Delhi District Court
State vs . Ishak & Anr on 31 May, 2017
IN THE COURT OF SHRI SANJIV JAIN
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT (SOUTH EAST) SAKET COURTS: NEW DELHI
SC No. : 51/16 and 2368/16
FIR No. : 74/16
U/s. : 354D/417/376/120B/366/392/342/323/506/376D IPC
PS : Kotla Mubarak Pur, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Ishak @ Irshad
S/o Late Shakoor Khan
R/o 750/2, Sukhdev Aliganj,
Kotla Mubarak Pur, New Delhi.
Yogesh Basoya
S/o Sh. Balak Ram
R/o H No. 313, Joodbaghm
Kotla Mubarak Pur, New Delhi. .........................Accused
Date of Institution : 29.04.2016
Judgment reserved for orders on : 31.05.2017
Date of pronouncement : 31.05.2017
J U D G M E N T
1.On 23.01.2016, at 10.55 a.m, SI Santosh Chauhan received an information from SI Sandeep Pawar regarding an incident of rape with a girl. On the directions of SHO, she reached AIIMS where Lct.Lajwanti was present with the prosecutrix. Medical examination of the prosecutrix was got conducted. In the history narrated to the doctor, she alleged that when she was coming back from her job from Defence Colony, On the way, she met two unknown persons FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 1 of 12 who took her in a guest house at Kotla Mubarak where both of them raped her one after the other. The doctor collected her exhibits and handed over to Lct. who in turn gave to SI Santosh Chauhan. The statement of the prosecutrix was recorded inter alia as under:
She lives with her sister and brotherinlaw in a rented house at Kotla Mubarak Pur. She belongs to Assam. About two years ago, she had come to Delhi to do job. Her brotherinlaw is a cook. Her sister had gone to Uttarakhand in her inlaws house since she was eight months pregnant. She works as maid. For about five months, she has been working as maid in House No. C56, Defence Colony, New Delhi. Since October, 2015, a boy was stalking her. He told her that he wanted to make friendship with her. He revealed his name Irshad. They became friends and fell in love. He used to take her to his house and in the room of his friend where he used to make physical relations with her after promising to marry her. About two days before, she came to know that he was already married and has three children. Yesterday, at about 7.00 p.m, when she was returning from her work and passing through Gurudwara gali, two boys stood in front of her. They asked her to accompany them to Sewa Nagar. They were staring at her in anger. One of them snatched her mobile phone since she wanted to call the police. They caught her and took her in a gali at Sewa Nagar. She got scared and started weeping but they FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 2 of 12 made her quiet and threatened her to kill in case she would raise alarm. They took her in a house which was dark where both of them committed rape upon her one by one. One of the boys also slapped her. They then left her alone. She put on her clothes and came in her house. She told the incident to her brotherinlaw. She alleged that those two boys during the incident had named Irshad. She and her brotherinlaw then went to the police station. Police brought Irshad in the police station where he revealed the names of his friends i.e Amit @ Lachchu and Yogesh.
2. On her statement, SI Santosh Chauhan made endorsement and got the case registered u/s 376D/354D/365/342/323/506/392 IPC. She was got counseled. The exhibits of the prosecutrix were deposited in the malkhana. She identified the place of incident i.e. Qtr. No. L626, Sewa Nagar, Kotla Mubarak Pur. CFSL team was called on the spot. They recovered a wrapper of condom from there. It was seized after making a pulanda sealing with the seal of SC. Section 120B IPC was added. Accused Irshad @ Ishak was arrested. At the instance of Ishak, accused Yogesh was arrested from House No. 313, Kotla Mubarak Pur. He produced the mobile phone of the prosecutrix. He was identified by the prosecutrix. The mobile phone was deposited in the malkhana. Accused Amit @ Lachchu could not be arrested. Father of Amit @ Lachchu, told the IO that he has debarred and disowned him from all his movable and immovable properties. Both the accused persons were got medically examined. They were found capable of performing sexual intercourse under FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 3 of 12 normal circumstances. Their exhibits were collected. The statement of prosecutrix u/s 164 CrPC was got recorded wherein she reiterated on the lines of her complaint. Despite best efforts, accused Amit @ Lachchu could not be arrested. The exhibits were sent to the CFSL. As per the report, blood was detected in the blood in gauze of Yogesh Basoya and Ishak @ Irshad. Semen was detected in the vaginal smear, vulval swab, vaginal swab,vaginal smear for sperm detection of the prosecutrix, underwear of accused Yogesh and underwear of accused Ishak @ Irshad. The DNA generated from the male fraction DNA obtained from the source of vaginal smear, vaginal and vulval swabs, vaginal smear of the prosecutrix and underwear of the accused Yogesh Basoya was found consistent with the DNA profile of the blood in gauze of accused Yogesh Basoya. The DNA profile generated from the male fraction DNA obtained from the source of underwear of accused Ishak was found consistent with the DNA profile of accused Ishak i.e his blood stained gauze. The underwear of accused Ishak and Yogesh did not yield female fraction DNA for analysis. Other exhibits did not yield DNA for analysis. After the investigation, the accused persons were sent for trial for the offences punishable u/s 376/376D/354D/342/365/323/392/506/120B IPC.
3. After complying with the requirements contemplated u/s 207 Cr.P.C. the case was committed to this Court.
4. After hearing arguments, vide order dated 06.06.2016, prima facie case u/s 354D/417/376 IPC was made out against the accused Ishak @ Irshad. Prima facie case u/s 120B, 366 r.w 120B, 392/342/323/506 IPC r.w 120B IPC and 376D r.w 120B IPC was FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 4 of 12 made out against both the accused persons Ishad @ Irshad and Yogesh Basoya. Charges were accordingly framed. The accused persons pleaded not guilty and claimed trial.
5. To substantiate its allegations against the accused persons, the prosecution examined the prosecutrix as PW1 and Insp. Santosh Chauhan as PW2.
PW1 / prosecutrix deposed on the lines of her complaint and stated that after coming from Assam to Delhi, she started working as maid in the houses. In 2014, she had been working as maid in H. No. C56, Defence Colony. In October, 2015, she noticed that a boy stalks her. He tried to talk to her. He asked her to become his friend. He revealed his name Ishak. They became friends. She stated that the accused used to live with his uncle at Kotla Mubarak Pur. They fell in love. He used to take her to his room and commit sexual intercourse with her. He also took her in the room of his friend two times. First time, he made physical relation with her with her consent but on the second time, he committed sexual intercourse with her forcibly. He also took her in a house at South Extension, where he committed sexual intercourse with her forcibly. She stated that the accused was married and has three children.
She stated that on 23.01.2016, at about 7.00 p.m, when she was returning home and passing FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 5 of 12 through gurudwara gali, Kotla Mubarak Pur, two boys came. They forcibly made her sit on their motorcycle and took her in a house at Kotla Mubarak Pur. They confined her. They snatched her mobile phone since she was trying to call the police. She saw the accused Ishak locking the room from outside. She stated that both the boys committed rape upon her one by one. They also gave her beatings. After sometime they left the house. She wore her clothes. She noticed that the door was not bolted from outside. She went to her house and told the incident to her brotherinlaw. At that time, her sister had gone to her in laws house at Uttarakhand. She with her brotherinlaw went to the police station where she gave statement Ex. PW 1/A. She proved her MLC Ex. PW 1/C and stated that during examination, she had narrated the history of incident to the doctor. She also gave her clothes which she was wearing at the time of incident. She stated that on 25.01.2016, she gave statement to the Magistrate Ex. PW1/C. She also witnessed the arrest of the accused Ishak @ Irshad from his shop vide arrest memo Ex. PW 1/D. She also pointed out the rooms where accused Ishak had taken her and had sexual intercourse. She also took the police party to the place of incident. She proved the site plan Ex. PW 1/F. She stated that the accused Ishak used to make physical relations with her after giving her false FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 6 of 12 promise of marriage and she did not know that he was already married. She stated that she was wrongfully confined in the house No. L626, Sewa Nagar on that night. She however denied that those boys had told her that accused Ishak had told them about her. She stated that she did not notice plaster on the hand of one of the boys who committed rape upon her. She denied that the police arrested one of those boys at the instance of the accused Ishak and she identified the accused Yogesh. She denied that the accused Yogesh was one of the two boys who committed rape upon her. She admitted that her mobile phone was of make Intex but she denied that her mobile phone was recovered from the possession of accused Yogesh. She however admitted her signatures on the seizure memo of the mobile phone Ex. PW1/G and the arrest memo of accused Yogesh Ex.PW 1/H. PW2 Insp. Santosh Chauhan was examined as PW2. She deposed on the lines of the investigation. She collected the exhibits of the prosecutrix vide memo Ex. PW 2/A and arrested the accused Yogesh Basoya. She stated that she made efforts to arrest the accused Amit @ Lachchu but he could not be arrested. She got him declared Proclaimed Offender on 10.06.2016 vide order Ex. PW 2/D1. She also called the crime team and seized the condom vide memo Ex. PW 2/E. She got the accused Yogesh and Ishak medically FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 7 of 12 examined, collected their exhibits, sent them to the FSL and recorded the statement of brotherinlaw of the prosecutrix. In her deposition, she stated that neither the prosecutrix nor her brotherinlaw are traceable and she cannot produce them in the witness box. She stated that Qtr. No. L626 Sewa Nagar, New Delhi was not allotted to anyone at the time of incident. She collected the FSL report Ex. PW 2/O. She admitted that the FIR was registered after the accused Ishak was called in the police station and nothing was recovered from him or at his instance. She also admitted that before the registration of the FIR, the prosecutrix did not complain against the accused Ishak nor she verified the marital status of accused Ishak if he was married or bachelor.
6. In the instant case, the examination in chief of the prosecutrix was recorded on 15.07.2016. Her further examination was deferred for want of case property which was sent to the CFSL. After receipt of the CFSL report, the prosecutrix was summoned vide order dated 09.08.2016 for 29.09.2016 but her summons received back unserved with the endorsement that she does not live at the said address. The summons of the prosecutrix were given dasti to the IO SI Santosh Chauhan which were again received with the report that the prosecutrix has left the tenanted premises. On 10.11.2016, the summons on the prosecutrix were directed to be served through the IO and DCP, South and they reported that the prosecutrix has not FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 8 of 12 been living at the rented premises. The summons were sent at her native place also but she was not found living there for about five years after the death of her parents. They stated that the present whereabouts of the prosecutrix are not known. IO also submitted that the prosecutrix discontinued the mobile number which she was using. On 22.02.2017, on the request of the ACP, one more opportunity was given to trace the prosecutrix. On 05.05.2017, it was reported by the IO Insp. Santosh Chauhan that she had made sincere efforts to trace the prosecutrix but she is not available. She expressed her inability to produce her in the witness box. She also stated that even she could not trace the whereabouts of the brother inlaw of the prosecutrix with whom the prosecutrix used to live in Delhi. Report was also called from the DCP regarding service of the prosecutrix through her brotherinlaw Satish. As per the report, Satish Kumar does not live at the address mentioned in the charge sheet. The house owner / landlord Naresh Kumar reported that he (Satish Kumar) never lived at the said address. He had rented out a room to the prosecutrix who lived there for 23 days and left the room saying that she was going to her brotherinlaw Satish Kumar. DCP has also shown his inability to produce the prosecutrix in the witness box stating that she is not traceable. IO submited that she had sent an official to the native place of Satish Kumar at Pauri Garhwal and he reported that no such village exists.
7. Looking into the report of the IO and DCP, I found that presence of the prosecutrix couldnot be procured in the witness box. PW Satish Kumar was also not traceable.
8. In the instant case the examination in chief of the FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 9 of 12 prosecutrix was deferred for want of case property on 15.07.2016 and thereafter she did not appear in the witness box. As per the settled proposition of law, the examination of a witness includes examination in chief and crossexamination. Since the accused persons did not get an opportunity to crossexamine the prosecutrix since she was not traceable, I am of the view that her examination in chief recorded on 15.07.2016 would not be read against the accused persons. The other witnesses cited in the list of witnesses were the police officials and doctors who came in motion at the instance of the prosecutrix and Satish.
9. As per the allegations, the accused Ishak @ Irshad used to stalk the prosecutrix. He promised to marry her and on that pretext, he made physical relations with her number of times. Both the accused persons on 23.01.2016 after hatching a conspiracy with co accused Amit @ Lachchu( since not arrested) abducted her with an intention to force her to illicit intercourse, robbed her mobile phone, wrongfully confined her in the quarter at Sewa Nagar, beat her and threatened her. Accused Yogesh Basoya and accused Amit also gang raped her.
10. As per the FSL report Ex. PW 2/O, semen was detected in the vaginal and vulval smear, vaginal swab, vaginal smear for sperm detection of the prosecutrix, underwear of accused Yogesh Basoya and underwear of accused Ishak @ Irshad. DNA generated from vaginal smear, vulval swab, vaginal swab, vaginal smear of the prosecutrix and underwear of accused Yogesh Basoya was found consistent with the DNA generated from the blood in gauze of the accused Yogesh Basoya. DNA generated from the underwear FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 10 of 12 of the accused Ishak was found consistent with the DNA generated from his blood in gauze of the accused Ishak.
11. The prosecutrix in her examination although identified accused Ishak but did not say anything incriminating against the accused Yogesh . PW2 / IO has stated that Ishak was called in the police station but nothing was recovered from him or at his instance. She also stated that before the FIR, the prosecutrix did not complain against the accused Ishak nor she verified the marital status of accused Ishak if he was married or bachelor.
12. On considering the facts and circumstances in entirety, I did not find any purpose to examine the remaining prosecution witnesses as their testimonies even if unrebutted would not become the basis of conviction of the accused persons. The prosecution evidence was accordingly closed. In the absence of incriminating evidence against the accused persons, their statements u/s 313 CrPC were dispensed with.
13. In the light of the above discussions, accused persons namely Ishak @ Irshad and Yogesh Basoya, are acquitted of the offences punishable u/s 366 r.w 120B, 392/342/323/506 r.w 120B and 376D r.w 120B IPC. Accused Ishak @ Irshad is also acquitted of the offences punishable u/s 354D/417/376 IPC. Their bail bonds be cancelled. Their sureties be discharged. They are however directed to furnish bail bonds in the sum of Rs.50,000/ each with one surety each of the like amount in compliance of Section 437A CrPC.
14. Accused Amit Kumar is Proclaimed Offender. He is not traceable. The prosecution is at liberty to revive its case against the FIR No. : 74/16 State Vs. Ishak & Anr PS : Kotla Mubarak Pur Page No. 11 of 12 accused Amit Kumar in case it gets any clue about him.
15. File be consigned to the Record Room.
Announced in the open court today i.e. 31.05.2017 (Sanjiv Jain) ASJSpl. FTC / South East Saket Courts, New Delhi.
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