Delhi District Court
State vs Kasif on 14 February, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 19/13
UID No. : 02401R0588232011
State versus Kasif
S/o Mohd. Abid
R/o 3955, Gali Khankan,
Jama Masjid, Delhi
Case arising out of:
FIR No. : 187/10
Police Station : Civil Lines
Under Section : 365/376(2)(g)/34 IPC
Judgment reserved on : 07.02.2013
Judgment pronounced on : 14.02.2013
JUDGMENT
Case of the Prosecution :
In brief, the case of the prosecution as disclosed from the chargesheet is that on 06.10.10 sister of the Prosecutrix namely 'Sh' made a report at PS Civil Lines vide DD No.34 regarding missing of her sister prosecutrix 'K' (names withheld to protect the identity of prosecutrix). She also alleged that 'K' had gone to nearby market at about 7 AM and not returned. On the next day i.e. 07.10.10 Shajida got recorded her complaint Ex. PW14/A at PS Civil Lines to the effect that her sister who had left the house at about 7 AM on 06.10.10 had not returned. She also alleged that one day prior to missing of her sister, her sister was seen talking to Nepali boy who was residing in the neighbourhood and said boy is also missing. On the said complaint case under Section 365 IPC was registered.
The girl was recovered on 07.10.10 and her statement under Section 161 CrPC was recorded wherein she disclosed that four boys committed rape with her and that they were addressing each other by the name of Mainu, Kasif, Mazhar and Tohid. She also stated that she can identify them, if shown to her. Prosecutrix was got medically examined and her custody was handed over to her brother. During the course of investigation, prosecutrix pointed out to the place of incident i.e. House No.2699, Kucha Pandit, Hauz Qazi from where one of the coaccused Tohid (juvenile) was apprehended. As per the case of the prosecution during the course of enquiries, the said accused disclosed the name of other three coaccused.
It is further the case of the prosecution that coaccused Tohid, being Juvenile was produce before concerned JJB. The statement of the prosecutrix was got recorded under Section 164 CrPC. It is further the case of the prosecution that during the course of investigation, accused Kasif was apprehended on 07.5.11 on the basis of secret information. He pointed out to the place of incident. His disclosure statement was also recorded. The other accused could not be arrested and were declared Proclaimed Offenders. Chargesheet was filed against accused Kasif after completion of investigation. Separate Charge sheet has since been filed against accused Mazhar, whose trial was separated vide order dated 06.02.2013.
Charges:
Pursuant to committal of this case and on the basis of material on record, accused Kasif was charged for offence punishable under Section 366/376 (2) (g)/34 IPC. He pleaded not guilty and claimed trial when the charges were read over and explained to him.
Prosecution Evidence:
In order to bring home the guilt of the accused Kasif, prosecution examined 23 witnesses. The star witness of the Prosecution i.e. the Prosecutrix 'K' was brought into the witness as PW1. She deposed that in the year 2010 she was residing with her sister Sajida at Khaiber Khas. She deposed that one day in October, when all the family members were sleeping, she left in the morning at about 7 AM as she was afraid for having urinated in the bed. She further deposed that she boarded the bus for Seelampur and at Seelampur Bus Stop, one gentleman met her and left her at Jama Masjid. She further stated that at Jama Masjid she lost the way as she wanted to go to her brother's home and while she was inquiring about the way, four men in Maruti came and stated that they would leave her at her brother's place. She further deposed that she sat in a Maruti car and accused Kasif who is present in court, induced her to get married to him, to which she refused. Then accused took her to a house and on the way they purchased food and offered the same to her. She further deposed that she refused to take the food but they gave her one capsule due to which she felt giddiness. She further stated that in the house all the accused forcibly removed her clothes and raped her. She further deposed that accused Kasif had established sexual relations with her twice. She further deposed that after raping her, all the four accused left her in the gali and she on her own came to her brother's house and narrated the incident to them. Her statement was recorded by the Magistrate which is Ex PW1/A. The sister of the prosecutrix i.e. complainant was brought into the witness box as PW14. She deposed that on 06.10.10, her sister 'K' went to Khaiber Pass market but did not return back. She lodged report Ex. PW3/A and on the next day, case was registered on her statement Ex. PW14/A. She also deposed that on 07.10.10 her sister was traced and her brother brought her to their house. They informed the local police about the same and her sister was got medically examined.
The brother of the prosecutrix namely 'S' was brought into the witness box as PW16. He also deposed that he was informed about missing of his sister 'K' by his elder sister 'Sh' on 06.10.10. On the next morning, someone telephonically informed that her sister i.e. prosecutrix 'K' is sitting at the main road, Kucha Pandit, Hauz Qazi and found his sister sitting there and he brought her to house of 'Sh' and she informed her sister that four boys had taken her in a Maruti car and raped her.
Besides the aforesaid witnesses, Prosecution also examined PW4 Dr. Sangita Kumari who deposed that she medically examined the prosecutrix on 07.10.10 and found abrasions and scratch mark over right shoulder and patient was referred for detailed gynae examination. The MLC of prosecutrix is Ex. PW4/A. PW21 Dr. Ritu Khiwal deposed in place of Dr. Shifali who had conducted gynae examination of the prosecutrix. She identified handwriting and signatures of the examining doctor on the MLC of prosecutrix 'K' Ex. PW21/A. The DD writer at PP Majnu Ka Tila, PS Civil Lines who had recorded DD No. 34 on 06.10.10 was examined as PW3. DD entry is Ex. PW3/A. PW2 W/HC Gurvinder Kaur proved recording of FIR in the present case on 07.10.10.
PW7 Ct. Sudesh Kumar deposed that on 10.10.10, he along with W. SI Dhoratiya, SI Rakesh, SI Bhupender and the prosecutrix went to house No. 2699, Gali Jamunwali, Kucha Pandit where they were led by prosecutrix 'K'. He also deposed that prosecutrix got arrested accused Tohid (since juvenile) from that house. Pointing out memo to this effect is Ex. PW7/A. The wearing clothes of accused Tohid were seized vide seizure memo Ex. PW7/B and accused Tohid also got recovered Maruti car bearing registration No. DL4CB 7001 used by accused persons for carrying the prosecutrix which was seized vide seizure memo Ex. PW7/C. PW8 SI Bhupender Kumar also deposed regarding identification of place of occurrence ie. H. No. 2699, Gali Neem Wali, Mohalla Nihariyan at instance of prosecutrix on 10.10.10 vide memo Ex. PW7/A. He also deposed that prosecutrix identified accused Tohid (since juvenile) as one of the persons who had committed rape with her. He produced his clothes worn by him at the time of commission of offence which were seized vide memo Ex. PW7/B. PW8 further deposed that Crime Team inspected the place of occurrence. The clothes, bed sheet etc. as mentioned in memo Ex. PW8/A were lifted from the room and sealed in a pulanda with the seal of 'BKS' and seized vide memo Ex. PW8/A and the scene of crime was got photographed. He also deposed that IO prepared the site plan and recorded the statement of the witnesses.
PW11 is Ct. Inderjeet who took photographs of the house bearing No. 2699, Gali Jamunwali, PS Hauz Qazi on 10.10.10. The said photographs are Ex. PW11/B to PW11/D and negatives are Ex. PW11/A (Colly).
The factum of recording of statement of prosecutrix under Section 164 Cr.P.C. on 11.10.10 was proved by PW13 Ms Charu Aggarwal, Ld. MM/Delhi.
The MLC of accused Kasif and the opinion with regard to potency of accused was proved by PW18 Dr. S. Lal. The MLC of accused Kasif is Ex. PW18/A. PW19 Insp. Rakesh Kumar deposed that on 06.10.10 one DD entry No. 34 Ex. PW3/A was lodged regarding missing of prosecutrix 'K' by her sister 'Sh'. He got flashed the wireless message and also informed the police control room. He deposed that on next day, he recorded statement of sister of prosecutrix 'Sh' Ex. PW14/A and prepared rukka Ex. PW2/B and handed over the same to Ct. Amit for registration of FIR. PW19 further deposed that on 10.10.10 he joined investigation with SI Dhoratiya, SI Bhupender Singh, Ct. Sudesh, prosecutrix and her sister Shajida and prosecutrix led them to H. No. 2699, Ground Floor, Mohalla Narriaan, Gali Farman Wali and identified the room where she was raped by four boys. PW8 further deposed that room was opened by one boy and prosecutrix identified him who disclosed his name as Tohid. Accused Tohid (since juvenile) also got effected recovery of the clothes which were worn by him at the time of commission of offence. He also got effected recovery of car bearing registration No. DL4CB 7001 from near the above said flat which was seized vide memo Ex. PW7/C. PW20 deposed regarding taking the sealed pullandas from MHC(M) [PW12 HC Ram Kumar] for depositing the same in FSL, Rohini.
PW22 Insp. Veena Sharma that on 07.10.10 after registration of FIR, investigation of the case was marked to her. She deposed that she made enquiries from prosecutrix 'K' and her sister 'Sh' and recorded supplementary statement of complainant 'Sh' and statement of prosecutrix under Section 161 CrPC and prosecutrix was sent for her medical examination along with W. HC Satish and her sister. She further deposed that after medical examination of the prosecutrix, she was brought to PS and MLC of prosecutrix and exhibits duly sealed with the seal of hospital were handed over to her by W. HC. Satish in presence of complainant Shajida which were taken into police possession vide seizure memo already Ex. PW14/B. She further stated that thereafter custody of prosecutrix was handed over to her brother Sadik vide memo Ex. PW22/A and aforesaid exhibits were deposited in malkhana and thereafter investigation of case was marked to some other IO.
PW23 W.SI Dhoratiya deposed that on 08.10.10 investigation of this case was marked to her and on 10.10.10 prosecutrix pointed out the place of incident where she was raped. She also prepared pointing out memo which is Ex. PW7/A and also prepared site plan of place of incident Ex. PW23/A at the instance of prosecutrix. She further deposed that house belongs to coaccused Tohid (since juvenile) who was apprehended at the instance of prosecutrix. She deposed that she called the Crime Team at the spot and in their presence two bed sheets, one handkerchief, one small handkerchief of pink colour, one white colour vest, white Tshirt, a black kurta shirt, a black pyjama, two black jeans, two denim jeans and two black pants were taken into police possession from the said room where rape was committed, vide seizure memo Ex. PW8/A. The clothes of accused Tohid worn on the date of incident were also seized vide memo Ex. PW7/B i.e. one Tshirt of white colour and one denim colour jean. She also deposed that the inspection report prepared by Crime Team was also taken which is Ex. PW15/A and accused Tohid was medically examined through SI Rajesh. She deposed that aforesaid exhibits were deposited in malkhana.
PW23 further deposed that on 11.10.10 prosecutrix was produced before concerned court and she moved an application for recording of her statement under Section 164 CrPC and got recorded her statement which is Ex. PW1/A and on the same day, prosecutrix also identified one Maruti car bearing No. DL4CB 7001 in the PS which was got recovered by accused Tohid which was the same car in which she was taken to H. No. 2699, Kucha Pandit, Hauz Qazi.
PW23 W.SI Dhoratiya further deposed that on 06.5.11 she received secret information that other accused namely Kasif who was wanted in this case used to sleep in night at Subhash Park near Jama Masjid and on receipt of this information, raiding team was constituted consisted of HC Deep Chand, HC Subhash and PW23. She deposed that in the morning of 07.5.11 at about 4 AM, accused Kasif was apprehended while he was sleeping on a footpath at Subhash Park and arrested vide arrest memo Ex. PW6/B. Accused was interrogated and he made disclosure statement about his involvement in the case and he also pointed out H. No. 2699, Kucha Pandit, Hauz Qazi and pointing out memo Ex. PW6/B was prepared. She further deposed that accused was taken to Aruna Asaf Ali Hospital for his medical examination where he was medically examined vide MLC Ex. PW5/A. Thereafter, he was produced in court and sent to J/c. She further deposed that after medical examination of accused Kasif, exhibits duly sealed with the hospital seal were handed over to Duty Ct. at the hospital who had given those exhibits to her which were seized vide memo Ex. PW23/B. PW23 further stated that on 10.5.11, she moved an application for TIP of accused Kasif but he refused to join TIP proceedings vide proceedings Ex. PW23/C. PW23 W. SI Dhoratiya further deposed on 16.5.11 accused was taken to Aruna Asaf Ali for his potency test where he was examined by doctor who gave his opinion Ex. PW18/A and recorded the statement of witnesses who had joined investigation with her. She further deposed that on completion of investigation, chargesheet was filed before court and subsequently FSL report and report of biology division were obtained and filed before the court which is Ex. PW23/D and PW23/E. PW10 Sh.Viblav Dabas, Ld. MM/Delhi deposed on 10.5.11 one application Ex. PW10/A was marked to him by Sh. Sanjay Bansal, Ld. ACMM/Delhi for conducting TIP of the accused. However, accused refused to participate in the TIP proceedings. He recorded statement of accused to this effect Ex. PW10/C and appended his certificate regarding the correctness of proceedings is Ex. PW10/D. Plea of Accused :
The incriminating material on record was put to the accused vide statement recorded under Section 313 CrPC on 31.1.13. The accused while admitting that he was arrested on 07.5.11, denied the allegations against him and claimed false implication on account of dispute between him and brother of the prosecutrix with regard to his shop. The accused did not lead any evidence in his Defence, despite opportunity granted to him in this regard.
Arguments :
I have heard detailed arguments advanced by Ld. APP and Ld. Defence Counsel and considered the evidence, both oral and documentary, on record.
On the basis of evidence led on record, it has been argued by Ld. APP that allegations against accused have been proved beyond reasonable doubt. He relied on the testimony of PW1 and stated that she clearly identified accused Kasif as one of the persons who had kidnapped her on the morning of 06.10.10 and had committed rape upon her along with other accused persons. He further argued that injuries found upon the person of prosecutrix and her blood stained clothes as per MLC also corroborates testimony of prosecutrix. He also relied upon the statement of prosecutrix recorded under Section 164 CrPC and also stated that prosecutrix consistently deposed before the court that she was raped by the accused along with other coaccused. It was further argued that the fact that accused refused to participate in the TIP proceedings as per deposition of PW10 is also lead to drawing of adverse inference against accused. It was thus contended that keeping in view the evidence on record, accused be convicted for the alleged offences.
On the other hand, it was argued by the learned defence counsel that the case of the Prosecution is full of inconsistencies. The testimony of the Prosecutrix is not worthy of reliance and the accused cannot be convicted on the basis of the evidence led on record by the Prosecution.
During the course of arguments learned defence counsel pointed out that the statement of the Prosecutrix recorded under Section 161 Cr.PC on 07.10.2010 reveals that initially the case of the Prosecution, as per the said statement, was that the Prosecutrix was taken by four boys in one Maruti Car to Hauz Qazi after giving her false promise of marriage.
In her statement recorded under Section 164 Cr.PC, the Prosecutrix however, alleged that the four boys pulled her inside the car. Yet again, when the Prosecutrix stepped into the witness box she again changed her version and deposed that when she was inquiring about the way to her brother's house, four men in Maruti came and stated that they would leave her at her brother's place. Learned defence counsel thus pointed out that the stand of the Prosecutrix in all her three statements is at variance with each other and the case of the Prosecution is not believable in view thereof.
It was further argued that there is also no consistency in the case of the Prosecution with regard to the time of alleged kidnapping of the Prosecutrix. My attention was drawn to the testimony of the Prosecutrix dated 31.08.2012, wherein she deposed that it was 2 PM when the accused offered her lift to leave her at her brother's home. However, as per the crossexamination of IO W/SI Dhoratiya, it was revealed during the inquiries that the prosecutrix left her house in the morning of 06.10.10 and she was kidnapped in the night at about 10 PM on the same day.
My attention was further drawn to the photocopy of the version of juvenile Tohid annexed with the charge sheet, as per which also the Prosecutrix was allegedly kidnapped on 06.10.2010 at about 10 PM.
It was further contended that although the Prosecutrix alleged that she was administered some intoxicating substance by the accused when she sat in the car, admittedly no investigation was conducted with regard to the administering of such intoxicating substance. Reference in this regard was made to the crossexamination of PW23 W/SI Dhoratiya dated 29.01.2013. Further, as per the MLC of the Prosecutrix, there is no observation whatsoever, of any intoxication nor any such statement is shown to have been made by the Prosecutrix to the examining doctor when she was medically examined on 07.10.2010.
As per ld. defence counsel, the claim of the Investigation Agency that the Prosecutrix led the police to H.No.2699, Kucha Pandit, Hauz Qazi, Delhi, where she was allegedly raped also does not seem believable. It was contended that as per the statement of the Prosecutrix recorded under Section 164 Cr.PC, the Prosecutrix became unconscious after she was given some intoxicating substance by the accused and that when she regained consciousness, she found herself in a room. In her examinationinchief also the Prosecutrix failed to state the address of the alleged place of incident. Rather, in her crossexamination she deposed that "I was not knowing the address of place of occurrence but I was taken to that place by the police and accused Kasif also accompanied us."
It was argued in these circumstances the case of the Prosecution that the place of occurrence was pointed out by the Prosecutrix is apparently false.
It was further contended that the Prosecution has not led any evidence to prove the exact place and time of the alleged kidnapping of the Prosecutrix. It was further contended that as per the version of the Prosecutrix she was kidnapped from the area of Jama Masjid, which undoubtedly is a thickly populated area, despite which no witness has been produced by the Prosecution to support the version of the Prosecutrix regarding her alleged kidnapping.
Learned defence counsel pointed out that though the accused refused to participate in the TIP proceedings, however, he stated that the reasons for his refusal is that his face has been shown to the witness of the Prosecution at PS. This fact has been corroborated in the cross examination of the Prosecutrix wherein she had deposed regarding having seen and identified the accused when she was taken to the PS. Various judgments were also relied upon by ld. defence counsel in support of his arguments.
Analysis & Findings:
I have gone through the evidence on record and considered the judgments relied upon by learned defence counsel during the course of arguments. I have also considered the detailed submissions made before me by the Prosecution as well as the defence.
The Hon'ble Apex Court in its landmark judgment titled as Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753(1), while dealing with case under Section 376 IPC and relying upon the earlier decision of AIR 1952 SC 54, addressed the issue with regard to need for insisting on corroboration to the testimony of the Prosecutrix in sexual offences. It was observed as under:
"Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with the lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society."
The testimony of the Prosecutrix must now be analyzed keeping in view the aforesaid legal proposition laid down by the Hon'ble Apex Court.
The Prosecutrix who stepped into the witness box as PW1 deposed before the court that she lost her way at Jama Masjid as she wanted to go to her brother's home and when she was inquiring about the way, four men in Maruti came and stated that they would leave her at her brother's place. She identified the accused Kasif as one of those four men. The arguments of the defence is that this version of the Prosecutrix is at variance with her earlier versions i.e., statements under Section 164 Cr.PC and under Section 161 Cr.PC. However, a careful reading of the said statements would reveal that notwithstanding the said variations, the stand of the Prosecutrix that she was kidnapped by four persons, out of which accused Kasif was one, still remains unimpeached.
In the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat (Supra), the Hon'ble Supreme Court observed as under:
"Overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
The basic version of the Prosecutrix that she was kidnapped by four persons including the accused herein has thus remained unshaken and the variance with regard to the manner in which she was kidnapped, in my opinion, is not so material so as to be fatal to the case of the Prosecution.
The judgments viz., Radhu vs. State of MP, (2008) 2 SCC (Crl.) 207 and Naravan @ Naran vs. State of Rajasthan, 2007 (2) JCC 1202 relied upon by learned defence counsel in support of his arguments, hence, in my opinion, have no application to the facts of the present case.
I also find myself unable to agree with the submission of learned defence counsel that the refusal of the accused to participate in TIP proceedings cannot be viewed adversely against him as the said refusal was on account of the fact that the accused had been shown to the witness. The statement of the Prosecutrix in her crossexamination that she had identified the accused when she was taken to the PS, cannot be said to imply that the accused had been shown to her in the PS. Rather, upon a complete and careful reading of the crossexamination of the Prosecutrix would reveal that she deposed before the court that "I was not knowing the accused prior to this incident. I had identified the accused when he ws taken to PS. I had properly seen the accused as he offered me to marry and thereafter committed rape." Thus, the Prosecutrix clearly identified the accused as the person who had committed rape upon her. Moreover, the fact that she identified him before the police is also in consonance with the case of the prosecution, that on 07.05.2011, the Prosecutrix identified the accused after he was arrested.
In other words, it is nowhere the case of the Prosecution that the accused Kasif was arrested pursuant to the identification of the Prosecutrix. Rather, accused Kasif is stated to have been arrested on the basis of receipt of a secret information and was identified by the Prosecutrix pursuant to his arrest. Before the court also, the Prosecutrix correctly identified the accused Kasif and there is no reason whatsoever to disbelieve her on this count.
Moreover, the accused has failed to state any cogent reason as to why the Prosecutrix would falsely implicate him in this case. No evidence whatsoever has been led in support of contention made in response to question No.17 in the statement under Section 313 Cr.PC that the Prosecutrix falsely deposed against the accused on account of dispute between the accused and the brother of the Prosecutrix.
Further, it is also noteworthy that as per the MLC of the Prosecutrix Ex.PW4/A, the examining doctor found abrasions and scratch marks over the right shoulder of the Prosecutrix. Also, as per the MLC Ex.PW4/A, at the time of medical examination of the Prosecutrix, her lower clothes were found blood stained. PW4 Dr.Sangita Kumari, who had medically examined the Prosecutrix on 07.10.2010 was not cross examined and this evidence is thus unrebutted. Further, as per report of gynecological examination of Prosecutrix Ex.PW21/A, her hymen was found ruptured.
At this juncture, it may also be relevant to peruse the FSL report Ex.PW23/D. As per this report, blood was detected on exhibits 1a, 1b & 2 besides others, exhibit 1a, 1b & 2 being shirt, pyjama and shameez of the Prosecutrix. Further, as per report Ex.PW23/D, human semen was detected on exhibits Ex.3j(i) i.e. one micro slide and Ex.3j(ii) i.e., vaginal swab of the Prosecutrix and Ex.7a i.e., one bed sheet, which was recovered from the place of occurrence i.e. H.No.2699, Kucha Pandit, Hauz Qazi, Delhi. The FSL report being admissible per se under Section 293 Cr.PC was not questioned by the defence.
During the course of arguments, it was submitted by learned defence counsel that since there was no findings as to whom the said blood stains or semen stain on bed sheet pertains, no adverse inference can be drawn against the accused Kasif on the basis of reports of the FSL.
I am, however, unable to agree with the aforesaid submissions of learned defence counsel. As discussed above, the findings of the examining doctor that the lower clothes of the Prosecutrix were found stained with blood were also fortified from the reports of the FSL Ex.PW23/D & Ex.PW23/E. Further, the bed sheets seized from the place of occurrence i.e. H.No.2699, Kucha Pandit, Hauz Qazi, Delhi, house of accused Tohid (juvenile) tested positive for semen stains. Since in the present case accused Kasif has been charged for the offence punishable under Section 376(2)G IPC, the argument of the defence that there is no evidence to prove that semen found in the vaginal swab of the Prosecutrix and bed sheet recovered from the place of occurrence pertain to accused Kasif, is wholly irrelevant. Explanation1 as appended to Section 376(2(g) IPC provides that 'Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection'. In other words, Section 376 (2)(g) IPC read with Explanation 1 implies that the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In this regard, reference may be made to judgment titled Bhupinder Sharma vs. State of H.P. reported as AIR 2003 SC 4684.
Hence, I find on going through the record that although as per the settled law, the testimony of the Prosecutrix does not require corroboration from any other source it is found credible, yet in the present case there are several circumstances which duly corroborate the testimony of the Prosecutrix.
It is borne out from the record from record that the Prosecutrix was raped by the accused Kasif and other coaccused at H.No.2699, Kucha Pandit, Hauz Qazi, Delhi. The argument that the Prosecutrix could not have led the police to the place of incident and the variance in the colour of the car is not material and cannot be said to be fatal to the case of the Prosecution.
At this juncture, it may be relevant to again revert to the observations of the Hon'ble Apex Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat (Supra). While discussing the minor discrepancies which may arise in the testimony of the Prosecutrix, the Hon'ble Supreme Court observed as under:
"Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
1. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed at the mental screen.
2. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
4. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
5. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such manners. Again, it depends on the time sense of individuals which varies from person to person.
6. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
I also deem it appropriate at this juncture to rely upon the observations of Hon'ble Apex Court in the case titled State of Rajasthan vs. N.K. (the accused), (2000) 5 SCC 30 while dealing with the cases of sexual assault. The same are as under: "If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women."
Having regard to the aforesaid observations and upon going through the testimony of the Prosecutrix which is duly corroborated by her MLC and having regard to the report of FSL in reports Ex.PW23/D & Ex.PW23/E, I am convinced that the allegations of offence punishable under Sections 366/34 & 376(2)(g) IPC stand proved beyond reasonable doubt against the accused Kasif s/o Mohd.Abid, who is accordingly convicted for the aforesaid offences. Let him be heard on the point of sentence.
Before parting, I also deem it necessary to point out that as per the FSL report Ex.PW23/D, prepared by the Assistant Director (Biology), FSL, Rohini, human semen was detected on Exhibits 3j(i) & 3j(ii) besides other exhibits. However, the contents of Parcel No.3 were not mentioned in "DESCRIPTION OF ARTICLES CONTAINED IN PARCEL" in Report No.FSL2010/B5586 (Ex.PW23/D), whereas in the 'RESULT OF ANALYSIS' it has been reported at Srl. No.3 that human semen was detected on Exhibit 3j(i) and Exhibit 3j(ii), besides other Exhibits. Due to this reason the court had to reopen the Exhibits to ascertain the identity of Exhibits 3j(i) & 3j(ii).
This kind of lapse on the part of a premier government institution like FSL, particularly in cases of such serious nature is totally uncalled for. Director, FSL, Rohini shall look into the matter and ensure that such lapses are not repeated in future. Let copy of this judgment along with a copy of the FSL report be sent to the Director, FSL, Rohini for necessary compliance.
Announced in the Open Court
on 14th day of February, 2013 (Kaveri Baweja)
Addl. Sessions JudgeSpl. FTC02 (Central)
Tis Hazari Courts: Delhi.
State Vs. Kasif
FIR No. 187/10
PS : Civil Lines
SC No. : 19/13
14.02.2013
Present : Sh. Rakesh Mehta Learned APP for State.
Accused produced from JC.
Sh.Altaf Alvi - ld. Counsel for the accused.
Vide judgment announced of even date on separate sheets, accused Kasif s/o Mohd.Abid is convicted for the offence punishable under Sections 366/34 & 376(2)(g) IPC.
Put up for arguments on the point of sentence on 16.02.2013.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 19/13
UID No. : 02401R0588232011
State versus Kasif
S/o Mohd. Abid
R/o 3955, Gali Khankan
Jama Masjid, Delhi
Case arising out of:
FIR No. : 187/10
Police Station : Civil Lines
Under Section : 365/376(2)(g)/34 IPC
Judgment pronounced on : 14.02.2013
Vide judgment dated 14.02.2013, the above convict has been convicted for offence punishable under Sections 366/34 & 376(2)(g) IPC.
I have heard the arguments on the point of sentence. It is submitted by the learned defence counsel that the convict is 22 years of age and has old aged mother, minor siblings and is the sole bread earner of the family. Reliance was also placed upon judgment titled Pramod Mahto & Ors. vs. State of Bihar, 1990 SCC (Crl.) 206 and it is prayed that lessor sentence may be awarded. Upon going through the same, I find that the said judgment is distinguishable on facts from the present case.
Having considered the entire facts and circumstances of the case, I find that this is not a case where any leniency should be shown to the convict. Thus, having regard to the offences proved to have been committed by him, the convict Kasif S/o Mohd. Abid is hereby sentenced as under:
1. For the offence under Section 366/34 IPC the above named convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs.5000/ in default whereof, he shall undergo for Simple Imprisonment for 02 years.
(ii) For the offence under Section 376(2)(g) IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs.7000/, in default whereof, he shall undergo for Simple Imprisonment for 02 years.
Both the sentences shall run concurrently. The convict shall be entitled to benefit of Section 428 Cr.PC.
Copy of judgment and order on sentence be provided to convict free of cost. File be consigned to Record Room.
Announced in the Open Court
on 16th day of February, 2013 (Kaveri Baweja)
Addl. Sessions JudgeSpl. FTC02 (Central)
Tis Hazari Courts: Delhi.
State Vs. Kasif
FIR No. 187/10
PS : Civil Lines
SC No. : 19/13
16.02.2013
Present : Sh. Rakesh Mehta Learned APP for State.
Accused produced from JC.
Sh.Altaf Alvi - ld. Counsel for the accused.
Vide judgment announced of even date on separate sheets, accused Kasif s/o Mohd.Abid is sentenced as under:
(i) For the offence under Section 366/34 IPC the above named convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs.5000/ in default whereof, he shall undergo for Simple Imprisonment for 02 years.
(ii) For the offence under Section 376(2)(g) IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs.7000/, in default whereof, he shall undergo for Simple Imprisonment for 02 years.
Both the sentences shall run concurrently. The convict shall be entitled to benefit of Section 428 Cr.PC.
Copy of judgment and order on sentence be provided to convict free of cost. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.