Delhi District Court
State vs . Wasim Ansari on 25 February, 2015
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IN THE COURT OF SH. VINOD YADAV : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 200/13)
Unique ID case No. 02404R0350922013
State Vs. Wasim Ansari
FIR No. : 300/13
U/s : 363/366/376 IPC & 4 of POCSO Act
P.S. : Sultan Puri
State Vs. 1. Wasim Ansari
S/o Late Mohd. Muslim
R/o C45/12, Chauhan Banger,
Seelum Pur, Delhi.
2. Javed
S/o Late Mohd. Muslim
R/o C45/12, Chauhan Banger,
Seelum Pur, Delhi.
3. Ahtasham
S/o Mushahid Akhter
R/o House no. 180/12,
3rd Floor, Gali no. 7, Zakir Nagar,
Jamia Nagar, New Delhi110025
Date of institution of case 02.12.2013
Date of arguments : 25.02.2015
Date of pronouncement of judgment : 25.02.2015
S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 1 of 11
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JUDGMENT (ORAL) :
1. Briefly stated the case of the prosecution is that victim N, aged about 17 years 3 month, went missing from outside her school on 09.05.2013 at about 12.30 pm. The family of the victim made efforts to search for her in the vicinity of the locality and when, there was no clue about her, Smt. Nazda Begum, the mother of the victim went to PS Sultan Puri and got her statement recorded, expressing her suspicion that some unknown person was responsible for enticing and kidnapping her daughter. On the basis of the statement made by Smt. Nazda Begum, mother of the victim, the present case FIR was registered against unknown persons and investigation of the case was marked to SI Sonu Sharma. During the course of investigation, IO SI Sonu Sharma made efforts to search for the victim, but no clue could be found. On 15.05.2013, complainant Nazda Begum herself went to Police Station Sultan Puri and produced victim N before IO SI Sonu Sharma. IO SI Sonu Sharma got the victim N counseled through NGO official and thereafter recorded her statement, wherein, she stated that she along with accused Wasim went to Jaipur, where she stayed in a guest house and in the said guest house, Wasim made physical relations with her, under the promise of marriage. The victim was got medically examined at Sanjay Gandhi Memorial Hospital and thereafter, on the basis of MLC as well as statement of victim N, Section 376 IPC and Section 4 of POCSO Act were added in the matter. The victim N was produced before ld. M.M., for recording of her statement u/s 164 Cr.P.C on 16.05.2013.
S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 2 of 11 3 During the course of further investigation, IO collected age proof of the victim N. Accused Wasim was arrested. After completing investigation, charge sheet was prepared and filed before this court by the IO, through SHO concerned.
Later on, other two accused persons namely Javed and Ahtasam were also apprehended and arrested and separate charge sheet qua these accused persons was filed and tagged with this case.
2. The arguments on the point of Charge were heard and charge for the offences punishable under Section 363/366 IPC and u/s 5 (l) of POCSO Act punishable u/s 6 of POCSO Act, alternatively u/s 376 (2) (n) was framed against accused Wasim Ansari and charge u/s 16 of POCSO Act punishable u/s 17 of POCSO Act was framed against the accused Javed and Ahtasham. However, accused persons pleaded not guilty to charges framed against them and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. The prosecution has examined fourteen witnesses in support of its case. A brief scrutiny of evidence recorded in the matter is as under.
4. The PW1, Sh. Arvind Kumar, is the Subregistrar, Death and Birth Department and has produced the record i.e. birth certificate of the vitim N and proved the attested copy of the same as Ex. PW1/A. He has also proved the entry in the relevant register as Ex. PW1/B and deposed that as per the record produced by him, the date of birth of victim N is 11.02.1996. S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 3 of 11 4
5. The PW2, Ms. Budesh Kumar, Principal of MCD Primary School, EI, Sultan Puri, Delhi, has produced the school record of victim N and proved the same as Ex. PW2/A to Ex. PW2/C. She has deposed that victim N was admitted in 3 rd class on the basis of admission form as well as affidavit, submitted by her mother and as per the record produced by her, date of birth of the victim N is 11.02.1997.
6. The PW3, SI Kunwar Pal, was working as duty officer at PS Sultan Puri on 10.05.2013 and he had registered the FIR in the present case and has deposed about the same. He has proved the endorsement made by him on the rukka as Ex.PW3/A ; computerized copy of the FIR as Ex. PW3/B and certificate u/s 65B of Evidence Act as Ex. PW3/C.
7. The PW4, Nazda Begum is the mother of the victim N and complainant in the present case and she has deposed about lodging of missing report Ex. PW4/A in respect of victim N at PS Sultan Puri. She has further deposed that she has married her daughter/victim N with accused Wasim Ansari and she has not supported the prosecution case and has categorically deposed that she does not want to prosecute this case purportedly for not disturbing happily settled married life of her daughter/victim N. In her crossexamination conducted by learned Addl. PP, she has not stated a word in support of prosecution and has completely exculpated the accused persons.
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8. The victim N has been examined in the matter as PW5 and she has deposed that her date of birth is 11.02.1996 and that on 9th day of May 2013, she had gone with accused Wasim, out of her own free will and accord, to Jaipur and stayed there for three days in a guest house and during said period, she had physical relations with him. She has further deposed that before going to Jaipur with accused Wasim, she had got married with him in a Masjid. She has not at all identified the other two accused persons.
This witness was crossexamined at length by the Ld. Addl. PP, but nothing favourable, which could support the prosecution case, could come on record. The witness has categorically stated that her signatures were obtained on blank papers by the IO and one NGO. The witness denied each and every aspect put to her by the learned Addl. PP.
9. PW6, Sh. Dharmender Singh, Ld. M.M, in his evidence has proved statement of prosecutrix N as Ex. PW6/B, recorded by him under Section 164 Cr.P.C on 16.05.2013.
10. PW7, Haseen Siddiqui is the maternal uncle of victim N and he has deposed about her missing and about taking her back to her home. He has further deposed that he was told by her bhanji (victim N) that she had solemnized marriage in court with accused Wasim. He further deposed that as his bhanji had already got married with accused Wasim, her family did not want to proceed with S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 5 of 11 6 the present case.
The witness was crossexamined by the Ld. Addl. PP, but nothing material, which could help the prosecution in any manner, could come on record. The witness termed it correct that when he went to the house of accused Wasim to bring victim N, his parents happily agreed for the marriage of victim N with accused Wasim.
11. PW8 Dr. Anjali, has proved the MLC of the victim N as Ex.PW8/A and her medical examination report as Ex. PW8/B.
12. PW9, Ct. Shabeer Khan had taken the exhibits of the present case to FSL, Rohini and had deposited the same there and has deposed regarding the same.
13. PW9A, SI Rajender Singh Tomar, had conducted investigation in the matter and had arrested the accused Wasim vide arrest memo Ex. PW4/D and conducted his personal search vide Ex. PW4/C. The witness has proved the disclosure statement of this accused as Ex. PW9A/A. He has further deposed that on 04.09.2013, accused Wasim led the police party to Sidhi Vinayak Guest House, Jaipur, where he had established physical relations with victim N and he proved the site plan thereof as Ex. PW9A/B, pointing out memo as Ex. PW9A/C, copy of guest register as Ex. PW9A/D, election card of accused as Ex. PW9A/E, Adhar card of victim N as Ex.PW9A/F. S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 6 of 11 7
14. PW10, Ct. Shabeer Khan had taken the remaining exhibits of the present case to FSL, Rohini on 10.09.2013 and had deposited the same there and has deposed regarding the same.
15. The PW11 HC Ganga Saran, was working as MHCM as PS Sultan Puri and he has proved the relevant entries made by him in register no. 19 and 21 as Ex.PW11/A to Ex. PW11/F.
16. The PW12, SI Sonu Sharma is the investigating officer of the case and he has deposed about the investigation carried out by him. He has deposed that on 10.05.2013, at about 11.00 pm, complainant herself had came to PS and got her statement Ex. PW4/A recorded, on which, he had prepared rukka Ex. PW12/A and got the present case registered. He has further deposed about the efforts made by him to search the victim. He has next deposed that on 15.05.2013, complainant along with her daughter/victim came to PS Sultan Puri and produced victim before him and thereafter, on the directions of the SHO, the further investigation in the matter was marked to W/SI Rakhi.
17. PW13, W/SI Rakhi, had conducted further investigation in the matter and has deposed regarding the same. She has deposed about counseling of the victim through NGO and medical examination of the victim and seizure of the exhibits vide seizure memo Ex. PW13/A. She has further deposed about getting the statement of the victim recorded u/s 164 Cr.P.C and about sending the exhibits of the victim, S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 7 of 11 8 to FSL. She has further deposed about arrest of accused Wasim and about his pointing out to the room no. 108, Sidhi Vinayak Guest House, Railway Road. She has also deposed about arrest of the accused Javed and Ahtasam and about their personal search.
18. PW14, Dr. Bina, had examined the victim N on 15.05.2013 vide MLC Ex. PW8/A and has deposed regarding the same.
19. In the present case, with a view to prove guilt of accused persons, the prosecution has examined above including the victim, her mother and her maternal uncle as PW5, PW4 and PW7 respectively, whose testimonies have already been discussed herein above. PW Ct. Surender was dropped by the learned Add. PP, being unnecessary. As the accused Wasim Ansari admitted his MLCs bearing no. 16757, 16586 and 16669, the concerned doctor witnesses were not summoned. There was no other witness cited by prosecution, who could link the accused with the commission of offence. Accordingly, prosecution evidence was closed. Recording of statements of accused persons was also dispensed with as no incriminating evidence came on record against them from the statement of material witnesses i.e. the victim N, her mother and maternal uncle.
20. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
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21. I have heard the arguments and also perused the case file carefully.
22. In the present case, accused Wasim Ansari is alleged to have kidnapped victim N, a minor aged about 17 years and 3 months and taken her to Jaipur, with intent that she may be compelled to marry him and/or be forced/seduced for illicit intercourse with him and got married with her and raped her repeatedly and accused Javed and Ahtasham helped the accused Wasim Ansari in wrong confinement of victim N.
23. In order to prove the allegations against the accused, the prosecution has examined the victim child as PW5. The relevant portion of testimony of PW5 has been reproduced at length in foregoing paragraphs and from her testimony, it is clearly made out that the victim N, who was at the verge of maturity, had voluntarily eloped with the accused and solemnized marriage with the accused and that she was not enticed by the accused, in any manner, whatsoever to go with him or to establish physical relations with him. In fact, the PW5 has categorically stated that accused had established physical relations with her only after their marriage. Thus, as far as 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.
24. Ld. Addl. PP has relied upon the birth certificate Ex. PW1/A of victim to S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 9 of 11 10 contend that since the victim N was a minor, her consent is immaterial and that the accused is liable to be convicted for the charged offence.
25. In this regard, it is relevant to refer to judgment in case of Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011, wherein it has been held 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 travelled 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. ...."
26. It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein 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 S.C. No. 200/13 : State vs. Wasim Ansari etc. : Page No. 10 of 11 11 , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
27. 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 prosecutrix was willing and consenting party and it seems that everything had happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved. Now in any case, accused Wasim and Victim N are happily married and no useful purpose would be served at adopting hyper technical approach in the matter.
28. In view of foregoing discussion, the prosecution has miserably failed to prove that accused Wasim had kidnapped victim N, with intention to compel her to marry him and/or to force / seduce her to have illicit intercourse with him or raped her and the accused Javed and Ahtasham had helped him. Accordingly, I acquit accused Wasim, Javed and Ahtasham of the charged offences by giving them benefit of doubt.
File be consigned to the record room.
(Dictated in the open Court ) (Vinod Yadav)
(Today on 25.02.2015) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
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