Delhi District Court
State vs . Suman @ Mohd. Hasan Page No. 1/25 on 29 August, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SOUTH EAST, SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0170922015
SC No. : 102/15 (old) & 2259/16 (new)
FIR No. : 133/15
U/s. : 452/365/307/506/376 IPC
PS : New Friends Colony, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Suman @ Mohd. Hasan
S/o Shri Mohd. Abdul
R/o Jhuggi no. S46/113,
Pahari No.2, Taimoor Nagar, New Delhi .........................Accused
Date of Institution : 29.06.2015
Judgment reserved for orders on : 31.07.2017
Date of pronouncement : 29.08.2017
J U D G M E N T
Facts:
1. On 05.04.2015 at 2:04 a.m., an information was received at the police station New Friends Colony, New Delhi about kidnapping of a lady from jhuggi no. 365, Taimur Nagar and taking her towards the jungle. SI Janak Singh and Ct. Mahender reached Pahari no. 2, Taimur Nagar and saw a gathering of many persons. Prem Pal, husband of the lady produced the accused Suman. Injured / prosecutrix (name withheld to protect her identity) i.e. the wife of Prempal was also there. Her clothes were FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 1/25 disturbed. The prosecutrix was sent to the hospital. SI Janak went to AIIMS and collected her MLC. The doctor declared her unfit for statement. Statement of Prem Pal was recorded inter alia as under: He lives on the first floor of Jhuggi no. 68, Pahari No. 2, Taimur Nagar. On the night intervening 04/05.04.2015, he was sleeping with his wife, son and daughter. At about 1:30 a.m., he heard a sound of knocking at the door. He opened the door. The accused, who lives in a nearby jhuggi, forcibly entered his house. He took out a knife from his pocket and threatened, him. He started abusing and beating him. He threatened if he would raise alarm, he would stab him. When his wife / prosecutrix intervened, accused started beating her. He pushed her and made her fall in the gali. Due to fear, he (Prem Pal) ran away from there to save his life. After sometime, he woke up his neighbour. He came back in his jhuggi with Basanti, Hasina and other neighbours but did not find his wife there. He searched for her. After sometime, he found his wife unconscious in the godown of Siraj at some distance from his jhuggi. She was naked. By her side, Suman was lying naked. His wife had injuries on her head and other parts of the body. He alleged that the accused forcibly entered his jhuggi at night, threatened them with the knife, beat them, made his wife fall on the ground and committed wrong with her after kidnapping her.
Investigation:
2. On his statement, the case was registered u/s 452/323/506/365/376 IPC. Investigation was taken up by W/SI Seema. She collected the exhibits of the prosecutrix from the doctor and called the crime team on the spot. She arrested the accused. She got him medically examined qua his potency. His exhibits were collected. SI again went to the hospital on 06.04.2015 to record the statement of the prosecutrix but she was not fit. On 07.04.2015, she was discharged from the hospital. Her statement was recorded on FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 2/25 14.04.2015. She was produced before the Court on 17.04.2015 but since she was not well, her statement could not be recorded. She was got counseled from the NGO on 22.04.2015. On her MLC, the doctor opined the injuries grievous. Section 307 IPC was added. The exhibits were sent to the FSL, Rohini. After the investigation, the accused was sent for the trial for offences punishable u/s 452/365/307/506/376 IPC. Charge:
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 27.05.2016, prima facie case was made out against the accused for the offences punishable u/s 452, 506, 323, 366, 354B and 376/511 IPC. The accused pleaded not guilty and claimed trial. On 05.07.2016, the charge was amended for the offences punishable u/s 452, 506, 325, 366, 354B and 376/511 IPC. Prosecution Evidence:
4. To substantiate its allegations against the accused, prosecution examined as many as sixteen witnesses.
PW1 is the prosecutrix. She stated that she had been living as tenant on the first floor of the house at Taimur Nagar. On 05.04.2015 at about 1:30 a.m., she with her husband and children was sleeping in the house. They heard sound of knocking at the door. When they asked, who was knocking, he replied, that he is the brother of her husband. Her husband opened the door. Accused Suman entered the house. He bolted the door from inside. He was carrying a knife and a revolver. He asked her to remove her clothes. When she refused, he FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 3/25 threatened her husband with the knife. She started shouting. The accused made her fall on the ground. As a result, she became unconscious. Her husband apprehending threats ran away from there. She came in senses in the hospital. She came to know from the people that she was lying naked near nala. People were also telling that the accused was with her and he did wrong with her. She stated that she sustained injuries on her head since the accused had inflicted knife blow on her head. She also sustained fracture in her left hand elbow. She stated that she came in full sense after about two months. She stated that when the police brought her in the Court, she was not in complete sense. After about 15 days, she gave her statement Ex.PW1/B. On being crossexamined, she denied that she was briefed by her counsel. She rather stated that she has deposed whatever happened with her. She stated that a tenant on the ground floor was living at the time of incident, however, she can not tell his name. She stated that her house comprises of one room, there are two windows in the room, one window opens towards the gali and other opens towards the front. The windows are quiet big and they are above her head height. She stated that when she was shouting, she was standing on the table. The accused pushed her from the table, which was 4 feet high. She stated that she does not know the names FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 4/25 of the persons who told her that the accused had taken her to the nala, she was found naked and he was sitting by her side.
She stated that when the accused pushed her on the ground, her husband was in the house. She stated that her husband knew the accused from before. She stated that the jhuggi of the accused was at a distance of 10 / 15 jhuggi from her jhuggi. She stated that the knife with which the accused inflicted on her head was a big knife (medium size). She stated that she was wearing salwar suit at that time. She denied that a quarrel had taken place between her husband and the accused in the evening of that night and at the instance of her husband, she falsely implicated the accused.
PW2 is the husband of the prosecutrix. He stated that the accused came on the first floor on 04 / 05.04.2015 night at about 1:30 a.m. He knocked at the door and disclosed his name Nunki. It was of his elder brother. His wife asked him to open the door to see if his brother has come. When he opened the door, the accused barged inside and switched off the light. He put knife on him and threatened to kill if he would raise his voice. He asked his wife to remove her clothes. He objected. The accused left him and pounced upon his wife. She fell down from the first floor on the ground and sustained injuries on her head. He ran away from there. He raised FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 5/25 hue and cry to wake the neighbours. Public persons called the police. He searched for his wife but she was not found. She was found in a straw godown at Pahari. She was naked. The accused was lying on her naked. He stated that the police apprehended the accused and took his wife in a government hospital. He proved his statement Ex.PW2/A and stated that the accused was arrested vide arrest memo Ex.PW2/B. He showed the police the place of occurrence from where the accused had thrown his wife. He stated that when his statement was recorded, he was under shock and trauma. At the time of incident, there was no tenant on the ground floor in the jhugi. There were two windows in the house at the height above the head. He stated that he had seen the knife with the accused. He stated that he returned to his jhuggi after 1015 minutes. Rajbala Baddan and Hasina were with him. His neighbour told him that the accused had taken away his wife. He denied that he had a quarrel with the accused in the evening prior to the incident, accused never came in his house nor threatened her nor pushed his wife nor took his wife towards nala nor his wife was in naked condition at that time nor he saw the accused lying on his wife naked.
PW3 Dr. Indrajit was the Senior Resident (Medicines) AIIMS. He stated that the prosecutrix came in the hospital at about 3:25 a.m. on 05.04.2015 with a history FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 6/25 of fall from the first floor and sexual assault. He recorded the history and observed six injuries on her person vide MLC Ex.PW3/A. She had grievous injury as she sustained occipital sub dural hemotoma with occipital sub arachnoid hemmorrhage. He referred her for gynae examination. He proved the discharge summary Ex.PW3/B and stated that the prosecutrix was discharged on 07.04.2015 at 4:45 p.,m. He stated that the prosecutrix was not oriented. She was not obeying the command, however, she was conscious.
PW4 HC Raghuraj Singh proved the recording of the FIR Ex. PW4/A. He also proved DD no. 5A dated 05.04.2015 at 2:04 p.m. and DD no. 4B dated 05.04.2015 at 4:34 a.m. Ex.PW4/E. PW5 Dr. Prashasti Srivastava did the medical examination of the prosecutrix. She recorded the history at point B to B on the MLC Ex.PW5/A on the narration of the husband of the prosecutrix. She stated that her hymen was ruptured (old). She took her vaginal smear, vaginal swab and anal swab, preserved, sealed and handed over to the police.
PW6 Jaunesh was the neighbour of the prosecutrix. He stated that he was sleeping in his jhuggi. He heard some noise outside. He came out. Many persons had come out from their houses. In the morning, he came to know that a lady in his neighbourhood was taken away FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 7/25 by some unknown persons. He stated that he does not know who was that woman, what happened to her and who were the persons who had taken her away.
He was declared hostile by the prosecution but nothing favouring the prosecution came from his mouth. PW7 Jeetu was the neighbour of the prosecutrix. He stated that he does not know anything about this case. He was declared hostile by the prosecution. He, however, admitted that police had made inquiry from him regarding the incident.
PW8 Ms. Manisha recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW2/B. PW9 Ct. Ajay Kumar deposited the exhibits in the FSL, Rohini vide RC Ex.PW9/A. He stated that till the exhibits remained with him, they were not tampered with.
PW10 SI Janak Singh stated that on receipt of the DD no. 5A Ex.PW4/D, he with Ct. Mahender went to Pahari No. 2, Taimur Nagar. There, they met Prem Pal, husband of the prosecutrix. They searched for the prosecutrix. They reached at the godown of Siraj. The public persons told him that the accused was lying on the lady and he was naked. The clothes of that lady were also disturbed. They apprehended the accused. He at that time was in underwear. That lady was without clothes. He arranged the clothes for the prosecutrix from the neighbours and FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 8/25 sent her to trauma center where doctor declared her unfit for statement. He recorded the statement of her husband Prem Pal and got the case registered. He also collected the exhibits of the prosecutrix from the doctor and handed over to IO / PW16.
On being crossexamined, he stated that Prem Pal had met him in the gali near jhuggi no. 365. The godown of siraj was at a distance of 150 yards from there. Prem Pal had told him about taking of the prosecutrix towards godown.
PW11 SI Sajjan Kumar was the Incharge Crime Team. He proved the report Ex.PW11/A and stated that on 05.04.2015, he inspected the spot and lifted blood samples from there which he handed over to SI Janak. They then went to a vacant plot where they found a pink colour upper garment of a lady and a yellow T shirt of a man. They also found a salwar of a lady from Jhuggi no. S46. He got the spot photographed and handed over the exhibits to SI Janak. He stated that no chance prints could be lifted from the spot. He stated that many persons were present when he reached the spot. The jhuggi was at a height of 10 - 11 feet from the ground floor. He stated that he collected three exhibits from the ground in front of the jhuggi near the stair case. PW12 Dr. Rajesh Kumar proved the MLC of the accused Ex.PW12/A prepared by Dr. Karthik. He stated FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 9/25 that as per the MLC, there was tenderness over the lower back region of the accused. Tenderness was also present on the back aspect of right thigh and right elbow region. He stated that there was nothing to suggest that the accused was incapable of performing sexual intercourse under normal circumstances.
PW13 Ct. Mahender was with the IO SI Janak during the investigation. He took the rukka to police station and got the case registered. He also took the accused to the hospital and got him medically examined. He stated that at the pointing of the accused, the knife was recovered from the godown. Its sketch Ex.PW13/D was prepared and it was sealed with the seal of DS and seized vide memo Ex.PW13/E. He stated that the crime team also lifted the upper garment of the prosecutrix, Tshirt of the accused, blood and salwar of the prosecutrix vide Ex.PW13/G. One mobile phone make Samsung was also recovered from the pant of the accused.
PW14 Ct. Puneet was the photographer, Mobile Crime Team. He took the photographs of the spot from different angles and proved the negatives Ex.PW14/P1 to Ex.PW14/P13.
PW15 Ms. Imrana, Sr. Scientific Officer (Bio), FSL Rohini proved the FSL report Ex.PW15/A. She stated that no male DNA profile could be generated from the source of Ex.1 and Ex.2 (vaginal slide and swab of FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 10/25 victim) and Ex.10b (salwar of victim). However, male DNA profile generated from the source of Ex.7 (underwear of accused) was similar with DNA profile generated from Ex.4 (blood in gauze of the accused). PW16 SI Seema was the Investigating Officer of the case. She deposed on the lines of the investigation. She sent the exhibits to the FSL and prepared the chargesheet. She identified the shirt Ex.P1, ladies salwar Ex.P2 and Tshirt Ex.P3 and knife Ex.P4. She stated that the height of the window was about 5.5 feet. One small table and a cot were lying in the room. She stated that the complainant was present when the exhibits were lifted from the spot.
Statement of The Accused U/s 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him but admitted that the prosecutrix used to live with her husband and two children on the first floor of the house at Taimur Nagar. He stated that no such incident took place nor he caused any injury to the prosecutrix. A quarrel had taken place between him and the husband of the prosecutrix.
He was under the influence of liquor. PW2 came from his house and asked him why he was making noise. He abused him and a scuffle resulted. He stated that his clothes were removed in the police station and planted on him.
Defence Evidence:
FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 11/25
6. In defence, the accused did not examine any witness. Arguments & Contentions:
7. Ld. counsel for the accused Sh.Fahem Alam vehemently argued that it is a case of false implication of accused. The prosecutrix did not examine Basanti and Hasina who had allegedly come with the husband of the prosecutrix for the search of the prosecutrix. PW6 and PW7 who were the neighbours of the prosecutrix did not support the prosecution case in any manner. They denied having knowledge of the incident. The FSL report does not incriminate the accused. There is no evidence of the kidnapping / abduction of the prosecutrix by the accused from her house. The MLC of the prosecutrix does not show any injury on her head allegedly caused by the sharp object. Ld. Counsel stated that a quarrel had taken place between the husband of the prosecutrix and the accused and her husband got the false case registered against the accused through his wife i.e. the prosecutrix.
8. Ld. Addl. PP Sh. Mohd. Iqrar on the contrary argued that on 05.04.2015, the prosecutrix was sleeping in her jhuggi with her husband and children. At about 1:30 a.m., the accused came at their Jhuggi, knocked at the door pretending that he is the brother of her husband / PW2. He got the door opened. He was carrying a knife. He threatened both of them. He pushed her from the window as a result, she fell down on the ground and sustained head injuries. He took her to a nearby godown where he attempted to commit rape upon her. He was found lying naked on the prosecutrix by the police. The prosecutrix was unconscious at that time. She was removed to the hospital. The doctor opined her injuries grievous. Ld. Addl. PP stated that Basanti and Hasina had come with the husband of FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 12/25 the prosecutrix for her search but she was not found in her house. She was found in the godown of Siraj and the accused was lying on her. For that reason, they were not examined. Ld. Addl. PP stated that PW6 has stated that when he heard noise outside the jhuggi, he came out and saw many persons. In the morning, he came to know that a lady in his neighbourhood was taken away by some unknown person. PW7 has admitted that the police had made inquiry from him. Ld. Addl. PP stated that the testimony of the prosecutrix is consistent and cogent which is corroborated by medical evidence, PW2, her husband and the police officials. FSL report shows the presence of semen on the underwear of the accused. As per the crime team report Ex.PW11/A, Tshirt, lady garment, blood and salwar were seized from the spot. Knife was also recovered at the instance of the accused. Ld. Addl. PP stated that the accused at odd hours, entered the house of the prosecutrix, threatened and beat her and took her to the godown of Siraj where he attempted to commit rape upon her. He also pushed her from the window resulting injuries on her person. Findings :
9. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and gone through the statements of the witnesses and the documents on record.
10. Section 452 IPC provides punishment for house trespass after preparing for hurt, assault or wrongful restraint. House trespass is criminal trespass by entering into a building used as a human dwelling etc.
11. PW1 / prosecutrix has stated that on 05.04.2015 at about 1:30 a.m., she was sleeping with her husband and children on the first floor of her jhuggi at Taimur Nagar. They heard the sound of knocking at the door.
FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 13/25 The person / accused who knocked the door impersonated himself as the brother of her husband. Her husband opened the door and he entered her room. He bolted the door from inside. He was carrying a knife. He asked her to remove her clothes. When she refused, he threatened her husband with the knife. She started shouting. He then pushed her as a result, she fell down on the ground and became unconscious. Her husband apprehending threat ran away from there. She stated that the jhuggi of the accused was at a distance of 10 - 15 jhuggis from her jhuggi. PW2 corroborated her testimony and stated that at about 1:30 a.m., the accused knocked at the door. He disclosed his name Nunki, his brother. He opened the door. The accused barged inside and switched off the light. He put knife on him and threatened to kill him if he would raise voice. He asked his wife to remove her clothes. When he objected, he pounced upon his wife. As a result, she fell down from the first floor on the ground floor and sustained head injuries. He ran away from there to save himself. He also raised hue and cry to wake his neighbours. PW2 has stated that after sometime, he returned at the jhuggi to search for the prosecutrix but she was not found. She was found in the godown at some distance from her jhuggi naked and the accused was lying on her naked. PW10 has stated that when they reached the godown of Siraj, they came to know that the accused was lying on the lady naked and her clothes were disturbed. They apprehended the accused. He at that time was in underwear and the lady was without clothes. PW11 has stated that from the godown, they recovered an upper garment of the lady and a yellow Tshirt of a man. From the jhuggi, they recovered salwar of the prosecutrix. PW13 has stated that at the instance of the accused, knife was recovered.
FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 14/25 From the testimony of the above witnesses, it is clear that the accused on 05.04.2015 at about 1:30 p.m., committed the house trespass in the jhuggi of the prosecutrix at Taimur Nagar carrying a knife with an intention to cause hurt and commit sexual intercourse with her.
12. Now, coming to the offences punishable under section 366, 354B and 376/511 IPC, Section 361 IPC defines kidnapping from lawful guardianship.
Whoever takes or entices any minor under sixteen years of age if a male, or under 18 years if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation. The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception......
13. Abduction in common language means carrying away of a person by fraud or force. According to Section 362 IPC, abduction takes place when a person by force compels, or by any deceitful means induces another person, to go from any place. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in itself but when it is accompanied by a certain intention to commit another offence, it perse becomes punishable as an offence. If the abducted person is a woman and the intention is that she may be compelled, or is likely to be compelled, to marry any person against her will, or may be forced or seduced to illicit intercourse, or is likely to be so forced or seduced, section 366 IPC applies. The offence has the following ingredients: FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 15/25
(i). Kidnapping or abducting any woman;
(ii). Such kidnapping or abducting must :
a. With intent that the woman may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or b. In order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse; or c. By criminal intimidation, or abuse of authority, or by compulsion inducing any woman to go from any place, with the intent that she may be or with knowledge that it is likely that she will be forced or seduced to illicit intercourse with some person.
14. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 16/25 Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
15. Section 354B IPC defines assault or use of criminal force to woman with intent to disrobe. It reads as:
Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
16. Perusal of the testimonies of PW1 and PW2 would show that when the accused entered their house, he was carrying a knife. He asked PW1 to remove her clothes. When she refused, he threatened them with knife. When she was shouting, he pushed her, as a result, she fell down from the window resulting head injuries on her person. PW2 apprehending threats ran away from there. After sometime when he returned at his jhuggi, he did not find the prosecutrix. Police was informed. He made search for the prosecuttrix. She was found in the godown unconscious and naked with accused lying on her. PW11 has stated that on 05.04.2015, he inspected the FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 17/25 godown and the jhuggi and recovered a pink colour upper garment of the prosecutrix and a yellow Tshirt of the accused. They also recovered salwar of the prosecutrix from the jhuggi. He got the spot photographed and handed over to PW10. PW10 has stated that when they apprehended the accused, he was in underwear and the prosecutrix was without clothes. She was unfit for statement. He arranged clothes for the prosecutrix and got her removed to the hospital. PW13 has stated that in his presence, the crime team had seized the upper garment of the prosecutrix, Tshirt of the accused and her salwar vide memo Ex.PW13/G. PW14 had taken the photographs of the spot from different angles. PW16 identified the clothes Ex.P1 to Ex.P3 and the knife Ex.P4.
17. Ld. Counsel for the accused has argued that prosecution did not examine any person who had allegedly seen the accused taking away the prosecutrix from the jhuggi in the godown of Siraj nor the prosecution examined Siraj, the godown owner.
18. Perusal of the testimony of PW2 reveals that when the accused entered the jhuggi, he asked the prosecutrix to remove her clothes. PW11 has stated that salwar of the prosecutrix was recovered from jhuggi. PW2, PW10 and PW13 have stated that when they reached the spot on receipt of call, they searched for the prosecutrix and found her in the godown of Siraj. She was unconscious. The accused was in underwear and the prosecutrix was naked. PW11 has stated that from the godown, top of the prosecutrix and Tshirt of the accused were recovered. PW2 has stated that when the accused pushed the prosecutrix, she fell down on the ground. It is true that there is no direct evidence as to the taking of the prosecutrix from her house to the godown but facts and circumstances go to show that FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 18/25 it was the accused and only the accused who had taken the prosecutrix to the godown from the jhuggi with an intention to commit rape upon her. Testimony of the witnesses show that she was found naked in the godown. The accused was in underwear and lying on the prosecutrix. The FSL report also shows the presence of human semen on the underwear of the accused. The semen was of the accused. Facts and circumstances clearly prove that it was the accused who disrobed the prosecutrix with an intention to commit rape. He also removed his clothes in an attempt to commit rape upon her.
19. As regards rape, in the instant case, no direct evidence came whether the accused had committed sexual intercourse with the prosecutrix. FSL report and MLC do not show the presence of semen in the vagina of the prosecutrix. Further, the accused when apprehended was found in underwear. Although, the prosecutrix was naked but it can not be said with certainty that the accused had committed rape upon her. The facts and circumstances, however, show that he had attempted to commit rape.
20. As regards, PW6 and PW7 not supporting the case of prosecution, testimony of PW6 reveals that he had heard the sound when he was sleeping in his jhuggi. When he came out, he found many persons standing. In the morning, he came to know that a lady from his neighbourhood was taken away by some unknown person. PW7 has stated that police had made inquiry from him about this incident. Since PW6 and PW7 lived in the same place where both prosecutrix and the accused lived, the possibility of their winning over can not be ruled out. In the instant case, information was immediately given to the police about kidnapping of FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 19/25 the prosecutrix from her jhuggi towards the jungle. The prosecutrix was recovered from the godown of Siraj in unconscious state and naked. The accused was apprehended from there and knife was recovered at his instance. The clothes of the prosecutrix and the accused were recovered from the spot. All these facts prove that the accused abducted the prosecutrix from her jhuggi to have illicit intercourse, disrobed her and attempted to commit rape upon her.
21. As regards nonexamination of Siraj, the godown owner, it has come in the testimonies of the witnesses that the prosecutrix was recovered from the godown of Siraj in naked condition and the accused was also lying there. That being the position, his non examination does not prove fatal to the case of the prosecution.
22. Now coming to the offences punishable u/s 325 and 506 IPC, Section 325 provides punishment for voluntary causing grievous hurt to a person with blunt object. Section 506 IPC provides that whoever commits the offence of criminal intimidation shall be punished ..... Criminal intimidation as defined u/s 503 IPC means that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
23. PW1 has stated that when the accused entered their house, he was carrying a knife. He asked her to remove her clothes and when she refused, he threatened them. When she was shouting, he pushed her and made her FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 20/25 fall on the ground. She became unconscious and sustained head injuries. She came into senses in the hospital. There, she came to know that she was found naked near the nala. She has stated that there are two windows in her room, one window opens to the gali and the other towards the front. The windows were quite large and they were above head. She has stated that when she was shouting, she was standing on the table which was of 4 feet height. The accused pushed her from the table. PW2 corroborated her testimony and stated that the accused put the knife on him and threatened him to kill if he would raise voice. He asked his wife to remove her clothes. When he objected, accused left him and pounced upon his wife. She fell down from the first floor on the ground floor and sustained head injuries. PW16 has stated that height of the window was about 5'6" feet. One small table and cot were lying there. PW3 has stated that the prosecutrix was brought in the hospital at about 3:25 a.m. with the history of fall from the first floor and sexual assault. He prepared her MLC Ex.PW3/A and opined the injuries grievous as she sustained occipital sub dural hemotoma with occipital sub arachnoid hemmorrhage. He also proved her discharge summary Ex.PW3/B. In the discharge summary, history of fall from the first floor and sexual assault on 05.04.2015 at 1:30 a.m. was recorded. She was diagnosed head injury due to fall. Her MLC Ex.PW3/A shows that she sustained abrasion on her right forehead, right temporal and maxillary region, laceration on her right FrontoTemporal region 5X0.5 cm, others contusion over the right shoulder acromial process 3X3 cm, abrasion right knee small abrasion 2X1 cm, abrasion right forearm flexor aspect linear abrasion 2 cm, and swelling over the left wrist. Her MLC and medical record show that when the prosecutrix was FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 21/25 brought in the hospital, she was unconscious and unfit for statement. She was discharged on 07.04.2015. PW1 has stated that she also sustained fracture on her left hand elbow and she came in complete sense after about two months. PW1 has stated that she was produced in the Court for her statement but since she was not in complete sense, her statement was not recorded on that day and it was recorded after about 15 days. Her statement Ex.PW8/A shows that it was recorded on 05.05.2015. Prosecution has also examined PW5 who had conducted the gynecological examination of the prosecutrix and recorded the history on the narration of her husband on the MLC Ex.PW5/A. The history recorded on the MLC and the statement recorded u/s 164 Cr.P.C. are consistent with her testimony. I do not find any material contradiction to draw an inference that it is a case of false implication of the accused. Although, the accused has stated that a quarrel had taken place between him and her husband but both PW1 and PW2 have denied it. Further, the accused did not bring any material to substantiate this fact. Accused in statement U/s.313Cr.PC has stated that he was under the influence of liquor but his MLC EXPW16/C is contrary to this fact. As per the MLC, there was no smell of alcohol from him.
24. It was held in State Vs. Gangula Satya Murthy AIR 1997 SC 1588:
1997 Cri LJ 774 (SC) that the courts are expected to show great responsibility while trying an accused on the charge of rape. They must deal with such cases with utmost sensitivity. They must examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
25. It was held in State Vs. Ramdev Singh AIR 2004 SC 1290 that FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 22/25 sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is serious blow to her supreme honour and offends her selfesteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor it leaves behind a traumatic experience, a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted in the case of Bodhisattawa Gautam V Subhra Chakraborty AIR 1996 SCC 922, the entire psychology of a woman and pushes her into deep emotional crises. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life. The courts are, therefore, expected to deal with cases of sexual crime against woman with utmost sensitivity.
26. In State of Punjab v. Gurmit Singh & Ors. 1996 SCC (Crl.) 316, the Apex Court made the following observations:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 23/25 which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
27. In Vijay @ Chinee v. State of Madhya Pradesh, Crl. Appeal No. 660/2008, the Apex court observed as follows:
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.".
The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix, the court must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.
FIR No. : 133/15 PS : New Friends Colony State Vs. Suman @ Mohd. Hasan Page No. 24/25 Conclusion
28. For the aforesaid reasons and in the light of above discussions, I am of the view that prosecution has proved beyond reasonable doubt that the accused, on the night of 04/05.04.2015 at about 1:30 a.m., committed house trespass in the jhuggi, Taimur Nagar having made preparation to cause hurt on the person of the prosecutrix and her husband, criminally intimidated them to kill with the knife and voluntarily caused grievous injuries on the person of the prosecutrix, abducted her from there with an intent to have illicit intercourse with her, took her to the godown of Siraj at Pahari no. 2, Taimur Nagar, assaulted her and used criminal force upon her with an intent to disrobe and disrobed her and also attempted to commit rape on her person. I am of the view that prosecution has successfully proved the guilt of the accused beyond reasonable doubt and brought home all the ingredients of the offences punishable u/s 452, 506, 325, 366, 354B and 376/511 IPC. I hold the accused guilty of the offences punishable punishable under section 452, 506, 325, 366, 354B and 376/511 IPC and convict him thereunder. Let the accused be heard on the quantum of sentence.
Announced in the open
court today i.e. 29.08.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 133/15
PS : New Friends Colony
State Vs. Suman @ Mohd. Hasan Page No. 25/25