Delhi District Court
Karnataka Vs. Puttraj 2004 (1) Scc 475" ... vs . State on 2 November, 2017
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 82/2017
Assigned to Sessions. 28.01.2017
Arguments heard on 24.10.2017
Date of Judgment 02.11.2017
FIR No. 233/2016
State v. Subhan Ansari S/o. Alim Ansari,
R/o. H. No.183, Wazirpur J.J.
Colony, Delhi.
Police Station Gulabi Bagh
Under Section 376(2)(f) & (n)/506 IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Gulabi Bagh
had filed a challan vide FIR No.233/2016 dated 08.12.2016 u/s 376 (2)
(f)/376(2)(n)/506 IPC for the prosecution of accused Subhan Ansari 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 given
in the judgment.
Case No.82/2017
State Vs. Subhan Ansari 1/17
BRIEF FACTS OF THE CASE:
2. The criminal law was set into motion in the present case on the basis of statement of prosecutrix Ex.PW1/A wherein she stated that she had been residing at Jhuggi No.193, Ganda Nala, Gulabi Bagh for the last three months prior to registration of present case and that she had been working at shoe factory at Daya Basti, Near Rain Basera Sarai Rohilla, Delhi where accused Subhan Ansari, was also working there as contractor. It is further stated by the prosecutrix in the said complaint that after her employment with the said factory accused started writing his phone numbers on piece of paper and sending it to her with the goods material at Shoe factory. Despite the fact that she used to tear the same. Accused would keep on sending the same to her. It is further stated in the statement that once accused told her that he loves her and she fell under his influence.
3. It is further stated by the prosecutrix in her statement that on 26.01.2016, accused took her to India Gate and after Republic Day Parade, he took her to a park indulged her in conversation for sometime and from there accused brought her to her Jhuggi to drop her and at 8:00 p.m. established physical relation with her despite her refusal for the same and he also started threatening her that he would remove her from the job of the factory. On the account of said threat, prosecutrix did not tell the incident to anyone. Accused used to come at her Jhuggi and would establish physical relation with her repeatedly and she got fed up from the said act of the accused. It is further stated by prosecutrix in her Case No.82/2017 State Vs. Subhan Ansari 2/17 statement that when she watched T.V. serial 'Crime Petrol', she mustered courage and lodged the complaint against the accused.
4. On the basis of aforesaid statement Ex.PW1/A, FIR No.233/2016 u/s 376(2)(f)&376(2)(n)/506 IPC was registered. During the course of investigation, accused was arrested and charge sheeted.
CHARGE:
5. On the basis of material available on record, this court vide order dated 09.02.2017 framed a charge against accused Subhan Ansari for the offence punishable u/s 376(2)(f) & (n)/506 IPC to which he did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
6. In order to prove its case prosecution examined 09 witnesses namely PW1 ASI Iqramuddeen, PW2 Prosecutrix 'DG', PW3 Smt. Namita, PW4 Sh. Deepak Modi, PW5 SI Yogendra, PW6 Dr. Astha Singh, PW7 Ms. Amrita Tonk, Ld. MM, PW8 Dr. Varun Garg and PW9 W/SI Sonu.
7. PW1 ASI Iqramuddeen is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex.PW1/A, certificate under Section 65B Evidence Act in this regard vide Ex. PW 1/B and endorsement vide Ex.PW1/C.
8. PW2 Prosecutrix 'DG' is a material witness being victim and Case No.82/2017 State Vs. Subhan Ansari 3/17 complainant. PW2 testified that she is illiterate but she can sign. PW2 further testified that in the year 2016, he was working as a Helper in a factory of manufacturing of shoes near Rain Basera, Daya Basti, Delhi.
She is divorcee having one child of 8 years. PW2 further testified that accused was also working in the same factory as a Contractor. This witness has correctly identified the accused in the court.
9. PW2 further testified that accused started sending his mobile phone number on a piece of paper alongwith packing of the shoes. He also started talking to her on telephone in a romantic manner stating that he loves her. PW2 further testified that on 26.01.2016 at about 10.00 am accused took her by TSR firstly to India Gate, thereafter, he took her to a park away from the India Gate. They sat together in the said park for about one hour. From the said park accused took her to her rented Jhuggi at Gulabi Bagh and they reached at Jhuggi at about 07:00 pm. PW2 further testified that accused established physical relationship with her by intimidating her to remove her from the job of the factory. PW2 further testified that she had not consented for the physical relation. PW2 further testified that did not resist nor raised alarm at that time. PW2 further testified that thereafter, accused started coming to her Jhuggi on Sunday to Sunday and used to commit sexual intercourse with her. He committed sexual intercourse with her 34 times. PW2 further testified that the aforesaid physical relations was established by the accused with her consent as he had assured her for long life relation. She believed the accused. PW2 further testified that thereafter, accused started abusing her in filthy language and during demonetization accused had given her Case No.82/2017 State Vs. Subhan Ansari 4/17 break for want of sufficient work in the factory for about a week in the first week of December, 2016 and thereafter, when she inquired from the accused regarding work he asked her to join the work in the factory. PW2 further testified that brother of the accused, Shahid asked her not to come for the work in the factory. Accused did not used to ask her not to come to work but he used to convey the same by his younger brother Shahid.
10. PW2 further testified that her friend Saroj told her that she is stupid and why she is believing the accused as he discontinued her work more often. Then she decided to raise her voice as accused had played with her. PW2 further testified that in the evening of the same day she watched T.V. serial "Crime Patrol" and mustard courage to lodge complaint against the accused. This witness has proved her complaint vide Ex.PW1/A. This witness has proved her MLC vide Ex.PW2/A. She testified that since she was scared of her internal examination, she had refused to undergo the same. This witness has proved her statement recorded u/s 164 Cr.P.C. vide Ex.PW2/B.
11. On being cross examined by Ms. Sehrish with Sh. Mohd. Saleem, ld.
counsel for accused, this witness deposed that she was married at the age of 10 years. Her son is studying in 6th standard. This witness deposed that she had gone to the park with accused by a TSR. She alongwith accused remained in Jhuggi for about one and half hour. Her Jhuggi is surrounded by some other Jhuggies. This witness deposed that accused whenever used to come in her Jhuggi, she used to bolt the door Case No.82/2017 State Vs. Subhan Ansari 5/17 from inside. This witness further deposed that she did not raise alarm on 26th January when accused established physical relationship with her in her Jhuggi. She did not call any neighbouring person or owner of the Jhuggi. She did not make any call at 100 number on the day of incident itself. She did not make any call to the police prior to the registration of the case. This witness further deposed that she did not make complaint to her employer regarding the aforesaid incident. This witness deposed that she had made complaint to Mazid Ansari regarding the aforesaid act of the accused, but he said that what the police will do, they will take Rs.2000/ and will go back. This witness had denied to the suggestion that she never disclosed the incident to anyone because no such incident ever happened. This witness deposed that she alongwith accused boarded the TSR from Red Light in front of Gulabi Bagh Police Station. No police personnel met her during the time from the incident till the registration of the FIR. This witness had denied to the suggestion that she was owing Rs.5000/ against her advance or that she had asked the accused and his brothers to pay Rs.15000/ more as due to demonetization the factory was going to be closed for three months or that accused was not able to pay Rs.15000/ or that due to that reason she got registered present case falsely against him. This witness had denied to the suggestion that she was aware that accused was already married and was having children. This witness had denied to the suggestion that no rape was committed by the accused with her at any point of time or that she had lodged the false report against the accused to blackmail him in order to extort money.
Case No.82/2017 State Vs. Subhan Ansari 6/1712. PW3 Smt. Namita is the landlord of prosecutrix. This witness testified that prosecutrix had been residing as tenant in one room of her jhuggi from 15.01.2016 to March'2016 @ Rs.2400/ per month. This witness further deposed that prosecutrix used to go for work at about 8:00 a.m. and used to return in the night at about 10:30 p.m. She had not seen any boy visiting the prosecutrix.
13. On being cross examined by Sh. Mohd. Saleem, ld. counsel for accused, this witness deposed that her jhuggi is surrounded by many other jhuggies occupied by the families.
14. PW4 Sh. Deepak Modi is the employer of prosecutrix. This witness deposed that prosecutrix had worked at his factory for about one and half years. Accused Subhan Ansari had also worked as Contractor for the same period. This witness deposed that accused had got the prosecutrix employed at his said factory and she was working under him. This witness further deposed that no document was executed qua the said contract with the accused and employment of prosecutrix.
15. PW5 SI Yogendra is the witness of arrest of accused. This witness has proved arrest memo of accused vide Ex.PW5/A and his personal search memo vide Ex.PW5/B. This witness has proved disclosure statement of accused vide Ex.PW5/C. This witness has proved pointing out memo vide Ex.PW5/D. This witness has got conducted medical examination of accused vide MLC Ex.PW5/E. Case No.82/2017 State Vs. Subhan Ansari 7/17
16. On being cross examined by Sh. Mohd. Saleem, Ld. counsel for accused, this witness had denied to the suggestion that accused was not arrested from shoe factory in the manner as stated by him, rather he was called in the police station and was arrested from there. This witness had denied to the suggestion that accused did not make any disclosure statement, nor he pointed out place of incident or that proceedings were done while sitting at police station or that he had not joined investigation of this case at any point of time.
17. PW6 Dr. Astha Singh has proved MLC of prosecutrix vide Ex.PW2/A. This witness has deposed that prosecutrix had refused to undergo her internal examination.
18. On being cross examined by Ms. Sehrish alongwith Sh. Mohd. Saleem, ld. counsel for accused, this witness deposed that they cannot conduct internal examination of victim without her consent.
19. PW7 Ms. Amrita Tonk, Ld. MM(NI Act) has proved the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW2/B.
20. PW8 Dr. Varun Garg, SR, Department of Forensic Medicine, Hindu Rao Hospital has conducted potency test of accused vide Ex.PW8/A and found nothing to suggest that accused/patient was incapable to perform sexual intercourse.
21. PW9 W/SI Sonu is a material witness being I.O. This witness has Case No.82/2017 State Vs. Subhan Ansari 8/17 recorded statement of prosecutrix vide Ex.PW1/A, made endorsement thereon and got the present FIR Ex.PW1/B registered. During the course of investigation, this witness has prepared site plan Ex.PW9/A qua the place of incident at the instance of prosecutrix.
22. During the course of investigation, this witness has arrested the accused vide arrest memo Ex.PW5/A from first floor of the factory at Sehzada Bagh, Near Rain Basera, Daya Basti, Delhi and his personal search was conducted vide personal search memo Ex.PW5/B. This witness has proved disclosure statement of accused vide Ex.PW5/C. This witness has also prepared pointing out memo of place of incident vide pointing out memo Ex.PW5/D.
23. During the course of investigation, this witness has got the medical examination of the prosecutrix conducted vide MLC Ex.PW2/A.
24. During the course of investigation, this witness has got recorded the statement of prosecutrix u/s 164 Cr.P.C. from Ld. MM vide Ex.PW2/B.
25. During the course of investigation, this witness has got conducted the medical examination of accused vide MLC Ex.PW5/E and his potency test was conducted vide MLC Ex.PW8/A.
26. On being cross examined by Sh. Mohd. Saleem, Ld. counsel for accused, this witness had denied to the suggestion that no statement of the prosecutrix was recorded or FIR was recorded on the same day and Case No.82/2017 State Vs. Subhan Ansari 9/17 given time. This witness had denied to the suggestion that prosecutrix had already left the said Jhuggi in March'2016 but she had deliberately not incorporated this fact in the said statement. This witness had denied to the suggestion that no disclosure statement was given by the accused or that no pointing out memo was made by the accused or that she did not investigate the case fairly and properly or the accused has been implicated in this case at the instance of prosecutrix on account of demonetization as prosecutrix was in need of money and demanding it from accused.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
27. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. were recorded. Accused claimed that the prosecutrix was demanding Rs.15,000/ from him and his brothers as advance due to demonetization. Accused further claimed that Rs.5,000/ was already due upon the prosecutrix but he refused to pay further advance of Rs.15,000/ due to this reason the prosecutrix has falsely implicated in this case. As accused has not claimed for defence evidence, accordingly, D.E. was closed. Thereafter, case was fixed for arguments.
ARGUMENTS;
28. Ld. counsel for accused argued that prosecutrix is a consented party and she has implicated the accused for extorting money.
29. Ld. counsel for accused further submitted that prosecutrix was Case No.82/2017 State Vs. Subhan Ansari 10/17 demanding Rs.15,000/ from accused and his brothers as advance due to demonetization. Ld. counsel for accused further submitted that Rs.5,000/ was already due upon the prosecutrix but accused refused to pay further advance of Rs.15,000/ due to this reason the prosecutrix has falsely implicated the accused in the present case.
30. On the other hand, Ld. Addl. PP for the State argued that 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.
31. Ld. Addl. PP for the State further submitted that sequence of events narrated by the prosecutrix clearly establish that accused has committed rape upon the prosecutrix. On the aforesaid premises, Ld. Addl. PP for the State submitted that prosecution has been able to prove its case beyond reasonable doubt.
32. On the aforesaid premises, Ld. Addl. PP for the State submitted that prosecution has been able to prove its case beyond reasonable doubt.
PERUSAL OF RECORD:
33. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW1/A, the present FIR was registered.
34. It is further revealed that on 18.12.2016 IO PW9 W/SI Sonu recorded the statement of prosecutrix PW2, Ex.PW1/A, made endorsement Case No.82/2017 State Vs. Subhan Ansari 11/17 thereon and got the present FIR, Ex.PW1/B registered; it was recorded by PW1 ASI Iqramuddin; PW1 ASI Iqramuddin also made endorsement thereon, Ex.PW1/C; PW1 ASI Iqramuddin also gave certificate under section 65 of the Evidence Act, Ex.PW1/D in this regard.
35. It is further revealed that PW9 W/SI Sonu prepared site plan, Ex.PW9/A qua the place of incident at the instance of prosecutrix in the presence of PW5 SI Yogendra.
36. It is further revealed that I.O. W/SI Sonu has arrested accused in the presence of PW5 SI Yogendra vide arrested memo, Ex.PW5/A from First Floor of the factory at Sehzada Bagh near Rain Basera, Daya Basti, Delhi, where he was were working as a Contractor; his personal search was also conducted vide personal search memo, Ex.PW5/B; accused also made his disclosure statement, Ex.PW5/C; accused also pointed out place of incident to PW5 SI Yogendra, who prepared pointing out memo vide pointing out, Ex.PW5/D.
37. It is further revealed that medical examination of prosecutrix was conducted vide MLC Ex.PW2/A; it was conducted by PW6 Dr. Astha Singh.
38. It is further revealed that prosecutrix also gave her statement under section 164 Cr.P.C., Ex.PW2/B which was recorded by PW7 Ms. Amrita Tonk, Ld. M.M., Tis Hazari Courts, Delhi.
Case No.82/2017 State Vs. Subhan Ansari 12/1739. It is further revealed that potency test of accused was conducted by PW8 Dr. Varun Garg vide Ex.PW8/A whereas his formal medical examination was got conducted by PW9 W/SI Sonu vide MLC Ex.PW5/E.
40. Before reaching at any conclusion, let the relevant section i.e. 376 (2)(f) & (n)/506 IPC be reproduced, which is as under: Section 376 (2) (f) & (n) IPC:
(2) Whoever,
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS:
41. I have heard both the parties and perused the record.
42. The facts as emerged from the testimony of prosecutrix and other Case No.82/2017 State Vs. Subhan Ansari 13/17 evidence brought on record, totally belies the case of prosecution. Sequence of events as unfolded by prosecutrix makes out a altogether different case put forth by her in her statement Ex.PW1/A forming basis of present case and her statement recorded u/s 164 Cr.P.C.
43. Though the case of defence is of total denial but evidence adduced by prosecution clearly establish that it was a case of consental physical relation wherein prosecutrix and accused indulged in such promiscuous relation with the accused with her own volition and consent. It is absolutely settled proposition of law that the consent in such case can be determined from the conduct of the prosecutrix and the circumstances as emerged from her testimony.
44. The prosecutrix in her testimony stated that accused establish physical relation with her by intimidating to remove her from the job of the factory but at the same time she also deposed that she accompanied the accused to the India Gate on 26.01.2016 at about 10:00 a.m. went to a nearby park and from there they came to Jhuggi of prosecutrix at about 7:00 p.m. where accused establish physical relation with her on the aforesaid threat. As per the alleged history given by the prosecutrix, there are also material contradictions emerged from the testimony of prosecutrix, her statement forming basis of FIR and statement recorded u/s 164 Cr.P.C. As per her statement forming basis of FIR and her deposition in the court, accused establish physical relation with her first time in her Jhuggi but contrary to it she stated in her statement u/s 164 Cr.P.C. that accused had established physical relation with her in the Case No.82/2017 State Vs. Subhan Ansari 14/17 park where she was taken by him after seeing the Republic Day Parade is totally contrary to the deposition of prosecutrix that alleged incident happened in Jhuggi not in a park.
45. It is pertinent to mention that prosecutrix did not make any complaint for first incident of alleged forcible rape. Another startling deposition of the prosecutrix that after the incident accused started coming to her Jhuggi on Sunday to Sunday basis and used establish physical relation with her consent as he had assured her long life relation. It is further stated by the prosecutrix that whenever accused used to come at her jhuggi, she used to open the door to allow him to come inside. Moreso, prosecutrix has also deposed that whenever accused used to come to her jhuggi, she used to bolt the door from inside. The said facts are themselves are sufficient to demolish the case of prosecutrix, It is also note worthy that when a lady neighbour of prosecutrix asked her about accused and his visit to her jhuggi, she replied to her that he was working in factory where she was working.
46. It is also pertinent to mention that first incident of physical relation been without the consent of prosecutrix, she would not have allowed accused free ingress in her jhuggi and continued to establish physical relation with her for considerable period of time, instead of making complaint against him.
47. It is also startling that on the next day of first incident of rape, prosecutrix had also gone to her workplace i.e. shoe factory of the Case No.82/2017 State Vs. Subhan Ansari 15/17 accused as usual and worked there.
48. The defence of accused that he had been falsely implicated in the case as accused had given her a break of one week from the job of the factory due to demonetization and on that account prosecutrix got irritated and lodged the complaint against him to teach him a lesson find corroboration from the testimony of prosecutrix wherein she had categorically stated that accused had given her break for one week for that reason she had got irritated.
49. As per testimony of PW3 Smt. Namita, Land Lady of the prosecutrix, she had not ever seen any boy visiting the prosecutrix at her jhuggi. It also established that accused might have been visiting the jhuggi of prosecutrix by concealing himself from the view of the public and prosecutrix would allowed him to enter her jhuggi taking precaution not to get him noticed by public including land lady who was residing in another room on the same floor.
50. It has also come on record that jhuggi of the prosecutrix where the incident has happened is surrounded by many jhuggies. In this view of the matter, it is not possible that a normal visit of the accused, if any, would have gone unnoticed by the occupants of other jhuggi. Jhuggi of the prosecutrix where she was residing as tenant was comprise of two rooms and she was in occupation of one room and another room was being used by land lady, Smt. Namita, her two daughters and husband.
Case No.82/2017 State Vs. Subhan Ansari 16/1751. In view of the circumstances and evidence described hereinabove, this court is of the view that prosecution has failed to prove its case beyond reasonable doubt against accused u/s 376(2)(f) & (n)/506 IPC. Accordingly, accused Subhan Ansari acquitted from the aforesaid charge.
52. Interim compensation has already been granted to the prosecutrix/complainant. Final compensation be awarded to the prosecutrix. Copy of the judgment be sent to DLSA to consider the case and decide the suitable compensation to the victim who may be compensated as per the provisions of section 357A (2) of Cr.P.C.
53. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
54. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 02.11.2017.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.82/2017 State Vs. Subhan Ansari 17/17