Delhi District Court
State vs . Azhar Ali Bhutto Page No. 1/20 on 11 February, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0083562014
SC No. : 79/14
FIR No. : 686/13
U/s. : 354C/376/506 IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Azhar Ali Bhutto
S/o Z.A. Bhutto
R/o RZ 86/10, I Floor,
Tuglakabad Extension, Kalkaji,
New Delhi. .........................Accused
Date of Institution : 15.04.2014
Judgment reserved for orders on : 02.02.2016
Date of pronouncement : 11.02.2016
J U D G M E N T
1. On 28.09.2013, Surender Pal Singh lodged a missing report of his wife at the police station Govind Puri that she was missing since 11:45 a.m. The information was recorded vide DD no. 36A.
On 29.09.2013, the prosecutrix / wife of the complainant FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 1/20 (name withheld to protect her identity) came at the police station and gave her statement interalia that she is housewife and mother of two daughters studying in 10th and 5th class. About a year ago, she used to go for evening walk in a park with her daughters. There she met the accused. One day he told her that he takes tuitions and can give tuitions to her daughters. Since her younger daughter needed tuition, she asked the accused to take tuition. He came in her house for 2 - 4 days. He thereafter started talking to her on her phone.
In February 2013, accused came in her house in the absence of her children and husband and expressed his love for her. When she objected, he committed sexual intercourse with her forcibly and took her photographs in objectionable position. He also threatened her not to disclose it to anyone lest he would paste her photographs everywhere and get her divorced. Due to fear, she did not tell to her husband. She alleged that thereafter, the accused came in her house many times, blackmailed her and committed rape upon her. He also took money from her. She alleged that he used to send threatening messages from his mobile to kill her husband and children. She got scared and asked him to return her photographs but he did not mend his ways.
She alleged that on 28.09.2013 at about 10:15 a.m., when she was alone, the accused came in her house and forced her to marry. FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 2/20 When she refused, he started blackmailing her. She got terrified and accompanied him to Ambala where he kept her in a hotel and committed rape upon her. She persistently requested him to drop her. At night, he took her in his house at Tuglakabad Extension and told her that he would drop her in the morning. However, she managed to run away from there.
2. On her statement, the case was registered u/s 365/376 IPC at the police station Govind Puri vide FIR no. 683/13. The prosecutrix was taken to AIIMS where she was examined. She was got counseled. On 03.10.2013, she was produced before the Magistrate for her statement u/s 164 Cr.P.C. On 06.01.2014 the accused joined the investigation. He was got medically examined. The record from Hotel Superfine at Ambala Cant was collected. Accused was formally arrested. The exhibits were sent to FSL, Rohini. After the investigation, the accused was sent for trial for the offences punishable u/s 365/376 IPC.
3. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court.
4. Prima facie case was made out vide order dated 24.04.2014 and the charge was framed against the accused for the offences punishable under section 354C/376/506 IPC to which he pleaded not guilty and claimed trial.
FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 3/20
5. To substantiate its case, prosecution examined as many as nine witnesses.
PW 1 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW 2 Dr. Vinod Bhivsane did the medical examination of the prosecutrix vide MLC Ex. PW 1/B. He recorded the history narrated by the prosecutrix. He found no bleeding per vagina or rectum, however, found her hymen torn. He collected the vaginal smears, anal swab, pubic hair and undergarments of the prosecutrix. PW 3 HC Satyadev recorded the FIR Ex. PW 3/A. PW 4 Tapan Das proved the entries made in the guest register of Hotel Superfine Ex. PW 4/A. As per the entries, the accused had checked in the hotel on 28.09.2013 at 7.10 p.m. He was allotted Room No. 12. He checked out at about 11.00 p.m on the same day. He stated that the accused was accompanied by a lady whom he introduced his wife. He proved the relevant entry Ex.PW4/A. PW 5 Ct. Surender deposited the exhibits with FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 4/20 FSL Rohini vide RC Ex. PW5/A. PW 6 SI Seema was the investigating officer of the case. She deposed on the lines of the investigation. She recorded the statement of the prosecutrix on 29.09.2013, got the case registered and her medically examined. She seized the exhibits of the prosecutrix and prepared the site plan. She also got the statement of the prosecutrix recorded u/s 164 CrPC. She collected the record regarding stay of the accused with the prosecutrix in Hotel Superfine, Ambala Cantt. She got the accused medically examined vide MLC Ex. PW 6/F, collected his exhibits and formally arrested him. She also seized seven photographs Ex. P1 to P7 vide memo Ex. PW6/K given by the accused.
She sent the exhibits to FSL and collected the FSL report Ex. PW 6/L. PW 7 Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd proved the call detail records, Customer Application Forms and also ID proof regarding numbers 9818854229 and 9810269564 for the period from 27.09.2013 to 29.09.2013 Ex. FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 5/20 PW 7/A to Ex. PW 7/F and also Cell ID chart of the numbers Ex. PW7/H. He proved the certificate u/s 65B of the Evidence Act Ex. PW 7/G. PW 8 Ms Neha, Ld. MM recorded the statement of prosecutrix Ex. PW 1/C u/s 164 CrPC vide application Ex. PW 6/D. PW 9 Dr Manjul Bijarnia did the medical examination of accused vide MLC Ex. PW 6/F. He found him capable of performing sexual intercourse under normal circumstances. He collected the blood in gauze of the accused and handed over to the police.
6. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He denied all the incriminating evidence against him and stated that it was the prosecutrix who forced him to go to Ambala and book a room. He denied having sexual relations with the prosecutrix.
7. In defence, the accused did not examine any witness.
8. I have heard the arguments advanced by Sh. Ravindra Narayan, Ld. Counsel for the accused and Ld. Addl. PP for the State.
9. Ld. counsel for the accused vehemently argued that the first incident allegedly happened in February 2012 but the report was FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 6/20 lodged after about one year in March 2013. Ld. counsel stated that the prosecutrix at the time of alleged incident was 39 years of age and mother of two children. The accused was 18 years of age and quite immature. It was the prosecutrix who forced him to go to Ambala and stay with her. Ld. counsel drew the attention of the Court on the photographs to contend that nothing can be inferred from the photographs that the prosecutrix was threatened or blackmailed by the accused. Ld. counsel stated that the investigating agency did not recover any photograph of the prosecutrix in objectionable position. The call details record show that both the accused and the prosecutrix remained in constant touch with each other and their relations were consensual. Ld. counsel stated that during hearing of bail application, the prosecutrix had given an affidavit that she had voluntarily gone with the accused to Ambala. Ld. Counsel stated that there are improvements and contradictions in the testimony of the prosecutrix and in no way her testimony can be said to be of sterling quality to base conviction of the accused.
10. Ld. Addl. PP on the contrary argued that the accused used to come in the house of the prosecutrix to take tuition. When the prosecutrix was alone, he committed rape upon her and took her photographs in objectionable position. He thereafter started blackmailing her. He abducted the prosecutrix to a hotel at Ambala FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 7/20 where he committed rape upon her. Ld. Addl. PP stated that the testimony of the prosecutrix is consistent and cogent. The age difference is immaterial for the offence u/s 376 IPC. Ld. Addl. PP stated that the prosecutrix used to talk to the accused since he had her objectionable photographs which she wanted to get back but the accused kept on exploiting her.
11. I have considered the submissions and gone through the entire material available on record.
12. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 8/20 under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
13. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
14. PW1 / prosecutrix has testified on oath that she was married to Surender Pal in the year 1996. She has two daughters who were FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 9/20 studying in 10th class and 5th class at the time of incident. She stated that in the beginning of 2013, she used to go to park with her daughters where she met the accused who offered to give tuitions to her daughters. He came on the next day to give tuition to her younger daughter. After four days, he stopped coming but continued making calls on her mobile. She stated that in February 2013 at about 11 a.m. in the absence of her children and husband, he came in her house and said "he likes me and loves me". When she told him that she is age of his mother, he addresses her as aunty and he should not speak like this, he committed rape upon her and took her photographs from his mobile in compromising position. He also gave her beatings and threatened her not to disclose the incident to anyone otherwise he would make her husband divorce her or put her nude photographs at various places in the locality. She stated that thereafter the accused used to come in her house and rape her by showing the photographs. He also extorted Rs. 50,000/ to 60,000/ from her. She stated that on 28.09.2013, at about 10:15 a.m., when she was alone, the accused came in her house and threatened her to go with him as he wanted to marry her. When she refused, he blackmailed her and took her to Ambala in a hotel and raped her. He brought her in his house at Tuglakabad Extension where they stayed for few hours. He confined her in a room. She stated that the family members of the accused FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 10/20 were in his house at that time and supporting the accused. She stated that on the pretext of going to washroom, she got the room opened and ran away from his house. She made the complaint Ex.PW1/A. She stated that the photographs Ex.P1 to Ex.P7 are her photographs as the accused had asked her to smile while taking pictures, otherwise, he would beat her. She proved her statement Ex.PW1/C given to the Magistrate. She was confronted with the letters Ex.PW1/D and Ex.PW1/D. She stated that she had written the letters as the accused and his family members had threatened to get her daughters kidnapped and her husband killed.
On being crossexamined, she stated that police had recorded her statement twice. She was confronted with her complaint Ex.PW1/A where the factum of accused showing her nude photographs in compromising position was not alleged. She stated that she had told the police that the accused had taken her jewellery and ATM card. She was confronted with these facts with her complaint Ex.PW1/A where the said facts were not alleged. She admitted that she did not state to the police that the accused confined her in a room and his family members had supported him. She admitted that she did not give any complaint when the letters Ex.PW1/B and Ex.PW1/C were got written from her by the accused forcibly. She stated that she does not know how to chat on the FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 11/20 facebook. She stated that she never chatted with the accused over facebook. She stated that she was having mobile no. 9871117768 but explained that it was given by the accused. She was confronted with the chats Mark A for the period from 2011 to 2013 but she denied having chatted with the accused. She denied that she had consensual sexual relations with the accused. She stated that she did not see her photographs in compromising position with the accused, however, she had seen the accused taking her photographs. She then said that she did not even see those photographs in his mobile. She stated that the photographs Ex.P3, Ex.P6 and Ex.P7 were taken outside her house and other photographs were taken inside the house. She also admitted that photographs Ex.P3, Ex.P6 and Ex.P7 were taken by third person. She stated that the family members of the accused were with her when she delivered the letter Ex.PW1/D and Ex.PW1/E. She stated that the family members of the accused threatened to kidnap her and showed her a gun and in the police station she had written those letters. She denied that she had given an affidavit in the Court during the bail application of the accused. She stated that the accused had taken her in a bus to Ambala and the bus was crowded. She also admitted that she did not raise hue and cry in the hotel at Ambala nor complained to any of the hotel staff.
15. On a closure scrutiny of evidence, I find that the prosecutrix FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 12/20 was 40 years of age at the time of incident. She was graduate and mother of two daughters studying in 10th and 5th class. The accused was 19 years of age. He used to take tuitions besides doing studies. The alleged incident is of February 2013 but the report was lodged on 29.09.2013.
16. In the instant case, I find material variations / inconsistencies and contradictions in the testimony of the prosecutrix. As per the complaint Ex.PW1/E, the accused came in the house of the prosecutrix for two / four days to take tuitions and thereafter stopped coming. In February 2013 when she was alone, the accused expressed his love for her. When she tried to make him understand, he did not listen and committed rape upon her. He also took her photographs in objectionable position and threatened her not to tell it to anyone. In her statement u/s 164 Cr.P.C. Ex.PW1/C, she had stated that the accused came in her house for 4 / 5 days. One day in the afternoon, he came in her house and forcibly made physical relation with her. He also took her photos and sent message not to tell to anyone. In her testimony, she has stated that the accused came in her house for four days. In February at about 11 a.m., he came in her house and told her that he likes and loves her. When she told him that she is of the age of his mother and he addresses her aunty and he should not speak like this, he committed rape upon her and took her photographs in FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 13/20 compromising position while raping her. He gave her beatings when she resisted the said act. He threatened her not to disclose the incident to anyone. He also extorted Rs. 50,000/ to Rs. 60,000/ from her during the said period. She also stated that the accused had taken her jewellery and ATM card which fact she had stated to the police. On going through the complaint and the statement recorded u/s 161 Cr.P.C., I do not find such averments. PW1 has stated that from Ambala, the accused brought her in his house at 3:30 a.m., and kept her in a room by putting a lock. His family members also supported him and she stayed in the house of the accused for about 7 - 8 hours. She got the room opened on the pretext of going to the washroom and went to the police station.
17. In the instant case, during investigation but no obscene photographs of the prosecutrix were recovered from the accused. She was confronted with the photographs Ex.P1 to Ex.P7 which she explained that they were taken from the mobile by the accused himself. The photographs Ex.P3, Ex.P6 and Ex.P7 were taken outside her house. She then stated that photographs Ex.P3, Ex.P6 and Ex.P7 were taken by a third person. It is relevant to note that in those photographs, the prosecutrix had been appearing in smiling face and without fear. Although, the prosecutrix has stated that the accused had threatened her to pose like that but in her testimony she FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 14/20 has admitted that she did not complain to the third person who took her photographs. She has also admitted that public persons were available when her photographs were taken and she did not shout for help.
18. In the instant case, the missing report of the prosecutrix was lodged by her husband on 28.09.2013 and DD no. 36A Ex.PW6/A to this effect was recorded at 6:10 p.m. The prosecutrix gave the statement on 29.09.2013 at around 7 p.m. The prosecutrix in her testimony has admitted that she had mobile at that time. Her husband also had mobile. Now the question arises when the accused had abducted her why she did not inform her husband. Her testimony shows that she remained in the hotel for few hours and she never complained to the hotel staff that she was abducted by the accused. PW4 in her testimony has stated that he had seen the prosecutrix and the accused before giving them room and the accused had introduced the prosecutrix as his wife. Testimony of PW1 reveals that she had traveled from Delhi to Ambala by Bus with the accused but surprisingly she did not complain to the bus driver / conductor of the passengers traveling in the bus. It is pertinent to mention that on 02.01.2014, she had given in writing to the police vide DD no. 56B Ex.PW1/D and DD no. 51B vide DD no. 51B Ex.PW1/E that she had left the house of her husband of her own as he used to maltreat her FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 15/20 and she does not want to live with him. Her husband has pressurized her to lodge a false complaint against accused. She had stated that accused never raped her and whatever had happened with her was with her consent. Although, she has stated that she had written the said letters as the accused and his family members had threatened her to kidnap her daughters and kill her husband but it is to be noted that the said letters were written by the prosecutrix in the police station itself and she had every occasion to complain to the police that she was threatened by the accused and his family members.
19. In the instant case during the hearing of the bail application on 04.01.2014, the prosecutrix had filed an affidavit as per the proceedings Ex.PW1/DA that she was forced to file complaint by her husband. On that very basis, the bail was granted to the accused. The prosecutrix in her testimony even denied having prepared the affidavit and filed in the Court.
20. The prosecutrix in her testimony has stated that her husband has facebook ID and she does not know how to chat on the facebook. She stated that she never chatted on facebook with the accused either herself or through someone else. Perusal of the record placed on record shows that the messages / chatting on facebook / whats up continued from 2011 to 2013. Although the prosecutrix has given the explanation that the accused had taken her sim and he used to send FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 16/20 the messages from the sim on her mobile but this explanation appears to be unworthy of credence in view of the long chats available on record.
21. The prosecutrix / PW1 has stated that she never saw her photographs in compromising position. However, she had seen the accused taking her photographs and seen those photographs in his mobile which were 380 in numbers. She again changed her version and stated that she did not see those 380 photographs even in his mobile phone. In her examinationinchief, she has stated that the accused used to rape her by showing her the photographs. When she was crossexamined, she stated that she did not see her photographs in compromising position.
22. Looking into the above inconsistencies, the testimony of the prosecutrix can not be said to be of sterling quality to base conviction of the accused. There are material improvements which go to the root of the matter and create doubt on the veracity of prosecution case. The reasonable inference, which can be drawn in this case, is that the prosecutrix and the accused had relations and when their relations exposed, she under the pressure of her husband filed the complaint against the accused. The FSL report Ex.PW6/K also exonerates the accused as per which no male DNA was isolated from the vaginal slide, anal swab and underwear of the prosecutrix in RTPCR, male FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 17/20 DNA was isolated from the blood in gauze of the accused and due to non availability of male DNA on the above exhibits, no further examination was conducted.
23. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
24. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 18/20 strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
25. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 19/20 scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
Conclusion
26. In the light of what has been stated above, I am of the view that the prosecution has failed to establish its case against the accused beyond reasonable doubt. I therefore, acquit the accused Azhar Ali Bhutto of the offences punishable under section 354C/376/506 IPC. His bail bond be cancelled. Surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 30,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal or revision.
27. File be consigned to the Record Room.
Announced in the open court today i.e. 11.02.2016 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi.
FIR No. : 686/13 PS : Govind Puri State Vs. Azhar Ali Bhutto Page No. 20/20