Delhi High Court
Aneesa & Anr vs State & Anr on 16 November, 2011
Author: Suresh Kait
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3628/2011
% Judgment delivered on:16th November, 2011
ANEESA & ANR ..... Petitioner
Through: Mr. R.K. Bachchan, Adv.
versus
STATE & ANR ..... Respondent
Through: Mr. Navin Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers
may be allowed to see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported
in the Digest? NO
SURESH KAIT, J. (Oral)
1 Vide the instant petition, the petitioners have sought
quashing of FIR No. 88/2011, dated 06.04.2011, registered
against them under Sections 376/498 A/420 of Indian Penal
Code, 1860 in P.S. Ashok Vihar, District North West, Delhi
2 In the present case, the charges against the petitioners
have been framed and the case is at the stage of recording
Prosecution Evidence at Trial Court.
3 I note, this case is very peculiar in nature as the
allegations of rape were being made by the
Prosecutrix/petitioner No. 2/ Ms. Rukhsar on 06.04.2011,
whereas the alleged incidence took place on 06.10.2010.
4 As per the allegations, the prosecutrix was 17 years old
and her parents had gone to Clearisharif on 06.10.2010. On
that day, the son of her maternal Aunt (Khala) who was
resident of House No. 354 Gaon Chodhriyan, P.S. Bchchrau,
District Jyoti Baa Fule Nagar, Uttar Pradesh, namely Saleem,
who was residing with the family of Prosecutrix had forcefully
committed raped on her. When the parents of prosecutrix
returned from Clearisharif, her mother called the mother of
Saleem namely Aneesha. Prosecutrix was taken to Jahangir
Puri hospital by her mother, where her medical was going to
be performed. At that point of time, mother of Saleem,
Aneesha came there and she begged pardon from the mother
of prosecutrix and said she will perform the marriage of
prosecutrix with her son Saleem and she further assured that
after fixing date of marriage she would bring Barat at the
house of prosecutrix for marriage.
5 Prosecutrix further stated that she was misguided by the
mother of Saleem/petitioner No. 1 and she came back with her
mother without being medically examined. After few days, the
marriage of prosecutrix was performed with Saleem but after
marriage she was being told by her in-laws that the marriage
was performed just to save Saleem from prosecution and they
had no concern with prosecutrix . Mother of Saleem, Aneesha
stated that she will perform marriage of her son Saleem where
petitioner No.2/she would get One Lac rupees and Saleem will
not be allowed to stay with petitioner.
6 On the above allegations of prosecutrix, the above
mentioned FIR was registered against the petitioners.
7 Learned counsel for the petitioner submits that she was
medically examined on 10.10.2010, wherein she refused to get
internally examined.
8 Again on 06.04.2011, the prosecutrix was medically
examined after the registration of FIR, wherein, it has been
recorded that at that time after lapse of time, the Doctor could
not make any observation with regard to sexual assault.
9 Learned counsel further submits that there is no
evidence on record except the statement of prosecutrix.
10 Learned counsel further submits that at the time of her
second medical examination, the prosecutrix was already
married and the recording of fact about torn hymen is,
therefore, irrelevant.
11 Learned APP for State, on the other hand submit that the
Prosecutrix was minor at the time of sexual assault and on her
statement, the present FIR is lodged. In MLC, the hymen was
found torn. She alleged that the rape was committed by
petitioner No. 2/Saleem.
12 The respondent No. 2/Ms. Rukhsar is personally present
in the court today with her parents and submits that she was
married to petitioner No.2/Saleem on 11.10.2010. They stayed
together after marriage, but she was not comfortable at her in-
laws house and therefore, she made allegations and got the
above mentioned FIR lodged. In fact, nothing happened as
such.
13 On specifically being asked by the court from the parents
of prosecutrix that when their marriage took place, they
replied that their marriage took place in May, 1984 and their
first child i.e prosecutrix was born after the one year of their
marriage i.e. in the year 1985. Thereafter, 06 siblings to
prosecutrix were born.
14 Mr. Anish Ahmed and Ms. Shahnaz Ahmed, parents of the
Prosecutrix submits that at the time of getting admission in
Government Co-Education School, Wazirpur, the date of birth
of respondent No. 2 was recorded as 23.11.1996, which was
less than the actual age of the Prosecutrix. Copy of the same is
kept on record.
15 Respondent No. 2 submits that she wants to live with
petitioner No. 2, who is in Jail now and she has settled all the
issues qua the aforesaid FIR against the petitioners and she
does not want to pursue the case further. She further submits
that she has no objection if the present FIR is quashed.
16 In addition to that, respondent No. 2 has produced Ration
Card issued by Food and Supply Department of NCT of Delhi
pertaining to year 2002. In the Ration Card, the age of
Prosecutrix has been recorded as 09 years. Accordingly, the
age of the prosecutrix on the alleged day of incidence would
be more than 16 years. Copy of the relevant page of Ration
Card is kept on record.
17 More so, Progress Report of MCD Primary School, Nimri
Colony, Delhi, wherein the Admission of the respondent No. 2
was registered at Serial No.7096 has also been produced.
Respondent No. 2 was in Class-II in the year 1998-99. Copy of
the same is placed on record. Thus, she was more than 16
years at the time of alleged incident.
18 Learned counsel for the petitioner submits that perusal of
the above-mentioned documents suggests that the prosecutrix
was more than 16years of age at the time of alleged incidence
of rape.
19 Admittedly, the petitioner No. 2 has married with
Petitioner No. 2. Respondent No. 2 wants to live with petitioner
No. 2 as husband and wife and she does not want to pursue
the case further.
20 In similar situation, this court has taken a view of
quashing the FIR in Criminal M.C. 3030/2011 decided on
10.09.2009 and in another case of Chander Mohan @ Bunty V.
State of Haryana and Ors. 2011 Crl. LJ. 898, wherein the FIR
under Sections 376/328 IPC was quashed.
21 The law is very settled and this court has held in a case
of Masroor Ahmed V. State (NCT of Delhi) and Anr. 2008 (103)
DRJ 137, whereby an FIR under Sections 376/328 IPC was
quashed by exercising inherent powers of quashing under
Section 482 Cr.P.C.
22 It has emerged from the statement of Respondent No. 2
that the present FIR was lodged on her giving false
information. Since, she was not comfortable at her matrimonial
house, therefore, she made allegations of rape even against
the husband. In fact nothing happened as stated by the
respondent No.2. In Crl.M.C. 3030/2009 also this Court vide
order dated 10th September, 2009, quashed the FIR under Sec.
376 of Indian Penal Code, 1860.
23 In the interest of justice and in view of the above
discussion, I deem it appropriate to quash the FIR 88/2011,
P.S. Ashok Vihar, under Sections 376/498 A/420 Indian Penal
Code, 1860 and the proceedings emanating therefrom.
24 Since the FIR in the instant case has been quashed along
with all the emanating proceedings therefrom, I direct the jail
authorities to release the petitioners forthwith.
25. Though, prosecution can be initiated against the
respondent no.2 on what has been stated above, however,
keeping in view the welfare of the family and age of the said
respondent, I refrain myself from taking any legal/coercive
action against the respondent no.2.
26 No order as to costs.
27 Criminal M.C. 3628/2011 is allowed and disposed of
accordingly.
SURESH KAIT, J
NOVEMBER16, 2011/j
