Delhi District Court
Sc No: 228/13 State vs . Md Zakir on 1 April, 2015
SC No: 228/13 State Vs. Md Zakir
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 228/13
FIR No. 140/13
Police Station Bhalswa Diary
Under Section 363/366/376 IPC, 4
POCSO Act & Sec 9
Prohibition of Child
Marriage Act
ID No. 02404R0-3122402013
State
Versus
Md Zakir @ Saddam
S/oSh. Wasid Weg
R/o C-336, Jahangir Puri,
Delhi. ......Accused
Date of institution 07/11/13
Judgment reserved on 01/04/15
Judgment Pronounced on 01/04/15
Decision Acquitted
Judgment 1 of 12
SC No: 228/13 State Vs. Md Zakir
JUDGMENT
1. Briefly stated the case of the prosecution is that victim R, aged about 16 ½ years went missing from her house on 15.5.2013. Father of the victim alleged that his daughter has been kidnapped by the accused and prayed that his daughter i.e victim R be traced out. On the basis of the his complaint, the present case FIR was registered.
2. During the course of investigation, IO made efforts to search for the victim through publicity and publication in electronic and printed media but there was no clue of the victim R. On 22.07.2013, victim was produced in the police station by the mother of the accused. The victim claimed that she had gone with the accused of her own free will and had got married with him as per Muslim rites and customs. The victim was taken to BJRM Hospital for medical examination but she refused for her examination and stated that she had Judgment 2 of 12 SC No: 228/13 State Vs. Md Zakir not established any physical relations with the accused. The accused was arrested in the case. After completing investigations, charge sheet was filed.
3. After committal, arguments on the point of Charge were heard and charges for the offences under Section 363/366/376 IPC, Section 4 POCSO Act and for an offence punishable u/s. 9 of Prohibition of Child Marriage Act, 2006 were framed against accused. Accused pleaded not guilty to charges framed against him and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. The prosecution has examined 5 witnesses in support of its case.
Judgment 3 of 12
SC No: 228/13 State Vs. Md Zakir
5. PW1 is the prosecutrix. She deposed that the accused used to come to house of her sister. She developed friendship with the accused and fell in love with him. She ran away voluntarily with accused to Kolkata and performed Nikah with him as per her wish and will. Accused never indulged in sexual activity with her before her marriage. She further deposed that she returned back to Delhi in July 2013 along with the accused and was apprehended by the police. She was taken to Hospital for medical examination but she refused for the same. PW4 had identified her signatures on her statement U/S 164 Cr. PC proved on record Ex. PW1/A. She proved her marriage certificate as Ex P-1 and the seizure memo of the marriage certificate as Ex PW1/B.
6. PW2 is the father of the prosecutrix. He lodged the missing report in respect of victim and testified that he got recovered her daughter from the house of the accused and came to know that his daughter has married the accused.
Judgment 4 of 12
SC No: 228/13 State Vs. Md Zakir
7. PW3 is brother-in-law of the victim. He deposed that when victim got missing, her father lodged the missing report and testified she was recovered from the house of the accused.
8. PW4 ASI Kanti Prasad, conducted the part investigations in the present case and deposed that on 22.07.2013, mother of the prosecutrix produced her in the police station. He gor the prosecutrix medically examined.
9. PW5 SI Sangeeta, arrested the accused as per the arrest memo Ex. PX-5, she took the personal search of the accused vide memo Ex.PW5/A and recorded the disclosure statement of accused as Ex. PW5/B. She got conducted the medical examination of the accused vide MLC Ex. PX-2 and also verified the birth certificate Ex. PX-3 of the victim wherein the date of birth of the Judgment 5 of 12 SC No: 228/13 State Vs. Md Zakir victim is mentioned as 18.10.1996. During her cross-examination, the PW5 termed it correct that the victim & the accused are co- habiting as husband and wife and also that they got married on 04.10.2013 as per nikahnama.
10. In the present case, the prosecution cited 17 witnesses in order to prove its case against the accused. After framing of the charge the accused gave a statement wherein he admitted MLC of the prosecutrix as Ex. PX-1, his own MLC as Ex. PX-2, the statement of prosecutrix U/s 164 Cr. PC as Ex. PW1/A, Birth certificate of victim as Ex. PX-3, Marriage certificate as Ex. PX-4, arrest memo Ex.PX-5 and FIR in question as Ex. PX-6. In view of the same the concerned MM, Doctor and police witnesses were not summoned for examination. The remaining witnesses were examined as PW1 to PW5 and their testimonies have already been discussed as above.
Judgment 6 of 12
SC No: 228/13 State Vs. Md Zakir
11. In these circumstances PE was closed. Statement of accused was dispensed with as no incriminating evidence came on record against the accused from the statements of material witnesses and of the victim R.
12. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
13. I have heard the arguments and also perused the case file carefully.
14. Age of the victim: In the present case, accused is alleged to have kidnapped victim R, a minor aged about 17 years and took her to Kolkata with intent that she may be compelled to marry him and/or be forced/seduced for illicit intercourse with him. In order to prove that the victim was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution Judgment 7 of 12 SC No: 228/13 State Vs. Md Zakir has examined PW5 IO/SI Sangeeta, who collected the Birth Certificate issued by Sub Registrar, NDMC proved on record as Ex PX-3 and as per this certificate, the date of birth of the victim is 18.10.1996. The date of missing of the victim was 15.05.2013 and as such, the victim R was aged about 16 years and 7 months, when she eloped with the accused and hence she is a 'child' within the meaning of Section 363/366 IPC & POCSO Act.
15. Ld. Addl. PP has contended that since prosecutrix was less than 18 years of age as on the date of commission of offence, accused is liable to be convicted U/s 363/366 IPC.
16. Testimony of victim: The victim categorically deposed that she fell in love with the accused and ran away with him. She performed Nikah with the accused as per her wish and will and after the marriage they have been living together as husband and wife. It is evident that the prosecutrix was at the verge of attaining majority when she voluntarily eloped with the accused.
Judgment 8 of 12
SC No: 228/13 State Vs. Md Zakir
The victim R who was examined as PW1 has stated that she had voluntarily gone with the accused and solemnized marriage with him as per Muslin Rites & Customs and that she was not enticed by the accused, in any manner, to go with him. Thus, the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
17. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
Judgment 9 of 12
SC No: 228/13 State Vs. Md Zakir
18. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
" There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.
361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
19. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that victim was willing and consenting party and it seems that everything has happened with her will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
Judgment 10 of 12
SC No: 228/13 State Vs. Md Zakir
20. The nutshell of foregoing discussion is that from the testimony of the victim R as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped victim child R, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him.
21. Moreover, the victim has categorically deposed that the accused did not establish physical relationship with her before marrying her. Hence, the accused cannot be held to be guilty of committing offence of rape or sexual assault on her as punishable under section 4 POCSO Act or under section 376 IPC.
22. Further, since the victim, who was on the verge of maturity, she had married the accused of her own free will and consent, the offence U/s 9 of the Prohibition of Child Marriage Act 2006 does not stand established against the accused.
Judgment 11 of 12
SC No: 228/13 State Vs. Md Zakir
Accordingly, I acquit accused Md Zakir @ Saddam of the charged offence. The accused is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C. File be consigned to record room.
Announced in open Court on Day of 1st April, 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
01.04.2015
Judgment 12 of 12
SC No: 228/13 State Vs. Md Zakir
State vs Mohd. Zakir
FIR No. 140/13
PS -Bhalswa Dairy
SC No. 228/13
01.04.2015
Present : Ms. Suchitra Singh Chauhan, Ld. Addl. PP for the State.
Accused on bail with counsel Sh. Om Prakash. Matter is fixed for recording of statement of accused. However, no incriminating evidence has been found against the accused person. Hence, recording of SA stands dispensed with.
Vide separate judgment of the even date, accused is acquitted of the charges punishable u/s 363/366/376 IPC & Section 4 of the POCSO Act, 2012 as well as 9 of the Prohibition of Child Marriage Act, 2006. The accused is directed to furnish a personal bond and surety bond in sum of Rs. 10,000/- with surety in like amount under provisions of Section 437-A Cr.P.C.
Bond has been furnished and accepted.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
01.04.2015
Judgment 13 of 12