Delhi District Court
State vs . Shahbuddin on 9 May, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE03, NORTH
EAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
F.I.R. No. : 227/2011
Police Station: Khajuri Khas
State Vs. Shahbuddin
U/S 377/511 IPC
(a) Case ID number/CR No. : 462408/2015
(b) Date of commission of the : 29.07.2011
offence
(c) The name of the complainant : Sh. Mohd. Ibrahim S/o
Mohd. Farukh Ahmad, R/o
C1/128, Nehru Vihar,
Delhi.
(d) The name of the accused, : Shahbuddin S/o Fool
parentage and residence Hasan, R/o H.No. C
1/128, Nehru Vihar, Delhi
110094 and Village
Manorva, PS Bithan
Bazar, Shamstipur, Bihar.
(e) Charge framed : Under Section 377/511
IPC
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquittal.
FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 1 of 11
(h) The date of such order : 09.05.2022
(i) State represented by : Sh. Jamshed Ansari, Ld.
APP for State.
(j) Accused represented by : Sh. Parmanand Jaint, Ld.
LAC for accused.
Challan was filed on: 24.10.2011
Final arguments were heard on: 09.05.2022
Judgment is announced on: 09.05.2022
JUDGMENT
FACTUAL BACKGROUND
1. The accused namely Shahbuddin here in this case was chargesheeted for the offence punishable under section 377/511 IPC with the allegations that the accused Shahbuddin attempted to commit carnal intercourse with the victim who was 7 years old at the time of alleged crime. However, as POCSO Act came into force on 14.11.2012, and as the alleged crime relates to July, 2011, FIR was registered under the provisions contained in Indian Penal Code.
2. The case of the prosecution is that on 29.07.11 at about 9:30 PM at C1/128, Nehru Vihar, Delhi 94, within jurisdiction of PS Khajoori Khas, the accused Shahbuddin was found in a position FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 2 of 11 to commit carnal intercourse which is against the order of nature with Md. Kasaan (son of complainant Md. Ibrahim). Therefore, the present FIR was registered for the offences punishable under Section 377/511 IPC.
3. Upon completion of investigation, chargesheet under Section 173 of Cr.PC was filed on behalf of Investigating Officer and the accused was consequently summoned. As per the chargesheet, the accused was stated to have committed the offence under Section 377/511 IPC.
PROCEEDINGS BEFORE COURT
4. The accused was called upon to enter trial and after his appearance, the copy of the relevant documents were furnished to the accused. Upon hearing both sides and on perusal of the case record, the charge was framed u/s 377/511 IPC and particulars of offence under section 377/511 IPC was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
PROSECUTION EVDIENCE
5. PW1 ASI Shanti Lal is the police witness who deposed that on 30.07.2011, he was posted at PS Khajoori Khas as DO from 1:00 AM to 9:00 AM. At about 3:15 AM, Ct. Ashwani came to PS FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 3 of 11 and sent by SI Yogesh handed over rukka to him. He made endorsement on rukka Ex PW1/A and got recorded FIR registered. Computer generated copy of which is on court record which is Ex. PW1/B. After registration of FIR, he handed over computer generated copy of FIR and original rukka to Ct. Ashwani to be handed over the same to SI Yogesh for investigation.
6. PW2 Mohd. Ibrahim is the complainant in the present matter who has not supported the case of prosecution and had turned hostile during examination. He stated that he did not remember the date of incident. He further deposed that police had called him at the PS and asked to sign some papers. He further deposed that his wife informed him that one person tried to tie hands of their son and in the meantime she reached there i.e. C 1/128, Nehru Vihar, Delhi92 and accused fled away from the spot. He further deposed that his wife did not know who was the person who tried to tie hands of her son.
Ld. APP for State sought permission to cross examination the witness. In his crossexamination, the witness deposed that it is correct that incident took place on 29.07.11 at about 99:30 PM, however, he denied the suggestions that he was present in his house. He further deposed that accused resides on the ground floor in their property.
FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 4 of 11 The witness was confronted with the statement given to the police, however, he denied making any such statement to the police.
7. PW3 Md. Kasan (victim) has also not supported the case of the prosecution and had turned hostile during the examination.
Ld. APP for State sought permission to cross examination the witness. In his crossexamination, the witness deposed that in the year 2011 he was residing along with his family at C1/128, Nehru Vihar, Delhi94. The witness denied the suggestions that he used to visit house of the accused to play game on mobile phone. He further denied the suggestions that on 29.07.2011 at about 09:0009:30 PM, accused Shahbuddin had called him in his house and closed his door from the inside of the house and put off his clothes and clothes of witness/victim and when witness/victim started crying, accused closed his mouth and started laying upon him and in the meantime his father had come from inside the room and had beaten the accused. The witness/victim further denied the suggestions that police had taken him to the hospital where he was medically examined. He further denied the suggestions that accused Shahbuddin was the same person who had tried to commit carnal intercourse with him on 29.07.2011 FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 5 of 11 The witness was confronted with his statement u/s 161 Cr.PC and Section 164 Cr.PC to which the witness replied that he had not made any such statement and does not recall the same due to lapse of time.
In his crossexamination by learned Legal Aid Counsel for accused, the witness deposed that the accused had not tried to commit any carnal intercourse with him.
8. PW4 SI Yogesh is the police witness, who deposed that on 29.07.2011, he was posted at PS Khajuri Khas as Sl. On that day, he was assigned PCR call vide DD No. 54B regarding sexual assault. On receiving the call he along with Ct. Ashvini reached at the spot i.e. C 1/128, Nehru Vihar, Delhi. Inquiry on the spot revealed that PCR van took the complainant and victim to the hospital and accused to the PS Khajuri Khas. Thereafter, he visited at GTB Hospital and collected the MLC of victim and sample of medical examination was seized. He recorded statement of Mohd. Ibrahim/complainant. He futher deposed that he prepared rukka Ex. PW4/A and handed over the same to Ct. Ashvini for registration of FIR. Thereafter, he had taken the complainant and victim to the spot. He prepared site plan at the instance of complainant Ex.PW4/B. Ct. Ashvini arrived at the spot and handed over the original tehrir and copy of FIR to him. Thereafter, he along with complainant and Ct. Ashvini came to PS. Sample was FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 6 of 11 deposited in the Malkhana. He arrested the accused at the instance of complainant and personal search of accused was also carried out. He recorded the disclosure statement of the accused and accused was taken to the hospital for medical examination. He also recorded supplementary statement of the complainant, statement of victim and Ct. Ashvini. On 04.08.2011, the statement of victim was recorded u/s 164 Cr.PC. The accused was correctly identified in the court by the witness.
The witness was crossexamined by learned Legal Aid Counsel for accused at length and during the crossexamination the witness stated that he recorded statement of complainant in his handwriting. He denied the suggestions that no incident had taken place and no complaint was made to him or that had not visited the place of incident or the hospital or that all the proceedings were conduced while sitting in the PS.
9. The witnesses mentioned at serial No. 5, 6 and 7 were admitted by accused u/s 294 Cr.PC and the said witnesses were accordingly dropped being admitted. After completion of examination of complainant and victim and upon their turning hostile, the remaining witnesses (being only formal witnesses) were dropped and PE was closed.
FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 7 of 11
10. The statement of accused was recorded u/s 313 Cr.PC in which the accused has stated that he has been falsely implicated by police. However, the accused did not lead defence evidence.
11. I have heard the final arguments advanced by learned defence counsel as well as Ld. APP for State and meticulously perused the record.
DECISION & REASONS
12. It is cardinal principle of criminal law that an accused is presumed innocent until he is held guilty by a Court of competent jurisdiction. The onus to prove the case against the accused lies upon the prosecution which has to prove its case beyond reasonable doubt.
13. The material or the star witness i.e. the complainant namely Mohd. Ibrahim at whose instance the present case FIR No. 227/2011, PS Khajuri Khas was registered and PW3 Kasan (Victim) had turned hostile and have not supported the prosecution. During their crossexamination by Ld. APP for State, they flatly denied that they made any statement to the police during investigation of this case and PW2 (complainant) stated that his signatures were taken on blank papers.
FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 8 of 11
14. The allegations against the accused are that he attempted to do carnal intercourse against the victim. In the statement u/s 164 Cr.PC of the victim, the victim stated that the accused was about to remove his underwear and at that time his father had come.
It is settled proposition of law that statement u/s 164 Cr.PC is not a substantive piece of evidence (except for the cases covered under Section 164(5A)(b) Cr.P.C. unless the same is stated again by the maker during trial. It is pertinent to note that the victim/PW3 in his examination in chief stated that he does not recall his statement given u/s 164 Cr.PC. The witness/victim had rather stated that he had not seen the accused at any time before prior to the date of deposition.
In his crossexamination, the witness stated that accused had not tried to commit carnal intercourse /with him.
15. The complainant at whose instance the wheels of criminal justice system were set in motion denied the fact that he had given the push to the wheel. PW2 stated that his signatures were taken by police officials on blank papers and rather he was told by his wife that someone had attempted to tie the hands of their son and whom she did not know. A twisted story was sought to be placed by this witness. The wife of the complainant was never made a witness during the investigation. The complainant denied FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 9 of 11 the fact that he apprehended the accused or that accused was arrested at his instance.
16. To secure conviction, it was incumbent for the prosecution that victim & complainant remained consistent with their previous statements. However, in view of complainant and victim having turned hostile, it can be held that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt.
17. It has been observed by the Hon'ble Punjab & Haryana High Court in a case of "Sadhu Singh Vs. State of Punjab 1997(3) Crime 55" as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
18. In the instant case, complainant/main witness PW2 Mohd. Ibrahim and PW3 (victim) Kasan for the prosecution had not supported the case of prosecution and have resiled from their statements u/s 161 Cr.P.C and there is no other eyewitness or FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 10 of 11 material witness cited by prosecution. Thus, there is nothing on record to prove the charges u/s 377/511 of IPC against accused. The prosecution has failed to prove its case even remotely against the accused in view of little incriminating evidence brought on record by it. Accordingly, the accused Shahbuddin is acquitted of the charge framed for the offence punishable u/s 377/511 IPC of IPC.
Now, file be consigned to Record Room.
Announced in the open court Digitally signed
by NITISH
on 09.05.2022
NITISH Location: Delhi
Date:
2022.05.09
17:10:16 +0530
(Nitish Kumar Sharma)
Metropolitan Magistrate03,
NorthEast, Karkardooma Courts, Delhi
FIR No. 227/2011 State Vs. Shahbuddin PS: Khajuri Khas Page no. 11 of 11