Delhi District Court
State vs . Alishan Etc on 25 February, 2016
IN THE COURT OF SHRI SANJIV JAIN ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK COURT (SOUTH EAST) SAKET COURTS, NEW DELHI Unique Case ID No. 02406R0060252011 SC No. : 52/13 FIR No. : 344/09 U/s. : 365/366/368/34 IPC PS : New Friends Colony State (Govt. of NCT of Delhi) ................... Complainant Versus 1. Alishan @ Raja (since deceased) S/o Jishan Ahmed, R/o 513, Ist Floor near Hanuman Mandir, Sriniwas Puri, Delhi. 2. Mobin Ahmed @ Bobby S/o Sh. Abdul Khalid, R/o B1/8, DLF Colony, Sahibabad, Ghaziabad, U.P. 3. Nisha D/o Sh. Guljar, R/o A45, New Govind Park, Jagatpuri, Delhi. 4. Ali Hassan, S/o Sh. Sultan, R/o H.No.99, Maharani Bagh, State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 1 of 31 Sun Light Colony, New Delhi .........................Accused Persons Date of Institution : 08.01.2013 Judgment reserved for orders on : 30.01.2016 Date of pronouncement : 25.02.2016 J U D G M E N T
Facts
1. Facts and circumstances which give rise to this case are as under :
On 23.07.2009 Gulam Mustafa, father of the prosecutrix came at the police station New Friends Colony and got recorded his statement alleging therein that he had married his daughter/prosecutrix ( name withheld to protect her identity) aged 19 years to Raja @ Alishan according to Muslim rites and customs in his native place at Jagpratari P.S Bodo Mufsil District Giridih Jharkhand. After the marriage, she came at 99, Sun Light Colony. He also came to meet his daughter. He alleged that after 15/20 days, he called his soninlaw Raja on phone and requested him to make him talk with his daughter but Raja instead made excuse and told him that she has gone to the market. Four months passed but Raja did not allow him to talk to his daughter although he requested him many times to State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 2 of 31 make him talk with his daughter.
He then went to his relative's house at Faridabad. He with his relative came at Delhi and met Ali Master who was mediator and used to live at 99 Sun Light Colony, New Delhi. He inquired about his daughter but he did not give any satisfactory answer. Even his soninlaw did not meet him. He alleged that Ali Master told him that Baba Mumtaz has been coming and he will explain him everything. After sometime, Baba Mumtaz came in the house of Ali Master and asked him to take Rs.70,000/ to forget his daughter. He begged Ali Master and Baba Mumtaz number of times to get him meet with his daughter but they said 'Paise lene ho to baat kar, ladki nahi milegi, hamari bahut jan pehchaan hae, tum Raja ka kuch nahin bigad sakte'. He alleged that the accused Raja, Ali Master and Baba Mumtaz have abducted his daughter.
On his statement, case was registered u/s 365/34 IPC vide FIR 344/09. Search of the prosecutrix was made. On 12.11.2009, accused Baba Mumtaz was interrogated. On 06.12.2009, accused Alishan @ Raja and Ali Hassan were interrogated. At their instance, accused Mobin Ahmed and Nisha were interrogated. On their pointing out, Rajender was apprehended. He disclosed :
State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 3 of 31 About 1 ¼ years ago, his friend Vinod had sent him to Anand Vihar Bus Terminal, talk on mobile number 9250791049 and to bring what he would give to him. He went there and contacted on that number. Bobby alias Mobin Ahmed came with his wife Nisha and the prosecutrix at/near Aggarwal Sweets Surya Nagar, U.P. He handed over him the prosecutrix for taking her to the house of Vinod. On the way to Sikanderabad, when they were travelling in the bus, the prosecutrix started weeping. She told him that Ali Hassan alias Ali Master had come with Alishan @ Raja in her village and got her married with Alishan. Alishan brought her to Delhi and forced her to go for prostitution. He started calling customers in his house and forced her to sleep with them. When she refused, he beat her. He thereafter sold her to Bobby and Nisha who also forced her to indulge into prostitution. They used to beat and make her hungry. They used to call customers to sleep with her. She told that she does not want to go for prostitution. After hearing her story, he (Rajender) took the prosecutrix in his inlaws house and got her married with his brotherin law Ashok.
At his instance, the prosecutrix was recovered from the house of Ashok at Salempur road, Shiv Nagar Colony, Sikandarabad, Bulandshahar, U.P. Accused Alishan @ Raja, State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 4 of 31 Ali Hassan, Mobin Ahmed @ Bobby and Nisha were arrested.
On interrogation, accused Alishan disclosed that he runs a prostitution racket with Bobby and Nisha and supply girls to the customers on Rs.3,500/4,000/ per night. He alongwith Ali Hassan had gone to bring girls from Jharkhand for prostitution.
He asked Gulam Mustafa to marry the prosecutrix with him.
He married to the prosecutrix and brought her to Delhi. The prosecutrix was offered to customers for prostitution but she refused. He then sold her to Bobby and Nisha for Rs.12,000/ for five nights. After five days, when he went to bring her back, he did not find her. Accused Bobby disclosed that he had sent the prosecutrix with Rajender to Sikanderabad for one night for Rs.3500/ but she did not return from there. Ali Hassan disclosed that he knew that Alishan used to run sex racket. He got the prosecutrix married to him after telling lies to the father of the prosecutrix since Alishan had given him commission for the same.
2. The prosecutrix was produced in the court. Her statement u/s 164 CrPC was got recorded wherein she stated that Ali Hassan had talked to her father about her marriage with Alishan. When her father refused, he told him that he is his relative and he(Alishan) would keep her well. Sections State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 5 of 31 366,368/34 and 120B were added. After the investigation, the accused persons, namely, Ali Hassan @ Ali Master, Alishan @ Raja, Mobin Ahmed @ Bobby and Nisha were sent for trial.
3. After complying with the requirements contemplated u/s 207 Cr.P.C. the case was committed to this Court.
Charge
4. After hearing arguments, vide order dated 19.07.2011, prima facie case was made out against the accused persons and the charge u/s 365/34, 366/34 and 368/34 IPC was framed. During trial, accused Alishan died on 06.06.2013 and the proceedings against him were abated vide order dated 20.01.2014.
Prosecution Evidence
5. To substantiate its case, the prosecution examined as many as eight witnesses.
PW 1 is the prosecutrix. She has testified on oath that about three years ago, their distant relative accused Ali Hassan came at her native village alongwith accused Raja. He approached her parents for her marriage with the accused Raja. Her parents agreed to the marriage proposal and she got married with the accused as per Muslim rites. She stated that State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 6 of 31 after the marriage, she was brought at Delhi by the accused Raja and Ali Hassan. They kept her in the house of accused Ali Hassan and thereafter she was taken to another house where she met a woman and two girls. Accused Alishan introduced one of the ladies as his wife and told her that he is married having children. She stated that this fact was never disclosed to her or to her parents at the time of her marriage. Accused Raja @ Alishan told her that he has brought her to Delhi for the purpose of prostitution. Accused Raja @ Alishan used to call customers and ask her to sleep with them and have sexual relations with them saying that he has to earn money from those persons who would have sexual intercourse with her. She stated that accused Raja used to send her with different males in the room and close the room. She stated that she used to tell them her story that she was brought to Delhi on the pretext of marriage and now they are pushing her into prostitution. She stated that she did not allow those persons to have sexual intercourse with her. She stated that accused Raja used to beat her because those persons did not pay him money since they did not have sexual intercourse with her. She stated that after about 15/20 days, accused Raja called accused Mobin Ahmad @ Bobby and Nisha at his place and showed her. He asked State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 7 of 31 them to push her into prostitution. She stated that thereafter, the accused Raja took her to the house of accused Nisha and asked her to live there. She stated that accused Raja brought her from there on the same day and on the next day, accused Bobby and Nisha took her to their house and confined her there telling that they have bought her against consideration and she would have to have sexual intercourse with males/persons. She stated that the accused Bobby and Nisha used to call customers to have sexual intercourse with her. She stated that before them also, she pleaded for mercy and requested not to sexually exploit her. She somehow saved her honour but the accused Bobby and Nisha beat her and did not serve her food. She stated that after 4/5 days, accused Bobby and Nisha told her that she would have to go with Rajender for prostitution. She stated that she under the impression that she could save herself from the clutches of accused Nisha and Bobby, agreed to go with Rajender. On the way, in the bus, she narrated him her plight who then took her in the house of his brotherinlaw Ashok Kumar where she started doing sanitation work. She stated that after few days, she agreed to marry with Ashok Kumar. She stated that she got married with Ashok Kumar and has a daughter.
State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 8 of 31 On being crossexamined, she stated that at the time of incident, she was 19 years of age. On the next day of her marriage, she was brought at Delhi where initially she was kept on the second floor of a three storeyed house where she was confined in a room and was not allowed to peep even. She stated that the lady whom accused Raja had introduced as his wife used to beat her. She stated that the accused Bobby and Nisha had taken her in their house in an auto where she stayed for 8/10 days.
On being further crossexamined, she denied that she had voluntarily left the house of the accused Raja at Delhi and gone to the house of the accused Bobby and Nisha. She denied that she was not compelled at any point of time by accused Raja, Bobby and Nisha to have sexual intercourse with different persons. She denied that she was not sold by the accused Raja to Bobby and Nisha against consideration and no male/person ever visited or sent to have sexual intercourse with her. She denied that she did not want to go back to her native village despite she knew the address of her village and she preferred to go with Rajender. She stated that she did not have money to go to her native place and the accused Bobby and Nisha had sent persons for her surveillance to confirm that she State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 9 of 31 be taken to Sikandarabad by Rajender.
PW 2 Rajender Mahor stated that about three years ago, at the instance of his friend Vinod, he went to Delhi and contacted the accused Bobby on his mobile number 9250791049. He called him at Surya Nagar near Aggarwal Sweets. Accused Bobby came there with his wife Nisha and the prosecutrix. Accused Bobby handed over him the prosecutrix with directions to hand over her to Vinod at Sikandrabad. They boarded the bus for Sikandrabad from Anand Vihar bus stand. On the way, the prosecutrix narrated him her story that Ali Hassan and Alishan @ Raja had gone to her village and on the recommendations of Ali Hassan, she got married to Raja @ Alishan; after the marriage she was brought at Delhi; they compelled her to indulge into prostitution; they sold her to Bobby and Nisha who used to call customers to have sexual intercourse with them. He stated that prosecutrix was not willing to go to her native place. She asked him to arrange a job for her. He took her in his inlaws house and got her married with his brotherinlaw Ashok.
PW 3 Gulam Mustafa is the father of the prosecutrix. He stated that on 27.10.2008 he married his daughter/prosecutrix with the accused Alishan in his native State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 10 of 31 village as per Muslim Rites. After the marriage, Alishan brought her in his house at Sun Light Colony. He visited his daughter once in Sunlight Colony and came back. He stated that after about 15/20 days of marriage, when he asked Raja to connect him with the prosecutrix, he made excuses and did not connect her. He then went to the house of his relative at Faridabad from where he alongwith his relative went to Sun Light Colony where he met Ali Hassan. He did not give them any satisfactory answer and told him that his daughter has gone with a boy. At that time, accused Raja was not there. He stated that accused Ali Hassan also told him that Baba Mumtaz would come and the matter would be settled in his presence. He stated that accused Raja and Baba Mumtaz came who offered him Rs.70,000/ to settle the matter. He told him that he would not be able to get his daughter back. When he refused and requested them to arrange his meeting with the prosecutrix, they asked him to forget his daughter. He stated that he stayed in the house of his relative at Faridabad and kept on contacting the accused persons but the accused persons did not return his daughter. He then reported the matter to the police vide Ex. PW 3/A. He stated that he stayed at Faridabad for about nine months and when he could not trace his State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 11 of 31 daughter, he went to his native village. He stated that in December,2009, he was informed by the police that they have recovered his daughter.
On being crossexamined, he stated that after the marriage of his daughter, he also went to Delhi and lived there for two days. He stated that Ali Hassan is the brotherinlaw of his brother. He stated that he had talked to the accused Alishan on phone after about two months of the marriage. He stated that when he gave the complaint to the police, the police had gone with him to the house of accused Alishan who was present in his house at that time. He stated that the police did not take the accused Alishan to the police station. Thereafter, he never met the accused Alishan. He admitted that accused Ali Hassan and Alishan used to live in the same house. He stated that his daughter did not speak to him on phone during the above period. He stated that his daughter is illiterate. He denied that his daughter voluntarily married to Ashok and he after conniving with his daughter falsely implicated the accused Alishan.
PW 4 Ct Yamin recorded the FIR Ex. PW 4/A. PW 5 Ashok Kumar stated that about five years ago, his brotherinlaw Rajender Singh had brought the prosecutrix State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 12 of 31 in his house at Sikandrabad. She lived there for 1015 days and expressed her desire to marry with him. He married to her as per Hindu rites. She changed her name as Babita. He stated that he did not know her background.
On being crossexamined by Ld. Addl. PP, he denied that the prosecutrix had narrated him the incident happened with her and her marriage with Alishan who brought her to Delhi and forced her into flesh trade. He denied that she had told him that accused Alishan had sold her to Bobby and Nisha who also forced her into prostitution or that Bobby and Nisha handed over the prosecutrix to his brotherinlaw Rajender.
PW 6 ASI Kishan Vir Singh recorded the statement of father of the prosecutrix Ex. PW 3/A on 23.07.2009. He made endorsement and gave to Ct. Yamin for getting the FIR registered.
PW 7 Insp. Jaipal Singh was the investigating officer of this case. He arrested the accused Alishan vide memo Ex. PW 7/A, recorded his disclosure statement Ex. PW 7/F and at his pointing out, he arrested the accused persons Ali Hasan, Mobin Ahmed and Nisha. He also recorded their disclosure statements. He stated that during investigation, he came to know that the prosecutrix was sent with Rajender at State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 13 of 31 Sikandrabad. He directed the accused Nisha to call Rajender at Anand Vihar. Rajender came there. On interrogation, he disclosed that on the way to Sikandrabad, the prosecutrix had told him that all the accused persons were forcing her into flesh trade which she did not want. He got her employed in his inlaws house where after 15 days, she married to his brother inlaw Ashok. He stated that Rajender led them to Sikandrabad and got recovered the prosecutrix from there. He also got recorded the statement of prosecutrix Ex. PW 7/O u/s 164 CrPC.
PW 8 Sh. Devender Kumar Jangala recorded the statement of prosecutrix u/s 164 CrPC Ex. PW 7/O. Statement of Accused
6. After the prosecution evidence, statements of accused persons were recorded u/s 313 Cr P C. They denied all the incriminating evidence against them. Accused Mobin Ahmed @ Bobby and Nisha stated that Rajender and Ashok used to come in the house of prosecutrix in the absence of her husband Raja. They told this fact to Raja. They stated that the prosecutrix falsely implicated them in this case due to enmity. Accused Ali Hasan stated that he had property dispute with Baba Mumtaz. He however admitted that he got the prosecutrix State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 14 of 31 married to accused Alishan ( since expired). He stated that the prosecutrix had love affair with Ashok. She eloped with him. She concocted a false story and the police falsely implicated him under the influence of Baba Mumtaz through the father of the prosecutrix.
Defence Evidence
7. In defence, the accused persons examined Juhi as DW1 and Parveen as DW2.
DW 1 is the sister of father of the prosecutrix. She stated that in October, 2008, she alongwith her husband, accused Alishan@ Raja and family members of Ali Hassan had gone to her native place where father of prosecutrix showed his interest to marry the prosecutrix with the accused Alishan. The prosecutrix married to Alishan on 27.10.2008 vide Nikahnama mark A. After the marriage, she came in Delhi. She stated that during her visit in her house, the prosecutrix never complained regarding her marriage; the prosecutrix had said that she wants to live in Delhi and does not want to go to her native place. She stated that in 2009, she came to know that the prosecutrix eloped with a Hindu boy. She informed the father of the prosecutrix but he did not come. She stated that after few months, her husband and the accused Ali Hassan were called State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 15 of 31 by the police and interrogated. Later her jeth accused Ali Hassan was falsely implicated in the present case.
DW 2 stated that she alongwith her family was living as tenant in the same building at Sun Light Colony where prosecutrix had been living on the third floor. She stated that in the absence of husband of the prosecutrix, some boys used to come in the room of the prosecutrix due to which the prosecutrix and accused Nisha used to quarrel. She stated that accused Nisha used to tell the prosecutrix not to call the boys in the house.
Arguments and contentions
8. I have heard the arguments advanced by Ld. Addl. PP for the State and Ms Niraja Singh, Ld counsel for the accused persons and gone through the material placed on record.
9. The question that falls for consideration is whether the accused persons have abducted the prosecutrix and forced or seduced to illicit intercourse with other persons by means of criminal intimidation and wrongfully confined her.
10. Abduction in common language means carrying away of a person by fraud or force. According to Section 362 IPC, abduction takes place when a person by force compels, or by any deceitful means induces another person, to go from any State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 16 of 31 place. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in itself but when it is accompanied by a certain intention to commit another offence, it perse becomes punishable as an offence. If the abducted person is a woman and the intention is that she may be compelled, or is likely to be compelled, to marry any person against her will, or may be forced or seduced to illicit intercourse, or is likely to be so forced or seduced, section 366 IPC applies. The expression deceitful implies the use of misrepresentation by act or conduct. The offence has the following ingredients:
(i). Kidnapping or abducting any woman;
(ii). Such kidnapping or abducting must :
a. With intent that the woman may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or b. In order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse; or c. By criminal intimidation, or abuse of authority, or by compulsion inducing any woman to go from any place, with the intent that she may be or with knowledge that it is likely that she will be forced or seduced to illicit intercourse with some person.
11. Section 368 IPC punishes concealment or keeping in confinement of kidnapped or abducted person. To attract this State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 17 of 31 section, the accused must be shown to have knowledge of the fact of kidnapping or abduction or that with such knowledge the kidnapped or abducted person was wrongfully confined.
12. Testimony of PW1 reveals that when the accused Ali Hassan introduced Alishan to her father/PW3 and proposed to marry PW1 with the accused Alishan, he did not tell that the accused Alishan was already married having wife and children. She came to know for the first time when Alishan brought her in the house and introduced her with his wife and children. It assumes significance because accused Alishan and Ali Hassan used to live in the same area at Delhi. It was his duty to inform the parents of the prosecutrix well in advance before proposing Alishan to marry with the prosecutrix that he is already married having children. No suggestions came in the cross examination of PW1 or PW3 that Alishan was not already married or that Ali Hassan had informed the prosecutrix/her father about the marital status of the accused Alishan before giving the proposal.
13. Testimony of PW1 further reveals that the accused Alishan on bringing the prosecutrix in his house after marriage had told her that he has brought her for the purpose of prostitution. He used to call customers and ask the prosecutrix State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 18 of 31 to sleep and have sexual intercourse with them so that he may earn money from those persons. He used to send her with different males into the room and close it from outside. He used to beat her as the prosecutrix did not allow those persons to have sexual intercourse with her since he did not get money from the customers. Her testimony shows that after 15/20 days, accused Raja called the accused Mobin @ Bobby and Nisha, showed her to them and asked them to push her into prostitution. He took her in their house and asked her to live there. He brought her back on the same day. On the next day, accused Mobin and Nisha took her in their house, confined her and told her that they have purchased her against consideration and she would have to have sexual intercourse with males/persons. When she pleaded for mercy from those persons to save her honour, both the accused persons beat her and did not serve her food. After 4/5 days, they sent her with Rajender for prostitution. She narrated him her story and Rajender instead taking her to Vinod where she was to be taken, took her in his inlaws house at Bulandshahar where she married with Ashok, brotherinlaw of Rajender. PW2 corroborated the testimony of the prosecutrix on this aspect who has stated that his friend Vinod had given a mobile State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 19 of 31 number 9250791049, to go to Delhi and to bring what he was given. He came at Anand Vihar Bus Stand, called that person who asked him to come at Surya Nagar near Aggarwal Sweets. There the accused Mobin and Nisha came with the prosecutrix and asked him to take her to Vinod at Sikandrabad. They boarded the bus from the Bus Stand and on the way, the prosecutrix narrated her story that her father is a poor labourer and she belongs to Jharkhand. On the recommendation of Ali Hassan, her father married her with the accused Alishan who brought her to Delhi and compelled her to indulge into prostitution. He then sold her to Mobin @ Bobby and Nisha for consideration who used to call the customers to have sexual intercourse with her. He stated that she asked him to arrange some employment. He took her to his inlaws house where she married with his brotherinlaw Ashok. He stated that he did not know the accused Bobby from before. He stated that he did not know the phone number of the family members of the prosecutrix. The accused Mobin and Nisha in their statements recorded u/s 313 CrPC have stated that Ashok and Rajender used to come in the house of the prosecutrix and when they told it to Alishan @ Raja, the prosecutrix due to enmity falsely implicated them. Perusal of the testimony of PW1, PW2 and State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 20 of 31 PW5 would show that no such suggestions were given to those witnesses during their crossexamination. Although accused Mobin and Nisha have examined DW2 but on considering the testimony of PW1, PW2 and PW5 no much credence can be given to her testimony (DW2). Testimony of PW7 also shows that first they arrested the accused Alishan @ Raja. At his instance, they arrested the accused Ali Hassan @ Ali Master. Accused Alishan then took them to the house of Mobin @ Bobby and Nisha who made disclosure Ex. PW 7/L and M and from them, he came to know that they had sent the prosecutrix/PW1 with Rajender at Sikandrabad. Accused Nisha gave him the mobile number of Rajender, called him at EDM Mall at Anand Vihar ISBT who came there on 06/07.12.2009. Accused Nisha identified him who on enquiry revealed that he had taken the prosecutrix to Sikandrabad, got her employed in his inlaws house and married her with her brotherinlaw. He took the police party to the house of his brotherinlaw at Sikandrabad and got recovered the prosecutrix who was brought at Delhi on 07.12.2009 with her husband. PW5 has stated that PW2 had brought the prosecutrix in his house where after 15 days, he married with her in a temple. No suggestions came from the side of the State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 21 of 31 accused persons that accused Alishan did not lead him (PW7) to Ramprastha Colony or the accused Mobin and Nisha did not give the mobile number of Rajender/PW2 nor called him or the prosecutrix was not recovered at the instance of Rajender/PW2. Rather suggestions were given that the prosecutrix had voluntarily left the house of the accused Alishan @ Raja and gone to the house of Bobby and Nisha. It goes to show that the prosecutrix had gone to the house of accused Bobby and Nisha. PW1 has also stated that when she was taken by Rajender to Sikandrabad, accused Bobby and Nisha had sent some persons for their surveillance.
14. In the instant case, when the accused Alishan did not connect the phone of the father of the prosecutrix/PW3 with the prosecutrix/PW1 despite his repeated requests and for many months, he came at the house of his relative Nizamuddin @ Nanu at Faridabad from where they went to Sunlight Colony and met the accused Ali Master. When he asked Ali Master about his daughter, he did not give any satisfactory reply and told him that the prosecutrix has gone with a bihari boy. He also told them that Baba Mumtaz was about to come and matter would be settled in his presence. He stated that accused Alishan and Baba Mumtaz came, they discussed with one State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 22 of 31 another and then Baba Mumtaz asked him to take Rs.70,000/ to settle the matter and said that he would not be able to get her daughter. When he requested them to arrange him meeting with his daughter and he does not want money, they all asked him to forget his daughter and said that they are well connected people. He then lodged the report with the police Ex. PW 3/A. He stated that he searched for his daughter for about nine months and did not get any clue. In December, 2009, police informed him about the recovery of his daughter. He came to Delhi and met the prosecutrix and her husband. He stated that the accused Alishan had married her daughter with an intention to push her into flesh trade which fact her daughter told him after he met her. He stated that his daughter also told him that accused Alishan sold her for prostitution and PW2 got her married with PW5. PW3 was crossexamined at length but the accused persons failed to impeach his testimony on any material point. It was suggested that PW3 after conniving with the prosecutrix falsely implicated the accused. I fail to understand why PW3 would falsely implicate the accused persons. It is not the case that PW3 had animus against the accused persons or was interested in their false implication. No material of this sort came on record to draw State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 23 of 31 this inference.
15. The accused persons have stated that the prosecutrix eloped with Ashok. Had it been so, why they did not inform to the father of the prosecutrix/PW3. PW3 has stated that when he met Ali Master and enquired about his daughter, he did not give any satisfactory reply and told him that his daughter has gone with a bihari boy. He was the mediator in the marriage. It was his prime duty to inform PW3 that she has eloped with a bihari boy. Even Alishan, her husband, did not inform PW3.
16. In the instant case, during arguments, Ld. Counsel for the accused placed on record certified copy of a suit filed by the accused Alishan for restitution of conjugal rights against the prosecutrix/PW1. It was averred that he married with the prosecutrix on 28.10.2008. She lived with him for 15/20 days but thereafter she started creating problems in the matrimonial home at the instance of her father and brother. She wanted to live at Girdih (Jharkhand). On 25.12.2008, she left the matrimonial home without informing him after taking her Istridhan. He immediately called her father who told him that the prosecutrix has to live at Girdih. He then started living there since 25.12.2008. He made all attempts to bring her back but she did not come. The said petition was filed on State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 24 of 31 29.05.2009. The notice of the petition was given to the prosecutrix/defendant for 19.08.2009 but it received unserved. Fresh notice was directed vide order dated 19.08.2009 for 02.02.2010. On the date, the prosecutrix came but since the accused Alishan/plaintiff did not appear, the suit was dismissed in default vide order dated 04.05.2010. It is pertinent to mention that an application was moved on behalf of the accused persons u/s 311 CrPC. Vide order dated 02.02.2016, the said application was disposed of with the observations ".... The missing report was lodged by PW3/father of the prosecutrix on 23.07.2009. The case was registered u/s 365/34 IPC. As per the Death Certificate, Alishan expired on 06.06.2013. The evidence of the prosecutrix was recorded on 02.09.2011,on that day, Alishan was alive. No suggestions came during the examination of the witnesses from the side of accused Alishan and other accused persons regarding filing of petition for restitution of conjugal rights..."
17. Had the prosecutrix been in the house of PW3, he would not have lodged her missing/abduction report in the police station. It is also to be noted that the prosecutrix was recovered on 07.12.2009. Her statement Ex. PW 7/O u/s 164 State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 25 of 31 CrPC was recorded on 07.12.2009. I do not find any material variation/improvements in the testimony of the prosecutrix/PW1 with her statement to the police and the statement Ex. PW 7/O. She was tested at the anvil of cross examination but I find her testimony intrinsic worth believing. In the instant case, the defence has examined DW1 who is the sisterinlaw of Ali Hassan. She had also attended the marriage. Although she has stated that the prosecutrix never complained her anything regarding her marriage but she has also stated that in the year 2009, she came to know that the prosecutrix has eloped with a Hindu boy. She informed the father of the prosecutrix. No such suggestions were given to the father of the prosecutrix that DW1 had informed him about eloping of the prosecutrix with a Hindu boy. Had it been so, what made Alishan or Ali Master not inform the police about this. Facts and circumstances show that the defence of the accused is afterthought and does not inspire confidence.
18. From the testimony of the aforesaid witnesses and material available on record, it is proved that the intention of the accused Ali Hassan @ Master and Alishan was dishonest since beginning. Ali Master got married Alishan with the prosecutrix after giving a proposal that Raja owns a house in State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 26 of 31 Delhi. They also bore the expenses of the marriage. They brought her Delhi and within few days compelled her to indulge into prostitution. The accused Alishan started bringing the customers and when she refused, he beat and confined her. He then sold her to the accused Mobin @ Bobby and Nisha who were also in flesh trade. They took her in an auto and forced her to go into prostitution. When she refused, they beat her and did not serve her food. They then sent the prosecutrix to Vinod at Sikandrabad through Rajender/PW2 for prostitution. On the way, when the prosecutrix told her story to Rajender, he instead taking her to Vinod, brought her in his in laws house and got her married with his brotherinlaw Ashok. The dishonest intention of the accused persons can also be inferred from the fact that when the father of the prosecutrix/PW3 met Ali Master and asked him to arrange his meeting with his daughter, he called Baba Mumtaz and Alishan who asked him to take Rs.70,000/ and said that he would not get his daughter back. When he insisted, he was threatened. Facts and circumstances show that the accused Alishan, Mobin Ahmed @ Bobby and Nisha used to run the sex racket and procure girls for the prostitution and with that intention, accused Alishan married with the prosecutrix who State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 27 of 31 was a daughter of a poor labourer. He brought her in Delhi and forced her into prostitution. It is also seen that Mobin and Nisha had brought the prosecutrix to Aggarwal Sweets, Surya Nagar and sent the prosecutrix with Rajender/PW2 as they had stuck a deal with Vinod.
19. A common intention pre supposes prior consent, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of the commission of the offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. The acts done by each of the participants may differ and may vary in character but they must be actuated by the same common intention.
20. The facts and circumstances of the present case show that all the accused persons were involved in sex racket. They used to drag the girls into prostitution. With that common intention, the accused Alishan and Ali Hassan @ Master went to Girdih where accused Alishan married with the poor prosecutrix. They played fraud and deceitfully induced the State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 28 of 31 prosecutrix and her father to go for marriage and thereafter, she was brought at Delhi. She was confined in a room and was compelled/forced to illicit intercourse. She was dragged into prostitution. When she refused to go for prostitution, she was beaten by Alishan and then she was sold by Alishan to Mobin Ahmed @ Bobby and Nisha who brought her in his house and compelled/ forced her to illicit intercourse. They also wrongfully and secretly confined the prosecutrix after abduction and was also not allowed food. The accused Mobin and Nisha sent the prosecutrix for illicit intercourse at Sikandrabad against consideration.
21. We must realize that ordinarily a woman, will not stake her reputation by levelling a false charge concerning her chastity. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives. Instead of treating her with compassion and understanding, as one who is injured victim of a crime, she is, more often that not, treated as a sinner and shunned. It must therefore be realised that a woman who is subjected to sex violence would always be slow and hesitant about disclosing her plight.
22. It was held in State of UP vs. M. K. Anthony, AIR 1985 SC 48 as follows: State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 29 of 31 "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Crossexamination is an unequal dual between a rustic and refined lawyer."
23. In Vij ay @ Chinee v. State of Madhya Pradesh, Crl.
Appeal No. 660/2008, the Apex court observed that in examining the evidence of the prosecutrix, the court must be State Vs. Alishan etc FIR No. : 344/09 PS : N F Colony Page No. 30 of 31 alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.
24. In the light of above discussion and the legal pronouncements, I am of the opinion that prosecution has successfully proved its case against the accused Ali Hassan @ Ali Master, Mobin Ahmed @ Bobby and Nisha for having committed the offences punishable under Section 366/34 and 368/34 IPC. I, therefore, hold the accused persons Ali Hassan @ Ali Master, Mobin Ahmed @ Bobby and Nisha guilty of the offences punishable under Section 366/34 and 368/34 IPC and convict them thereunder.
25. Let the convicts be heard on the point of sentence on the date as fixed by this court.
Announced in the open court today i.e. 25.02.2016 (Sanjiv Jain) ASJSpl. FTC / South East Saket Courts, New Delhi.
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