Delhi High Court
Mohd.Tarikh @ Ruffi vs State on 18 May, 2011
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18th May, 2011
+ CRL.A. 130/1999
MOHD.TARIKH @ RUFFI ...Appellant
Through: Mr.Shahid Ali, Advocate with
Mohd.Shariq and Mr.Sohail Tariq Wani,
Advocates
versus
STATE ...Respondent
Through: Mr.Pawan Sharma, Standing Counsel
(Crl.) with Mr.Harsh Prabhakar, Advocate
CRL.A. 729/2006
MOHD.TULAY @ GUDDU @ SUHALAY ...Appellant
Through: Mr.Shahid Ali, Advocate with
Mohd.Shariq and Mr.Sohail Tariq Wani,
Advocates
versus
STATE ...Respondent
Through: Mr.Pawan Sharma, Standing Counsel
(Crl.) with Mr.Harsh Prabhakar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
Crl.A.Nos.130/1999 & 729/2006 Page 1 of 15
1. Appellant Mohd.Tarikh has been convicted for the offence punishable under Section 376(2)(f) IPC vide impugned judgment and order dated 3.3.1999 and vide order dated 4.3.1999 has been sentenced to undergo imprisonment for life. Appellant Mohd.Tulay has been likewise convicted for the offence punishable under Section 376(2)(f) IPC vide judgment and order dated 8.8.2006 and vide order on sentence dated 11.8.2006 has been sentenced to undergo imprisonment for life.
2. The two have been convicted on being held guilty of raping a minor girl named 'N' and the reason why we have two impugned judgments is that appellant Mohd.Tulay had absconded and was declared a proclaimed offender. Co- accused Mohd.Tarikh suffered a trial and was convicted. Thereafter Mohd.Tulay was apprehended and sent to face a trial.
3. Since first trial was held in Session Case No.135/1997 in which Mohd.Tarikh has been convicted, we shall be referring to the exhibits of the documents at said trial and would be referring to the testimony of the witnesses at said trial and wherever necessary we would note the discrepant testimony of the same witnesses at the second trial in Session Case No.63/2006 in which Mohd.Tulay has been convicted.
4. FIR Ex.PW-5/B, was registered on 6.11.1996 pursuant to the statement Ex.PW-2/A made by Gulam Mohd. (PW-2) on 6.11.1996, when he stated to SI Hilarious PW-5 that Crl.A.Nos.130/1999 & 729/2006 Page 2 of 15 he was residing with his family at House No.315, Gali No.6, A Block, Shriram Colony, New Delhi and that at 2:00 PM when he was purchasing groceries from a retail shop, police people approached him and told him that a girl aged 7/8 years had been killed and requested him to go and see the girl to find out whether she was his daughter. When he went to 20' road he saw that the girl was his daughter 'N' who was a student of class I in the Municipal Primary School and who used to leave for school at 7:00 AM and return at 1:00 PM. Today also his daughter had gone to school. He asked his daughter as to what happened to her and she told him that after the school time was over and she was returning home, Ruffi met her on the way, slapped her, took her to a hotel on the 20' road and in a room at the rear, raped her when Guddu brother of Ruffi reached he also raped her.
5. Making an endorsement Ex.PW-5/A beneath the statement Ex.PW-2/A, SI Hilarious forwarded the same for FIR to be registered, recording the time of dispatch of the statement at 7:30 PM on 6.11.1996.
6. 'N' was admittedly taken by Gulam Mohd. to Teg Bahadur Hospital as recorded on the MLC Ex.PW-3/A which shows that 'N' daughter of Gulam Mohd. was brought to the hospital by her father who gave the history of the injury suffered by 'N' as a case of sexual assault 2-3 hours back and the time of 'N' being admitted at the hospital stands recorded as 4:55 PM. The MLC records that 'N' had vomited once and the pulse was not palpable and blood pressure not recordable;
Crl.A.Nos.130/1999 & 729/2006 Page 3 of 15pupils were constricted but reacted to light and that 'N' was in altered sensoriom but was responding occasionally to commands. It was recorded that there was a tear on post fourchette with bleeding and that the condition of the hymen could not be commented upon. It was recorded that the patient was advised surgery for the perineal tear and that the same had to be under anesthesia and since the condition of the child was fairly precarious the risk of operating the child under anesthesia was explained to Gulam Mohd. who signed on the MLC that he was not willing for his daughter to be admitted and operated as suggested, and took his daughter away against medical advice.
7. Relevant would it be to note that the unfortunate young girl was taken to her house by her father, but at her mother's insistence was taken to Irwin Hospital where further medical treatment was given to the girl and she survived. As claimed by SI Hilarious he recorded 'N's statement under Section 161 Cr.P.C. the day next of the incident i.e. 7.11.1996.
8. Whereas appellant Mohd.Tarikh was arrested from his house on 7.11.1996, appellant Mohd.Tulay absconded and was arrested 3 years later by which time trial of Mohd.Tarikh was already over.
9. One Allah Noor examined as PW-6 at the trial against Mohd.Tarikh and who we note was not examined at the trial against Mohd.Tulay, is stated to be the tenant of the hotel on the 20' road, in the room at the rear whereof 'N' was found sexually assaulted and lying grievously injured. His statement Crl.A.Nos.130/1999 & 729/2006 Page 4 of 15 under Section 161 Cr.P.C. was recorded on 7.11.1996 in which he stated that he was a tenant of the building, in the front room whereof he ran a tea shop and that he had gone out for some work and when he returned around 2:00 PM he saw 2 boys named Ruffi and Guddu whom he knew from before, exit his room, and when he went inside he saw a girl aged 7/8 years lying smeared in blood which information he gave to police officers.
10. The site plan Ex.PW-5/C shows the same not being to scale and we find no site plan to scale being proved at the trial and thus we do not have the dimensions of the site plan Ex.PW-5/C. However, it records the existence of a two roomed structure abutting a 20' road. The first room is approximately half the size of the second room, which is on the rear. The first room has been shown from where Allah Noor ran the tea shop and has been labeled as a hotel, and for which expression we may only highlight that in India people tend to call a restaurant or an eatery as a hotel.
11. At the trial against Mohd.Tarikh, Kumari 'N' appeared as PW-1 and deposed that on 6th December she had left her house to give meals to her brother at his school at Sri Ram Colony and on the way on the 20' road met accused Mohd.Tarikh whom he knew as he had taken a house on rent in the colony and he called her but she did not respond. He offered a sweet (toffee) and she went to him. He caught hold of her hand and took her inside a house belonging to a tea vendor. The accused was carrying a liquor pouch and after Crl.A.Nos.130/1999 & 729/2006 Page 5 of 15 beating her, made her drink liquor and asked her to remove her clothes. She became unconscious due to liquor and being beaten and does not remember what happened thereafter and that the accused raped her and that she regained consciousness in the hospital.
12. We eschew reference to 'N's cross examination with respect to her statement recorded by the police where she had not uttered a word about she being forced to consume alcohol or being enticed with a sweet but we note that on being cross examined she stated that when she was being raped she cried but her voice was muffled by the accused by putting his hand on her mouth. She stated that she told the aforesaid incident to her father and then to the police. She denied being tutored.
13. Gulam Mohd. PW-2, 'N's father deposed that on 6.11.1996 at around 1 or 2 PM he had gone to purchase rations from the ration shop and was told by the police that a dead body of a child was lying and he should identify the same and thus he accompanied the police to the 20' road and identified his daughter 'N' lying in unconscious condition in a house who was taken to the hospital where it was found that his daughter was alive as she was faintly breathing and at the hospital she was given treatment due to which she regained consciousness and the doctor called the police and that her daughter was taken to the police station from the hospital where his statement Ex.PW-2/A as also the statement of his daughter was recorded. He deposed that his daughter had told him that accused i.e. Mohd.Tarikh had given her liquor after beating her Crl.A.Nos.130/1999 & 729/2006 Page 6 of 15 but denied his daughter having told him that the accused had raped her.
14. On being cross examined by counsel for accused Mohd.Tarikh he admitted that in the photograph Ex.PW-2/DA the girl was his elder daughter and the boy was the accused. He denied the suggestion that accused Mohd.Tarikh had to recover `16,000/- from him. He stated that he had no knowledge whether accused Mohd.Tarikh had lodged a report 3 days earlier fearing false implication in some case at his hand. He denied the alternative suggestion that he demanded `16,000/- from the accused who was having an affair with his elder daughter.
15. Dr.Vineeta Rastogi PW-3 the doctor who had examined 'N' proved the MLC Ex.PW-3/A and the contents thereof, relevant portions whereof have been noted by us in para 6 above. Relevant would it be to highlight that she deposed that the condition of 'N' was precarious as the pulse was not palpable and blood pressure was not recordable and pupils were constricted but reacting to light. She categorically deposed that the patient was not fit for statement. She further deposed that she had examined Mohd.Tarikh on 7.11.1996 and as per MLC Ex.PW-3/B had opined him to be capable of sexual intercourse.
16. Ct.Ram Mehar PW-4 deposed having registered the FIR upon receipt of the rukka Ex.PW-2/A. Crl.A.Nos.130/1999 & 729/2006 Page 7 of 15
17. SI Hilarious PW-5, deposed that on receipt of information that 'N' was admitted at G.T.B.Hospital he reached the hospital and obtained her MLC but could not record her statement as 'N' was unfit to make a statement. Her father's statement Ex.PW-2/A was recorded by him beneath which he made the endorsement Ex.PW-5/A and got the FIR registered and that he lifted a blood stained quilt from the room where the crime was committed as entered in the memo Ex.PW-5/D. 'N' was discharged against advice of the doctor and he arrested the accused Mohd.Tarikh.
18. On being cross examined he admitted that a case for an offence under Section 376 IPC was registered against Allah Noor and that during investigation he learnt that Nisha, elder sister of the prosecutrix had once eloped with accused Mohd.Tarikh. He disclaimed any knowledge of the complaint marked D-1.
19. Allah Noor PW-6 denied knowing accused Mohd.Tarikh and denied any knowledge about the crime.
20. This then is the entire evidence led at the trial and needless to state the evidence is extremely sketchy.
21. Convicting appellant Mohd.Tarikh the signature tune of the impugned judgment and order dated 3.3.1999 is the usual song sung by most of the Courts of Session, that a prosecutrix is not an accomplice and the testimony of the prosecutrix does not need corroboration. That no father, in India, would expose his daughter to a false charge of rape.
Crl.A.Nos.130/1999 & 729/2006 Page 8 of 15This we find is the signature tune of the second judgment dated 11.8.2006.
22. We note that at the trial against Mohd.Tulay same witnesses were examined save and except Allah Noor and the witnesses have deposed pari-materia save and except 'N' who has deposed at considerable variance.
23. As noted hereinabove at the trial against Mohd.Tarikh she only deposed of Mohd.Tarikh having enticed her and raped her. But at the second trial she stated that when Ruffi took her to the tea shop a boy named Pappu offered liquor to Ruffi who then made her drink the liquor and that Ruffi and Guddu raped her. She stated that after she was left naked a lady put a shawl on her and that the police took her to the hospital.
24. Various questions arose for consideration and it is unfortunate that neither Trial Judge bothered to even note the same, much less attempt an answer thereto.
25. At the forefront was the question of the truthfulness of Gulam Mohd.'s statement Ex.PW-2/A, which as noted hereinabove is the basis of the FIR against the accused and in which Gulam Mohd. claims that his daughter told him that the two accused persons had raped her.
26. From the testimony of Gulam Mohd. it stands out that in the Court also he stated that when the police officers sought his assistance to identify a girl lying whom they thought to be dead, he reached the spot where the girl was lying and Crl.A.Nos.130/1999 & 729/2006 Page 9 of 15 found her to be unconscious and to his horror the girl was his daughter 'N' whom he took to the hospital where she was found alive as there was some breath in her mouth and that his daughter became conscious after she was given treatment. The MLC Ex.PW-3/A and the testimony of Dr.Vineeta Rastogi the author of the MLC, and the doctor who had examined 'N', clearly brings out that 'N' was nearly dead when she was removed to the hospital and remained unfit to give a statement till 'N' was, against medical advice, taken home by her father. So precarious was 'N's condition that her blood pressure was not recordable and pulse was not palpable. Though reacting to light, her pupils were constricted and she was occasionally responding very feebly to a command. It is writ apparent that 'N' could have told nothing to her father Gulam Mohd. and in turn Gulam Mohd. could not tell anything about who were the tormentors or the tormentor of 'N'. The very origin of the registration of the FIR is shrouded in the gravest suspicion emerging from something which has remained completely mysterious.
27. The only logic which we can find in the statement Ex.PW-2/A is that Allah Noor PW-6 could have possibly made the statement which was recorded by the investigating officer as Allah Noor's statement under Section 161 Cr.P.C. but disclosing the date of it being recorded as 7.11.1996.
28. As per Allah Noor, a statement which he disclaimed at the trial, he saw the appellants leave the room on the rear under his tenancy and soon thereafter he saw a young girl Crl.A.Nos.130/1999 & 729/2006 Page 10 of 15 aged 7 - 8 years lying smeared in blood and thus he informed the police. As per said statement of Allah Noor he had gone out for some work and saw as aforesaid when he returned. The Investigating Officer has admitted that Allah Noor was an accused in a rape case. Ghulam Mohd. father of 'N' admitted that the photograph Ex.PW-2/DA was that of his elder daughter and appellant Mohd.Tarikh. The Investigating Officer stated that he had no knowledge about the complaint marked D-1, which we note has been got lodged by appellant Mohd.Tarikh on 3.11.1996, apprehending a false implication at the hand of Ghulam Mohd. stating that this was on account of `16,000/- which he was demanding from Ghulam Mohd.
29. A question would arise and certainly needed to be posed and answered, being, whether Allah Noor did the offending act and knowing the acrimony between appellant Mohd.Tarikh and Ghulam Mohd. falsely told Ghulam Mohd. that the appellants who are close friends, were the culprits and Ghulam Mohd. put those words in the mouth of his daughter by telling the police that his daughter told him so?
30. Certainly, the question arises and needs to be answered for the reason evidence takes probability to the level of near conclusive proof that 'N' was unconscious, lying nearly dead, when Ghulam Mohd. accessed her after she was brutally subjected to a sexual assault and she continued to remain unconscious till Ghulam Mohd.'s statement Ex.PW-2/A was recorded. Thus, it is apparent that in said statement, Ghulam Mohd. falsely stated that his daughter 'N' disclosed the names Crl.A.Nos.130/1999 & 729/2006 Page 11 of 15 of the persons who raped her. If the source of information claimed by Ghulam Mohd. as the source is incorrect, it is apparent that either Ghulam Mohd. cooked up the story or said so on being fed the fact by somebody else and the greater probability rests that Allah Noor was that somebody else.
31. Another question arises for consideration and certainly needed to be posed. Admittedly, the place where 'N' was subject to a brutal sexual assault was a room out of the 2 rooms taken on rent by Allah Noor. The question would be:
Was it reasonable to be believed that Allah Noor who ran a tea shop from the room in the front left his workplace and his residence unlocked? The site plan Ex.PW-5/C shows access to the front room on to the 20' road through a door and the room at the rear inter-connected with the said room through another door. There is no other entry into the premises taken on rent by Allah Noor. The place where body of 'N' was found has been marked 'A' in the room at the rear. To run a tea-stall, Allah Noor required a stove on which he would brew tea as also utensils to serve tea; which would be cups and glasses. He needed containers to store sugar and tea. He needed vessels to keep milk and brew tea. Running a tea-stall, expectantly, he would be selling biscuits, buns, bread rusks, cream-rolls etc. i.e. the usual snack items sold at tea-shops. If not more, these would have cost Allah Noor, say about a thousand rupees, and it is unexplainable that Allah Noor would leave his workplace and his residence open to be accessed by all and sundry. Surely, he must have possessed some clothing items and other personal belongings in his living room.Crl.A.Nos.130/1999 & 729/2006 Page 12 of 15
32. There is thus plethora of evidence and circumstances as also presumptions based on human conduct which required the afore-noted question to be posed and answered, and unfortunately both the learned Trial Judges have ignored the same.
33. Pertaining to accused Mohd.Tulay, the learned Trial Judge who has penned the decision dated 8.8.2006 was certainly obliged to consider the vast improvements made by 'N' vis-à-vis her earlier deposition at the trial against Mohd.Tarikh pertaining to the role of accused Mohd.Tulay and which improvements we have already noted herein above.
34. It is apparent that Ex.PW-2/A is a statement which stands totally demolished and no credence can be given to the testimony of Ghulam Mohd. the author thereof. This clouds the very origin of the case. The accused would be entitled to the benefit thereof.
35. No doubt a prosecutrix is not an accomplice and her testimony does not require corroboration, but the same is subject to the testimony inspiring confidence and there being no possibility of tutoring and especially when the victim is a child.
36. That Ghulam Mohd. had put something in the mouth of the prosecutrix when he made the statement Ex.PW-2/A at a time when the prosecutrix was unconscious and being picked up unconscious, having just no occasion to tell anything to her father, and in the said statement Ghulam Mohd. naming the Crl.A.Nos.130/1999 & 729/2006 Page 13 of 15 appellants as the accused coupled with Ghulam Mohd. having a motive to falsely implicate the appellants or there being a possibility that Allah Noor took advantage of this animosity and fed him false information, and having so falsely stated something to the police; Ghulam Mohd. tutoring his daughter to sing a song in harmony with him cannot be ruled out. After all, 'N' was of an impressionable age and would be susceptible to be tutored by her father.
37. Since both learned Trial Judges have ignored as afore-noted by us and have overlooked very vital and relevant evidence and circumstances, we are constrained to hold that a fairly shoddy job has been done by the learned Trial Judges whose opinions give us an impression of nursery rhymes being recited by rote and without an understanding. The principle of law of a prosecutrix not being an accomplice and hence her testimony not requiring corroboration and the opinions by Judges that in the Indian society no father would expose his daughter to a false charge of rape have been applied as young children recite nursery rhymes.
38. Sh.Pawan Sharma, learned Standing Counsel (Criminal) urges against appellant Mohd.Tulay that his act of absconding shows his guilt.
39. We put the converse. Appellant Mohd.Tarikh was arrested the next day from his house and can it be argued that if there was credible evidence against him, his act of not absconding proved his innocence? The answer would be 'No'; for conduct, though admissible, is weak evidence because of Crl.A.Nos.130/1999 & 729/2006 Page 14 of 15 the reason based on conduct presumptions are drawn of guilt or otherwise and presumptive evidence by its very nature is weak evidence. Inasmuch as people flee from justice being guilty of an offence, many flee out of fear of false implication. Similarly, a crafty criminal may feel so confident of having left no trace of himself at the scene of the crime that he is found cocooned in the comforts of his house and merely because soon after the crime or the day next he is found relaxing in his house would be no circumstance of innocence.
40. The appeals are allowed. Impugned judgment and order dated 3.3.1999 convicting appellant Mohd.Tarikh is set aside and he is acquitted of the charge of having raped 'N'. Sentence imposed vide order dated 4.3.1999 is quashed. The impugned judgment and order dated 8.8.2006 convicting appellant Mohd.Tulay is set aside and he is acquitted of the charge of having raped 'N'. Sentence imposed vide order dated 11.8.2006 is quashed. Both are acquitted of the charge framed against them.
41. Since both appellants are on bail pending hearing of the appeals filed by them we discharge the bail bond and surety bonds furnished by them.
(PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE May 18, 2011/mm/dk Crl.A.Nos.130/1999 & 729/2006 Page 15 of 15