Delhi District Court
State vs Jamil Iqbal, on 15 December, 2009
Page 1 S/V Jamil Iqbal
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.91/2004
FIR No.61/2004
Police Station Krishna Nagar
Under Section 384/376/506 IPC
State Versus Jamil Iqbal,
Son of Riyazul Rehman,
R/o 4280, Shanti Mohalla,
RaghuburpuraII,
Gandhi Nagar, Delhi.
JUDGMENT
Accused Jamil Iqbal (in judicial custody) has been sent for trial by the police of PS Krishna Nagar, for the offences punishable under Section 384/376/506 IPC.
2 Briefly stating, the facts of the prosecution case are that on 22.5.2002, a criminal complaint was filed by Smt. Jagwati against accused Jamil Iqbal and his wife, Nazma @ Munni under Section 406/420/384/120B/376/506/508/34 IPC, in Page 2 S/V Jamil Iqbal the court. Smt.Jagwati (PW4) (hereinafter shall be referred as complainant) stated in her complaint, Ex.PW4/A that 45 years ago, her daughter, Poonam (hereinafter shall be referred as the prosecutrix) was suffering from a disease in her foot. The accused Jamil Iqbal came in contact of the complainant (PW4) being a good Tantrik and Hakim/doctor. The accused started coming in the house of the complainant (PW4) for the treatment of the prosecutrix. Accused Jamil Iqbal used to say that he knew Tantra (Kala Jadoo) and also used to say that if any one will not obey his instructions, God will kill him. One day, accused Jamil Iqbal told the complainant (PW4) that the marriage of sister of accused would be solemnized next month and he was in need of money. The accused requested the complainant (PW4) to give him a loan of Rs.one lac for six months. When the complainant (PW4) showed her inability to arrange the amount, the accused suggested to mortgage her house. The complainant (PW4) fell in Page 3 S/V Jamil Iqbal inducement of the accused as she was compelled to believe that if she will not obey the accused, she will be an object of divine displeasure. Due to fear, the complainant (PW4) mortgaged her house, bearing No.6/2, Gali No.10, East Azad Nagar, Delhi 110051 with one Mukesh (PW12) and took Rs.one lac as loan amount. Thereafter, the sum of Rs.one lac was taken by accused Jamil Iqbal.
3 The accused used to visit the house of the complainant (PW4) and used to give some eatables to her son Anil (PW6), due to which he lost the power of thinking and making the decisions. The accused raped the prosecutrix many times after giving her tablets of drugs. Due to fear of "Kala Jadoo", the complainant (PW4) and her family members could not opened their mouths. The accused used to say that if they would tell to anyone, then they would be killed by God. The accused also used to say that if they would tell anyone, then the accused would Page 4 S/V Jamil Iqbal prove the prosecutrix as his wife, as he had some documents and signatures of the family of the complainant (PW4) on blank papers. When the complainant (PW4) raised objection, the accused threatened that he would sell her daughter in Bihar. Mukesh (PW12) started demanding back his loan amount of Rs.one lac and interest, i.e., Rs.1,25,000/. The complainant (PW4) demanded the money from the accused, but he did not return the same. Due to the same, the complainant (PW4) had to sell her house to one Mulakh Raj (PW9) in February, 2002 for a sum of Rs.7,25,000/. Out of Rs.7,25,000/, Mukesh (PW12) deducted Rs.2,25,000/ and gave Rs.five lac to the son of the complainant, namely, Anil Kumar (PW6). On that day, accused gave something to Anil Kumar (PW6) to eat. There was some intoxicant in that eatable and the accused took away Rs.five lac. When the money was demanded from the accused, then he told that he would purchase a good house for them.
Page 5 S/V Jamil Iqbal 4 When the complainant (PW4) and her family
insisted the accused to return the money, then he showed them a double storey house, bearing No.33, East Azad Nagar, Delhi 51, belonging to one Mr.Jain. In the presence of son of the complainant, namely, Anil Kumar (PW6), the accused Jamil Iqbal made a deal of the house of Mr.Jain through one property dealer, namely, Fakir Chand (PW11), for a consideration of Rs.five lac. It was decided that the documents of the house would be executed in favour of Anil Kumar (PW6). The accused got them the possession of the first floor of the said house and the complainant (PW4) along with her family started living there. 5 On 30.3.2002, the accused Jamil Iqbal took Anil Kumar (PW6) to the office of Fakir Chand (PW11) for the execution of the documents. The accused told Anil (PW6) that he had to go to the office of Registrar and assured that he would hand over the documents of the house to him in the evening. In Page 6 S/V Jamil Iqbal the evening of that day, the documents of the house were not handed over by the accused. On 10.4.2002, Fakir Chand (PW11), handed over them the documents and on being read, it came to know that the documents were only for the first floor of the said property, executed in favour of the complainant (PW4). On inquiry, it came to know that accused Jamil Iqbal got executed the documents of ground floor of the said house in favour of his wife, Nazma.
6 On 11.4.2002, when the complainant (PW4) asked the accused to hand over the documents of the ground floor, the accused threatened to kill her and also threatened to forcibly solemnize his marriage with the prosecutrix. The matter was reported to the local police, ACP and the Commissioner of Police. On 12.4.2002, when the accused came to know about the complaints against him, he requested the complainant (PW4) to withdraw the complaint and assured her for the execution of Page 7 S/V Jamil Iqbal documents of the ground floor in their favour. On 15.4.2002, the accused Jamil again requested the complainant (PW4) to withdraw the complaint. When the complainant (PW4) refused the accused, then the accused told that he is ready to execute the documents, but not in favour of son of the complainant (PW4), namely, Anil Kumar (PW6). The accused told that he would execute the documents in favour of the prosecutrix and asked to send the prosecutrix along with him, to which the complainant (PW4) refused.
7 The complainant (PW4) in her another statement Ex.PW4/B, made before the police, stated that she along with her children was residing at house no.33, Gali No.9, East Azad Nagar, Krishna Nagar, Delhi. 45 years ago, her daughter sustained injuries due to fall and was having difficulty while walking. She came to know through some neighbourer that the accused Jamil Iqbal was a Hakim/Tantrik. The son of the Page 8 S/V Jamil Iqbal complainant (PW4), namely, Anil (PW6) brought the accused for the treatment of the prosecutrix. The accused used to take money from them for administering injections and for doing Jadoo Tona. After inducing them, the accused took a sum of Rs.1,00,000/ on the pretext of marriage of his sister. The complainant (PW4) borrowed the money from one Mukesh (PW12) after mortgaging her house bearing no.6/2, Gali No.10, East Azad Nagar, Delhi. The accused refused to pay back the money despite demands by the complainant (PW4). The complainant (PW4) had to sell the house to Mulakh Raj (PW9). Mukesh (PW12) returned Rs.5 lacs after deducting Rs.1,00,000/ as principal amount and Rs.1,25,000/ as interest thereon. Accused used to take the prosecutrix in the room situated on the upper floor of the house for her treatment, by stating that he had to do Jadoo Tona. The accused used to forcibly rape the prosecutrix on the upper floor. The accused used to beat the Page 9 S/V Jamil Iqbal complainant (PW4) and her children and also used to threaten that if they disclose the incident to anybody, then he would kill them with Kala Jadoo. The accused also used to threaten that if they report the matter to the police, then he would sell the prosecutrix in Bihar. The accused got the documents of the ground floor of the aforesaid house executed in favour of his wife Nazma. When the complainant (PW4) made complaint to the police and called the Panchayat, then wife of the accused handed over them the papers pertaining to the ground floor of the aforesaid house and transferred the documents in the name of the complainant (PW4). The copy of agreement to sell of the house no.33, Gali No.9, East Azad Nagar, Delhi is Ex.PW4/C1, copy of will of Smt. Nazma is Ex.PW4/C2, copy of affidavit of Nazma is Ex.PW4/C3, copy of receipt is Ex.PW4/C4, copy of possession letter is Ex.PW4/C5 and copy of GPA is Ex.PW4/C6.
Page 10 S/V Jamil Iqbal 8 On the directions of the court, the SHO Insp. Balraj
Singh Dahiya made his endorsement Ex.PW10/A and then duty officer HC Raj Kumar (PW10) registered the FIR, Ex.PW10/B under Section 406/420/384/376/506/508/120/B/34 IPC at about 4.50 PM on 13.2.2004. The duty officer (PW10) made his endorsement Ex.PW10/C on the rukka and then the investigation of the case was was assigned to SI Sanjay Neoliya (PW17). During the investigation, the SI recorded the statements of the witnesses. The accused Jamil Iqbal was arrested vide arrest memo, Ex.PW1/B and his personal search was conducted vide memo, Ex.PW1/A. The accused and the prosecutrix were sent for medical examination.
9 The accused was taken to SDN Hospital for his medical examination by Const.Pramod (PW14), where Dr.R. Singhal (PW3) examined the accused and prepared the MLC, Ex.PW3/A. The doctor ordered for preservation of semen sample Page 11 S/V Jamil Iqbal of the accused, but the same could not be done due to repeated efforts of the patient. Dr. R. Singhal (PW3) also examined the prosecutrix vide MLC Ex.PW3/B and referred her to Gynaecologist.
10 The prosecutrix was under menses on 13.2.2004 and therefore, the doctor medically examined her on 25.2.2004. The prosecutrix was taken by L/Const.Kavita (PW15) to SDN Hospital for her medical examination, where Dr. Meenakshi (PW2) medically examined her vide MLC, Ex.PW2/A. After the examination, the doctor handed over to L/Const.Kavita (PW15), one sealed pulanda along with one sample seal. The Lady Constable delivered the said sealed pulanda to the investigating officer and then the same was seized vide memo, Ex.PW15/A. The prosecutrix was referred to EMO, Gynae.
11 Anil (PW6) handed over to the investigating officer photocopy of eleven papers, Ex.PW17/A written by the accused Page 12 S/V Jamil Iqbal pertaining to Tantra Vidya which were seized vide memo Ex.PW6/A. Anil (PW6) also handed over two note books, Ex.P1 (consisting 35 pages) and Ex.P2 (consisting 31 pages) to the investigating officer which were seized vide memo Ex.PW6/B. 12 The specimen hand writing Ex.PW3/1 to Ex.PW3/9 and signatures of the accused were obtained and were sent to CFSL, Hyderabad for taking the opinion of the handwriting expert on 5.4.2004 through Ct. Ram Sewak (PW5). The handwriting of the accused was compared by Sh. S.C. Lohia (PW16) and submitted the opinion Ex.PW16/A and reasons for reaching the opinion are Ex.PW16/B. 13 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where the accused was supplied with the copies of the chargesheet and the documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused.
Page 13 S/V Jamil Iqbal 14 The charge was framed against the accused on
25.9.2004. The accused was charged for the offence punishable under Section 384/376/506 IPC which reads as under :
"That on 10.4.2002 and thereafter at house no.33, Gali No.9, East Azad Nagar, Delhi, within the jurisdiction of police station Krishna Nagar, Delhi, you committed rape extortion by putting Smt. Poonam d/o Bundi Ram in fear of causing injury and dishonestly induced mother of Poonam for handing over you over Rs.1 lac and thus thereby committed an offence punishable under section 384 IPC and within the cognizance of this court.
Secondly, on the aforesaid date, time and place and thereafter you committed rape with Smt. Poonam d/o Bundi Ram several times and thus thereby committed an offence punishable under section 376 IPC and withing the cognizance of this court.
Thirdly, on the aforesaid date, time and place and thereafter you criminally intimidated and threatened to kill Smt. Poonam in case she disclosed the Page 14 S/V Jamil Iqbal factum of rape to her family members and thus thereby committed an offence punishable under section 506 IPC and withing the cognizance of this court." 15 The accused pleaded not guilty to the charges framed against him and claimed trial.
16 The prosecution has examined seventeen witnesses in support of its case. Out of those witnesses, PW1 is the prosecutrix. PW4 Smt. Jagwati, the complainant and PW6 Anil are the mother and brother of the prosecutrix. PW2 Dr. Meenakshi examined the prosecutrix and prepared her MLC. PW3 Dr. R. Singhal examined the accused and prepared his MLC. PW14 Const. Pramod and PW15 Lady Ct. Kavita joined the investigation conducted by PW17 SI Sanjay Neoliya. PW10 HC Raj Kumar was the duty officer in the police station at the relevant time. PW7 Sushil Kumar, PW8 Mam Chand, PW9 Mulakh Raj, PW 11 Fakir Chand, PW 12 Mukesh Kumar and Page 15 S/V Jamil Iqbal PW13 Kishan are the public witnesses. PW5 Ct. Ram Sewak deposited the specimen handwriting and signatures of accused in CFSL Hyderabad. PW16 Sh. S.C. Lohia examined the handwriting of the accused in CFSL Hyderabad. 17 The statement of the accused was recorded under Section 313 Cr.PC. The accused denied the entire case of the prosecution and has taken the defence that he has been falsely implicated by the complainant (PW4) in connivance with her son Anil (PW6) and the prosecutrix with a view to grab the house no.33, Gali No.9, East Azad Nagar, Delhi. He has stated that he purchased the ground floor of the property from its registered lawful owner Smt. Seema Jain in the name of his wife Smt. Nazma. The accused denied that he is Tantrik or Hakim or ever treated the prosecutrix. He was never called by Anil (PW6) for the treatment of the prosecutrix. The public witnesses are Page 16 S/V Jamil Iqbal interested witnesses on behalf of complainant (PW4) and her children. The accused opted to lead evidence in his defence. 18 The wife of the accused, namely Smt. Nazma (DW1) appeared as defence witness. She stated that accused is her husband. She purchased house no.33, Ground Floor, Gali No.9, East Azad Nagar, Delhi from Smt. Seema Jain vide GPA Ex.DW1/A. The complainant (PW4) and her family members were residing at the first floor of the said house. She further stated that Anil (PW6) along with Neeraj, Heera and one Sardarji put pistol on her head and forcibly obtained her thumb impressions on some blank papers, for which she filed a complaint, Ex.DW1/B in PP Old Seelampur. She also filed complaint Ex.DW1/C before the SHO, PS Krishna Nagar. She also filed complaint Ex.DW1/D before the DCP, East District, but the police had not taken any action against the abovesaid persons. Anil (PW6) and his family members dispossessed her Page 17 S/V Jamil Iqbal by breaking open the lock of her house for which she filed a complaint case no.82/02, Ex.DW1/E. 19 I have heard Shri Sanjay Kumar, learned APP for the State and Shri A.A. Khan, learned counsel for the accused. I have carefully gone through their submissions and the record of the case.
20 The learned APP has submitted that from the statements of the prosecutrix as well as her mother and the brother, the prosecution has established that after putting them in the fear, the accused extorted the money from them and also committed rape upon the prosecutrix.
21 On the other hand, the learned defence counsel for the accused has averred that the prosecution has failed to make out the case of extortion against the accused as well as committing of rape upon the prosecutrix, as there is considerable delay in lodging the complaint by the complainant etc. It has also Page 18 S/V Jamil Iqbal been argued that the story put up by the prosecution, is an improbable story to falsely implicate the accused in the present case in order to grab the ground floor of property No.33, East Azad Nagar, Delhi.
22 On the basis of submissions made by either side, following questions arises for consideration: (I) Whether the accused extorted money from the complainant and committed the offence punishable under Section 384 IPC?
(II) Whether the accused committed rape upon the
prosecutrix and has committed the offence
punishable under Section 376 IPC?
(III) Whether the accused criminally intimidated and
threatened to kill the prosecutrix and has
committed the offence punishable under Section 506 IPC?
(IV) Conclusion. QUESTION (I) 23 It is alleged against the accused that he extorted
a sum of Rs.1,00,000/ from the complainant (PW4) on the Page 19 S/V Jamil Iqbal pretext that he required the money for the marriage of his sister.
To prove the allegations, the prosecution has examined the complainant (PW4) and her son Anil (PW6). The complainant (PW4) has stated that she has six children. The prosecutrix is her third child, aged about 22 years. About 45 years back, the prosecutrix had injury in her leg. Her neighbourer advised her to visit the accused as he was a Hakim/Tantrik and would cure her daughter. The son of the complainant, namely, Anil (PW6) brought the accused to the house for the treatment of the prosecutrix and then, the accused started treating the ailment of the prosecutrix. After sometime, the accused demanded Rs.1,00,000/ from the complainant (PW4) for the marriage of his sister. The complainant (PW4) mortgaged her house, bearing no.6/2, Gali No.10, East Azad Nagar, to one Mukesh (PW12) and gave Rs.1,00,000/ to the accused. When the complainant (PW4) demanded back the money from the accused, he refused to pay Page 20 S/V Jamil Iqbal the same. On the demand of Mukesh (PW12) for his money from the complainant, she had to sell her house to one Mulakh Raj (PW9) for a consideration of Rs.7,25,000/. From the said amount, the complainant (PW4) repaid the loan of Rs.1 lac along with interest of Rs.1.25 lac to Mukesh (PW12). 24 The son of the complainant, namely, Anil (PW6) has corroborated the statement of her mother, i.e., the complainant (PW4). He has stated that after 56 months of starting the treatment of the prosecutrix by the accused, the accused demanded Rs.1 lac for the marriage of his sister. The said amount was arranged by them by mortgaging the house and the money was given to the accused. On their demand to pay back the money, the accused refused to pay the same and then they had to sell their house to Mulakh Raj (PW12) for a sum of Rs.7,25,000/.
Page 21 S/V Jamil Iqbal 25 The loan amount of Rs.1 lac was taken by the
complainant etc. from Mukesh (PW12). The said Mukesh Kumar appeared in the court as PW12. He has stated that he used to run motorcycle repairing shop and Anil worked with him for about 12 years. During his service with Mukesh (PW12), Anil (PW6) used to take loan of Rs.2030,000/ and once asked Mukesh (PW12) to arrange Rs.1 lac for the treatment of his sister. When Mukesh (PW12) demanded back his money from Anil ()PW6), then his mother i.e., the complainant (PW4) transferred one house, situated near the temple in the name of Mukesh (PW12). The possession of the house was with Anil (PW6) and the documents were with the witness (PW12), therefore, Anil (PW) sold the house through some property dealer to Mulakh Raj (PW9) for a consideration of Rs.7,25,000/.
26 The property dealer Sh. Fakir Chand (PW11) has stated that he knew Anil (PW6) being resident of the locality. In Page 22 S/V Jamil Iqbal the year 2002, Anil (PW6) came to him and showed his willingness to sell his house no.6/2, Gali No.10, East Azad Nagar, measuring 50 yards. The witness arranged to sell the house of Anil (PW6) to Mulakh Raj (PW9) for a sum of Rs.7,25,000/. 27 In their entire statements, neither the complainant (PW4) nor her son Anil (PW6) have stated that there was any pressure or threat upon them by the accused to hand over the money of Rs.1 lac. There is no statement of either the complainant (PW4) or her son Anil (PW6) to the effect that the accused threatened them to arrange the money by mortgaging their house. The allegations levelled are only to the extent that the accused took Rs.1 lac for the marriage of his sister and did not return back on the demand of the complainant (PW4). This fact do not find support from the evidence led by the prosecution. The statement of Mukesh (PW12) and Fakir Chand (PW11) shows that Anil (PW6) voluntarily came to them to take money Page 23 S/V Jamil Iqbal and for selling the house. Anil (PW6) did not disclose to his employer Mukesh (PW12) or to the property dealer Mulakh Raj (PW11) or to any person of the locality that the accused was threatening them to arrange money of Rs.1 lac. 28 The complainant (PW4) and her son Anil (PW6) have also informed the court or to the police or even in their complaint filed before the court, any specific date or time when the accused asked them to arrange a sum of Rs.1 lac for the marriage of his sister. Moreover, it has also not come on the record that the complainant (PW4) or her son Anil (PW6) had lodged any complaint to the police or to any authority regarding extorting money by the accused under threat or pressure. They have also not complained about the refusal of the accused to return the money. Even otherwise, the wife of the accused, namely, Nazma entered into the witness box as DW1 and during her crossexamination, she denied that her husband had Page 24 S/V Jamil Iqbal requested the complainant (PW4) to give Rs.1 lac as loan for solemnizing the marriage of his sister. She further denied that when the complainant (PW4) showed her inability to pay the amount to the accused, then the accused suggested the complainant (PW4) to mortgage her house and to arrange the money for him. The witness (DW1) volunteered that the marriage of her Nanad, i.e. the sister of the accused had already been solemnized prior to her marriage with the accused. 29 Thus, from the above statements, the prosecution has failed to establish that the accused extended any threat or put pressure upon the complainant side to give him a sum of Rs.1 lac. The prosecution has miserably failed to prove that the accused extorted Rs.1 lac from the complainant side. 30 The other allegation of extorting of Rs.5,00,000/ does not found basis as property of first floor and ground floor were transferred/purchased in the name of complainant's family Page 25 S/V Jamil Iqbal members, that is too, after making complaint before the ACP and after being satisfied, withdrew the complaint. The charge for the offence punishable under Section 384 IPC has not been proved against the accused beyond reasonable doubt. Consequently, the accused is hereby acquitted for the offence punishable under Section 384 IPC.
QUESTION (II) 31 In the case of the offences under Section 376 IPC, the statement of the girl is the most important evidence. Her statement alone is sufficient for the prosecution to establish its case. It has been held by the Hon'ble Supreme Court in case of State of Punjab Vs. Gurmit Singh (Reported in AIR 1996 SC 1393) that the testimony of a victim of sexual assault needs no corroboration and conviction can be founded on her testimony alone unless there are compelling reasons. The evidence of a victim of sexual assault stands almost on a par with the evidence Page 26 S/V Jamil Iqbal of an injured witness and to an extent, is even more reliable. The evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime, but is a victim of another person's lust. Similar views were expressed by the Hon'ble Supreme Court in case titled, State of H. P. Versus Asha Ram (Reported in AIR 2006 SC 381). In another case, titled Aman Kumar and another Versus State of Haryana, (AIR 2004 SC 1497), it has been held that it is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestrian than injured witness. In nut shell, it can be said that now, it is settled law that the statement of the prosecutrix is the key to the success to the case of the Page 27 S/V Jamil Iqbal prosecution. If her statement is reliable then, accused can be convicted even without corroboration. The Court may look into other evidence to seek assurance to her testimony. 32 It is correct that a person can be convicted for sexual assault only on the basis of ocular statement of the prosecutrix. However, that statement shall be broadly believable to find out the case of the prosecution that the prosecutrix was subjected to forcible sexual assault against her wishes. 33 In the case reported in Vishveshvaran Vs. State (Reported in AIR 2003 SC 2471), the Hon'ble Court has held that to appreciate the evidence of the prosecutrix, the courts have to adopt a different approach and shall not be get swayed by minor contradictions or discrepancies and defective investigation. With these observations and the background of the case, let us examine the statement of the prosecutrix to find out if it is trustworthy and can be acted upon to convict the accused.
Page 28 S/V Jamil Iqbal 34 In order to prove the charge of committing the rape
upon the prosecutrix, the prosecution has examined the prosecutrix as PW1. She has stated that in the year 1999, when she along with her family was residing at 6/9, Gali No.10, East Azad Nagar, Delhi, then she fell down from the stairs and sustained injury in her leg. She was not in a position to walk properly. Her brother Anil (PW6) brought one Hakim/Tantrik, accused Jamil Iqbal to the house for her treatment. The accused started giving the injections and some pills to the prosecutrix in the name of her treatment. The prosecutrix has further stated that after taking those pills and the injections, she become unconscious and then the accused used to take the prosecutrix to the room situated on the upper floor. The accused used to remove her clothes and forcibly commit rape upon her. The accused asked the family members of the prosecutrix, not to come on the room of the upper floor as he used to do Jaadu Tona Page 29 S/V Jamil Iqbal on the prosecutrix for her treatment. The accused committed rape upon the prosecutrix from the year 2000 to 10.4.2000. The prosecutrix became pregnant and her pregnancy was terminated by the accused by giving pills to her.
35 The prosecutrix herself has admitted in her statement that when the accused administered injections to her in the room of the upper floor, then she became unconscious for 2 to 2½ hours and then, the accused used to forcibly commit rape upon her. The accused continued committing rape upon the prosecutrix till 10.4.2000. The prosecutrix told her mother about the aforesaid facts of forcible commission of rape upon her by the accused after administering injections to her. It is admitted case of the prosecution that the prosecutrix was a major girl of about 22 years at the time of incident. The prosecutrix has stated that the commission of rape upon her by the accused continued from the year 2000 till 10.4.2000, but she has not given any specific Page 30 S/V Jamil Iqbal date or time when the accused committed rape upon her. The prosecutrix herself, her mother (PW4) or the brother Anil (PW6) had never made any complaint to the locality people, the police or to any higher authority regarding the alleged commission of rape by the accused on the prosecutrix. The prosecutrix has admitted in her crossexamination conducted by the defence that the accused used to administer injections to her in the presence of her family members. She has also admitted that her family members used to be present at the time of her treatment by the accused. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in Western countries. Our standard of decency and morality in public life is not the same as in those countries. It is not expected from a respectable family of Indian Society that after administering the injections by the accused to the prosecutrix when she became unconscious, then the family members of a young girl would allow Page 31 S/V Jamil Iqbal a stranger person, may be doctor, to take the girl in a lonely room on the upper floor and that too, for about 2 to 2½ hours. It is important to note that the prosecutrix has stated in her statement before the court that she told her mother (PW4) and the brother Anil (PW6) that the accused used to commit rape upon her after administering injections to her. Still, her mother, i.e., the complainant (PW4) contradicted the prosecutrix by stating in her complaint, Ex.PW4/A filed before the court, that the accused used to commit rape upon the prosecutrix after giving her tablets of drugs.
36 After making the complaint, Ex.PW4/A by the complainant (PW4) before the court and after the arrest of accused in the case, the prosecutrix was medically examined in the SDN Hospital. Dr.Meenakshi (PW2) of Gynae examined the prosecutrix on 25.2.2004 in the hospital vide her report, Ex.PW2/A, after she was referred by Dr.R.Singhal of the said Page 32 S/V Jamil Iqbal hospital. The doctor gave the general opinion that the vitals of the patient were normal and no fresh external injury was seen on the person of the prosecutrix. The doctor took into possession the vaginal smear of the prosecutrix and later on, the same were seized by the investigating officer of the case. The doctor has not spoken a single word about any rape upon the prosecutrix. 37 The accused was also medically examined by Dr.R.Singhal (PW3). After the examination of the accused, the doctor preserved the semen sample of the accused. The investigating agency has not made any sincere efforts to send the vaginal smear of the prosecutrix or the semen sample of the accused to the CFSL for comparison, in arriving at the conclusion if any rape had been committed upon the prosecutrix. Thus, by not sending the same to the CFSL, material piece of evidence has been withheld from the court.
Page 33 S/V Jamil Iqbal 38 From the above statement of the prosecutrix, I find
that the statement made by her before the court, is not believable to convict the accused for a heinous crime of rape. It is not believable that the prosecutrix and her family members bear the atrocities of the accused for a period of about two years. They remained mum by not reporting the matter to the police or by not filing the complaint before the court. They have not explained as to why they had not gone to the police and decided to go directly before the court and that too, after a considerable long period of two years of the commission of offence by the accused. 39 Mam Chand (PW8) has stated in his statement before the court that he only knew that there was something between the accused and the prosecutrix. The complainant (PW4) or her son Anil (PW6) had never told him about the facts of something between the accused and the prosecutrix. I find that Page 34 S/V Jamil Iqbal the statement made by the witness (PW8) is hearsay evidence and cannot be relied upon to act upon it.
40 Kishan (PW13) has also stated that he was residing as a tenant in the house of the complainant (PW4) at 6/2, East Azad Nagar from the year 1998 till 2002. He claimed himself to be the friend of Anil (PW6) and saw the accused treating the prosecutrix.
41 In the crossexamination conducted by the defence, the witness first denied that he is related to Anil (PW6) but later, admitted that Anil (PW6) is his first cousin, i.e., the son of his mother's sister. He has stated that four tenants including him, were residing on the first floor of the said house of Anil (PW6).
42 Thus, being a resident of the same house and moreover, being a relative of the complainant (PW4) and her family, he has also not told anything about the alleged Page 35 S/V Jamil Iqbal commission of rape by the accused upon the prosecutrix. He has also not uttered a single word whether complainant (PW4) or Anil (PW6) had disclosed him anything about accused Jamil. He only stated that the accused was treating the ailment of the prosecutrix. This fact of treating the ailment of the prosecutrix by the accused, has also got corroboration from the statement of Anil (PW6), who admitted that the ailment of the prosecutrix was cured after the treatment of the accused. Thus, the witness (PW13) has also failed to bring any incriminating evidence against the accused for his conviction for the commission of rape upon the prosecutrix.
43 The perusal of the record shows that in the present case, the main dispute between the accused and the complainant (PW4) was with regard to the property. Though, the complainant (PW4) has claimed that the property, bearing No.33, East Azad Nagar, Delhi, was purchased in her name, but she was Page 36 S/V Jamil Iqbal not taken by her son Anil (PW6) anywhere for the execution of the documents in her favour for the purchase of the property. The complainant (PW4) has stated that she purchased the property from one Mr.Jain, but she did not know the said Mr.Jain. She even did not know whether said Mr.Jain was male or female. 44 The complainant (PW4) has claimed that the property, bearing No.33, Gali No.9, East Azad Nagar, Delhi was purchased in her name. The claim of the complainant regarding purchase of property in her name, has been contradicted by the property dealer, Shri Fakir Chand (PW11). The property dealer has stated in his examinationinchief that after about 1520 days of the selling of House No.6/2, Gali No.10, East Azad Nagar, Delhi by Anil (PW6), he along with Jamil visited him for the purchase of some house. The property dealer (PW11) made them to purchase House No.33, Gali No.9, East Azad Nagar, Delhi, measuring 35 yards for a sum of Rs.5 lac. The witness (PW11) Page 37 S/V Jamil Iqbal has specifically stated that at that time, two sale deeds were executed for the house and the ground floor of the property was purchased in the name of wife of the accused whereas the first floor of the property was purchased in the name of Anil (PW6). Thus, the witness has falsified the claim of the complainant (PW4) regarding purchase of the property in her name. 45 The house, bearing No.33, East Azad Nagar, Delhi was purchased from Smt. Seema Jain vide General Power of Attorney, dated 31.3.2002. The perusal of the said General Power of Attorney(s) show that Seema Jain executed the documents pertaining to ground floor of the property in favour of wife of the accused and regarding the first floor of the property, in the name of Anil (PW6). The wife of the accused, Nazma (DW1) has also stated that she purchased the ground floor of house No.33, Gali No.9, East Azad Nagar, Delhi from Smt.Seema Jain, vide General Power of Attorney, Ex.DW1/A. The complainant side Page 38 S/V Jamil Iqbal came to her and extended threats to her for transferring the ground floor of the abovesaid property in the name of the complainant (PW4), for which Nazma made complainants before the police.
46 The complainant (PW4) filed a typed complaint against the accused on 22.5.2002 in the court through one Advocate. The allegations of rape made against the accused, appears to be an afterthought, as suggested to her, either by her Advocate or by some other person in order to grab the property of the accused. The perusal of the complaint, Ex.PW4/A shows that the commission of rape upon the prosecutrix has been put on the second footing, while the dispute with regard to the money and property were kept on the first footing. In Para 32 of the said complaint, it is mentioned that the accused had not returned the money and in Para 33, it is mentioned that the accused committed the offence of cheating, fraud etc against the Page 39 S/V Jamil Iqbal complainant (PW4). The allegations of commission of rape upon the prosecutrix by the accused have been shown to be made in para 34 of the complaint.
47 Although, it is no doubt that the rape is a heinous crime, yet the complainant (PW4) has not chosen to put the said allegation against the accused on the first footing in her complaint before the court. It appears that with a view to settle the property and money dispute with the accused, the complainant (PW4) levelled the false allegations of rape upon the prosecutrix by the accused. Had there been any truth in the allegations of rape against her daughter levelled by the complainant (PW4) in her complaint, the complainant (PW4) would not have waited for almost two years in filing the complaint or lodging the report with the police. According to the prosecutrix, the accused committed rape upon her from the year 2000 till 10.4.2000. The perusal of the record shows that the complainant (PW4) filed the complaint Page 40 S/V Jamil Iqbal in the court on 22.5.2002. No explanation has been given by the complainant (PW4) for making the complaint after a gap of about two years, which is a considerable delay and raises suspicion in the mind of the court.
48 It is also apparent from the record that the wife of accused Nazma (DW1) filed complaint in PS Krishna Nagar, Ex.DW1/C regarding extending threats by the complainant party in order to obtain her signatures on papers on the point of pistol. Nazma also made complaint, Ex.DW1/B to the police, received in the police station on 27.4.2002 regarding connivance of the chowki incharge with the complainant party to grab her property. Thereafter, Nazma ( DW1 ) filed a complaint before the D.C.P., Ex.DW1/D, received in the office of DCP on 8.5.2002, regarding grabbing of her property by the complainant side. The wife of the accused, Nazma (DW1) also filed a complaint, Ex.DW1/E under Section 448/380/506/34 IPC before the court against the Page 41 S/V Jamil Iqbal complainant party on 8.5.2002 on which complaint case No.82/2002 was registered against the complainant side. 49 It appears that the complainant (PW4) filed the present complaint, Ex.PW4/A before the court alleging commission of rape against her daughter by the accused. The said complaint is an afterthought complaint, just to counterblast the complaint of the wife of the accused in order to grab the ground floor of property, bearing House No.33, East Azad Nagar, Delhi. The investigating officer of the case, SI Sanjay Neolia (PW17) has also stated in his crossexamination that the incident pertains to the year between 1999 and April, 2000. He has further stated that he received the investigation of the case from the order of the court, on 13.2.2004.
50 In the present case, it has been proved that there was some dispute going on between the complainant side and the accused with regard to the ground floor of property, bearing Page 42 S/V Jamil Iqbal No.33, East Azad Nagar, Delhi. The wife of the accused, Nazma (DW1) made complaints to various police officials and finally before the court on 8.5.2002, regarding threats given to her by the complainant side for transferring the ground floor of the abovesaid property in the name of the complainant (PW4). The complainant (PW4) also made complaint before the court on 22.5.2002 as a counterblast to the complaint of the wife of the accused, making accusations against the accused of extorting the money and committing rape upon the prosecutrix. The prosecutrix or the complainant (PW4) or the brother Anil (PW6) have not given any specific date or time when the accused allegedly committed rape upon the prosecutrix. The complainant (PW4) even told that rape was committed upon the prosecutrix after giving her tablets of drugs, whereas the prosecutrix made the statement that the accused used to administer injections to her. They have not disclosed the said facts to any of their Page 43 S/V Jamil Iqbal neighbourers or to the relatives or even to the police. There is no written documents of the doctor regarding the alleged pregnancy or the treatment of the prosecutrix. There is no other independent corroboration to the statements of the prosecutrix and the complainant (PW4). The complainant (PW4) and her son Anil (PW6) are the interested witnesses and only their statements are not sufficient to convict the accused, particularly when the statement of prosecutrix is not believable. In the absence of any independent corroboration, the documentary evidence or the statement of the doctor regarding any alleged rape upon the prosecutrix, the inconsistent statements made by the prosecutrix and the complainant (PW4) become unreliable and unworthy of credence. The same cannot be made the basis for the conviction of the accused in a heinous crime of rape.
51 The Hon'ble Allahabad High Court has expressed its views in case titled, Udal Versus State of UP (reported in Page 44 S/V Jamil Iqbal 2004 Crl.L.J. 2969), that the shaky, suspicious and fragile evidence cannot be made the sound basis for conviction of the accused, when the prosecution has failed in establishing the guilt of the accused convincingly and satisfactorily beyond all reasonable doubt. Similarly, the Hon'ble Punjab & Haryana High Court in case titled, Amrik Singh Versus State of Punjab (reported in 2005(IV) RCR (Criminal) 310), while relying upon a judgment pronounced by Hon'ble Supreme Court, has also observed that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. 52 From the aforesaid discussion, it has been proved that the actual dispute between the complainant side and Page 45 S/V Jamil Iqbal the accused was with regard to the ground floor of property No.33, Gali No.9, East Azad Nagar, Delhi. The complainant etc. have made false allegations against the accused for the commission of rape against the prosecutrix, as neither the prosecutrix visited any doctor nor there is any documentary evidence in support of her pregnancy. There are no special circumstances in the statement of the prosecution, rather there is dispute over the property.
53 The delay in making the allegations regarding rape upon the prosecutrix and termination of her pregnancy uptill the year 2000 and the making of complaint with regard to dispute of property are not explained. The delay in making the allegations itself tantamount to suspicious circumstances and creates serious doubt about the allegations levelled.
54 The statement of the prosecutrix cannot be relied upon to convict the accused for the offence punishable under Page 46 S/V Jamil Iqbal Section 376 IPC and therefore, he is also acquitted of the said offence.
QUESTION (III) 55 The accused Jamil Iqbal has also been charged for the offence punishable under Section 506 IPC for extending threats to kill the prosecutrix. The prosecutrix (PW1), her mother, i.e., the complainant (PW4) and brother Anil (PW6) have made statements that the accused threatened them that if the complainant (PW4) or her family members ever tried to make complaint to the police, then he would kill the prosecutrix as the accused knew "Kala Jadoo". Similarly, Sushil Kumar (PW7) has stated that he had come to know that the accused was a Maulvi and used to do "Jadoo Tona" and "Tantra". Mam Chand (PW8) and Kishan (PW13) have also stated that the accused was a Mulla and Tantrik.
Page 47 S/V Jamil Iqbal 56 Firstly, the perusal of statements of the prosecutrix
(PW1), complainant (PW4) or her son, Anil (PW6) do not show any one of them have given any specific date or time when the accused had told them he knew "Kala Jadoo" or that he would kill the prosecutrix. Secondly, their statements do not demonstrate that the accused extended the said threat to prosecutrix, the complainant (PW4) or her son, Anil (PW6). It appears that the accused was generally stating that he knew "Kala Jadoo". The statements of the other public witnesses examined by the prosecution, cannot be relied upon to believe the case of the prosecution regarding the alleged threat of the accused. The statements made by them are only on the basis of the hearsay, which cannot be made the basis for the conviction of the accused for the aforesaid offence. Sushil (PW7) has not alleged a single word about any threat given to the complainant etc. regarding killing of the prosecutrix. Mam Chand (PW8) and Kishan (PW13) Page 48 S/V Jamil Iqbal have made statements only to the extent that the accused was a Mulla/Maulvi or Tantrik, but had not uttered a single word about any threat given by him to the complainant etc. 57 Consequently, in the absence of any specific date or time on which the accused threatened the complainant (PW4) or his son, Anil (PW6) or the prosecutrix, their statements cannot be relied upon to convict the accused for extending threats to them as punishable under Section 506 IPC. The accused is entitled to be acquitted for the said offence. He is acquitted for the offence punishable under Section 506 IPC also. CONCLUSION 58 In view of the aforesaid discussion in detail, I hold that the prosecution has miserably failed to establish the charges of extortion, commission of rape and extending threats to kill the prosecutrix as punishable under Section 384/376/506 IPC.
Page 49 S/V Jamil Iqbal Consequently, the accused is hereby acquitted for the said offences.
59 The Jail Superintendent be informed to release the accused immediately, if not required in any other case. 60 File be consigned to the record room.
Announced in the open Court ( P.S. TEJI )
Dated: 15.12.2009 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts : Delhi