Delhi District Court
State vs Accused on 31 May, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS JUDGE-02, KARKARDOOMA COURTS, EAST DISTRICT, DELHI Unique Case I.D. No.02402R0200972010 SC NO.76/10 Date of Institution :09.08.2010 FIR No.137/10 Date of Argument :30.05.2012 PS Mayur Vihar Date of Order :31.05.2012 U/S 376 IPC State Versus Accused Abdul Hassan @ Abdul S/o Jamaluddin R/o H.No.20/431, 2nd floor, Trilokpuri, Delhi. Permanent Add.:Vill.+ Post Sikroli, PS Binawar, Tehsil & District, Badayun, UP. JUDGMENT
The facts in brief of the prosecution case are that on 22.04.2010 at about 1 P.M., at his tenanted room, at second floor of House No. 20/431, Trilokpuri, Delhi, accused Abdul Hassan @ Abdul attempted to commit rape on prosecutrix child Shabila aged about 3 years. Her mother Smt. Munisha heard cries of prosecutrix. She went upstairs and saw accused lying naked on her daughter after undressing her. After seeing her, accused put on his clothes and ran away from the spot. Smt. Munisha brought her daughter to her room, washed her clothes SC No.76/10 State Vs. Abdul Hassan Page 1 of 17 having blood stains and got her bathed. On 23.04.2010 when her husband Sh. Sadakat returned from her work he saw his daughter weeping. On inquiry Smt. Munisha disclosed all the facts to her husband who informed the police by dialing No.100 and DD Entry No.28A in this regard was recorded. She disclosed that due to shyness she could not tell this fact to her husband on the same day. Police arrived at the spot and made inquiries from them. statement of Smt. Munisha was recorded. IO made endorsement thereon and thereafter case vide No.137 dated 30.04.2010 was registered at PS Mayur Vihar-I for the offence punishable u/s 376 IPC. Prosecutrix was sent to LBS Hospital where she was medically examined vide MLC No.31/10 dated 23.04.2010. She was internally examined. The samples of nail cuttings, swab culture of vagina, washing from vagina, oral swab, blood sample for toxicology were taken and handed over to police which were subsequently sent to FSL for testing. Sheet and lungi from the room of accused were seized vide seizure memo. Clothes of prosecutrix was also seized by separate seizure memo. Police also seized all the samples which were handed over to the police by doctor of the hospital vide separate seizure memo. I.O. prepared site plan of the place of incident. On 25.04.2010 at about 6:30 P.M. accused Abdul was arrested vide arrest memo and his personal SC No.76/10 State Vs. Abdul Hassan Page 2 of 17 search was conducted vide personal search memo. He was interrogated and his disclosure statement was recorded. He also led the police party to the place of incident and a pointing out memo was prepared and accused was also got medically examined in LBS hospital vide MLC Ex.PW2/A. Police also seized samples which were supplied by doctor at the time of medical examination of accused Abdul Hassan vide separate seizure memo and these were deposited in the malkhana and thereafter these were sent to FSL. After recording of statement of witnesses, completion of investigation and collecting the FSL report, police filed charge sheet before Ld. M.M. against the accused for his trial for the offences punishable u/s 376 IPC.
2. Ld. Metropolitan Magistrate after supplying copies of charge sheet and documents committed this case to the court of sessions and it was assigned to this court.
3. My Ld. Predecessor vide his order dated 17.08.2010 was of the opinion that there was a prima facie case for framing charge against accused for attempting to commit rape punishable under section 376 IPC. Accordingly, charge against accused for said offence was framed and read over to him. Accused pleaded not guilty SC No.76/10 State Vs. Abdul Hassan Page 3 of 17 and claimed trial.
4. In support of its case prosecution examined Doctor Dharam, Specialist, Kasturba Hospital as PW1; Dr. O.S. Tomar, CMO, LBS Hospital as PW2; Dr. Jameer Ahmed, landlord of house No.20/431, Trilokpuri, Delhi as PW3; Lady Ct. Sweta as PW4; SI Murtaja Khan as PW5; HC Sugan Pal Singh as PW6; Dr. Vinay Kumar Singh, Forensic Medicine, LBS Hospital as PW7; Sh. Sadakat, father of prosecutrix as PW8; Smt. Munisha mother of prosecutrix as PW9; S.I. M.K. Manoj as PW10; HC Soran Singh as PW11; Ct. Sant Ram as PW12; SI Nagender as PW13; HC Vijender as PW14; and Inspector Subodh Kumar as PW15.
5. After closing of prosecution evidence statement of accused u/s 313 Cr.P.C. was recorded. Accused pleaded that the parents of prosecutrix Shabila were residing in H. No.20/431, Trilokpuri as a tenant at first floor and he was residing as a tenant on the second floor. He also admitted that he was medically examined by Dr. O.S. Tomar vide MLC and PW7 Dr. Vinay Kumar Singh vide MLC Ex.PW7/A opined that he was capable of performing sexual intercourse and that he was arrested in the present case and sent to J.C. Accused either denied the remaining prosecution evidence or expressed his ignorance about the SC No.76/10 State Vs. Abdul Hassan Page 4 of 17 occurrence. He pleaded that he was falsely implicated in the present case and he was innocent. Accused opted to lead evidence in his defence.
6. In support of his defence accused examined Sh. Shoab s/o Sh. Banney as DW-1.
7. After closing of prosecution evidence, I have heard arguments addressed by Ld. Defence Counsel and Ld. Addl. Public Prosecutor for the State and perused file including written arguments and various rulings submitted by Ld. Defence Counsel.
8. PW9, mother of prosecutrix deposed on 09.12.2010 that on 22.04.2010 she was residing at H. No. 20/431, Trilokpuri, Delhi as tenant and she was a housewife. On that day she was present at her house and her husband went for labour work. Her elder son Yusuf aged about 6 years and her daughter Shabila aged three years went at the house of Abdul at 3rd floor of the house for playing. On that date at about 1 p.m. she heard noise of her daughter Shabila, so she immediately reached there and on entering into the room of Abdul she saw Abdul without clothes and he also removed the clothes of her daughter Shabila and Abdul was lying on her daughter SC No.76/10 State Vs. Abdul Hassan Page 5 of 17 Shabila. After seeing her accused ran away from the spot after wearing clothes. In the evening when her husband returned at home she could not disclosed these facts to him due to fear as well as shyness. Next day on 23.04.2010 when her husband returned in the evening he found Shabila crying due to pain under her stomach. She then disclosed all the facts to him. He immediately made a call at number hundred (100). Police came at her residence. She informed the police that on the date of incident i.e. on 22.04.2010, her daughter Shabila was wearing panty and it was blood stained. Thereafter, she washed out the said clothes due to fear of her husband and after bathing her daughter she got her daughter worn the other clothes. Police recorded her statement Ex. PW9/A which was signed by her at point A. Police also prepared site plan Ex.PW9/B which was also singed by her at point A. Police then went at the house of Abdul Hassan and seized one bed sheet with one red and black colour stripes, one lungi of accused vide seizure memo Ex.PW9/C. She also produced clothes of her daughter i.e. panty, one frock which were also seized by police vide seizure memo Ex.PW9/D. All these documents were signed by her at point A. On 23.04.2010 her daughter Shabila was medically examined in LBS hospital with the help of lady police and she also gave consent for the internal medical examination SC No.76/10 State Vs. Abdul Hassan Page 6 of 17 of her daughter by putting her thumb impression at point A on MLC Ex.PW1/B. She identified the accused Abdul Hasan in the court correctly. Her cross examination was deferred for want of case property and CFSL report.
9. On 21.05.2011, her further statement was recorded wherein she deposed that she was unable to identify bed sheet and lungi of accused and panty of her daughter if shown to her. Subsequently, she changed her statement and deposed that she could identify these exhibits. The undergarments of her daughter were shown to her and she stated that these did not belong to her daughter and those were not seized in her presence. Bed sheet and lungi were seized but she was not able to identify those exhibits. At the request of public prosecutor she was declared hostile and during cross examination conducted by Ld. Addl. P.P. for the State she denied the suggestion that she was not identifying the case property deliberately as she was won over by the accused. In cross examination conducted by Ld. Defence Counsel she stated that police recorded her statement of their own and it was not read over to her and on the previous date she deposed in the court on the line on which the police recorded her statement and that statement was told to her by the police outside the court. In response to court question, she SC No.76/10 State Vs. Abdul Hassan Page 7 of 17 replied that she did not tell all these facts due to fear. She further deposed that she was not aware about the incident in dispute and she did not want any legal action against the accused. She also admitted the suggestion that police falsely implicate the accused in the present case.
10. It has been argued on behalf of Ld. Defence Counsel that only eye witness PW9 failed to support the prosecution case as in cross examination she exonerated the accused. He submitted that accused is entitled for acquittal in the present case on getting benefit of doubt.
11. In support of his arguments he relied on a case, State v. Naresh Chand & Ors., 2009 (2) FLC 26 wherein Delhi High Court held that when two views are possible, one favouring the accused and other in favour of prosecution, the view favouring accused must be taken into consideration.
12. Ld. Defence Counsel further relied on a case, Jag Narain Prasad v. The State of Bihar, 1998 (2) C.C. Cases (SC) 45 wherein the Supreme Court set aside the conviction observing that version of the witnesses appeared to be improbable and un-natural.
SC No.76/10 State Vs. Abdul Hassan Page 8 of 1713. Ld. Defence Counsel further argued that there has been delay of more than 30 hours in reporting the matter to the police and this creates doubt about the truthfulness of the prosecution case and accordingly, accused is entitled for acquittal. He relied on a case, Vijay Kumar Bhushan v. State, 2007 [1] JCC 10. It was held therein that it depends on the facts and circumstances of each case whether there has been any such delay in lodging FIR which may cast doubt about veracity of the prosecution case.
14. Ld. Defence Counsel further argued that investigation officer did not join any public person during the investigation and non joining of independent witness has created doubt about the genuineness of the present case. He further relied on a case, State (Delhi Administration) v. Vijay Kumar @ Bhushan, wherein it has been laid down that non involvement of independent persons in matter of recovery allegedly made at a place like railway station in Delhi or even of those police personnel posted at station booths make such recovery doubtful.
15. Ld. Defence Counsel further argued that accused is entitled for benefit of doubt as case of SC No.76/10 State Vs. Abdul Hassan Page 9 of 17 prosecution is highly doubtful. In support of his arguments he relied on a case, Umesh Dutt v. State (Govt. of NCT, Delhi), 2010 (2) C.C. Cases (HC) 452 wherein it was held that if eye witnesses has not seen the appellant entering or coming out of the house of deceased, then the prosecution case is highly doubtful. Conviction and sentence were set aside.
16. Ld. Defence Counsel further relied on a case, Parmanand Yadav v. State, 2010 (2) C.C. Cases (HC) 374 wherein Delhi High Court acquitted the appellant of the charge of murder where it found variation in testimony of mother of deceased and her brother-in-law.
17. Ld. Defence Counsel further relied on a case, Pappey v. State, 2010 (2) CCC SC 183 wherein it was held by Delhi High Court that a piece of solitary incriminating evidence can never form the basis to sustain a conviction on finding of guilt. Appellant was acquitted.
18. Ld. Defence Counsel further relied on a case, Jiten Besra v. State of West Bengal, 2010 (2). It was held by Apex Court that once it was found that circumstances could not point out towards guilt of accused, without any other inference being probable, the accused must get SC No.76/10 State Vs. Abdul Hassan Page 10 of 17 benefit of doubt.
19. Ld. Defence Counsel further argued that testimony of mother of prosecutrix is not consistent and rather shaky therefore, it cannot be relied upon and accused is entitled for getting benefit of doubt. He relied on a case Sonu v. State (NCT) of Delhi, 2010 (2) C.C.C. (HC) 381 wherein the Delhi High Court acquitted the accused from the charge u/s 376 IPC as the testimony of father of prosecutrix was shaky.
20. On the other hand, it has been argued by Ld. Addl. Public Prosecutor for the State that PW9 did not support the prosecution case in cross examination as she was won over and the court may rely on the testimony of PW9 recorded on 09.12.2010 and may discard the testimony recorded on 21.05.2011.
21. In support of his arguments he relied on a case Abdul Murasalin Vs. State, 2005(84) DEJ 430, wherein High Court of Delhi observed that:
"19. To be fair to the learned counsel for the appellant, we may mention that he in support of his submission placed reliance on Suraj Mal v. State (Delhi Administration) MANU/SC/0268/1979:1979CriLJ1087, particularly, on the following observation:
20. "Where witnesses makes two inconsistent statements SC No.76/10 State Vs. Abdul Hassan Page 11 of 17 in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
21. Undoubtedly in the said case the witnesses were disbelieved. But when the Supreme Court did so it was persuaded by the totality of facts and circumstances peculiar to that case. It was not laying down a proposition to be invariably followed.
22. It is not only the identity of the appellants by PW-20 Mohd. Jamil in his examination-in-chief which leads us to hold the appellants guilty. There are other factors too which clearly establish their identity and which connect them with the crime."
22. In order to appreciate the rival contention of Ld. Defence Counsel and Ld. Addl. P.P. I have analyzed the entire evidence on record. I find that there are three sets of witnesses in the present case namely the parents of prosecutrix i.e. PW8 & PW9, secondly, doctors i.e. PW1, PW2, & PW7, and thirdly, public witnesses i.e. PW3 who is a formal witness and remaining i.e. PW4 to PW6 and PW10 to PW15 are the police officials. PW1 proved MLC of prosecutrix as PW1/A. She, inter alia, stated that on local examination, she found hymen intact and a small abrasion was present near urethral opening but not found any bleeding or mark of any injury. PW2 proved MLC of accused Abdul Hassan as PW2/A. PW7 proved report Ex.PW7/A and deposed that there was nothing suggestive that Abdul Hassan was incapable to perform sexual SC No.76/10 State Vs. Abdul Hassan Page 12 of 17 intercourse.
23. PW3 is the landlord of parents of prosecutrix as well as to accused at the time of incident. He deposed only on that aspect. PW4 deposed on the aspect that she took the prosecutrix to hospital for the purpose of medical examination. PW5 deposed only that he took accused Abdul Hassan to LBS hospital for conducting his potency test. PW6 is the witness of recording FIR Ex.PW6/A on the basis of original tehrir vide Ex.PW6/B. Testimony of PW8 father of prosecutrix is almost of hearsay nature. Mother of prosecutrix disclosed the facts to him and he accordingly informed the police. PW10 is a witness regarding visit of spot, recording of rukka, conducting of medical examination of victim Shabila and preparation of various seizure memos including Ex.PW9/C, PW9/D, PW10/A, PW10/B, PW10/C and PW10/D vide which various samples and exhibits were seized by the police. PW11 is a witness of proving the fact of arrest of the accused and his arrest memo Ex.PW10/A, personal search memo Ex.PW10/B, disclosure statement Ex.PW10/C and preparation of pointing out memo Ex.PW10/D. PW12 & PW14 are the MHCM who recorded entries regarding depositing of exhibits and sending the same to FSL. PW13 is the first IO who recorded statement of Munisha, prepared rukka and SC No.76/10 State Vs. Abdul Hassan Page 13 of 17 got the FIR registered. PW15 is the second IO who conducted rest of the investigation. Thus only solitary witness is PW9.
24. As per the principles of law laid down in case, Balia alias Balaram Behera and another v. State of Orissa, 1994 CRI. L.J. 1907, the conviction of accused can be based on solitary evidence provided her testimony is consistent, reliable and gets support by the other evidence on record.
25. I have scrutinized and evaluated her testimony. I come to the conclusion that it would not be safe and rather it would be hazardous to base the conviction of the accused on the basis of her solitary statement. The reasons which support my decision are firstly that her testimony is not consistent. Her examination in chief supported the prosecution case but when she was put to cross examination she failed to support the prosecution case and rather completely demolished it.
26. Secondly, her testimony does not find support from other scientific or medical evidence. PW1 doctor who examined the prosecutrix stated that on local examination she found hyman intact. There was only one small abrasion SC No.76/10 State Vs. Abdul Hassan Page 14 of 17 present near urethral opening. There was neither bleeding nor any mark of injury.
27. Thirdly, it has been mentioned in the FSL report Ex.PY & PX that semen could not be detected on the Ex.PX. Blood was detected on Ex.1q1, Ex.1q2, Ex.1rl and 5 and blood could not be detected on remaining exhibits. It has been mentioned in Ex.PY that samples were putrified and therefore, no opinion could be given. Thus, there is no corroboration of testimony of PW9 by scientific evidence.
28. Fourthly, there is delay of more than 30 hours in reporting the matter to the police. Admittedly, husband of PW9 namely PW8 was available at the house on the date of incident i.e. 22.04.2010 but PW9 mother of prosecutrix did not disclose the commission of alleged offence by the accused to him. The explanation that she disclosed these facts on crying of prosecutrix on 23.04.2010 is not convincing. No reason has been mentioned as to why prosecutrix did not feel pain on the day of occurrence. Admittedly, PW8 had been in his house from evening of 22.04.2010 till next morning.
29. Fifthly, PW9 herself deposed that she washed the blood, etc., on the clothes of prosecutrix. Thus, PW9 SC No.76/10 State Vs. Abdul Hassan Page 15 of 17 herself destroyed the material scientific evidence.
30. The disclosure statement Ex.PW10/C is not admissible in evidence as per provisions of Section 25 of the Indian Evidence Act as admittedly nothing was recovered in consequent of the disclosure statement which could have made it admissible in evidence as per Section 27 of the Indian Evidence Act.
31. Sixthly, pointing out memo Ex.PW10/B is not admissible in evidence as admittedly place of incident was already in the knowledge of police as well as the parents of the prosecutrix.
32. Lastly, testimony of DW1 has established that there was a quarrel between the accused and mother of prosecutrix on the issue of consumption of water and she had threatened the accused to falsely implicate him. In the facts and circumstances of the present case false implications of the accused cannot be ruled out. This view finds support by decision of Apex Court in State of U.P. v. Siya Ram & Anr., 2010 CRI.L.J. 4441 wherein the Supreme Court observed that the propensity to implicate falsely is not uncommon in India.
SC No.76/10 State Vs. Abdul Hassan Page 16 of 1733. In view of the above reason and discussion and evidence on record and particularly discussed here in above it is concluded and held that prosecution has failed to prove its case against accused beyond reasonable suspicion and shadow of doubt that accused attempted to commit rape on prosecutrix. Consequently, by giving benefit of doubt, accused is acquitted for the offence punishable u/s 376/511 IPC.
34. However, accused is directed to furnish his personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of Section 437A Cr.P.C. for a period of six months.
35. Previous bail bonds/surety bonds of accused stand cancelled and surety stands discharged.
36. After furnishing of personal bond/surety bond, file be consigned to Record Room.
Announced in the open court on 31.05.2012 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No.76/10 State Vs. Abdul Hassan Page 17 of 17