Delhi District Court
"State Of Karnataka Vs. Puttraj 2004 (1) ... vs . on 11 October, 2018
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 586/2017
State V Mohd. Sohel s/o. Sh. Mohd. Aarif, r/o.
A339, Amar Puri, Nabi Karim,
Delhi.
FIR No. 106/2017
U/s 451/376/506 IPC
Police Station Nabi Karim
Assigned to Sessions 09.08.2017
Charges framed on 23.08.2017
Arguments heard on 27.09.2018
Judgment pronounced on 11.10.2018.
Decision Acquittal
JUDGMENT :
1. That, the case of the prosecution is, the Station House Officer of Police Station
Nabi Karim had filed a challan vide FIR No.106/2017 dated 24.04.2017 u/s.
376/506 IPC for the prosecution of accused Mohd. Sohel in the court of ld.
Metropolitan Magistrate and after compliance of the requirement of section 207
Cr. P.C. the case was sent to this court being the designated Special Fast Track
Court for trial of the offences of sexual assault against the women through the
Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi.
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 name of prosecutrix is not being
Case No.586/2017
State Vs. Mohd. Sohel 1/16
disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, in this case criminal law was set into motion on the basis of complaint dated 24.04.2017 of prosecutrix Ex.PW1/A and FIR No.106/2017 u/s 376/506 IPC was registered. In her complaint prosecutrix had narrated that accused used to live in adjoining room of her room on rent and he used to have evil eyes on her. She further stated that on 05.01.2017 at about 07:00 a.m. she had gone to take bath in the bathroom built up at 3rd floor of the premises. Accused Sohel came behind her and bolted the door of bath room from inside. Accused Sohel had committed sexual intercourse with her forcibly. When accused entered the bathroom she had already removed her clothes to take bath. She tried to raise alarm but she could not do so as accused had gagged her mouth and threatened her to kill her children and husband if she made complaint to anyone. She had not informed the incident to anybody due to fear. She further stated that accused had threatened her for 23 days. She further stated that accused Sohel is her neighbour from her village. On the basis of complaint, she sought legal action against the accused.
3. That, during investigation, W/ASI Babita prepared rukka on 24.04.2017 and got the case registered. She got the prosecutrix counselled. She inspected the place of incident and prepared site plan and arrested the accused.
4. That, W/ASI Babita taken the prosecutrix to Lady Harding Medical College where she was medically examined but prosecutrix refused for her internal examination.
Case No.586/2017 State Vs. Mohd. Sohel 2/165. That, on 24.04.2017, accused was arrested and he was also medically examined in the Loknayak Hospital, New Delhi and his potency test was conducted.
6. That, on 26.04.2017, statement of prosecutrix u/s 164 Cr.P.C. was got recorded by Ms. Riya Guha, Ld. MM.
7. That, chargesheet was filed in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi.
CHARGE:
8. On the basis of material available on record, this court vide order dated 23.08.2017 framed charges against accused Mohd. Sohel for the offence punishable u/s 451/376/506 IPC to which accused plead not guilty and claimed trial.
PROSECUTION WITNESSES:
9. That, in order to prove its case, prosecution has examined 12 witnesses namely PW1 Prosecutrix 'M', PW2 HC Neeraj Kumar, PW3 Mohd. Shoab, PW4 Sh.
Wasi Ahmed, PW5 Dr. Dhara, PW6 Dr. Arun Kumar, PW7 HC Anil, PW8 Dr. Mallika, PW9 Ct. Kuldeep, PW10 Ct. Narender, PW11 W/Ct. Sunita and PW12 W/ASI Babita.
PWs Name of the Nature of the Documents proved Case No.586/2017 State Vs. Mohd. Sohel 3/16 Witness witness PW1 Prosecutrix 'M' Public witness She proved complaint Ex. PW1/A and statement u/s 164 CrPC Ex.PW1/B. PW2 HC Neeraj Police witness He has proved the FIR vide Kumar (duty officer) Ex.PW2/A. PW3 Mohd. Shoab Public witness He has deposed that he does not (Devar of remember the date of incident. prosecutrix) He further deposed that prosecutrix did not tell anything to him. His statement Ex.PW3/A was confronted. PW4 Sh. Wasi Public witness He has deposed about facts Ahmed regarding accused having (Husband of committed rape upon his wife and prosecutrix) threatened her. He along with his wife went to PS Nabi Karim where prosecutrix lodged the complaint against the accused. PW5 Dr. Dhara Medical He has proved the MLC of Witness prosecutrix vide Ex.PW5/A. PW6 Dr. Arun Kumar Medical He has proved the MLC of witness accused qua his potency test vide Ex.PW6/A. PW7 HC Anil Police witness He has proved arrest memo of accused Ex.PW7/A, his personal search memo Ex.PW7/B and his disclosure statement Ex.PW7/C. He has also proved pointing out memo vide Ex.PW7/D. PW8 Dr. Mallika Medical She has proved MLC of accused witness vide Ex.PW8/A. Case No.586/2017 State Vs. Mohd. Sohel 4/16 PW9 Ct. Kuldeep Police witness He has deposed that on 25.04.2017, he alongwith IO W/ASI Babita and Ct. Narender had taken accused Sohel from police station to LNJP Hospital where he was medically examined vide MLC already Ex.PW8/A and thereafter, he was also examined for his potency test vide MLC already Ex.PW6/A. Thereafter, accused was brought to court of Ld. Magistrate. PW10 Ct. Narender Police witness He joined the investigation with IO at the time of arrest of accused and taken him to LNJP Hospital where he was medically examiend vide MLC Ex.PW8/A. He has also got conducted potency test of accused from MAMC Hospital vide Ex.PW6/A. PW11 W/Ct. Sunita Police witness She has joined the investigation and taken prosecutrix to LHMC Hospital for her medical examination where she was medically examined vide MLC Ex.PW5/A. PW12 WASI Babita Police witness She has proved written complaint (Investigating of prosecutrix vide Ex.PW1/A. Officer She then prepared rukka Ex.PW12/A bearing her signature at point A. She has proved site plan vide Ex.PW12/B. She counseled prosecutrix and obtained report of counselor, MarkXX1. She got medically examined the prosecutrix vide Case No.586/2017 State Vs. Mohd. Sohel 5/16 MLC Ex.PW5/A where prosecutrix refused to undergo for her internal examination and no exhibits were prepared by the doctor. During the course of investigation, she arrested the accused vide arrest memo vide memo Ex.PW7/A. His personal search was conducted vide personal search memo vide Ex.PW7/B. His disclosure statement Ex.PW7/C. She correctly identified the accused present in court. During the course of investigation, on 25.04.2017, she taken the accused to LNJP Hospital where his potency test was conducted vide MLC Ex.PW6/A. She got recorded the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW1/B. She deposed that after completing investigation charge sheet was filed against the accused in the court. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
10. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement was recorded u/s 313 Cr.P.C. Accused denied all the incriminating evidence against him. Accused claimed that he is innocent. He was partner with the husband of prosecutrix in running a committee for amount of Rs.2,80,000/ for the period Case No.586/2017 State Vs. Mohd. Sohel 6/16 of 20 months. Subscription of committee was Rs.14,000/ per month, out of which half he used to contribute and half was contributed by husband of the prosecutrix. Husband of the prosecutrix had picked up the committee for aforesaid amount of Rs.2,80,000/ but he had not given him his part amount from the said Rs.2,80,000/ and when he insisted to pay the half of the aforesaid amount to him, then in order to avoid the liability husband of the prosecutrix had used as a tool in the present case and he was implicated. Further, he has also been implicated in the present case as marriage of his brother was fixed with the sister of the prosecutrix, which could not be solemnized due to some reason, therefore, also he has been implicated in the present case as a revenge. Accused has preferred to lead defence evidence.
DEFENCE EVIDENCE:
11. Accused has examined defence evidence i.e. DW1 Mohd. Shubhan who has deposed he is a real younger brother of accused Mohd. Sohel. There was love affair between him and sister of prosecutrix 'M' namely Jainab. Both the family members were aware about the love affair between him and Jainab. The parents of Jainab told his parents to solemnize his marriage with Jainab then her parents replied them that they have to solemnize marriage of her sister namely Samrim firstly. Thereafter, his parents requested the parents of Jainab to solemnize his marriage with Jainab after two years.
12. He further deposed that his brother Mohd. Sohel was running a joint committee with Mohd. Wasi Ahmad. On 10.03.2017, after withdrawing the committee total Rs.2,80,000/ said Mohd. Wasi has not paid Rs.1,40,000/ to his brother Mohd. Sohel after many requests made by his brother. On demanding of his share in committee, his brother Mohd. Sohel was falsely implicated in this case Case No.586/2017 State Vs. Mohd. Sohel 7/16 by the wife of Mohd. Wasi Ahmad. He also deposed that his brother has not committed any offence as alleged by prosecutrix 'M'.
13. On being cross examined by Sh. M.Z. Khan, Ld. Addl. PP for the State, he deposed that accused had gone separately for taking bath. He had seen prosecutrix and her husband in the room in their room on that day. Prosecutrix had lodged complaint with police after three months. He admitted that prosecutrix and her husband also hail from his village Sahaswan, Budaun, U.P. This witness had denied to the suggestion that he has deposed falsely in order to save his brother from the case. He did not approach any senior police officer to make complaint against prosecutrix for lodging a false case against his brother. He stated that he also did not give any written complaint in the court of Ld. MM when his brother (accused) was produced by the police. Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
14. Ld. counsel for the accused has argued and submitted that there is delay in lodging of the FIR for three months and 19 days which has not been explained by the prosecutrix.
15. Ld. counsel for accused has further argued that accused has admitted the issue of committee & issue of marriage of sister of accused with brother of accused. He further submitted that PW4 Sh. Wasi Ahmed who is husband of prosecutrix also admitted the issue of committee with the accused.
16. Ld. counsel for accused also argued that prosecutrix has refused for internal medical examination.
Case No.586/2017 State Vs. Mohd. Sohel 8/1617. Ld. counsel for accused further argued that PW3 Mohd. Shoab, who is the eyewitness has not supported the case of prosecution. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
18. On the other hand, Ld. Addl. PP for the State has argued that delay in lodging FIR has been explained by the prosecutrix in the FIR itself in which she has stated that the accused had threatened her that if she told this incident to anyone, he will kill her husband and children and will also throw acid upon her and prosecution has proved its case against the accused beyond reasonable doubt and as such, accused may kindly be convicted.
PERUSAL OF RECORD:
19. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW1/A, present FIR Ex.PW2/A was registered against the accused.
20. It is further revealed that I.O. on the basis of complaint of PW1 prosecutrix prepared rukka Ex.PW12/A and presented the same to Duty Officer, PW2 HC Neeraj Kumar, who registered FIR Ex.PW2/A after making his endorsement Ex.PW2/B on the rukka, he also gave certificate under section 65 B of the Evidence Act, Ex.PW3/C regarding correct contents of computerized copy of FIR.
21. It is further revealed that PW1 prosecutrix was medically examined through police in Lady Harding Medical College vide MLC Ex.PW5/A by Dr. Dhara wherein she refused for her internal medical examination.
22. It is further revealed that statement of prosecutrix u/s 164 Cr.P.C. was recorded Case No.586/2017 State Vs. Mohd. Sohel 9/16 by ld. Magistrate vide Ex.PW1/B.
23. It is further revealed that accused was arrested in the case vide arrest memo vide Ex.PW7A, his personal search was conducted vide personal search memo vide Ex.PW7/B and his disclosure statement Ex.PW7/C was also recorded. PW9 Ct. Kuldeep along with IO PW12 W/ASI Babita produced accused in Lady Hardinge Hospital, Delhi where he was medically examined by PW8 Dr. Mallika vide MLC Ex.PW8/A.
24. It is further revealed that on 25.04.2017, PW10 Ct. Narender along with PW12 W/ASI Babita produced accused in LNJP Hospital, Delhi where his potency test was conducted by PW6 Dr. Arun Kumar S vide MLC Ex.PW6/A.
25. Before reaching at any conclusion, let the relevant sections i.e. 451/376/506 IPC be reproduced, which are as under: Section 451 IPC.
Housetrespass after preparation for hurt, assault or wrongful restraint. Whoever commits housetrespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine, and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or Case No.586/2017 State Vs. Mohd. Sohel 10/16
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) 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 be 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.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment Case No.586/2017 State Vs. Mohd. Sohel 11/16 of persons during convalescence or of persons requiring medical attention or rehabilitation.] 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 OF THIS COURT:
26. Having heard the arguments advanced by ld. Counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the witnesses, this court is of the considered view that it is revealed that present case was registered on the written complaint of prosecutrix Ex.PW1/A Prosecutrix has been examined as PW1 who is the star witness in this case FIR inasmuch as PW1 had recorded the case FIR by making her complaint and perusal of testimony of the PW1 revealed that the alleged incident of sexual assault without consent of the prosecutrix occurred on 05.01.2017 at about 7:00 a.m., when she had gone to take bath in the bathroom, built at the 3rd floor of premises where the prosecutrix was residing with her family at first floor and the accused was also residing in the room adjoining to her room situated in the first floor of the same building but after the alleged incident of sexual assault caused by the accused upon the prosecutrix, the prosecutrix did not raise any voice and she has deposed that she did not raise the voice as she had been threatened by the accused that if she made any complaint or raise voice then he would kill her husband and her children and because of that fear she could not raise the voice and did not make the complaint on the day of incident i.e. 05.01.2017.
Case No.586/2017 State Vs. Mohd. Sohel 12/1627. It has also been deposed that after the incident, the prosecutrix had visited her village with her husband and she had told about the incident to her husband after 23 days of the incident but no complaint was made either on the day of incident or after 23 days of the incident and admittedly, the complaint was made on 24.04.2017 and there is unexplained delay of three months and 19 days and the prosecutrix has not been able to depose in respect of unexplained delay in lodging of the FIR.
28. That, in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why, if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for Case No.586/2017 State Vs. Mohd. Sohel 13/16 implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution. Reliance is placed upon Dilawar Singh v/s State of Delhi, Criminal Appeal No.491 of 2002 decided on 05.09.2007 of Hon'ble Supreme Court of India.
29. The prosecutrix in her cross examination has also admitted that her younger sister namely Gulfisha and she is about 17 years old and was having love affair with Subhan, brother of accused and they both were in love from their native place.
30. The prosecution has also been able to failed to prove the guilt against the accused beyond reasonable doubt on the ground that the prosecutrix herself admitted in her cross examination that "It is correct that draw of committee was opened in the name of my husband and accused on 10.03.2017 but my husband had received entire amount of the committee. I do not know if accused is paying installment of the committee at present. It is correct that present case has been got registered at the instance of my husband in order to avoid his liability towards payment of installment of committee and there was annoyance between my family and family of the accused over the issue of refusal of the marriage"
31. Therefore, the prosecutrix herself admitted that the case was registered at the instance of her husband in order to avoid the liability towards payment of installment of the committee which was being monitored and run by her husband.
Case No.586/2017 State Vs. Mohd. Sohel 14/1632. That, in order to prove the guilt against the accused, prosecution has also examined one independent witness PW3 who has deposed that the prosecutrix is his "Bhabhi" and she had been living at first floor of the aforesaid premises and the date of incident is not remember to this witness and even after the cross examination by ld. Addl. PP for the State he has not supported the version of the prosecutrix.
33. The prosecution has also examined the husband of the prosecutrix as PW4 who has deposed that prosecutrix who is his wife had not revealed the incident to him on the day of the incident as accused had frightened her to not to reveal incident to anyone and in the cross examination he has also admitted that he is the member of the committee being run by the accused and there was subscription of Rs.7,000/ per month. He had paid Rs.7,000/ for 12 months. He had collected Rs.84,000/ from the accused on completion of 12 months and the fact of monitoring the committee has also been accepted by PW4, who is the husband of the prosecutrix.
It is worth mentioning that the issue of committee of Rs.2,80,000/ in which the accused was also a member, has also been admitted by the prosecutrix as well as by her husband and DW1 who was the defence witness of the accused has also revealed that there was a issue of joint committee between the husband of the prosecutrix and the accused and the husband of prosecutrix has not made the payment of Rs.1,40,000/ to his brother who is accused herein. Therefore, this court is of the considered view that the dispute of committee was involved between the husband of the prosecutrix and the accused. Hence, false implication of accused in the present case is not ruled out.
Case No.586/2017 State Vs. Mohd. Sohel 15/1634. That, PW11 who is the I.O. of the case examined herself and she recorded her evidence. She has deposed that at the time of the medical examination of prosecutrix, the prosecutrix had refused to undergo her internal medical examination and if there was allegation of sexual assault upon the prosecutrix without her consent then she must have given her consent for internal medical examination but because of extraneous reasons she did not give her consent for internal examination. Moreover, there is unexplained delay to register the FIR and the fundamental premise of the prosecutrix was therefore not established. Therefore, the benefit of doubt is given to the accused as prosecution has been failed to prove their case against the accused beyond reasonable doubt. Therefore, accused is hereby acquitted from the charges u/s 451/376/506 IPC by giving him benefit of doubt.
35. 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.
36. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
37. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 11.10.2018.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.586/2017 State Vs. Mohd. Sohel 16/16