Delhi District Court
State vs . Mohd. Islam Page No. 1/26 on 10 August, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
In Unique Case ID No. 02406R0191982016
SC No. : 57/16 and 2455/16
FIR No. : 113/16
U/s. : 354/376/323/506 IPC
PS : New Friends Colony, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Mohd Islam
S/o Mohd. Jalil Sekh
R/o A26, I Floor, Khizrabad Village,
New Friends Colony, New Delhi. ...................Accused
Date of Institution : 14.05.2016
Judgment reserved for orders on : 26.07.2017
Date of pronouncement : 05.08.2017
J U D G M E N T
FACTS
1. On 29.03.2016, at about 9.45 p.m, an information was received at the police station New Friends Colony, New Delhi that a boy was molesting a girl in the house of Sunder at Khizrabad village behind Lions Hospital, New Friends Colony. SI Shashi Dixit met the prosecutrix ( name withheld to protect her identity). She got recorded her statement alleging therein that she is illiterate. Her parents work as domestic helps in the kothis at New Friends Colony for about 15 years. In 2011, she had come with her parents for the search of job. She started FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 1/26 working in kothis at New Friends Colony. Her real uncle's (chacha) son inlaw namely Islam lives at New Friends Colony, New Delhi. On 18.03.2016, her parents had gone to their village. She was in Delhi. She suffered from Chicken Pox. On 20.03.2016, Islam i.e the accused brought her in his room to take care of her. He used to apply milk on her body. She started recovering from the chicken pox. During that period, he never saw her with evil eyes. She alleged that on 26.03.2016, at night, he started outraging her modesty by touching his hand on her chest. She scolded him. On the night of 28/29.03.2016 at about 4.00 a.m, he caught both her hands tightly and removed her clothes. When she shouted, he slapped her. He thereafter committed sexual intercourse with her against her wishes and without her consent. He threatened her not to tell it to anyone otherwise he would kill her. She got scared and became quiet. On 29.03.2016, at about 9.30 p.m, accused came at her room and knocked the door. When she refused to open, he beat the door and said, if she would not open the door, he would enter by breaking the door and force upon her. She then called the police at 100 number.
2. On this statement, case u/s 376,354, 323 and 506 IPC was registered. The prosecutrix was got counseled from the NGO Shaktivahini. She was got medically examined at AIIMS. The accused was arrested. His exhibits were collected. Her statement u/s 164 CrPC was got recorded on 31.03.2016. Their exhibits were sent to the FSL. After the investigation, the accused was sent for trial for the offences punishable u/s 376, 354,323 and 506 IPC.
CHARGE
3. After complying with the requirements contemplated u/s FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 2/26 207 Cr.P.C., the case was committed to this Court. Vide order dated 08.06.2017, prima facie case was made out against the accused for the offence punishable u/s 354, 376 and 323/506 IPC. The charge was framed. The accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
4. To substantiate its allegations against the accused, prosecution examined as many as nine witnesses. PW1 is the prosecutrix. She deposed on the lines of her complaint Ex. PW 1/A. She stated that on 18.03.2016, her parents had gone to their village. She was suffering from Chicken Pox. On 20.03.2016, accused took her in his room to take care of her. He used to apply milk on her body as a result she started recovering from illness. She stated that during her stay in his house, he never saw her with evil eyes. On 26.03.2016 at night, he started molesting her. She rebuked him. On 28.03.2016 at about 4.00 a.m, he caught her both hands, gagged her mouth, removed her clothes and committed rape upon her. She tried to raise alarm but he slapped and abused her. She tried to call her father from his phone but he threatened her to kill. She got scared. She stated that on 29.03.2016, she came to her room. She brought his phone as her phone was not working. At about 9.30 p.m, the accused came and beat the door repeatedly but she did not open. He threatened her that if she would not open the door, he would kill her. She called the police at 100 number. She stated the the police came and apprehended the accused. She proved her statement Ex. PW 1/A and her MLC Ex. PW 1/B and stated that she had narrated the incident in brief to the doctor. She also proved her statement u/s 164 CrPC Ex. PW 1/C. She stated that the FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 3/26 police seized a small bedsheet from the room of the accused at her instance on which the accused had made her lie. She stated that she had told the complete incident to the police on 30.03.2016. She admitted that chicken pox symptoms include appearance of rashes on the body which are painful. She stated that she had consulted a doctor for the chicken pox but she does not have any paper. She took about nine days to recover from the chicken pox. She admitted that at the time of her medical examination, there were rashes and blisters on her body on account of chicken pox and by that time, she was not fully recovered. She admitted that there were rooms on the first floor where the incident took place. There was one cot in the room. The accused used to sleep on the floor and she used to sleep on the cot. She denied that she did not have any chicken pox. She however admitted that the accused had helped her in applying milk on her body. She stated that he used to apply milk on her legs and hands. She denied that the incident was of teasing only and the allegations of rape were afterthought. She stated that on the night of 28/29.03.2016, she was wearing inner garments which she did not hand over to the police. She stated that she did not tell the incident to anyone due to shame and honour. She admitted that she did not raise alarm on the night of 28/29.03.2016. She denied that she made the false complaint on the advise of police. She denied that she had grudge against the accused and for that reason she falsely implicated him.
PW2 is the father of the prosecutrix. He stated that the prosecutrix used to work as domestic help in the kothis. In March, 2016, she was working in a kothi at New Friends Colony. She used to stay FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 4/26 there. She used to visit them occasionally. On 18.03.2016, he had gone to his village. On 30.03.2016, the prosecutrix told him that the accused committed rape upon him and she got the case registered against him. He stated that he does not know the accused but had seen him in the area of New Friends Colony several times. He stated that he does not know if the accused is the soninlaw of his brother. He denied that when he went to his village, he had left the prosecutrix with the accused to take care of her as she had been suffering from chicken pox. PW3 Ct Dolly had taken the prosecutrix to AIIMS for her medical examination. She collected her exhibits in sealed condition alongwith the sample seal and handed over to the IO vide memo Ex. PW 3/A. She also witnessed the seizure of bedsheet from the spot. PW4 ASI Kanhaiya Lal received the DD 34A Ex. PW 4/A. He stated that he went to the spot and saw the accused knocking the door of the room of the prosecutrix. He apprehended him with the help of Ct. Sandeep. He stated that the prosecutrix was perplexed and weeping and she did not give statement. He brought the accused and the prosecutrix in the police station where SI Shashi Dixit recorded her statement.
PW5 Dr Prashasti did the medical examination of the prosecutrix vide MLC Ex. PW 1/B and recorded the brief history of incident on the narration of the prosecutrix. She stated that the hymen of the prosecutrix was torn. She collected her exhibits and handed over to the police.
PW6 ASI Gulab Singh proved the recording of the FIR Ex. PW 6/A. FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 5/26 PW7 SI Seema sent the exhibits to FSL, Rohini through Ct. Mohar Singh and prepared the chargesheet.
PW8 SI Shashi Dixit was the investigating officer of this case. She deposed on the lines of investigation. She prepared the site plan Ex. PW 8/B and seized the bedsheet Ex. P1 from the spot vide memo Ex. PW 1/D. She stated that when she met the prosecutrix, she was scared and not comfortable. She stated that there were many rooms near the room of the accused and she did not examine his neighbour. She denied that she recorded the statement Ex. PW 1/A of her own.
PW8 also tendered the FSL report Ex. PW 8/J. PW9 Ms Shivani Chauhan Ld MM recorded the statement of prosecutrix Ex. PW1/C u/s 164 CrPC.
5. The accused vide statement admitted his medical examination qua his potency vide MLC Ex. AW 1/1. STATEMENT OF ACCUSED
6. After the prosecution evidence, statement of the accused u/s 313 CrPC was recorded. He denied all the incriminating evidence against him. He stated that the prosecutrix is the cousin of his wife. On 18.03.2016, her parents had gone to their native place. On the asking of the prosecutrix, he brought her in his house since she had been suffering from Chicken Pox. He stated that he has been falsely implicated in this case. She had a boyfriend. She used to go out to meet him. He advised her not to go with him. In his absence, some persons used to come to meet her which he objected. He stated that he did not commit any offence.
DEFENCE EVIDENCE FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 6/26
7. In defence, the accused did not examine any witness. ARGUMENTS AND CONTENTIONS
8. I have heard the arguments advanced by Sh. Javed Hussain Ld. Legal Aid Counsel for the accused and Sh. Mohd. Iqrar, Ld. Addl. PP for the State.
9. Ld counsel for the accused vehemently argued that it is a case of false implication of the accused. The prosecutrix is the cousin of his wife. She had a boyfriend. She used to go out to meet him. She used to call persons in his absence. When the accused objected, she falsely implicated him. Ld counsel stated that in the first information recorded vide DD Ex. PW 4/A there were no allegations of rape. The FSL report does not incriminate the accused. No injury was found on the medical examination of the prosecutrix. There was no observation that the prosecutrix had been suffering from Chicken Pox. Ld counsel stated that the accused had brought the prosecutrix in his house to take care of her on her request and he never committed wrong with her.
10. Ld Addl. PP on the contrary argued that the prosecutrix is closely related to the accused. She used to work as maid in a kothi at New Friends Colony. She had been suffering from chicken pox. Her parents had gone to the native place. The accused brought her in his house. He used to apply milk on her body to cure her. One day i.e on 26.03.2016, at night, he molested her and outraged her modesty for which she rebuked him. On 28.03.2016 night at about 4.00 am, he caught her hand, gagged her mouth and committed rape upon her. When she tried to raise alarm, he slapped and threatened her to kill. Due to fear, she did not tell the incident to anyone. On 29.03.2016, at about FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 7/26 9.30 p.m, the accused came in her room, beat the door and threatened to break the door. Due to fear, she called the police at 100 number. She told the incident to her parents who advised her to give full facts of the incident to the police. Ld Addl. PP stated that the accused never disputed that he had brought the prosecutrix in his house when she was suffering from Chicken Pox. He used to apply milk on her body. As regards FSL report and MLC, Ld Addl. PP submitted that it is not necessary that every sexual intercourse would result into injuries or there should be discharge of semen. Simple penetration is sufficient to constitute rape. No suggestions were given to the prosecutrix that the accused used to object of her meeting with her boyfriend or she used to call persons in her house. Ld Addl. PP submitted that since the prosecutrix was scared when she called the police, she did not disclose the complete incident to the police. After mustering courage, she told the complete incident. Ld Addl. PP stated that the testimony of the prosecutrix is consistent and cogent with her complaint Ex. PW 1/A, her statement u/s 164 CrPC Ex. PW 1/C and the history given to the doctor during her medical examination vide MLC Ex. PW 1/B and is sufficient to base conviction of the accused.
FINDINGS
11. I have bestowed my thoughtful consideration on the contentions raised on behalf of the parties and gone through the statements of the witnesses and the documents on record.
12. Section 375 IPC defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 8/26 vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) ........; or
(c) ......; or
(d)......., under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
13. Section 354 IPC provides punishment for assault or use of criminal force to woman with intent to outrage her modesty. It reads as:
"Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished.....".
14. Section 506 IPC provides that whoever commits the offence of criminal intimidation shall be punished.... Criminal intimidation as defined u/s 503 IPC means:
FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 9/26 "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation..".
15. A bare perusal of the testimony of the prosecutrix/PW1 would show that the prosecutrix was a maid in a kothi at New Friends Colony. Her parents used to work as domestic helps. The accused is the husband of the cousin sister of the prosecutrix. He used to live at New Friends Colony. On 18.03.2016, her parents went to their native place. The prosecutrix was in Delhi. She had been suffering from Chicken Pox. On 20.03.2016, the accused brought her in his room to take care of her. He used to apply milk on her body to make her recover from Chicken Pox. Till 25.03.2016, he never saw her with evil eyes. Although the prosecutrix did not produce any document that she had been suffering from Chicken Pox nor told this fact during her medical examination vide MLC Ex. PW 1/B but the accused never disputed that he had brought the prosecutrix in his house since she had been suffering from Chicken Pox. He has also admitted to have applied milk on the body of the prosecutrix. He has stated that he did it on the asking of the prosecutrix and her parents who had called him from their native place. Although PW2 has stated that he does not know the accused or the accused is the soninlaw of his brother but looking into the testimony of the prosecutrix and admission by the accused, no much credence can be given to the contradictions coming in the testimony of PW2.
FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 10/26
16. Prosecutrix/PW1 has stated that on 26.03.2016 at night, he molested her and outraged her modesty for which she rebuked him. On 28.03.2016 night at about 4.00 a.m, he caught her hands, gagged her mouth and committed rape upon her. When she tried to raise alarm, he slapped her and threatened her to kill. Due to fear, she did not tell it to anyone. On 29.03.2016, at about 9.30 p.m, the accused came in her room, beat the door and threatened to break it. She then called the police at 100 number. She has stated that she had told the incident to her parents who advised her to give full facts of the incident to the police. PW2 has stated that on 30.03.2016, the prosecutrix had told him that the accused had committed rape upon her. In the instant case, the testimony of the prosecutrix is consistent with the complaint Ex. PW 1/A, her statement recorded u/s 164 CrPC Ex. PW 1/C and the history given by her during her medical examination vide MLC Ex. PW 1/B. In the above statements, the prosecutrix has alleged molestation, outraging of her modesty and sexual intercourse upon her forcibly.
17. As regards contention that when she called the police at 100 number, she had alleged molestation, perusal of the testimony of the prosecutrix would show that on 29.03.2016, when she called the police at 100 number, the accused had come at her room. He repeatedly beat the door and asked her to open the door. He also threatened her that if she would not open the door, he would break the door and would do the same act forcibly. On that day, the accused had not outraged her modesty nor committed sexual intercourse with her. He had only threatened her that if she would not open the door, he would break the door and do the act forcibly with her. She has stated that after the FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 11/26 incident of the night of 28.03.2016 when she tried to call her father from the phone of the accused, he threatened her to kill. Due to this, she got scared. She has also stated that during the incident of rape, when she tried to raise alarm, the accused slapped and abused her. She has also stated that she was not using the mobile phone. She had called the police from the mobile phone of the accused which she had taken away from his house since her phone was not in working condition. In the instant case, the accused was apprehended from the spot i.e from her house which fact the accused never disputed in his statement. He was medically examined vide MLC Ex. AW 1/1. He was found capable of performing sexual intercourse under normal circumstances.
18. It was contended by Ld defence counsel that the MLC of the prosecutrix does not show any internal/external injury on her person and even the FSL report Ex. PW8/J does not incriminate the accused. There was delay of three days in lodging the report.
19. The testimony of PW1/prosecutrix would reveal that when the accused molested her on 26.03.2016 night, she rebuked him. On 28.03.2016 night at about 4.00 a.m, when the accused committed sexual intercourse with her, he had gagged her mouth. When she tried to raise alarm, he slapped and abused her. He also threatened her to kill in case she reported the incident to her father. Her phone was not working. She was scared. After this incident, she came to her room. He on 29.03.2016 at about 9.30 p.m came at her room. He wanted to do the same act with the prosecutrix. He threatened to kill her. The prosecutrix then mustered courage and called the police at 100 number. She was medically examined on the same day. She had narrated the incident to the doctor.
FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 12/26 Her exhibits were collected. The accused was arrested and his exhibits were also collected. They were sent to the laboratory. It is true that in forensic examination, blood and semen were not detected in the exhibits of the prosecutrix and the MLC does not show any injury on the person of the prosecutrix but it is not necessary that every incident of rape must result into injuries. Absence of injury on the private part of victim does not by itself falsify the case of rape nor constitutes as evidence of consent. It is also not necessary that every sexual intercourse would result into emission of semen. Even simple penetration would constitute the offence of rape.
20. The Supreme Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu Vs. State of Madhya Pradesh succinctly laid down the principles thus: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent".
21. In Ranjit Hazarika vs State Of Assam, (1998) 8 SCC 635 FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 13/26 the Apex Court observed thus : "The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the crossexamination.
Neither the nonrupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the crossexamination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake.
22. In State of Maharasthra v. Chandraprakash Kewalchand Jain, 1990 AIR 658, it was observed: "A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. If a prosecutrix is an adult and of full understanding the court is entitled to base a FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 14/26 conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
23. In State of Punjab v. Gurmit Singh & Ors.
1996, AIR SC 1393, the Apex Court made the following observations:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 15/26 complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 16/26 whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
24. In Vijay @ Chinee v. State of Madhya Pradesh, Crl. Appeal No. 660/2008, the Apex court referred to the above two decisions in Chandraprakash Kewalchand Jain and Gurmit Singh supra and also few other decisions and observed as follows:
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
25. Although the accused in his statement u/s 313 CrPC has stated that the prosecutrix had a boyfriend, she used to go to meet him, he had advised her not to go with him, he used to object on the coming of the persons in his absence but no such suggestions were given during the crossexamination of the prosecutrix/PW1. The accused had given the suggestion that the prosecutrix had grudge against him since he is the husband of her cousin. How the prosecutrix would have grudge against him. It is not the case that the prosecutrix loved the accused or wanted to marry him or she was jealous of her cousin. She had voluntarily gone to the house of the accused since she had been suffering from Chicken Pox. She never doubted on his intentions when the accused applied milk on her body to cure her from the Chicken Pox. On a closure scrutiny, I find the defence of the accused afterthought and unworthy of credence. As regards delay, since the prosecutrix was scared from the accused and was alone in Delhi, She did not make the complaint. When the accused tried to repeat the incident, she called the FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 17/26 police at 100 number and made the complaint. Nothing can be inferred from her testimony that it is a case of false implication of the accused.
26. It is well settled law that a woman's complaint that she has been sexually assaulted must be taken at face value in a conservative society like India where indelible stigma is attached to the victim unless of course there appears to be a blatant flaw in the case. It is relevant to quote the observations of the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753:
(1) A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had every occurred.
(2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours.
(3) She would have to brave the whole
world.
(4) It would almost inevitably and almost invariably result in mental torture and suffering to herself.
(5) The fear of being taunted by others will always haunt her.
(6) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo. (7) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy and disrepute.
(8) The reluctance to face interrogation by the investigating agency, to face the court, to FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 18/26 face the crossexamination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent.
27. The important thing that the court has to bear in mind is that what is lost by a victim of sexual assault is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix, the court must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of sexual assault. An Indian woman traditionally will not concoct an untruthful story and bring charges of sexual assault for the purpose of blackmail, hatred, spite or revenge. It must therefore be realized that a woman who is subjected to sex violence would always be hesitant about disclosing her plight.
28. In the case of Om Prakash v. State of U.P(2006) 9 SCC 787, it was held that if the totality of circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
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29. In the instant case, the testimony of the prosecutrix is consistent and cogent which is corroborated by the other prosecution witnesses and material documents. She was subjected to medical examination. She had given the history of incident to the doctor. Her statement under section 164 CrPC was also recorded. She was cross examined at length but Ld. defence counsel failed to impeach her testimony on any material aspect. I do not find any material to doubt on her veracity, which rules out the possibility of false implication of the accused. I am of the view that necessary ingredients of the offences punishable u/s 354, 376 and 506 IPC are proved against the accused. CONCLUSION
30. Facts and circumstances of the present case show that the prosecutrix used to work as maid. The accused was closely related to the prosecutrix being the husband of her cousin. She suffered from Chicken Pox. She was alone. The accused brought her in his house to take care of her. He used to apply milk on her Chicken Pox. On 26.03.2016, when he molested and outraged her modesty, she rebuked him. On 28.03.2016 night at 4.00 a.m, he gagged her mouth and committed rape upon her. When she tried to raise alarm, he slapped and abused her. He threatened to kill her if she reported the matter to anyone. She got scared and did not tell the incident to anyone. She went to her house. On the next day i.e on 29.03.2016 at about 9.30 p.m, he came at her room and asked her to open the door. When she did not open, he threatened to break the door and to do the same act again. She then called the police at 100 number. She made the complaint Ex. PW1/A. In her statement u/s 164 CrPC Ex. PW 1/C, she reaffirmed that FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 20/26 the accused had committed the said acts. She is consistent and cogent as to the complicity of the accused in the said offences. There is no reason for her to falsely implicate him.
31. In the light of above observations and findings, it can be safely held that the testimony of the prosecutrix being truthful and credible can be relied upon as being of sterling worth for the purpose of the conviction of the accused. It was when the prosecutrix had come in his house, he assaulted her and used criminal force to outrage her modesty. On the next day, he committed sexual intercourse with her forcibly and also threatened her to kill if she disclosed the incident to anyone. Thus, I find no hesitation in concluding that the prosecution has proved the guilt of the accused beyond reasonable doubt qua his having been committed the offences punishable u/s 354, 376 and 506 IPC. Since the ingredients of the offence punishable u/s 323 IPC have not been proved and the offence punishable u/s 354 IPC includes assault, no conviction is ordered under seciton 323 IPC.
32. I, therefore, hold the accused guilty of the offences punishable under section 354, 376 and 506 IPC and convict him thereunder.
33. Let the accused be heard on the point of sentence on the date as fixed by the court.
Announced in the open court today i.e 05.08.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 21/26 IN THE COURT OF SHRI SANJIV JAIN, ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK COURT : SAKET COURTS: NEW DELHI.
In Unique Case ID No. 02406R0191982016 SC No. : 57/16 and 2455/16 FIR No. : 113/16 U/s. : 354/376/506 IPC PS : New Friends Colony, New Delhi. State (Govt. of NCT of Delhi) ................... Complainant Versus Mohd Islam S/o Mohd. Jalil Sekh R/o A26, I Floor, Khizrabad Village, New Friends Colony, New Delhi. ................... Convict Date of Institution : 14.05.2016 Date of order on sentence : 10.08.2017 ORDER ON SENTENCE
1. Vide separate judgment, Mohd Islam has been convicted of the offences punishable under section 354, 376 and 506 IPC.
2. I have heard Shri Javed Hussain, Ld Legal Aid Counsel for the convict and Ld. Addl. PP for the State on the point of sentence.
3. It is submitted by Ld. counsel that the convict is aged about 33 years. He is in custody since 30.03.2016. He has a family comprising of his old aged parents, wife and a son aged 4 years. His elder brother is mentally retarded. He also takes care FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 22/26 of the children of his elder brother. He is a rickshaw puller. He used to earn Rs.8,000/ per month. He does not have any criminal antecedents. Ld. counsel stated that keeping in view the antecedents of the convict, his family circumstances and his conduct during the course of trial, leniency be shown while awarding the sentence.
4. Ld. Addl. PP on the contrary argued that the convict does not deserve any leniency and his case does not fall under special circumstances. The prosecutrix used to work as maid. The accused is closely related to the prosecutrix. He is the husband of her cousin. She suffered from the Chicken Pox. She was alone. The accused brought her in his house. There he assaulted her and used criminal force to outrage her modesty. On 28.03.2016 night at about 4.00 a.m, he committed sexual intercourse with her forcibly. He also threatened her to kill if she disclosed the incident to anyone. On 29.03.2016 at 9.30 p.m, he came at her house and threatened her to repeat the said act again.
5. I have considered the submissions.
6. The Apex Court in Ankush Maruti Shinde & Ors. Vs. State of Maharashtra 2009 AIR SCW 4022 has observed:
"Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice or "order" should meet the challenges confronting the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 23/26 committed. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration.
The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.
7. In the judgment reported in MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court has observed that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 24/26 very soul of the helpless female.
8. In State of UP Vs. Naushad, Crl. Appeal No. 1949 of 2013, it was held: "A woman' body is not a man's play thing and he cannot take advantage of it in order to satisfy his lust and desire by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it.
9. The convict in this case has committed the vile act of outraging the modesty of the prosecutrix and committing rape upon her who is closely related to him. He also threatened to kill her. It is true that the convict is aged about 33 years and has a family to support but on the other hand, it cannot be lost sight of the fact that he committed the said act with his close relative and such offence is universally considered to be amongst the most morally and physically, reprehensible crime in society and assault on the body, mind, privacy and the entire fabric of the victim. Her dignity is shredded..".
10. Keeping in view his antecedents, age and the facts and circumstances of the case, I sentence the convict to undergo rigorous imprisonment for a period of two (02) years and to pay fine of Rs.5,000/, in default thereof to undergo simple imprisonment for a period of three months for the offence punishable under section 354 IPC. He is sentenced to undergo rigorous imprisonment for a period of seven (07) years and to pay a fine of Rs.15,000/, in default thereof to undergo simple FIR No. : 113/16 PS : New Friends Colony State Vs. Mohd. Islam Page No. 25/26 imprisonment for a period of four months for the offence punishable under section 376 IPC. The convict is sentenced to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs.5,000/, in default thereof to undergo simple imprisonment for a period of two months for the offence punishable under section 506 IPC. He be given benefit of section 428 CrPC. All the sentences shall run concurrently. The fine amount, if realized, be paid to the prosecutrix after the expiry of the period of appeal.
11. I also recommend that appropriate compensation under section 357A CrPC be awarded to the prosecutrix. A copy of this order be sent to the Secretary, Delhi Legal Service Authority, South District, New Delhi for deciding the quantum of compensation to be awarded under the scheme referred to in sub section 1 of section 357A CrPC.
12. Attested copy of the judgment, order on sentence, copy of charge, evidence, statement under section 313 CrPC, exhibited documents be given to the convict, free of cost.
13. File be consigned to record room.
Announced in the open court today i.e. 10.08.2017 (Sanjiv Jain) ASJSpl. FTC / South East Saket Courts, New Delhi.
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