Delhi District Court
State vs Accused Persons on 3 January, 2014
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.02402R0271842013 SC NO.252/13 Date of Institution : 27.08.2013 FIR No. 178/13 Date of Argument : 03.01.2014 PS Mayur Vihar Date of Order : 03.01.2014 U/S 376/328/506/120B IPC State Versus Accused persons 1 Aslam Mohd. @ Ikram S/o Sameed Ansari, R/o 27/40, Trilok Puri, Delhi 2 Shabana @ Nannhi, W/o Aslam @ Mohd. Ikram R/o 27/40, Trilok Puri, Delhi JUDGMENT
The facts in brief of the prosecution case are that on 20.05.2013, ___x______, d/o ____y_____, aged 25 years, R/o _______z______________, herein after referred to as the prosecutrix, lodged a report at PS Mayur Vihar alleging that she had been residing at above mentioned address along with her mother and two brothers and sister and she was working as a maid servant in IFS Apartment Mayur Vihar, Phase-I. She was married with _______z-1_, R/o _______z-2______, Delhi about 8 years ago and out of that wedlock she was having a son namely __z-3 aged about 7 years. She was divorced by her husband after 3 years from SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 1 of 10 the date of her marriage. Her son was residing with her husband. On 10/11 March, 2013 at about 11.00 AM, she had gone to the house of Aslam @ Ikran, herein after referred to as the accused no. 1 who was her Mausa in relation at 27/40 Trilok Puri, Delhi as she was having visiting relations with him. His family members were also present. Her Mausi named Shabana @ Nannhi, herein after referred to as the accused no. 2 was also present in the house. She served cold drink to her and soon thereafter, accused no. 1 went to drop her at IFS Apartment in car LX Indica. After sitting in the vehicle, she started feeling giddiness and thereafter she became unconscious. When she regained her consciousness, she realized that she was being taken by her Mausa to a unknown place and thereafter, she was dropped on a road near her house and she laid down on the bed as she was not feeling well. At 6-7 PM, she felt heaviness in her head and she realized that her Mausa, the accused no. 1 made physical relations with her in the state of her unconscious. On the next day, accused no. 1 called her at 27 Block Chowk and she was made to sit in his car on the pretext that he was taking her to drop at IFS Apartment. The accused no. 1 stopped his vehicle near Anmol Hospital and he showed her video clips and photographs in which she was seen with accused no. 1 without clothes. She tried to snatch mobile but the accused SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 2 of 10 no. 1 removed memory card from the phone and in the scuffle that memory card fell down and could not be traced. Thereafter, she went to IFS Apartment. After 2 days, the accused no. 1 told her that he traced the memory card and he threatened her to put her photo and video on the net and to kill her brother ___z-4, if she did not marry to him. On 08.05.2013, the accused no. 1 took her to ___z-4muddin where she solemnized marriage with her and brought her to 20 Block, Trilok Puri where he made physical relations with her 2-3 times in 3-4 days. She informed her sister ___z-5___. She came and after meeting her, she returned and on next day she again came to meet her and took her to IFS Apartment where she met her mother. She disclosed all the incident to them. On the basis of that report, FIR No. 178/13, dated 20.05.2013, under Section 376/328/506 IPC at PS Mayur Vihar was recorded. She was taken to LBS hospital on 21.05.2013 where her MLC was prepared. She refused to undergo her internal medical examination. Accused no. 1 was arrested on 21.05.2013. His arrest memo and personal search memo were prepared. He was taken to LBS Hospital where his MLC was prepared and it was opined by the Doctor that there was nothing to suggest that the accused was not capable to perform sexual intercourse. The prosecutrix was again taken to LBS hospital on 28.05.2013 and her MLC was SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 3 of 10 prepared. Accused no. 2 was arrested on 23.07.2013. On 12.08.2013, IO inspected the place of occurrence and prepared site plan. IO also seized documents and on completion of investigation filed a charge sheet against the accused persons for their trial for the offences punishable u/s 376/328/506/120B IPC.
2. Ld. M.M., on receipt of charge-sheet took cognizance of the offence against the accused and after supplying of copies of charge-sheet, etc., committed this case to the court of Sessions and it was assigned to this Court.
3. Vide order dated 10.09.2013, this Court was of the opinion that there was a prime facie case for framing of charge against accused Aslam @ Mohd. Ikram for the offences punishable u/s 376/354-A/506 IPC and against the accused Shabana @ Nannhi for the offences punishable under Section 376/109 IPC. Therefore, charges against the both the accused for the said offences were framed and read over to them in vernacular language. Accused persons pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined prosecutrix ___x______ as PW-1, ___z-5___ as PW2 SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 4 of 10 and ___z-6_____ as PW-3.
5. As material witnesses did not support the prosecution case and remaining witnesses were of formal nature, therefore, prosecution evidence was closed.
6. As there was no incriminating evidence against the accused persons, therefore, statements of accused u/s 313 of the Code was dispensed with.
7. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and perused file.
8. On perusal of file, considering the arguments of Ld. Additional Public Prosecutor for State and Ld. Defence Counsel and on analyzing the evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond reasonable suspicion and shadow of doubt. The reasons which support my decision are firstly that prosecutrix did not support the prosecution case. She, inter alia, deposed that Aslam is her Mausa and Shabnam is her Mausi in distant relations and she was having visiting terms with them. She did not recollect the date but in the month of March, she went to the house of SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 5 of 10 of accused persons where accused Shabnam offered cold drink to her and thereafter accused Aslam went to drop her in his Indica car. She felt giddiness and felt unconscious and when she was in semi conscious state, she realized that she was alighting from stair case. She realized something happened to her but she did not disclose anything to anyone. Accused no. 1 committed sex with her. They were having good relations with each other. Next day, accused no. 1 called her by making her telephone call. He showed a video clipping in which she was without clothes with accused no. 1. She tried to snatch the same but could not. Accused no. 1 threatened her that he would get her brother and sister killed, if she did not marry with him. Due to fear she did not disclose all these facts to anyone. On 08.05.2013, accused no. 1 solemnized Nikah with her and thereafter made physical relations with her 2-3 times. Thereafter, she lodged the police report. In cross examination conducted by Ld. Defence Counsel, she admitted that she solemnized Nikah with accused no. 1 on 06.05.2013 at ___z-4muddin and Nikahnama Ex. PW1/D1 was signed by her at point A and her photograph was also pasted on that at point C and of accused no. 1 at point D. In response to Court question as to whether she solemnized marriage under fear or pressure, the witness kept silent and once she stated that she was under fear SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 6 of 10 and again stated that she was not having fear at that time. Further she admitted that she was not put under fear after solemnization of Nikah and she was not given any threat at that time. She was staying with the family of accused 3-4 days prior to the date of Nikah. Family of accused no. 1 consisted of his parents, three brothers and two sisters. She did not ask any family members of accused to call her family members. There was no restriction on her for not going out of the house of accused. After solemnization of marriage, she made a telephone call to her mother and told her that she was well. Her family members and family members of accused were having visiting relations in the house of each other. Age of the accused no. 1 and her age is almost equal. The physical relations between her and accused no. 1 were made with her consent. She was having friendly relationship with the accused no. 1 for the last three years from the date of incident. They used to like each other. She wanted to live with accused no. 1 as his wife. It was a love marriage. She solemnized marriage with the accused no. 1 with her free will and without any fear or coercion or threat. Physical relations between her and accused no. 1 were always made before and after marriage with the consent of each other. She reported the matter to the police due to misunderstanding on the point of living together with the another wife of the accused. She SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 7 of 10 levelled allegations against the accused due to misunderstanding and at the instance of police and she deposed before Ld. MM at the instance of police. She did not see any pornography video clippings. Accused never gave any threat to her for killing her brother ___z-4. Witness volta faced her statement. So at the request of Ld. Additional Public Prosecutor, she was allowed to be re- examined. In the cross examination conducted the Ld. Additional Public Prosecutor, she denied the suggestions that she deposed correctly about administering the intoxicant to her in the cold drink before the police and before Ld. MM at her own and not at the instance of police officials or the accused no. 1 made physical relations with her without her consent and against her will or that she solemnized the marriage with the accused no. 1 due to fear of killing of her brother. Thus, the prosecutrix did not support the prosecution case. Her statement was found inconsistent, unreliable and untrustworthy. In the testimony of prosecutrix, the ingredients of rape, sexual harassment, criminal intimidation and abetment of rape could not be established.
9. Secondly, the other material prosecution witnesses also failed to support the prosecution case. They were also declared hostile and in cross examination SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 8 of 10 conducted by Ld. Additional Public Prosecutor neither of them supported the prosecution case. They inter alia, stated that the prosecutrix did not tell anything to them against the accused persons. Conversely, they deposed that prosecutrix told them that she got marriage with the accused no. 1 on her free will. Thus, material witnesses did not support the prosecutrix.
10. Lastly, the remaining witnesses who remained unexamined are not the witnesses of occurrence. These witnesses are not material witnesses. Their testimonies are also of formal in nature. In the absence of incriminating evidence by eye and material witnesses, their statements are of no use in proving the prosecution case. I am also of the view that their testimonies will not going to change the result of the case and recording testimonies of these witnesses will only be a futile exercise.
CONCLUSION
11. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case beyond any reasonable suspicion and shadow of doubt that accused Aslam @ Mohd. Ikram committed offence of rape on the prosecutrix punishable under Section 376 IPC SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 9 of 10 or offence of sexual harassment punishable under Section 354-A IPC or offence of criminal intimidation punishable under Section 506 IPC or accused Shabana @ Nannhi committed offence of abetment of commission of offence of rape punishable under Section 376/109. Resultantly, accused Aslam Mohd. @ Ikram is acquitted for the offence punishable under Section 376/354-A/506 IPC & accused Shabana @ Nannhi is acquitted for the offence punishable under Section 376/109 IPC
12. Accused Aslam @ Mohd. Ikram is in J.C. He be released from the jail if he is not required in any other case.
13. However, in view of provisions of Section 437 A of the Code accused persons are directed to furnish within a week bail bond/surety bond in the sum of Rs.10,000/- each with one surety of like amount for the period of six months.
14. After furnishing of surety bond, file be consigned to Record Room.
Announced in the Open Court Dated: 03.01.2014 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.252/13 State Vs. Aslam @ Mohd. Ikram & Anr. Page 10 of 10