Delhi District Court
State vs Mohd. Samsul S/O. Mohd. Safiq Sakir, on 11 February, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE - 01
(EAST) :KARKARDOOMA COURTS : DELHI
SC No. 139/13
FIR No. 662/80
PS Gandhi Nagar
Under Section : 363/366/376 IPC
State Versus Mohd. Samsul S/o. Mohd. Safiq Sakir,
R/o. Village Parvha PS Parihar Distt. Sita
Madhi, Bihar.
Date of Institution of Case : 14.10.13
Date on which Judgment Reserved : 11.02.14
Date on which Judgment Delivered : 11.02.14
J U D G M E N T :
1. Briefly stated the case of the prosecution is that Smt. Shanti Devi (PW7) visited PS Gandhi Nagar and made a complaint that accused used to resident as tenant in a room in their house for the last 45 years. Because of his behaviour he was vacated from the room on 16.4.80. On 20.4.80 at 6.30 p.m his daughter (hereinafter mentioned as prosecutrix) aged 14 years left her house stating that she is going to watch television but she did not return back. She has a strong suspicion that accused had taken away her daughter after giving her enticement. On this complaint FIR u/s. 363 IPC was registered. On 7.5.80 accused was arrested from his village Parvha PS Parihar and prosecutrix was recovered from his house. She was brought to Delhi and her statement u/s. 164 CrPC was recorded by Ld. M.M. Sh. P.D. Gupta.
2. In her statement prosecutrix has mentioned that about three months ago she went to the room of accused and there he forcibly raped her. He threatened not to tell about it to anyone otherwise he will defame her. One day he called her during night, at 2 p.m she went to his room and there he again raped her. Thereafter on 34 days he called her in his room and raped her. On 20.4.08 in the morning when she was going to answer the call FIR No. 662/80 page 1 of page 4 of nature, on the enticement given by accused she went with him to his village. He took her to Patna via train. From there they reached at his village. There she was converted to Islam and she was given the name of Shabnam Khatoon. There accused did Nikah with her. Police reached there and she was brought to Delhi. After investigation police filed chargesheet against the accused u/s. 363/366/376 IPC.
3. Accused absconded and was declared P.O. When the case was received on committal by this Court at that time he was P.O.
4. In evidence u/s. 299 CrPC prosecution has examined ten witnesses i.e. PW1 ASI Ram Murti, PW2 Ct. Prem Shankar, PW3 SI Sija Ram, PW4 Sh. P.D. Gupta Ld. M.M, PW5 SI Riza Lal, PW6 Ms. Sunita, PW7 Ms. Shanti Devi, PW8 SI Jawahar Lal, PW9 Mohd. Tufail and PW10 Mohd. Ilyas.
5. After recording evidence u/s. 299 CrPC the case was sent to record room.
6. Thereafter on 24.9.13 accused was arrested by HC Mukesh Kumar, PS Mehrauli and produced before this Court.
7. Charge u/s. 366/376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
8. In evidence prosecution could examined only two witnesses. Prosecutrix as PW1 and Mohd. Ilyas (who was examined as PW10 u/s. 299 CrPC) as PW2.
9. Prosecutrix while deposing as PW1 has stated that she does not know anything about this case. She was crossexamined by Ld. APP. She denied that on 3.5.84 she was examined as PW6 in the Court in this case. She denied that she has stated in her statement recorded u/s. 164 CrPC dated 13.5.80 that accused used to reside as a tenant in their house and one day she had gone to the room of accused and there after removing her salwar accused raped her. She further denied the suggestion that she had stated in her statement that after commission of rape by accused there was bleeding from her private parts, she also felt pain and also tried to raise alarm but FIR No. 662/80 page 2 of page 4 accused did not allow her to raise alarm. She further denied the suggestion that accused met her near water tank and asked her to come to his room at 2 a.m in night, she went there and there she was raped by accused. She further denied the suggestion that 34 days after this incident accused again called her in his room and there raped her, when she was going to his room one of their neighbourer saw her and told about it to her parents and thereafter accused was made to vacate the said room on 20.4.80. She denied the suggestion that on 20.4.80 when she was going to ease herself accused offered her to come with him threatening that if she will not go with him then he would defame her and there would be problem in the marriage of her brothers and sisters, accused took her to Patna and from there they reached at the house of accused, there she was converted to Islam and named as Shabnam Khatoon. She remained as his wife and accused had sexual relations with her 34 times. She was confronted with her statement Ex.PW1/A.
10. PW2 Mohd. Ilyas deposed that he had come to Delhi in the year 197475 and was working in Lajpat Rai Market. At that time he was residing on rent alongwith his uncle Tufail at house No. 9/1727, Gali No. 6, Kailash Nagar, Gandhi Nagar. In the morning he used to go to his work and used to return at about 89 p.m. There was one girl i.e prosecutrix who was daughter of the landlord. One day prosecutrix went somewhere from her home without telling her parents and after some days she returned back to her house. One day she was taken to PS Gandhi Nagar and was interrogated. During cross by Ld. APP he admitted that in the year 1980 he was residing in a room of the said house alongwith his uncle namely Tufail. Accused also used to reside there on rent in a room. The house was belonging to father of the prosecutrix. He denied the suggestion that he had seen prosecutrix visiting room of accused several times during day and night and accused had told him that he was in love with her and would marry her and parents of prosecutrix came to know about their love affairs and thereafter accused FIR No. 662/80 page 3 of page 4 was vacated from his house. He denied the suggestion that prosecutrix had gone with accused to his native village and there he married with her. He denied the suggestion that he has come to know that prior to the marriage accused had raped prosecutrix when he was residing in her house as tenant.
11. It being an old case of 1980, the other witnesses examined u/s. 299 CrPC could not be traced or reported to have died. PW9 Mohd. Tufail, who is uncle of PW2 Mohd. Ilyas is reported to have died. PW Ram Kishan who is brother of prosecutrix also reported to have died. Shanti Devi (PW7) and SI Sija Ram (PW3) also could not be located.
12. The law is settled that statements of the witnesses recorded u/s. 299 CrPC can be read against the accused, if the said witnesses are not traceable.
13. PW7 Smt. Shanti who is mother of prosecutrix in her statement recorded u/s. 299 CrPC has stated that accused was tenant in their house, on 20.4.80 accused kidnapped his daughter aged 14 years and she lodged a complaint with the police. In view of the statement of prosecutrix, discussed above, statement of PW7 looses significance.
14. Other witnesses examined u/s. 299 CrPC are also to same extent are formal in nature. In the absence of support from prosecutrix, their testimony also looses significance.
15. In view of the aforesaid reasons, prosecution evidence is closed. There being no incriminating evidence against the accused, recording of SA is dispensed with. The accused is thereby acquitted from the offences punishable u/s. 366/376 IPC.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 11.02.2014 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS : DELHI FIR No. 662/80 page 4 of page 4