Delhi District Court
State vs Mohd. Sultan Asharif on 15 January, 2010
1 S/v Mohd. Sultan Asharif
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01-SOUTH
PATIALA HOUSE COURTS-NEW DELHI
Sessions Case No : 123/08
State Vs Mohd. Sultan Asharif
S/o Sh. Mohd. Salim
R/o Village Naxal Badi
District Darjeeling
West Bengal
FIR No. : 655/06
Police Station : Sri Niwas Puri
Under Section : 376 IPC
Date of Institution : 30/10/2008
Date of judgment : 02/01/2010
Date of order : 15/01/2010
ORDER ON SENTENCE
By my judgment dated 02/01/2010, the accused was convicted
for the offences under Section 376 IPC.
Learned Additional Public Prosecutor has argued for deterrent
punishment against accused, keeping in view the serious nature of the
crime committed by him.
Learned Counsel for the accused has argued that the accused
is the only son of his parents and is in custody since last 3 years so he
2 S/v Mohd. Sultan Asharif
should be sentenced to the period of imprisonment already undergone by
him during the investigation and trial of the case.
I have heard learned Additional Public Prosecutor and learned
Counsel for the accused and have gone through the record of the case and
the relevant provisions of law carefully.
In the charge framed against the accused the prosecutrix was
shown to be less then 12 years of age but as per finding in the judgment
dated 02/01/2010 passed by me, the prosecutrix was found to be more
than 16 years of age as on the date of the commission of offence.
Therefore, the sub section 2 (f) of Section 376 IPC is not attracted and the
offence proved against the accused falls under Section 376 (1) IPC and
accused is to be sentenced by taking recourse to punishment prescribed
under sub Section (1) of Section 376 IPC.
The punishment prescribed under sub Section (1) of Section
376 IPC is imprisonment of either description for a term which shall not be
less then 7 years but which may be for life or for term which may extend to
10 years and the convict is also liable to pay fine. Although, as per proviso
of sub Section (1) of Section 376 IPC for adequate and special reason to
be recorded in which judgment, a lesser imprisonment than 7 years can be
imposed, but the reason that the accused is the only son of his parents or
3 S/v Mohd. Sultan Asharif
is in custody for the last 3 years, in my view, can neither be said to be
adequate nor special reasons for imposition of lesser than minimum
prescribed imprisonment under sub Section (1) of Section 376 IPC.
In view of the above, I sentence the convict under Section 376
(1) IPC to undergo rigorous imprisonment for 7 years. In addition, he is
directed to pay fine in the sum of Rs.2,000/-. In default of payment, the
convict shall undergo simple imprisonment for 6 months.
The period of detention already undergone by the convict during
investigation and trial of this case shall be set off against the term of
imprisonment imposed against him by this order, as provided under
Section 428 Cr.P.C. The judgment and order on sentence be sent to
server (www.delhidistrictcourts.nic.in).
Copy of judgment and copy of order on sentence be supplied to
the accused free of cost. File be consigned to record room.
Announced in the open
court on 15/01/2010 ( S K Sarvaria )
Additional Sessions Judge-01/South
Patiala House Court
New Delhi
4 S/v Mohd. Sultan Asharif
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01-SOUTH
PATIALA HOUSE COURTS-NEW DELHI
Sessions Case No : 123/08
State Vs Mohd. Sultan Asharif
S/o Sh. Mohd. Salim
R/o Village Naxal Badi
District Darjeeling
West Bengal
FIR No. : 655/06
Police Station : Sri Niwas Puri
Under Section : 376 IPC
Date of Institution : 30/10/2008
Date when arguments
were heard : 21/12/2009
Date of judgment : 02/01/2010
JUDGMENT
The SHO police station Sri Niwas Puri has filed challan against the accused in the court of learned Metropolitan Magistrate, New Delhi for the trial of the accused for the offence under Section 376 IPC. After supplying the copies to the accused and compliance of provisions of the section 207 Cr.P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 5 S/v Mohd. Sultan Asharif 209 Cr. P.C. for trial of the accused.
BRIEF FACTS On 9.12.06, SI Amar Singh along with Ct. Rakesh Singh and Ct. Mohd. Tahir were on patrolling duty in Sunlight Colony area. When they reached Indira Camp Sunlight Colony-II, New Delhi, they saw some people collected outside jhuggis. On interrogation, they came to know that prosecutrix Shama had been raped by his neighbour, accused Mohd. Sultan Asharif. The statement of prosecutrix was recorded by SI Amar Singh in which she has stated that at 5.30 pm, she was called by Munia in the jhuggi in which accused Mohd. Sultan (brother-in-law of Munia) was also present, accused Mohd. Sultan put off her salwar, he was wearing baniyan and loongi and put off his loongi and made her to lay on the bed and kissed on her cheeks and then inserted his penis in her vegina, in the meantime, her mother came there and caught hold of accused Mohd. Sultan when he was committing rape on her. Her mother informed her father about it and also gave beatings to the accused. SI Amar Singh made his endorsement on the rukka and sent the same through 6 S/v Mohd. Sultan Asharif Ct. Rakesh Singh to the police for registration of the case. During investigation, SI Amar Singh joined woman SI Narender Kaur in the investigation and on the instruction of prosecutrix, prepared site plan. The medical examination of prosecutrix was got done and her MLC was collected and sealed pulanda given by doctor was taken into possession of police. Accused Mohd. Sultan was arrested and got medically examined and his MLC was collected. Sealed pulanda containing under garment (chaddi) and blood gauge were taken into possession of police. Thereafter, investigation was conducted by woman SI Narender Kaur and the statement of prosecutrix under Section 164 Cr.PC was got recorded in which she has ruled out any role of Munia in the commission of offence. On completion of investigation, challan was prepared and filed in the court. CHARGE AND PLEA OF THE ACCUSED The prima facie case for the offence under Section 376 IPC was found made out against the accused so the charges was framed accordingly against him on 28.4.07 to which the accused pleaded not guilty and claimed trial.
7 S/v Mohd. Sultan Asharif PROSECUTION EVIDENCE In support of its case, the prosecution has examined 12 witnesses in all.
PW1 is Dr. Bindiya Gupta, Senior Gynecologist, AIIMS, who medically examined the prosecutrix and proved the MLC prepared by her is Ex.PW1/A. She also stated that she filled up form for bone-age X-Ray Ex.PW1/B. PW2 is ASI Birsa Khalkho, who working as duty officer on 9.12.06 from 12 midnight to 12 am. She proved the copy of the FIR Ex.PW2/A. PW3 is Shama, who stated, in brief, that she did not remember the exact date even she could not say the tentative period from the date of examination in the court but stated that it was evening time. Accused Mohd. Sultan was standing at the door of his house as he used to reside by the side of her house (adjacent house). He called her by giving a signal to her. She went to his house. Accused had taken her inside the house. Accused was wearing a loongi and a baniyan. Accused pushed her on a bed lying in his 8 S/v Mohd. Sultan Asharif house. Accused put off her clothes, she was wearing a salwar and short kameez on the top portion of body. Accused committed rape with her. Accused had administered her some intoxicant due to which she started feeling giddiness, therefore, she could not raise alarm. She wanted to tell her mother about the incident but accused used to threaten her to kill her if she would state the facts to anyone. Accused, thereafter, called one boy, namely, Bullet. Accused had called Bullet as he was a criminal of the area in which she reside and accused used to extend threats. She made a police complaint Ex.PW3/A which bears her signature. The said complaint was lodged by her in presence of her parents and they ad also signed this complaint. She was sent to AIIMS hospital for her medical examination. At the time of medical examination, doctor had seized under-garments and later on the same were seized by police. Police had also seized the loongi Ex.PW3/B. She also proved her statement under Section 164 Cr.PC as Ex.PW3/C, she also stated that accused committed rape twice or thrice earlier also but due to fear of her parents she did not tell them anything. When accused called Bullet, 9 S/v Mohd. Sultan Asharif he had shown her a knife and he threatened her if she complained to anyone or police he would burn police post.
PW4 is Smt. Amita, mother of the prosecutrix, who stated that accused Mohd. Sultan used to reside in an adjacent jhuggi with his Bhabi, namely, Munia. TV was being played in the jhuggi of accused Sultan on a high volume and she heard noise of weeping of her daughter in the jhuggi of Sultan. She peeped into the jhuggi of accused Sultan from the margin in the door. She saw that accused had put off the clothes of her daughter Shama. She pushed the door of jhuggi which was bolted from outside, Munia was also present outside jhuggi and on seeing her she slipped away. She saw that accused was committing rape upon her daughter. Accused was wearing a baniyan and loongi at that time. She caught hold of accused and took out her daughter from the jhuggi of accused Sultan. She asked Shama as to who had called her in jhuggi of accused Sultan then she told her that Babhi of accused had called her. Her dauther was under treatment as she is mentally weak and accused and his Bhabi Munia had taken advantage of the weakness of her 10 S/v Mohd. Sultan Asharif daughter and accused had committed rape with her. Munia, thereafter, called one Bullet, a criminal of the area and he had threatened them that they should not make any complaint to police otherwise he would kill them. Her husband reached home at around 10 pm then she informed him about the crime committed by accused. Thereafter, she, her husband and daughter had taken accused Sultan to police post. Police got Shama medically examined. They along with police had also gone to hospital with Shama. Police had arrested accused Sultan in this case.
PW5 is Jagur Ahmed, father of the prosecutrix, who stated, in brief, that his wife told him that accused Sultan, one of their neighbours committed rape with their daughter Shama and she further told him that she caught red handed, accused Sultan, then present in the court and he identified the accused. His wife further informed him that Shama told his wife that Munia, Bhabhi of accused had called Shama and when Shama went to the jhuggi of Sultan and Munia, Sultan was also present there, Munia bolted Sultan and Shama inside the jhuggi. Accused Sultan then present in the court, 11 S/v Mohd. Sultan Asharif committed rape with his daughter Shama. His wife had caught accused when he was committing rape with his daughter Shama. When his wife caught hold accused red handed then Munia had called Bullet, a criminal of the area. Munia and Bullet had threatened his wife and daughter that they would kill him, his wife and daughter Shama if they would inform police. He along with his wife and daughter had taken accused Sultan to police post nearby their house and they lodged a police complaint Ex.PW3/A. Police had sent Shama and accused to hospital for their medical examination. Police arrested accused vide memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/B. Next day, his daughter was brought before Magistrate for her statement under Section 164 Cr.PC.
PW6 is Ct. Rakesh, who stated, in brief, that on 9.12.06, he along with SI Amar Singh were on patrolling duty. When they reached near jhuggis of Sunlight Colony, they saw a crowd there. When SI inquired about the matter then they came to know that a rape was committed by accused Mohd. Sultan with prosecutrix Shama. SI Amar Singh recorded statement of prosecutrix Shama and 12 S/v Mohd. Sultan Asharif he made his endorsement on the said statement. He took rukka to police station for registration of FIR. He got the case registered. He reached back the spot with copy of FIR and rukka and the same were handed over to SI Amar Singh. Prosecutrix Shama and accused were taken to AIIMS hospital for their medical examination. The prosecutrix and accused were got medically examined. After medical examination, they reached the spot and arrested accused vide memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/B. At the time of medical examination of accused and prosecutrix, doctor had preserved the exhibits and the same were seized vide seizure memo Ex.PW6/A and Ex.PW6/B. The loongi (camath) was seized by IO vide memo Ex.PW3/B while sealing the same with the seal of ASD. The witness was not able to identify the loongi.
PW7 is WSI Narender Kaur, who stated that on 9.12.06, she was posted as SI (W) at police station Sri Niwas Puri. SI Amar Singh came to police station Sri Niwas Puri, she called NGO Ms. Aparna to police station for talking to prosecutrix. She along with SI 13 S/v Mohd. Sultan Asharif Amar Singh, NGO and prosecutrix came to Patiala House Courts. Father of the prosecutrix was also with her. Accused was also produced before court and he was sent to JC. The statement of prosecutrix under Section 164 Cr.PC was recorded by Ms. Vrinda Kumari, the then learned Metropolitan Magistrate, New Delhi which is Ex.PW3/C and runs into 8 pages.
PW8 is Dr. Chitranjan Behra, Assistant Professor, MAM College, Delhi, who medically examined the accused and proved his MLC as Ex.PW8/A. PW9 is SI Amar Singh, Investigating Officer, who proved the various steps taken by him during investigation of the case. PW9 has corroborated with the statement of prosecutrix PW3 regarding recording of her statement Ex.PW3/A and has stated that he made endorsement Ex.PW9/A and sent rukka through Ct. Rakesh Singh for registration of the FIR. He proved the site plan as Ex.PW9/B prepared by him at the instance of the prosecutrix. He corroborated with the statement of PW6 regarding handing over of the exhibits by doctor as Ex.PW6/A and 6/B, he also proved the seizure memo of 14 S/v Mohd. Sultan Asharif clothes of accused as Ex.PW3/E. He corroborated with the statement of PW5 regarding arrest of accused vide memo Ex.PW5/A and that his personal search was conducted vide memo Ex.PW5/B. He stated, thereafter, he handed over the case file of this case to lady SI Narender Kaur. She got statement of Shama recorded under Section 164 Cr.PC on 9.12.06. On the same night, he received the case file for further investigation. On 21.12.06, he sent the exhibits of this case through Ct. Rajbir to FSL. Thereafter, he completed the investigation and handed over the case file to SHO for filing challan. Reports of FSL are proved by him as Ex.PW9/C and 9/D. He identified accused Sultan then present in the court.
PW10 is HC Om Prakash, who stated that on 9.12.06, he was posted in police station Sri Niwas Puri and working as MHCM. On that day, SI Amar Singh had deposited four sealed pulandas with the seal of AIIMS hospital and one sealed pulanda with the seal of ASD and sample seals. In this regard, he made entry in register No.19 at S.No.408. On 21.12.06, Ct. Rajbir had taken the five sealed pulandas to FSL Rohini vide RC No.180/21. On 25.6.07, Ct.
15 S/v Mohd. Sultan Asharif Brahmpal had deposited five pulandas with the seal of FSL and one sealed envelope containing report. On 7.7.07, he handed over report of FSL to HC Rajender. He made his entry in register No.19. He had brought the register No.19 photocopy of relevant entries is proved by him as Ex.PW10/A. He also brought Road certificate register. Photocopy of RC No.180/21 is proved as Ex.PW10/B. PW11 is Ct. Mohd. Tahir, who made statement corroborating with the statement of PW6 Ct. Rakesh. He identified the loongi Ex.P1 which was seized from the accused then present in the court.
PW12 is Ct. Rajbir, who stated that on 12.9.06, he was posted as Constable in police station Sri Niwas Puri. On that day, he took five sealed pulandas and three sample seals to FSL Rohini vide RC No.180/21 and deposited the same there. After depositing the same, he handed over the receipt to MHC(M). So long as the case property remained in his possession nobody tampered with it in any manner.
PLEA AND DEFENCE OF ACCUSED 16 S/v Mohd. Sultan Asharif In the statement under Section 313 Cr.PC, accused has stated that it is a false case against him and the witnesses have deposed falsely as they are interested witnesses. He also stated that due to previous enmity with the father of prosecutrix, he has been falsely implicated in this case. He stated that he was innocent and has been falsely implicated. He pleaded for mercy. He either denied the questions emerging from the incriminating evidence produced by the prosecution against him or has expressed his ignorance about it. Accused did not lead any evidence in his defence despite opportunities.
ARGUMENTS AND FINDINGS The learned Additional Public Prosecutor has argued that as per medical evidence the bony age of the prosecutrix was between 15 years two months to 15 years eight months. In the MLC the age of prosecutrix is mentioned as 10 years. She used to get a fits. The FSL report shows that on the underwear of the victim semen stains tallied with the blood group of the accused. It is argued that the prosecutrix has supported the prosecution case so also the eyewitness her 17 S/v Mohd. Sultan Asharif mother Amina which is amply corroborated by medical evidence and evidence of father of the prosecutrix, therefore, accused is liable to be convicted for the charge framed against him.
The learned counsel for the accused has argued that in her statement the prosecutrix PW3 has stated that some intoxicant was given by the accused to her but the MLC of the prosecutrix does not show that any intoxicant was given to her. It is argued that the age of the prosecutrix is found between 15 years and two months to 15 years and eight months due to error margin in the bone age she should be treated as more than 16 years of age. It is also argued that the prosecutrix PW3 has stated in the cross-examination that nothing happened with her on the date. She made report to the police nor on the earlier date, therefore, the prosecution has failed to prove that the alleged rape was committed upon the prosecutrix particularly when there is no injury mark in the MLC of the prosecutrix. It is also argued that there is no medical evidence that prosecutrix used to get fits. The learned counsel for accused has argued that accused is innocent and the doctor examined by the prosecution has stated that incident 18 S/v Mohd. Sultan Asharif occurred eight days back and not on the same day. It is argued that the father of the prosecutrix has taken a loan of Rs.3,000/-from the accused and when the accused demanded return of the loan, he was falsely implicated by the parents of the prosecutrix in this case. Therefore, the accused is entitled to be acquitted.
I have heard the learned counsel for the accused, learned Additional Public Prosecutor for the State and have gone through the record of the case, relevant provisions of law.
Although in this case neither of the parties has pleaded about the consent of the prosecutrix which is only material on the question of age of prosecutrix as the consent for sexual intercourse given by a prosecutrix 16 years of age or more is no rape which is defined in section 375 IPC. However, since the arguments are addressed on the question of age of the prosecutrix it would be appropriate to adjudicate this question also. The prosecution relied upon the medical evidence as to age of the prosecutrix. According to the certificate Ex.PW1/B age of the prosecutrix was found to be 15.2 to 15.8 years. The legal position is that bone age test for determining 19 S/v Mohd. Sultan Asharif the age of the prosecutrix based on the results of an ossification test are also helpful. It cannot, however, be laid down as a rule of law that, in all cases, this test must be performed,(See Kamakhya Prasad Agarwalla v State AIR 1957 Assam 39, 45,1957 Cr LJ 353) as this test leaves much room for speculation and does not give a sure indication as to the age of a girl, when it is in the border region. (See Debaprosad Base v King AIR 1950 Cal 406) The radiological test margin of error in age ascertained by radiological examination is two years on either side. (See Jaya Mala v Home Secretary, Government of J & K AIR 1982 SC 1297, 1982 Cr LJ 1777) Modi in his 'Medical Jurisprudence' stated as follows:
"....In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, and an opinion should be given according to the following table, but it must be remembered that too much reliance would not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of the development. Recent work has shown that the range of error may be up to 3 years." When the doctor in his evidence has given the age of the prosecutrix which is contrary to the opinion of Modi as stated in Medical
20 S/v Mohd. Sultan Asharif Jurisprudence, the benefit of the doubt should go to the accused. (See MC Prasannan v State 1999 Cr LJ 999)"
It cannot, therefore, be taken as a matter of rule that expert (medical) evidence must always be preferred to the evidence of other witnesses of fact if that evidence is otherwise found to be unimpeachable, particularly where the trial court, which has the opportunity of seeing the witnesses of fact, including that of the victim, prefers their evidence to that of the doctor, and the doctor's evidence does not entirely falsify the story of the prosecution.(See Bhagaban Patra v State 31 Cut LT 909; Sherkhan v State 1980 Cr LR 434, 435-36 (MP); Vipin Kumar v State of Haryana (1985) 1 Crimes 105) The opinion of the doctor based upon the oscification test cannot repeal the age of the prosecutrix given in the school admission certificate and consistent oral evidence. (Jitmohan Lohar v State 1997 Cr LJ 2842 (Ori)) Courts have, however, in several cases, acted on the opinion of doctors, arrived at without conducting an ossification test and based on other factors such as growth of the hair, teeth, pubic and axillary hairs, breasts, height, and weight of the girl.(See
21 S/v Mohd. Sultan Asharif Anam Swain v State 1954 Cr LJ 132, AIR 1954 Ori 33; Dogobinda Rath v State 1958 Cr LJ 1211, AIR 1958 Ori 224, 226; Krishnan Chithan v State of Kerala 1961 MLJ (Cr) 785, (1962) 1 Cr LJ 650) Therefore, keeping in view of the above case law based discussion as to margin of error in the bone age of a person and also taking into account of the fact that the prosecutrix PW3 Shama has given her age at the time of examination as 12 years on 6.2.08 and at the time recording MLC Ex.PW1/A she has given her age as 12 years, 9.12.06 which was two years before her statement was recorded in the Sessions Court. How can she be of 12 years of age on 9.12.06 and again 12 years of age on 6.2.08. Also looking at the fact that the parents of the prosecutrix had not even uttered above the actual age of the prosecutrix nor they have produced any certificate from municipality or school as to age of the prosecutrix and also looking at the error of margin in determining the bone age of the prosecutrix the irresistible conclusion is that she was more than 16 years as on the date of commission of offence.
About legal aspect with respect to appreciation of evidence 22 S/v Mohd. Sultan Asharif of prosecutrix, the same can be summarised in the following manner:
(1) That the main evidence in all such cases is that of victim herself. (2) That corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self preservation or when the probabilities factor is found to be out of time. (3) That corroboration may be by facts and circumstances. (4) That the injury on the person of the victim, especially her private parts, had corroborative value.
(5) That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. {See Jogi Dan Vs. State of Rajasthan 2004 CrLJ
23 S/v Mohd. Sultan Asharif 1726 (Raj)} It is hardly possible that any self respecting woman would come forward in a court of justice to make a humiliating statement against her honour, such as is involved in rape on her, unless it is absolutely true. {See Labh Singh Vs. Emperor 24 CrLJ 877, AIR 1923 Lah 291} Therefore, the evidence of the prosecutrix should carry more weight than the evidence of an ordinary witness. {See Bhagwat Prakash Vs. State 1956 CrLJ 4, AIR 1956 All 22}.
Prosecutrix cannot be considered to be an accomplice; her testimony cannot be equated with that of an accomplice. {See Gurcharan Singh Vs. State of Haryana 1973 CrLJ 179, AIR 1972 SC 2661; Rameshwar Vs. State of Rajashthan AIR 1952 SC 54; Sidheswar Ganguly Vs. State of West Bengal AIR 1958 SC 143, 1958 CrLP 273; State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, 1990 CrLJ 889 (SC)}. Similarly, there is no rule of law which may require that there should be corroboration before conviction can be based on the sole testimony of the prosecutrix. {See Gurcharan Singh Vs. State of Haryana, AIR 24 S/v Mohd. Sultan Asharif 1972 SC 2661; Sitaram Vs. State of Maharashtra 1974 CrLJ 82, p 84 ; Rafiq Vs. State (1980) 4 SCC 262, p 265, 1980 SCC 947 (Cr); Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, 1952 CrLJ 547; Satoakalias Satnam Singh Vs. State of Rajasthan 2001 CrLJ 564 (Raj) } The prosecutrix should be treated as an injured witness. { See Satendra Kumar Kushwaha Vs. State of Bihar 2003 CrLJ 392 (Pat)} Corroboration is not the sine qua non for a conviction in a rape case. In the initial setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, as a rule is adding insult to injury. Why should the evidence of the woman who complains of rape/sexual molestation be viewed with doubt, disbelief or suspicion? To do so would justify the charge of male chauvinism in a male dominated society. {See Bharoada Bhoginbai Hirjibha Vs. State of Gujarat AIR 1983 SC 753, 1983 CrLJ 1096 (SC)}. To insist on corroboration except in the rarest of rare case is to equate a woman who is a victim of lust of another, with an accomplice to a crime, and thereby insult womanhood. It would be adding insult to 25 S/v Mohd. Sultan Asharif injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissible society as in some of the Western and European countries. Our standard of decency and morality, in public life is not the same as in those countries. Decency and morality in public life can be promoted and protected only if the courts deal strictly with those who violate societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity. {See State of Maharashtra Vs. Chandra Prakash Kewalchand Jain AIR 1990 SC 658, 1990 CrLJ 889 (SC); State of Himachal Pradesh Vs. Lekh Raj & Anor 2000 CrLJ 44 (SC)} It is open to the court to base its conviction of the offence solely on the evidence of the prosecutrix, if it 26 S/v Mohd. Sultan Asharif is satisfied that the evidence is worthy of credence. {See Motiram Krishnmao Vs. State of Madhya Pradesh 1955 CrLJ 819, AIR 1955 Nag 121; Kishanlal Vs. State of Haryana (1980) 3 SCC 159, AIR 1980 SC 1252; Narayana Dutta Vs. State 1980 CrLJ 264, p 265 (Cal) (DB); Satendra Kumar Singh Kushwaha Vs. State of Bihar 2003 CrLJ 392 (Pat)} .
Keep in mind the above case law the evidence on record of the prosecutrix is to be dealt with. The prosecutrix PW3 Shama in the examination-in-chief has stated that accused had put off her clothes. She was wearing, a salwar and short kameez on the top portion of body. Accused committed rape with her. Accused had administered her some intoxicant due to which she started feeling giddiness, therefore, she could not raise alarm. She has proved her complaint made to police as Ex.PW3/A and her statement recorded before learned Metropolitan Magistrate Ex.PW3/C. She also stated that accused committed rape with her twice or thrice earlier also but due to fear of her parents she did not tell them anything. She also stated that accused called person named Bullet who had shown her a knife and 27 S/v Mohd. Sultan Asharif has threatened her that if she complained to anyone or police he would burn police post.
The mother the prosecutrix PW4 Amina has stated in the examination-in-chief that she peeped into the jhuggi of accused from the margin in the door. She saw that accused had put off the clothes of her daughter Shama. She pushed the door of jhuggi which was bolted from outside. She also stated that she saw the accused was committing rape upon her daughter. Accused was wearing a baniyan and lungi at that time. She caught hold of accused and took out her daughter from the jhuggi of accused Sultan. Therefore, the statement of prosecutrix PW3 Shama is corroborated by her mother Amina with regard to commission of rape by accused upon the prosecutrix. Although PW5 Jagur Ahmad the father of the prosecutrix is not eyewitness to the incident of rape but his statement in the court that his wife informed that his wife had caught accused when he was committing rape with his daughter Shama being based on the information received by her from his wife soon after the incident is also admissible in evidence by virtue of sections 6 and 7 of the Indian 28 S/v Mohd. Sultan Asharif Evidence Act. The FSL report ExPW 9/C show that blood was detected on the gauze clothe piece and human semen was detected from the underwear. On analysis of bloodstains and semen stains as per report ExPW 9/D both were found to be of 'A' group leading to the inference that both pertain to the same person who may be accused.
In the light of convincing evidence of the prosecutrix, her mother and father and the FSL report, referred before, and keep in view the fact that the statement of the prosecutrix is to be read as a whole her statement in the cross-examination that it was correct that when police came to her house and she lodged police complaint nothing had happened with her on that day or one day earlier does not mean that she has stated that accused has not committed rape on her. Reading the statement as a whole of the prosecutrix it appears that she wanted to say that after the police came to her house and she has lodged a police complaint nothing has happened with her on that day or one day earlier as the police had come to her house after commission of the rape by the accused on her. This reason is strengthened by the subsequent denial of suggestion by the 29 S/v Mohd. Sultan Asharif prosecutrix that accused Sultan never committed rape with her or that had been falsely implicated in this case.
The argument on behalf of the accused that in the MLC Ex.PW1/A the doctor has stated that the rape was committed eight days back is not factually correct. In the history given by the doctor it is stated that there were repeated sexual assault by one neighbour (Sultan) for 2-3 times over some period and last being on 8/12/2006. It is also stated that the accused used to threaten the girl. Although there was no injury mark and hymen was also absent but this does not necessarily give inference about innocence of the accused. The fact that in the MLC it is not mentioned that some intoxicant was also given to the prosecutrix due to which she could not raise alarm is also not sufficient to disbelieve the statement on oath of the prosecutrix that she was given some white-colour intoxicant after smell of which she fell giddiness and did not raise an alarm. The suggestion given to the prosecutrix in the cross-examination that her mother had taken a loan of the 3000/- from accused prior to the date of incident or the argument that due to demand of Rs.3,000/- by the accused from the 30 S/v Mohd. Sultan Asharif father of the prosecutrix he was falsely implicated in this case is not worth believing and has no substance as the mother of the prosecutrix PW4 Amina has specifically denied in the cross- examination that she had taken a loan of Rs.3,000/- from accused and when he demanded back the money she falsely implicated the accused in the present case. The father of the prosecutrix PW5 has also denied in the cross-examination that his wife owed a sum of Rs.3,000/- from accused and when he demanded back his money they used to quarrel with the accused. It is also important to note that in the statement in the section 313 CrPC the accused though has stated that he is innocent and has been falsely implicated in this case and witnesses have deposed falsely and are interested witnesses and due to his previous enmity with the father of the prosecutrix he is falsely implicated in this case but nowhere in his statement the accused has stated that a loan of Rs.3,000/- was given by him to the mother of the prosecutrix and on demand of the same he was falsely implicated in this case.
31 S/v Mohd. Sultan Asharif RESULT OF THE CASE In view of the above discussion the prosecution has been able to prove its case against the accused for the charge under section 376 IPC beyond reasonable doubt. The accused is convicted under section 376 IPC .The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open
court on 02/01/2010 ( S K Sarvaria )
Additional Sessions Judge-01/South
Patiala House Court
New Delhi
32 S/v Mohd. Sultan Asharif
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01-SOUTH
PATIALA HOUSE COURTS-NEW DELHI
Sessions Case No : 123/08
State Vs Mohd. Sultan Asharif
S/o Sh. Mohd. Salim
R/o Village Naxal Badi
District Darjeeling
West Bengal
FIR No. : 655/06
Police Station : Sri Niwas Puri
Under Section : 376 IPC
Date of Institution : 30/10/2008
Date of judgment : 02/01/2010
Date of order : 15/01/2010
ORDER ON SENTENCE
By my judgment dated 02/01/2010, the accused was convicted for the offences under Section 376 IPC.
Learned Additional Public Prosecutor has argued for deterrent punishment against accused, keeping in view the serious nature of the crime committed by him.
Learned Counsel for the accused has argued that the accused is the only son of his parents and is in custody since last 3 years so he 33 S/v Mohd. Sultan Asharif should be sentenced to the period of imprisonment already undergone by him during the investigation and trial of the case.
I have heard learned Additional Public Prosecutor and learned Counsel for the accused and have gone through the record of the case and the relevant provisions of law carefully.
In the charge framed against the accused the prosecutrix was shown to be less then 12 years of age but as per finding in the judgment dated 02/01/2010 passed by me, the prosecutrix was found to be more than 16 years of age as on the date of the commission of offence. Therefore, the sub section 2 (f) of Section 376 IPC is not attracted and the offence proved against the accused falls under Section 376 (1) IPC and accused is to be sentenced by taking recourse to punishment prescribed under sub Section (1) of Section 376 IPC.
The punishment prescribed under sub Section (1) of Section 376 IPC is imprisonment of either description for a term which shall not be less then 7 years but which may be for life or for term which may extend to 10 years and the convict is also liable to pay fine. Although, as per proviso of sub Section (1) of Section 376 IPC for adequate and special reason to be recorded in which judgment, a lesser imprisonment than 7 years can be imposed, but the reason that the accused is the only son of his parents or 34 S/v Mohd. Sultan Asharif is in custody for the last 3 years, in my view, can neither be said to be adequate nor special reasons for imposition of lesser than minimum prescribed imprisonment under sub Section (1) of Section 376 IPC.
In view of the above, I sentence the convict under Section 376 (1) IPC to undergo rigorous imprisonment for 7 years. In addition, he is directed to pay fine in the sum of Rs.2,000/-. In default of payment, the convict shall undergo simple imprisonment for 6 years.
The period of detention already undergone by the convict during investigation and trial of this case shall be set off against the term of imprisonment imposed against him by this order, as provided under Section 428 Cr.P.C. The judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in).
Copy of judgment and copy of order on sentence be supplied to the accused free of cost. File be consigned to record room.
Announced in the open
court on 15/01/2010 ( S K Sarvaria )
Additional Sessions Judge-01/South
Patiala House Court
New Delhi