Delhi District Court
State vs . Mohd. Yunus on 5 May, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 148/13
Unique Case ID No.02405R0090462013
State Vs. Mohd. Yunus
s/o late Mohd. Hazi Yasin
1503, Balram Nagar Gate,
100 foot road, Parmatma Dharam Kanta,
Near Nehru Park, PNB, Prem Nagar,
District Ghaziabad, UP.
Permanent Address:-H.No. 85,
Village Mahamodapur Mafi Street,
Sambal Road, Distt. Muradabad,
PS Menader (UP).
Date of Institution :01.03.2013
FIR No.91/2012 dated 02.04.2012.
U/s. 328/366/376 IPC.
P.S. Bindapur.
Date of reserving judgment/Order :02.05.2014.
Date of pronouncement :05.05.2014.
JUDGMENT
1. The above named accused had been charge sheeted by the prosecution for having committed the offence punishable u/s 328/366/376 IPC.
SC No.148/13 Page 1 of 152. As per the prosecution case, the prosecutrix namely 'Z' (real name withheld in order to conceal her identity) had submitted a complaint dated 09.01.2012 to the SHO, PS Bindapur on the basis of which FIR has been registered in this case. The prosecutrix has contended in the said complaint that the accused had come to their house for the first time in the year 2006 alongwith a relative and thereafter continued visiting their home. Accused developed intimacy with her and they fell in love with each other. Accused promised to marry her and on such promise and assurance, she developed physical relations with him. Accused used to take her for site seeing around Delhi and they both enjoyed each other's company. It is further stated in the complaint that the son and daughter of prosecutrix's uncle were to get married on 18.12.2011 in the evening and therefore, all her family members were present in the house of her uncle to take part in the nikah ceremony. The accuse had told her that they will also solemnise marriage on 18.12.2011 in the house of her uncle. On that date, when she and the accused were present in her house, getting ready for Nikah ceremony, accused offered to her coffee which had been prepared by him, after consuming which she does not know what happened. She regained consciousness in DDU Hospital and was told by her brother Mohd. Azad that her friend, who used to visit their house, had seen her in un-conscious state and froth was coming out of her mouth and then she was removed to DDU Hospital. She remained admitted in the hospital for two days and was discharged on 20.12.2011. It is further stated in the complaint that she was again taken to DDU Hospital on 26.12.2011 for review. Since the local police had not taken action against the accused, she had submitted the said complaint SC No.148/13 Page 2 of 15 to the SHO.
3. It is further the case of the prosecution that after registration of the FIR u/s 328 IPC, investigation was handed over to ASI Dharambir who recorded the statement of witnesses u/s 161 Cr.P.C. Accused came to be arrested from his residence in Ghaziabad. He made a disclosure statement.
4. It is also the case of the prosecution that information was received in the Police Station on 18.12.2011 at 9.47 pm from the duty constable at DDU Hospital that a girl named 'Jannat' has consumed unkown poison and has been brought to the hospital by her brother-in-law (jija). The information was recorded as DD No. 54 and was entrusted to HC Pappu Ram for suitable action. The doctor had preserved the gastric lavage of the girl and handed over the same in sealed condition to the IO, which was later on sent to FSL for forensic examination. The statement of the prosecutrix, u/s 164 Cr.P.C. was got recorded on 03.08.2012 wherein she stated that the accused had established sexual relations with her on the false pretext of marriage and accordingly Section 366 IPC and Section 376 IPC were added to the case. Thereafter investigation was handed over to SI Nirmal Sharma. The prosecutrix was again got medically examined in DDU Hospital on 16.11.2012 and the exhibits given by the doctor were seized by the IO. Potency test of the accused was also got conducted and the sealed samples were given to the doctor which were seized by the IO. All the exhibits were later on sent to the FSL for their forensic examination. After the completion of the investigation, charge sheet was prepared and laid before the concerned ld. MM.
SC No.148/13 Page 3 of 155. Upon committal of the case to the court of Sessions, charge u/s 376 IPC was framed against the accused on 21.5.2013. The accused denied the charge and accordingly trial was held.
6. At trial, the prosecution has examined 16 witnesses. The accused was examined u/s 313 Cr.P.C. on 25.3.2014 wherein he denied the prosecution case and claimed false implication. He further stated that he is a carpenter by profession and in the year 2010, he had done repair work of bed in the house of prosecutrix's sister. Thereafter he was again engaged for wood work in their house at Dwarka for which he raised a bill in the sum of Rs. 38,000/- out of which, only Rs. 18,000/- were paid to him and Rs. 20,000/- remained outstanding. Thereafter prosecutrix started telling him that she loves him. He told her that he is already married person and not interested in marriage with her. Then they avoided making balance payment to him in spite of his various requests and upon his repeated demands, they slapped this false rape case upon him.
7. The accused has examined his elder brother Mohd. Anis as DW-1 in his defence to prove his innocence.
8. I have heard ld. APP for State, ld. Counsel for accused and have perused the material on record.
9. The prosecutrix has been examined as PW1. She has deposed that she had become friend of the accused in the year 2006 or 2007. They used to talk to each other and meet each SC No.148/13 Page 4 of 15 other regularly. During the course of these meetings, they fell in love with each other. The accused used to come to her house and talk to her as well as her parents. He used to tell her that he would marry her. He had assured her parents also that he likes her and would marry her. However, she did not believe him but on one or two occasions, accused Swore by Quran Sharif by putting his hand upon the same that he would marry her in any event and then she believed his words. Thereafter they meet each other in the month of June or July 2010 in the house of her friend Jyoti, where the accused put vermilion on her forehead to instill belief in her that he is marrying her. Even though there is no such rite or custom, prevalent amongst muslim. Next day, accused had come to their house where she was present alone and expressed desire to have physical relations with her. She refused to oblige him saying that it is not proper before marriage, however, he told her that as he has put vermilion on her forehead, he considers her as his wife and, therefore, there is nothing illegal or immoral in engaging in sexual intercourse. She fell into his words and ultimately they had intercourse with each other. She further deposed that then onwards, they used to have sexual intercourse with each other whenever he used to come to their house and found her alone. Sometimes he called her to his rented room where also they engaged in sexual intercourse with each other. She used to tell him that it is not proper to continue having sexual intercourse before marriage and to call his parents so that Nikah would be performed between them but he did not call his parents. He told her parents that they also would perform Nikah on 18.12.2011 on which date, Nikah ceremony of her cousin was to take place. Accordingly accused came to their house on 17.12.2011 and SC No.148/13 Page 5 of 15 stated that he is ready for Nikah with her. On 18.12.2011 while Nikah of her cousin was taking place in the Masjid, she was present in her house alone and was dressing up. The accused was also present in the house. Accused prepared coffee and offered the same to her, after taking which she felt giddy and became unconscious. She regained consciousness in DDU Hospital where she remained admitted for three days. Thereafter she experienced weakness for about a month and she was not able to stand properly and the treatment continued for about 6 months.
10. She further deposed that her parents had already reported the matter to the Police when she had been taken to the hospital. However, her statement was not recorded by the police even after her discharge from the hospital. Thereafter they contacted an advocate and filed a complaint in the court of ld. Magistrate which she proved as Ex. PW1/A and under the directions of ld. Magistrate, FIR was registered. After the registration of the FIR, she was got medically examined in DDU Hospital. She was also produced before a ld. Magistrate in Dwarka Court who recorded her statement u/s 164 Cr.P.C. which she proved as PW1/B. She had shown to the police officials the spot where the accused had offered coffee to her. In the cross examination, she deposed that she did not recollect the telephone number from which she had received call from the accused for the first time in the year 2006 or 2007. The call was received on the PCO installed in their gift shop. She did not recollect the number of PCO. She did not receive calls from any other person except the accused on that phone. There was no fixed time for the accused to make calls to her. She deposed that the shop was run under the SC No.148/13 Page 6 of 15 name and style of M/s. Muskan Gift Shop. It was a rented shop and its owner was Doctor G.K. Mandal. Her father, her brother and sometimes she used to sit in the shop. She used to sit in the shop alone several times usually from 9 am till 2 pm. She further deposed that she had been working in a NGO M/s. Setu since the last 5 years. She used to teach children there from 2 pm to 4 pm. Accused used to come to their house to meet her after about every three months or six months. She too used to go to the house of the accused to meet him. Her family members had objections to the visit of the accused to their house but never refused him entry into the house at any point of time. Accused used to remain in their house from morning till evening and also used to have meals with them during the day. Her sister in law (Bhabhi) used to prepare food for him also. She deposed that her Bhabhi as well as her mother are house wives. In the year 2007, the age of her younger brother was 16 or 17 years and he used to go for work alongwith her elder brother. She further deposed that she did not know who informed the accused about the address of their house. According to her, accused's brother Anish, his sister Kusum and his brother in law Mohd. Salim also had visited their house. She may have visited the house of the accused five to ten times. She used to remain in the house of the accused from 11 am or 12 noon till 4 pm on the days when she was not to go to the office of NGO. She did not inform anybody at home about her visits to the house of accused. She deposed that accused sworn by Quran Sharif in the month of January or February, 2011 that he would marry her and the accused had sexual intercourse with her for the first time in March, 2011 at the house of her married sister, i.e. house No. D-230, Phase-1, Sec. 23, Dwarka, which is nearby their house. At SC No.148/13 Page 7 of 15 that time the family of her sister had shifted to Seelampur and they had kept the keys of the house with their father. She further deposed that on that date that day the accused had first come to their house. He told her that he wants to meet her sister. Prosecutrix told him that there is nobody in their house. He suggested to her that they should go there and spend time alone in that house. Accordingly they went to the house of her sister. She did not recollect the date and month when they had gone there. All her family members were present in her house when they reached there. She did not tell her parents that they are going to spend time in the house of her sister. She took the keys of the house from her younger brother. She had been residing in that house for one week prior to the aforesaid date as her sister had gone away. Her younger brother was already present in that house. She again said that they did not go to the house of her sister during the day time. On that day accused remained in her house throughout the day and left in the evening. After taking dinner, she and her brother went to sleep in that house. After sometime, accused made phone calls to her to open the door of that house. Accordingly she was constrained to open the door for him. He remained with them in that house for the night. She and the accused slept in one room and her younger brother slept in another room. In the morning, the accused left for his home and she came to her home. This house is not located in any society and it was at five minutes walking distance from her house. On that day he had come to her house after making a phone call to her. Accused already knew the address of her sister's house. Accused had come to that house at about 9 p.m. There were household goods in that house.
SC No.148/13 Page 8 of 1511. Before scrutinizing the testimony of the prosecutrix it is necessary to point out here that on 18.12.2011, when the prosecutrix had been taken to DDU Hospital, after she had become unconscious, the duty constable at the hospital, had sent information to the Police Station that the prosecutrix has consumed unknown poison and has been brought to the hospital by her brother in law (jija). This information has been recorded as DD No. 54B in the police station, attested copy of which has been annexed with the charge sheet. According to the deposition of PW15 HC Pappu Ram, the aforesaid DD had been handed over to him for suitable action. He has deposed that he alongwith constable Samundar reached DDU Hospital and found prosecutrix admitted there vide MLC No. 25581/11. He submitted an application to the doctor for permission to record statement of prosecutrix but the doctor declared her unfit for statement. He proved the application as Ex. PW15/A which contains endorsement of the doctor from point X to X. Thereafter he returned to the Police Station and apprised the SHO about the case. In his deposition he has deposed that the parents as well as brother in law of the prosecutrix and few other persons were present in the hospital at that time but they did not give any complaint in writing to him. They told him that poison has been administered to prosecutrix at her residence.
12. DD No. 12B dated 19.12.2011 has been recorded in the police station at 7.55 am, the attested copy of which is also annexed with the charge sheet. It has been recorded at the instance of HC Pappu Sharma (PW15) who stated to the Duty SC No.148/13 Page 9 of 15 Officer that the prosecutrix had consumed certain sleeping pills and she has been declared unfit for statement by the Dr. S.K. Shah. It is probably for this reason that no FIR was registered on that day as it was not clear whether the prosecutrix had consumed any poison. It has also been mentioned in the MLC Ex. PW13/A that the prosecutrix had consumed certain unknown tablets. The gastric lavage was preserved by the doctor who examined prosecutrix on that day and the same had later on sent to the FSL for forensic examination where it was examined by PW7 who proved his report Ex. PW7/A. As per the said report, no poison of any kind or tranquilizers or pesticides could be detected in the gastric lavage. The MLC of the prosecutrix, as well as FSL report were then put up before PW5 Dr. B.N. Mishra in DDU Hospital for his subsequent opinion who vide his opinion Ex. PW5/A opined that the prosecutrix had not consumed any drug or poisonous substance as alleged by her and the possibility of her pretending illness cannot be ruled out for ill motives.
13. It further needs note here that the aforementioned FSL result as well as the subsequent opinion of Dr. B.N. Mishra had been annexed alongwith the charge sheet and the same were perused by this court at the time of deciding the charges to be framed against accused. In view thereof, it was held that charge u/s 328 IPC is not made out against the accused. The accused was charged u/s 376 IPC only.
14. Now it is the case of the prosecution that the accused had obtained consent of the prosecutrix for sexual intercourse on the false pretext of marriage, which cannot be taken as a free and SC No.148/13 Page 10 of 15 voluntary consent and, therefore, acts of sexual intercourse committed by the accused with the prosecutrix tentamount to offence of rape as defined in Section 375 of the IPC.
15. The prosecutrix in her complaint Ex. PW1/A, which is the basis of the FIR in this case, has not mentioned in which month and year did the accused extend the promise of marriage to her and when did they have physical relations with each other for the first time and in which circumstances. In her examination in chief, she has deposed that the accused swore by Qurane-a-Sharif on one or two occasions by putting his hand upon it saying that he would marry her in any event. She does not mention the date, month and the year when the accused had done so. She has further deposed that in the month of June and July, 2010, they met in the house of her friend Jyoti, where the accused put vermilion on her forehead to instill belief in her that he is marrying her and next day, they had physical relations with each other at her residence when she was alone there. She deposed that she had refused to engage in sexual relations with the accused but she fell into his words that he considers her his wife and, therefore, there is nothing illegal or immoral in engaging in sexual intercourse. Going by the aforesaid deposition of the prosecutrix, it appears that she had sexual intercourse with the accused for the first time, in the month of June or July, 2010. As per her further deposition, they continued to have physical relations with each other whenever the accused used to come to their house and found her alone. Sometimes he called her to his rented room where also they engaged in physical relations with each other.
SC No.148/13 Page 11 of 1516. It would be pertinent to reproduce her what the prosecutrix has stated in her cross examination in this regard:-
"It is correct that we were friends from the year 2007 onwards. The accused had sexual intercourse with me for the first time in March, 2011.
It is correct that we have not met at any place other than our house or the house of the accused. We had sexual intercourse for the first time at the house of my married sister, which is nearby our house. The house number is D-230, Phase-I, Sector-23, Dwarka, New Delhi. The family of my sister had shifted for first time to Seelampur. They had kept keys of the house with my father.
On that day the accused had first come to our house. He told me that he wants to meet my sister. I told him that there is nobody in their house. He then said that let us go there and spend time alone in that house. Accordingly we went to that house of my sister. I do not recollect the date and month when we had gone there. All my family members were present in my house when we reached there. I did not tell my parents that we are going to spend time in the house of my sister. I took the keys of the house from my younger brother. I had been residing in that house for one week prior to the aforesaid date as my sister had gone away. My younger brother was already present in that house. Again said, we did not go to the house of my sister during the day time. On that day accused remained in SC No.148/13 Page 12 of 15 our house throughout the day and left in the evening. After taking our dinner, I and my brother went to sleep in that house. After sometime, accused made phone calls to me to open the door of that house. Accordingly I was constrained to open the door for him. He remained with us in that house for the night. I and the accused slept in one room and my younger brother slept in another room. In the morning, the accused left for his home and I came to my home. This house is not located in any society. It is at five minutes walking distance from our house. On that day he had come to our house after making a phone call to me. Accused already knew the address of my sister's house. Accused had come to that house at about 9 p.m. There were household goods in that house."
17. It is thus evident that as per the testimony of prosecutrix in her cross examination, she had sexual intercourse with the accused for the first time in March, 2011 and not in the month of June or July 2011 as deposed by her in her examination in chief. In the examination in chief, she has stated that they had physical relations for the first time at her residence when she was alone there. But in the cross examination she has stated that it took place in the house of her sister, which was nearby there house. Circumstances in which, they engaged in physical relations for the first time have been stated absolutely differently by the prosecutrix in her examination in chief and in her cross examination. From the perusal of her cross examination, as reproduced herein above, there is no indication that her consent to SC No.148/13 Page 13 of 15 the sexual intercourse was obtained by the accused on the basis of any promise or assurance to marry her. It is manifest that she was in love with the accused and was willing to engage in physical relations with him and for that reason, she opened the door of her sister's house for him in the dead of night when he had knocked at the door. She slept with the accused without any hesitation or demur for the whole night whereas her brother was sleeping in the adjacent room. These circumstances indicate beyond doubt that her consent to the physical relations with the accused was voluntary and without any deception or promise from the side of the accused.
18. It may also be noted that the prosecutrix, does not qualify as a sterling witness. Her deposition suffers from improvements and prevarications. Her deposition in cross examination is at variance to her deposition in examination in chief. It would be against the established rules of criminal justice to order conviction on the basis of her aforesaid nature of testimony.
19. So far as the incident of poisoning dated 18.12.2011 is concerned, the prosecutrix has described the same also differently in her statements recorded during the course of investigation and in her testimony before this court. Even otherwise also, the police did not find any evidence, ocular or medical, to confirm the incident of poisoning and hence no FIR had been registered regarding that incident. It is clear that the prosecutrix had enacted drama of poisoning in order to create a ground for lodging a false FIR against the accused.
SC No.148/13 Page 14 of 1520. With the result, I hold that the prosecution has failed to prove the charges against the accused. The accused is liable to be acquitted and is hereby acquitted as such.
Announced in open (VIRENDER BHAT)
Court on 05.05.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.148/13 Page 15 of 15