Delhi District Court
State vs Sultan Ahmad on 10 May, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0363102013
SC No.285/13 Date of institution : 20.11.2013
FIR No.362/13 Date on which final
PS. Jagatpuri arguments were
U/S. 376-D IPC heard : 10.05.2014
Date of judgment : 10.05.2014
State versus Sultan Ahmad
S/o Mohd. Usman
R/o G-112, near Ravidas Marg,
Jagatpuri, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 09.08.2013 on receipt of DD No. 30A at police station Jagatpuri, Delhi, SI Rajesh Kumar Jha alongwith constable Ram Kumar reached at the spot (house of the prosecutrix) where the prosecutrix got recorded her statement in which she made the following allegations:
(i) She was a student of B.A.,L.L.B. 2nd year at Jamia University. On 09.8.2013 at about 5.00 pm she was alone at home and her family members had gone to distribute invitation cards of her marriage. The door of the house was lying open. All of a sudden, accused who was a SC No. 285/13 State vs. Sultan Ahmad Page 1 of 14 tenant of a shop in her house came alongwith two unknown persons. When the prosecutrix asked them about entering into her house, one unknown person caught hold of her hand and the other person pulled her down on the floor and pressed her mouth. She tried to rescue herself from those persons but could not succeed. Then accused Sultan Ahmad removed her lower clothes and by force committed wrong act with her. Accused Sultan Ahmad continued doing wrong act till his lust was satisfied. The prosecutrix became unconscious and accused alongwith two persons ran away. After regaining her consciousness, she made a call at 100 number to the police. The police reached there. The prosecutrix asked for legal action against the accused and two other unknown persons.
2. On the basis of the statement of the prosecutrix, a case u/s 376-D IPC was got registered against accused persons. The prosecutrix was got medically examined at LBS Hospital and the exhibits were seized by the police and deposited at the malkhana. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded by learned M.M. Exhibits were sent to FSL for forensic opinion. Accused was arrested and got medically examined and sent to judicial custody. During investigation, it was revealed that accused was a tenant of SC No. 285/13 State vs. Sultan Ahmad Page 2 of 14 the father of the prosecutrix in respect of a shop and litigations were pending between them. As per the chargesheet, the two unknown persons could not be arrested and the separate chargesheet will be filed after their arrest. After completion of investigation, charge sheet u/s 376-D IPC was filed against the accused.
3. Since the offence in the present case is triable by the court of Session, vide order dated 16.11.2013, learned A.C.M.M. committed this case to the court of Sessions and on allocation, this case was assigned to this court.
4. Vide order dated 19.12.2013, my learned predecessor framed the charge u/s 376-D IPC against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined nine witnesses i.e. PW1-Ct-Digamber, PW2-Dr. Mathur Neha, PW3-Dr. Abhilash, PW4-Prosecutrix, PW5-Riyazuddin, PW6-Sh. Furkan Ahmad, PW7-Mohd. Salim, PW8-Sh. Rakesh Gupta, PW9-father of the prosecutrix.
6. Out of these witnesses, PW4 prosecutrix and PW9 father of prosecutrix are the material witnesses of this SC No. 285/13 State vs. Sultan Ahmad Page 3 of 14 case whose testimonies shall be discussed at a later stage.
7. PW1-Ct. Digamber is the duty officer who recorded the FIR of the present case on 09.08.2013 and proved the same as Ex. PW1/A. He also proved the DD No. 35A as Ex. PW1/C.
8. PW2 Dr. Mathur Neha from LBS Hospital deposed that on 09.08.2013 the prosecutrix aged about 25 years was brought into the hospital by SI Pooja for medical examination with the alleged history of rape by tenant alongwith two other persons at 5.00 pm. On local examination, her hymen was found torn. No sperm was seen on microscopic examination of vaginal swab. She proved the MLC of the prosecutrix as Ex.PW2/A. During cross examination, this witness deposed that she did not find any mark of external injury over the person of victim. She also deposed that there was no fresh tear on the hymen of the patient.
9. PW3 Dr. Abhilash deposed that on 10.08.2013 he conducted medical examination of accused at LBS hospital and proved the MLC of accused as Ex. PW3/A. SC No. 285/13 State vs. Sultan Ahmad Page 4 of 14
10. PW5 Sh. Riyazuddin deposed that he is residing in the locality of the accused. He knows the accused for the last many years as he is doing the work of repairing scooter/motorcycle in a shop in front of Gagan Vihar. He deposed that on the day of Eid in 2013, accused remained with him for the whole day till 6.00 pm and he did not go anywhere. He further deposed that on that day accused also offered Namaj at 5.30 /6.00 pm. This witness did not support the case of the prosecution and he was cross examined by Addl. PP for the State with the permission of the court. During examination he denied that he stated to the police that accused did not remain with him on 09.08.2013 between 5-6 pm.
11. PW6 Sh. Furkan Ahmad deposed that he and accused Sultan Ahmad are residing in the same locality. He deposed that in the year 2013 on the day of Eid he met with accused at his house and whole day accused remained at his house and he did not go anywhere. He further deposed that accused is having a rented shop of which father of the prosecutrix is the owner and the accused was repairing the motorcycle and scooter in that shop. This witness also did not support the case of the prosecution and was cross examined by learned Addl. PP for the State with the permission of the court. During cross SC No. 285/13 State vs. Sultan Ahmad Page 5 of 14 examination, he denied that he stated to the police that the accused met him in the morning on 09.08.2013 and at the time of Namaj and he did not know where the accused was in the meantime.
12. PW7 Mohd. Salim is the another neighbour of the accused has deposed that on the day of Eid in August, 2013, accused was present in his baithak till noon time where they were having eatable articles. After sometime, he came to his house and the accused went to offer Namaj. This witness also declared hostile and was cross examined by learned Addl. PP for the State with the permission of the court. In cross examination also he denied that he had stated to be police that he was not aware as to what accused was doing between 5-6 pm on 09.08.2013.
13. PW8 Sh. Rakesh Gupta deposed that he used to get his scooter and motorcycle repaired from the shop of accused. The owner of the shop of the accused is Mohd. Kayum. He deposed that on 09.08.2013 he did not see the accused going to the house of Mohd. Kayum. He further deposed that there was a civil dispute between the accused and father of the prosecutrix regarding the rented shop.
SC No. 285/13 State vs. Sultan Ahmad Page 6 of 1414. I have heard arguments addressed by Ms. Madhu Arora, learned Addl. PP for the State and Sh. Amit Gupta, Advocate for accused and perused the record.
15. The case of the prosecution as noted in the chargesheet is that the prosecutrix was subjected to rape by three persons. Accused Sultan Ahmad is one of them. The names of other accused persons are not mentioned in the chargesheet and those two persons are stated to be absconding. The present chargesheet is confined to accused Sultan Ahmad.
16. Prosecutrix ( PW4) is the only witness who has personal knowledge about the incident. This witness has not supported the case of prosecution and has deposed that Sultan Ahmad did not commit rape on her. Prosecutrix (PW4) was aged about 23 years at the time of incident. In her statement she deposed that she has passed LLB 2nd year from Jamia Milia University. She further deposed that on 09.08.2013 at bout 4.45-5 pm, her parents had gone to distribute her wedding cards and she was alone at home. She was doing her household work. In the meanwhile, 3-4 persons came to her house and put a cloth on her. She SC No. 285/13 State vs. Sultan Ahmad Page 7 of 14 tried to rescue herself. Out of them, one person caught hold of her hand and other person caught hold of her leg and made her lie on the floor. One person removed her lower clothes and committed rape on her. She deposed that she does not know the name of the person who had removed her lower clothes and committed rape on her and thereafter those persons ran away from her house. The prosecutrix further deposed that person committed rape on her once or twice. Thereafter she raised alarm for help. Somebody came for her help and informed the police. Thereafter the prosecutrix alongwith other public persons reached the police station. This witness identified her signatures on complaint dated 09.08.2013 (Ex.PW4/A), site plan (Ex.PW4/B), her MLC (Ex.PW2/A), seizure memo of bed sheet (Ex.PW4/C) and her statement recorded u/s 164 Cr.P.C. (Ex.PW4/D). She also identified her clothes i.e. one lady's shirt Ex.P1 and one bed sheet Ex.P2.
17. During her evidence, accused Sultan Ahmad was shown to this witness and she stated that accused is a tenant of her father. She however, deposed that the accused Sultan Ahmad did not commit rape on her.
18. As this witness did not support the case of the prosecution, she was cross examined by the learned Addl.
SC No. 285/13 State vs. Sultan Ahmad Page 8 of 14PP for the State with the permission of the court. During her cross examination, she deposed that the accused is running a shop on rent on the ground floor of her house. Even during cross examination she maintained that accused Sultan Ahmad who is facing trial in this case did not commit rape on her.
19. During cross examination on behalf of accused, the prosecutrix stated that there was litigation between her father and the accused and their relations were strained. She deposed that people from a locality who gathered on hearing her alarm asked her about the name of person with whom they had enmity and she disclosed the name of accused. The locality people told them that they will teach a lesson to Sultan Ahmad. She stated that whatever has been written in the complaint Ex.PW4/A was not written on her dictation and was got written by the police in consultation with the locality people. She also deposed that she did not inform the doctor about the alleged history of this case as mentioned in the MLC Ex.PW2/A. She deposed that she made the statement u/s 164 Cr.P.C. at the instance of police and locality people. She further admitted that on 09.08.2013 accused Sultan Ahmad did not come to her house either alone or with any person. She deposed that her mobile phone was not with SC No. 285/13 State vs. Sultan Ahmad Page 9 of 14 her on the day of incident and she does not know if somebody had informed the police from her mobile.
20. This witness was re-examined by the learned Addl. PP for the State in which she maintained that her signatures were obtained by the police on blank papers. The prosecutrix also maintained that complaint Ex. PW4/A (on the basis of FIR was recorded) was not recorded at her instance.
21. PW9 is the father of the prosecutrix. He has also not supported the case of the prosecution against the accused. He deposed that prosecutrix is his fifth child and she is now 25 years old. He deposed that on 09.8.2013 he had gone to Haryana to distribute wedding cards of the prosecutrix. He reached at his house at about 11.00 pm and slept due to tiredness. His daughter did not disclose anything to her. He deposed that his statement was not recored by the police. This witness was also declared hostile and was cross examined by the learned Addl. PP for the State with the permission of the court. During cross examination, he denied that his daughter told him that the accused Sultan Ahmad committed wrong act with her on 09.08.2013 when she was alone in the house. He also admitted that accused is a tenant in respect of one shop SC No. 285/13 State vs. Sultan Ahmad Page 10 of 14 no.A-57 in which he was repairing the scooter and motorcycle.
22. As noted above, the other public witnesses PW5, PW6, PW7 and PW8 who are the neighbourers of the accused have also not supported the case of the prosecution and have stated that on the day of incident, they had not seen the accused going to the house of the prosecutrix.
23. In the circumstance, it must be held that there is no oral evidence on record to connect this accused with the charged offence.
24. On the day of incident, i.e. 09.08.2013, the prosecutrix was got medically examined by PW2 Dr. Mathur Neha, SR Department of OB/Gynae, LBS Hospital. PW2 has proved her MLC dated 09.08.2013 as Ex.PW2/A and has otherwise stated in the court that no sperm was seen on microscopic examination of vaginal swab. During her cross examination, PW2 deposed that she did not find any mark of injury over the person of victim. She further deposed that there was no fresh tear on the hymen of the patient. PW2 has also stated that all samples of the prosecutrix were taken and handed over to the police officials.
SC No. 285/13 State vs. Sultan Ahmad Page 11 of 1425. The report of Forensic Science Laboratory dated 19.3.2014 at Rohini is also on record. The FSL report records that human semen was detected on exhibits "A14a", "A14b", "A14c", "B1" and "B2". As per FSL report A14a & A14b' are the two micro slides (Anal Swab) of the prosecutrix. Exhibit 'A14c' is also the anal swab of the prosecutrix, 'B1' is a lady's shirt having brown stains and 'B2' is a bed sheet.
26. The relevant portion of the FSL report reads as follow:
"The exhibit 'A16a' (Blood sample of Victim), 'A14b' (Anal Microslide of victim), 'A14c' (Anal swab of victim), 'B1' (lady's shirt), 'B2' (Bed sheet), 'C' (Blood Gauze of accused Sultan Ahmed) and 'D' (Blood Sample of accused Sultan Ahmed) were subjected to DNA isolation. DNA was isolated from Exhibits 'A16a', 'A14b', 'A14c', 'B1','B2' and 'D'. However, DNA could not be isolated from Exhibits 'C' due to degradation. Female DNA profiles were generated for Exhibits 'A16a". However, male DNA profiles were generated from exhibit 'A14b', 'A14c', 'B1', 'B2' and 'D'. Identifiler plus kit was used for SC No. 285/13 State vs. Sultan Ahmad Page 12 of 14 PCR amplification and gene mapper IDX software was used for STR analysis.
RESULT: Alleles from the source of exhibit "D" were not accounted in the alleles from the source of exhibits "A14b", "A14c", "B1" and "B2".
CONCLUSION: DNA profiling (STR analysis) preformed on the source of exhibit "D" was found to be not matching with the DNA profile from the source of "A14b", "A14c", "B1" and "B2".
27. In the circumstance, it can be concluded though human semen have been detected on exhibits "A14a", "A14b", "A14c", "B1" and "B2" but it is not established that it was that of accused. Thus, there is no circumstantial evidence of sexual contact between the prosecutrix and the accused at the time of incident.
28. From the above, it is seen that the prosecutrix in her deposition has not supported the case of the prosecution to the extent that present accused Sultan Ahmad had committed rape on her. PW9 (father of the prosecutrix) has also not supported the prosecution case and deposed that his daughter did not disclose anything to him about the incident. The other public witnesses i.e. SC No. 285/13 State vs. Sultan Ahmad Page 13 of 14 PW5, PW6, PW7 and PW8 are neighbourers/locality persons who have no personal knowledge of the incident and in any case they have not stated anything against this accused. As per MLC and testimony of PW2, it is seen that no sperm was seen on microscopic examination of vaginal swab of the prosecutrix. As per DNA analysis, DNA profiling made from the blood sample of accused Sultan Ahmad were not found matching with the DNA profile from the source of exhibits A14b', A14c, 'B1' and 'B2' and thus it is not established that semen detected on exhibits A14b', A14c, 'B1' and 'B2' was that of accused.
29. In view of above discussion, it must be held that neither there is oral evidence nor circumstantial evidence to connect this accused with the alleged offence punishable u/s 376-D IPC. Thus, the accused is acquitted for the offence punishable u/s 376-D IPC. Accused is in J/C. He be released if not required in any other case.
30. File be consigned to record room after necessary compliance.
Announced in the open court on 10.05.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi.
SC No. 285/13 State vs. Sultan Ahmad Page 14 of 14