Delhi District Court
State vs Aftab Alam & Anr. -:: Page 1 Of 12 ::- on 30 July, 2015
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 67/2015.
Unique Case ID Number : 02401R0558592014.
State
versus
1. Mr. Aftab Alam,
Son of late Mr. Abdul Manenan,
Resident of W-2,152, Sudershan Park, Moti Nagar, New Delhi.
2. Mr. Mehtab Alam,
Son of late Mr. Abdul Manenan,
Resident of W-2,152, Sudershan Park, Moti Nagar, New Delhi.
First Information Report Number : 878/14
Police Station: Moti Nagar
Under sections 323, 324, 325, 376, 498A, 506 and 34 of the Indian Penal
Code.
Date of filing of the charge sheet before : 10.11.2014
the Court of the Metropolitan Magistrate
Date of receipt of file after committal :01.07.2015.
Arguments concluded on : 30.07.2015.
Date of judgment : 30.07.2015.
Appearances: Ms. Promila Singh, Additional Public Prosecutor for the
State.
Both accused persons have been produced from judicial
custody.
Mr.Rajeev Mittal, Amicus Curiae for both accused persons.
Prosecutrix is also present.
Translators/Interpreters Mr. Dinesh Doshi and Ms. Ranjan
Doshi are present.
Prosecutrix is present.
IOs Insp. Kamlesh and SI Annu are present.
Sessions Case Number : 67 of 2015
Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar
Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 1 of 12 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."...........Kurt Cobain ************************************************************
1. Mr. Aftab Alam and Mr. Mehtab Alam, both the accused persons, have been charge sheeted by Police Station Tilak Nagar, Delhi for the offences under sections 323, 324, 325, 376, 498A, 506 and 34 of the Indian Penal Code (hereinafter referred to as the IPC). The allegations against accused Aftab Alam are that during the period 2014-15, he treated the complainant/prosecutrix (name mentioned in the file and withheld to protect her identity), who is his wife, with cruelty; beaten her; caused injury to her with blade on her face; extended threats to her not to disclose the series of violence committed against her to anybody; and he used criminal force against the prosecutrix i.e cut her hair with a blade. The allegations against the accused Mehtab Alam are that on unknown date and time at house of the prosecutrix (address mentioned in the file and withheld to protect the identity of the prosecutrix) he committed rape upon prosecutrix.
2.This First Information Report (hereinafter referred to as the FIR) was initially registered at Police Station Silvassa, Dra Nagar Havili, Gujrat and had been transferred to Delhi.
3.After completion of the investigation, the cancellation report against accused Mr. Aftab Alam and Mr. Mehtab Alam was filed before the Court Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 2 of 12 ::-
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of the learned Metropolitan Magistrate on 10.11.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 01.07.2015.
4.After hearing arguments, vide order dated 16.07.2015, charge for offence under sections 498A, 324, 323, 506 and 352 of the IPC was framed against the accused Aftab Alam and the charge for the offence under section 376 of the IPC was framed against accused Mr. Mehtab Alam. Both the accused persons pleaded not guilty and claimed trial.
5.In order to prove its case, the prosecution has examined the prosecutrix as PW1.
6.All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.The evidence of the prosecutrix was commenced on 29.07.2015 and as the original complaint was in Gujrati and a translated version was annexed in the file, on the request of the Substitute Additional Public Prosecutor, IOs Insp.Kamlesh and SI Annu had been directed vide order dated 29.07.2015 to produce a translator/interpreter on Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 3 of 12 ::-
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30.07.2015 in order to ascertain whether the complaint which is in Gujrati has been translated correctly and completely in the translated version which is in Hindi and English.
7.Mr.Dinesh Doshi and Ms. Ranjan Doshi, Advocates have been produced by the IOs and they have submitted that they know Hindi, English and Gujrati and can translate and interpret the same. They have read the original complaint and the translated version and have submitted that the original complaint has been translated correctly and completely in the translated version. Their statements have been recorded separately. The original complaint is accepted by the Addl. PP and the Amicus Curiae for both the accused persons to be correctly and completely translated in the translated version. The original complaint and the translated version are exhibited as Ex.PX1 and Ex.PX2 respectively. Thereafter, the evidence of the prosecutrix is continued.
8.The prosecutrix, as PW1, has deposed that she was married to accused Aftab Alam in December, 2012 but she do not remember the exact date. The marriage was solemnized with the blessings of both the families. As she has studied in a Madrassa, she knows only Urdu. She can not read or write in Hindi, English and Gujraati languages. She can understand Hindi language. After marriage, she started living with her husband and his family members at Delhi (address mentioned in the file and withheld to protect the identity of the prosecutrix). After marriage, some minor dispute had taken place between her and her husband accused Aftab Alam and due to that she left her matrimonial house and went to her parental home situated in Gujrat Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 4 of 12 ::-
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(address mentioned in the file and withheld to protect the identity of the prosecutrix), where Pradhaan of the village got falsely FIR lodged on her behalf against her husband accused Aftab Alam and jeth accused Mehtab in the local police station. She had told the above said facts of minor dispute to the local police and thereafter the local police obtained her signature on some documents, which are in Gujraati language. She was not aware the contents of the above said language as the same were in Gujraati language. The above said dispute has been settled between her and her husband. She is living with her husband in her matrimonial home for the last 8-9 months. She has no complaint against accused Aftab Alam and Mehtab Alam. Both the accused persons have not committed any offence against her. She has prayed that both the accused persons may be acquitted as they have not committed any offence against her and they are innocent. She further deposed that she is aware if she depose falsely action can be taken against her by the Hon'ble Court.
9.As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
10.In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she was produced before the Court of learned Metropolitan Magistrate and she recorded her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex. PW1/A). She has denied the contents of the translated version of her complaint (Ex.PX2) and statement under section 164 of the Cr.P.C. (Ex.PW1/A). She has denied the suggestion that her husband used to beat Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 5 of 12 ::-
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her under the influence of liquor. She has denied the suggestion that her husband had also given her electric shock in both her hands and stomach and she was burnt by the electric shock given to her by her husband. She has denied the suggestion that her husband had threatened with dire consequences and asked her not to disclose anything to anybody. She has denied the suggestion that she stated falsely before her parents that she received burn marks on her hands due to hot oil split over her arms from the Karahi (wok). She has denied the suggestion that finally she broke down before her parents and stated the truth before them and her parents took her to her parental home. She has denied the suggestion that her husband had caused injury to her with blade on her forehead, cheek and arms. She has denied the suggestion that the accused Mehtab Alam had ever committed rape upon her. She has denied the suggestion that her husband shaved her hair. On being shown the photographs (Ex.PW1/B and Ex.PW1/C) the prosecutrix has deposed that she is visible in the same. She has admitted that it can be seen in both the photographs (Ex.PW1/B and Ex.PW1/C) that her hair is cut and she has an injury on her left cheek. In the photograph (Ex.PW1/C) injuries on her arms and hands are also visible. Mr.Arif, Pradhaan of Silvassa, had forcibly cut her hair. She had received the injuries herself and nobody had injured her. Mr. Arif had some enmity with her father due to which he has implicated her husband and her brother in law in the present false case by projecting her as a victim who has suffered atrocities by her husband and brother in law. She has deposed that infact both the accused persons have not committed any offence. She was made to sign on the complaint (Ex.PX1), which is in Gujrati. She does not understand, speak, write or read Gujrati. The complaint was not read over to Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 6 of 12 ::-
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her nor explained to her when she was made to sign on it. She has denied the suggestion that she is deposing falsely in regard to knowledge of Gujrati language. She has admitted that she was born and brought in Gujrat as her parents had migrated there before her birth. She had told the truth before the learned Metropolitan Magistrate that both the accused persons are innocent.
11.The prosecutrix has also been cross examined on behalf of both the accused persons by the amicus curiae. She has admitted that both the accused have not committed any offence. She has admitted that accused Mehtab Alam has not raped her. She has admitted that during the period 2014-15, accused Aftab Alam has not treated her with cruelty nor beaten her nor caused injury to her with blade on her face nor extended threat to her not to disclose the series of violence committed against her to anybody. She has admitted that both the accused persons are innocent. She has admitted that she has given her evidence before the Court without any threat, pressure, coercion or influence. She has admitted that she has given her evidence voluntarily. She has again prayed that both the accused persons may be acquitted.
12.The prosecutrix, has not deposed an iota of evidence of her being treated with cruelty and beaten by accused Aftab Alam nor he has caused injury to her with blade on her face. She has denied being raped by the accused Mehtab Alam. She has deposed that both the accused persons have not committed any offence against her and nor deposed anything incriminating against both the accused persons. She has deposed that both the accused are Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
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innocent and has also prayed that they may be acquitted.
13.In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to both the accused and has not deposed anything incriminating against them, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself, the most material witness, as well as the complainant has not supported the prosecution case and is hostile.
14.Statements under section 313 of the Cr.P.C of both the accused Mr. Aftab Alam and Mr. Mehtab Alam are dispensed with as there is nothing incriminating against them when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
15.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
16.In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 8 of 12 ::-
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versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
17.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
18.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
19.If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
State versus Aftab Alam & anr. -:: Page 9 of 12 ::-
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20.Consequently, no inference can be drawn that accused Mr. Aftab Alam has committed cruelty, beaten, threatened and caused injury to prosecutrix with blade on her face and cut her hair. No inference can be drawn that accused Mr. Mehtab Almad has committed rape upon the prosecutrix.
21.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that both the accused persons are innocent and have not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
22.Consequently, no inference can be drawn that the accused Mr. Aftab Alam is guilty of the charged offence under sections 498A, 324, 323, 506 and 352 of the IPC and the accused Mr. Mehtab Alam is guilty of the charged offence under section 376 of the IPC. There is no material on record to show that accused Mr. Aftab Almad had treated the prosecutrix with cruelty, beaten and threatened her and caused injury to her with blade on her face and cut her hair and accused Mr. Mehtab Alam had committed rape upon the prosecutrix.
23.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence against accused Aftab Alam that he treated the prosecutrix with cruelty, beaten her, caused injury to prosecutrix with blade and threatened the prosecutrix; accused Mehtab Alam had raped the Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
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prosecutrix. The evidence of the prosecutrix makes it highly improbable that such incidents ever took place. She has categorically deposed that both the accused persons have not committed any offence and accused Mehtab Alam has not raped her.
24.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr. Aftab Alam for the offence under sections 498A, 324, 323, 506 and 352 of the IPC and charge against accused Mr.Mehtab Alam for the offence under section 376 of the IPC.
25.Consequently, accused Mr.Aftab Alam is hereby acquitted of the charge for the offences under sections 498A, 324, 323, 506 and 352 of the IPC. Mr.Mehtab Alam is hereby acquitted of the charge for the offence under section 376 of the IPC.
26.Compliance of section 437-A Cr.P.C. is made in the order sheet.
27.Case property be destroyed after expiry of period of limitation of appeal.
28.It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
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already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
29.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
30.After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 30th day July, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 67 of 2015 Unique Case ID Number : 02401R0558592014.
FIR No. 878/2014 Police Station Moti Nagar Under sections 323, 324,325, 376, 498A, 506 and 34 of the Indian Penal Code.
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