Delhi District Court
State vs Accused on 14 October, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0282472010 SC NO.162/13 Date of Institution : 27.02.2012 FIR No.23/10 Date of Argument : 11.09.2013 PS Nand Nagri Date of Order : 14.10.2013 U/S 365/366/376 IPC State Versus Accused Rahisuddin S/o Sameer Ahmed, R/o Jhuggi No. E-57/D-75, Sunder Nagri, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 05.02.2010, _____x_____, S/o Late Ishar Dass, R/o __________y______________________, Delhi, herein after referred to as the complainant, lodged a report at PS Nand Nagri, alleging that he had been residing at the above mentioned address along with his family. His daughter ___z__ aged about 16 ½ years, herein after referred to as the prosecutrix left her house on 30.11.2009 and she returned back after about 10 days. He did not report the matter to the police because he was sure that his daughter SC No.162/13 State vs. Rahisuddin Page 1 of 17 will return. On 30.12.2009, his daughter-prosecutrix left her house on the pretext that she was going to answer call of nature but she did not return. He did not report the matter immediately as he was expecting that his daughter would return but she did not return. He cast doubt on Rahis, s/o Samir, r/o E Block, Sunder Nagri Jhuggi, herein after referred to as the accused. He was the person who had taken his daughter by enticing to marry her. On the basis of his statement, police recorded FIR No. 23/10 at PS Nand Nagari, under Section 363/366 IPC. The message form was filled in and it was flashed. The efforts were made to trace the prosecutrix but she could not be traced. During the investigation, the complainant gave information to the IO that his daughter was available in village Katha. They reached at said village at District Dharamshala and on the pointing out of the complainant, the prosecutrix was recovered and recovery memo was prepared. Statement of prosecutrix under Section 161 of the Code of Criminal Procedure, herein after referred to as the Code was recorded. She was brought to Delhi and her medical examination was got conducted in GTB hospital on 14.02.2010. Doctor also obtained her samples and handed over the same to Ct. Laxmi, who took her for the purpose of medical examination. Doctor observed that hymen of the prosecutrix was torn. Samples were seized by the IO.
SC No.162/13 State vs. Rahisuddin Page 2 of 17On 16.02.2010, the prosecutrix was produced before Ld. MM and her statement under Section 164 of the Code was recorded. In her statement the prosecutrix alleged that on 29.01.2010 accused took her to Meerut by enticing and kept there in a rented room and committed wrong act with her forcibly by threatening to kill her. On 14.02.2010, when the accused was away from that house, she came out and with the help of somebody informed her father and her parents came and recovered her. On 22.03.2010, accused Rahusuddin was arrested on the pointing out of the complainant and his arrest memo and personal search memo were prepared. He was also taken to GTB hospital where his MLC was got prepared. Doctor opined that there was nothing to suggest that he was not capable to do sexual intercourse. After completion of investigation police filed a charge-sheet against the accused for his trial for offences punishable under Section 365/366/376 IPC.
2. Ld. M.M., on receipt of charge-sheet took cognizance of the offence against the accused and after supplying of copies of charge-sheet, etc., committed this case to the court of Sessions and it was assigned to himself by Sh. J. R. Aryan, Additional Sessions Judge, In- Charge, North-East District, Delhi.
SC No.162/13 State vs. Rahisuddin Page 3 of 173. Vide order dated 27.03.2012 the court opined that there was prima facie sufficient material on record for framing of charge against the accused for the offences punishable u/s 365/366/376 IPC. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Prosecutrix Smt. __z_ as PW-1, SI Iqbal Ahmed as PW-2 and ASI Dal Chand as PW-3.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution further examined Constable Laxmi as PW-4, Constable Ram Kumar as PW-5, ASI Govind Singh as PW-6, Suresh as PW-7, Sh. Om Prakash as PW-8, HC Virender Prakash as PW-9, Sh. Satish Kumar Arora, Ld. M.M. as PW-10, Dr. Manju as PW-11, ASI Fateh Singh as PW-12 and SI Santosh as PW-13.
7. After closing of prosecution evidence statement SC No.162/13 State vs. Rahisuddin Page 4 of 17 of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. Accused denied the incriminating evidence against him. However, he admitted that he was arrested and his arrest memo and personal search memo were prepared and he was produced before the Doctor in GTB hospital and his MLC was got prepared and his samples were taken and that witnesses correctly identified him. He also admitted that when he met the prosecutrix she was more than 18 years of age. He took her to Ghaziabad and then to Meerut but he pleaded that it was the wish of the prosecutrix. He further pleaded that 15 days prior to the alleged incident, the prosecutrix came to him and he himself dropped her at her house and she again came and went with him on her own. However, he pleaded that she came along with her clothes and photographs and that he did not entice or kidnap her. First, they solemnized their marriage in Meerut and thereafter, they consummated the marriage. The accused pleaded that he was innocent. Accused opted not to lead defence evidence.
8. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
SC No.162/13 State vs. Rahisuddin Page 5 of 179. After considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond reasonable suspicion and shadow of doubt. The reasons which support my conclusion are firstly, that the statement of prosecutrix is not consistent, reliable and trustworthy. She has made material embellishments in her statement which rendered her statement untrustworthy. For example, in the statement to Ld. MM, she only stated that on 29.01.2010 at about 11-12 in the morning, the accused Rahisuddin who was known to her came to her street and took her to a village in Meerut by enticing and kept her there in a rented house. He forcibly committed wrong act with her two or three times. When she refused for said wrong act, she was threatened that she would be killed. He did not allow her to return to her house. On 14.02.2010 at about 4.00 PM when the accused went for the work, she escaped from that village and arrived in a village Katha and with the help of a woman, she made telephonic conversation with her father. Next day her parents came there and took her to Nand Nagri. In the Court, she deposed that accused Rahisuddin was acquainted with her as he was residing in the same street where she was residing. She was having SC No.162/13 State vs. Rahisuddin Page 6 of 17 acquaintance with him for the last 2 ½ years and at that time she was 14 years of age. The accused took her from her house on the pretext that she would be taking measurement for stitching the suit for the wife of the accused and she accordingly accompanied him. She used to do stitching work at that time. Accused then hired a auto rickshaw and they boarded an auto rickshaw and reached at bus stand situated somewhere in Ghaziabad. From Ghaziabad bus stand they board a bus and reached at Meerut. The accused hired a rented room in Meerut and they stayed in that room for about 15-20 days. The accused committed sexual intercourse with her by force and against her will. From there she called her father on a mobile phone by using mobile phone of somebody. Her father and police reached there and brought her to Delhi. Thus, she told the different story before the Court. As mentioned above, the accused was known to her for the last 2 ½ years. He was residing in the same street. The statement of prosecutrix that accused hired a auto rickshaw and took her to his house on the pretext that she would be taking measurement of suit for his wife does not seem to be convincing. Statement of prosecutrix is silent on the point of use of force or use of any sedative material etc. Her statement is silent as to what thereat was given to her. Thus, her statement is unreliable and untrustworthy.
SC No.162/13 State vs. Rahisuddin Page 7 of 1710. Besides, her statement is in conflict with the statement of her father on some aspects. For example, the prosecutrix before the Ld. M.M. in her statement Ex. PW-10/D deposed that accused had taken her by enticing to Meerut. In the Court, she deposed that she was taken by giving threat to her. Once she stated that she was taken on the pretext of taking measurement of his wife. She did not depose about his love affairs with the accused Rahisuddin. In cross examination she denied the suggestion that she was in love with the accused. Conversely, her father PW-7 deposed that her daughter was having love affairs with the accused prior to date of occurrence. He even stated as well as mentioned in the report Ex. PW-6/D that she earlier went with the accused on 30.11.2009 and after few days, she returned on her own. That matter was not reported to the police. Thus, there are contradictions in the statement of material witnesses on some aspects and that made their testimonies unreliable and untrustworthy.
11. My attention on this aspect goes to a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted SC No.162/13 State vs. Rahisuddin Page 8 of 17 themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
12. Secondly, there is unreasonable and unexplained delay of more than 1 month and 12 days in report the matter to the police. This delay has further created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case. The complainant in order to explain the delay only stated that he was expecting that his daughter would return but she did not return and therefore, he opted to report the matter to the police. In his examination in chief, he stated that in the year 2009, his daughter had left the house but he did not lodge any report as she came after 5/6 days of her missing. The prosecutrix was again found missing and he informed the PCR from his mobile number 9871427759. He tried to trace his daughter but she was not found anywhere. When she could not be traced, he went to the PS and lodged SC No.162/13 State vs. Rahisuddin Page 9 of 17 report Ex. PW-6/D. In cross examination, he stated that on 30.11.2009, his daughter had gone with the accused and she was having love affair with the accused. Thus, long unreasonable and unexplained delay has created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
13. My decision in this case finds support from a case Jagdish v. State, (Delhi), 1987(1) R.C.R.(Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the SC No.162/13 State vs. Rahisuddin Page 10 of 17 introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to.
10. The delay of two days in the lodging of the F.I.R. in the case in hand has not been explained at all much less satisfactorily by the prosecution and it was not job of the defence to have put questions to the injured in her cross- examination to elicit the reasons for that delay. On account of this delay the causing of self-inflicted injuries on her person, in consultation with her father, cannot be ruled out as the motive for the same was very much there as already pointed out above."
14. Thirdly, the prosecutrix was major more than 18 years of age at the time of alleged incident. PW-1, the prosecutrix on this aspect deposed that she was not sure if her date of birth was 18.06.1991 as shown in the birth certificate Mark D-7. PW-7, father of the prosecutrix on this aspect deposed that he did not remember if date of birth of her daughter was 18.06.1991. He did not know whether his daughter was 18 years and 5 months when she had gone with the accused. PW-8 deposed that she had brought the admission record of the prosecutrix _z_. As her school SC No.162/13 State vs. Rahisuddin Page 11 of 17 record, she was admitted in the school on 14.07.1997 vide admission serial No. 1766 dated 14.07.1997. The parents of the student had submitted the MCD birth certificate along with the admission form. As per the birth certificate and as per their record the date of birth of __z___ was 18.06.1991. The photo copy of admission form, admission register and certificate of Principal were proved as Ex. PW-8/A, Ex. PW-8/B and Ex. PW-8/C respectively. There is no evidence regarding date of birth or age of the prosecutrix. On the basis of the evidence on record and particularly discussed herein above it is held that prosecutrix was 18 years, 6 months and 12 days on the date of occurrence on 30.12.2009. This has further supported the defence of the accused that she went voluntarily with the accused.
15. Fourthly, the evidence on record has shown that the prosecutrix was a consenting party and she herself went with the accused. In cross examination, the prosecutrix deposed that house of the accused was situated in D block Sunder Nagri at a small walking distance from her house. The auto rickshaw whereby the accused took her to Ghaziabad side was his own auto rickshaw and he was auto driver by profession. The accused himself drove that auto rickshaw after making her SC No.162/13 State vs. Rahisuddin Page 12 of 17 to sit on its rear seat. The fact that auto rickshaw belonged to the accused was told by her to the police. Before boarding bus for Meerut the accused had parked his auto rickshaw somewhere. She explained that accused called someone by phone call who came and took away the auto. It took about 1 or 1 ½ to reach Meerut. The bus was full of passengers. She did not speak to anybody in the bus to tell that the accused was taking her with him under a threat. From Meerut bus stand accused hired a rickshaw whereby they reached at room in Meerut city. That room had already been taken on rent by the accused. That room was situated on the first floor and on the ground floor the landlord/owner was himself residing. She did not meet landlord or his wife during that 15-20 days period. Landlord was aware that she was residing on the first floor room. No query was ever made by the landlord. Food used to be arranged by the accused himself. She used to be alone in the room when accused used to go out to arrange food. He used to take about half an hour to arrange food. She did not make any complaint to anybody during that half an hour or during those 15-20 days period as the accused had already given her a threat. No police official was seen by her anywhere during that period as the accused had made her to wear burqa. After seeing photographs Mark D-1, D-2 and D-3, she stated that she and the accused were SC No.162/13 State vs. Rahisuddin Page 13 of 17 appearing in those photographs. Photographs were taken in Sunder Nagri, Delhi, Meerut and at the time when Nikahnama was signed. She was having opportunity to raise alarm or to return at home but she did not do so. Therefore, on the basis of evidence on record and particularly discussed herein in above, it is held that the prosecution has failed to prove beyond any reasonable suspicion or shadow of doubt that the prosecutrix was not a consent party in going with the accused.
16. Fifthly, the marriage certificate/Nikahnama and photographs Mark D-1 to D-3 further support the case of the accused that she was a consenting party as she willingly signed the Nikahnama as seen in the photographs.
17. Sixthly, the prosecution evidence has failed to achieve the standard of proof of proving its case against the accused as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction SC No.162/13 State vs. Rahisuddin Page 14 of 17 solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
18. Seventhly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
19. My attention also goes to a case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, wherein it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
The principles of law laid down in above cases are applicable on the facts of present case and therefore, it is held that the accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime is SC No.162/13 State vs. Rahisuddin Page 15 of 17 possible.
20. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. This principle is applicable in the present case. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
21. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case beyond any reasonable suspicion and shadow of doubt against the accused that he committed an offence of kidnapping/abduction and enticing woman to marry against her will punishable under Section 366 IPC or an offence of wrongful confinement punishable under Section 365 IPC or an offence of rape on prosecutrix punishable under Section 376 IPC. Resultantly, accused is acquitted for the offences punishable under Sections 365/366/376 IPC.
SC No.162/13 State vs. Rahisuddin Page 16 of 1722. However, in view of provisions of Section 437 A of the Code accused is directed to furnish within a week bail bond/surety bond in the sum of Rs.20,000/- with one surety of like amount for the period of six months.
23. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court Dated: 14.10.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.162/13 State vs. Rahisuddin Page 17 of 17