Delhi District Court
State vs Mohd. Ibrahim Ansari, S/O. Mohd. on 2 May, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 28558/2016
Sessions Case No. 65/2015
Assigned to Sessions. 23.12.2015
Arguments heard on 24.04.2018
Date of Judgment 02.05.2018
FIR No. 203/2015
State Vs Mohd. Ibrahim Ansari, S/o. Mohd.
Rashid, r/o. 1416, Ground Floor,
Gali Godnewali, Kala Mahal, Jama
Masjid, Delhi.
Police Station Jama Masjid
Under Section 376 (2)(n)/376 (2)(h)/341/506 IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Jama Masjid had filed a challan vide FIR No. 203/2015 dated 18.11.2015 u/s 376/376 (2)(N)(H) IPC for the prosecution of accused Mohd. Ibrahim Ansari in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is a Special Fast Track Court designated for trial of the cases pertaining to crime against women, this case was allocated to this court by Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi for trial. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the identity of prosecutrix is not being disclosed in the judgment.
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2. The criminal law set into motion on the statement of the prosecutrix, Ex.PW2/A wherein she has stated that she had come from Kashmir along with her friend Altaf and had stayed on rent in the house of accused where accused was also residing at the ground floor and during absence of his friend Altaf, on 13.11.2015 at about 8:00 p.m., accused came in her room and enquired about Altaf and when she told him that Altaf had gone outside to bring articels, he closed the door of the room and put off the light, gagged her mouth and raped her, accused threatened her that if she would raise alaram he will get her arrrested by the police saying that she had eloped with Altaf from Kashmir. Thereafter, on 15.11.2015 in the night at about 2:00 a.m. when she was in bathroom, accused came there and raped her. She further alleged that on 16.11.2015 while Altaf was asleep, accused raped her and on 17.11.2015 at about 8:00 p.m. when she had gone to bathroom, accused had already hided himself there and he again raped her in the bathroom. Finally, she mustered courage and informed the incident of rape to her friend Altaf who called the police on number 100 and DD No.4A and 6A were lodged in PS Jama Masjid on the basis of which W/SI Mumtaz came at the spot, met the prosecutrix and took her for her medical examination in LNJP Hospital. The prosecutrix was medically examined vide MLC Ex.PW2/A and an emergency card Ex.PW3/A was also prepared by the doctors. In the alleged history given by prosecutrix to doctor, she named accused as the person who raped her.
3. Accordingly, on the basis of statement of prosecutrix FIR No.203/2015 u/s 376/376 (2)(n) IPC was registered against accused. During the course of investigation, police had arrested accused on 18.11.2015. He Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 was also medically examined in LNJP Hospital vide MLC Ex.PW10/A, his emergency casualty card Ex.PW14/D was also prepared. Thereafter, on 19.11.2015, statement of prosecutrix u/s 164 Cr.P.C. was recorded by Ld. Magistrate wherein she also reiterated her allegation of rape committed by rape several time upon her by accused. The exhibits of prosecutrix and accused prepared by the doctors were sent to FSL Rohini. Thereafter, on completion of investigation chargesheet was filed in the court of Ld. MM and case after committal was assigned to this court for trial.
CHARGE:
4. On the basis of material available on record, ld. Predecessor of this court vide order dated 06.01.2016 framed charges against accused u/s 376 (2)
(n)/341/506 IPC to which accused did not plead guilty and claimed trial. Ld. Predecessor of this court again vide order 28.01.2016 framed amended charges against accused Mohd. Ibrahim Ansari for the offence punishable u/s 376 (2)(n)/376 (2)(h)/341/506 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution has examined 16 witnesses namely PW1 SI Swadesh Kumar, PW2 Prosecutrix 'F', PW3 Dr. Harveen Kaur, PW4 Mohd. Altaf Nangroo, PW5 HC Mushtaq Khan, PW6 Mohd. Hafiz, PW7 Dr. Yashi Rawat, PW8 HC Tara Chand, PW9 SI Pankaj, PW10 Dr. Tanvi Gupta, PW11 Dr. Arun Kumar, PW12 SI Mohd. Inam, PW13 Ms. Mona Tardi Kerketta, Ld. MM, PW14 W/SI Mumtaz Bano, Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 PW15 ASI Adesh Sharma and PW16 Ms. Monika Chakravarty, Sr. Scientific Assistant (Biology).
6. PW1 SI Swadesh Kumar is a DD Writer. This witness has proved the copy of DD No.4A, DD No.6A, DD No.8A, DD No.9A and DD No.10A vide Ex.PW1/A to Ex.PW1/E respectively.
7. PW2 Prosecutrix 'F' is a material witness being victim and complainant.
She deposed that about 12 years ago, she got married to Faiyaz Ahmed Shah and that three children were born from that wedlock and that about 02 months prior to registration of present case, Faiyaz Ahmed Shah divorced her.
8. PW2 further deposed that in the month of November, 2015, she along with her friend Altaf eloped to Delhi from Kashmir to marry him and that when her husband came to know that she has eloped with Altaf, her husband divorced her. She further deposed that Altaf was known to her for last 15 years i.e. even prior to her marriage with Faiyaz. PW2 further deposed that Altaf took a room on rent in the area of Darya Ganj and they stayed there for 15 days. Thereafter, they took a room on rent of Rs. 3,000/ per month at ground floor in the house of accused Ibrahim Ansari. Before taking room on rent at the house of accused Ibrahim, they also stayed at his house for 56 days. She deposed that she does not remember the address of house of accused Ibrahim, but it was in the area of Kala Mahal, Delhi and that accused Ibrahim was living in another room opposite to their room on the ground floor itself.
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9. PW2 further deposed that she does not remember the date of incident, but it happened at about 8 PM. On that day, her friend Altaf had gone to the market and she was alone at her rented room. Accused came there and asked about whereabout of Altaf. She told him that Altaf had gone out. She deposed that thereafter, accused shut the door of the room and also switched off the light and committed sexual intercourse with her forcibly and that when she objected, accused threatened her that he will call the police and get her arrested by telling them that she has eloped and come from Kashmir. She got afraid and did not raise any alarm and that accused left the room.
10. PW2 further deposed that after four days of the aforesaid incident, at about 11 PM, while Altaf was sleeping in the room, she went to bathroom which is outside their room. She deposed that accused Ibrahim was already present in the bathroom. He again committed sexual intercourse with her forcibly in the bathroom. She did not raise any alarm as she was scared because accused had already threatened her to get her caught by police stating that she has eloped with Altaf. She did not tell the incident to Altaf because of the aforesaid threat extended to her by accused.
11. She further deposed that after about four days of the aforesaid incident happened in the bathroom, accused again came to her aforesaid room at about 9.30 PM when she was alone in her room and that Altaf had gone out. Accused again committed rape on her forcibly. Accused did not do any such act in the aforesaid bathroom again with me.
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12. PW2 further deposed that after about five days, at about 8 PM, accused again came to her room when Altaf had gone out. She pushed him out of the room. In the meantime, Altaf also came up at the room, then she narrated the entire incident to him. She deposed that Altaf also gave her beatings stating that why she had not informed him about the incidents earlier. She deposed that she told Altaf that since accused Ibrahim had threatened her in the aforesaid manner, she could not tell the incident to him. Thereafter, Altaf called the police at 100 number.
13. PW2 further deposed that two lady police officials and three male police officials came at their room. She narrated the incident to police officials. She further deposed that accused Ibrahim was also present at the spot and he had gone to the room of his brother at the upper floor of the house. Police apprehended the accused in her presence. PW2 has proved her statement vide Ex. PW2/A. She further deposed that she does not remember the dates of incidents because of trauma she suffered after the incidents. She deposed that the first incident occurred on the next date of Diwali.
14. PW2 has proved her MLC vide Ex. PW2/A. She deposed that at the time of aforesaid incidents, she was carrying pregnancy of about three months. PW2 has proved her statement u/s 164 Cr.P.C. vide Ex PW2/C. This witness has proved arrest memo of accused vide Ex.PW2/D and his personal search was conducted vide memo Ex. PW2/E. This witness has proved checkup of her pregnancy i.e. OPD Card vide Ex. PW2/F. Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27
15. Ld. Addl. PP for the State states that the case property i.e. clothes and other exhibits of the witness have been sent to FSL and the report is awaited. He further submits that the statement of the witness may be recorded today subject to liberty to seek recall/reexamination of witness after receipt of FSL result, if required. Considering the submissions made and keeping in view the aforesaid condition of prosecutrix, let her statement be recorded further.
16. On being cross examined by Ms Promila Gupta, ld. counsel for accused, this witness deposed that no FIR was registered against her and Altaf in Kashmir before they came to Delhi. This witness admitted that she had stated in her statement Ex. PW2/A that she accompanied her friend Altaf to Delhi to marry him. Before they came to Delhi, her husband had already divorced her. She was not carrying the divorce papers with her when she came to Delhi. She deposed that the divorce papers are with her brother in Kashmir.
17. On Court Question: If you are already married to Altaf, why do you want to return to Kashmir to your previous husband Faiyaz Ahmed Shah? This witness replied that Altaf has now divorced her after his wife and children came to Delhi and now her previous husband is ready to accept her again. This witness admitted that she had stated in her statement Ex.PW2/C that she had asked Accused Ibrahim to give her Rs.1000/. She had asked him for this money as she wanted to return to Kashmir as "mujhe mere bacchon ke yaad aa rahi thi". This witness had denied to suggestion that she had asked him for the money as Altaf did not have any money for her expenses. Ibrahim did not give her any Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 money. This witness admitted that when she asked accused Ibrahim for money, he went upstairs to call his brother. She does not know why he went to call his brother. This witness had denied to suggestion that accused had gone upstairs to call his brother as she had threatened him that she will get him implicated in a false case in case he will not give her money. She deposed that she had asked Accused Ibrahim for money and not Altaf as he had refused to give her money and he was not letting her return to Kashmir and he asked her to stay in Delhi.
18. This witness admitted that she has stated in her statement Ex.PW2/A that Accused used condom every time he committed rape upon her. She further deposed that she had stated to the examining doctor that Accused committed rape upon her for 07 days every night.
19. She deposed that she had stated to the police as well as Ld. MM that Altaf had told accused Ibrahim about her pregnancy. She was confronted with statements Ex. PW2/A and Ex. PW2/C where it is not so recorded.
20. On Court Question: If you were aware that Altaf was already married then why did you marry him? The witness has not responded to this question despite asking the same repeatedly. She has bent her head down and kept mum. She deposed that she is not aware of the expected date of her delivery. However, she is having eight months of pregnancy.
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21. She deposed that she had stated to the examining doctor as well as to Ld. MM in her statement Ex. PW2/C that when Altaf reached there, he gave her beatings as she had not disclosed the incident to him earlier. She had stated these facts to the police also in her statement Ex. PW2/A. She was confronted with statement Ex. PW2/A where it is not so recorded.
22. PW3 Dr. Harveen Kaur has proved MLC of prosecutrix vide Ex.PW2/A. This witness has proved casualty card prepared qua the medical examination of the patient vide Ex.PW3/A.
23. On being cross examined by Ms. Promila Gupta, ld. Counsel for accused, this witness deposed that patient was carrying pregnancy of 20 weeks at the time of her medical examination. She deposed that patient has also injury on her cheeks, left arm and both legs.
24. PW4 Mohd. Altaf Nangroo deposed that he is doing the business of Shawl and that prosecutrix is known to her for the last 10/15 years. He furhter deposed that she is married and that about six months ago prosecutrix got divorce from her husband in J & K. After the divorce of the prosecutrix he brought her to Delhi probably in the month of October, 2015 to marry her. They stayed together at the house of the accused, present in the court (correctly identified by the witness), for 5/7 days.25. He further deposed that accused was known to him for last 56 years. Whenever he used to come to Delhi in connection with the business of shawl he used to stay at his house.
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25. He further deposed that after staying 56 days at the house of the accused, he along with the prosecturix went to Modi Nagar, U.P. at the house of his friend Goverdhan to stay there and that they stayed there for 5/6 days. He further deposed that after returning from there they took a room on rent at Jagat Cinema Wali Gali, Jama Masjid, Delhi. They stayed there for 67 days. He further deposed that in the meantime accused met him and told him that a room was vacant in house. He took that room on the ground floor on rent from the accused at the rate of Rs. 3000/ per month. Accused Ibrahim was also residing in a room on the ground floor opposite to their rented room.
26. He further deposed that after 4/5 days at about 01.00 am when he was sleeping in the room, prosecutrix had gone to washroom, however, she came running to her condition, initially she was not inclined to reveal anything to him but on his persistent asking, she told her that accused had committed rape with her 4/5 times. She further told him that accused had committed rape with her in the bathroom as well as outside the room. He scolded the prosecutrix and gave her beatings as to why she had not revealed the incident to him earlier. She told her that accused had threatened her that he would get her apprehended by the police and he would get her killed by "Daaku" known to him. He further deposed that during their initial stay at the house of the accused, he had told everything about her relations to the accused and also told him that prosecutrix was carrying three months old pregnancy in the presence of prosecutrix. The said pregnancy was caused by previous husband, Faiyaz, of the prosecutrix.
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27. On being cross examined by Ms. Promila Gupta, counsel for accused,
this witness deposed that prosecutrix was known to her even before her marriage with Faiyaz. He had a love affair with the prosecutrix even before her marriage. He further deposed that he is married and having two daughters from other woman. Husband of the prosecutrix had not divorced her due to his relations with the prosecutrix. He further deposed that he does not have any paper with regard to divorce of the prosecutrix from her previous husband. He denied to the suggestion that he did not have money to pay rent of any room. They initially had stayed at the house of the accused being known to him. He deposed that he did not pay any rent to the accused as he had stated to him that he would pay the same at the time of leaving the room. He deposed that he had not sent the prosecutrix to the accused for money but she had told him that she had gone there. This witness had denied to the suggestion that he had demanded the money from the accused and threatened him that if he would not give money, he would falsely implicated him in rape case.
28. PW5 HC Mushtaq Khan is a formal witness being Duty Officer. He has proved rukka vide Ex.PW2/A, computerized copy of FIR vide Ex.PW5/A, endorsement on the rukka vide Ex.PW5/B and certificate u/s 65B of Indian Evidence Act qua the present FIR vide Ex.PW5/C.
29. PW6 Mohd. Hafiz is the younger brother of accused. He deposed that pursuing to a notice issued by the police to him, he had replied the same vide Ex.PW6/A. He deposed that he had also handed over the copy of his Aadhaar Card to the police vide Ex.PW6/B and he had also handed over the copy of the Aadhaar Card of the accused to the police vide Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 Ex.PW6/C.On being cross examined by Ms. Promila Gupta, ld. counsel for accused, this witness admitted that there was no rent agreement between the Altaf and accused.
30. PW7 Dr. Yashi Rawat has proved MLC of prosecutrix vide Ex.PW7/A. She deposed that during her medical examination, she had also notice following injuries on the person of the patient :
1. Bruise below the right eye.
2. Abrasion on the right and left shin.
3. Abrasion over left forarm.
4. Abrasion on the external genitalia.
31. PW8 HC Tara Chand is the photographer. He had taken 21 photographs from different angles of place of incident and proved the same vide Ex.PW8/A1 to Ex.PW8/A21. This witness has brought the negatives of the said photographs and proved the same vide Ex.PW8/A22 to Ex.PW8/A42.
32. PW9 SI Pankaj has prepared his crime team report vide Ex.PW9/A and handed over the same to Inspector Dhan Singh. On being cross examined by Sh. Kanwar Faisal, ld. counsel for accused, this witness admitted that he had prepared the report Ex.PW9/A on the spot and handed over the same to Insp. Dhan Singh.
33. PW10 Dr. Tanvi Gupta has conducted the medical examination of accused vide MLC Ex.PW10/A. Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27
34. PW11 Dr. Arun Kumar has conducted potency test of accused vide Ex.PW10/A and found nothing to suggest that he was incapable to perform sexual intercourse under normal examination.
35. PW12 SI Mohd. Inam is the witness of arrest and MLC of accused.
MLC. During his working hours at about 01.52 am, DD no.4A was marked to him and thereafter, he alongwith W/Ct. Parvenderi reached the place of incident i.e. house no.1416, Ground Floor, Gali Godne Wali, Kala Mahal, Delhi where Prosecutrix and her friend Mohd. Altaf, present in the court today (correctly identified) were found present there. They disclosed that they had come from Kashmir. Prosecutrix disclosed me that accused Mohd. Ibrahim had committed rape on her on 13.11.2015, 16.11.2015 and 17.11.2015. This witness along with Ct. Sher Singh took the accused Mohd. Ibrahim in Lok Nayak Hospital and got his medical examination conducted vide MLC Ex.PW12/A. This witness has proved the arrest memo of accused vide Ex.PW12/B and his personal search memo vide Ex.PW12/C. In his presence, IO had also recorded disclosure statement of accused vide Ex.PW12/D. Thereafter, this witness alongwith Ct. Sher Singh and W/SI Mumtaz again took the accused his potency test to Maulana Azad Medical College where he was medically examined vide MLC already Ex.PW10/A. Blood sample of the accused was also taken by the doctor who had conducted his medical examination. Blood sample with sample seal was taken into possession by the IO.
36. On being cross examined by Sh.Kanwar Faisal, ld. counsel for accused, this witness deposed that no public person was present there at that time.
Case No.28558/2016State v. Mohd. Ibrahim Ansari /27 This witness admitted that area is thickly populated area.
37. On seeing statement u/s161 Cr.PC Ex.PW12/DA available on judicial record with the permission of the court, he admits that dates of incident as stated by the prosecutrix are not mentioned therein.
38. This witness had denied to the suggestion that he had not accompanied accused and prosecutrix to the hospital for their medical examination or that after receiving the DD no.4A, he had not reached there or that accused, prosecutrix and her friend were called at police station or that accused had been implicated in the present case or that he is am deposing falsely at the instance of senior police officials.
39. PW13 Ms. Mona Tardi Kerketta, Ld. MM has recorded the statement u/s 164 Cr.P.C. vide Ex.PW2/C.
40. PW14 W/SI Mumtaz Bano, is the investigating Officer. She deposed on the lines of investigation. She has proved DD No.4A Ex.PW1/A and DD No.6A already Ex.PW1/B and DD No.9A vide Ex.PW1/D. This witness has got medically examined the accused from LNJP Hospital and medical examination of prosecutirx vide MLC Ex.2/A. Ms. Pearl Messy, Counselor from NGO had also reached the hospital. The examining doctor of the prosecutrix had also taken sexual assault kit, collected exhibits pertaining to the prosecutrix and her clothes, preserved, sealed and handed over to me along with sample seal which she seized vide memo Ex.PW14/A. Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27
41. This witness deposed that when she had gone to the hospital for medical examination of the prosecutrix, Insp. Dhan Singh had also got the scene of crime inspected by Incharge Crime Team vide report already Ex.PW9/A. The member of crime team had also taken photographs from scene of crime vide Ex.PW8/A1 to A21 and their negatives are already Ex.PW8/A22 to A42.
42. This witness had recorded statement of prosecutrix vide Ex.PW2/A and made endorsement on the said statement at point C to C bearing her signature at point D and got the present FIR already Ex.PW5/A registered. Thereafter, she alongwith the prosecutrix again went to the place of incident where she pointed out the same and she prepared site plan Ex.PW14/B. This witness had interrogated the accused and arrested him vide arrest memo already Ex.PW12/B, personal search memo already Ex.PW12/C and also recorded disclosure statement of accused vide memo already Ex.PW12/D.
43. This witness deposed that the said Ct. Sher Singh had got the formal medical examination of the accused conducted vide MLC already Ex.PW12/A and thereafter, accused was referred to the Department of Forensic Medicine for his potency test. On that day the potency test of the accused could not be conducted as the Department of Forensic Medicine was not working at that time. This witness has along with Ct. Sher Singh again took the accused to the Department of Forensic Medicine where his potency test was conducted vide MLC already Ex.PW10/A. The doctor who had conducted medical examination of the accused had also handed over me the exhibits pertaining to the accused Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 in sealed condition along with the sample seal which she seized vide seizure memo Ex.PW14/C. Casualty card prepared qua medical examination of the accused Ex.PW14/D. This witness has got recorded the statement of the prosecutrix u/s 164 Cr.P.C. vide Ex.PW2/C.
44. On being cross examined by ld. counsel for accused, this witness admitted that the place as mentioned in the site plan is densely populated area. No public person had joined the proceedings during their stay at the house of accused. She further deposed that she had not made any inquiry from the husband of the prosecutrix as he was in Kashmir. She had not passed over any detailed information to him regarding the present case. This witness had denied to the suggestion that present case was got registered by the prosecutrix just to extort money from the accused and to blackmail him or that prosecutrix and her friend were not residing as a tenant in the house of accused.
45. PW15 ASI Adesh Sharma is the MHC(M). He deposed that he had made relevant entries pertaining to this case in register No.19 and proved the same vide Ex.PW15/A. He further deposed that on 24.11.2015, I.O. W/SI Mumtaz had taken the custody of the exhibits/case property pertaining to this case from her, carried them to FSL Rohini vide road certificate Ex.PW15/B and deposited them at FSL Rohini against the acknowledgement Ex.PW15/C.
46. PW16 Ms. Monika Chakravarty, Sr. Scientific Assistant (Biology) has examined the exhibits of this case and proved her report vide Ex.PW16/A. She further deposed that after examining the exhibits that Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 "DNA profiling performed on exhibits as described in her report is sufficient to conclude that DNA profile generated from source of exhibits '2q' (blood sample of victim) were similar with the DNA profiles generated from source of exhibits 'la' (salwar of victim) and '2kl1' (cervical and veginal swab), whereas the main DNA profiles generated from source of exhibits 'la' (salwar of victim) were not similar with DNA profiles generated from source of exhibits '3' (gauze cloth piece) of accused."
STATMENT OF ACCUSED U/S 313 CR.P.C.:
47. After prosecution evidence, statement of accused u/s 313 Cr. P.C. was recorded where accused denied all allegations, evidence and circumstances put to him. Accused claimed that prosecutrix and Altaf has been running a racket and used to extort money from the innocent persons and they had also demanded money from him and on her refusal they have falsely implicated in the present case. He further deposed that he had not committed rape on the prosecutrix. He is innocent. Accused has not preferred to lead evidence in his defence. Thereafter, case was fixed for final arguments.
ARGUMENTS:
48. Ld. Addl. PP for the State submitted that the prosecutrix PW2 has supported the case of prosecution on all material points. She has specifically named accused and identified him as the person who had raped her several time while she was staying in her house in the rented accommodation at ground floor.
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49. Ld. Addl. PP further submitted that prosecutrix has given a caterogically narration of all the events and incidents of rape committed by accused in the bathroom as well as in room. She has explained the delay in informing the incident to her friend Altaf as she was threatened by accused that he would get her implicated in any case by police being from Kashmir. The testimony of prosecutrix is natural and is not suffering from any material contradictions or improvements. Accused while staying at the ground floor in the same house has taken advantage of the absence of Altaf Nangroo, friend of prosecutrix and then committed rape with her.
50. The testimony of prosecutrix is also corroborated with the version of PW4 Altaf Nangroo and PW7 Dr. Yashi Rawat and PW3 Dr. Harveen Kaur who had examined the prosecutrix and in the alleged history observed the version of the prosecutrix where the name of accused is mentioned by the prosecutrix as the person responsible for committing rape with her.
51. Ld. Addl. PP further submitted that no benefit can be given to the accused of the prosecutrix not appearing in court after she was subsequently summoned to identify her clothes which were seized by the doctors as the prosecutrix has otherwise been examine by the prosecution and then cross examined by the accused on all material points and the only liberty given to the prosecution was that if prosecution wishes to examine the prosecutrix regarding her clothes she can be summoned and reexamined on the filing of FSL result in court. Since the prosecutrix did not appear for reexamination on the basis of summons and later on Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 warrants issued to her, the prosecution did not choose to examine her any further in the case and when as per the report of DCP, she was not found present in her house and could not be served, her further reexamination was not considered relevant. Hence, no benefit of any kind can be given to the accused for the issue that prosecutrix could not be reexamined in the case as such her testimony recorded in the case before ordering of her reexamination would be considered as complete and should be relied upon. Ld. APP for the State further submitted that statement of prosecutrix before the court is sufficient to convict the accused persons for offence charged as prosecution has proved its case beyond reasonable doubt.
52. On the other hand, Ld. counsel for accused submitted that testimony of prosecutrix is contradictory, hence, same is not trustworthy and reliable. She deposed in her deposition before the court that about 12 years ago, she got married to Faiyaz Ahmed Shah and three children were born from that wedlock whereas in her counselling report she stated that she has one child and one child in his womb.
53. Ld. counsel for accused further submitted that incident had happened on 17.11.2015 at 8:00 p.m. but information was given to police at 100 number on 18.11.2015 at 1:52 a.m.
54. Ld. counsel for accused further submitted that DNA report is negative. ld.
Counsel for accused further submitted that I.O. has not properly investigated the matter.
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55. Ld. counsel for accused further submitted that she had asked Accused Ibrahim for money and not Altaf as he had refused to give her money and he was not letting her return to Kashmir and he asked her to stay in Delhi. On these grounds, ld. counsel for accused has prayed for acquittal of accused from the charges.
PERUSAL OF RECORD:
56. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW2/A, present case was registered against the accused.
57. It is further revealed that PW14 W/SI Mumtaz Bano along with W/Ct.
Parvendri and PW12 SI Inam got the medical examination of prosecutrix PW2 conducted from LNJP Hospital vide MLCs, Ex.PW2/A and Ex.PW7/A. PW7 Dr. Yashi Rawat had conducted formal medical examination of the prosecutrix PW2 and further referred her to the department of Obs. & Gynae. for further evaluation. PW3 Dr. Harveen Kaur conducted internal medical examination of prosecutrix PW2 vide MLC Ex.PW2/A and casualty card Ex.PW3/A. PW3 Dr. Harveen Kaur also collected the exhibits pertaining to prosecutrix PW2, sealed the same and handed over to PW14 W/SI Mumtaz Bano, who seized the same vide seizure memo Ex.PW14/A.
58. It is further revealed that Insp. Dhan Singh had also got the scene of crime inspected vide crime report Ex.PW9/A; the scene of crime was inspected by PW9 SI Pankaj, Incharge Crime Team. PW8 HC Tara Chand, Photographer had taken photographs, Ex.PW8/A1 to A21 from the scene of crime; the negatives of the same are Ex.PW8/A22 to A42.
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59. It is further revealed that PW14 W/SI Mumtaz Bano recorded the statement of prosecutrix PW2, Ex.PW2/A and got the present FIR, Ex.PW5/A registered; FIR was recorded by PW7 HC Mustaq Khan; PW7 HC Mustaq Khan also made endorsement, Ex.PW5/B on the said rukka; PW7 HC Mustaq Khan also gave certificate under section 65 B of the Evidence Act, Ex.PW5/C.
60. It is further revealed that PW14 W/SI Mumtaz Bano also prepared site plan, Ex.PW14/D with regard to the place of incident at the instance of prosecutrix PW2.
61. It is further revealed that PW14 W/SI Mumtaz Bano arrested accused vide arrest memo Ex.PW12/B and personal search memo Ex.PW12/C and information regarding his arrest was given to his brother, Mohd. Hafiz vide DD no.16A, Ex.PW14/E.
62. It is further revealed that PW14 W/SI Mumtaz Bano also recorded disclosure statement of accused vide Ex.PW12/D. Ct. Sher Singh got medical examination of accused conducted vide MLC Ex.PW12/A and casualty card Ex.PW14/D. His potency test was also got conducted vide MLC Ex.PW12/A by PW12 SI Mohd. Inam, Ct. Sher Singh and PW14 W/SI Mumtaz Bano from Maulana Medical Azad College. It was conducted by PW11 Dr. Arun Kumar. PW10 Dr. Tanvi Gupta also conducted his medical examination vide endorsement at point 'A to A' on the MLC, Ex.PW10/A. Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27
63. It is further revealed that Ct. Sher Singh had also handed over the exhibits pertaining to accused to PW14 W/SI Mumtaz Bano, who seized the same vide seizure memo Ex.PW14/C. PW14 W/SI Mumtaz Bano also recorded DD no.22A, Ex.PW14/F with regard to his production before concerned court and non recording of statement of prosecutrix PW2 under section 164 Cr.P.C.
64. It is further revealed that PW14 W/SI Mumtaz Bano also got the statement of prosecutrix PW2, Ex.PW2/C, under section 164 Cr.P.C. PW14 W/SI Mumtaz Bano also collected DD no.10A, Ex.PW1/E regarding patrolling duty of Insp. Dhan Singh.
65. It is further revealed that PW15 ASI Adesh Sharma proved the relevant entries of register no.19, Ex.PW15/A, road certificate vide which the exhibits were carried to FSL Rohini, Ex.PW15/B and acknowledgement with regard to the receipt of said exhibits, Ex.PW15/C.
66. It is further revealed that PW1 SI Swadesh Kumar recorded DD nos. 4A, 6A, 8A, 9A and 10/A, Ex.PW1/A to Ex.PW1/E respectively.
67. Before reaching at any conclusion let the relevant sections i.e. 376 (2)
(n)/376 (2)(h)/341/506 IPC be reproduced, which are as under : Section 376 (2)(n) IPC:
Punishment for rape - Whoever commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 376 (2)(h) IPC:
Punishment for rape - Whoever commits rape on a woman Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 knowing her to be pregnant; shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 341 IPC:
Punishment for wrongful restraint. Whoever, wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS :
68. Arguments heard. Record perused. It is revealed that on the statement of prosecutrix Ex.PW2/A, present case was registered. In her testimony before the court she stated that about 12 years ago, she got married to Faiyaz Ahmed Shah and that three children were born from that wedlock and that about 02 months prior to registration of present case, Faiyaz Ahmed Shah divorced her.
69. Prosecutrix further stated that in the month of November, 2015, she along with her friend Altaf eloped to Delhi from Kashmir to marry him and that when her husband came to know that she has eloped with Altaf, her husband divorced her. She further stated that Altaf was known to her for last 15 years i.e. even prior to her marriage with Faiyaz. PW2 further deposed that Altaf took a room on rent in the area of Darya Ganj and they stayed there for 15 days. Thereafter, they took a room on rent of Rs. 3,000/ per month at ground floor in the house of accused Ibrahim Ansari. Before taking room on rent at the house of accused Ibrahim, they also Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 stayed at his house for 56 days. She stated that she does not remember the address of house of accused Ibrahim, but it was in the area of Kala Mahal, Delhi and that accused Ibrahim was living in another room opposite to their room on the ground floor itself.
70. PW2 further stated that she does not remember the date of incident, but it happened at about 8 PM. On that day, her friend Altaf had gone to the market and she was alone at her rented room. Accused came there and asked about whereabout of Altaf. She told him that Altaf had gone out. She deposed that thereafter, accused shut the door of the room and also switched off the light and committed sexual intercourse with her forcibly and that when she objected, accused threatened her that he will call the police and get her arrested by telling them that she has eloped and come from Kashmir. She got afraid and did not raise any alarm. PW2 further deposed that after four days of the aforesaid incident, at about 11 PM, while Altaf was sleeping in the room, she went to bathroom which is outside their room. She stated that accused Ibrahim was already present in the bathroom. He again committed sexual intercourse with her forcibly in the bathroom. She did not raise any alarm as she was scared because accused had already threatened her to get her caught by police stating that she has eloped with Altaf. She did not tell the incident to Altaf because of the aforesaid threat extended to her by accused.
71. She further deposed that after about four days of the aforesaid incident happened in the bathroom, accused again came to her aforesaid room at about 9.30 PM when she was alone in her room and that Altaf had gone out. Accused again committed rape on her forcibly.
Case No.28558/2016State v. Mohd. Ibrahim Ansari /27
72. PW2 further stated that after about five days, at about 8 PM, accused again came to her room when Altaf had gone out. She pushed him out of the room. In the meantime, Altaf also came up at the room, then she narrated the entire incident to him. She deposed that Altaf also gave her beatings stating that why she had not informed him about the incidents earlier. She deposed that she told Altaf that since accused Ibrahim had threatened her in the aforesaid manner, she could not tell the incident to him. Thereafter, Altaf called the police at 100 number.
73. From the testimony recorded in court prosecutrix has made several improvement and contradiction in her testimony and she had not given any date and time of incident she has deposed that she had come to Delhi in the Month of November '2015 along with her friend Altaf from Kashmir and she has also stated that for 15 days , she and her friend Altaf had stayed in a room in the area of Darya Ganj and thereafter, they had taken the room in the house of accused on rent which fact would show that prosecutrix and her friend Altaf may have come to stay in the house of accused after 15th of November'2015 as such it is a material contradictions which is not explained by prosecutrix or her friend Altaf.
74. The testimony of prosecutrix is also not corroborated on material points as deposed by PW4 Altaf who stated that he and prosecutrix had come to Delhi in the month of October'2015 and stayed in the house of accused for 57 days. PW4 also could not depose about any specific date of rape committed by accused with prosecutrix. It was natural on the p art of PW4 to have to come to know at least one of the dates of incidents of Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 rape told to him by prosecutrix and therefore, he could at least have remembered one or two dates of incidents.
75. Further, as per the investigation carried by the I.O., that the house of accused where incident allegedly took place is situated in a thickly populated area. No public person was joined or examined by PW14 W/SI Mumtaz Bano to know about the incident from the independent source as it was natural that if, PW4 had called the police then some hue and cry should have taken place at the sport and the neighbours/independent persons would have come to know and the version of prosecutrix and PW4 could have been corroborated by the independent person as to what had happened but the prosecution is silent on this issue and did not explain as to why independent person could not examined the persons to ascertained the incident.
76. Further, the clothes of prosecutrix which were sealed by the doctors and converted into parcels, along with other exhibits of the prosecutrix and of the accused were examined by the FSL expert but the DNA profile generated from the source of Ex.1a (salwar of the victim) was not found similar with the DNA profiles generated from the source of Ex.3 (gauze cloth piece of accused). Hence, it also remained scientifically inconclusive to establish that if any sexual assault took placed with the prosecutrix caused by the accused.
77. Though, prosecutrix and her friend has deposed against the accused. But their deposition is not certain and specific regarding the date of incident of rape committed the rape. Considering the overall testimony of Case No.28558/2016 State v. Mohd. Ibrahim Ansari /27 prosecutrix, her friend PW4 Altaf and DNA report, it cannot be said conclusively that accused had sexually assaulted prosecutrix and committed rape with her and therefore, it is highly unsafe to convict the accused only on the basis of oral testimony of prosecutrix which is also not specific regarding date of incidents and full of improvement and contradictions. Hence, in these circumstances, this court is of the view that prosecution has been failed to prove its case beyond reasonable doubt against accused u/s 376 (2)(n)/376 (2)(h)/341/506 IPC. Accordingly, this court acquit accused Mohd. Ibrahim Ansari by giving him benefit of doubt in absence of sufficient evidence.
78. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount for the period of six months.
79. Since prosecutrix has misused the due process of law, hence, she does not deserve for any compensation.
80. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 02.05.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Digitally signed RAMESH by RAMESH
KUMAR
KUMAR Date: 2018.05.03
17:15:56 +0000
Case No.28558/2016
State v. Mohd. Ibrahim Ansari /27