Delhi District Court
State vs Accused Persons on 24 May, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT) EAST, NORTH EAST, SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0319032011 SC No. 08/13 Date of Institution: 21.11.2011 FIR No.301/11 Date of Arguments: 15.05.2013 PS Jyoti Nagar Date of Order: 24.05.2013 U/S 323/328/376/506/509/34 IPC State Versus Accused persons 1. Noor Hassan S/o Bashiruddin R/o H.No. 368/2, Gali No.2, Kardam Puri, Delhi. 2. Zaida Begam W/o Noor Hassan R/o H.No. 368/2, Gali No.2, Kardam Puri, Delhi. JUDGMENT
The facts in brief of the prosecution case are that Ms. ___X___ D/o ____Y_____, aged 20 years R/o H.No. _________________________Z-1______________________________, Delhi, here in after referred to as the prosecutrix, was residing in the above mentioned premises along with her parents who were tenants of Noor Hassan, here in after referred to as the accused No. 1. His factory and office SC No.08/13 State vs. Noor Hassan and Anr. Page 1 of 44 were also situated in that premises. Zaida Begam @ Zaida Hassan, here in after referred to as the accused No. 2, wife of the accused No. 1 used to visit the factory (karkhana) as well as office of the accused No. 1. About one year prior to the date of reporting, i.e. 18.7.2011, the accused No. 2, the accused No. 2 called the prosecutrix in the office and asked the prosecutrix to clean the office and accordingly the prosecutrix cleaned the same and thereafter the accused No. 2 offered cold drink to the prosecutrix. The prosecutrix drank cold drink Sprite and after drinking it she felt giddiness. When the prosecutrix asked the accused No. 2 that she was feeling giddiness, the accused No. 2 replied that she may be feeling it due to heat and the accused No. 2 made her to lie on the bed. When the prosecutrix regained her consciousness the accused No. 2 was not present there. The accused No. 1 and his friend Farukh (since not arrested) were standing near her. She was in naked condition. She asked the accused No. 1 as to why he committed rape on her when she was unconscious. He replied her to put on her clothes. Thereafter, Dr. Farukh showed her naked and dirty film in the mobile of the accused No. 1 and threatened her that in case she will divulge the fact of rape then they would show video having her naked photographs to other persons and they will also put those on the Internet and nobody would like to marry SC No.08/13 State vs. Noor Hassan and Anr. Page 2 of 44 her. They also told her that they will return the video after 10 or 15 days. After about 10 or 15 days the accused No. 1 and Dr. Farukh again called her in the noon and showed her naked photographs and committed wrong act/rape on her. They continued to rape her by showing her naked photographs and after threatening her. On 04.7.2011 she felt pain in her abdomen. Ultrasound was conducted on 05.7.2011 and doctor told that she was pregnant. When her mother confronted her she disclosed all the facts to her. She also told the same to the accused No. 1. He scolded her and suggested abortion in the hospital of Dr. Roshan Lal. He also suggested her and threatened her that he would get her father and brothers implicated in the false criminal case or get them killed. She reported the matter to the police. The IO after recording her statement got the FIR No. 301/11 at P.S. Jyoti Nagar recorded for the offence punishable u/s 328/323/376/506/509 IPC. The prosecutrix was sent to hospital where she was medically examined and with the consent of the prosecutrix her pregnancy was got terminated. Sample of DNA analysis and other samples were taken which were subsequently sent to FSL Rohini. Prosecutrix was produced before Ld. M.M. where her statement was recorded. The accused No. 1 was arrested. His arrest memo and personal search memo were prepared. The accused No. 2 was formally SC No.08/13 State vs. Noor Hassan and Anr. Page 3 of 44 arrested on 17.9.2011. Accused Dr. Farukh could not be traced. IO recorded statements of witnesses and on completion of investigation filed a charge sheet against the accused persons for their trial for the offences punishable u/s 328/323/376/506/509 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Sh. Raj Paul Singh Teji, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 24.12.2011 the court opined that prima facie case for framing of charge for the offences punishable u/s 328/506/34/376(2)(g) IPC was made out against the accused No. 1 and prima facie case for framing of charge for the offences punishable u/s 328/34/376(2)(g)/109 IPC was made out against the accused No. 2. Therefore, charges against the accused persons for their trial for the said offences were framed and read over to them in vernacular language. They pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined the prosecutrix as PW1; ASI Ram Niwas as PW2;
SC No.08/13 State vs. Noor Hassan and Anr. Page 4 of 44Smt. ___Z___, mother of the prosecutrix as PW3; Sh. ___Y___, father of the prosecutrix as PW4; Dr. Bhanupriya, SR, GTB Hospital as PW5; and Ct. Hardeep Kaur as PW6.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution also examined Sh. Abdul Aziz as PW7; Ct. Devender as PW8; Dr. P.K. Phukan, CMO, GTB Hospital as PW9; HC Faiyaz Ali as PW10; Sh. Gaurav Gupta, Civil Judge-I, South West, Dwarka as PW11; Dr. Navneeta Mittal from Nu Life Ultrasound and Diagnostic Pvt. Ltd., 695/6 Loni Road, Shahdara as PW12; Ct. Manoj as PW 13; SI Rano Devi as PW14; Dr. Ankita, SR, GTB Hospital as PW15; Ishrat Ali as PW16; Lady Ct. Meenu as PW17; and Inspector Inder Pal Singh as PW18.
7. After closing of prosecution evidence statements of both the accused u/s 313 of the Code of Criminal Procedure, here in after referred to as the Code, were recorded. All the material and incriminating evidence was put to them.
SC No.08/13 State vs. Noor Hassan and Anr. Page 5 of 448. The accused No. 1 admitted that the prosecutrix and her family members were residing in his premises as tenant. His Nokia mobile 5800 Express Music was seized by the police and that he was arrested on 21.7.2011 vide arrest memo EX.PW8/A, personal search memo EX.PW8/B and that he was produced before Dr. P.K. Phukan who medically examined him and prepared his MLC EX.PW9/A and opined that he was capable to perform sexual intercourse and that doctor also collected samples of his blood and semen and that PWs including PW16 correctly identified him. He denied rest of the prosecution evidence and stated that he wanted the family members of the prosecutrix to vacate his tenanted premises but initially they filed a suit for injunction and subsequently they falsely implicated them in false case.
9. Accused No. 2 also admitted that the prosecutrix was her tenant and that the accused No. 1 produced his mobile 5800 Express Music, IMEI No. 352012042743806 and that was seized by I.O. and that the accused No. 1 was arrested on 21.07.2011 and his arrest memo Ex.PW8/A and personal search memo Ex.PW8/B were prepared and that PW16 Ishrat Ali correctly identified the accused No. 1 and also identified mobile and that she was arrested on 17.09.2011 and arrest memo Ex.PW17/A SC No.08/13 State vs. Noor Hassan and Anr. Page 6 of 44 and personal search memo Ex.PW17/C were prepared and that she was correctly identified by PW1, PW3 and PW4. She pleaded that she was falsely implicated and the I.O. did not investigate the case properly and that she was innocent.
10. In support of their defence, accused persons examined Sh. Padam Singh as DW1; Mohd. Sajid as DW2; Mohd. Farukh as DW3; and Sh. Kamal Kishore as DW4.
11. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State, Ld. Counsel for the prosecutrix and Ld. Defence Counsel for accused persons and perused file including written submissions filed by Ld. Defence Counsel.
12. In order to prove its case that accused persons committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly that both the accused administered either poison or stupefying, intoxicating or unwholesome drug in the cold drink of the prosecutrix; and secondly, that cold drink was offered to the prosecutrix with the intention to commit rape on her and thirdly, the prosecutrix consumed it.
SC No.08/13 State vs. Noor Hassan and Anr. Page 7 of 4413. In order to prove its case that accused persons committed an offence of gang rape, punishable u/s 376 (2)
(g) IPC, the prosecution has to prove firstly that either of the accused persons in furtherance of their common intention abated and committed sexual intercourse with the prosecutrix; and secondly, that sexual intercourse was committed against the will of the prosecutrix.
14. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved both the offences against the accused persons beyond any reasonable suspicion and shadow of doubt and the accused persons are liable to be held guilty and convicted for the said offences.
15. It has been argued on behalf of Ld. Defence Counsel that there was enmity between the parties prior to the alleged occurrence. The prosecutrix and her family members were tenants in the premises of the accused persons and accused persons wanted to get their premises vacated from the prosecutrix and her family and the prosecutrix and her family members did not like it and they falsely implicated the accused persons in the present case.
16. In support of his arguments Ld. Defence Counsel SC No.08/13 State vs. Noor Hassan and Anr. Page 8 of 44 relied on a case Ramchit Rajbhar v. The State of West Bengal, 1992 CRI.L.J. 372. It was held by Kolkata High Court that where previous enmity is alleged, the Court has to scan evidence with great circumspection.
17. The prosecutrix in her cross examination stated that they were residing in the house of Noor Hassan for the last about 7 years prior to the incident and no quarrel ever took place during the period they resided in his house. She, however, admitted that fifteen days prior to the date when her ultrasound was conducted, police came at their residence because the accused No. 1 had disconnected their electricity supply. She expressed her ignorance if her father picked up a quarrel with the accused No. 1 in the month of April 2011. The prosecutrix stated that rather the accused No. 1 had brought some bad element (gunda) to their house and they had called police. She denied the suggestion that police came to their house on 04.05.2011 as her father failed to pay rent to the accused No. 1. She expressed her ignorance if her father made a written complaint against the accused No. 1 in the Police Station on 25.05.2011 with regard to that dispute or her father had any other litigation with the accused persons or if her family members had visited the police station Jyoti Nagar on 07.06.2011 in connection of a compromise in a landlord SC No.08/13 State vs. Noor Hassan and Anr. Page 9 of 44 and tenant dispute.
18. PW16 deposed that in the year 2011, he received telephone from the PS Jyoti Nagar to bring the accused No. 1 to the PS as he was having a quarrel with his tenant ____Y_____. In cross-examination conducted by ld. defence counsel he stated that on 07.6.2011 a settlement was arrived between the father of the prosecutrix namely Shri ____Y_____ and the accused No. 1 pertaining to the eviction of the tenanted premises. He admitted that a document Mark PW16/DA was reduced into writing and it was signed by him at point A. He further stated that he did not hear any other complaint except a dispute regarding vacation of tenanted premises.
19. PW7, in cross-examination, admitted that complainant was residing on rent for the last 7/8 years at the house of the accused No. 1 and that a dispute had taken place between ____Y_____, father of the complainant and accused persons regarding vacating of tenanted premises on 07.6.2011 and that due to intervention 10-15 persons from the locality the matter was settled at PS.
20. DW 1 deposed that in the month of April, 2011 Noor Hassan was re-constructing his residential house after SC No.08/13 State vs. Noor Hassan and Anr. Page 10 of 44 demolishing it. Noor Hassan was having another residential house wherein father of complainant was residing on rent. The accused asked father of the prosecutrix to vacate the same as they were supposed to shift because of reconstruction of his house. A quarrel had taken place between the father of the prosecutrix namely ____Y_____ and Noor Hassan. He tried to pacify the dispute. ____Y____ took 20 days time to vacate the premises but he did not vacate. On 6.6.2011 at about 9 PM accused Noor Hassan gathered 20/25 persons to settle the dispute. A panchayat was held and ____Y_____ was called to explain as to why he did not vacate the premises but he did not come to panchayat. Accused Zaida made a call to PCR. The police took the parties to PS where a settlement took place between the parties. In the last week of July 2011 he came to know that accused Noor Hassan was in the jail in case of rape on the daughter of ____Y_____.
21. DW2 deposed that he was working as property dealer in the locality of Kabir Nagar, Delhi. ____Y_____ came to him in June, 2011 and offered him to purchase a residential house and showed him papers of the house. After seeing those documents, he came to know that the house was in the name of accused Noor Hassan. Thereafter, Noor Hassan came to him and asked him not to SC No.08/13 State vs. Noor Hassan and Anr. Page 11 of 44 purchase the house. ____Y__ told him that he could hand over the possession to him if Rs. 5 Lacs are given to him. He also told him that he would falsely implicate Noor Hassan in serious case but he refused to accede to his request. __Y_ again came to him and told him that he had already falsely implicated the accused Noor Hassan and he offered the possession of the premises but he refused.
22. DW3 also stated about the dispute between the parties, holding of panchayat, reporting the matter to the police and arriving on a settlement. He further stated that Noor Hassan was falsely implicated in the case. DW4 proved document EX. DW4/A, EX. DW4/B and EX DW4/C. These were the documents in the file of a suit No. 207/11 titled ____Y_____ V/s Noor Hasan which was pending and decided by Sh. Devender Kumar, CCJ/ARC/MM on 21.7.2011. The evidence on record and particularly discussed here in above, have proved that there was a dispute between the parties and the dispute was once settled by panchayat and also by the parties in the court vide documents EX. DW4/A, EX. DW4/B and EX. DW4/C. In these circumstances the testimonies of the prosecutrix and her father are required to be analyzed with great care and caution as there was likelihood of false implication of the accused persons in this case.
SC No.08/13 State vs. Noor Hassan and Anr. Page 12 of 4423. It has also been argued by Ld. Defence Counsel that there is unexplained unreasonable delay of about 14 months in reporting the matter to the police. The date of alleged incident is somewhere in the month of May or June, 2010 but the matter was reported to the police on 20.07.2011. This has created doubt in the prosecution case.
24. In support of his arguments Ld. Defence Counsel relied on a case, Ramdas and Others v. State of Maharashtra, 2007 AIR (SC) 155, wherein the Apex Courts observed that:
"24. ***It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where SC No.08/13 State vs. Noor Hassan and Anr. Page 13 of 44 on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See AIR 1956 SC 216 : Pandurang and others vs. State of Hyderabad). Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."SC No.08/13 State vs. Noor Hassan and Anr. Page 14 of 44
25. Ld. Defence Counsel further relied on a case Thulia Kali vs. The State of Tamil Nadu, AIR 1973 SC 501, it was held by Apex Court that:
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused persons. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed. The names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version. Exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in lodging of the first information report should be satisfactorily explained." [Emphasis supplied]
26. PW1 the prosecutrix, to explain the delay deposed that initially she did not go to police because accused Noor Hassan was a rich person and was having good terms with the police and she was feeling that police would not do anything regarding her grievance. Then she told the incidents to her father. Thereafter, she made statement Ex.PW1/A before the police. In cross examination she stated that her father came to know SC No.08/13 State vs. Noor Hassan and Anr. Page 15 of 44 about the incident third day from the date of her ultrasound. Her father PW4 deposed that his daughter told his wife about the rape committed on his daughter. On that he took his wife and daughter to police station on 20.07.2011 and got registered the case. In cross examination PW1 stated that she told about the incident first of all to her mother at her house but she did not recollect the exact date month and year, when she told her about the incident. Her mother told about the incident to her father. She told her mother about the incident on the day when the ultrasound was conducted. Neither she nor her parents informed the police about the incident on the same day.
27. This explanation for reporting the matter on 20.7.2011 after the alleged incidents about one year prior to the date of the reporting the matter to the police is not convincing. PW4 admitted that a civil suit no 207/2011 against accused Noor Hassan, his wife Zaida begum and her brother Salim was filed by him and that was settled on 21.7.2011. Exhibit DW4/A, DW/4/B and DW/4/C contained the date of settlement 21.7.2011. It is not convincing that a person who had filed a civil suit in the court could not report the matter to the police because the accused was having good terms with the police. This has created doubt SC No.08/13 State vs. Noor Hassan and Anr. Page 16 of 44 about the truthfulness of the prosecution case.
28. My decision finds support by principles of law laid down in a case Jagdish v. State, (Delhi), 1987(1) R.C.R. (Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence."
29. Ld. Defence Counsel for accused persons submitted that testimony of prosecutrix was self contradictory, inconsistent and unreliable. There are improvements in her statements. The conviction cannot be based on such a piece of evidence. He submitted that accused persons are entitled for acquittal by getting benefit of doubt.
30. On perusal of file, I find that PW1, the prosecutrix deposed that she was illiterate and residing with her family in the house of accused Noor Hassan as tenant for the last about 9 years. There was a factory (Karkhana) on the ground floor of that house, besides, staircase for them and for office of the landlord. One year prior to recording of her statement on 12.04.2012, she did SC No.08/13 State vs. Noor Hassan and Anr. Page 17 of 44 not recollect the exact date but it was a noon time in summer season. Her mother was suffering from illness and she was sleeping after taking medicine. Accused persons Zaida Begam, wife of accused persons Noor Hassan, who used to come in said office, asked her to sweep out her office. She was sweeping staircase at that time. She swept out her office also. In the meantime accused Noor Hassan, Zaida Begam, present in the court, and Dr. Farukh who was friend of accused Noor Hassan also came there. Zaida Begum asked her to stay for sometime and asked her to drink sprite (cold drink) but she declined. Zaida Begam poured sprite in four glasses and gave one glass to her and she drank the same and after drinking she felt giddiness. She told Zaida Begam that she was feeling giddiness. She replied that it might be due to heat and summer. She caught hold her hand and got her seated on the bed of the said office. She felt darkness in her eyes. All of them made her to lie on the bed. She became unconscious. When she regained her consciousness, she did not find accused Zaida Begam there. Accused Noor Hassan and Dr. Farukh were present there. She found herself naked lying on the bed. Accused Noor Hassan and Dr. Farukh were wearing their clothes and they asked her to wear her clothes and hurriedly she wore her clothes. She was feeling pain in her abdomen and private parts. She asked them as to why SC No.08/13 State vs. Noor Hassan and Anr. Page 18 of 44 they committed such act with her and also told them that she would tell to her family members and others that they both had committed rape on her. Dr. Farukh showed her naked film with accused Noor Hassan in mobile phone wherein accused Noor Hassan was committing rape on her. Perhaps it was mobile phone of accused Noor Hassan. They also threatened her to show that film to others and expose the same on television and they would also kill her father and brother, if she told the incident to others. She was frightened and silently went to her house and did not tell anything to others. About two days later, she asked accused Zaida Begam as to why that act was got done with her and she replied that it happened due to bad habit of her husband and further that her husband was having affection with her. She also asked her not to disclose it to anyone. Thereafter, accused Zaida Begam stopped coming that place. After about 15 days, accused Noor Hassan and Dr. Farukh called her in said office and showed her aforesaid film in which accused Noor Hassan was committing rape on her. The said photograph and film were of the day of occurrence. They again repeated their threat. Dr. Farukh took away aforesaid photograph/film. Accused Noor Hassan detained her in his office and again committed rape on her without her consent and assured her that he would return the said photograph but he did SC No.08/13 State vs. Noor Hassan and Anr. Page 19 of 44 not return the same. After an interval of 15 days or one month, accused Noor Hassan used to call her in his office on the pretext of returning the photographs he used to commit rape on her. Dr. Farukh also used to come off and on there. After sometime, she did not recollect the exact date and month; she felt pain in her abdomen. Her mother suggested for ultrasound. On the next day, she got conducted ultrasound and she came to know that she was pregnant of one and a half month. She disclosed all facts to her mother and also met with accused Noor Hassan who slapped her and suggested for abortion in the clinic of Dr. Farukh. Initially she did not go to police because accused Noor Hassan was a rich person and was having relations with police and she was feeling that police would not do anything regarding her grievance, she told about the incident to her father and thereafter she made a statement Ex.PW1/A before the police. She was also produced before Ld. M.M. where her statement Ex.PW1/B was recorded.
31. On analyzing the prosecution evidence, I find that the prosecutrix is the only witness regarding happening of the actual incident. The testimonies of other witnesses are supporting and formal in nature. For example, PW2 proved copy of FIR as Ex.PW2/A. PW3 and PW4 are mother and father of the prosecutrix who deposed SC No.08/13 State vs. Noor Hassan and Anr. Page 20 of 44 that in the year 2011 their daughter, the prosecutrix told them about the rape committed on her and on 20.07.2011 they took their daughter to PS and got the case registered.
32. PW5 and PW15 proved the MLC of the prosecutrix as Ex. PW5/A. He also deposed that as per discharge summary, the prosecutrix was admitted in the hospital on 21.7.2011 and she was discharged o 26.7.2011. Her pregnancy was also terminated and sample for DNA test was prepared. She also proved discharge summary bearing signature of Dr. Sweta Sardana as Ex. PW5/B. PW15 stated that her urine pregnancy test was positive. In cross-examination she stated that neither had she asked the patient about the day, time, month, place and year of the alleged sexual assault on her nor did the patient disclose these particulars to her. There was no obvious injury on the private parts or other parts of the body of the patient.
33. PW6 deposed that she had taken the prosecutrix to hospital for the purpose of her medical examination in the intervening night of 20/21.7.2011. After medical examination, doctor handed over a kit sealed with the seal of GTB Hospital and she handed over the same to IO who seized the same vide memo Ex. PW5/A. She also identified SC No.08/13 State vs. Noor Hassan and Anr. Page 21 of 44 her signature on Ex. PW6/A.
34. PW7 deposed that he was neighbour of accused persons Noor Hassan, present in the court. His statement was not recorded by the police. He was declared hostile. In cross examination he stated that he did not state before police that on 23.7.2011, he had joined the investigation of this case with IO SI Rano Devi, Ct. Faiyaz or Ishrat or that one mobile of black colour with IME No 352012042743806 which was seized by the police was got recovered at the instance of accused persons Noor Hassan from the room situated on the second floor of house No. B-284, Street No. 1, Shani Bazar, Main Road, Kardan Puri, Delhi. He failed to identify said mobile.
35. PW8 deposed that on 21.7.2011 he was posted at PS Jyoti Nagar. Accused Noor Hassan present in the court was arrested. He proved his arrest memo and personal search memo as Ex. PW8/A and Ex. PW8/B. He took the accused to GTB Hospital for medical examination and he handed over the MLC of accused to IO along with sealed parcels and sample seal which were taken into possession vide memo Ex PW8/D.
36. PW9 proved MLC of accused Noor Hassan as Ex.
SC No.08/13 State vs. Noor Hassan and Anr. Page 22 of 44PW9/A and opined that there was nothing to suggest that the patient was unable to perform sexual intercourse. He also obtained samples of blood and semen and handed over to constable who brought him for the purpose of medical examination.
37. PW10 is a witness of seizure of mobile vide seizure memo Ex. PW7/A and its identification in the court as Ex. P-1.
38. PW11 is Ld. MM who proved the copy of proceedings Ex. PW11/A regarding recording of statement Ex. PW1/B of the prosecutrix u/s 164 of the Code.
39. PW12 deposed that on 11.5.2012 she conducted sonography of abdomen and pelvis of patient Zahida, accused No. 2 in the present case and proved her report as Ex. PW12/A.
40. PW13 deposed that on 20.7.2011, he was posted at PS Gokal Nagar and on that day the rukka was typed on the computer after obtaining permission from the Duty Officer and same was handed over, along with computerized copy of FIR to the Duty officer.
SC No.08/13 State vs. Noor Hassan and Anr. Page 23 of 4441. PW14 is IO Rano Devi who deposed generally about the manner in which she conducted investigation and further proved the above referred documents. However, in cross-examination she admitted that she did not collect the document of ownership of the mobile phone.
42. PW16 deposed that in the year 2011, he received telephone from the PS Jyoti Nagar to bring the accused Noor Hassan to the PS as he was having a quarrel with his tenant ____Y_____. He had taken the accused Noor Hassan present in the court who was his neighbour to the PS. ____Y_____ along with one girl was sitting there. He was informed at PS that accused Noor Hassan had committed a rape on the girl. He informed the police that there was no question of rape by accused Noor Hassan. The mobile of black colour, identified by the witness as Ex. P-1, belonging to accused was asked to be brought by his son and that was taken into police custody. PW16 was also declared hostile as he did not support the prosecution case. In cross examination conducted by Ld. Addl. PP, he deposed that he did not state before the police that accused Noor Hassan committed rape upon a girl or that on 23.7.2011 accused was made to sit by the police at PS SC No.08/13 State vs. Noor Hassan and Anr. Page 24 of 44 or that a mobile phone was recovered from the house of the accused Noor Hassan. In cross-examination conducted by Ld. Defence Counsel he stated that on 07.6.2011 a settlement was arrived between the father of the prosecutrix, namely Shri ____Y_____ and accused Noor Hassan pertaining to the eviction of the tenanted premises. He admitted that a document Mark PW16/DA was reduced into writing and it was signed by him at point A. He further stated that he did not hear any other complaint except a dispute regarding vacation of tenanted premises.
43. PW17 is the witness of arrest of accused Zaida Hassan. She proved her arrest memo as Ex. PW17/A and personal search memo as Ex. PW17/B.
44. PW18 is Inspector who partly investigated the present case and sent the case property to FSL, received the result from FSL, prepared charge sheet and filed it in the court.
45. On careful examination of the testimonies prosecution witnesses, I find contradictions, inconsistencies and improvements on the following points:
SC No.08/13 State vs. Noor Hassan and Anr. Page 25 of 44Size of the room in which alleged incident took place
46. PW1 in her examination in chief stated that there were two doors in the office of accused Noor Hassan. Accused Zahida Begum got her seated on the bad of said office. In cross examination she stated that she was unable to tell the direction of the door in the office of accused Noor Hassan. There were one bad, one table, chairs and one machine in that office. She could not tell the exact position of the articles kept in that office. It took her about 15 to 20 minutes to sweep the house of accused Noor Hassan. The door of the office of accused Noor Hussan leading to the stair was lying open where as other door leading towards the factory (karkhana) was closed. The size of the said office was approximately 6 X 6 feet. The size of the table kept in the office was approximately 2.5 X 4 feet. There were four chairs for iron, one chair of plastic and one revolving chair in that office. The machine in the office was occupying the space approximately 2.5 X 2.5 feet. The double bad kept in the office was made of the wood and it was having mattress and bad sheet. The table was at a distance of 2-3 steps away from the door. The arguments of Ld. Defence counsel that room/office of 6/6 feet cannot contain so many articles, is convincing. Thus the statement of the prosecutrix in this regard is self contradictory.
SC No.08/13 State vs. Noor Hassan and Anr. Page 26 of 44Use of phone by the porsecutrix
47. PW1 in her report EX.PW1/A, inter alia, mentioned that after the first incident, accused Noor Hassan and Dr. Farukh called her in the office by making a phone call. The prosecutrix as PW1 deposed that after fifteen days from the first incident accused Noor Hassan and Farukh called her in the office. Her statement is silent about use of phone for calling her. In cross examination she admitted that she did not have any mobile phone at any point of time till the date of recording of her statement. She further stated that she made a telephone call to accused Noor Hassan from telephone booth on the following day of her ultrasound. She did not remember the telephone number of accused Noor Hassan. She got the telephone number of accused Noor Hassan from his diary. Thus, the prosecutrix made inconsistent statement on this aspect.
About use of clinic for abortion
48. In the statement Ex. PW1/A made to the police, she stated that accused No. 1 asked her to get the child aborted in the hospital of Dr. Roshan Lal. In the court she deposed that that the accused No. 1 suggested for abortion in the clinic of Dr. Farukh.
SC No.08/13 State vs. Noor Hassan and Anr. Page 27 of 44Embellishments in the testimony of the prosecutrix
49. The prosecutrix, in her cross examination stated that she told police that there was a factory (karkhana) of land lord accused Noor Hassan on the ground floor of the house and that her mother was suffering from illness and so after taking medicine she was sleeping and that there were two doors in the office of the accused Noor Hassan and one stair case was opening in the factory and another was linked with the staircase and that accused Zaida begum used to come in the office and that Dr. Farukh, friend of accused Noor Hassan also used to come in the said office and that in the noon time she was sweeping her stair case and in the mean time accused Zaida Begum came there and that in the mean time accused Noor Hassan, Zaida Begum and Dr. Farukh came in the said office and that she felt darkness in her eyes and that accused Noor Hassan, Zaida Begum and Dr. Farukh made her lie on the bed and that accused Zaida Begum caught hold her hand and made her lie on the bed and that she was feeling pain in her abdomen and on her private parts at that time and that her naked film with accused Noor Hassan in mobile phone where in accused Noor Hassan was committing rape on her and that they threatened to kill her father, mother and brother and on that she became frightened and silently went to her house and did not tell SC No.08/13 State vs. Noor Hassan and Anr. Page 28 of 44 anything to anyone and that after two days she asked accused Zaida as to why she had got done such act with her and on that she told her that it was due to bad habit of her husband and she further told her that her husband was having affection with her and that is why he did so with her and she also asked her not to tell about it to anyone and after that they accused Zaida Begum stopped visiting said factory and that after fifteen days accused Noor Hassan and Dr. Farukh showed her aforesaid time and in that film accused Noor Hassan was committing rape on her and after 10-15 days, accused Noor Hassan and Dr. Farukh called her in the office after making telephone call in the noon time and after Dr. Farukh showed her naked photographs which he was holding in his hands that accused Noor Hassan and Dr. Farukh threatened her to expose aforesaid photographs and film to others in case she tell about the incident to anyone and thereafter Dr. Farukh took away the aforesaid photographs and film and that accused Noor Hassan detained her in the office and again committed rape on her without her consent and thereafter he assured her that he would return the said photographs but he did not return the same and that after an interval of fifteen days or one month accused Noor Hassan used to call her in his office stating that he would return the photographs and used to commit rape on her SC No.08/13 State vs. Noor Hassan and Anr. Page 29 of 44 but he did not return the photographs and that she got conducted ultrasound and she came to know that she was pregnant of about one and a half month. All these were not found recorded in her statement Ex. PW1/A made to the police. Thus the prosecutrix has made improvements and embellishments in her statement and that has further created doubt in the truthfulness of her testimony.
50. As discussed above, except testimony of prosecutrix, testimonies of all other witnesses are formal in nature. Thus, the prosecutrix is the only material witness of the prosecution. Now, it has to be seen if it would be just fair and appropriate to act upon testimony of solitary witness prosecutrix for holding the accused persons guilty for the offences alleged by her?
51. After considering the arguments of Ld. Additional Public Prosecutor for the State, Ld. Counsel the prosecutrix and Ld. Defence Counsel and on analyzing the prosecution and defence evidence on record, I come to the conclusion that it would not be just, fair, reasonable and appropriate to act upon the sole testimony of the prosecutrix. Rather it would be hazardous to act upon the testimony of the prosecutrix. The reasons which support my decision are firstly that statement of prosecutrix is not SC No.08/13 State vs. Noor Hassan and Anr. Page 30 of 44 only inconsistent and self contradictory but also her testimony has not been found wholly true. The material contradictions and substantial embellishments in her statement which have been discussed here in above, have converted her testimony as unreliable and untrustworthy.
52. My decision on this aspect finds support by the principles of law laid down in case of Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful."
53. My decision on this aspect further finds support by the principles of law laid down in case of a case Labh Singh v. State of M.P., IX-1986(3) Crimes 176, wherein the SC No.08/13 State vs. Noor Hassan and Anr. Page 31 of 44 accused persons was acquitted for the offence punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the prosecution story.
54. My decision on this aspect further finds support by the principles of law laid down in a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031, wherein the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused persons."
[Emphasis supplied]
55. Secondly, in a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, the Apex Court observed:
"The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
***(4) She may have been induced to do so in consideration of economic rewards, by a person SC No.08/13 State vs. Noor Hassan and Anr. Page 32 of 44 interested in placing the accused persons in a compromising or embarrassing position, on account of personal or political vendetta.*** (6) She may do so on account of jealousy.***
10. By and large these factors are not relevant to India, the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted."
[Emphasis supplied]
56. The principles of law laid down in the above case provide benefit to the accused persons as it has been established on record that there was dispute and litigation between the parties. Thus, there was motive for the prosecutrix to falsely implicate the accused persons in the present case.
57. Thirdly, the prosecution could not establish beyond reasonable suspicion and shadow of doubt that the prosecutrix has deposed whole truth. The prosecutrix even could not tell the first, last or any other date of sexual assault on her. Thus, the prosecution could not prove it case on the standard as laid down in case of Ashok Narang v. State, 2012 [1] JCC 482 wherein the Delhi High Court observed that:
SC No.08/13 State vs. Noor Hassan and Anr. Page 33 of 44"104. If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistence statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses."
58. Lastly, as the testimony of the prosecutrix is inconsistent, self contradictory and it has not been corroborated by any other witness so the principles of law laid down in case State v. Jai Hind, 2012 VI AD (Delhi) 170, relied on by Ld. Addl. Public Prosecutor will not provide any benefit to the prosecution.
59. On considering the arguments of Ld. Additional Public Prosecutor for the State, Ld. Counsel the prosecutrix and Ld. Defence Counsel and on scrutinizing and evaluating the prosecution and defence evidence on record, I come to the conclusion that the prosecution has failed to prove its case against both the accused beyond reasonable suspicion and shadow of doubt that accused persons committed the alleged offences. The other reasons, besides the reasons discussion and evidence discussed here in above, are firstly, the testimony of the prosecutrix has not been supported by medical evidence and scientific evidence. PW5 who proved MLC EX.PW5/A of SC No.08/13 State vs. Noor Hassan and Anr. Page 34 of 44 the prosecutrix, deposed that at the time of medical examination of the prosecutrix by Dr. Ankita, the prosecutrix was found in a family way having pregnancy of two months. The medical safe kit was prepared taking different materials for further examination. She further deposed that the prosecutrix was admitted in the hospital on 21.07.2011 and she was discharged on 26.07.2011. The pregnancy of the prosecutrix was terminated and sample for DNA test was prepared and thereafter, prosecutrix was discharged vide discharge summary Ex.PW5/B. PW15 further proved the MLC Ex.PW5/A of the prosecutrix. PW9 proved MLC of the accused No. 1 as Ex.PW9/A and he also deposed that blood and semen sample of the patient were collected, sealed and handed over to Ct. Devender. PW18, inter alia, deposed that he sent the case properties to FSL and after receipt of FSL result, he filed the same in the court. PW14 proved FSL and DNA report as Ex.PW14/B. It was reported that no opinion was offered due to non isolation of DNA from the source of Ex.4. Thus, it could not be established that the child which was conceived by the prosecutrix belonged to accused No. 1 or that child was conceived because of the sexual intercourse committed on the prosecutrix by the accused No. 1. It is not in dispute that the prosecutrix was medically examined after many days from the alleged last sexual assault on her. PW15, SC No.08/13 State vs. Noor Hassan and Anr. Page 35 of 44 who medically examined the prosecutrix, in her cross examination admitted that there was no obvious injury on the private part or on other parts of the patient. There was no current evidence available on the person of the patient at the time of her examination that she was sexually assaulted. In these circumstances it is held that there was absence of scientific evidence to support the prosecution case. This has further created doubt about the genuineness of the prosecution case.
60. My decision finds support by principles of law laid down in a case Sakariya v. State of M.P., 1991 CRI.L.J. 1925. The M.P. High Court set aside the conviction and sentence awarded by Trial Court on the grounds, inter alia, that the Chemical Examiner's report was negative so far as seminal stains and presence of spermatozoa are concerned, nothing of the sort, was detected on chemical examination.
61. My decision further finds support by a case Sanya alias The prosecution could not Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, wherein it was observed by Orissa High Court that:
SC No.08/13 State vs. Noor Hassan and Anr. Page 36 of 44"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable to be set aside."
[Emphasis supplied]
62. My decision further finds support by a case Lachhman and another v. State, 1973 CRI. L.J. 1658, wherein the Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a SC No.08/13 State vs. Noor Hassan and Anr. Page 37 of 44 struggle, seminal stains on her clothes or the clothes of the accused persons or on the places where the offence is alleged to have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused persons it would be most dangerous to base a conviction on her uncorroborated testimony alone." [Emphasis supplied]
63. My decision further finds support by principles of law laid down in a case Ramcharan v. The State of M.P., IX-1986(3) Crimes 165, wherein the Madhya Pradesh High Court observed that:
"In a rape case, the oral testimony of the prosecutrix particularly when she is a married and grown up woman must be scrutinized with abundant caution and care to ensure that it is not concocted or embellished to any extent.*** Another circumstance, to discredit Mst. Phullibai's oral testimony, is the negative nature of medical evidence. The prosecutrix has stated that she was felled to the ground by the appellant-accused persons who had also given a tooth bite on her right cheek, but there are no external injuries on the person of the prosecutrix as is amply clear from P.W.8 Dr. Phuspa's evidence. Therefore, the prosecution story regarding the alleged rape is not free from doubt. As such, the appellant-accused persons deserved to be acquitted of the offence in question by giving him benefit of doubt.***"
[Emphasis supplied]
64. My decision also finds support by principles of SC No.08/13 State vs. Noor Hassan and Anr. Page 38 of 44 law laid down in a case Chidda Ram v. State, VIII-1992(2) Crimes 1142, it was held by Delhi High Court that:
"In the absence of medical report of vaginal and cervical swabs it cannot be said that the petitioner committed sexual intercourse with the prosecutrix on the night of 28th May, 1975. Even otherwise the story given by the prosecutrix after being handed over by the police to her mother does not inspire confidence nor any credence can be attached to the same. Her version vary from stage to stage and from point to point. Therefore, no much reliance can be placed on the testimony of the prosecutrix particularly when there is no corroboration for the same."
65. Secondly, conduct of the prosecutrix was not found natural. For example, in her examination in chief, the prosecutrix deposed that she was called by the accused No. 2 to sweep the office. In cross examination, she stated that she never swept the office of the accused in past. The evidence on record has also established that there was dispute and litigation between the parties. In these circumstances it is not convincing and believable that she would obey the command of the accused No. 2 and will go to sweep the office of the accused. The prosecutrix in her examination in chief stated that the accused No. 1 used to call her on interval of 15 days or one month on the pretext of return of the obscene video film and photograph but after committing sexual intercourse with her, he used to refuse to return the film and photographs and these incidents continued for more than one year. It is again not SC No.08/13 State vs. Noor Hassan and Anr. Page 39 of 44 convincing that the prosecutrix will again and again visit the office of the accused of the said purpose particularly when in the past she was having experience that accused was not fulfilling his promises to return the film and photograph. The statement of the prosecutrix that he continued to have sexual intercourse with the accused for a period of more than one year is not convincing. This, has further created doubt about the reliability of the testimony of the prosecution case.
66. My decision finds support by principles of law laid down in a case Lalliram & Anr. v. State of M.P., (SC) 2008 [4] JCC 2813, wherein it was held by Apex Court that:
"As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the actual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar's case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on higher pedestal then the injured witness.In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial."
[Emphasis supplied]
67. Thirdly, the prosecutrix, inter alia, deposed that SC No.08/13 State vs. Noor Hassan and Anr. Page 40 of 44 the accused No. 1 and Dr. Farukh showed her video film performing sexual intercourse on her by the accused No. 1 in mobile phone of the accused No. 1. The said mobile phone was seized by the IO and it was sent to FSL. A DVD containing all the materials in the mobile phone after retrieving the same was sent to this court. The DVD was played in the court. As some of the portions/files could not be played, so the official of FSL namely Dr. N.P. Waghmare who prepared the DVD was also summoned. He reported that he tried to operate the DVD but it could not run. There was nothing objectionable in the files which could be played. The Computer Forensic Unit in its report Ex.PW14/D mentioned that all the data retrieved from the memory card of the cell phone Nokia EMIE No.352012/04/274380/6 was given in DVD-R. After playing the DVD-R in the court nothing objectionable or obscene was noticed. This has further established that prosecution could not prove that the accused No. 1 with the help of Dr. Farukh either prepared obscene film by committing rape on the prosecutrix by the accused No. 1 or they showed the film to the prosecutrix. This, has further created doubt in the truthfulness of the prosecution case.
68. Fourthly, two prosecution witnesses, PW7 and PW16, did not support the prosecution case. Conversely, SC No.08/13 State vs. Noor Hassan and Anr. Page 41 of 44 both these witnesses supported the defence of the accused persons. This has also created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
69 Fifthly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused persons, the accused persons is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
70. Sixthly, the accused persons has succeeded in creating doubt in prosecution case so they are entitled to get benefit of doubt. My decision on this aspect finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High SC No.08/13 State vs. Noor Hassan and Anr. Page 42 of 44 Court that:
"It is not necessary for the accused persons to substantially prove their plea. Suffice it to say that if the accused persons succeeds in creating a doubt, they would be entitled to benefit of it."
71. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused persons is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
72. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused Noor Hassan and accused Zaida Begam in furtherance of their common intention committed offence of causing hurt by poisonous substance, etc. punishable u/s 328/34 IPC or accused Noor Hassan either committed gang rape on the prosecutrix punishable u/s 376 (2) (g) IPC or offence of criminal intimidation punishable under section 506 IPC, or accused Zaida Begam abated the SC No.08/13 State vs. Noor Hassan and Anr. Page 43 of 44 commission of gang rape by accused Noor Hassan punishable u/s 376 (2) (g) r/w Section 109 IPC. Consequently, by giving benefit of doubt to the accused persons, accused Noor Hassan is acquitted for the offences punishable u/s 328/506 r/w Section 34 and Section 376 (2)
(g) IPC and accused Zaida Begam is acquitted for the offence punishable u/s 328/34/ 376 (2) (g)/ 109 IPC.
73. Accused Noor Hassan is in J.C. He be released forthwith if not required in any other case.
74. However, accused persons are directed to furnish within seven days their personal bond for a sum of Rs.10,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
75. After furnishing of surety bonds file be consigned to Record Room with the permission to revive the same as and when Dr. Farukh is arrested and supplementary charge sheet is filed against him. Announced in the Open Court Dated: 24.05.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.08/13 State vs. Noor Hassan and Anr. Page 44 of 44