Delhi District Court
State vs Yasir Altaf, S/O Sh. Altaf Ahmad, R/O ... on 25 February, 2015
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE - 03 PATIALA HOUSE COURTS : NEW DELHI
Sessions Case No. 110/14
Assigned to Sessions. 23/04/2014
Arguments heard on 17.01.2015
Date of order. 25.02.2015
FIR No. 114/10
State Vs Yasir Altaf, S/o Sh. Altaf Ahmad, R/o 2/17,
Jungpura-A, II Floor, Delhi.
Omar Baktoo, S/o Fayaz Ahmad, R/o
Omar Khayam , House Boat, Dal Gate,
Srinagar (J & K)
Police Station Connaught Place
Under Section 120B/ 419/ 420/ 384/ 506 IPC against
both accused.
376 IPC against accused Yasif Altaf
Ahmad
JUDGEMENT
1. Briefly facts of the case are that on 25.06.2010, the complainant Eva Elizabeth De Kan had given a written complaint to the Commissioner of police Head Quarter Inderprastha Estate, New Delhi stating therein that complainant and her friend Libby de Haas who were Dutch nationals arrived India as a tourist and on 06.01.2010 they went to Connaught place for looking SIM Card for their mobile phones, where two persons namely Yasir Altaf and Omer Baktoo alongwith their one friend Johny met them and during the conversation they represented themselves as tourist guys working for government tourist agency and told them that they could FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 1 help them in getting the SIM Card. They also told the complainant and her friend that they should see Kashmir which is very beautiful place in India and tried to convince the complainant and her friend by showing pictures of Gulmarg, Srinagar, Pahalgam etc. It is alleged that both the accused persons represented that they had lot of connections, contacts and influence and power and they lured and convinced the complainant and her friend to make their stay in Kashmir very comfortable. On the assurance of the accused persons, complainant and her friend agreed to visit Kashmir.
2. Accused Yasir Altaf and Omer Baktoo took the complainant and her friend to one travel agent close to Connaught place and introduced one Mr. Ali as the Owner/Manager of that agency. It is also alleged that on representation of Mr. Ali, the complainant paid 1700 Euro (20,000/- by Indian rupees as cash and balance by credit card) and similarly, her friend Libbi paid Rs.20,000/- by Indian rupees as cash and balance by debit card. On 08.01.2010, complainant and her friend went to Srinagar along with accused Yasir Altaf and Omer Baktoo, where the accused persons took the complainant and her friend to a house boat named Omer Khyam in Dal lake Srinagar, which later on they came to know belongs to accused Omer Baktoo. It is alleged in the complaint that when they checked in houseboat, then the accused Omer Baktoo and Yasir Altaf asked them to FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 2 deposit their passports as it was not safe to keep in the houseboat and complainant and her friend gave their passport to the accused persons.
3. It is further alleged that on 10.01.2010 when complainant and her friend went to Gulmarg and stayed there for two nights, then they realized that they had been cheated as they have given lot of money for the tour to Ali whereas the hotel charges were very reasonable and when they told this fact to the accused Yasir Altaf and Omer Baktoo, then both the accused persons threatened complainant and her friend to face dire consequences and refused to give their passports and money and complainant and her friend were forced to stay in the houseboat. It is also alleged that thereafter accused persons pressurized and forced the complainant and her friend to have sexual intercourse with them in the houseboat and also threatened if they refuse and would leave the houseboat then they would get into a lot of trouble because outside lot of people are getting killed by militants. It is alleged that the complainant and her friend had no other alternative except to succumb the threats and pressure of accused persons and accused persons took the advantage of their helplessness and forcibly raped complainant and her friend for 3-4 days in the houseboat.
FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 3
4. On 25.01.2010, complainant/ prosecutrix came back to Delhi along with Yasir Altaf and after two days her friend Libby came back to Delhi alongwith Omer Baktoo and they all stayed in Hotel Ivory Palace, Karol Bagh, New Delhi. It is further alleged by the complainant/prosecutrix that during their stay at Ivory Palace, the complainant and her friend were again forced to have sex with Yasir Altaf and Omer Baktoo for about six days.
5. Complainant had also alleged that she and her friend had to go to Jaipur in their next leg of tour and then Yasir Altaf forced them to pay Rs.60,000/- to him saying that they should not go alone to Jaipur as it would be dangerous for them. Accused needed the money for traveling and his apartment and he promised that he would give it back. The complainant gave Rs.60,000/- to Yasir Altaf.
6. Complainant/prosecutrix alleged that on 01.02.2010, she alongwith her friend Libby and Yasir Altaf went to Jaipur and from there they went to Pushkar and Ranthambore and came back to Delhi on 04.02.2010 and during this period also, accused Altaf threatened her. Complainant/prosecutrix further alleged that when they came back to Delhi on 04.02.2010, they checked in Hotel Ivory Palace and stayed there till 06.02.2010 and during their stay in the said hotel FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 4 she found that her four hundred dollars, one thousand two hundred Euros and Rs.25,000/- were missing from her bag and which she suspected to have been stolen by accused Yasir Altaf and Omer Baktoo and regarding this they could not lodge report as the passports of the Complainant/prosecutrix and her friend were with accused Yasir Altaf who refused to return the same.
7. In her complaint, complainant stated that thereafter while leaving for Agra, accused Yasir Altaf returned passports of Complainant/prosecutrix and her friend with the threat that they should not lodge complaint against Yasir Altaf and his friend Omer Baktoo but did not return the money.
8. From there they went to Ocha on 07.02.2010 and on 08.02.2010 checked in Hotel Harmony in Khajurao as this hotel was suggested by Yasir Altaf saying that it belongs to his father. When complainant and her friend reached Khajurao, they found Yasir Altaf in the Hotel and they stayed in the Hotel for two days. Thereafter, on 13.02.2010 complainant and her friend left Varanasi for Calcutta by night train and from there they went to Bangladesh. It is alleged in the complaint that the complainant and her friend were greatly disappointed and it was a nightmare for them to visit India as a tourist as they had been subjected to physical and sexual abuse, FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 5 cheating, extortion, wrongful confinement by the accused persons.
9. On this complaint FIR No. 114/10 u/s 376/419/420/384/120 B IPC was registered at PS Connaught Place. During the course of investigation complainant was examined by the police and accused Yasir Altaf was arrested. The complainant was taken to RML Hospital for her medical examination in the care of women ASI Sukhda and complainant was medically examined by the gynecologist vide MLC No. E89657/10. Accused Yasir Altaf was also medically examined vide MLC No. E89831/10. The statement of the prosecutrix u/s 164 Cr.P.C was recorded. During the course of investigation efforts were made to trace the accused Omer Baktoo but he could not be arrested. Later on accused Umar Bhaktoo also joined the investigation. The police had also made efforts to examine Miss Libby de Haas, friend of the complainant but could not succeed. E-mails were also sent to her but she did not respond the same. Charge sheet against accused Yasir Altaf filed in the court. Supplementary charge sheet u/s 376/ 384/ 419/ 420/ 120B IPC against accused Omer Baktoo was also filed in the Court.
10.This case was committed to the sessions court on 23.04.2014 and accordingly charge for the offence offences u/s 120B/ 420/ 384/ 506 IPC was framed against both accused and a separate charge for FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 6 the offence u/s 376 IPC was framed against accused Yasif Altaf Ahmad. Accused persons did not plead guilty and claimed trial.
11.Thereafter, prosecution has examined 15 witnesses namely PW1 SI Shiv Prasad - duty officer; PW2 Dr. Meenakshi Kamal, Medical Officer; PW3 Dr. Rishi Nayyar, Asstt. Professor; PW4 Harinder Singh- he accompanied the victim to hospital being a legal consultant; PW5 Ct. Vijay Pal - he got medically exhibited accused Yasir Altaf at RML hospital on 26.06.2010; PW6 W / ASI Sukhda - she had taken prosecutrix Eva Elizabeth de kan to RML hospital for her medical examination on 25.06.2010; PW7 Arun Kumar - Manager of Hotel Ivery Palace, Karol Bagh; PW8 Dr. Shekhar Yadav, Medical Officer, RML hospital; PW9 Ct. Mohd. Badru - formal witness he deposited the pulanda at FSL Rohini vide RC no.24/21/10; PW10 Pritam Singh, ARC , Central Tis Hazari Courts, Delhi - he got exhibited the statement recorded u/s 164 Cr. PC of prosecutrix Eva Eliza Beth as Ex.PW10/B; PW11 Manoj Sharma, General Manager, Hotel Glitz, Jaipur; PW12 HC Devi Dayal - formal witness being MHC(M); PW13 SI K. K. Mishra; PW14 Dr. Durgesh, Medical Officer; and PW15 Insp. B.M. Bahuguna, IO of the case.
FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 7
12.PW1 SI Shiv Prasad appeared in the witness box and deposed that on 25.06.2010 he was working as a duty officer in between 04:00 P.M to 12:00 night and had received a complaint from SI B.M. Bahuguna at 05:10 P.M. on the basis of which he registered FIR 114/2010 which is Ex.PW1/B, and after registration of FIR he made endorsement Ex.PW1/A. This witness has not been cross- examined.
13.PW2 Dr. Meenakshi Kamal, Medical Officer, Dr. RML Hospital, Delhi came in the witness box and deposed that on 25.06.2010 she was working in casualty department and on that day, she had medically examined one patient namely Eva Eliza Beth De Kan who was brought by ASI Sukhda with the alleged history of sexual assault in January and February. She prepared her MLC No. 89657/10 and same is now Ex.PW2/A and referred the patient to Gyane Department. This witness has been cross-examined. I have perused the same. No contrary evidence has come on record.
14.On 30.06.2010 PW3 Dr. Rishi Nayyar, Asst. Professor, Department of Urology, RML Hospital had examined accused Yasir Altaf in respect of potency test and OPD Card no. 3345 was prepared vide Ex. PW3/A. He also prepared the form for Doppler test of accused Yasir Altaf vide Ex. PW3/B, after going through the FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 8 report of the urology Dr. Rishi Nayyar opined that there was no clinical evidence to suggest that accused was incapable of performing sexual intercourse. This witness has been cross- examined. I have perused the same. I found some minor type of contradictions in his testimony, which are attributable due to the long duration of time and memory of a human being.
15.On 25.06.2010 PW4 Sh. Harinder Singh Wig was working in JCT Ltd. Rajender Place, New Delhi as a Legal Consultant on that day he had accompanied one lady/victim namely Eva Elizabeth De Kan to PS - Connaught Place and on her complainant present FIR was registered. Police lodged the FIR and did the investigation. The police also seized the photocopy of passport and Visa of the complainant vide seizure memo Ex.PW4/A and the documents were correctly identified by H.S. Wig and duly Ex.PW4/B, Ex.PW4/C and Ex.PW4/D respectively. He had also identified the signatures of the complainant Eva Elizabeth De Can. This witness has been cross-examined by the defence counsel. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 9
16.On 26.06.2010 PW5 Ct. Vijay Pal had taken accused Yasir Altaf to RML Hospital for his medical examination, after the medical examination doctor had handed over him the exhibits and the exhibits were handed over to the IO in the PS by Ct. Vijay Pal vide seizure memo Ex.PW5/A and on 16.08.2010 father of accused had came to the PS Connaught Place and he handed over the copies of e-mails and these e-mails were seized by the IO vide seizure memo Ex.PW5/B. This witness has also been cross-examined. I have perused the same. No contrary evidence has come on record which may go to the root of this case.
17.On 25.06.2010 PW6 WASI Sukhda, had taken the prosecutrix namely Eva Elizabeth De Kan to Dr. RML Hospital for her medical examination after which doctor in the Hospital handed over her two pullandas containing the exhibits of the prosecutrix and the same were handed over by W/ASI Sukhda to the IO which was seized vide seizure memo Ex.PW6/A. This witness has been cross- examined. No contrary evidence has come on record.
18.On 26.01.2010 PW7 Arun Kumar was working in Hotel Ivory Place, Karol Bagh, as a Manager and Eva Elizabeth De Kan who was citizen of Holland had checked in the above said hotel at 6.15 PM from Agra and he had made relevant entry in the guest register FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 10 at s.no. 1124 and on the next day the said tourist had checked out from the above said hotel. He further deposed that on 27.01.2010 one tourist namely Miss Libby De Haas, citizen of Holland, checked in the above said hotel at 8.00 PM from the Agra and relevant entry was made in the guest register at s.no. 1135 by Arun Kumar and on 28.01.2010, the said tourist checked out from the above said hotel. He further testified that on 04.02.2010 both the tourist namely Elizabeth De Can and Libby De Haas again checked into the hotel and relevant entries were made at Sl No. 1178. The said guest checked out from the hotel on the next day on 05.02.2010. Copies of the entries are Ex.PW7/A to Ex.PW7/F, copies of the entry register was also handed over to the IO. This witness has also been cross-examined at length. I have perused the same. I found some contradictions which are attributable due to the long duration of time and memory of a human being.
19.On 26.06.2010 PW8 Dr. Shekhar Yadav was working as Medical officer in RML Hospital and accused Yasir Altaf was taken for medical examination by Ct. Vijay Pal and his MLC was also prepared vide Ex.PW8/A on which accused had also put his thumb impression on the said MLC. This witness has not been cross- examined.
FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 11
20.On 28.01.2010 PW9 Ct. Mohd. Badur had taken pullanda from Malkhana and the same was deposited in FSL Rohini vide road certificate 24/21 and he had brought back the duly acknowledged copy which was handed over to the MHCM. This witness has not been cross-examined.
21.On 28.06.2010 PW10 Sh. Pritam Singh was working as Metropolitan Magistrate, PHC and he had recorded the statement of the prosecutrix u/s 164 Cr.P.C vide Ex.PW10/A after that the victim was produced before him by WSI Sukhda. The victim had given her statement voluntarily and without any coercion and pressure. The prosecutrix admitted the statement to be correct and signed the same on each page which are three in number. The statement of the prosecutrix Eva Eliza Beth is Ex.PW10/B and bears his signatures at point A, B and C respectively. The signatures of the prosecutrix at point D, E and F on Ex.PW10/B. After that the IO had moved an application for supply of the copy of the statement of the prosecutrix the same is Ex.PW10/C which bears his initial at point A. This witness has not been cross- examined.
22.In August PW11 Manoj Sharma was working as General Manager in Hotel Glitz, Jaipur and had received a notice u/s 91 FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 12 Cr. P.C sent by the Delhi Police. He had sent xerox copies of bill copy, Guest Registration Card, reservation form, guest identity proof, travel agent voucher, copy of C-forms of Ms. Eva Elizabeth and Ms. Libby De Hass and vehicle entry register page. He had also produced certified/attested copies of entry book of hotel with details of check-in and check-out, about Ms. Eva Elizabeth and Ms. Libby De Hass and Yasir Altaf, proof of their identity submitted in hotel. He further deposed that on 01.02.2010 guest namely Yasir Altaf alongwith Ms. Eva Elizabeth and Ms. Libby De Hass checked into hotel Glitz at 6.00 PM and stayed in room no. 203 and 205 and the rooms were booked on behalf of Shaukat Ali Tours, Indian Travel Corner, Tours and Travel, Karol Bag, Delhi. The said guest left the hotel on 02.02.2010 at 4.33 PM. He testified that accused had checked into the hotel in vehicle no. DL 1YB 2384 which was being driven by Ashok. The document are now exhibited as Ex. PW11/A to Ex.PW11/J. This witness has been cross-examined at length. I have perused the same. No contrary evidence has come on record which may go to the root of this case.
23.PW12 HC Devi Dayal was working as Malkhana Moharar in PS- Connaught Place and he had received four sealed pullandas and two sample seals from SI B.M.Bahuguna and the same were entered by him at Sl. No. 2496 in Register no. 19. This witness FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 13 further deposed that on 02.08.2010, HC Devi Dayal had handed over pullandas and sample seal to Ct. Mohd. Badrudeen to be deposited to the FSL, Rohini vide road certificate no. 24/21/10 and Ct. Mohd. Badrudeen handed over the acknowledgment slip. Copy of acknowledgment slip is now Ex.PW12/A. Copy of road certificate is now Ex.PW12/B and the relevant entry no. 2496/10 is now Ex.PW12/C. This witness has been cross-examined. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
24.PW13 SI K.K. Mishra came to the witness box and deposed that on 31.03.11, he was posted at PS Connaught Place. On that day, the investigation of the present case was marked to him by the SHO. He received the file from MHC(R). After receiving the file, notice was sent to alleged accused Omer Baktoo and he joined the investigation on 04.04.11 and he was interrogated by him. Further, on 08.04.2011, he was formally arrested after his interrogation vide arrest memo Ex.PW13/A. He collected the relevant documents and prepared the charge sheet and same was filed in the court. During trial, he submitted the FSL report in the court vide his application Ex.PW13/B and bearing his signatures at point A and FSL report no. FSL2010/B-3418/5269 dated 20.05.2011 running into four pages is FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 14 now Ex.PW13/C collectively. This witness has been cross-examined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
25.On 25.06.2010 PW14 Dr. Durgesh had examined the patient Elizabeth De Can with the history that she was sexually assaulted twice in January and February 2010 while on tour to Indian cities and a report was prepared which is Ex.PW14/A. This witness has not been cross-examined.
26.On 25.06.2010 PW15 Inspector B.M.Bahuguna made his endorsement on the complaint mark PW15/A and the present case Ex.PW1/B was registered. He had also sent the victim Elizabeth to RML Hospital for her medical examination through W/ASI Sukhda. After the medical examination W/ASI handed over him a sexual assault kit which was taken into possession vide memo Ex.PW6/A. He had also taken into possession the copy of passport and Visa of Elizabeth De Can vide memo Ex.PW4/A and the documents are Ex.PW4/B and Ex.PW4/C. He had also arrested accused Yasir Altaf vide his arrest and personal search memos Ex.PW15/B and Ex.PW15/C. Thereafter, accused Yasir Altaf was sent for medical examination to RML Hospital. IO had also got the statement of FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 15 victim Elizabeth under section 161 Cr.P.C and had also sent the exhibits to FSL for their analysis. He had also taken into possession the E-mails as produced by the father of accused Yasir. He had also collected the documents where accused and victim had stayed together i.e, hotel Ivory Place Hotel, Karol Bagh and the same is Ex.PW15/D and the documents are already Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E and Ex.PW7/F. He had also collected the documents from Glitz Hotel Jaipur which are Ex.PW11/A to Ex.PW11/J. He had obtained the IP address from where the complainant had sent e-mail to the accused at Varanasi. He had also produced victim Elizabeth in the court and her statement under Section 164 Cr.P.C. was recorded. This witness further deposed that he had also recorded the statement of the hotel manager Arun Kumar. He had also received documents from Hotel Glitz , Jaipur through post vide Ex.PW11/A, Ex.PW11/B, Ex.PW11/C, Ex.PW11/D, Ex.PW11/E, Ex.PW11/F, Ex.PW11/G, Ex.PW11/H, Ex.PW11/I to Ex.PW11/J about the factum of stay at Jaipur Hotel. He had also recorded the statement of complainant Elizabeth. He had also obtained the IP address from where the complainant had sent e-mail to the accused at Varanasi. He correctly identified accused Yasir Altaf. He had prepared the challan against the accused Yasir and subsequently filed it before the court. He further deposed that summons to Ms. Eva Elizabeth FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 16 and Ms. Libby De Hass were ordered to be executed through him and he had taken up the matter with the ministry of Home Affairs./ External Affairs which was then sent to the local address of Ms. Elizabeth and Ms. Libby at Neitherland and it was reported that Ms. Elizabeth was not willing to cooperate in this case and come to India and it was also reported by the local police at Neitherland, the document sent through the Ministry of External Affairs it is reported that Ms. Libby was not a witness to rape and that they were not willing to cooperate and seeking closure of the case. The report along with the documents forwarded by me is Ex.PW15/E. This witness further deposed that he had also produced victim Elizabeth in the court and her statement under Section 164 Cr.P.C was got recorded by the then Ld. MM Sh. Pritam Singh, Patiala House Courts on 28.06.2010. Accused Yasir was also subjected to the potency test by report Ex.PW3/B and Ex.PW3/A. His MLC is already Ex.PW8/A. He had also received the report of the sexual abuse of victim Elizabeth already Ex.PW14/A. This witness has been cross-examined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
27.After that prosecution evidence was closed and statement of accused persons u/s 313 Cr.PC were recorded in which they denied FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 17 all the allegations and did not choose to lead defence evidence.
28.Arguments of ld. Counsel for the accused and ld. APP were heard. During the course of arguments ld. Counsel for the accused persons submitted that in this case victims are Dutch Nationals and both the victims have not been examined in this case as a result of which, it impacts the statement recorded u/s 164 Cr.PC. On these grounds he submitted that accused deserves acquittal.
29.Contrary to it, ld. APP argued and submitted that statement recorded u/s 164 Cr. PC has been duly proved. On these grounds he submitted that accused persons are liable to be convicted.
30.Before reaching at any conclusion let the relevant sections be reproduced, which is as under:-
Criminal Law (Amendment) Act, 2013 Substitution of new sections for sections 375, 376, 376A, 3768, 376C and 376D.
9. For sections 375,376,376A, 376B, 376Cand 376D of the Penal Code, the following sections shall be substituted, namely:--
Rape.
'375. 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 person; 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 ~ of body of such woman or makes her to do so with him or any other person; or FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 18 d. applies his mouth to the vagina, anus, urethra of 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.
Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation I.--For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.--A medical procedure or intervention shall not onstitute rape.
Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'.
Punishment for rape.376.
2.Whoever,--
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 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."
[120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 19 not exceeding six months, or with fine or with both.]
420. Cheating and dishonestly inducing delivery of property.--
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
384. Punishment for extortion.--Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
506. Punishment for criminal intimidation.--Whoever commits, the offence of criminal intimidation shall be punished with imprison ment 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 1[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.
31.In the case in hand, it has clearly come on record that victims are Dutch Nationals and both the victims have not been examined in this case as a result of which, it impacts the statement recorded u/s 164 Cr.PC. Since, victims have not come before the court to depose against the accused persons despite making best efforts so offence u/s 376 IPC is not proved beyond reasonable doubt. Hence, accused Yasif Alataf is absolved from the offence u/s 376 IPC. Consequently, the other offences i.e. 420/ 384/506 IPC also remains unproved hence, both accused persons also are absolved from the said offences too.
32.So long as the offence u/s 120-B IPC is concerned, in this regard, the depositions of PWs i.e. PW7 Arun Kumar, Manager of Hotel Ivory Place, Karol Bagh and PW11 Manoj Sharma, General FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 20 Manager, Hotel Glitz, Jaipur and PW15 Insp. B. M. Bahuguna, IO of the case are material. PW7 has categorically stated that victim namely Eva Elizabeth De Kan who was citizen of Holland had checked in the above said hotel at 6.15 PM from Agra and he had made relevant entry in the guest register at s.no. 1124 and on the next day the said tourist had checked out from the above said hotel. On 27.01.2010 one tourist namely Miss Libby De Haas, citizen of Holland, checked in the above said hotel at 8.00 PM from the Agra and relevant entry was made in the guest register at s.no. 1135 and on 28.01.2010, the said tourist checked out from the above said hotel. On 04.02.2010 both the tourist namely Elizabeth De Can and Libby De Haas again checked into the hotel and relevant entries were made at Sl No. 1178. The said guest checked out from the hotel on the next day on 05.02.2010. Copies of the entries have been got exhibited as Ex.PW7/A to Ex.PW7/F. PW11 Manoj Sharma was working as General Manager in Hotel Glitz, Jaipur produced certified/ attested copies of entry book of hotel with details of check-in and check-out, about Ms. Eva Elizabeth and Ms. Libby De Hass and Yasir Altaf, proof of their identity submitted in hotel. He has also testified that on 01.02.2010 guest namely Yasir Altaf alongwith Ms. Eva Elizabeth and Ms. Libby De Hass checked into hotel Glitz at 6.00 PM and stayed in room no. 203 and 205 and the rooms were booked on FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 21 behalf of Shaukat Ali Tours, Indian Travel Corner, Tours and Travel, Karol Bag, Delhi. The said guest left the hotel on 02.02.2010 at 4.33 PM. He testified that accused had checked into the hotel in vehicle no. DL 1YB 2384 which was being driven by Ashok. The document are now exhibited as Ex. PW11/A to Ex.PW11/J. Since, the victims namely Ms. Eva Elizabeth and Ms. Libby De Hass have not come forward to depose in this case, so the ingredients of offence u/s 120-B IPC are also not proved on record beyond reasonable doubt. In light of these facts and circumstances of the case again I am of the view that the prosecution has failed to prove its case for the offence u/s 120-B IPC as well beyond reasonable doubt.
Accordingly, I acquit both the accused persons for the offences u/s 120B/419/ 420/ 384/ 506 IPC; and I acquit accused Yasif Altaf Ahmad for the offence u/s 376 IPC.
At this stage, accused persons are directed to furnish personal bond in the sum of Rs.10,000/ each with one surety in the like amount each for the period of six months that in case the decision is set aside in any appeal or other proceedings they shall present themselves before the court concerned to face further proceedings in accordance with law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 25.02.2015 (RAJ KAPOOR) ASJ-3/ PHC New Delhi FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 22 FIR no.114/10 State v. Yasir Altaf 25.02.2015 Pre: Ld. APP for the State.
Accused are on bail.
File perused, vide separate judgment placed along side in the file, I acquit both the accused persons for the offences u/s 120B/419/ 420/ 384/ 506 IPC; and I acquit accused Yasif Altaf Ahmad for the offence u/s 376 IPC. At this stage, accused persons are directed to furnish personal bond in the sum of Rs.10,000/- each with one surety in the like amount each for the period of six months that in case the decision is set aside in any appeal or other proceedings they shall present themselves before the court concerned to face further proceedings in accordance with law.
File be consigned to record room.
At this stage, accused persons seeks time to produce the sureties. Heard. Time granted. Now, case be fixed for 02.03.2015 for producing surety by the accused persons.
(RAJ KAPOOR) ASJ-3/ PHC New Delhi FIR no.114/10 PS Connaught Place u/s 120B/ 419/ 420/ 384/ 506 IPC and 376 IPC 23