Delhi District Court
Supreme Court In "State Of Karnataka vs . Puttraj 2004 (1) Scc 475" And "Om on 20 April, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 27469/2016
Assigned to Sessions. 24.02.2016
Arguments heard on 13.04.2018
Date of Judgment 20.04.2018
FIR No. 18/2016
State V Shadab s/o late Mohd. Shajar, R/o. H.
No.2348, Gali Shabbul Kheir, Turkman
Gate, Delhi.
Police Station Darya Ganj
Under Section 323/341/376/506 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Darya Ganj had filed a
challan vide FIR No.18/2016 dated 10.01.2016 u/s. 323/376/506 IPC for the
prosecution of accused Shadab 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. 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
disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. The criminal law set into motion on the statement of the prosecutrix, Ex.PW1/A wherein she stated that she was residing in Delhi along with her elder sister and brother in law and used to go to the shop of accused for recharging her mobile. On SC No.27469/2016 State Vs. Shahdab 1/35 09.01.2016 at about 6:30 p.m. she had gone at the shop of accused for getting her mobile recharge and there accused enquired from her about her elder sister, she stated to accused that her elder sister with her children had gone to her in laws village in Bihar. She further stated that she came back to the house. Thereafter, at about 8:00 p.m. accused came at her house and knocked the door. She enquired from him the reason of his coming there, accused stated that he had come to meet her elder sister residing in the next street. Accused requested for providing water to him. On this, she opened the door of the house and went in the kitchen, then accused followed her secretly and grabbed her from behind while she was holding the glass of water in her hand. Prosecutrix try to release herself from accused but accused forcibly pulled her in the room and in the process water glass fell on the ground and broken. The bangles of prosecutrix was also got broken. Accused slapped her and also tore her clothes and then forcibly raped her. Thereafter, accused left her after threatening that he would kill her if she would disclose the incident to anyone. Prosecutrix further stated that after the incident she called her Bhabhi, Tabbasum who came at the house. Prosecutrix narrated entire incident to her. Smt. Tabasum called the police on number
100. Police arrived and she stated all the facts to the police and her statement Ex.PW3/B was recorded. On the basis of which FIR was registered and investigated was conducted by I.O. W/SI Sunita who prepared site plan of the spot. I.O. also called crime team. Crime team officials examined the spot. Photographs were taken from the spot. The exhibits in the form of bed sheet, broken pieces of bangles, some hairs were lifted and sealed in pullandas. Prosecutrix was medically examined in LNJP Hospital. Thereafter, on 11.01.2016, her statement was recorded by the Ld. Magistrate wherein she also reiterated her allegations.
3. On 11.01.2016, accused Shadab was arrested from his house on the identification of prosecutrix. He was also medically examined in LNJP Hospital and the exhibits prepared by the doctor were seized by the I.O. Accused was also examined regarding his potency test and he was found by the doctor that there was nothing to suggest that SC No.27469/2016 State Vs. Shahdab 2/35 accused was incapable of performing sexual intercourse. After completing other investigations, chargesheet was filed.
CHARGE:
4. On the basis of material available on record, this court vide order dated 05.03.2016 charges for the offence punishable u/s 323/341/376/506 IPC were framed against accused Shahdab to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution examined 21 witnesses namely PW1 HC Dharmender Kumar, PW2 HC Yugvir Singh, PW3 Prosecutrix 'TK', PW4 Dr. Anubhuti Rana, PW5 W/HC Santosh, PW6 HC Rohtas Singh, PW7 SI Ajay Singh, PW8 Ct. Bhiwa Ram, PW9 Inspector Rupesh Khatri, PW10 HC Ravinder, PW11 Ms. Tabbasum, PW12 Ms. Shagufta, PW13 Dr. Shilpi, PW14 ASI Ashok Kumar, PW15 Dr. Mohit Chauhan, PW16 Ms. Mona Tardi Kerketta, JSCCcumASCJcum Guardian Judge, PW17 Sh. Anjan Rai, Nodal Officer, TATA Teleservices Ltd., PW18 Sh. Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication Ltd., PW19 ASI Mukesh Kumar, PW20 Sh. Rashi Mehra and PW21 W/SI Sunita.
6. PW1 HC Dharmender Kumar has recorded DD entry no. 25A and prove the copy of the same vide Ex.PW1/A. He deposed that the aforesaid DD entry was marked to W/SI Sunita for necessary action.
7. PW2 HC Yugvir Singh has proved the computerized copy of the FIR vide Ex.PW2/A and his endorsement on the rukka vide Ex.PW2/B. This witness has proved the certificate u/s 65 B of Evidence Act qua the present FIR vide Ex.PW2/C. SC No.27469/2016 State Vs. Shahdab 3/35
8. PW3: Prosecutrix 'TK' is a material witness being victim. She deposed that she is residing with her elder sister and her husband at Tara Chand, Darya Ganj, Delhi and that her parents have already died. She further deposed that during her stay at the house of her elder sister, she used to go to mobile phone shop of the accused at Bazar Chitli Kabar to get her mobile phone recharge and that her sister Noori also used to get her mobile recharge from the mobile shop of the accused.
9. She further deposed that she has already got her mobile recharge from the mobile phone shop of the accused 10/15 times during the period of 10/8 months and that most of the times her sister used to accompany her to the shop of the accused for the said purpose.
10. PW3 further deposed that on 09.01.2016 at about 06.30 pm, she had gone to the aforesaid shop of the accused to get her mobile phone recharge. At that time the family of her sister including her husband had gone to her inlaws house in Bihar. She further deposed that when she went to the shop of the accused, he asked her why her elder sister has not accompanied her at his shop, she told him that she along with her family members including her husband had gone to her inlaws house at Bihar and in fact she wanted to get her mobile phone recharge to talk to her sister. She got her mobile phone recharged with Rs.300/ on that day. Thereafter, she also purchased a pair of sandle from the shop at Chitli Kabar and returned to the house of her sister at about 07.15 pm and she talked to her sister on her mobile phone, 9878362236.
11. She further deposed that on that day at about 08.00 p.m. someone knocked the door of the house of her sister and that when she opened the door she saw the accused standing at the door. She further deposed that when she asked the accused why he had come there, he told her that he had come there to meet his sister residing in the gali at the back of the house of her sister. He further asked her for a glass of water. Thereafter, she also opened the iron door of the house of her sister and he got in.
SC No.27469/2016 State Vs. Shahdab 4/35She further deposed that when she went to her kitchen to bring water for the accused, he grabbed her from behind and that when she tried to get herself relieved from the accused, the glass containing water fell on the floor and broken. She deposed that accused also slapped her twothree times and that when she tried to save herself, her wearing rani (dark pink) and blue colour bangles also smashed. She further deposed that accused forcibly dragged her to the mattress spread on the floor of the room and pinned her down there, torn her wearing clothes and committed sexual intercourse with her forcibly.
12. PW3 further deposed that when she resisted the said act of the accused, he again slapped her and that accused further threatened her if she would disclose the incident to anyone he would kill her. Thereafter, he left the house. She immediately talked to her bhabhi, Tabbasum on her mobile phone, 9310881216 and narrated the entire incident to her and that at that time her Bhabhi was residing at Ajmeri Gate and she reached the house of her sister within half an hour and she again narrated the incident to her. Thereafter, she called the police on telephone number 100. Police officials reached the spot. The said police officials also called some other local police officials. Some of the police officials who had come at the spot also inspected the scene of crime and they found broken pieces of bangles lying on the said mattress. Broken pieces of the said glass were also scattered on the floor of the house. Police officials had also taken photographs of the scene of crime. This witness has proved her MLC vide Ex.PW3/A and her statement vide Ex.PW3/B.
13. PW3 has proved her statement u/s 164 Cr.P.C. vide Ex.PW3/C. She deposed that police arrested the accused in her presence vide arrest memo Ex.PW3/D.
14. This witness has correctly identified the broken pieces of bangles of rani and blue colour and some broken pieces of water glass to be the same pieces of glass and bangles which were lying scattered on the floor of the room vide Ex.P1(colly.).
SC No.27469/2016 State Vs. Shahdab 5/3515. This witness has correctly identified one lady salwar, one lady shirt and one brassier to be the same clothes which she was wearing at the time of incident vide Ex.P3 (colly.).
16. This witness has correctly identified one bed sheet to be the same bed sheet which was lying on the mattress at the time of incident vide Ex.P2. This witness had correctly identified the accused to be same person who had committed rape on her.
17. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness deposed that now she is not residing at the given address in her complaint. She deposed that she know the person in the name of Arif Beg. Ms. Rahat is her cousin sister and Rashid is her son. Arif Beg is her cousin brother (Fufi ka beta). She was not aware if the marriage of sister of accused was solemnized with Arif Beg. She admitted that generally they used to visit to the house of Arif Beg on the occasions of marriage and festivals etc. She deposed that her family had not attended the marriage of Arif Beg in the year 2014. There was no reason as to why she and her family had not attended the marriage of Arif Beg despite their visiting his house. She deposed that that she was not aware if the house in question was transferred in the name of Malka (sister of accused) by Arif Beg.
18. This witness had denied to suggestion that that thereafter, Arif Beg fallen in love with her or that due to this reason he was intending to throw out accused from the aforesaid house. She further deposed that she does not know if Malka and her brother had lodged any complaint against her, Rashid, Arif Beg and Rahat. She further deposed that she does not know if any complaint was filed against Arif Beg in CAW Cell by Malka. She never visited CAW Cell in connection of any case.
19. This witness had denied to suggestion that she had been in livein relationship with Arif Beg or that some quarrel arisen due to this reason or that any complaint was SC No.27469/2016 State Vs. Shahdab 6/35 lodged in this regard by anyone. She does not have any photographs with Arif Beg (objected to by Addl. PP for State). She deposed that she was not having mobile phone number of Arif Beg during the period of incident. She had not made any phone call to Arif Beg during the period of incident. She deposed that her sister and her husband had reached Delhi from Bihar after about one and half months of the incident.
20. She deposed that prior to one day of incident she had called her sister on phone.
Thereafter, they left to Bihar. She had talked her sister and her Fufi on phone on the day of incident at about 07.45 pm. This witness admitted that accused had not forcibly entered into her house. Accused had never come to her house before the day of incident. This witness had denied to the suggestion that she had not gone to the shop of the accused to get her mobile phone recharged prior to the incident. She deposed that accused had grabbed her in the kitchen itself. Her face was towards inside the kitchen and as soon as accused grabbed her from behind the glass fall and broken down. Thereafter, accused dragged her little outside the kitchen. She had sustained injuries from the broken bangles during the scuffle. She tried to save herself outside the kitchen and during that course her bangles got broken. She deposed that she had not knocked her door from inside or raised alarm for help from other occupants. She had not made any call at 100 number at that time. She was having mobile phone number 9313762486 at the time of incident. She deposed that she does not know if CCTV camera was installed on the road near the shop of the accused. This witness had denied to suggestion that she has falsely implicated the accused at the instance of Arif Beg in order to build a pressure to get back the house from his wife Malka and get the matrimonial case filed against him withdrawn or that family members of the accused had filed several complaints against her or that accused never visited her house nor he knew the address of her house. This witness had denied to the suggestion that at the time of incident accused was on the road and he was going to attend function of marriage.
SC No.27469/2016 State Vs. Shahdab 7/3521. PW4 Dr. Anubhuti Rana has proved the MLC of prosecutrix vide Ex.PW3/A on behalf of Dr. Nikita Banerjee. She deposed that as per the aforesaid MLC scratch marks over chest and right arm of the prosecutrix were observed on her person during her medical examination. Her clothes were also found torn as per MLC at the time of her medical examination.
22. PW5 W/HC Santosh, along with IO W/SI Sunita had taken the prosecutrix to LNJP hospital for her medical examination, where she was medically examined vide MLC already Ex.PW3/A. The doctor who had conducted the medical examination of the prosecutrix had also handed over her the exhibits/samples pertaining to her in sealed condition along with sample seal. IO had seized the same vide seizure memo Ex.PW5/A. She deposed that the said exhibits/samples were not tempered with in any manner till they remained in her custody.
23. PW6 HC Rohtas Singh has joined the investigation with SI Ajay Singh. In his present, SI Ajay Singh had called Crime Team. In his presence, crime team inspected the scene of crime and taken the photographs and crime team officials had taken into possession glass of broken bangles from the front of kitchen and some pieces of the same were on bed sheet, broken glass (water glass), pieces of hairs lying on the floor of the room near kitchen and one bed sheet of blue and white stripe lying spread on the mattress. In his presence, SI Ajay converted the said articles into separate parcels after putting them in separate plastic containers, sealed them with the seal of AS and seized them vide separate memos. This witness has proved the seizure memo of hairs vide Ex.PW6/A, seizure memo of broken glass and broken pieces of bangles vide Ex.PW6/B and seizure memo of bed sheet vide Ex.PW6/C.
24. PW7 SI Ajay Singh has deposed that on 09.01.2016 he was present at PS Darya Ganj as SI on night emergency duty. At about 09.30 pm he was informed by Duty SC No.27469/2016 State Vs. Shahdab 8/35 Officer that IO W/SI Sunita had called him at House No.3557, Kucha Tara Chand, Delhi. Accordingly, he along with HC Rohtash reached there, where W/SI Sunita, W/Ct. Santosh, Ms.Tabbassum (Bhabi of the complainant) and complainant were present. PW7 further deposed that IO had told him the place of incident, where offence was stated to have been committed by complainant. He had also noticed that some broken piece of bangles were lying near the door of the kitchen and some broken glass were also there. He entered inside the room where he noticed some broken bangles were lying on the bed. He further deposed that he had called crime team. Crime team reached there and inspected the scene of crime and taken 19 photographs from different angles vide marked as Mark A1 to Mark A19. He had picked up broken piece of bangles and glasses and seized the same vide seizure memo already Ex.PW6/B. He had seized hairs lying near the door of kitchen vide seizure memo already Ex.PW6/A and further he had seizure the bed sheet lying on the floor vide seizure already Ex.PW6/C.
25. This witness has correctly identified the bed sheet which he had seized from the place of incident vides Ex.P2.
26. This witness has correctly identified the said pieces of bangles and water glass were seized from the place of incident vide Ex.P1 (colly.).
27. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness deposed that he had collected broken piece of bangles, glasses and hair etc. in the presence of crime investigating team. This witness had denied to suggestion that he did not visit the place of incident or that he had not collected broken piece of bangles etc. or that he is deposing falsely at the instance of the IO.
28. PW8 Ct. Bhiwa Ram, has taken the custody of parcel containing exhibits pertaining to this case and deposited the same in the office of FSL, Rohini vide Road Certificate SC No.27469/2016 State Vs. Shahdab 9/35 Ex.PW19/B. PW8 Ct. Bhiwa Ram deposited the exhibits in the office of FSL and obtained receipt Ex.PW19/C.
29. PW9 Insp. Rupesh Khatri, pursuant to a call received from District Control Room of Central District, he alongwith HC Hari Kishan, finger print proficient and Ct. Ravinder, photographer reached the place of incident i.e. H. No.3557, 3rd Floor, Kucha Tara Chand, Darya Ganj, Delhi. When they reached there SI Ajay along with other police officials were present there. PW further deposed that W/SI Sunita was IO of this case and she had gone to the hospital along with prosecutrix. SI Ajay had briefed her about the incident. They carried out the inspection of the scene of crime from 10.00 pm to 11.15 pm. Ct. Ravinder had taken 19 photographs from the scene of crime. Same are already marked as Mark PW8/A1 to A19. No chance finger print from the scene of crime could be lifted by the finger print proficient. On his directions IO had taken into possession broken pieces of bangles and glasses, bed sheet and hairs. PW9 has prepared crime scene report vide Ex.PW9/A.
30. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness deposed that there was no chance finger print available, therefore, same could not be lifted. He deposed that they had not tried to lift up the chance print from the bottle as well as from the glass and mobile phone chargers which were lying in the bed room. They had not checked if hairs lying in the bed room were with its root or not. This witness had denied to suggestion that he had not joined the investigation in the present case or that they had done some formal duties on the spot or that he had not met with the IO thereafter in the present case.
31. PW10 HC Ravinder is a photographer at Crime Team, Central District, Delhi. This witness had taken 19 photographs from the scene of crime vide marked as Mark PW8/A1 to A19. This witness had tendered negatives of the said photographs vide Ex.PW10/1 to 19 and proved photographs vide Ex.PW10/20 to 38. He deposed that SC No.27469/2016 State Vs. Shahdab 10/35 SI Rupesh Khatri prepared detail report qua the said inspection of the scene of crime vide Ex.PW9/A.
32. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, he had taken the aforesaid photographs on the directions of IO SI Ajay Kumar. He had taken the photographs at the instance of IO as well which he had found proper he had also taken the photographs.
33. PW11 Ms. Tabbasum has deposed that earlier she along with her family was residing somewhere else in Gali Satara, Ajmer Gate, Delhi. She further deposed that prosecutrix is her Nanad and on 09.01.2016 at about 08.10 pm while she was present at her house she received a phone call from the prosecutrix stating that "Jaldi ghar aa jao Shadab naam ke ladke ne mere saath galat kaam kar diya hai". She immediately went to the house of prosecutrix at 3rd Floor, Kucha Tara Chand, Darya Ganj, Delhi. She deposed that when she reached there prosecutrix told her that accused Shadab had committed rape on her. She immediately called the police at 100 number from the mobile phone of the prosecutrix and after about 2025 minutes police official reached there. They took the prosecutrix to the hospital. She also accompanied them. She further deposed that from hospital police brought them to police station Darya Ganj. Police had recorded the statement of the prosecutrix but she was not present at that time.
34. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness deposed that house of prosecutrix was situated at the distance of half an hour from her house. She had covered 50% journey by rickshaw and thereafter by foot due to crowd. She deposed that no person from the neighbourhood of the prosecutrix was present at the house of the prosecutrix when she had reached there. This witness had denied to suggestion that she alongwith the prosecutrix conspired together and falsely implicated the accused or that she is deposing falsely.
SC No.27469/2016 State Vs. Shahdab 11/3535. PW12 Ms. Shagufta has deposed that she had been the owner of the house no. 3557, 3rd Floor, Kucha Tara Chand, Darya Ganj, Delhi and now she has sold the said house. She further deposed that sometime in February, 2015 she had given her said flat to the sister of prosecutrix namely Ms. Noorie and her husband for their living. He had not taken any rent from them. She deposed that initially she had given the said flat to them for 56 months but they continued to live there till 2016.
36. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness had purchased the house no. 3557, 3rd Floor, Kucha Tara Chand, Darya Ganj, Delhi from one Mr. Arif Beg in the year 2014 for a sum of Rs.22 lacs - Rs. 23 lacs. Her husband runs a saloon in a rented shop. Her husband is the owner of house no.4018, Gali Khan Khana, Jama Masjid, Delhi. She deposed that today she has not brought the documents with regard to her ownership of house no. 3557, 3rd Floor, Kucha Tara Chand, Darya Ganj, Delhi. This witness had denied to suggestion that Arif Beg and her husband Abrar are friends or that Arif Beg transferred the property bearing no.3557, 3rd Floor, Kucha Tara Chand, Darya Ganj, Delhi in her name curtailed the right of his wife in whose name he had transferred the aforesaid property at the time of marriage or that later Arif Beg had sold the said house as she had no right in the aforesaid property or that she in connivance with Arif Beg, prosecutrix, her sister Noorie and her husband had falsely implicated the accused in order to pressurize the accused to withdraw the matrimonial case against Arif Beg. This witness had denied to suggestion that accused and his family had already made several complaints against all of them prior to the present complaint or that she is deposing falsely.
37. PW13 Dr. Shilpi, Sr. Medical Officer, Lok Nayak Hospital (Madanpur Khadar Polyclinic), Delhi has proved MLC of accused vide Ex.PW13/A. She deposed that she had collected blood sample of the accused, preserved, sealed and handed over to SC No.27469/2016 State Vs. Shahdab 12/35 the police. Thereafter, accused was referred to the Department of Forensic Medicine for his potency test.
38. PW14 ASI Ashok Kumar has brought the summoned record i.e. record of SCRB Delhi with regard to the previous involvement of accused Shadab S/o late Mohd. Sajar in criminal case vide Ex.PW14/A.
39. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness admitted that as per record no previous involvement of the present accused has been shown except the present case.
40. PW15 Dr. Mohit Chauhan, has proved potency test of accused vide MLC Ex.PW15/A and found nothing to suggest that he was incapable to perform sexual intercourse.
41. PW16 Ms. Mona Tardi Kerketta, JSCCCumASCJCumGuardian Judge, Saket Court Complex, New Delhi has recorded the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW3/C.
42. PW17 Sh. Anjan Rai, Nodal Officer, Tata Tele Service had produced the CDRs details, Ex.PW17/A of mobile number 9211613081 and customer application form vide Ex.PW17/B. He also produced cell ID chart Ex.PW17/F and gave certificate under section 65B of the Indian Evidence Act, Ex.PW17/G regarding correct contents of the computerized record. PW17 has produced the CDRs details, Ex.PW17/C of mobile number 9213665664 which was in name of Shahnawaz Ali s/o Attaullah. He also produced customer application form, Ex.PW17/D. He also produced cell ID chart Ex.PW17/F and gave certificate under section 65B of the Indian Evidence Act, Ex.PW17/G regarding correct contents of the computerized record.
SC No.27469/2016 State Vs. Shahdab 13/3543. On being cross examined by Sh. Mahesh Sharma, learned counsel for accused, this witness deposed that he had taken out the print of the CDR from the computer after using proper password. Password of the computer remains with him as a Nodal Officer. No one had used computer in his absence.
44. PW18 Sh. Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication Ltd.
has produced the CDRs details vide Ex.PW18/C of mobile number 9313762486 which was in name of prosecutrix. He also produced customer application form along with proof of ID i.e. Aadhaar card in the name of prosecutrix, MarkA. He also gave certificate under section 65 B of the Indian Evidence Act, Ex.PW18/B regarding correct contents of the computerized record.
45. PW19 ASI Mukesh Kumar is MHC(M). He has proved entries in register No.19 vide Ex.PW19/A and entries in register No.21 vide Ex.PW19/B and Ex.PW19/C respectively (OSR).
46. PW20 Sh. Rashi Mehra, Director of Offshoot Agency Pvt. Ltd. has proved the records of mobile number 9313762486 of Reliance Company, Ex.PW20/A which was belonging to prosecutrix.
47. PW21 W/SI Sunita is the investigating officer. She deposed on the lines of investigation. She has proved DD No.25A vide Ex.PW1/A. She had inquired the matter from the prosecutrix and also inspected the place of incident where a broken glass was lying outside the kitchen and some broken pieces of bangles were also lying there and some broken pieces of bangles were also lying on the bed sheet. Thereafter, she called SI Ajay and HC Rohtash at the place of incident. Thereafter, she took the prosecutrix to hospital for her medical examination leaving behind the said SI and HC at the spot. SI Ajay called the crime team who conducted the inspection of scene of crime. She also called a counselor who given counseling to SC No.27469/2016 State Vs. Shahdab 14/35 the prosecutrix at the hospital. She further deposed that the doctor who had conducted the medical examination of the prosecutrix had also handed over the exhibits pertaining to her and her clothes in sealed condition along with sample seal, which she seized vide seizure memo already Ex.PW5/A. She brought the prosecutrix to police station, recorded her statement vide Ex.PW3/B, made the endorsement thereon at point B to B and got the present FIR registered. This witness has prepared site plan vide Ex.PW21/A. She had recorded supplementary statement of prosecutrix and statement of her Bhabhi. The said bangles, pieces of glass, bed sheet and hair strands of the prosecutrix were taken into possession by SI Ajay under DD no.25A.
48. This witness has got recorded the statement of the prosecutrix under section 164 Cr.PC vide Ex.PW3/A. During the course of investigation, she had arrested the accused at the instance of the prosecutrix vide arrest memo already Ex.PW3/D. His personal search was also conducted vide memo Ex.PW21/B. This witness has also recorded disclosure statement of the accused vide Ex.PW21/C and pursuant to his disclosure statement accused pointed out the place of incident vide pointing out memo Ex.PW21/D.
49. During the course of investigation, she had also got conducted the medical examination of the accused vide MLC Ex.PW13/A and seized the exhibits pertaining to him along with sample seal vide seizure memo Ex.PW21/E. This witness got conducted the potency test of the accused vide MLC already Ex.PW15/A. This witness had also collected the CDR pertaining to mobile numbers of prosecutrix and accused and filed the same in the court.
50. During the course of investigation, she got sent the exhibits pertaining to this case to FSL Rohini through Ct. Bhima Ram. She had also collected the FSL report along with the forwarding letter running into three pages, Ex.PW21/F and filed the same in the court vide application Ex.PW21/G. She tendered the FSL Report Ex.PW21/F in SC No.27469/2016 State Vs. Shahdab 15/35 evidence being per se admissible under section 293 Cr.PC.
51. She further deposed that SI Ajay had also handed over her crime team report.
Photographer, Ct. Ravinder had also handed over her the photographs taken from the scene of crime vide Ex.PW10/A to 19.
52. This witness had also recorded the statement of the witness with regard to the proceedings, they joined with her during the course of investigation, prepared charge sheet and submitted in the court.
53. On being cross examined by Sh. Mahesh Kumar Sharma, ld. counsel for accused, this witness had denied to suggestion that she had called the accused at police station twice and on the second time she had arrested him at police station or that he was not arrested from his house. She deposed that neighbours of the prosecutrix did not hear any "shor sharaba". She had not noticed any foot print on the place where the broken pieces of glass were lying. This witness had denied to suggestion that accused had revealed to her that he was in the marriage at the time of incident or that he had also claimed that a CCTV camera was installed on the road leading to the said place of marriage or that footage was captured by the said CCTV camera. She deposed that accused and his sister had been making complaint against Arif Mirza Beg and prosecutrix at police station. This witness had denied to suggestion that she had not conducted investigation of this case properly or that she is deposing falsely being IO of the case.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
54. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused claimed that his brother in law (Jija) had been in friendship with the prosecutrix and due to this reason family of his brother in law had been disturbed and there was matrimonial issues between his brother in law and sister. Complaint SC No.27469/2016 State Vs. Shahdab 16/35 was also registered against his brother in law and prosecutrix on complaint of his sister prior to registration of present FIR. Therefore, in order to taking revenge present case has been falsely got registered against him just to pressurize him to settle the matter between his brother in law, sister and prosecutrix. Accused has preferred to lead evidence in his defence.
DEFENCE EVIDENCE:
55. Accused has examined DW1 Smt. Fauzia, DW2 Ms. Malka Begum, DW3 Tehseen, DW4 Mohd. Yunus, DW5 Mohd. Asif and himself as DW6 in his defence.
56. DW1 Smt. Fauzia deposed that accused is her husband. She deposed that on 09.01.2016 she along with accused and other family members had gone to attend a marriage near FaizEIlhai, Turkman Gate, Delhi and on that day at about 08:00 p.m. her husband/accused had returned to house from his shop situated in Suiwalan, Chitli Kabar. Thereafter, they all had gone to attend the aforesaid marriage and they remained in the marriage for about 22.30 hours. She deposed that during their stay in the marriage, her husband/accused had received a call at about 12:00 midnight from nearby shop owner from the area of Suiwalan. She deposed that immediately they returned to their house and after changing clothes her husband went to place of his shop where policemen in civil dress had met him and they had taken him to police station and released him from police station in the morning hours and when he returned to their house, then he narrated aforesaid facts. She further deposed that prosecutrix was in relation with her Nandoi, namely Arif Beg for which her Nanad, namely Malka had also got lodged complaint against her at PS Chandni Mahal, Delhi.
57. On being cross examined by Sh. R.K. Tanwar, Ld. Substitute Addl. PP for State, this witness had denied to suggestion that she is deposing falsely to save her husband/accused from conviction or that her husband had gone to the house of prosecutrix at about 08:00 p.m. on 09.01.2016 or that he committed rape upon the SC No.27469/2016 State Vs. Shahdab 17/35 prosecutrix in her house or that she has cooked a concocted a false story or that accused had committed rape upon the prosecutrix.
58. DW2:Ms. Malka Begum deposed that accused is her brother. She further deposed that on 09.01.2016 at about 08:00 p.m. 09:00 p.m. she alongwith her brother and his family had gone to a attend a marriage at FaizEIlahi, Turkman Gate, Delhi and they had been in the marriage by 12:00 midnight or 01:00 a.m. and that after attending marriage when hey reached at their house, then her brother received a phone call from the market, but she does not know the name of the caller. She deposed that someone told them that accused had been detained in police station Daryaganj, Delhi and he was released at about 03:00 am - 04:00 am. She further deposed that on the same day he was called at police station and she alongwith her two sisters, brother and some relatives had accompanied the accused to police station and on reaching police station they came to know that prosecutrix had leveled the allegation of rape against the accused. She further deposed that after registration of the case one of her relative told her that prosecutrix had married with her husband Mirza Arif Beg and having two children from him. He also told her that she was residing in Gali Godne Wali with her two daughters. She deposed that due to his relation with the prosecutrix her husband had given her up. She further deposed that prosecutrix had been chasing her husband since 16 years long and in the meantime her husband married her.
59. DW2 further deposed that due to his relation with the prosecutrix she is residing separately from her husband and she has filed cases against her husband Mirza Arif Beg in the court, before ACP, Kamla Market, Delhi and before Delhi Commission for Women. This witness has tendered copy of the same on judicial record vide Ex.DW2/A and Ex.DW2/B respectively. This witness has tendered copy of FIR No.0050/2016, PS Chandni Mahal against her husband Mirza Arif Beg on judicial record vide MarkDA.
SC No.27469/2016 State Vs. Shahdab 18/3560. On Court question:Why the prosecutrix had got registered the present case against your brother/accused? This witness replied that prosecutrix had got registered the present case against her brother due to pressure of her husband because her husband had been asking to withdraw cases against him for which she was not ready. He had threatened her that if she would not withdraw cases against him he would implicate her brothers through prosecutrix.
61. On being cross examined by Sh. R.K. Tanwar, Ld. Substitute Addl. PP for State, this witness deposed that they had gone to attend the marriage of Sumo and Tarif. This witness had denied to suggestion that today she has come to depose in the court to support the accused being her brother or that in order to take revenge from her husband Mirza Arif Beg she is deposing against him in this court. This witness had denied to suggestion that on 09.01.2016 at about 08:00 p.m. her brother/accused trespassed in the house of prosecutrix or that he had committed rape upon her.
62. DW3 Sh. Tehseen deposed that today, he has come in the court to depose on the request of the accused. He deposed that on 09.01.2016 he was present at his shop situated in Chitli Kabar, Delhi and at about 07:45 p.m. while accused was going to home after shutting down his shop. He had told him that he was going to attend a marriage.
63. She deposed that on next day he came to know that accused had been implicated in a rape case and had been arrested in this case in police station. Normally accused operates his shop himself.
64. On being cross examined by Sh. R.K. Tanwar, Ld. Substitute Addl. PP for State, this witness had denied to suggestion that on 09.01.2016 accused did not meet him at about 07:45 p.m. or that accused did not tell him that he was going to attend the SC No.27469/2016 State Vs. Shahdab 19/35 marriage.
65. DW4: Mohd. Yunus has deposed that on he was present in his shop situated in front of shop of accused in the area of Cloth Market, Chitli Kabar, Delhi and generally he shut down her shop at about 09:30 p.m.
66. DW4 deposed that on that day accused was leaving his shop before his daily times and he asked him as to why he was going on so early. He told him that he was going to attend a marriage. He further deposed that thereafter, he had left to Jamat and when he returned back he had come to know that accused had been implicated in the present case.
67. On being cross examined by Sh. R.K. Tanwar, Ld. Substitute Addl. PP for State, this witness deposed that at about 07:45 p.m. or 08:00 p.m. he had asked the accused as to why he was leaving his shop so early. He had not told him the name of person in whose marriage he was going to. He had cordial relations with the accused. This witness had denied to suggestion that accused did not meet him on 09.01.2016 at about 07:45 p.m. or 08:00 p.m. in the market or that accused did not tell him that he was going to attend the marriage.
68. DW5 Mohd. Asif deposed that accused is his elder brother. He further deposed that on 09.01.2016 he alongwith his family had gone to attend a marriage at FaizEIlahi, Turkman Gate, Delhi and accused had reached in the marriage at about 08:45 p.m. 09:00 p.m. and that accused remained with him for about 23 hours in the marriage. DW5 deposed that he had taken photographs in the marriage from his mobile phone and he got prepared the copy of the same from the Lab. Photographs are being tendered today on judicial record. Same are Ex.D1 (colly., 2 photographs) (objected to by Ld. Add. PP for State on the mode of proof).
SC No.27469/2016 State Vs. Shahdab 20/3569. He further deposed that he returned back to his house at about 12:00 midnight or 01:00 a.m. after attending the marriage and that one person came to their house from the market and informed him that his brother/accused was in PS Daryaganj. He further deposed that immediately he along with his brother, mother and sister reached PS Daryaganj and there they came to know that accused was leveled allegation of rape by prosecutrix and accused was kept whole night in police station and was released in the morning hours. Thereafter, they returned back to their house.
70. He further deposed that in the morning hours of the same day he along with accused again reached police station Daryaganj where accused was detained and he was asked to leave the police station. Thereafter, he returned to his house. He further deposed that later on he came to know that Mirza Arif Beg, his brother in law was having relationship with prosecutrix.
71. On being cross examined by Sh. R.K. Tanwar, Ld. Substitute Addl. PP for State, this witness deposed that he got prepared photographs, Ex.D1 (colly.) from the lab situated in Sita Ram Bazar, Delhi. He further deposed that he did not make any complaint to senior police officials regarding illegal detention of his brother/accused or that he did not make any such complaint as his brother was not implicated falsely by the police.
72. DW6 Accused Mohd. Shadab examined himself as DW6. He deposed that he is running a shop of mobile recharge at Bazar Chitli Kabar, Delhi.He deposed that on 09.01.2016 he was scheduled to attend a marriage in inlaws' family of her younger brother, FaizEIlahi, Turkman Gate, Delhi. He deposed that at about 07:45 p.m. he shut down his shop to go to his house and no one met me in the way at that time. He reached his house at about 08:00 p.m. - 08:15 p.m. which has been recorded in CCTV camera installed at his house. He has tendered three photographs of the same on judicial record vide MarkD2 (colly., three photographs). Thereafter, he SC No.27469/2016 State Vs. Shahdab 21/35 alongwith his family left to attend the aforesaid marriage. He deposed that in the marriage photography and videography were also done. He has tendered photographs on judicial record and are marked as MarkD3 (colly., three photographs). He further deposed that as soon as he reached his home, he received a phone call of his customer, who is resident in front of his shop and he told him that there was some matter of mobile phone and he called him at his shop. He further deposed that he reached there where he found two policemen in civil dress and they asked him that there was a matter of mobile phone and for that purpose they asked him if he had purchased any mobile phone and asked him to come to police station. He further deposed that he reached there and they detained him and produced him before the SHO concerned. SHO asked him what he had done with the prosecutrix. He further deposed that they detained in police station for whole night and released him in the morning hours and instructed him to come at police station as and when they would call him.
73. He further deposed that later on he came to know that he has been implicated in this case due to dispute of his sister with her husband Mirza Arif Beg who was in relation with prosecutrix and his sister had got registered complaint against Mirza Arif Beg before ACP concerned and Delhi Commission for Women. He had also filed a complaint with SHO, PS Chandni Mahal. Original copy of the same is being tendered today on judicial record and is exhibited as Ex.DW6/A. He further deposed that he has been implicated in this case at the instance of Mirza Arif Beg by the prosecutrix in order to create pressure on them so that his sister, Malka Begum may be forced to withdraw the cases against Mirza Arif Beg.
74. On being cross examined by Sh. R.K. Tanwar, Ld. Substitute Addl. PP for State, this witness had denied to suggestion that he was well acquainted with prosecutrix and her elder sister, Noorie. This witness had denied to suggestion that he was aware about the residence of prosecutrix or that he had gone to the house of prosecutrix on SC No.27469/2016 State Vs. Shahdab 22/35 09.01.2016 at about 08:00 p.m. or that he had committed rape upon her or that during committing alleged rape bangles of the prosecutrix were broken or that she had sustained injuries thereof. This witness had denied to suggestion that Farid had not called him on mobile phone or that he had not told him that police was calling him on the issue of purchase of mobile phone or that police had not taken him to police station on 09.01.2016 or that he has not been implicated by the prosecutrix at the instance of Mirza Arif Beg in this case. Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
75. Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution on all material points and the testimony of prosecutrix is consistent and coherent on all material aspects of the case and she had given the graphic narration of the incident, happened with her.
76. Ld. Addl. PP further submitted that it is a absolute settled proposition of law that even the sole testimony of the prosecutrix is sufficient to convict the accused but here in this case, there are overwhelming corroborative evidence to bring home the guilt of the accused.
77. Ld. Addl. PP for the State further submitted that since prosecutrix had given consistent version of the incident and that sequence of event as narrated by her has also happened in a quick succession and the other proceedings after the incident conducted in a quick succession right from registration of FIR and the circumstances of the place of incident observed by the I.O. were speaking for themselves as I.O. had found the broken bangles were found lying on the bed sheet and in the room. Even broken glass pieces lying on the floor which all had been seen by the police officials particularly of SI Ajay Singh and Crime Team Officials who visited the spot.SC No.27469/2016 State Vs. Shahdab 23/35
78. Ld. Addl. PP for the State further submitted that alleged history given by prosecutrix to the doctor who had conducted her medical examination. Ld. Addl. PP for the State further submitted that accused has not been able to bring an iota of evidence as to why he has been falsely implicated in the present case despite examination of witnesses in defence who could not established any such fact which could dispute the version of the prosecutrix. Ld. Addl. PP further submitted that the photographs and CCTV footage produced by the accused were not submitted before the I.O. and even in the court he had produced the same without any certificate u/s 65B Evidence Act from the persons who had procured and preserved the CCTV footage as such accused had taken a false plea and there is nothing to disbelieve the version of prosecutrix.
79. As per FSL report, semen has been found on the salwar of prosecutrix which also corroborates the version of prosecutrix that incident of rape had taken place with her as stated by her.
80. Ld. counsel for complainant with the assistance of Ld. Addl. PP for the State submitted that prosecutrix was being examined as PW3 and her examinationinchief was consistent with a statement Ex.PW3/B. There was no deliberation or improvement in the examination of the prosecutrix before the Court and she had fully supported the case of prosecution.
81. Ld. counsel for complainant with the assistance of Ld. Addl. PP for the State further submitted that photographs led in the defence evidence were never put to the prosecutrix, moreover authenticity of the photographs is also under challenge as per section 65B of Evidence Act as to from which camera or phone the said photographs and they have been kept without any interpolation/doctored. Ld. counsel for complainant further submitted that the MLC of the prosecutrix is consistent with the versions given by her.SC No.27469/2016 State Vs. Shahdab 24/35
82. On the aforesaid grounds, ld. Addl. PP for the State has prayed for conviction of the accused for the offence he has been charged and subjected to trial.
83. On the other hand, counsel for for accused argued and submitted that prosecutrix was in relation with brotherinlaw of accused, namely Arif Beg for which sister of accused, namely Malka had also got lodged complaint against her at PS Chandni Mahal, Delhi.
84. Ld. counsel for accused further submitted that brother in law (Jija) of accused had been in friendship with the prosecutrix and due to this reason family of his brotherin law had been disturbed and there was matrimonial issues between his brotherinlaw and sister. Ld. Counsel for accused further submitted that complaint was also registered against his brother in law and prosecutrix on complaint of his sister prior to registration of present FIR. Therefore, in order to taking revenge present case has been falsely got registered against him just to pressurize him to settle the matter between his brother in law, sister and prosecutrix. Ld. counsel for accused further submitted that DNA report goes against the case of the prosecution. On these grounds, ld. counsel for accused prayed that accused may be acquitted.
PERUSAL OF RECORD:
85. Record perused. On perusal of record, it is revealed that on the statement of complainant/prosecutrix Ex.PW3/B, present FIR Ex.PW2/A was registered against the accused.
86. It is further revealed that PW9 Insp. Rupesh Khatri prepared crime scene report, Ex.PW9/A while PW10 HC Ravinder clicked 19 photographs, Ex.PW10/20 to Ex.PW10/38 which were developed on the basis of negatives, Ex.PW10/1 to Ex.PW10/19 produced by PW10 HC Ravinder in court.SC No.27469/2016 State Vs. Shahdab 25/35
87. It is further revealed that PW7 SI Ajay Singh seized the broken pieces of bangles and glass vide seizure memo Ex.PW6/B. He also seized some hair lying near the door of kitchen which were seized vide seizure memo Ex.PW6/A. He also seized the bed sheet lying at the floor vide seizure memo Ex.PW6/C. He also identified the bed sheet, Ex.P2 and broken pieces of bangles and glass, Ex.P1. PW7 has proved the facts of PW6 HC Rohtash Singh.
88. It is further revealed that PW5 HC Santosh with PW21 IO W/SI Sunita produced PW3 prosecutrix in LNJP Hospital where she was medically examined by PW Dr. Nikita Banerjee vide MLC Ex.PW3/A, the handwriting and signature of Dr. Nikita Banerjee on the said MLC were identified by PW4 Dr. Anubhuti Rana.
89. It is further revealed that PW21 IO W/SI Sunita after medical examination of PW3 prosecutrix seized the exhibits pertaining to clothes of prosecutrix given to her by doctor vide seizure memo, Ex.PW5/A; then she brought PW3 prosecutrix at PS Daryaganj and recorded her statement, Ex.PW3/B; she along with PW3 prosecutrix reached at the spot of incident and prepared site plan, Ex.PW21/A.
90. It is further revealed that on 09.01.2016 PW21 IO W/SI Sunita on the basis of information received vide DD no.25A, Ex.PW1/A along with PW5 W/Ct. Santosh reached at the house of prosecutrix and made inquiry from her. She found broken glass and bangles lying near outside the kitchen and some bangles pieces lying on the bed sheet in the room.
91. It is further revealed that PW21 IO W/SI Sunita on 11.01.2016 produced PW3 prosecutrix in the court of Magistrate and moved application, Ex.PW16/A for recording her statement under section 164 Cr.P.C., Ex.PW3/C. It was recorded by PW16 Ms. Mona Tardi Kerketta, Ld. M.M., Tis Hazari Court, Delhi. PW21 W/SI Sunita obtained copy of the said statement of prosecutrix vide her application, SC No.27469/2016 State Vs. Shahdab 26/35 Ex.PW16/B.
92. It is further revealed that on 11.01.2016 PW21 IO W/SI Sunita on the identification of PW3 prosecutrix arrested accused vide arrest memo Ex.PW3/D. His personal search was conducted vide memo Ex.PW21/B and his disclosure statement was recorded vide Ex.PW21/C recorded. Accused pointed out the place of incident vide pointing out memo, Ex.PW21/D.
93. It is further revealed that on 11.01.2016 PW21 IO W/SI Sunita produced accused in casualty of LNJP Hospital where PW13 Dr. Shilpi examined accused and prepared his MLC vide Ex.PW13/A. She also collected his blood sample and gave the same in sealed condition to PW21 IO W/SI Sunita along with sample seal.
94. It is further revealed that PW15 Dr. Mohit Chauhan of Maulana Azad Medical College, Delhi examined accused vide MLC Ex.PW15/A and he opined that there was nothing to suggest that accused was not capable of performing sexual intercourse.
95. It is further revealed that exhibits of this case were deposited by PW19 ASI Mukesh Kumar in Malkhana vide entry Ex.PW19/A of register no.19 and on 19.01.2016 he handed over the said exhibits to PW8 Ct. Bhiwa Ram for depositing the same in the office of FSL, Rohini vide Road Certificate Ex.PW19/B; PW8 Ct. Bhiwa Ram deposited the exhibits in the office of FSL and obtained receipt Ex.PW19/C which he received from him on his returned.
96. It is further revealed that PW17 Sh. Anjan Rai, Nodal Officer, Tata Tele Service produced the CDRs details, Ex.PW17/A of mobile number 9211613081 which was in name of accused. H also produced customer application form, Ex.PW17/B which is found in the name of accused. He also produced cell ID chart Ex.PW17/F and gave SC No.27469/2016 State Vs. Shahdab 27/35 certificate under section 65 B of the Indian Evidence Act, Ex.PW17/G regarding correct contents of the computerized record.
97. It is further revealed that PW18 Sh. Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication Ltd. produced the CDRs details, Ex.PW18/C of mobile number 9313762486 which was in name of prosecutrix. He also produced customer application form along with proof of ID i.e. Aadhaar card in the name of prosecutrix, MarkA. He also gave certificate under section 65 B of the Indian Evidence Act, Ex.PW18/B regarding correct contents of the computerized record.
98. It is further revealed that PW20 Sh. Rashi Mehra, Director of Offshoot Agency Pvt.
Ltd. has proved the records of mobile number 9313762486 of Reliance Company, Ex.PW20/A which was belonging to prosecutrix.
99. Before reaching at any conclusion, let the relevant sections i.e. 323/341/376/506 IPC IPC be reproduced, which are as under : Section 323 IPC:
Punishment for voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
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 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with 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 ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for SC No.27469/2016 State Vs. Shahdab 28/35 a term of less than seven years.
Whoever,
(a) being a police officer commits rape within the limits of the police station to which he is appointed; or in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) 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 takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
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 of persons during convalescence or of persons requiring medical attention or rehabilitation.] FINDINGS:
100. Arguments heard. Record perused. On perusal of record, it is revealed that prosecutrix who is material witness in this case and she in her testimony has deposed that on 09.01.2016 at about 06.30 pm she had gone to the shop of the accused to get her mobile phone recharge. At that time the family of her sister including her husband had gone to her inlaws house in Bihar. She further deposed that when she went to the shop of the accused, he asked her why her elder sister has not accompanied her at his SC No.27469/2016 State Vs. Shahdab 29/35 shop, she told him that she along with her family members including her husband had gone to her inlaws house at Bihar and in fact she wanted to get her mobile phone recharge to talk to her sister. She got her mobile phone recharged with Rs.300/ on that day. Thereafter, she also purchased a pair of sandle from the shop at Chitli Kabar and returned to the house of her sister at about 07.15 pm and she talked to her sister on her mobile phone, 9878362236.
101. She further deposed that on that day at about 08.00 p.m. someone knocked the door of the house of her sister and that when she opened the door she saw the accused standing at the door. She further deposed that when she asked the accused why he had come there, he told her that he had come there to meet his sister residing in the gali at the back of the house of her sister. He further asked her for a glass of water. Thereafter, she also opened the iron door of the house of her sister and he got in. She further deposed that when she went to her kitchen to bring water for the accused, he grabbed her from behind and that when she tried to get herself relieved from the accused, the glass containing water fell on the floor and broken. She deposed that accused also slapped her twothree times and that when she tried to save herself, her wearing rani (dark pink) and blue colour bangles also smashed. She further deposed that accused forcibly dragged her to the mattress spread on the floor of the room and pinned her down there, torn her wearing clothes and committed sexual intercourse with her forcibly. Prosecutrix further deposed in her testimony that when she resisted the said act of the accused, he again slapped her and that accused further threatened her if she would disclose the incident to anyone he would kill her. Thereafter, he left the house. She immediately talked to her bhabhi, Tabbasum on her mobile phone, 9310881216 and narrated the entire incident to her and that at that time her Bhabhi was residing at Ajmeri Gate and she reached the house of her sister within half an hour and she again narrated the incident to her. Thereafter, she called the police on telephone number 100.
SC No.27469/2016 State Vs. Shahdab 30/35102. It is surprising that offence had been committed with prosecutrix. Instead of calling police, she had called her bhabhi at her house and bhabhi was also using mobile phone but she did not use her own mobile to call on 100 number.
103. Prosecutrix further stated that on 11.01.2016 at about 7:30 p.m. she had joined investigation and pointed out the shop of accused but he was not present. Thereafter, police procured address of the accused from where he was arrested on the pointing out of the prosecutrix.
104. She stated in her deposition that on 09.01.2016 at about 6:30 p.m. she had gone to the shop of accused to recharge his mobile phone but in cross examination she admitted that she had talked to her sister and her Fufi on phone on the day of incident at about 07:45 p.m. but she did not disclose about the incident to them.
105. MLC of prosecutrix reflects that "history of sexual assault on 09.01.2016 at 6:45 p.m. at her home by a man Shahdab (works at recharge shop in Darya Ganj) as told by victim". Further, MLC reflect no history of change of clothes by the prosecutrix after sexual assault. It means prosecutrix was wearing the same clothes and same were sent to FSL for examination but FSL report does not reflect any kind of DNA profile.
106. When the prosecutrix in her MLC stated to the Doctor time of incident 6:45 p.m., being an official document we can rely. On other hand in her deposition she submits that she returned to her house after recharge of mobile phone at 7:15 p.m. It creates doubt on the testimony of the prosecutrix.
107. Further, when she stated that at about 8:00 p.m. some one knocked at door of house of her sister and she saw the accused at that time. It means medical had been prepared before the time of incident because prosecutrix stated herself that at 8:00 SC No.27469/2016 State Vs. Shahdab 31/35 p.m. she had saw accused at the door of house of her sister. There is no occasion that accused might have come at 6:45 p.m. at the house of her sister where rape was committed upon the prosecutrix. It also create doubt when she stated that she had talked to her sister and her Fufi on phone on the day of incident at about 07:45 p.m. Even then, she did not tell them about the incident and only she had stated the incident to PW Tabbasum who is her Bhabhi.
108. It is also admitted fact that where sister of prosecutrix resides other rooms were occupied by the tenants and she has stated that she had raised alarm. It is very surprising that no one had come out even of the rooms occupied by the tenants. She never knocked the door of any neighbour for seeking help.
109. In her cross examination by Sh. Mukesh Kumar Sharma, ld. Counsel for accused, prosecutrix admits that she know the person in the name of Arif Beg and Ms. Rahat is her cousin sister and Rashid is her son. Arif Beg is her brother (Fufi ka beta). She deposed that she was not aware if the marriage of sister of accused was solemnized with Arif Beg. She further admitted that generally they used to visit to the house of Arif Beg on the occasions of marriage and festivals etc.
110. It is natural that in cousin relations persons generally used to visit to attend the function but it is not natural that her family had not attended the marriage of Arif Beg without assigning any reason. Atleast there must be some reason for not attending the marriage or function etc.She further deposed that she was not aware if the house in question was transferred in the name of Malka (sister of accused) by Arif Beg. She further shows her unawareness if Malka and her brother had lodged any complaint against her, Rashid, Arif Beg and Rahat.
111. In her cross examination she submitted that her bhabhi had reached her house at about 9:00 p.m. whereas MLC reflect that incident had happened with her at 6:45 SC No.27469/2016 State Vs. Shahdab 32/35 p.m. MLC of prosecutrix shows no history of fresh injury, hymen ruptured old and no fresh tear.
112. Prosecutrix in her cross examination stated that local police also reached the place of incident after about 34 minutes of PCR and they took her to hospital. Police recorded her statement at police station. Her brother Sarif Khan and her Bhabhi Tabbasum were present at that time but Sharif Khan has not been examined on this fact.
113. PW Tabbasum who has been examined as PW11. She deposed that on 09.01.2016 at about 8:10 p.m. while she was present at her house she received a phone call from the prosecutrix stating that "jaldi ghar aa jao Shadab namm ke ladke ne mere saath galat kaam kar diya hai". She immediately went to the house of prosecutrix and immediately called the police at 100 number from the mobile of the prosecutrix. She deposed that after about 2025 minutes police official reached there. This witness submits that police had recorded the statement of prosecutrix but she was not present at that time. This also creates contradictions in the testimony of prosecutrix that her bhabhi Tabbasuum and her brother Sharif Khan were present at the time of recording of statement of prosecutrix. In her cross examination, this witness had stated that house of prosecutrix was situated at the distance of half an hour from her house. This witness stated that prosecutrix had left her house when her sister reached there and prosecutrix had made 34 calls to her during the day of incident. PW Ms. Shagufta is the land lady where sister of prosecutrix had been residing along with her husband. Initially, she had given the said flat to them for 56 months but they continued to live there till 2016. She does not remember the month when they had left the said flat and she does not know about the incident.
114. In cross examination, this witness further admitted that she used to visit house in question and met the prosecutrix at that house along with her sister. This witness had denied to suggestion that she in connivance with Arif Beg, prosecutrix, her sister SC No.27469/2016 State Vs. Shahdab 33/35 Noorie and her husband had falsely implicated the accused in order to pressurize the accused to withdraw the matrimonial case against Arif Beg. In this regard, DW2 Ms. Malka Begum who is wife of Arif Beg has been examined as DW2. This witness had submitted that accused is her brother and on 09.01.2016 at about 8:00 p.m. 09:00 p.m. she along with her brother and his family had gone to attend a marriage at Faiz EIlahi, Turkman Gate, Delhi and they had been in the marriage by 12:00 midnight or 01:00 a.m. After attending marriage when they reached at their house, then her brother received a phone call from the market but she does not know the name of caller. Someone told them that accused had been detained in the police station Darya Ganj and he was released at about 3:00 a.m. and 4:00 a.m. On the same day, he was called at police station and she along with her two sisters, brother and some relatives had accompanied the accused to police station and on reaching there they come to know that prosecutrix had levelled the allegation of rape against the accused. After registration of case, one of her relative told her that prosecutrix had married with her husband Mirza Arif Beg and having two children from him. He also told her that she was residing in Gali Godne Wali with her two daughters. Due to his relation with prosecutrix, her husband had given her up. Prosecutrix had been chasing her husband since 16 years. She further deposed that due to his relation with the prosecutrix, she is residing separately from her husband and she has filed cases against her husband Mirza Arif Beg in the court, before ACP, Kamla market, Delhi and before Delhi Commission for Women vide complaint Ex.DW2/A and Ex.DW2/B respectively and copy of FIR No.0050/2016 PS Chandni Mahal also placed on judicial record vide mark DA.
115. This witness was cross examined by Ld. Addl. PP for the State. In cross examination by Ld. Addl. PP for the State, she had admitted that on the day of marriage her brother who is accused in this case had come to their house before 7:30 p.m. from his shop. This witness had denied to suggestion that on 09.01.2016 at about 8:00 p.m. her brother/accused trespassed in the house of prosecutrix or that he had committed SC No.27469/2016 State Vs. Shahdab 34/35 rape upon her. This witness may be interested witness on the fact of this matrimonial dispute with Mirza Arif Beg placed reliance which may be presumed to be correct and hence, connivance of prosecutrix with Mirza Arif Beg cannot be ruled out.
116. In these circumstances, it would not proper to convict the accused. Considering the facts and circumstances, testimony of prosecutrix has not inspired the confidence of this court, hence, prosecution has been failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Shadab is acquitted from the charges u/s 323/341/376/506 IPC.
117. Accused is directed to execute bail bond u/s 437 A Cr. P.C. in sum of Rs.25,000/ with one surety in the like amount.
118. Since prosecutrix has misused the due process of law, hence, no compensation is awarded to her.
119. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 20.04.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Digitally signed by RAMESH KUMAR RAMESH Date:
KUMAR 2018.04.21
16:45:22
+0000
SC No.27469/2016
State Vs. Shahdab 35/35