½ months.
19. During cross examination, this witness deposed that accused used to leave the house for his work in the morning and the prosecutrix used to prepare food at the house. Prosecutrix used to talk with the wife of this witness. Prosecutrix never complained to him or his wife that she was confined forcefully. He deposed that the accused and the prosecutrix were residing happily and she went to the market with his wife once or twice. He also deposed that the accused never gave beating to the prosecutrix during their stay.
20. PW8 Ct. Ganga Ram deposed that on 03.02.2010 he took two sealed parcels alongwith sample seal of GTB Hospital from MHC (M) for depositing the same at DNA, AIIMS. After depositing the parcels, he handed over the copy of RC to MHC (M). He further deposed that on 11.02.2010 accused Majid alongwith the prosecutrix and her husband were taken to AIIMS for DNA test where blood sample of accused Majid and the prosecutrix were taken by the doctor. On 12.02.2010 he joined investigation with ASI Kusum Lata and SI Manoj Kumar. Accused Mjaid was taken out from the lockup and he was taken to Masoorie and Dehradun and he pointed out the house of Mahzabeen and SC No.100/13 State vs. Sajid etc page 20 of 36 pointing out memo Ex.PW8/A was prepared. He also deposed that from Masoorie, they took the accused to Bijnore and he pointed out the house of Farid and IO prepared the pointing out memo Ex. PW8/B.
21. PW9 HC Jaswant is the MHC (M) who has proved the entries made in register no.19 as Ex. PWPW9/A to Ex. PW9/F.
22. PW10 Ct. Vijay Singh deposed that on 10.02.2010 he took the accused Majid to GTB hospital for medical examination on the direction of IO. After medical examination of accused, two pullandas were given to him which he had handed over to the IO who seized the same vide memo Ex. PW10/A.
23. PW11 Ct. Mohd. Faisal deposed that on 09.02.2010, he joined the investigation with ASI Kusum Lata. SI Manoj had also accompanied them and they reached at K-Block Janta Colony, Welcome, Delhi. The husband of the prosecutrix had also joined investigation with them. They reached at the house of accused persons and on the pointing of the husband of the prosecutrix, accused Sajid was apprehended and arrested in the present case vide arrest memo Ex. PW3/A and his personal SC No.100/13 State vs. Sajid etc page 21 of 36 search Ex. PW3/B was conducted.
24. PW12 Dr. Garima Yadav, Senior Resident deposed that on 23.01.2010 she was working at GTB Hospital. This witness deposed that the prosecutrix was medically examined by Dr. Geetika Goel, Senior Resident who had left the services of the hospital and her whereabouts are not known. This witness deposed that she can identify the signatures of Dr. Geetika as she had seen her writing and signatures during the course of official duty. This witness proved the MLC of the prosecutrix as PW2/B. This witness also proved the hand writing of Dr. Upasana stating that she had seen her writing and signing during the course of official duty and proved the seizure memo as Ex. PW12/A.
25. PW14 HC Gajinder deposed that on 01.10.2009 he was working as reader to SHO and a complaint of husband of the prosecutrix (PW3) was received in the police station. He made the entry vide diary no.1168 and proved the same as mark P-3/A.
26. PW16 ASI Liaque Ahmad deposed that on 10.02.2010 he was posted at police station Seelampur and on that day, accused Majid surrendered before the learned SC No.100/13 State vs. Sajid etc page 22 of 36 Metropolitan Magistrate. Accused was formally arrested by the IO vide memo Ex. PW15/C and his personal search Ex.PW15/D was conducted. Disclosure statement of this accused Ex.PW15/E was recorded. This accused was medically examined GTB Hospital and the exhibits received from the hospital were seized by the IO vide memo Ex.PW10/A.
27. PW15 SI Kusum Lata IO of the case deposed that on 22.01.2010 she was posted at PS Seelampur and the investigation of this case was marked to her by the SHO. This witness prepared site plan Ex. PW15/A at the instance of prosecutrix. Prosecutrix was got medically examined at GTB Hospital. IO recorded the statement of Mobina (PW5) u/s 161 Cr.P.C on 25.01.2010. She tried to trace the accused persons but they could not be found. On 02.02.2010 two sealed parcels alongwith sample seal of the prosecutrix were received which were seized vide memo Ex. PW12/A and deposited in the malkhana. This witness further deposed that on 03.02.2010 the above said sealed parcels were sent to AIIMS Hospital through Ct. Ganga Ram. On 09.02.2010 accused Sajid was arrested from his house on the identification of the husband of the prosecutrix ( PW3) vide arrest memo Ex.PW3/A and his personal search Ex.PW3/B was conducted and disclosure SC No.100/13 State vs. Sajid etc page 23 of 36 statement Ex.PW15/B was recorded. She also deposed that on 10.02.2010, accused Majid surrendered before the court and he was formally arrested in the present case vide arrest memo Ex.PW15/C and his personal search Ex.PW15/D was conducted. Disclosure statement of this accused Ex. PW15/E was recorded. Accused Majid was got medically examined at GTB Hospital through Ct. Vijay Kumar and two sealed pullanda alongwith sample seal were received which were seized vide memo Ex. PW10/A. This witness further deposed that on 11.02.2010 accused Majid and prosecutrix were taken to AIIMS Hospital for DNA test where the blood samples of the prosecutrix and the accused were taken by the doctors. Next day, accused Majid was taken to Masoorie and Dehradun. Accused pointed out the house of Mehzabeen where the prosecutrix was kept and on such pointing out, memo Ex. PW8/A was prepared. She recorded the statement of Mehzabeen u/s 161 Cr.P.C. On 13.02.2010, accused Majid was taken to Bijnore, UP where the accused pointed out the house of Farid where the prosecutrix was kept and the pointing out memo Ex.PW8/B was prepared. IO recorded the statement of Farid and midwife Shakuntla (PW7) u/s 161 Cr.P.C. On 14.02.2010 accused Majid was produced before the court where he was sent to judicial custody. On 14.03.2010 accused Dilshad was arrested in this case on the pointing SC No.100/13 State vs. Sajid etc page 24 of 36 out of the prosecutrix. IO also recorded the statements of other witnesses u/s 161 Cr.P.C. On 07.04.2010 DNA report Ex.C-1 was collected by the IO. After completion of investigation, she prepared the challan and filed in the court.
28. After the prosecution evidence was completed, the statements of accused persons were recorded u/s 313 Cr.P.C. Accused Sajid in his statement denied that he visited co-accused and PW2 (prosecutrix) at Masoorie or at any other place. He also denied that he provided financial help to his son. He also denied that he ever extended any threat to PW2. He stated that he is innocent and he has been falsely implicated in this case.
29. Accused Majid stated that PW3 was married to PW2 but after that marriage, he had again married with younger sister of PW2 (prosecutrix). Therefore, there was a matrimonial dispute between them and thus PW3 divorced PW2 in the presence of witnesses. He also stated that the PW2 was turned out by the PW3 and she alongwith her children started residing at the house of her mother. He further stated that PW2 came in his contact and they fell in love and after due consideration, they decided to marry each other. He stated that PW2 alongwith her minor SC No.100/13 State vs. Sajid etc page 25 of 36 daughter joined him voluntarily and expressed her wish to marry him. Then they went to Masoorie and performed nikah in presence of some witnesses and then they lived at several places as husband and wife and she was happy with him. He also stated that during their cohabitation, the prosecutrix was free to move to any place and he never beat or threatened her.
30. In his defence, the accused has examined Atik Ahmad as DW1.
31. DW1 Sh. Atik Ahmad deposed that around five years ago, accused Majid and his wife (prosecutrix) were residing in his neighbourhood at Masoorie. He deposed that the accused Majid requested him to arrange a job for him. Subsequently, he arranged a job for him and then they became friends. He stated that one day, the prosecutrix told him that she is a divorcee and she is living with the accused Majid of her free will and her nikah with accused Majid was not solemnised and now she is ready to marry the accused. He further deposed that he asked the prosecutrix that he wants to verify about her divorce from her family members and then the prosecutrix made a call at her residence. He has further deposed that he spoke to the mother of the prosecutrix and she told told him that SC No.100/13 State vs. Sajid etc page 26 of 36 the prosecutrix is a divorcee and she has left her house on her own. He also deposed that he alongwith Afjal, Asgar and his wife Famida asked the prosecutrix about her consent or willingness for her marriage with accused Majid. The prosecutrix stated that she will marry the accused Majid and will not go back. The he called a Qazi and nikah between the prosecutrix and Majid was got solemnised.
32. I have heard arguments addressed by learned Additional Public Prosecutor for the State and Sh. Vinod Sharma, Advocate for accused persons and perused the record.
Accused Majid
33. Accused Majid is facing trial for the commission of offences punishable u/s 365/366/376/506 (II) IPC.
34. The facts which are not in dispute are that the prosecutrix (PW2) got married to PW3 and she has four children out of this wedlock. The last child was a daughter who was about eight or nine months old on 29.09.2009. After a few years of marriage between PW2 and PW3, PW3 also got married to the younger sister of the prosecutrix. The younger sister of the prosecutrix died due to burn injuries. Accused and the prosecutrix left Delhi on SC No.100/13 State vs. Sajid etc page 27 of 36 29.09.2009 and they went to various places i.e. Agra, Allahabad, Masoorie, Bijnore and Dhampur. On 08.10.2009, the accused and the prosecutrix executed a nikahmana (mark-DA) and performed marriage ceremony in presence of witnesses and a Qazi. Accused Majid and prosecutrix were earlier related to each other as the accused was married to the sister (PW5) of the husband of the prosecutrix. The prosecutrix and the accused Majid remained with each other for about 3½ months starting with 29.09.2009 and the prosecutrix came back to Delhi of her own. The complaint was made on 12.01.2010.
35. The case of the prosecution is that the prosecutrix was forcibly abducted by the accused Majid on 29.09.2009. It is further case of the prosecution that the accused used force and threats to make the prosecutrix cohabit with him at different places and the marriage ceremony/nikah was also caused by use of force and threat by the accused. During cohabitation accused also made physical relations with the prosecutrix by force. In these circumstances, accused Majid committed various offences for which he has been charged.
36. The case of the accused Majid on the other hand is that PW3 had earlier divorced the prosecutrix.
SC No.100/13 State vs. Sajid etc page 28 of 36 Thereafter the prosecutrix voluntarily left her husband and resided with him (accused Majid) as his wife after nikah. The accused Majid has not disputed that the physical relations were made by him with the prosecutrix but his case is that such relations were with the consent of the prosecutix they being husband and wife.
37. The prosecutrix in her cross examination has denied that she was divorced by PW3. PW3 has also denied that he had divorced the prosecutrix (PW2). Mother of the prosecutrix (PW6) has also denied that PW3 has divorced the prosecutrix. PW5-sister of the husband of the prosecutrix and wife of accused Majid showed her ignorance that her brother had divorced the prosecutrix. The last child out of this wedlock was born to the prosecutrix about eight or nine months prior to 29.09.2009.
38. During cross examination, the prosecutrix was confronted with her affidavit dated 26.10.2009 (Ex.PW2/DC) which records that there was a divorce between the prosecutrix and her husband. The prosecutrix admitted her signatures on this affidavit but stated that the said document was got signed by her under pressure and threat. This affidavit is stated to have been got prepared for filing in court alongwith a complaint case u/s SC No.100/13 State vs. Sajid etc page 29 of 36 323/504/452/506 IPC by the accused Majid against the husband of the prosecutrix in the court of ACJM-II at Bijnore. The certified copy of the complaint has been placed on record which shows that a complaint was indeed filed by accused Majid against the husband of the prosecutrix for having extended alleged threat to the accused. Moreover, it is not in dispute that the prosecutrix and the accused entered into a nikah and executed a nikahnama.
39. However, considering the totality of the circumstances and the fact that PW2 and PW3 have denied that they were divorced, I am of the opinion that it is not proved that there was a divorce between PW2 and PW3. PW2 is now stated to be residing with PW3.
40. The alternative contention raised by the accused Majid is that the prosecutrix had gone with the accused voluntarily and she maintained physical relations with him of her own choice after solemnising nikah with him. It is submitted that the prosecutrix was a mature lady and it was open for her to make physical relations with any person of her volition. Even if there is doubt about the validity of marriage ceremony of the prosecutrix with the accused, that would not make sexual intercourse between SC No.100/13 State vs. Sajid etc page 30 of 36 the accused and the prosecutrix an offence. Learned counsel for the accused persons has referred to certain judgments reported as State vs. Saurabh Vashisht [2013 (3) JCC 2007], Kusum Malik vs. State & Anr. [2005 (2) JCC 840] and State vs. Virender [2013 (4) JCC 2582. It is further submitted by the counsel for the accused persons that the present prosecution is the outcome of strained relationship caused in the family due to the present incident. He relied on the fact that admittedly Mobina the nanad of the prosecutrix is now residing with the husband of the prosecutrix.
41. I find force in this contention of the accused. The prosecutrix resided with the accused for about 3½ months. Neither any person from the family of PW3 nor from the family of prosecutrix got registered a missing complaint for either of two during that period. Mother of the prosecutrix-PW6 admitted in her cross examination that she had received telephone calls from the prosecutrix during that period. PW3 in his cross examination has admitted that his younger daughter had earlier accompanied them on 29.09.2009 but then she was sent back and she joined the parental family of the prosecutrix. It is strange that even then no steps were taken for locating the prosecutrix or to file a complaint.
SC No.100/13 State vs. Sajid etc page 31 of 36
42. One Mehzabeen has appeared as PW4 on behalf of prosecution. She was the landlady of the room wherein the accused and the prosecutrix resided at Masoorie for about 2½ months. In her cross examination, she stated that the room which was let out to the accused Majid and the prosecutrix was adjacent to the room in which she was residing. She had conversation with the prosecutrix several times during their stay in that room. The prosecutrix never made any complaint that she was brought there against her wish or by force. She has also deposed that no quarrel took place between the accused Majid and the prosecutrix during their stay in her house and she never felt that the prosecutrix was under coercion during that period. She has deposed that the accused was working as a painter and used to go out in the morning and come back in the evening. During that period, the prosecutrix used to be alone and chat with this witness. She has also deposed that the proseuctrix also used to go to the market with this witness and with the children of this witness. This witness has also deposed that the prosecutrix used to speak to her mother at Delhi by using the mobile phone of this witness.
43. PW13 Farid has appeared as another prosecution witness. He is the landlord of the room where SC No.100/13 State vs. Sajid etc page 32 of 36 the prosecutrix and the accused resided for about 45 days at Bijnore. This witness has deposed that the prosecutrix and the accused Majid resided at his house as husband and wife. He has also deposed that the accused Majid used to leave for his work and the prosecutrix used to speak to the wife of this witness. Prosecutrix never complained to this witness and his wife that she was confined by force. He stated that both resided happily in his house. This witness has also deposed that the accused never beat to the prosecutrix during period of their stay at his house and the prosecutrix used to visit market alone and once or twice she visited the market with his wife. To the similar effect to the evidence of DW1.
44. Accused took the prosecutrix to Agra by bus and they stayed at different hotels. Thereafter accused took the prosecutrix to Allahabad by train where they stayed for three days in a hotel. After that the accused took the prosecutrix to Masoorie by train and car and they resided at a hotel. Thereafter they resided at Masoorie at a rented accommodation. During that period nikah ceremony was got performed in presence of a Qazi and witnesses. The prosecutrix further resided with the accused at Bijnore, Dhampur etc. The prosecutrix in her cross examination had stated that she did not raise any alarm and hue and cry at SC No.100/13 State vs. Sajid etc page 33 of 36 any of the public places and she did not inform about the conduct of the accused to any of the persons who met her during this period. At no stage there was an attempt by the accused Majid to keep the prosecutrix at some place away from public. Had there been coercion or threat, I am of the opinion that there were sufficient opportunities for the prosecutrix to raise hue and cry and approach police of her own but she never did that.
45. During her cross examination, prosecutrix was confronted with two photographs PW2/DA and Ex. PW2/DB. The prosecutrix admitted these photographs and stated that these photographs were taken at a water fall at Masoorie. In both these photographs, the accused and the prosecutrix are seen together in a joyful mood and there is no hint of threat and coercion.
46. Considering the above facts, I am of the opinion, that the prosecution has not been able to establish beyond reasonable doubt that the prosecutrix was forcibly abducted by the accused Majid or was forced to make physical relations with accused Majid. The statutory presumption about lack of consent stands displaced by the evidences as have come on record.
SC No.100/13 State vs. Sajid etc page 34 of 36
47. For the same reasons, it is also held that prosecution has not been able to prove that the accused Majid had abducted the prosecutrix by force and had extended threat to kill her family members or her children beyond reasonable doubt. Thus, accused Majid is acquitted of the offences punishable u/s 365/366/376/506 (II) IPC.
Accused Sajid
48. This accused is the father of main accused Majid. This accused is facing trial for the commission of offences punishable u/s 212/506 (I) IPC. The allegations against this accused is that he concealed the accused Majid with the intention of screening him from legal punishment and criminally intimidated the prosecutrix to follow the instructions of accused Majid and save accused Majid from legal proceedings. The prosecutrix has alleged that this accused visited Masoorie and Allahabad and he also gave money to accused Majid and threatened the prosecutrix. This accused has denied that he visited Masoorie and Allahabad and paid money to accused Majid.
49. I have held above that the prosecution has not been able to establish that the accused Majid had committed the offences punishable u/s 365/366/376/506 SC No.100/13 State vs. Sajid etc page 35 of 36 (II) IPC. For the same reasons, this accused is also acquitted of the offences punishable u/s 212/506 (I) IPC.
50. In view of above discussion, it is held that the prosecution has not been able to prove its case against accused Majid for alleged commission of offences punishable u/s 365/366/376/506(II) IPC beyond reasonable doubt. Thus, accused Majid is acquitted of the charge u/s 365/366/376/506(II) IPC. The prosecution has also not been able to prove its case against accused Sajid for alleged commission of offences punishable u/s 212/506(I) IPC. Accused Sajid is acquitted of the charge u/s 212/506(I) IPC. It is ordered accordingly.
51. File be consigned to record room after necessary compliance.
Announced in the open court on 28.02.2015 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.100/13 State vs. Sajid etc page 36 of 36