Delhi District Court
State vs . Ashad Ahmad Page No. 1/22 on 7 May, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0174652014
SC No. : 158/14
FIR No. : 422/14
U/s. : 376(1)/384 IPC
PS : Jamia Nagar, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Ashad Ahmad
S/o Shri Riyaz Ahmad
R/o House no. C46, Batla House,
Munadi Road, Jamia Nagar,
New Delhi25. .........................Accused
Date of Institution : 24.07.2014
Judgment reserved for orders on : 02.05.2016
Date of pronouncement : 07.05.2016
J U D G M E N T
1. The prosecutrix (name withheld to protect her identity) gave a complaint at the police station Jagatpuri, New Delhi alleging therein that she was a student of Jamia University. Her buaji lives at Jamia Nagar. Her fufaji i.e. the accused suggested her parents to study from his house. Her parents agreed for it since it was two hours journey from her house to the Jamia University. She started living in his house. FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 1/22 On one day, when her Buaji was not at home, the accused committed rape upon her. He took her obscene photos and made video recording. He also obtained her signatures on some blank papers. It continued for a long time. Despite her protest, he used to commit sexual intercourse with her. He used to threaten her to make her obscene photographs and videos public. No one knew about this act. In 2008, she got engaged. The accused got broken her mangni / engagement. He also threatened to get her marriage broken. He demanded Rs. 7 lacs from her family members not to disclose the same. For her honour and dignity, they gave him Rs. 5,50,000/. She got married in the year 2013. The accused thereafter started threatening her family members to break the marriage. He also demanded money from her family members for not disclosing to her inlaws.
2. On her statement, zero FIR was registered at the police station Jagatpuri u/s 376/354/384 IPC. The prosecutrix was taken to Lal Bahadur Shastri Hospital, Khichripur, New Delhi for her medical examination where she refused her internal examination. She gave the brief history of incident to the doctor. Since the incident had happened in the area of Jamia Nagar, after seeking directions, the case was sent to the police station Jamia Nagar, where FIR no. 422/14 was registered. The statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. On 18.06.2014, accused was arrested. He was got medically examined for his potency. Statements of witnesses were recorded. After the investigation, the accused was sent for trial for the offences punishable u/s 376/384/354 IPC. FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 2/22
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 14.05.2012, prima facie case was made out against the accused u/s 376(1), 384 IPC. Charge was framed. He pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused, prosecution examined as many as nine witnesses.
PW1 Dr. Kartik Krishna did the medical examination of accused qua his potency vide MLC Ex.PW1/A. He found him capable of performing sexual intercourse under normal circumstances. PW2 Ct. Nizam Khan witnessed the arrest of accused vide memo Ex.PW2/A. He stated that during arrest, mobile of the accused was seized vide memo Ex. PW2/C. He identified the mobile, SD card and SIM Ex.P1 colly.
PW3 Ct. Sunil Kumar deposited the mobile phone of accused with FSL, Rohini vide RC Ex.PW3/A. PW4 Ct. Jasvinder took the prosecutrix to Lal Bahadur Shashtri Hospital where she refused her internal examination. He stated that she was formally examined vide MLC Ex.PW4/A. PW5 ASI Naresh Singh recorded the Zero FIR in the police station Jagatpuri Ex. PW5/A. He made FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 3/22 endorsement Ex.PW5/B and sent it to PS Jamia Nagar.
PW6 Dr. Rashi Rai proved the MLC of the prosecutrix Ex.PW4/A prepared by Dr. Neha, as per which there was no physical injury or bleeding on the person of the prosecutrix. She also recorded the history of the incident narrated by the prosecutrix. She stated that the prosecutrix refused for her internal examination.
PW7 HC Narender Kumar recorded the FIR Ex.
PW 7/A at PS Jamia Nagar.
PW8 is the prosecutrix. She has testified on oath that accused is her fufa. In 2002, she took admission in BA pass course in Jamia Millia Islamia University. She used to come from Laxmi Nagar to attend the classes. The accused asked her father to make her stay in his house and commute from there because of distance. Her father allowed her to stay in his house. Since then she started living in his house and attending the classes. In June / July 2003, the wife of accused was pregnant. She was in the hospital. The accused was in his house with his two children aged 6 and 8 years. In the evening hours, he committed sexual intercourse with her forcibly. He also took her FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 4/22 photographs and made video from his mobile. He threatened her not to disclose it to anyone otherwise he would expose her by showing her video clips. He also beat her. She stated that due to honour and dignity, she did not tell the incident to anyone including her parents. She stated that the accused used to make her do household work and blackmail her to defame her. She thought to get the photographs back from him. On every Saturday and Sunday, she used to go to her parents house and even on week days, however, the accused used to object of her going on weekdays. She stayed in his house till 2005. After 2005, she off and on visited his house as he used to call her and ask her to behave in the manner so that no one could doubt on their relations. Even during the visits, he made physical relations with her forcibly till April 2012. She thought several times to tell the incident to the wife of the accused but could not tell because of threat. He made her life hell. She stated that in 2008, she was engaged with someone but he got it broken. He did it again in the year 2012 after showing her obscene photographs to the boy. She after her marriage in the year 2013 sent the CD in her matrimonial house. It had her obscene videos. Her FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 5/22 motherinlaw told her that the accused had shown her the video on his laptop. On getting scared, in April 2012, she told it to her mother. Her mother talked to his wife but she did not listen. Her parents then asked him as to what he wanted from getting rid of her. He then demanded Rs. 7 - 8 lacs but her parents managed Rs. 5.5 lacs and gave to him. After 2 - 3 months of her marriage, he again demanded money from her by making calls through his wife. Her uncle, mother and accused discussed the matter and a compromise was arrived on which she also signed. She stated that even thereafter he called her and asked her to pay money by giving threats. Her husband also came to know of this fact. Their relations came at the stage of divorce. He tutored her husband as he wanted her to be divorced. She then lodged the complaint. She was got medically examined in the presence of her mother where she gave the brief history of incident to the doctor. She stated that she refused her internal examination since she had twin babies and the incident was way back. She stated that a note Ex.PW8/B dated 18.03.2012 was got written by the accused forcibly on the road at some distance from her house when she was going to submit her FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 6/22 assignment in her college. She stated that the accused later told her that he has torn the note which he got written casually.
On being crossexamined, she stated that she has done course of Master of Social Works besides MA. The house of the accused comprised of two rooms. The accused is a contractor. His house was demolished in 2002 and it was reconstructed in 2005 and during that period, he lived as tenant with his family in some other house. She stated that the accused is not her real phufa. She denied that she had written the note Ex.PW8/B voluntarily. She stated that the accused established physical relations with her upto March 2012 in his house. She admitted that her elder brother had worked under the accused. She stated that the money was not given to the accused in her presence. Her brother Javed had borrowed the money from his friend Shavez. She stated that the accused had stayed in the same hotel at Goa where she stayed with her brother. She stated that the accused did not establish physical relations with her in Goa. She stated that the accused had borne her air expenses from Goa. She denied that she had gone with the accused to Goa and stayed with him. She FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 7/22 stated that she disclosed about her relations with the accused to her mother in 2012 and her mother did not make any complaint to the police. She stated that she completed her graduation in the year 2005 and thereafter, she started living in her parents house. She stated that the accused used to blackmail her and he forced her to visit his house. She denied that she loved the accused and that she entered into the physical relations with the accused voluntarily without any threat. She denied that the accused did not take her obscene photographs nor blackmailed her nor demanded any money. She denied that she made the false complaint since the accused did not fulfill the demand of Rs. 10 lacs made by her and her husband after the marriage. She stated that she is with her mother, sister, wife and daughter of the accused in the photographs Ex.PW8/D1 to Ex.PW8/D8 and the accused is in photograph Ex.PW8/D9.
PW9 WSI Pooja Saraswat stated that on 04.06.2013, a complaint Ex.PW9/A given by the prosecutrix was received at the police station Jagatpuri vide DD no. 34B. It was marked to her on 09.06.2014. On the same day, she went to the house of the prosecutrix and got her medically examined. She FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 8/22 stated that the prosecutrix thereafter made the complaint Ex.PW8/B. She also got the prosecutrix counseled from NGO.
PW10 Smt. Tahira is mother of prosecutrix. She testified on oath that the prosecutrix had been studying in Jamia Milia University. The accused had been living at Okhla. The accused asked them to leave the prosecutrix in his house as it would be convenient for her to attend the classes. In 2009, the prosecutrix disclosed to her that accused has been harassing her saying that he would not get her married to anyone; that he has prepared her obscene video and photographs and threatened her to make it public. She stated that she engaged the prosecutrix with Mohd. Shariq in 2012. The accused demanded Rs. 7 lacs from her for not showing the obscene videos and photographs to Mohd. Shariq. She gave him Rs. 5,50,000/ and thereafter, the marriage was solemnized. She stated that even after the marriage, he threatened them. He asked them to give in writing that the prosecutrix has no concern with them which the prosecutrix did. She stated that the accused told his relations with the prosecutrix to her husband and motherinlaw and also demanded money from them. FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 9/22 He also showed her the photographs of the prosecutrix. She stated that after giving birth to a daughter, her inlaws left her and she lived in her house for about six months.
On being crossexamined, she stated that she came to know of their physical relations in the year 2009. The prosecutrix remained in the house of the accused till 2009 / 2010. Neither she nor her daughter lodged complaint against the accused in this respect. She stated that she sold her plot at Loni and jewellery to make payment to the accused. She denied that she concocted a false story to extort money from the accused. She admitted that a compromise Ex.PW8/A took place between her daughter and the accused which was witnessed by her but she stated that the accused had created pressure for the said compromise. She stated that she is not in possession of any document of the plot at Loni. She stated that it was in the name of her son Mujahid.
PW11 was the SHO at Jamia Nagar at the relevant time. He on receipt of complaint Ex.PW8/B from the police station Jagatpuri, made endorsement and directed the registration of FIR. He marked the investigation to WSI Shashi Dixit.
FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 10/22 PW12 Ms. Bhavna Kalia recorded the statement of the prosecutrix Ex.PW8/C. PW13 W/SI Shashi Dixit was the investigating officer of this case. She arrested the accused, got him medically examined, seized his mobile phone and sent the exhibits to FSL. She also tendered the report of the FSL Ex.PW13/B. She stated that she did not record the statement of neighbour or the family friends of the accused nor conducted inquiry on the complaint regarding disposing of property by the mother of the prosecutrix.
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him but admitted that the prosecutrix had taken admission in Jamia Milia University and she used to commute from Laxmi Nagar. He denied that he had suggested the father of the prosecutrix to make the prosecutrix stay in his house and commute from there because of distance. He stated that the prosecutrix was part of his family and he never made her to do any household work. He stated that the engagements were fixed by the mother of the prosecutrix and he did not play any role in those engagements. He stated that he did not send any CD at the matrimonial house of the prosecutrix nor made any demand. He however admitted that a compromise Ex.PW8/A was executed between him and the prosecutrix. He denied that he got the note Ex.PW8/D forcibly written from the FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 11/22 prosecutrix. He stated that he and the prosecutrix had physical relations and they were consensual.
6. I have heard the arguments advanced by Ld. Counsel Sh. Chander Maini for the accused and Addl. PP for the State.
7. Ld. Counsel for the accused vehemently argued that the first incident of rape allegedly took place in 2003 but the prosecutrix lodged the report in 2014. CD prepared from the mobile phone seized from the possession of the accused does not have any content. Ld. Counsel stated that the accused never took the photographs of the prosecutrix nor made her obscene videos to blackmail her. The physical relations between the prosecutrix and the accused were consensual which fact is evident from the compromise Ex.PW8/A and the note Ex.PW8/D. Ld. Counsel stated that the prosecutrix lodged the complaint to extort money from the accused at the behest of her husband. Ld. Counsel stated that there are material improvements in the testimony of the prosecutrix and her mother which go to the root of the case and create doubt on the veracity of the prosecution case. In support of his contentions, Ld. Counsel placed reliance on the case of State of Karnataka Vs. Mapilla P.P.Soopi 2003 [3] JCC 1545; Harpit Singh Anand Vs. State of West Bengal 2003 [3] JCC 1547;
8. Ld. Addl. PP on the contrary argued that the prosecutrix is the niece of the accused. She had lived in the house of the accused for studies in Jamia Milia University. The accused committed sexual intercourse with the prosecutrix for the first time in the year 2003 when the wife of the accused was away to the hospital and the prosecutrix was alone. He took FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 12/22 her obscene photographs and made obscene videos. He threatened the prosecutrix to make physical relations with her lest he would expose her in public. She because of honour and dignity did not tell it to her parents. The accused then blackmailed the prosecutrix and extorted Rs. 5.5 lac from her mother. He harassed her and made all out efforts to break her engagement and marriage. Ld. Addl. PP stated that the physical relations were not consensual rather the accused committed sexual intercourse with the prosecutrix forcibly giving her threats.
9. I have considered the arguments and gone through the entire material on record.
10. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.......
Fifthly..........
Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.......
11. The essence of rape is absence of consent. Consent means an FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 13/22 intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
12. A bare perusal of the testimony of PW8 / prosecutrix would show that the prosecutrix took the admission for Graduation in Jamia Islamia University in the year 2002. She used to come from Laxmi Nagar. Accused used to live at Jakir Nagar which is nearby to her college. She started commuting to the college from the house of the accused.
13. PW8 / prosecutrix has stated that in June / July 2003, the wife of the accused was admitted in the hospital. The accused was at home with his two children aged 6 and 8 years. At evening hours, he committed sexual intercourse with her forcibly. He took her photographs and made videos from his mobile and threatened her not to disclose the incident to anyone else, he would expose her by showing her video clips. He also beat her. Because of honour and dignity, he did not tell the incident to anyone including her parents. She has stated that she stayed in the house of the accused till 2005. On every Saturday and Sunday, she used visit her parents. She stated that during her visits, the accused used to establish physical relations with her forcibly and it continued till 2012.
It is strange that the prosecutrix despite the fact that the accused committed sexual intercourse with her forcibly in the year 2003, stayed in the house of the accused till 2005 and even thereafter, she visited his house FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 14/22 off and on till 2012. I failed to understand what made the prosecutrix visit the house of the accused again and again till 2012. It assumes significance because it has come in the testimony of PW8 that the accused during her visits used to establish physical relations with her forcibly.
14. The prosecutrix / PW8 has stated that in the year 2012, a proposal of her marriage came but the accused got it broken. He showed her obscene photographs to the boy for getting the proposal cancelled. In 2013, he sent CD at her matrimonial house which contained her obscene videos. Her motherinlaw told her that accused had shown her the video on his laptop. It is to be noted that no obscene photographs nor any CD were recovered during the investigation. The prosecution neither examined the boy whom the accused had allegedly shown her obscene photographs nor her mother inlaw whom the CD allegedly containing her obscene video was shown on the laptop. No plausible explanation came from the side of the prosecution in this regard. It is to be noted that during investigation mobile phone of the accused was seized and sent to FSL. A CD was prepared. It was played but it did not contain any such data.
15. PW8 / prosecutrix has stated that when she got scared in April 2012, she told the incident to her parents. Her mother talked to the wife of the accused but she did not listen. Her parents then asked the accused as to what he would take to get rid of her. The accused demanded Rs. 7 to 8 lacs, however, her parents managed Rs. 5.5 lacs and paid to the accused.
PW10 / mother of the prosecutrix in her testimony has stated that the prosecutrix had told her in 2009 that the accused has been harassing FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 15/22 her and he has prepared her obscene videos and photographs and threatened her to make it public. Question now arises whether the parents / mother of the prosecutrix came to know of the incidents in 2009 or 2012 and why she remained silent and allowed PW3 to go to the house of the accused till 2012.
16. PW8 has stated that in January 2013, she got married. After 2 3 months of marriage, the accused got his wife talk on phone and demanded money from them. It is also not believable that the wife of the accused would make call and demand money from her parents for not exposing her relations with the accused.
17. It is to be noted that in the instant case, the report was lodged on 04.06.2014. It is not understood why she waited for so long to lodge the report. It assumes importance because the accused had allegedly sent her video in her matrimonial house in the year 2013. Even then she remained silent. The prosecutrix is a Post Graduate. She has completed Master of Social Works besides MA. Surprisingly, she remained quiet for about 9 years and tolerated the acts of the accused and even agreed to pay Rs. 5.5 lacs to the accused.
18. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made either to the police or to the parents FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 16/22 prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supportive evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
19. In the instant case, a compromise Ex.PW8/A was arrived. It bears the signature of the accused, his wife, her, her brothers and mother. The compromise took place on 30.01.2013. It reads that the family of the prosecutrix and the accused are related to each other; they had some disputes and now they have settled their disputes; both the parties have agreed not to interfere in their life and not to take action against each other. Question arises why the necessity of this compromise arose. It is relevant to refer the note Ex.PW8/D dated 18.03.2012 which PW8 has admitted to have written. It finds mentioned that she had physical relations with the accused till BA first year; she loved the accused and they had physical relations with their consent which are still going on; since the talk of her marriage is going on, they are ending their physical relations, however, she would keep on meeting him after the marriage and she can not live without him. The reasonable inference which can be drawn in this case is that the compromise Ex.PW8/A is in consequential of the note Ex.PW8/D. Although, PW8 has stated that the accused got it written from her forcibly but looking into the facts and circumstances of the case, it can FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 17/22 not be said that it was got written forcibly. Further, PW8 did not make any complaint in this regard to any authority nor her complaint Ex. PW8/B finds mention this fact.
20. PW8 in her testimony has stated that she lived in the house of the accused upto 2005. In her crossexamination, she has admitted that the house of the accused was demolished in the year 2002 and it was reconstructed in the year 2005 and during that period, the accused lived as tenant. She was also confronted with her complaint Ex.PW8/B where the factum of her taking admission in BA Pass in the year 2002, her attending classes initially from her parent's house at Laxmi Nagar, the accused asking her father to allow her to stay and commute from his house due to distance; accused beating her or she not telling the wife of the accused and her parents of the incident or the accused forcing her to do household work and blackmailing her or visiting the house of the parents on Saturdays and Sundays was not alleged. Even the prosecutrix did not allege in her complaint Ex.PW8/B that the accused had shown her obscene photographs to the boy for getting the marriage proposal cancelled or that the accused had sent the CD at her matrimonial where she saw the CD containing her obscene videos. Testimony of PW8 would also show that she had visited Goa at the same time when the accused had visited. She had stayed in the same hotel. She returned from Goa to Delhi in the same flight and the expenses of her air fare were borne by the accused.
21. These improvements and contradictions go to the root of the case and create doubt on the veracity of the prosecution case. In the case of FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 18/22 Narender Kumar vs. State of Delhi (2012) 7 SCC 171, it was held that where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. In the case of Ashok Narang vs. State of Delhi (2012)1 JCC 482, it was held that if one integral part of the story put forth by witness was not believable, then the entire case failed.
22. In the case of Dev Kumar Juneja vs. State of Delhi (1996) JCC 638, it was held as under: "Law on the question of variance between different statements of a witness at different stages is that small variations or omissions will not justify a finding that the witness is a lier and his testimony should be discarded. However, vital omissions merit consideration and if on vital points it appears to the Court that the witness has tried to improve the case such a witness will have to be discarded.
23. In the instant case, the things appear to have not happened in the manner they have been alleged. The logical conclusion which can be drawn from the facts and circumstances of the case that the relations between the prosecutrix and the accused were consensual. They were in livein relationship for quiet a long time. The prosecutrix used to love the accused and did not want to break her relationship. When their relations exposed, the prosecutrix made this complaint against the accused. FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 19/22
24. It was observed in the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013 in the Hon'ble High Court of Delhi that there may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta.
25. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
26. In the case of Narender Kumar Vs. State supra it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 20/22 prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
27. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
FIR No. : 422/14 PS : Jamia Nagar State Vs. Ashad Ahmad Page No. 21/22 Conclusion
28. In the light of what has been stated above, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused Ashad Ahmed of the offence punishable under section 376 (1) and 384 IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. Case property be confiscated to the State after the expiry of period of appeal or revision.
29. File be consigned to the Record Room.
Announced in the open
court today i.e. 07.05.2016 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 422/14
PS : Jamia Nagar
State Vs. Ashad Ahmad Page No. 22/22