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Statement of accused was recorded under section 313 Cr.P.C wherein he denied all the allegations against him. He stated that he is innocent and he has been falsely implicated in this case. He further stated that age of prosecutrix was much more than as alleged by her parents. He further stated that prosecutrix married him on 14.02.2008 at Seelampur in presence of witness Wasim, Afroz Bano and Mohd. Israil. Nikah was performed by Qazi Sayeed Ali Hussain.
Accused preferred to lead defence evidence and examined two witnesses in his defence.
DW1 Umeed Ali stated that he is teacher in Madarsa and performs Nikah also. He further stated that he did not know Abbas personally but few people had come to him and told him that he (DW1) had to perform a Nikah. He further stated that he performed the Nikah of Abbas with Zeba and he (DW1) had taken the consent of the girl Zeba before performing her Nikah with Abbas. After Nikah Zeba had given her consent and also signed Nikahnama and proved the copy of the Nikahnama as Ex.DW1/A. DW2 Mohd Israil stated that he is student in Madarsa. When he was studying there, Abbas came there for Nikah and asked him (DW2) to become a witness of Nikah. DW2 further stated that he was present at the time of Nikah and he had also heard the consent of girl at the time of Nikah. He further stated that no one has pressurized the girl to perform Nikah.
The other contention of the Ld.Counsel that the prosecutrix had given her consent for marriage. In the light of the fact that prosecutrix was a minor at the time of the incident, the consent of the prosecutrix for giving her consent does not matter. When a girl is minor, as per Muslim law, then father of the girl gives the consent. Even otherwise no suggestion was put to the prosecutrix that she had married the accused.
In his statement under section 313 Cr.P.C accused stated that on 14.2.2008 in the presence of witnesses, his Nikah was performed by Qazi Sayeed Ali Hussain. However, in his defence accused examined DW1 Ummed Ali, who stated that he had performed the Nikah of Abbas with prosecutrix Zeba, Therefore the accused has himself contradicted his own defence as to who had performed his Nikah.
Even if, for the sake of arguments it is believed that Nikah had taken place, considering the fact that prosecutrix was 12½ years and admittedly at the time of alleged Nikah the father of the prosecutrix Zeba was not present. In the present case the prosecutrix was 12½ years so, her father was required to give his consent for the Nikah of Zeba. Therefore, the accused has failed to prove that he had Nikah with the prosecutrix.
The other contention of the Ld.Counsel was that the prosecutrix did not raise any noise, nor did she tell anybody the fact that accused had taken her forcibly, nor did the prosecutrix tell anybody during her stay with the accused at Muradabd that she has been kidnapped by the accused is concerned, in my view is without any merits as the prosecutrix was aged only 12½ years and a girl at that time was in her tender age. The prosecutrix has stated that accused has threatened to kill her if she made any noise. The accused kept the prosecutrix at a new place, therefore it would not have been possible for the prosecutrix to talk to anybody freely.