Delhi District Court
State vs Accused Shahbuddin on 24 July, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST
& SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI
Unique Case I.D. No.02402R0248442010
SC No. 137/13 Date of Institution : 16.09.2010
FIR No.307/10 Date of Argument : 10.07.2013
PS Shahdra Date of Order : 19.07.2013
U/S 363/376/506 IPC
State Versus Accused Shahbuddin
S/o Sh. Bundu
R/o Mohalla Islam Nagar
Pilakhwa, Distt. Ghaziabad,
UP.
JUDGMENT
The facts in brief of the prosecution case are that on 26.05.2010 at about 12.20 PM, ----------X------------, S/o ------------X1-----------, resident of --------------------------------- X2------------------------------------, here in after referred to as the complainant, lodged a report at PS Shahdra stating that on 24.05.2010 at about 7.00 PM, his wife and his sister
----Y----, here in after referred to as the prosecutrix, went to Mandoli Road Market to buy vegetables and on the way a boy named Shahabuddin, resident of Pilakhwa, Hapur, here in after referred to as the accused, terrorized his wife and kidnapped the prosecutrix. On the basis of that complainant, a FIR No. 307/10 at PS Shahdra was SC No.137/13 State vs. Shahbuddin Page 1 of 32 registered under Section 363 IPC against the accused. Missing Person Form was filled in and message was flashed. The prosecutrix was recovered on 28.05.2010. The same was sent to GTB hospital for her medical examination by Ct. Anamika. Doctor prepared her MLC and obtained her samples which were taken into possession and deposited in the police Malkhana. The prosecutrix was produced before Ld. M.M. and her statement under Section 164 of Criminal Procedure Code, here in after referred to as the Code was recorded. The prosecutrix alleged that on 24.05.2010 she went to the market along with her sister-in- law (Bhabi), a boy Shahabuddin, the accused who was known to her, forcibly took her to Islam Nagar, Pilakhwa, Distt. Ghaziabad and confined her in his house and made physical relations with her against her will and without her consent. The custody of prosecutrix was given to her family members. On 13.07.2010, the accused surrendered in the Court and he was formally arrested. His one day police remand was taken. The accused was taken to GTB Hospital where he was medically examined. I.O. collected the record of age of the prosecutrix. After completion of investigation police filed a charge sheet against the accused for his trial for the offences punishable U/s 363/376/506 IPC.
SC No.137/13 State vs. Shahbuddin Page 2 of 322. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to Ms. Nisha Saxena, Ld. Addl. Sessions Judge (I/C), North East District, Delhi.
3. The court vide order dated 15.11.2010 opined that prima facie case for framing of charge against the accused for the offences punishable u/s 363/376/368/506 IPC was made out. Therefore, charge against the accused for his trial for the said offences was framed and read over to him. The accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined -------Y------- the prosecutrix as PW1; Ms. Beena Verma, Prinicpal, M.C. Primary School, Krishan Nagar, North A, Delhi as PW2; ASI Dharam Pal Singh as PW3; ------X-----, brother of prosecutrix as PW4; and Ms. ------Z------, sister- in-law of prosecutrix as PW5.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
SC No.137/13 State vs. Shahbuddin Page 3 of 326. The prosecution further examined ASI Surender Sharma as PW6; Ms. Shivani Sharma, Metropolitan Magistrate, Mahila Court, West, Tis Hazari Court, Delhi as PW-7, Ct. Devesh Kumar as PW8; Ct. Anamika as PW9; HC Sardar Singh as PW10; Ct. Mukesh as PW-11, Dr. Bindiya Gupta, Assistant Professor, Department of Obs. & Gynae, GTB Hospital as PW-12 and SI Usha Sagar as PW-13.
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. The accused admitted that he was working as a Tailor in the shop of PW-1 ----Y---- prior to the incident. He surrendered before the Court on 13.07.2010 and he was formally arrested vide memo Ex. PW-8/A and his personal search vide memo Ex. PW-8/B was conducted and that he was taken to GTB hospital where he was medically examined vide MLC Ex.C-2 and that his samples were taken and those were sent to FSL and result dated 07.05.2011 Ex. C-1 was obtained and that he was correctly identified by the prosecutrix and other witnesses. He either denied rest of the evidence or expressed his ignorance about the same. The accused pleaded that he was falsely implicated in the present case as during the period when he was working in SC No.137/13 State vs. Shahbuddin Page 4 of 32 the shop of brother of the accused namely ------X-----, the prosecutrix fell in love with him and she used to pressurized him to marry him. He refused and when this fact came in the knowledge of the brother of the prosecutrix, he asked him not to attend tailoring shop. Even, Thereafter, the prosecutrix used to meet him and for that reason brother of the prosecutrix falsely lodged a report against him and the prosecutrix deposed falsely due to that reason under the influence of her brother.
8. Although, the accused opted to lead defence evidence, yet Ld. defence Counsel closed the defence evidence without examining any witness.
9. After closing of evidence by both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused and perused file.
10. In order to prove its case that the accused committed an offence of kidnapping from lawful guardianship punishable u/s 363 IPC, prosecution has to prove firstly, that the prosecutrix was under 18 years of age at the time of incident; and secondly that the SC No.137/13 State vs. Shahbuddin Page 5 of 32 prosecutrix was kidnapped from the lawful guardianship of her guardian.
11. In order to prove its case against the accused for the offence of wrongfully concealing or keeping in confinement, kidnapped or abducted person punishable u/s 368 IPC, prosecution has to prove firstly that the prosecutrix was wrongfully concealed or confined after her kidnapping or abduction; and secondly, the prosecutrix was abducted or kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
12. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix by the accused; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent
13. In order to prove its case against the accused for the offence of criminal intimidation punishable u/s 506 SC No.137/13 State vs. Shahbuddin Page 6 of 32 IPC in the presence case, prosecution has to prove firstly, that the prosecutrix was threatened to kill her family members; and secondly, that threatening was made with intent to cause alarm in the mind of the prosecutrix.
14. Let us deal with arguments before examining and analyzing the prosecution evidence on record in the light of the arguments made by Ld. Addl. PP for the State and Ld. Defence Counsel for the accused.
15. It has been argued by Ld. Defence Counsel that testimonies of prosecution witnesses are not reliable as they have deposed inconsistently and there are many contradictions in their statements.
16. On the other hand, Ld. Additional Public Prosecutor submitted that the minor contradictions are liable to be ignored in view of the principles of law laid down by Delhi High Court in State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the SC No.137/13 State vs. Shahbuddin Page 7 of 32 circumstances make it safe to dispense with it, must be present to the mind of the judge. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
17. On scrutinizing the testimonies of prosecution witnesses, I find contradictions on following points:
Date and time of the incident
18. PW-1 on the date and time deposed that SC No.137/13 State vs. Shahbuddin Page 8 of 32 incident had taken place at 5.00 PM on 24.05.2010. PW-4 on this aspect deposed that incident took place on 24.05.2010 at about 6.30 PM. PW-5 on this aspect deposed that incident took place on 24.05.2010 or 25.05.2010 at about 6.30-7.00 PM. Thus, all the material witnesses deposed the time of incident differently. PW-5 could not tell the correct date of incident.
Sequence of Incident
19. PW-1 the prosecutrix in cross-examination deposed that she was kidnapped at the time when she along with her sister-in-law (Bhabi) was returning from the market. PW-5, her sister-in-law (Bhabi) deposed that she was in the process of buying vegetables when the incident had taken place. Thus, both the witnesses deposed differently about sequence of incident as one deposed that incident took place when they were in the process of buying vegetables while the other deposed that incident took place when they were returning after buying the vegetables.
Presence of children of sister-in-law at the place of incident
20. PW-5 on the point of presence of children at the spot deposed that her children aged about 3 1/2 and SC No.137/13 State vs. Shahbuddin Page 9 of 32 another about 4 1/2 years and the prosecutrix were present there when they were buying vegetables. Statements of PW-1 and PW-4 are silent on the presence of children at the incident. Conversely, the prosecutrix, PW-1 deposed that besides her, accused and driver nobody else was present. Thus, both the material witnesses deposed differently regarding presence of children at the place of incident.
21. The contradictions and inconsistencies, pointed out by Ld. Defence Counsel and narrated here in above in this judgment are minor in nature. Such inconsistencies and minor contradictions are bound to happen in every case. These minor contradictions and inconsistencies have failed to create any reasonable suspicion or shadow of doubt in the testimonies of the prosecution witnesses. My decision finds support by the principles of law laid down in case of State v. Jai Hind (Supra), relied on by Ld. Additional Public Prosecutor for the State.
22. It has been argued on behalf of Ld. Defence Counsel that there is delay of about 3 days in lodging the report and that delay is fatal to the prosecution case. On perusal of the testimony of prosecution witnesses, I find SC No.137/13 State vs. Shahbuddin Page 10 of 32 that PW4 on this aspect deposed that he had gone to PS to lodge a complaint in the evening. The Police told him that the complaint will not be lodged on 24.5.2010 and that he should come on the next day. He remained present in the PS from 8.30 pm to 12.00 mid night but his complaint was not written. On 25.5.2010 he had gone to the office of DCP and his complaint was lodged. Copy of complaint dated 26.5.2010 addressed to DCP North-East was filed on record as Mark PW 4/DA and his report dated 26.05.2010 was proved as Ex. PW-4/A. The FIR in this case was registered on 27.5.2010.
23. On considering of evidence, I find that PW 4 has explained the reason of making complaint on 26.05.2010. I am satisfied with the explanation made in the statement. I am of the view that delay in lodging the FIR is not fatal to the prosecution case. My decision finds support by the principles of law laid down in case, State of Punjab v. Gurmit Singh And Others, 1996 SCC (Cri) 316 wherein Apex Court observed that:
"7.The trial court also disbelieved the version of the prosecutrix regarding rape. It found that the testimony of the prosecutrix did not inspire confidence for the reasons
(i) that there had been delay in lodging the FIR and as such the chances of false implication of the accused could not be ruled out.*** SC No.137/13 State vs. Shahbuddin Page 11 of 32
8.***The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."
[Emphasis supplied]
24. It has been argued by the Ld. Defence Counsel that the Investigating Officer has failed to join any witness of public from the alleged place of kidnapping in spite of the fact that it was a busy place and several persons were available there. He emphasized on the point that it was impossible for the accused to kidnap the prosecutrix from such a busy place. On perusal of file, I find that the Investigating Officer has joined sister-in-law of the prosecutrix as a witness and she deposed as PW-5. Her testimony is trustworthy and believable and there is no reason to discard her testimony. It is common that the public is reluctant to come of his/her own to the Court to depose. Therefore, this arguments of Ld. Defence Counsel is not convincing. My decision in this regard finds support SC No.137/13 State vs. Shahbuddin Page 12 of 32 by principles of law laid down in case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696 the Apex Court in paragraph 11 observed:
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court however must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
25. Ld. defence Counsel emphasized on the point that the prosecutrix of her own told to the Doctor that she left her home on 24.05.2010 and returned by herself on 28.05.2010 and previously also she left her house on 09.05.2010 for one day. He argued that on the basis of SC No.137/13 State vs. Shahbuddin Page 13 of 32 observation of Doctor, accused is entitled to get benefit of doubt. On perusal of testimony of the prosecutrix, I find that she had explained in which circumstances the alleged history by Doctor was written. She stated that she was medically examined by the Doctor. She had narrated the alleged history under the threat mounted upon her by the accused and his family members to the Doctor at the time of her medical examination. She did not state to the Doctor regarding any physical or sexual act as she was under
threat given by the accused and his family members that if she would disclose the true fact then they would kill her family members. Subsequently, she had disclosed to the police that she had given the alleged history to the Doctor under threat by the accused and his family members. She denied the suggestion that she left her house of her own or she was not kidnapped or raped by the accused. In these circumstances, I am of the view that the alleged history written by Doctor will not provide any benefit to the accused.
Age of the Prosecutrix
26. PW1, the prosecutrix on this aspect deposed that at the time of incident she was studying in 10th class.
She told her age as 18 years on the date of recording his SC No.137/13 State vs. Shahbuddin Page 14 of 32 statement, i.e. on 16.05.2011. She also stated that her date of birth was 01.06.1993. That was also recorded in her Primary School of MCD, Krishna Nagar, North A, Delhi where she was studying. When her statement u/s 161 of the Code was recorded on 03.08.2010, she told her age as 17 years. The testimonies of brother and sister-in-law (Bhabhi) of the prosecutrix i.e. PW4 and PW5 are silent about the date of birth of the prosecutrix. PW-2 on this aspect deposed that she had brought original admission form filled by the parents at the time of admission of prosecutrix. She proved photo copy of original admission form of prosecutrix as Ex. PW-2/A. She also deposed that as per school record her date of birth was 01.06.2013. She was admitted in the first standard on 04.07.1998. The copy of original admission register was proved as Ex. PW-2/B. In the statement, Ex. PW-7/B recorded before Ld. MM, the prosecutrix told her age as 17 years as on 29.05.2010. In her MLC Ex. PW-2/A, her age was also mentioned as 17 years on 28.05.2010. In Ex. PW-2/A and Ex. PW-2/B the date of birth of prosecutrix ----Y---- has been mentioned as 01.06.1993. The date of incident is 24.05.2010 On calculation, the age of the prosecutrix, on the date of incident, comes to 16 years 11 months and 23 days. Consequently, it is held that the prosecutrix was minor on SC No.137/13 State vs. Shahbuddin Page 15 of 32 the date of incident.
Concealment and confinement of the prosecutrix after Kidnapping, abducting or inducing her to compel her marriage, etc.
27. PW1, the prosecutrix on this aspect deposed that on 24.05.2010 at about 5.00 PM she had gone to the Budh Bazar Market, Mandoli Road, Delhi with her sister in law (Bhabi) namely ---Z---. Accused Shahabuddin present in the Court, correctly identified, who used to work as a tailor in her shop came there and forcibly took away her with him. Her sister in law ---Z-- tried to save her but of no avail. The accused took her to Islam Nagar, Philakhwa by train and detained her there for 4 days. The accused forcibly without her consent and against her will committed galat kaam with her, i.e. he had forcibly inserted his penis in her vagina. He also threatened her that if she would narrate the incident to anyone including the police, he would kill her family members. The father and uncle of the accused left her near the gate of Shahdra, Police Station. She narrated entire incident to the police. She was taken to hospital where she was medically examined. She narrated the incident to the Doctor at the time of her medical examination. On the next day, her statement u/s 164 of SC No.137/13 State vs. Shahbuddin Page 16 of 32 the Code was also recorded. She correctly identified in the Court her bra as Ex. PW-1/P-1, her panty as Ex. PW-1/P-2, T-Shirt as Ex. PW-1/P-3 and pant as Ex. PW-1/P-4.
28. In cross-examination she stated that they arrived at Philkhwa at about 8.30 AM. The distance between the residence of the accused and Philkhwa was not too far and they covered the distance on foot. Accused had taken her to the house of his aunt (Chachi). Uncle and aunt of the accused met them there. They gave beating to her. The accused had already communicated them. The incident of kidnapping was already in their knowledge. She did not take dinner in the night. She was confined in a room. She did not come out from the room as latches were put from the outside. She was confined in a room for about 4 days. She was offered food used to be brought by accused during that period. Toilet was inside that house. Aunt of the accused used to guard her at the time of attending call of nature. She denied the suggestion that she left her house of her own.
29. PW-4 on this aspect deposed that on 24.05.2010 his wife ------Z----- and sister ---Y--- had gone to Budh Bazar Market to buy vegetable at about 6.30 PM. Accused SC No.137/13 State vs. Shahbuddin Page 17 of 32 Shahabuddin present in the Court, correctly identified, along with his unknown associate met ----Y--- and ---Z---. He had taken ---Y--- with him forcibly in a Three Wheeler. He knew accused as previously he used to work at his tailoring shop. His wife raised hue and cry but nothing happened at the spot. He made a complaint Ex. PW-4/A to the police. He and police tried to search and find out ---Y---- but they could not. On 28.05.2010, accused himself had left ----Y---- in the Police Station.
30. PW-5 on this aspect deposed that on 25.05.2010 at about 6.30-7.00 PM, she along with her sister-in-law (Nand) ----Y---- and her two children had gone to market to buy vegetables at Budh Bazar, Ram Nagar, Mandoli Road. She was in the process of buying vegetables. Two persons came in a TSR. Accused present in the Court dragged her nand ----Y--- and took her in TSR. Her children started crying and she started pacifying them. She knew the accused as he had worked for about one month at their tailoring shop. After the incident, she went to her shop and informed about the incident to her brother-in-law (dewar). He informed her husband on telephone as he was working outside. Her husband arrived within 5 minutes and he made a complaint to the police. She again stated that the SC No.137/13 State vs. Shahbuddin Page 18 of 32 incident took place either on 24.05.2010 or 25.05.2010. In view of the evidence on record and particularly reproduced here in above, it is held that prosecution has successfully proved that the prosecutrix, after kidnapping and abducting her was wrongfully confined and concealed by the accused.
Sexual intercourse was committed by the accused with the prosecutrix
31. PW1 on this aspect deposed that accused took her to Islam Nagar, Philakhwa by train and detained her there for 4 days. The accused forcibly committed galat kaam with her, i.e. he forcibly inserted his penis in her vagina. She was medically examined by the Doctor and she narrated the alleged history to the Doctor. She denied the suggestion that she was in love with the accused Shahabuddin or that she wanted to marry him or that the accused refused her proposal since it was inter religion matter or that she left her house on her own or that the accused did not commit rape on her or that he made her statement before Ld. M.M. under pressure of her brother.
32. PW-9 deposed that on 28.05.2010, he was posted at PS Shahdra, Delhi as a constable and on that day SC No.137/13 State vs. Shahbuddin Page 19 of 32 she had taken the prosecutrix for her medical examination and after her medical examination, the two sealed parcels along with sample seal received from the hospital were seized by the IO vide seizure memo Ex. PW-9/A.
33. PW-12 deposed that she had seen the MLC No. D-280/10 dated 28.05.2010 of ---Y----, who was brought into the hospital by the police for her medical examination. She was medically examined by Dr. Harpreet Kaur, SR by MLC Ex. PW-12/A. On perusal of MLC, I find that it has been written therein that her hymen was found ruptured. There is no cross examination of this witness by Ld. defence Counsel.
34. PW-8 deposed that on 13.07.2010 he was posted as Constable at PS Shahdra. On that day he had accompanied WSI Usha to Karkardooma Courts. The accused Shahabuddin, present in the Court was formally arrested in Court No. 68 vide arrest memo Ex. PW-8/A. At the direction of IO, he took the accused to GTB hospital for medical examination. After medical examination the doctor handed over to him the MLC of the accused as well as two sealed pullindas duly sealed with the seal of GTB hospital with a sample seal and he handed over the MLC Ex. C-2.
SC No.137/13 State vs. Shahbuddin Page 20 of 32The fact of medical examination of accused vide MLC Ex. C-2 was admitted by Ld. defence Counsel and accused also admitted this fact in his statement recorded under Section 313 Cr.PC. On perusal of Ex. C-1, I find that it has been mentioned therein that there was nothing to suggest that the patient was incapable of performing sexual intercourse.
35. PW-11 stated that on 03.08.2010, he was posted at PS Shahdra, Delhi as Constable. He deposited four sealed parcels along with two sample seals with MHCM. PW-10 stated that on 03.08.2010, he was posted at PS Shahdra, Delhi as MHC(M). PW-11 Ct. Mukesh deposited four sealed parcels along with two sample seals and these parcels remained intact in his possession.
36. In view of the evidence discussed here in above, I come to the conclusion that prosecution has proved that sexual intercourse was committed by the accused with the prosecutrix.
Whether sexual intercourse was committed by the accused on the prosecutrix without her consent and against her will
37. The prosecutrix PW-1, interalia, stated that the accused forcibly without her consent and against her will SC No.137/13 State vs. Shahbuddin Page 21 of 32 committed galat kaam with her, i.e. he forcibly inserted his penis in her vagina. Her testimony in detail has already been discussed here in above. Same is not being mentioned here to avoid repetition. In cross-examination she denied the suggestion that she was in love with the accused as she wanted to marry him or that the accused did not commit rape on her.
38. In view of the evidence on record and particularly discussed here in above it is held that prosecution has proved that accused committed sexual intercourse with the prosecution against her will and without her consent.
Criminal intimidation
39. The prosecutrix PW-1 on this aspect, interalia, stated that accused had threatened her that if she would narrate the incident to anyone including the police, he would kill her family members. In cross examination she stated that she did not raise alarm at any place including railway platform as she was threatened by the accused not to raise alarm. Accused caught hold of her hands at railway platform. She denied the suggestion that no threat was given to her by the accused at any point of time. The SC No.137/13 State vs. Shahbuddin Page 22 of 32 evidence on record and particularly discussed here in above has proved that the accused extended threat to the prosecutrix to the effect that her family member would be killed in case she tell the incident to anyone including police.
40. On considering the rival contention of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has proved its case against the accused beyond any reasonable suspicion and shadow of doubt that the accused Shahabuddin committed offence of Kidnapping, from the lawful guardianship; offence of wrongfully concealing and confining a kidnapped, abducted person; offence of rape on the prosecutrix as well as criminal intimidation. The reasons which support my conclusion are firstly, that the testimony of prosecutrix, as discussed in detail here in above, on analyzing has been found consistent, reliable and trustworthy and it is safe to act upon her testimony. My decision finds support by a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for SC No.137/13 State vs. Shahbuddin Page 23 of 32 offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused."
[Emphasis supplied]
41. Secondly, the prosecution evidence has achieved the standard of proof of proving its case against the accused, as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
42. Thirdly, the Ld. Defence Counsel by putting SC No.137/13 State vs. Shahbuddin Page 24 of 32 suggestions to the prosecutrix has indirectly admitted that the accused had taken the prosecutrix as it was suggested to her that she was in love with the accused. In the statement under Section 313 of the Code even it was pleaded by the accused that the prosecutrix fell in love with him when he was working in their tailoring shop. The prosecutrix was pressurizing him to marry her but he refused. These suggestions, to some extent, have further supported the prosecution case.
43. Fourthly, the accused has failed to prove that he was falsely implicated by the prosecutrix at the instance of her brother as he came to know about the relations of the accused and prosecutrix. Conversely, there is no evidence on record showing any motive or reason for the prosecutrix or her brother and her sister-in-law to depose against the accused particularly when the accused was their employee unless he committed the offence. My view finds supports by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted.SC No.137/13 State vs. Shahbuddin Page 25 of 32
The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
44. Fifthly, the arguments of Ld. Defence Counsel were found not convincing on every aspect. It is also not believable that the brother of the prosecutrix influenced the prosecutrix in incriminating the accused falsely in the present case.
45. Sixthly, the testimony of prosecutrix has been supported by other witnesses. For example, PW3 proved computerized copy of FIR as Ex.PW3/A and endorsement on ruqqa Ex. PW-3/B. PW-7 proved the statement of prosecutrix, Ex. PW-7/B recorded by Ld. M.M. under Section 164 of the code. PW-8 proved arrest memo of the accused as Ex.PW-8/A, his personal search memo as Ex.PW8/B and seizure memo of parcels as Ex. PW-8/C. PW-9 proved another seizure memo Ex. PW-9/A vide which parcels of samples of prosecutrix were taken into possession. PW-13 is IO who deposed generally as to how she conducted the investigation and further supported the prosecutrix. Nothing came out in cross examination of prosecution SC No.137/13 State vs. Shahbuddin Page 26 of 32 witnesses which could create reasonable suspicion or doubt in the truthfulness of the prosecution case.
46. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. While considering and analyzing entire prosecution evidence this court has come to the conclusion that all the oral, circumstantial and scientific evidence has proved that the accused Shahahbuddin committed offence of rape on the prosecutrix forcibly against her will after giving threat to the prosecutrix and wrongfully concealing and confining her after her kidnapping with the purpose to commit sexual intercourse with her. Therefore, it is bounden duty of this court to hold the accused guilty and convict him.
CONCLUSIONS
47. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in SC No.137/13 State vs. Shahbuddin Page 27 of 32 above, it is held that the prosecution has successfully proved its case against accused Shahabuddin beyond any reasonable suspicion and shadow of doubt that he committed offence of Kidnapping from the lawful guardianship punishable under Section under Section 363 IPC; offence of wrongfully confining and concealing the prosecutrix after kidnapping punishable under Section 368 IPC r/w Section 366 IPC; offence of rape on the prosecutrix punishable u/s 376 IPC; and offence of criminal intimidation punishable under Section 506 IPC. Accordingly, accused is held guilty and convicted for the offences punishable u/s 363/368 r/w 366/376/506 IPC.
Announced in the Open Court Dated:19.07.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.137/13 State vs. Shahbuddin Page 28 of 32 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No.137/13 FIR No.307/10 PS Shahdara U/s 363/368 r/w 366/376/506 IPC State Versus Shahbuddin ORDER ON SENTENCE 24.07.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused in J.C. Sh. K.S. Tyagi, Advocate for the convict/ accused.
I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsels that accused/convict is a young boy of 24 years of age; he is the only bread earner in the poor family; his parents are suffering from serious diseases like diabetes and kidney disease; he has wife and a child to maintain besides dependent marriageable sister; he had been in jail for more than 2 months; and he has no previous criminal record. It has been prayed that lenient view in sentence may be taken.
3. On the other hand, it has been argued on behalf SC No.137/13 State vs. Shahbuddin Page 29 of 32 of Ld. Additional Public Prosecutor that deterrent punishment may be awarded to the accused as case against the accused has been established by the prosecution and the prosecutrix was minor at the time of commission of offence.
4. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just and appropriate if moderate view in sentence is taken. Accordingly, convict/accused Shahbuddin is sentenced to undergo rigorous imprisonment for 3 years and he is further sentenced to pay a fine of Rs.3,000/- in default simple imprisonment for nine months for the offence punishable under section 363 IPC.
5. Convict/accused Shahbuddin is further sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for one year for the offence punishable under section 368 r/w section 366 IPC.
6. Convict/accused Shahbuddin is further sentenced to undergo rigorous imprisonment for 7 years and he is further sentenced to pay a fine of Rs.7,000/- in default simple imprisonment for one year and six months for the offence punishable under section 376 IPC.
SC No.137/13 State vs. Shahbuddin Page 30 of 326. Convict/accused Shahbuddin is further sentenced to undergo rigorous imprisonment for 2 years and he is further sentenced to pay a fine of Rs.2,000/- in default simple imprisonment for six months for the offence punishable under section 506 IPC.
7. All the sentences will run concurrently.
8. It is further ordered that if convict/accused Shahbuddin has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C. As per judicial record accused had been in J.C. since 13.7.2010 to 27.9.2010 and from 19.7.2013 till date.
9. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.10,000/- will be payable to the prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation, if available to her under other laws.
10. The convict/accused Shahbuddin be sent to imprisonment to serve the sentence.
11. A copy each of judgment and order on sentence is supplied to convict/accused Shahbuddin free of cost.
File be consigned to Record Room.
Announced in the Open Court Dated:24.07.2013 (DR. T.R. NAVAL) SC No.137/13 State vs. Shahbuddin Page 31 of 32 Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.137/13 State vs. Shahbuddin Page 32 of 32