Delhi District Court
State vs Yesdam Shaikh on 23 May, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 20/2014
Unique ID No. : 02401R0104982014
State versus Yesdam Shaikh
S/o Sh. Samad Shaikh
R/o CN167, Near 64
Khamba Basti, Takiya Kalen
Khan, Meer Dard Road,
Delhi
Case arising out of:
FIR No. : 07/2014
Police Station : Chandni Mahal
Under Section : 328/366/376/506 IPC
Judgment reserved on : 19.05.2014
Judgment pronounced on : 23.05.2014
JUDGMENT
Case of the Prosecution:
Stating briefly, the facts of the case are that on the intervening night of 7/8.01.2014 at 3.05 AM, Complainant 'S' came to PS Chandni Mahal and made a complaint regarding kidnapping of his daughter 'IK' [Name withheld to protect the identity]. He alleged that on 07.01.14 at 12 noon, his daughter 'IK' had gone to the market for purchasing some goods but she did not return home. He searched for his daughter in relatives and acquaintances but did not find her. He suspected that friends of his son Shahrukh i.e. Accused Yesdam and one Raju had kidnapped his daughter. SI Rohtash made endorsement on the statement of Complainant and gave it to DO/ASI Kanwar Sain. During investigation, IO/SI Rohtas recorded statement of witnesses.
On 09.01.14 Prosecutrix alongwith Accused Yesdam came at PS Chandni Mahal. Prosecutrix expressed her desire to go with her parents. Accordingly, Prosecutrix 'IK' was sent with her parents.
On 10.01.14 statement of Prosecutrix was got recorded under Section 164 CrPC by Ld. MM. Prosecutrix was got medically examined at Lok Nayak Hospital vide MLC No. 281765.
On the basis of statement of Prosecutrix recorded under Section 164 CrPC and her MLC, case under Section 363/34 IPC was registered against Accused Yesdam Shaikh.
On 17.01.14 Accused Yesdam was arrested from his house. His disclosure statement was also recorded. Accused was got medically examined at Lok Nayak Hospital. The exhibits duly sealed, were taken into police possession and deposited in malkhana.
On 18.01.14 one day police remand of Accused was obtained from court. On the pointing out of Accused and Prosecutrix, site plans of Singh Guest House and H. No. 4224, Gali No. 10, Ajeet Nagar, Gandhi Nagar, Delhi, where Accused had taken Prosecutrix, were prepared.
Date of birth of Prosecutrix was verified from Govt. Girls Sr. Sec. School, Bela Road, Darya Ganj, Delhi, which was found to be 01.11.1995. The Auto rickshaw driver Polash, named by Prosecutrix in her statement under Section 164 CrPC, could not be traced despite best efforts. On the basis of aforesaid, case under Section 328/366/376/506 IPC was registered against Accused Yesdam Shaikh. After completion of investigation, chargesheet was filed in court.
Charges:
Upon committal of case, Accused Yesdam Shaikh is charged for offence punishable under Section 366/328/376/506 IPC to which he pleaded not guilty and claimed trial.
Prosecution Evidence:
In order bring home the guilt of Accused, Prosecution examined four [04] witnesses on record. It may be mentioned at this juncture that PW Dr. Rajender who conducted potency test of Accused was dropped as the report of potency test of Accused was not disputed by defence. Further, PWs Dr. Shilpi, Dr. Aditi, Dr. Gauri and Ms Meena Gupta, Principal, Govt. Girls Sr. Sec. School, Bela Road, Darya Ganj, Delhi were also dropped as the defence did not dispute the factum of refusal of Prosecutrix for her medical as well as the date of birth of Prosecutrix. Prosecution also dropped PWs Sh. Allau Islam, W. Ct. Priyanka, W. Ct. Pushpa, Ct. Dharmender and Ct. Sandeep vide order dated 03.04.14.
Prosecutrix 'IK' was examined as PW1. She deposed that she is studying in class XI in GG Senior Secondary School, Bela Road, Darya Ganj, Delhi and her date of birth is 01.11.1995. She is living with her parents alongwith two brothers and two sisters. She correctly identified Accused Yesdam when produced in court stating that he is friend of her brother Shahrukh. Accused used to frequently visit her house, he being friend of her brother. She deposed that Accused used to propose her for marriage to which she refused. PW1 deposed that she told her family members about the said proposal of Accused and her family members did not allow him to come to her house thereafter.
PW1 deposed that on 07.2.14 Accused called her on mobile of her mother. She picked up the phone. Accused told her that he had met with an accident and requested her to meet him stating that otherwise he will die. He also threatened her that in case she does not go to meet him, he will kill her and her family members. She went to meet the Accused at Delhi Gate, Darya Ganj i.e. at the place where he had called her. On reaching there, she saw the Accused who was standing there. He was not having any injuries. She enquired from him as to why he had lied to him about accident. Accused replied that he had stated so in order to call her as he wanted to meet her. Accused thereafter took her to Taj Restaurant at Delhi Gate stating that he wants to talk to her.
PW1 further deposed that when they reached at Taj Restaurant, one friend of Accused whom he was addressing as Jahandad, was already present in the restaurant. Accused offered her a soft drink which was already kept on table. After consuming the cold drink, she started feeling giddy and she was not having control on her senses. Accused made her sit in a TSR. She was crying and requesting him to make her talk to her mother but Accused had already snatched her phone in restaurant and also taken out the SIM card bearing No. 9250756542. Accused was addressing TSR driver as Polash.
Accused took her to Delhi Cant. at the house of his Jija in the said TSR and Polash left from there. She remained there for about 1 1 ½ hour. In the meantime, Accused received the call of Polash and he informed the Accused that his father has been apprehended by police and is being given beatings and asked him to leave that place. Polash again came there. We sat in his TSR but on the way we changed the TSR and Polash left from there.
Accused took her to Singh Guest House in the said other TSR and we stayed there overnight. At night, Accused forcibly established sexual relations with her at Singh Guest House despite her refusal.
On the next morning, Accused took her to Patiala House Courts. There he forced her to sign Nikaahnama and marriage certificate by saying that the said documents are for his safety. Thereafter, Accused took her to Shastri Park to the house of one of his relatives whose name she does not know. They stayed there for one night and there also Accused again established physical relations with her without my consent.
On the next day, Accused took her to PS Chandni Mahal. Accused returned her mobile phone alongwith SIM card to her at the PS. Thereafter, he compelled her to make a statement in his favour by saying that she had gone with him willingly and that she wanted to live with him. He threatened her that in case she does not make this statement, he will kill her. Under his threat, she gave her statement to the police. Thereafter, she went home with her parents from the PS. Police took her to court on 10.2.14 where her statement was recorded by one Magistrate which is Ex.
PW1/A. Prosecutrix was got medically examined at LNJP Hospital but she refused for her medical examination.
PW2 ASI Kanwar Sain was Duty Officer who proved the FIR Ex. PW2/A and also made endorsement Ex. PW2/B on the original rukka.
PW3 'S' [name withheld to protect the identity] deposed that Prosecutrix 'IK' is his daughter. She is aged about 18 years. On 07.1.14 he left his house for his job and his wife telephonically informed him about missing of 'IK'. He came back to his house and came to know that 'IK' went to market at about 12 noon and did not return. He searched for her but she could not be traced. He correctly identified Accused Yesdam when produced in court as he was friend of his son Shahrukh. PW3 went to PS Chandni Mahal on 08.01.14 and made a complaint with the police. He suspected the Accused and his one friend Raju in the missing of his daughter 'IK'. His complaint is Ex. PW3/A. PW3 further deposed that on 09.1.14 he was called by the police at PS Chandni Mahal. They informed him that his daughter has come to the PS with the Accused. He alongwith his wife went to PS Chandni Mahal. Police sent Prosecutrix in their custody to their house. The statement of 'IK' was recorded under Section 164 CrPC on 10.1.14.
PW4 IO/SI Rohtash deposed that on 08.01.2014, he was posted as SI at PS Chandni Mahal. On that day at about 3 AM Complainant 'S' came at PS and made a complaint regarding kidnapping of his daughter which is already Ex. PW1/A. He prepared a rukka which is Ex. PW4/A and got registered the FIR. Complainant suspected Yashdam and one Raju in the kidnapping of his daughter namely 'IK'. He recorded the statement of 'Sh', brother of Complainant who led them to the house of the Accused. Father of Accused Yashdam was found present there.
On 09.01.2014, in the evening Accused Yashdam came to PS along with Prosecutrix 'IK'. He informed the parents of the Prosecutrix. Prosecutrix refused to get her medical examination. IO/SI Rohtash recorded the statement of the Prosecutrix, wherein she did not level any allegation against the Accused. On verification, the Prosecutrix was found to be major. She was sent along with her parents. On the next day, statement of the Prosecutrix was got recorded by the learned MM under Section 164 Cr.PC. He collected the copy of the statement and also made inquiries from the Prosecutrix and she told him that earlier she had given her statement under the pressure of the Accused. She was sent to LNJP hospital, but she refused to get her gynecological examination.
On 17.01.2014, Accused Yashdam was arrested from his house vide arrest memo Ex. PW4/B and his personal search was conducted vide memo Ex. PW4/C. Accused was interrogated and he gave his disclosure statement Ex. PW4/D. Accused led them to Singh Guest House and he pointed out Room No.304 vide memo Ex. PW4/E as the place of incident. Accused also pointed out the house at Ajit Nagar, Gandhi Nagar, where he had stayed with the Prosecutrix vide memo Ex. PW4/F. Potency test of the Accused was got conducted at LNJP hospital vide MLC Ex. PW4/G (not disputed by the Accused.) IO/SI Rohtash verified the age of the Prosecutrix from her school and collected the report Ex. PW4/H. During investigation, he tried to trace Polash but he could not be found. No evidence against Raju could be collected during investigation. IO recorded the statements of the witnesses and complete the investigation, prepared the charge sheet and filed the same in the court.
Plea of Accused and Defence Evidence In statement recorded under Section 313 CrPC, Accused pleaded innocence and false implication. He pleaded that he did not establish physical relations with Prosecutrix at any point of time. In fact, Prosecutrix got married to him voluntarily and he did not threaten her at any point of time. Accused further pleaded that Prosecutrix had love affair with him since last about 11 ½ years prior to registration of FIR and she gave statement before Ld. MM under the pressure of her parents.
Accused examined three witnesses in his Defence.
DW1 Mufti Qazi Maulana Abdul Majeed Qasmi Qadri deposed that he is doing the work of teaching children. He also solemnize Nikah. He deposed that the Nikahnama Ex. PW1/DX2 was executed by him. He admitted that he had performed the Nikah of Accused Yesdam and girl namely Iram Khan. DW1 correctly identified Accused Yesdam Shaikh when produced in court. The Nikah was performed at Patiala House Court in Chamber of Advocate Mohd. Ragib on 08.01.14. Before the Nikah, he had questioned Iram Khan and Yesdam as to whether they were ready for Nikah with their consent or not and both of them were agreeable for the marriage.
He also brought the Nikah Register from 03.03.2013 onwards which is maintained by him. The original Nikahnama of Yesdam and Iram is on record. The photocopy of the said Nikahnama is already Ex. PW1/DX2. At the back of said Nikahnama, the girl Iram Khan had written in her own handwriting that she is marrying Accused Yesdam Sheikh voluntarily and without any pressure. The photocopy of said writing on the back of Nikahnama in his register is Ex. DW1/A. DW2 Nurul deposed that he knows Accused Yesdam as he is living in my neighbourhood. The Nikah of Yesdam and Iram Khan was solemnized in his presence on 08.1.14 at Patiala House Courts and he had signed the Nikahnama as one of the witnesses. The Nikahnama Ex. PW1/DX2 bears his signature at point B. He deposed that he went to Patiala House Courts on that day at request of Accused Yesdam who had called him there to become a witness to his Nikah.
DW2 further deposed that he had enquired from Yesdam and Iram whether they wanted to marry each other voluntarily and both of them stated that they are in love and want to get married. They asked him for help stating that their parents are not agreeable for their marriage and they have eloped from their house. Maulana who performed the Nikah had also enquired about the voluntariness of Yesdam and Iram before performing the Nikah. The other witness namely Azad had also made same enquiry. He deposed that he signed the Nikhanama as a witness only after Iram Khan gave in writing that she wants to marry Accused Yesdam voluntarily and without any pressure.
DW3 Azad deposed that he knows Accused Yesdam as he is my friend. On 08.1.14 Yesdam called him and requested him to become a witness stating that he is getting married. Initially, he refused but upon his requests, he agreed and went to Patiala House Courts to Chamber of one Advocate. DW3, Qazi and other witness namely Nurul asked about willingness of the girl Iram Khan and she replied that she wants to marry Accused Yesdam. On asking of Qazi, she also gave in writing that she wants to marry Accused Yesdam voluntarily and without any force or pressure. Thereafter, he signed the Nikahnama Ex. PW1/DX2A as a witness. One Azruddin was also present there who also signed the Nikahnama as witness.
Arguments, Analysis and Findings:
It was contended by Ld. defence Counsel that Prosecutrix was having love affair with Accused and she voluntarily eloped with him and got married on 08.01.14. On the other hand, Ld. APP opposed the arguments of Defence and contended that guilt of Accused is established on record beyond reasonable doubt.
I have considered the arguments advanced by Ld. Defence Counsel and Ld. Additional PP in the light of evidence on record.
The various arguments raised before court are now being dealt with as under: Age of Prosecutrix:
Vide order dated 03.04.2014, Ld. Defence Counsel stated that there is no dispute regarding date of birth of the Prosecutrix and in view of said admitted position, the case of the Prosecution to this extent is undisputed.
Testimony of Prosecutrix 'IK' [PW1] From the perusal of the record, it is apparent that as per case of the Prosecution, the Prosecutrix after being intoxicated by the Accused, was kidnapped by him in a TSR and taken to various places including Singh Guest House, Ajmeri Gate where Accused allegedly established sexual relations with her forcibly by criminally intimidating her by threatening to kill her family.
The Prosecutrix in her examination in chief, more or less deposed on the same line. It is in her crossexamination that she takes a complete 'U' turn. A perusal of crossexamination of Prosecutrix 'IK' PW1 shows various admissions on part of the Prosecutrix which completely demolished the case of the Prosecution. She admitted at the very outset that she knew Accused for last one year and that she used to talk to him telephonically since 67 months prior to 07.01.14 and they also used to exchange text messages with each other and express love for each other through those text message. She also admitted that they had even decided the names of their future children and were in very much love with each other.
In the course of her crossexamination, Prosecutrix 'IK' admitted nearly all text messages, transcript of which were put by the Defence vide Ex. PW1/DB.
Further, though it was denied by father of the Prosecutrix examined as PW3, the Prosecutrix herself in her crossexamination admitted that in the morning of 07.01.14 i.e. on the day when she was allegedly abducted by the Accused, her parents and brother had gone to the house of Accused to make complaint against Accused to his family members. She further admitted that she told the mother of the Accused that he will not meet and talk to the Accused as her parents were not willing for her marriage with the Accused. She further admitted that she refused to tell the mother of the Accused that she consider Accused as her brother and in fact she was in love with him. Prosecutrix 'IK' also admitted her parents were not willing for her marriage with the Accused though she wanted to marry him. Interestingly, the Prosecutrix 'IK' further deposed in her crossexamination that on 07.01.14, she went to meet the Accused despite telling his mother that she will never meet him. It has also come on record during her crossexamination that when she went to meet the Accused, her family members had gone to the house of the Accused. Although she deposed that Accused had threatened her that he will die himself and also kill her and her family members if she does not got to meet him. However, this testimony of the Prosecutrix becomes totally unbelievable in view of the other material on record. Noticeably, she admitted that her father was having his mobile phone with him when he went to the house of the Accused. She also admitted that she did not tell any of her family members about the threats allegedly extended by the Accused. Rather, she went to meet him without informing anyone.
From the aforesaid evidence, it is thus apparent that Prosecutrix and the Accused were very much in love with each other. Transcript of Text Messages Ex. PW1/DB and Photographs:
In the crossexamination, PW1 admitted that she and Accused used to remain in touch telephonically and also used to exchange text messages expressing their love for each other and had even gone to the extent of deciding names of their future children. A perusal of admitted text messages Ex. PW1/DB also duly support this version of the Prosecutrix. In the course of crossexamination, she admitted that she had sent several text messages to the Accused as per transcript Ex. PW1/DB. She also admitted that she did not attend her school on 07.01.14 and went out for roaming with other friend namely Farheen. She admitted her handwriting on the backside of letter Ex. PW1/DC and also admitted that letters 'Y' and 'I' were written by her at a letter Ex. PW1/E with her blood. She further admitted photographs Ex. PW1/DD1 to PW1/DD12. Although it is claim of the Prosecutrix that said photographs were clicked by threatening her. However, a bare perusal of the said photographs would show that Prosecutrix does not appear to be under any kind of threat and appears to have got the said photographs clicked happily. Improvements in Statement of Prosecutrix [PW1] And Their Effect:
In so far as the allegations of Prosecutrix is concerned that Accused abducted her in TSR after administering intoxicating substance to her, I find myself unable to accept this in view of the crossexamination of the Prosecutrix read in totality. It is apparent on going through the cross examination of PW1 that she has improved her statement time and again. It is for the first time during her deposition that she introduced the fact that Accused took her to the house of his Jija at Delhi Cantt. and prepared tea for her, after consuming which she started feeling giddy. She also improved upon her earlier statement that she did not raise any alarm while Accused was taking her to Singh Guest House as the Accused had threatened her by showing her blade. She also improved upon her earlier statement that she deposed in her crossexamination that on 08.01.14, Accused made her consume a cold drink, after drinking the same, she started feeling giddy.
In her crossexamination, Prosecutrix also alleged that on 08.01.14, Accused raped her at the house of her relative at Shastri Park and thus clearly improved upon her earlier statement since no such allegation was made by the Prosecutrix in her earlier statements.
To my mind, the allegations of offence under Section 376 IPC based on the statement of the Prosecutrix recorded under Section 161 CrPC on 10.01.14 alleging that Accused forcibly established sexual relations with her on the night intervening 07.01.14 and 08.01.14, also cannot be accepted. It is a matter of record that Prosecutrix made no such allegations against Accused on 09.01.14 when her statement under Section 161 CrPC Ex. PW1/DX2 was recorded. Rather, in the said statement, she claimed that she was having love affair with the Accused and she eloped from her house without informing anyone in her house.
It is also an undisputed fact that custody of the Prosecutrix was handed over to her parents on 09.01.14. In her statement recorded under Section 164 CrPC Ex. PW1/A on 10.01.14, the version of the Prosecutrix changed and she claimed before Ld. MM that Accused had abducted her after administering an intoxicating substance to her. She also stated before Ld. MM that Accused had compelled her to make statement Ex. PW1/DX2 before the police on 09.01.14.
It is the contention of the Defence that statement under Section 161 CrPC Ex. PW1/DX2 was made by the Prosecutrix under the pressure of her parents and was not her voluntarily statement. It is also pointed out that neither in her statement Ex. PW1/DX2 or statement Ex. PW1/A had the Prosecutrix alleged even once that Accused established physical relations with her forcibly and it is for the first time that on 10.01.14, Prosecutrix in her statement allegedly claimed that Accused had committed rape upon her. Ld. Defence Counsel contended that statement Ex. PW1/DX2 was also made by the Prosecutrix due to fear and pressure of her parents and was not her voluntarily statement.
It is pertinent to note that in her crossexamination, Prosecutrix admitted her signature on Nikahnama Ex. PW1/DX2 and signatures of three witnesses on the said MLC. She also admitted her signature on the affidavit Ex. PW1/DX3 though she claimed that she signed the Nikahnama under threat of Accused. This claim of the Prosecutrix, however, cannot be accepted. Prosecutrix has herself claimed that she was very much in love with Accused and interested in getting married him though this was opposed by her family members. Execution of 'Nikahnama':
In order to disprove the case of the Prosecution, the Defence examined DW1 Mufti Qazi Maulana Abdul Majeed Qasmi Qadri who deposed that he performed Nikah of Accused Yesdam and Prosecutrix 'IK' at Patiala House Courts in the Chamber of an Advocate on 08.01.14. DW1 produced Nikah Register duly maintained by him and proved the Nikah Ex. PW1/DX2 (now Ex. PW1/DX2A) stating that the same was executed by him. He also deposed that when he had questioned Prosecutrix 'IK' and Accused Yesdam for their consent about Nikah, both of them stated that they were agreeable to the said marriage. Two witnesses to the said Nikah were examined by Defence namely DW2 Nurul and DW3 Azad who identified their signatures on Nikahnama Ex. PW1/DX2A. However, DW2 claimed that he signed the Nikahnama after the Prosecutrix 'IK' wrote on the back side of the Nikahnama Ex. DW1/A that she is marrying Accused voluntarily and without any fear and pressure. Conslusion:
On the basis of the entire evidence led on record, both by the Prosecution as well as Defence, I am of the opinion that it is more than apparent on record that Prosecutrix and the Accused were having a love affair and were interested in marrying each other. The idea of their marriage was opposed by family of the Prosecutrix. Apparently, the statement Ex. PW1/A and Ex. PW1/DX2 were made by the Prosecutrix under the fear and pressure of her family. This is clearly borne out upon a careful perusal of her crossexamination coupled with the photographs, letters and text messages brought on record during trial and put to her during her crossexamination which were admitted by her, as discussed above. The Defence has also pointed out that Nikahnama was executed in the Chamber of Advocate at Patiala House Court on 08.01.14 which was admittedly also signed by the Prosecutrix. Her claim that she was forced to sign the Nikahnama cannot be accepted in view of her testimony read as a whole.
On going through the record, I, therefore, find that Prosecution has failed to prove its case beyond reasonable doubt. The Prosecutrix PW1 by way of her crossexamination, has demolished the entire case of the Prosecution. It has been clearly brought out on record that allegations against the Accused are false and apparently Prosecutrix was under the fear and pressure of her family, though she herself was in love with the Accused and very much interested in marrying him.
In the light of the aforesaid observations, I see no ground whatsoever for convicting Accused for the charges on which he has been facing trial.
Consequently, Accused Yesdam Shaikh S/o Sh. Samad Shaikh is hereby acquitted for the aforesaid offences. Bail bonds cancelled. Surety discharged.
File be consigned to Record Room.
Announced in the Open Court on 23.05.2014 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.