Delhi District Court
State vs Smt.Mobia Khatoon @ Munni Devi on 12 August, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeSpl. FTC2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 41/13
UID No. : 02401R0311832012
State versus Smt.Mobia Khatoon @ Munni Devi
W/o Sh.Mohd.Quddus
R/o H.No.A/153, Gali No.2,
Harit Vihar, Burari,
Delhi.
Case arising out of:
FIR No. : 219/11
Police Station : Burari
Under Section : 336/372/373/376G/344/174A IPC
Judgment Reserved on : 07.08.2013
Judgment pronounced on : 12.08.2013
JUDGMENT
It is the case of the prosecution that on 05.07.2011 complainant/Prosecutrix 'RB' (name withheld to protect the identity of the Prosecutrix) lodged the report with PS Burari to the effect that she was brought to Delhi from her native village Hira Basti, Distt. Navgaon, Assam by one Babul on the pretext of marrying her. After reaching Burari, Delhi, Babul sold her to Ravi @ Nazre Alam and Rajeev for Rs.16,000/ and she was kept confined at the house of Ravi at Harit Vihar, Burari where both Ravi and Rajeev also raped her. Complainant further alleged that she was kept confined with the assistance of Ravi's wife Noorjahan and Ravi's mother Munni and she was forced into prostitution and to have sexual relations with other boys. The accused used to take money from those boys in lieu of this. On finding an opportunity, the Prosecutrix left home and came to police station to lodge the report. On the basis of this report, FIR was registered and accused Nazre Alam @ Ravi and his wife Noorjahan were arrested, whereas the other accused viz., Rajeev and Mobia Khatoon were not arrested. Vide judgment dated 13.07.2012, accused Nazre Alam @ Ravi and Noorjahan @ Fullo were convicted for the offence punishable under Section 368 IPC.
As per record, the Investigation Agency got issued NBWs and process under Section 82 Cr.PC against accused Mobia Khatoon, who was declared Proclaimed Offender by the order of the concerned ld.MM dated 20.12.2011.
It is the case of the Prosecution that on 26.04.2012 accused Mobia Khatoon was arrested thereafter and supplementary charge sheet was filed against her. On the basis of material on record accused Mobia Khatoon was charged for the offence punishable under Sections 368/373 and 174A IPC. She pleaded not guilty and claimed trial.
In order to prove the guilt of the accused Mobia Khatoon, the Prosecution examined 7 witness. Despite best efforts Prosecutrix 'RB' could not be traced and produced in the witness box. It was submitted by the IO before the court that the Prosecutrix is not traceable and the detailed report of the IO to this effect also forms part of the record.
PW1 is HC Jasbir Singh, who deposed that on 26.04.2012 along with W/Ct.Manisha, Ct.Bijender, Ct.Sunil and IO/W.ASI Alma Minz, upon receipt of information by IO regarding accused Munni Devi, who was absconding in this case, proceeded from the PS and reached at Jhuggi Cluster Sangam Park, Pratap Bagh and found accused standing adjoining the park. The witness further deposed regarding arrest of the accused Mobia Khatoon vide arrest memo Ex.PW1/A. This witness also proved the pointing out memo which was prepared at the instance of the accused as Ex.PW1/B. HC Ram Phool was examined as PW2. He being the Duty Officer on 05.07.2011, on receipt of rukka recorded the FIR of this case and proved the same as Ex.PW2/A. Dr.Surender Kumar who stepped into the witness box as PW3 and deposed regarding examination of Prosecutrix on 05.07.2011 vide MLC Ex.PW3/A. He also deposed regarding examination of the accused Mobia Khatoon on 27.04.2012 vide MLC No.3/B. PW4 is Dr.Namrata Saxena who deposed regarding having conducted gynecological examination of Prosecutrix on 05.07.2011 and proved the same vide MLC already Ex.PW3/A from point B to B. Smt.Sajjo Begum was examined as PW5, who deposed that the accused Munni Devi lives in the house situated in front of her house and that she saw police visiting the house of Noor Jahan and lateron she came to know that accused Munni Devi has been arrested by the police. However, this witness failed to deposed anything else pertaining to this case and was declared hostile.
Ms.Aparna Swami, ld. MM was examined as PW7, who deposed regarding recording of statement of the Prosecutrix on 06.07.2011 and proved the same vide memo already Ex.PW6/A. ASI Alma Minz, who is the IO of the case, stepped into the witness box as PW6. She deposed regarding recording of the statement of the Prosecutrix, who came to the PS Burari on 05.07.2011. On this basis of the statement of the Prosecutrix, PW6 prepared rukka Ex.PW6/A and handed over the same to the Duty Officer for registration of FIR. She also got the Prosecutrix medically examined at Aruna Asaf Ali Hospital and collected the exhibits along with the sample seal vide seizure memo Ex.PW6/B. This witness further deposed regarding deposit of exhibits at malkhana, preparation of site plan (Ex.PW6/C) at the instance of the Prosecutrix, arrest of the accused Nazre Alam and Noor Jahan (both since convicted vide judgment dated 13.07.2012), recording of statement of the Prosecutrix under Section 164 Cr.PC before the ld. MM.
PW6 also deposed that she searched for accused Mobia Khatoon and Rajeev but they could not be found, so she obtained NBWs against them. On 20.10.2011, NBWs were issued against accused Mobia Khatoon @ Munni Devi and she went to the house of the accused which was found locked and on making inquiries from the neighbours it was revealed that accused Munni Devi visit her house occasionally and despite her sincere efforts Munni Devi could not be found. This witness proved her report on the NBWs dated 20.10.2011 as Ex.PW6/E and further deposed that on 20.10.2011, process under Section 82 Cr.PC was again issued against accused Mobia Khatoon. She proved her report on process under Section 82 Cr.PC as Ex.PW6/F and newspaper publication as Ex.PW6/G and deposed that the accused was declared PO by the order of ld. MM on 20.12.2011. She also deposed regarding arrest of accused Mobia Khatoon 26.04.2012 vide arrest memo Ex.PW1/A, conduct of personal search vide memo Ex.PW6/H, recording of the disclosure statement of the accused Mobia Khatoon and preparation of pointing out memo of place of incident vide memo Ex.PW1/B. The evidence on record was put to the Accused in her statement recorded under Section 313 CrPC, wherein she denied the allegations made against her and claimed innocence and false implication.
Accused however examined one witnesses viz., DW1 Parvez Alam in her defence, who deposed that he is residing at H.No.A/153, Harit Vihar, Gali No.2, Burari, Delhi with her grand mother i.e., accused Mobia Khatoon for the last 10 years and about two years ago, police officials used to regularly visit their house and also talked to him and her Nani. He further deposed that Police did not gave any notice to him or his Nani and did not make any inquiries from other residents of the locality and that the house of Sajjo Begum is at the back of their house. He also deposed that police never made any inquiries from her and did not affix any notice outside their house. His Nani i.e. accused Mobia Khatoon was called in the PS in MarchApril, 2012 by making a phone call and that the said call was made to him by IO/ASI Alaa Minj, who said that some inquiries to be made regarding bail of his Mamu Nazre Alam (since convicted). This witness also deposed that his Nani was arrested at the PS and he was sent back.
I have considered the arguments of learned defence counsel and ld. APP in the light of the evidence on record. It is a matter of record that despite several opportunities granted to the Prosecution to produce the witness, i.e. the Prosecutrix 'RB', the said witness was not produced as a witness. IO/ASI Alma Minz sought several opportunities to effect service of summons upon the Prosecutrix. Even Bailable Warrants were issued against the Prosecutrix, which were also received back unexecuted. IO submitted before the court that the Prosecutrix could not be traced despite best efforts. She also annexed her detailed report to this effect on the process issued against the Prosecutrix. Hence, apparently the Prosecutrix who is the star witness of the Prosecution has not been examined in this case.
The Prosecution also examined Smt.Sajjo Begum as PW5. However, this witness failed to support the case of the Prosecution and deposed that the accused Mobia Khatoon @ Munni and her son do the work of property dealing. Despite being crossexamined by ld. APP, this witness failed to support the case of the prosecution. Accordingly in the absence of the Prosecutrix and in the light of deposition of PW5 Smt.Sajjo Begum, I find that there is no evidence whatsoever to prove the charge of offence under Section 368 & Section 373 IPC against the accused Mobia Khatoon @ Munni Devi. Consequently, she is liable to be acquitted for the said charges.
Insofar as charge under Section 174A is concerned, it is the case of the prosecution that the accused Mobia Khatoon @ Munni failed to appear before the court of the ld. MM on 20.12.2011 despite execution of the proclamation issued under Section 82 Cr.PC issued against her in this case. In order to prove the commission of this offence by the accused, the prosecution primarily relied upon PW6 Alma Minz, who reportedly executed the process under Section 82 Cr.PC against the accused Mobia Khatoon @ Munni. With regard to the charge under Section 174A Cr.PC, PW6 ASI Alma Minz deposed that she went to the house of the accused on 20.10.2011 and publically read out the proclamation and also affixed the same on the house of the accused besides affixing one copy of the proclamation on the notice board of the court. The proclamation under Section 82 Cr.PC has also been published in the national Hindi Newspaper 'Hindustan' on 18.11.2011. The report on the process under Section 82 Cr.PC is Ex.PW6/F and the newspaper publication is Ex.PW6/G. In her crossexamination, PW6 ASI Alma Minz deposed that when we went to the house of the accused to execute the process under Section 82 Cr.PC, she was not found present at her house. She deposed that at that time she was accompanied by HC Jagbir Singh. HC Jagbir Singh (PW1), however, in his entire examinationinchief did not depose about accompanying the IO ASI Alma Minz to the house of the accused on 20.10.2011 for executing the process under Section 82 Cr.PC. In his crossexamination, however, he deposed before the court that he had accompanied the IO to the house of the accused on one or two occasions and had also taken photographs of the affixation of the process under Section 82 Cr.PC with the help of his mobile phone. The said photographs admittedly never got printed nor brought on record to support the claim of the prosecution that process under Section 82 Cr.PC was duly executed against the accused.
Further, PW6 Alma Minz deposed in her crossexamination that she did not record the statement of any witness when she visited the house of the accused for executing the process under Section 82 Cr.PC. She also pointed out towards the grandson (Parvez Alam, who was later examined as DW1) and deposed that the said boy was found present at the house of the accused on the day when she had gone to execute the process under Section 82 Cr.PC. She also deposed that though she had made inquiries from that boy, but she did not record his statement.
A bare perusal of this piece of deposition of PW6 ASI Alma Minz reveals that her report on the process under Section 82 Cr.PC Ex.PW6/F cannot be relied upon. Apparently, statement of any person was not recorded by her on the day when she went to execute the said process. It is also noteworthy that her report Ex.PW6/F does not even bear the date of her visit to execute the process under Section 82 Cr.PC, leave aside any photograph regarding affixation of the same. Moreover, the grandson of the accused Mobia Khatoon @ Munni namely Parvez Alam was examined as DW1 and he stated on Oath that the police did not affix any notice outside their house. He also stated that the police officials used to regularly visit their house and also talked to him and his Nani Mobia Khatoon @ Munni i.e. accused herein.
In view of the above evidence on record, I am of the view that proper execution of process under Section 82 Cr.PC against accused Mobia Khatoon @ Munni has not been proved on record. Mere publication in the newspaper, which is not even mandatorily required, as per Section 82 Cr.PC, is not sufficient, in my view to hold that process under Section 82 Cr.PC was executed against the above named accused, in accordance with law. Consequently, accused Mobia Khatoon cannot, in these circumstances, be held guilty for having committed offence under Section 174A IPC and is hereby acquitted for the same.
In view of the above discussion, accused Mobia Khatoon @ Munni W/o Sh.Mohd.Quddus is hereby acquitted of the charges with which she was charged. Her bail bond stands stands cancelled. Surety discharged. File be consigned to record room.
Announced in the Open Court
on 12.08.2013 (Kaveri Baweja)
Additional Sessions JudgeSpl. FTC2 (Central)
Tis Hazari Courts: Delhi.
State Vs. Mobia Khatoon @ Munni Devi
FIR No. : 219/11
PS : Burari
SC No. : 41/13
12.08.13
Present : Ms Neeta GuptaLd. APP for the State.
Accused on bail with counsel Sh.Sagheer Ahmed, Adv.
Vide separate judgment announced today in open court, Accused Mobia Khatoon @ Munni W/o Sh.Mohd.Quddus is acquitted of the offences with which she was charged. Her Bail Bonds are cancelled. Surety discharged. Accused is however directed to furnish bail bond in the sum of Rs.15,000/ with one surety in the like amount in terms of Section 437A Cr.PC. Bail Bond furnished and accepted.
File be consigned to record room. The Prosecution is at liberty to seek revival of the case in the event of arrest of accused Rajeev (since absconding).
(Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.