Delhi District Court
State vs Musfik Khan, S/O A.A. Khan on 15 May, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE-04 (NORTH) : DELHI
SC No.12/08
FIR No.230/08
PS Sarai Rohilla
U/s 376G/342/506/34 IPC
State Versus Musfik Khan, S/o A.A. Khan
R/o H. No.162, Sec.23, H-Block,
Sanjay Nagar, Ghaziabad, U.P.
Date of Institution of suit : 25.11.2008
Date on which arguments heard : 15.05.2009
Date of pronouncement of judgment : 15.05.2009
JUDGMENT
1. The accused was charged with and have faced trial for having committed offences punishable U/s 376G/342/506/34 IPC.
2. FACTUAL MATRIX:-
On 04.09.2008 Smt. Chawli W/o Sh. Chander Shekhar R/o 2/110, New Rohtak Road, Harizan Basti, Delhi got recorded her complaint regarding missing of her daughter namely Lekha @ Shalu aged 21 years at PS Sarai Rohilla which was registered vide DD No.26A and the same was assigned to SI Ram Kishan, who started searching for the girl. On 10.09.2008 SI Ram Kishan alongwith Ct. Gajender Singh and L/Ct. Seema in search of the said girl reached at house no.2/110, Harijan Basti, New Rohtak Road, Delhi, where one girl, who disclosed her name as Lekha @ Shalu, and her mother Chawli met them, who on State Vs. Musfik Khan Page no. 1 of pages 12 interrogation disclosed that the girl Lekha has come back home. On the basis of the story narrated by the girl in front of her mother, SI Ram Kishan alongwith L/Ct. Seema, Ct. Gajender and the mother of girl, took the said girl Lekha to Hindu Rao Hospital for her medical examination and she was got medically examined vide MLC No.6865/08 in which the report HYMEN ABSENT was found. Thereafter, SI Ram Kishan recorded the statement of the said girl Lekha wherein she made allegation that one year six months back prior to 02.09.2008, one person named Musfik Khan had contacted her on telephone and also met her in her office at Rajendera Place and also assured her a good job and he used to meet her on the pretext of getting her a job and also used to converse with her on phone. On 24.08.2008 Musfik Khan had called her and asked her to come at Anand Vihar ISBT to get her a good job and on 02.09.2008, at about 2.30 pm from her home in a bus she reached Anand Vihar, where accused Musfik Khan was found standing there. He took her to Raj Nagar, Ghaziabad, UP at one flat on the third floor, where two boys namely Vipin from Ghaziabad and Atul from Anand Parbat were already present and they were friends of Musfik Khan. Accused Musfik Khan had confined her in the said flat by locking the door. At that time, Vipin and Atul were doing chowkidaari outside the flat and were helping Musfik Khan and accused Musfik Khan started doing physical assault on her. She slapped him and tried to save herself State Vs. Musfik Khan Page no. 2 of pages 12 but accused Musfik Khan had forcibly tied her hands with a cloth and forcibly committed rape upon her. After committing the rape, accused Musfik Khan had locked the room from outside and confined her and left. On 03.09.2008, again accused Musfik Khan attempted to commit rape upon her but due to her resistance she could save herself on the same day then he took her to a room in Avantika, Ghaziabad, which he had taken on rent by disclosing her name wrongly to the house owner. She remained confined there from 04.09.2008 to 08.09.2008 and accused Musfik Khan stayed with her there and in the night he used to go out after locking her from outside. During her stay there, accused attempted to rape her but due to her resistance he could not succeed. On 08.09.2008 when accused went to the bathroom and forgot to lock the door, she took the opportunity and ran away from there and took the lift and reached at EBM Mall, Ghazipur and called her mother from the STD. Her parents came there and took her away. IO with the lady police came to her house and in presence of her mother she narrated the story to the police wherein she claimed that accused Musfik Khan used to threat to kill her and her parents. Atul also threatened on phone to abstain from the complaint or threatened to kill her and her family. Accused Musfik Khan on the pretext of getting her a good job kept her locked in a room against her will and threatened her to kill.
After recording the statement of proecutrix and on the basis State Vs. Musfik Khan Page no. 3 of pages 12 of MLC, a case u/s 376/342/506/34 IPC was registered and investigation was carried out. During investigation accused Musfiq Khan was arrested, result of the MLCs were obtained, statements of witnesses were recorded and then after completion of investigation challan u/s 376/342/506/34 IPC was filed before the court. During the investigation aforesaid two boys namely Atul and Vipin could not be arrested due to non availability of correct particulars.
3. After supplying copies etc., the case was committed to this court where after hearing arguments on the point of charge, charge U/s 376 (2) (g)/342/506(II) IPC was framed against the accused Musfiq Khan to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence. On 28.02.2009, examination-in-chief of PW-1 Ct. Ved Pal was partly recorded.
4. Today, the case was fixed for prosecution evidence. Three witnesses i.e. PW-2 Smt. Chawli (mother of the prosecutrix), PW-3 (the prosecutrix) and PW-4 Sh. Chander Shekhar (father of the prosecutrix) were present and their statements were recorded and in their respective statements, none of them has supported the case of the prosecution and consequently they all were declared the hostile witnesses.
5. PW--2 Smt. Chawli Devi (the mother of prosecutrix), a material witness has although confirmed that she lodged a missing report with the police Ex.PW2/A but she claimed that her daughter the State Vs. Musfik Khan Page no. 4 of pages 12 prosecutrix had gone to her friend at Noida and when she came back she was suffering from a mild fever and as such she was taken for medical examination by police. She claimed that though she had informed the police that nothing unpleasant had happened with her daughter but the police had obtained her signature and also the signature of daughter, the prosecutrix, on blank papers. She has clearly stated that she had not given any statement to the police.
Although this witness was cross examined by Ld. Addl. PP for the State at a great length but nothing material against the accused could be brought out from her. She denied of having stated before the police that on 08.09.2008, a phone call was received from Lekha and she alongwith her family had brought her back and at that time her condition was worsen. She also denied of having stated before the police that all of them were perplexed after informing about the incident from her daughter or that on 10.09.2008 at 10 am IO alongwith the Lady constable visited her house or that her daughter Lekha had stated that she was raped by Mushfik or that she was brought to hospital by the police or that where the medical examination of my daughter was got done. She also denied of having stated before the police that after medical examination of her daughter at HRH hospital, her statement was recorded and on the basis of which case FIR was got registered by the IO through Constable or that he got returned with the FIR in the State Vs. Musfik Khan Page no. 5 of pages 12 hospital. She also denied of having stated before the police that she alongwith Lady Constable and her daughter looked for the accused in the area of Anand Parbat or that when her daughter got tired the IO had recorded her statement and of her daughter. She even did not identify the accused present in the court and has claimed that she has not seen him before and she is seeing him for the first time in the court.
6. PW--3, the prosecutrix, has also not spoken to the tune of the prosecution rather she claimed that she is 12th class passed and in the year 2006, she had worked for about 8-9 months in Call Centre and then in DST, Rajendra Place. On 02.09.2008, she had gone to the house of her friend at NOIDA after taking permission from her mother for one or two days to stay with her friend. Due to her interview, she could not contact her mother and failed to inform her even on phone and stayed there for 3-4 days. She also deposed that as there was a network problem and phone was not reachable, so she told her friend to inform her parents about her stay and got engaged in the preparation of her interview. After 3-4 days, she returned back to her home at Harijan Basti and she came to know that her mother had already lodged a report about her missing. At that time, she was having pain in her abdomen and also was suffering from viral fever. She alongwith her mother went to the police station to inform about her return and to close the matter, where on the insistence of police, she was taken to the State Vs. Musfik Khan Page no. 6 of pages 12 hospital where her medical examination was got done and in the Police Station police had obtained her signatures on few blank papers. She claimed that she had not given any statement to the police. She reitrated that she on her own had gone to her friend and returned to her family and nothing had happened to her. Although, she identified her signatures on the statement Ex. PW-3/A but she denied the contents thereof, rather she claimed that she had not stated anything to the police nor she had lodged any complaint against anyone about allegations of rape and confinement.
This witness was also extensively cross examined by Ld. APP for the State but here also nothing material and incriminating could be brought out against the accused. She denied of having stated before the police that one year six months prior to 02.09.2008, one person named Musfik Khan had contacted her on telephone and also met her in her office at Rajendera Place and also assured her a good job and he used to meet her on the pretext of getting her a job and also used to converse with her on phone. She also denied of having stated before the police that on 24.08.2008, Musfik Khan, accused present in the court had called her and asked her to come at Anand Vihar ISBT to get her a good job or that on 02.09.2008, at about 2.30 pm from her home in a bus she reached Anand Vihar, where accused Musfik Khan was found standing there and he took her to Raj Nagar, Ghaziabad, UP at one flat on the State Vs. Musfik Khan Page no. 7 of pages 12 third floor. She further denied of having stated before the police that at the said flat two boys were already present and they were friends of Musfik Khan and name of one boy was Vipin from Ghaziabad and other was Atul from Anand Parbat and they were introduced by Mustfik Khan and accused Musfik Khan had confined her in the said flat by locking the door and at that time, Vipin and Atul were doing chowkidaari outside the flat and were helping Musfik Khan. She also denied of having stated before the police that accused started doing physical assault on her to which she slapped him and tried to save herself and than accused Musfik Khan had forcibly tied her hands with a cloth and forcibly committed rape upon her and after committing the rape, accused Musfik Khan had locked the room from outside and confined her and left. She also denied of having stated before the police that on 03.09.2008, again accused Musfik Khan attmepted to commit rape upon her but due to her resistance she could save herself and on the same day, Musfik khan took her outside the flat and had taken her to Avantika, Ghaziabad and kept her in a room which he had taken on rent at Avantika, Ghaziabad, where he disclosed her wrong name and from 04.09.2008 to 08.09.2008, she remained in the same room and accused Musfik Khan stayed with her there and in the night he used to go out after locking her from outside and during her stay accused attmepted to rape her but due to her resistance he could not succeeded.
State Vs. Musfik Khan Page no. 8 of pages 12 She also denied of having stated before the police that on 08.09.2008 accused went to the bathroom and forgot to lock the door and she took the opportunity and ran away from there and took the lift and reached EBM Mall, Ghazipur and called her mother from the STD to which her parents came there and took her away and then IO with the lady police came to her house and in presence of her mother she narrated the story to the police. She also denied of having stated before the police that her medical examination was done for the rape or that Musfik used to threat to kill her and her parents and Atul also threatened on phone to abstain from the complaint or threatened me to kill her family. She also denied of having stated before the police that accused Musfik Khan on the pretext of getting her a good job kept her locked in a room against her will and threatened her to kill and Atul threatened her to kill her family. She also denied of having stated before the police that in the hospital her undergarments were seized by the police. She conceded that she was made to sign only the blank papers. She correctly identified her signatures at point B on Ex. PW-1/A and on point B on Ex. PW-1/B but she has stated that she had only signed the blank paper. She conceded that she had never been taken by the police to any place to point out any room or house as she was never retained by any one in any place. She also stated that none of her statement was recorded by the police. Statement Ex. PW-3/DA dated 10.09.2008 was State Vs. Musfik Khan Page no. 9 of pages 12 read over to the witness from portion A to A to which she denied of having made so before the police. Statement Ex. PW-3/DB dated 11.09.2008 was also read over to the witness who denied of having so made to the police. She denied the suggestion that accused present in the court was arrested by the police at her instance and in her presence. The Statement dated 13.09.2008 Ex. PW-3/DC was also read over to the witness to which she denied of having so made to the police. Like her mother, she too had failed to identify the accused in the court while claiming that she had never seen him before.
7. PW-4 Shri Chander Shekhar (the father of prosecutrix) has also turned hostile like PW-2 & PW-3. He deposed in his testimony that none of his statement was recorded by the police nor he had joined any investigation with the police at any point of time. He claimed that he had not given any proof of age of his daughter to the police. Though police had obtained his signatures on some blank papers at the time complaint of missing of his daughter was lodged by his wife on 04.09.2009 but her daughter had returned after 4-5 days and there was nothing wrong with her.
Like PW-2 & PW-3, this witness was also cross examined by Ld. Addl. PP for the State but here also no success could be achieved by the prosecution. The statement dated 11.09.2008 Ex. PW-4/DA point A to A was shown to the witness who had denied of having so made to the State Vs. Musfik Khan Page no. 10 of pages 12 police. He stated that he had never been to Ghaziabad, UP alongwith his daughter Lekha and police. He has not joined the investigation of the case. He also stated that accused is not known or familiar to him and even he is seeing him for the first time in the court today. He denied the suggestion that accused present in the court is same Musfik Khan who was apprehended by the police at the instance of his daughter on 11.09.2008 or that in his presence accused was brought for medical examination to Hindu Rao Hospital.
8. In this case by now, the prosecution has examined as many as four witnesses out of seventeen cited witnesses. Out of the four witnesses examined by the prosecution three witnesses i.e. PW-2 Smt. Chawli Devi (mother of prosecutrix), PW-3 prosecutrix herself and PW-4 Sh. Chander Shekhar (father of prosecutrix) are the main and material witnesses but none of them have supported the story of prosecution. They all have been declared the hostile witnesses. None of them has identified the accused person. The remaining witnesses are police official/formal witnesses and no fruitful purpose will be served by examining them in the court in the event when the star witnesses have turned hostile. In view of the aforesaid situation, the prosecution evidence was closed vide the order of even date. Since nothing incriminating against the accused persons have been brought on record, so statements of accused persons u/s 313 Cr.P.C. was also dispensed State Vs. Musfik Khan Page no. 11 of pages 12 with.
9. I have heard the submissions of Ld. Addl. PP for the State and Ld. counsel for the accused and have perused the record.
10. The instant case is solely based on the testimony of PW-2, PW-3 & PW-4 and incidentally all of them have turned hostile and they have not supported the case of the prosecution at all. In these circumstances, I have no option but to acquit the accused of the charges levelled against him. He stands acquitted accordingly. His bail bond is discharged.
11. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR) court today on 15.05.2009) ASJ-04 (NORTH)/DELHI State Vs. Musfik Khan Page no. 12 of pages 12