Delhi District Court
State vs . Mohd. Aakil @ Horn. 1/14 on 4 October, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 129/2019
State V 1. Mohd. Aakil @ Horn s/o. Mohd.
Qadir,R/o. 6446, Gali Ishwari
Parshad Bara Hindu Rao, Delhi.
2. Smt. Santosh w/o Sh. Om
Prakash, R/o. 9562/25, Gaushala,
Baradari, Kishanganj,
Delhi110005.
FIR No. 252/2018
U/s 354/354A/376/506/509/34 IPC
Police Station DBG Road
Assigned to Sessions 05.02.2019
Charges framed on 12.04.2019
Arguments heard on 03.10.2019
Judgment pronounced on 04.10.2019
Decision Acquitted.
Appearance : Sh. Ateeq Ahmad, ld. Addl. PP for the State.
Sh. Z.A. Saifi, ld. Counsel for accused.
JUDGMENT:
1. That, the case of the prosecution is that, the Station House Officer of Police Station DBG Road had filed a chargesheet before the court of Ld. Metropolitan Magistrate vide FIR No.252/2018 dated 16.10.2018 u/s. 354/354A/376/506/509/34 IPC for the prosecution of accused Mohd. Aakil @ Horn and Smt. Santosh and after compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 1/14 Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Hon'ble Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name and identity of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, in this case, criminal law was set into motion on the Typed Complaint of prosecutrix dated 10.10.2018 and FIR No. 252/2018 u/s.
354/354A/376/506/ 509 IPC was registered. In her Typed Complaint, prosecutrix alleged that her mother Santosh is in livein relationship with the accused Mohd. Aakil @ Horn for the last 12 months and her mother Santosh live with the accused Mohd. Aakil @ Horn as concubine (rakhail) in their house.
3. It is also alleged in the said Typed Complaint made by the prosecutrix to the police that accused Aakil @ Horn used to touch her private part in the absence of her father and brother but in the presence of her mother. It is also alleged that the accused Mohd. Aakil @ Horn used to press her breased by uttering words "TU TO JAWAN HO GAYI HAI EK BAAR MERE SAATH SHARIRIK SAMBANDH BANA LE TUJHE KHUSH KAR DUNGA, SANTOSH MAI WOH BAAT NAHI JOH TERI CHADTI JAWANI MAI HAI, TU BHOOL JAYEGI AURO KO". The prosecutrix ignored him 23 times but her mother Santosh started saying to the prosecutrix that "KAR LENE DE BANA LENE DE SHARIRIK SAMBANDH ISS MAIRE YAAR SE". Accused Mohd. Aakil used to pressed her breast even in the presence of Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 2/14 her mother Santosh and when the prosecutrix used to complaint to her mother Santosh against accused Mohd. Aakil, she used to only laugh.
4. It is also alleged that the accused Mohd. Aakil @ Horn used to kiss her on her chick forcibly and also caressed her on chicks and used to catch string of her salwar and used to say "TOD DU" and he also used to caressed her hips and also pressed the same.
5. It is also alleged that on dtd. 22.08.2018, in the night of Bakra Eid, the prosecutrix was sleeping with her mother Santosh on bed and accused Mohd. Aakil @ Horn was sleeping with the elder brother of the prosecutrix on the upper floor and at about 12:00/12:30 night accused Mohd. Aakil @ Horn came down stairs and caressed on the body of the prosecutrix and broke the string of her salwar and established forceful physical relation with the prosecutrix. The prosecutrix made woke up her mother Santosh but her mother Santosh caught hold the prosecutrix with her both arms and accused Mohd. Aakil @ Horn gagged her mouth and established forceful physical relation with her and her mother Santosh stated to her "KAR LENE DE TERI GARMI NIKAL JAYEGI".
6. That, the prosecutrix did not disclose the abovesaid act of the accused to anyone due to sake of her honour but on dtd. 03.10.2018, when the accused Mohd. Aakil @ Horn pressed her breast by force and rubbed her and accused Mohd. Aakil @ Horn gave kick blow on her abdomen and due to which she suffered a lot of pain and she made a 100 number call to the police but the police did not take any action against the accused and thereafter, she made a Typed Complaint against the accused upon which the present FIR was got Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 3/14 registered and the prosecutrix was medically examined on dtd. 16.10.2018, site plan was prepared by the I.O. and the statement of the prosecutrix was got recorded by Ld. MM u/s 164 Cr.P.C.
7. That, on dtd. 26.10.2018, I.O. arrested the accused and got him medically examined from LHMC vide MLC Ex.PW8/A. Investigation was carried out and chargesheet was filed against the accused.
CHARGE:
8. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, this court vide order dated 12.04.2019 framed charges against the accused Mohd. Aakil @ Horn u/s. 354/354A/509/376/506 IPC, and framed charges against the accused Smt. Santosh u/s 376/34/509/506 IPC to which both the accused persons pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
9. That, in order to prove its case, prosecution has examined 08 witnesses including PW1 Prosecutrix 'A', PW2 HC Rajender Kumar, PW3 Dr. Kavita, PW4 W/Ct. Manjeet Kaur, PW5 SI H. Wormichon, PW6 Dr. Varun Kumar Katiyar, PW7 Ms. 'R' and PW8 Dr. Junaid.
PWs Name of the Nature of the Documents proved
Witness witness
PW1 Prosecutrix Victim/ Prosecutrix being victim of the
Complainant alleged sexual assault has testified about the incident and has testified about her complaint given to the police which is Ex.PW2/A as well Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 4/14 as made her statement u/s 164 CrPC before Ld MM Ex.PW2/B. She has proved her MLC vide Mark A. This witness was declared hostile by ld. Addl. PP for the State and even after her cross examination by ld. Addl. PP for the State, she has not supported the case of prosecution.
PW2 HC Rajender Police witness This witness has proved copy of Kumar FIR vide Ex.PW2/A. He has also issued certificate u/s 65 B of Indian Evidence Act regarding correctness of the contents of FIR vide Ex.PW2/C. PW3 Dr. Kavita Medical This witness has proved MLC of Witness prosecutrix vide Ex.PW3/A. She deposed that UPT was found negative and internal examination of prosecutrix was done and during examination, the hymen of the prosecutrix was found 'old torn'.
PW4 W/Ct. Manjeet Police witness This witness has taken the Kaur prosecutrix to Lady Hardinge Medical College for her medical examination and got her medically examined vide MLC No.558/18.
PW5 SI H. Wormichon Police witness This witness is the investigating officer. She has deposed on the lines of investigation.
She has proved complaint of prosecutrix vide Ex.PW1/A. This witness has taken the prosecutrix to LHMC Hospital and got her medically examined vide Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 5/14 MLC Ex.PW3/A and after medical examination the concerned doctor handed over her one sealed parcel of sexual assault evidence collection kit as marked P1 duly sealed with the seal of 'LHMC SMT. SSKH OSC NO1' and sample seal and she seized the same vide seizure memo Ex.PW5/A. She collected the MLC of the prosecutrix and she made her endorsement Ex.PW5/B. During the course of investigation, she inspected the place of occurrence and prepared site plan Ex.PW5/C. This witness has got recorded the statement of prosecutrix u/s 164 Cr.P.C. from Ld. MM.
During the curse of investigation, this witness has arrested the accused vide arrest memo Ex.PW5/D and conducted his personal search vide personal search memo Ex.PW5/E. She got recorded the disclosure statement of accused vide Ex.PW5/F and got the accused medically examined vide MLC mark 'A' and concerned doctor had taken blood sample of accused on her request and the same was handed over to her in sealed pullanda duly sealed with the seal of 'CMO LHMC & SSK Hospital, New Delhi' along with sample seal and she seized the same vide seizure memo Ex.PW5/G. Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 6/14 During the course of investigation, on 29.10.2018, she got the potency test of accused conducted at RML Hospital vide MLC No.E/259997/ 18 mark 'B'.
During the investigation, she collected previous conviction/ involvement report against the accused Md. Akil vide Ex.PW5/H. During the investigation, on 17.11.2018, she obtained NBWs against accused Santosh but she was absconding. Thereafter, on 27.11.2018, process u/s 82/83 Cr.P.C. against accused Smt. Santosh was issued by Hon'ble Court. She got the abovesaid exhibits deposited in the FSL through Ct. Ramesh. Thereafter, she prepared chargesheet and filed the same in the court.
PW6 Dr. Varun Kumar Medical This witness has conducted Katiyar witness potency test examination of accused vide MLC Ex.PW6/A. PW7 Ms. 'R' Public witness This witness is the elder sister of prosecutrix. She deposed that she does not remember the exact date and month, however in the year 2018, about 1011 months back, she along with her younger sister prosecutrix 'A' had come to Tis Hazari Courts, Delhi, where her sister prosecutrix 'A' had given her statement to the Ld. MM voluntarily without any threat, force, pressure, coercion or undue influence.
Case No.129/2019State Vs. Mohd. Aakil @ Horn. 7/14 PW8 Dr. Junaid Medical This witness has conducted the Witness medical examination of accused vide MLC Ex.PW8/A and deposed that he did not find any fresh external injuries on his person.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
10. Since the prosecutrix in this case has not supported the prosecution case and has changed her statement. There is no other independent material evidence on record. Hence, it would be futile exercise to examine other witnesses cited by the prosecution in the list of witnesses in the chargesheet. Therefore, P.E. stands closed. Since no material incriminating evidence has come on record against the accused. Hence, S.A. u/s 313 Cr.P.C. is also dispensed with.
ARGUMENTS:
11. Ld. counsel for accused argued and submitted that prosecutrix has not supported her statement made to the police as well as before the Ld. MM and make a submission that accused may kindly be acquitted in this case FIR.
12. Per Contra, Ld. Addl. PP for the State has submitted that the statement of the prosecutrix made to the police as well as to the Ld. MM when her statement u/s 164 Cr.P.C. was recorded and these both statements are corroborative and make a submission that accused is liable to be convicted.
PERUSAL OF RECORD:
13. Arguments heard. Record perused. On perusal of record, it is revealed that on the typed complaint of prosecutrix Ex.PW1/A, present FIR was Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 8/14 registered against the accused persons.
14. Before reaching at any conclusion, let the relevant sections i.e. 354/354A/509/376/506/34 IPC be reproduced, which is as under: Section 354 IPC:
Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, (shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.) Section 354A IPC:
Sexual harassment and punishment for sexual harassment (1) A man committing any of the following acts (I) Physical contact and advances involving unwelcome and explicit sexual overtures;or (II) a demand or request for sexual favours, or (III) showing pornography against the will of a woman; or (IV) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of subsection (1) shall be punished with rigorous imprisonment for a torn which may extend to three years, or with fine, or with both.
Any man who commits the offence specified in clause (iv) of sub section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 509 IPC:
Word, gesture or act intented to insult the modesty of a woman Whenever, intending to insult the modesty or any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.] Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 9/14 subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 10/14 children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 34 IPC:
Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
FINDINGS OF THIS COURT:
15. Having heard the arguments advanced by Ld. counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence, this court is of the considered view that the FIR was registered on the Typed Complaint made by the prosecutrix to the police and in the said Typed Complaint, the prosecutrix has alleged that with the help of her mother namely Santosh, accused Mohd. Aakil @ Horn (who used to resides in their house) had established forceful physical relation with the prosecutrix and some of the time, accused Mohd. Aakil @ Horn used to press her breast in the presence of her mother Smt. Santosh and on the said Typed Complaint, the FIR was registered against the accused Mohd. Aakil @ Horn and against her mother Smt. Santosh and after registration of the FIR, the I.O. of this case produced the prosecutrix before the Ld. MM for recording her statement u/s 164 Cr.P.C. and in her said statement, got recorded by ld. MM she has stated Case No.129/2019 State Vs. Mohd. Aakil @ Horn. 11/14 that because of some altercation with her mother and because of some anger she made a complaint against accused Mohd. Aakil @ Horn and the accused Mohd. Aakil @ Horn did not commit any wrong with her and she wants to close her case.
16. It is worth mentioning that after framing the charge against the accused Mohd. Aakil @ Horn as well as Smt. Santosh, mother of the prosecutrix, the prosecutrix was summoned by this court to depose against both the accused persons and to support her case. When the prosecutrix appeared in the court, and when she asked to depose in this case and she has deposed that she used to love one Mehraj and she requested her mother to get her married with Mehraj, but she refused and thereafter, hot conversation between her and her mother had taken place at their house and thereafter, she requested her advocate in Tis Hazari Court to prepare her complaint and thereafter, her advocate prepare her complaint but she was not aware as to what was written in her complaint and she signed the same and also put her thumb impression on the said complaint Ex.PW1/A bearing her signature at point A and thumb impression at point B.
17. The prosecutrix has also stated in her testimony that "Accused Akil did not commit any wrong act with me, nor my mother did any wrong doing with me." On this testimony of the prosecutrix, and on request of Ld. Addl. PP for the State, the prosecutrix was turned hostile and even after cross examination by Ld. Addl. PP for the State, the prosecutrix has not supported the averments made by her in her Typed Complaint made to the police, upon which the FIR was registered against the accused persons.
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18. The prosecutrix has admitted in the cross examination carried out by ld.
Addl. PP fort the State that her statement u/s 164 Cr.P.C. Ex.PW1/B was recorded by ld. MM and in the said statement she did not made any allegation against any of the accused and she made a complaint against both the accused in anger.
19. That, the other witnesses examined by the prosecution are immaterial on the ground that the prosecutrix, who is the star witness of this case has turned hostile and has not supported her case in any manner against any of the accused.
20. Since the prosecutrix has not supported the case of prosecution in any manner against the accused persons and the prosecution has not been able to prove its case against the accused persons beyond all reasonable doubt and therefore, this court has no option except to acquit the accused persons. Therefore, in view of the aforesaid, accused Mohd. Aakil @ Horn is acquitted from the charges u/s.354/354A/509/376/506 IPC and accused Smt. Santosh is acquitted from the charges u/s 376/34 IPC and 509/506 IPC.
21. In terms of section 437 A Cr. P.C., both accused persons namely Mohd.
Aakil @ Horn and Smt. Santosh are directed to execute bail bond in sum of Rs.25,000/ each with one surety each in the like amount.
22. Since prosecutrix has turned hostile and because of resiling of her statement, the prosecution has not been able to prove the guilt of the accused persons beyond all reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
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23. Every page of this judgment is signed by me.
24. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 04.10.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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