Delhi District Court
State vs . Sallamuddin on 26 July, 2012
1 FIR No. 546/2005
PS S.P. Badli
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 73/11
Unique ID No. : 02404R1305102005
State Vs. Sallamuddin
S/o Mohd. Farzan
R/o C85, Yadav Nagar,
Samay Pur, Delhi.
FIR No. : 546/2005
Police Station : S.P. Badli
Under Sections : U/S 354/376/506 IPC
Date of committal to session Court: 01.11.2011
Date on which judgment reserved: 16.07.2012
Date of which judgment announced: 24.07.2012
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2 FIR No. 546/2005
PS S.P. Badli
JUDGMENT :
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 28.07.2005 Prosecutrix (named withheld being a case u/s 376 IPC) went to the Police Station S.P. Badli and got recorded her statement to W/SI Parvati Devi (PW4) that she is residing with her family at jhuggi no. D38, Suraj Park, J.J. Colony, S.P. Badli, Delhi and does the labour work. For many days she was suffering from the effect of evils spirit (uperi hawa). Somebody told that the mullah of Yadav Nagar does the sorcery (jad phook ka kaam) and gives relief. For this reason on 23.07.2005 her husband had called mullah to her jhuggi. Outside her jhuggi her uncle (chacha) was sitting. Her husband was told by mullah to bring one lota of water from Shiv Mandir situated little away from jhuggi. Her husband went to take water. After this mullah kept three cloves (laung) in her hand and told 'you make a remembrance of kali mai as you are under the effect of three planets (teen grah) which will be removed'. Her head was covered with a black towel and he started touching her breast and started doing the wrong activities (galat kaam). In the meantime, her husband came there. Feeling 2 of 23 3 FIR No. 546/2005 PS S.P. Badli shame she did not disclose the said incident to her husband. Today she has told the incident to her husband on which her husband has brought her to the police station for lodging the complaint. The name of the mullah has been revealed as Sallamuddin S/o Late Sh. Farjan, R/o C85, Yadav Nagar, Samai Pur, Delhi. Legal action be taken against him. The statement has been heard and found to be correct. On the said statement SI W/SI Parvati Devi (PW4) made an endorsement and got lodged an FIR u/s 354 IPC. During the course of investigation the spot was inspected and the site plan was prepared. On the identification of the complainant/prosecutrix accused Sallamuddin was arrested and his personal search was conducted. Statements of the witnesses were recorded.
2. After completion of the investigation chargesheet for the offence under section 354 IPC was filed against accused Sallamuddin in the court of Ld. Metropolitan Magistrate, Rohini, Delhi. After hearing on charge, prima facie a case under section 354 IPC was made out against accused Sallamuddin. Charge was framed accordingly which was read over and explained to him to which he pleaded not guilty and claimed trial.
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3. During course of trial PW1 HC Surya Prakash and PW2 complainant Smt. Sunita Devi were examined in the court of Ld. Metropolitan Magistrate. Ld. APP for the State had moved an application before the Court of Ld. Metropolitan Magistrate under section 323 Cr.P.C stating therein that during examination of PW2 Smt. Sunita, allegations of rape against accused Sallamuddin have been made and prayer for committal of the case to the court of Session was made on which case was committed to the court of Session by the Court of Ld. Metropolitan Magistrate.
4. Upon committal of the case to the court of Session, after hearing on charge prima facie a case u/s 376/506 IPC was made out against the accused. The charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
5. In support of its case prosecution has produced and examined four witnesses. PW1 ASI Surya Prakash, PW2 Ct. Anand, PW3 Prosecutrix and PW4 W/Insp. Parvati Devi.
6. In brief the witnessography of the prosecution witnesses is as under: 4 of 23 5 FIR No. 546/2005 PS S.P. Badli PW1 ASI Surya Prakash is the Duty Officer, who proved the copy of the FIR Ext. PW1/A. PW2 Ct. Anand, who deposed that on 28.07.2005 he joined the investigation with IO PW4 W/SI Parvati and deposed that at the instance of the prosecutrix accused Sallamuddin was apprehended from his house vide arrest memo Ext. PW2/A (also Ext. PW3/B) and his personal search was conducted vide memo Ext. PW2/B. PW3 The Prosecutrix, who deposed regarding the incident and identified the accused and proved his arrest memo Ext. PW3/B (also Ext. PW2/A).
PW4 W/Insp. Parvati Devi is the investigating officer (IO) of this case, who deposed that on 28.07.2005 she recorded the statement of prosecutrix Ext. PW3/A and made endorsement Ext. PW4/A on it and got the case registered u/s 354 IPC and proved the arrest memo of the accused Ext. PW3/B (also Ext. PW2/A) and the site plan Ext. PW4/B and deposed on the investigational aspects.
5 of 23 6 FIR No. 546/2005 PS S.P. Badli The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
7. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
8. Statement of accused Sallamuddin was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He opted not to lead any defence evidence.
9. I have heard the Ld. Addl. PP for the state and Sh. N.K. Sharma, Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge against the accused is that on 23.07.2005 time unknown at jhuggi No. D338, Suraj Park, S.P. Badli, Delhi accused raped 6 of 23 7 FIR No. 546/2005 PS S.P. Badli the prosecutrix (named withheld being a case u/s 376 IPC) forcefully without her consent and against her wishes and also threatened her, if she shouted, she will be killed.
11. PW4 W/Insp. Parvati who was the IO of this case in his examinationinchief has deposed that on 28.07.2005 she was posted at Rape Division, SubDivision, Narela. On that day she was called by the officials of S.P. Badli and she went to the PS S.P. Badli, there she met prosecutrix who was present at the PS S.P. Badli. She recorded her statement Ext. PW3/A which was signed by her (prosecutrix) at pointA and attested by her at PointB. She further deposed that she made endorsement Ext. PW4/A signed by her at PointC under the statement of the prosecutrix and the rukka was handed over to the Duty Officer, who recorded the FIR u/s 354 IPC. She further deposed that she has recorded the statement of the prosecutrix which (what) ever had (been) stated by the prosecutrix to her.
During crossexamination PW4 W/Insp. Parvati Devi has deposed which is reproduced and reads as under:
7 of 23 8 FIR No. 546/2005 PS S.P. Badli "It is correct that prosecutrix have stated only about outraging her modesty and not of rape in her statement Ex. PW3/A. No medical examination of the prosecutrix was got conducted. The statement under section 164 Cr.P.C was not go (so) recorded. She (prosecutrix) never came to the police station with any subsequent complaint about rape on her after lodging her complaint vide her statement Ext. PW3/A. It is wrong to suggest that accused has been falsely implicated in this case."
12. Now let me peruse and analyse the testimony of PW3 prosecutrix.
PW3 Prosecutrix in her examinationinchief has deposed that on 23.07.2005 she was present at her jhuggi no. D338, Suraj Park, J.J. Colony, S.P. Badli, New Delhi and was not well and on inquiry someone has told her that a mullah residing at Yadav Nagar may set her well. Her husband himself had gone and called mullah at their jhuggi. The name of the mullah is Sallamuddin and correctly identified him in the court. She further deposed that mullah started pooja by establishing a photograph of kali Mai in their jhuggi. He also sent her husband to Shiv Mandir for fetching a lota of water. After sending her husband to fetch the lota of water from Shiv Mandir mullah made her to eat five cloves (laung) and after covering her mouth with the black cloth he forcibly committed rape upon her and also threatened her 8 of 23 9 FIR No. 546/2005 PS S.P. Badli if she would raise alarm he would kill her. After committing rape upon her he ran away from the jhuggi. Her husband came at the jhuggi from Shiv Mandir. She further deposed that she narrated the whole incident to him and thereafter alongwith her husband went to the PS. Police recorded her statement Ext. PW3/A signed by her at PointA. Statement was not read over to her, however, she has signed the same. She further deposed that she had stated the same facts to the police as she has stated today in the Court. She has not studied but she can only sign.
In her statement dated 28.07.2005 Ext. PW3/A made to the police, on the basis of which the FIR Ext. PW1/A has been registered, PW3 Prosecutrix has stated that she is residing with her family at jhuggi no. D338, Suraj Park, J.J. Colony, S.P. Badli, Delhi and does the labour work. For many days she was suffering from the effect of evils spirit (uperi hawa). Somebody told that the mullah of Yadav Nagar does the sorcery (jad phook ka kaam) and gives relief. For this reason on 23.07.2005 her husband had called mullah to her jhuggi. Outside her jhuggi her uncle (chacha) was sitting. Her husband was told by mullah to bring one lota of water from Shiv Mandir situated little away from jhuggi. Her husband went to take water. After this mullah kept three cloves (laung) in her hand and told 'you make a 9 of 23 10 FIR No. 546/2005 PS S.P. Badli remembrance of kali mai as you are under the effect of three planets (teen grah) which will be removed'. Her head was covered with a black towel and he started touching her breast and started doing the wrong activities (galat kaam). In the meantime, her husband came there. Feeling shame she did not disclose the said incident to her husband. Today she has told the incident to her husband on which her husband has brought her to the police station for lodging the complaint. The name of the mullah has been revealed as Sallamuddin S/o Late Sh. Farzan, R/o C85, Yadav Nagar, Samai Pur, Delhi. Legal action be taken against him. The statement has been heard and found to be correct.
From above it is clearly indicated that in the statement Ext. PW3/A prosecutrix has not uttered a single word regarding forcible committal of rape upon her by the accused except of touching of her breast by the accused. Nor there is a single word of threatening to her by the accused that if she will raise an alarm he will kill her.
In the circumstances, PW3 prosecutrix has made substantial improvements in her statement made in the Court on the aspect of forcible committal of rape upon her by the accused and of her threatening to kill, if 10 of 23 11 FIR No. 546/2005 PS S.P. Badli she will raise an alarm, which go to the root of the case, therefore, on these counts, the testimony of PW3 prosecutrix does not inspire confidence.
During crossexamination PW3 prosecutrix has deposed that "It is correct that I did not raise any alarm. Vol. I could not raise the alarm as I was threatened by the accused."
Since the factum of extending of any threat by the accused to the prosecutrix is totally missing in the statement Ext. PW3/A made by the prosecutrix to the police and as to what has been deposed by the prosecutrix in the Court in her testimony, amounts to substantial improvement. In the circumstances, the theory of non raising of alarm because of threatening falls flat to the ground.
Further there is no other corroborative material on these aspect on the record.
Undisputably, no medical examination of PW3 prosecutrix was got conducted. To this effect PW3 prosecutrix in her crossexamination has 11 of 23 12 FIR No. 546/2005 PS S.P. Badli specifically deposed that "I was not medically examined by the police before or after the recording of my statement (Ext. PW3/A)."
Moreover, neither the husband nor father in law (chacha sasur) who as per the prosecutrix was sitting outside the jhuggi when accused Sallamuddin had come to the jhuggi, have been cited as the witness nor have been produced and examined by the prosecution.
Further during her crossexamination PW3 prosecutrix has specifically deposed that "It is correct that an application dated 21.07.2008 for further investigation of the case u/s 173 (8) Cr.P.C was moved by me before the Court of Ld. MM signed by me at PointA and the same was withdrawn by me on 29.03.2011 and the application is Ext. PW3/DA."
No plausible explanation has been placed on the record as to why such application was moved and why it was later on withdrawn by the prosecutrix. It speaks volume on the conduct of the prosecutrix.
12 of 23 13 FIR No. 546/2005 PS S.P. Badli PW3 Prosecutrix in her examination in chief has stated that police recorded her statement Ext. PW3/A signed by her at pointA and the statement was not read over to her, however, she had signed the same. Her this part of the testimony is not corroborated by PW4 W/Insp. Parvati Devi, IO who in her examination in chief has specifically deposed that she recorded the statement of the prosecutrix Ext. PW3/A which was signed by her (prosecutrix) at pointA and attested by her (PW4) at pointB. She recorded the statement of the prosecutrix whatever had been stated by the prosecutrix to her.
Moreover, the entire examination in chief of PW3 prosecutrix as well as her statement Ext. PW3/A is totally silent about the time of occurrence and only during her crossexamination prosecutrix has deposed that the incident had taken place on 7.00 PM.
During crossexamination PW3 Prosecutrix has deposed that it is wrong to suggest that I did not lodge any report on 23.07.2005 with the police. Vol. I had gone to the police station in the evening at 7.00 PM.
13 of 23 14 FIR No. 546/2005 PS S.P. Badli The statement Ext. PW3/A of the prosecutrix is dated 28.07.2005. There is no explanation for the negation of the said suggestion by the prosecutrix that she had lodged any report on 23.07.2005 with the police.
In Jai Krishna Mandal & Anr. Vs. State of Jharkhand, (2010) 14 SCC 534, the Hon'ble Supreme Court has held:
"The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
In Rajoo & Ors. Vs. State of Madhya Pradesh, AIR 2009 SC 858, the Hon'ble Supreme Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:
"........It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation 14 of 23 15 FIR No. 546/2005 PS S.P. Badli of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication....... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishments or exaggeration ."
In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, the Hon'ble Supreme Court held as under:
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
In the circumstances, I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt that accused Sallamuddin forcibly committed rape upon the prosecutrix and also threatened her, if she shouted, she will be killed.
I accordingly, acquit accused Sallamuddin for the offences punishable u/s 376/506 IPC.
15 of 23 16 FIR No. 546/2005 PS S.P. Badli However, the act of accused Sallamuddin of touching of the breast of the prosecutrix and use of criminal force against her was committed with intend to outrage her modesty, therefore, is covered within the mischief of Section 354 IPC.
The provisions of Section 354 IPC makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are :
(a)That the assault must be on a woman.
(b)That the accused must have used criminal force on her.
(c)That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not alway decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is 16 of 23 17 FIR No. 546/2005 PS S.P. Badli such as would be an outrage of the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. (Ref: Ram Kirpal Vs. State of MP AIR 2007 SC (Supp) 49).
In state of Punjab Vs. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty' which could be outraged. In answering the above question the majority view of the Hon'ble Supreme Court was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC.
In view of above and in the circumstances, I am of the considered opinion that prosecution has proved beyond shadows of all reasonable doubt that accused Sallamuddin used criminal force upon the prosecutrix (PW3) by touching her breast with intent to outrage her modesty. I accordingly, hold accused Sallamuddin guilty for the offence u/s 354 IPC and convict him thereunder.
17 of 23 18 FIR No. 546/2005 PS S.P. Badli However, prosecution has failed to prove its case for the offences u/s 376/506 IPC against accused Sallamuddin, therefore, accused Sallamuddin is acquitted for the offences u/s 376/506 IPC.
13. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Sallamuddin in the commission of the offence u/s 354 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Sallamuddin beyond shadows of all reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused guilty for the offence punishable u/s 354 IPC and convict him thereunder. However, accused Sallamuddin is acquitted for the offences punishable u/s 376/506 IPC.
Announced in the open Court today on 24th Day of month of July, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
18 of 23 19 FIR No. 546/2005 PS S.P. Badli IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. : 73/11 Unique ID No. : 02404R1305102005 State Vs. Sallamuddin S/o Mohd. Farzan R/o C85, Yadav Nagar, Samay Pur, Delhi.
FIR No. : 546/2005 Police Station : S.P. Badli Under Sections : U/S 354/376/506 IPC ORDER ON SENTENCE :
1. Vide my separate detailed judgment dated 24.07.2012 accused Sallamuddin has been convicted for the offence punishable u/s 354
19 of 23 20 FIR No. 546/2005 PS S.P. Badli IPC.
2. Mr. N.K. Sharma, Ld. Counsel for the convict Sallamuddin submitted that the convict Sallamuddin is aged about 63 years and is a junk dealer (kabari) and is having a wife and five sons, who are all married and are doing their jobs. He further submitted that he has remained in jail for two days during the investigation of the case. He further submitted that he is a poor person and is not a previous convict. He has clean antecedents and is a victim of circumstances and prayed for leniency and for his release on probation.
3. On the other hand, Ld. Addl. PP for state submitted that convict be dealt with strictly and severest punishment be given to deter him from committing the same offence in future and no leniency be shown to him. He further submitted that he has committed very serious offence of outraging the modesty of the prosecutrix.
4. I have heard the Ld. APP for the state and the Ld. Counsel for the convict Sallamuddin at length on the quantum of sentence. Convict Sallamuddin used criminal force against the prosecutrix with intend 20 of 23 21 FIR No. 546/2005 PS S.P. Badli to outrage her modesty during the process of removal the effect of three planets (teen grah).
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
6. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the 21 of 23 22 FIR No. 546/2005 PS S.P. Badli individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under: "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to improse such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate be fitting the crime".
8. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict and having regard to the serious nature of the offence and the manner of its committal by the convict, at the time, when the prosecutrix had submitted herself to him in the belief that convict will provide relief to her from the effect of three planets (teen grah), no ground for grant of probation u/s 360 Cr.P.C or under 22 of 23 23 FIR No. 546/2005 PS S.P. Badli the provisions of Probation of Offenders Act, 1958 is made out, however, I am of the considered opinion that the ends of justice can be met by sentencing convict Sallamuddin to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs. 10,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 354 IPC. The period already undergone by the convict Sallamuddin during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
Announced in the open Court today on 26th Day of month of July, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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