Delhi District Court
State vs Mushir Ahmed S/O Bashir Ahmad on 23 March, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, LD.
ADDITIONAL SESSIONS JUDGE - 0I : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0178282007
Sessions Case No. 165/2007
Assigned to Sessions. 04.04.2007
Arguments heard on 08.03.2011
Date of order. 17.03.2011
FIR No. 21/2007
State Vs Mushir Ahmed s/o Bashir Ahmad
r/o A29, G. No.1, Munga Nagar,
Nala Road, Karawal Nagar, Delhi.
Police Station Gokalpuri
Under Section 376/363/366/342 IPC
JUDGEMENT
1. Station House Officer of Police Station Gokalpuri had filed a challan vide FIR no. 21/2007 dated 11.01.2007 u/s 342/376 IPC for the prosecution of accused Mushir Ahmad in the court of Ld. Metropolitan Magistrate and Ld. MM after compliance of section 207 Cr. P.C. committed this case for trial before this court. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om State Vs. Mushir Ahmad SC No.165/2007 Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. In brief, facts of the case are that on 10.01.2007 a DD No.25A mark 'Z' was recorded at police station Gokalpuri on a PCR Call regarding rape upon a girl at Karawal Nagar Road, Near Nala ki Puliya, Badi Masjid. On receipt of DD, police reached at the spot and on the statement of complainant Mehrunisha Ex.PW2/A, police had registered the present FIR No.21/07 Ex.PW12/B u/s 342/376 IPC dated 11.01.2007. Accordingly, during the course of investigation police arrested accused Mushir Ahmad and accordingly filed the challan in the court of Ld. MM.
3. On the basis of material available on record ld. predecessor of this court framed a charges vide order dated 30.04.2007 against accused Mushir Ahmad for the offences punishable u/s 342/366/376 IPC to which accused did not plead guilty and claimed trial.
4. In order to prove its case prosecution has examined 14 witnesses namely PW1 Prosecutrix, PW2 Mehurnisha, neighbour of State Vs. Mushir Ahmad SC No.165/2007 prosecutrix, PW3 Md. Anees, PW4 Mohd. Rahis, PW5 HC Vinod Kumar, PW6 Dr. Anshuja Singla, PW7 Ruksaar, PW8 HC Ram Bhaj, PW9 ASI Subhash Chand, PW10 HC Devender Kumar, PW11 W/ASI Nirmala, PW12 HC Ratan Lal, PW13 Dr. P. Yadav, and PW14 Sh. Amit Kumar, Ld. Senior Civil Judge.
5. PW1 prosecutrix deposed that when she was going to a park for strolling, she was caught hold by one old person and he took her inside his house and got slept her there. She further deposed that he committed galat kaam with her and he opened her string of salwar and 'sab dabaya' She further deposed that nothing else was done by said buddha. She further deposed that accused is the same person who committed galat kaam with her. This witness was cross examined by Ld. APP. In his cross examination she denied that she had stated to the police that she had told her neighbour Mehrunisha and her bhabhi regarding the incident happened with her. She further deposed that she had not told regarding the incident to the Ld. MM as she was afraid that her brother will give beatings to her. She further deposed that name of said person is Masoori and he had committed galat kaam with her forcibly. In cross examination by ld defence State Vs. Mushir Ahmad SC No.165/2007 counsel she deposed that her family members including his brother did not try efforts to marry her despite her asking on various occasions. She further deposed that her bhabhi used to beat her and she used to do household work on their asking and whenever she used to meet some of her friends they used to beat her.
6. PW2 Mehurnisha. This witness is the neigbour of prosecutrix. This witness deposed that prosecutrix used to visit her house and she give her food. This witness further deposed that brother of prosecutrix had knocked her door and inquired regarding whereabouts of prosecutrix. She further deposed that in the morning prosecutrix visited her house and on enquiry from her she told that one person having beard had committed sexual intercourse with her. Thereafter, this witness informed this fact to bhabhi of prosecutrix. In the presence of this witness, prosecutrix had told to her brothers that accused had committed sexual intercourse with her. This witness made a call to police on 100 number and her statement was recorded by police Ex.PW2/A. This witness also accompanied prosecutrix for her medical examination. This is also the witness of arrest of accused.
State Vs. Mushir Ahmad SC No.165/2007
7. PW3 Md. Anees. This witness is the brother of prosecutrix. This witness had lodged a missing report of prosecutrix in the police station in the intervening night of 910 January'2007. This witness was told about the incident by his elder brother Md. Raees and by Mehrunisha. This witness had also accompanied police to the police station along with his family members. In the presence of this witness clothes of prosecutrix were seized vide seizure memo Ex.PW3/A and accused was arrested vide arrest memo Ex.PW3/B and his personal search memo Ex.PW3/C was prepared.
8. PW4 Md. Rahis. This witness is formal in nature and this is also a hearsay witness.
9. PW5 HC Vinod Kumar. This witness deposed that on 11.01.2007 ASI Subhash Chand deposited three sealed pullandas and two sample seals in the malkhana vide serial No.626 of register No. 19. this wtienss further deposed that on 09.02.2007 the sealed pullandas were sent through HC Devender to CFSL, Kolkata vide RC No.218/21. This witness got exhibited register Ex.PW5/A and photocopy of RC certificate Ex.PW5/B. State Vs. Mushir Ahmad SC No.165/2007
10.PW6 Dr. Anshuja Singla. This witness has proved the MLC No.C 117/07 Ex.PW6/A of prosecutrix on behalf of Dr. Rashmi.
11.PW7 Ruksaar is the bhabhi of prosecutrix. This is also a hearsay witness.
12.PW8 HC Ram Bhaj. This is a formal witness. This witness accompanied IO to the spot i.e Puliya Nala Road, Munga Nagar. This witness got medically examined prosecutrix from GTB Hospital and witness Marunisha accompanied him to the hospital and after her medical examination handed over sealed pullanda nd sample seal to the IO which IO seized the same vide seizure memo Ex.PW8/A. Accused Mushir Ahmad was arrested and his personal search memo was prepared in the presence of this witness. This witness took the accused to GTB Hospital for his medical examination and after his medical examination he received two sealed pullandas and one sample seal which he handed over to the IO who seized the same vide seizure memo Ex.PW8/B. State Vs. Mushir Ahmad SC No.165/2007
13.PW9 ASI Subhash Chand is a material witness being IO of present case. This witness has deposed that on 10.01.2007 on receipt of DD No.25 mark 'Z' he along with Ct. Ram Bhaj reached at the spot i.e. Puliya Nala Road, Munga Nagar i.e. House of accused where one Marunisha, Mohd. Anas and prosecutrix met them. Accused Mushir Ahmad was brought by them. This witnesses further deposed that aforesaid witnesses informed him that accused Mushir Ahmad had committed rape with prosecutrix. This witness got conducted medical examination of prosecutix from GTB Hospital and seized one sealed pullanda and one sample seal which was handed over to him by Ct. Ram Bhaj. This witness recorded statement of Marunisha and made endorsement upon the same vide Ex.PW9/A and FIR was got registered. Thereafter, this witness along with Marunisha and prosecutrix went to the spot and prepared site plan Ex.PW9/B at the instance of prosecutrix. This witness had arrested the accused Mushir Ahmad in the present case. This witness had seized the suit and Salwar of prosecutrix vide seizure memo Ex.PW3/A which were brought by brother of prosecutrix. This witness got conducted medical examination of accused State Vs. Mushir Ahmad SC No.165/2007
14.PW10 HC Devender Kumar. This witness had taken four sealed pullandas and two sample seals from MHC (M) vide RC No.218/21 and got them deposited at CFSL, Kolkata.
15.PW11/W/ASI Nirmala. This witness had recorded statement u/s 161 Cr.P.C. of prosecutrix as well as statement u/s 161 Cr.P.C. of bhabhi of prosecutrix namely Ruksar.
16.PW12 HC Ratan Lal. This witness had recorded FIR Ex.PW12/B u/s 342/376 IPC on 10.11.2007 on the basis of rukka produced by ASI Subhash.
17.PW13 Dr. P. Yadav. This witness had proved the MLC Ex.PW9/A of accused Mushir Ahmad.
18.PW14 Sh. Amit Kumar, Ld. Senior Civil Judge. This witness proved the application Ex.PW14/A moved by IO for recording of statement of prosecutrix u/s 164 Cr.P.C and also proved statement of prosecutrix Ex.PW14/B which recorded by him. This witness has also issued certificate regarding correctness which Ex.PW14/C. This State Vs. Mushir Ahmad SC No.165/2007 witness has given copy of statement of prosecutrix on the written request of IO Ex.PW14/D.
19.After prosecution evidence, statement of accused person u/s 313 Cr.P.C. was recorded where accused denied all these evidence and circumstances put to him. Accused in his statement u/s 313 Cr.P.C. has deposed that he is innocent and due to enmity with Mehrunisha, he has been falsely implicated in the present case in collusion with brothers of the prosecutrix.
20.Thereafter, case was fixed for final arguments. ARGUMENTS
21.Ld. APP for state, Sh. Zenual Abedeen argued that accused Mushir Ahmad in the intervening night of 09/10.01.2007 had confined and kidnapped the prosecutrix with intention to commit rape upon her and in this regard a complaint was made by neighbour of prosecutrix in the Police Station. Accordingly, case under section 342/376 IPC was registered against accused Mushir Ahmad. Ld. APP further argued that PW1 prosecutrix is most material witness. She has State Vs. Mushir Ahmad SC No.165/2007 supported the case of prosecution. She has deposed that accused had committed galat kaam with her by opening her string of salwar. This witness has correctly identified the accused in the court. PW2 Mehurnisha is also a material witness, at the instance of this witness FIR was lodged. PW3 Md. Anees has lodged the missing report of prosecutrix Ld. APP further submits that since the statement of prosecutrix support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 342/376 IPC. Statement of PW1corroborate the statement of PW2 complainant on Ld. APP for state further argued that statements of PW1 and PW2 have supported the case of prosecution, so these statements are sufficient to convict the accused persons for offence charged as prosecution has proved its case beyond reasonable doubt.
22.On the other hand, Ld. counsel for accused submits that DD No.25A dated 10.01.2007 mark Z was recorded by HC Raghubir. Ld. counsel further argued that PW2 Mehrunisha is shown as neighbour whereas she is mother of prosecutix and prosecutrix came to her house and stayed there. Ld. Counsel for accused further State Vs. Mushir Ahmad SC No.165/2007 deposed that missing report dated 09.01.2007 lodged by brother of prosecutrix is not on record and there is delay in action on part of brother of prosecutrix. Ld. Counsel for accused further submits that PW1 did not narrate the incident to any body including neighbour. Ld. Counsel for accused further submits that seizure memo Ex.P1 shows green colour chhitdar kameez and badami green colour salwaar whereas prosecutrix had wearing red colour salwar kameez on the day of incident. Ld. Counsel for accused further submits that MLC of prosecutrix is undated. Ld. counsel for accused further submits that PW2 in her cross examination has stated that her statement was recorded at police station whereas IO states that statement of PW2 was recorded at spot.
23.Ld. counsel for accused further submits that Md. Anees states that he was on job and further states that prosecutrix had gone to house of Mehrunisha at 11:00 p.m. Ld. Counsel for accused further submits that statement of PW4 is not corrobrated with MLC, several public persons accompanied him.
State Vs. Mushir Ahmad SC No.165/2007
24.Ld. counsel for accused further argued that statement of PW5 is not corroborated with MLC on point of time. Ld. Counsel for accused further submits that as per PW7 mental health of prosecutirx is not well from the last eight years but same fact is not corroborated with MLC. Ld. Counsel for accused further argued that colour of suit of prosecutrix is also not matched with statement of prosecutrix. Ld. counsel for accused further submits that prosecutrix had taken bath and changed her clothes and she remained with PW7.
25.Ld. Counsel for accused further submits that family members of Mushir Ahmad were present whereas Mushir Ahmad resides in the room with the family consisting of five children and wife husband total seven members.
26.Ld. counsel further submits that PW8 states he went to GTB Hospital at 2:00 a.m. Where prosecutrix was sent to hospital after 11:00 p.m. Accused was medically examined at 10:00 - 11:00 a.m. Whereas MLC shows 11:35 p.m. State Vs. Mushir Ahmad SC No.165/2007
27.Ld. counsel for accused further submits that PW 9 states that he went to spot along with PW8 with his bike but PW8 states that he went with two wheeler scooter. Ld. Counsel for accused further submits that no person was called from Masjid to be a witness.
28.Ld. counsel for accused further submits that Mehrunisha and brother of prosecutrix had told that rape has committed with prosecturix but prosecutrix did not state that rape has been committed. PW9 states that prosecutrix was sent for medical examination at about 01:00 a.m. Accused was sent for medical examination after 4 - 5 hours of Medical examination of prosecutrix and prosecutrix was examined at 01:00 a.m. Ld. Counsel for accused further submits that PW11 had recorded the statement of bhabhi of prosecutrix under section 161 Cr. P.C. and u/s 164 Cr. P.C. of prosecutrix.
29.Ld. counsel for accused further argued that PW13 Dr. P. Yadav has deposed in his statement that semen of accused could not be ejaculated.
State Vs. Mushir Ahmad SC No.165/2007
30.Ld. counsel for accused further argued that PW 14 has stated in his cross examination that the mental condition of prosecutirx was good at the time of her statement.
31.Ld. counsel for accused further submits that there is lots of contradictions, delay of 48 hours of registration FIR and as per statement of PW1 her clothes were not seized. Ld. Counsel for accused further submits that CFSL report has not been exhibited as same is essential document. Ld. counsel for accused further submits that there are doubt on various stages in statements of Pws.
32.Ld. counsel for accused has relied upon judgment of Hon'ble High Court of Delhi in case titled as "Ashok Kumar Vs. State of Delhi, 2011 IAD (CRI.) (DHC) 405", wherein it is held :
"Indian penal Code 1860 Sec.451/376 Rape of prosecutrix aged about 26 years Mentally challenged Held offence of rape on a mentally retarded woman should go unpunished, however, it would be more unfortunate and illegal to punish an accused against whom the guilt has not proved beyond reasonable doubt - mere circumstance of group "A" semen being found on the underwear of the Appellant and the petticoat and cervical swab of the prosecutrix is not sufficient to rule out every hypothesis of the innocence of the Appellant In a criminal trial it is the duty of the prosecution to travel the long distance from "May be true" to "Must be true" and the whole of this distance must be covered by legal, reliable and State Vs. Mushir Ahmad SC No.165/2007 unimpeachable evidence - circumstances should conclusively prove the guilt of the accused and rule out every other hypothesis of innocence of the accused In a statement of the accused under Sec.313 Cr.P.C., the court required to put the incriminating circumstances which have come in evidence during the trial and not the facts stated in the charge sheetThus, the material incriminating circumstances that have been adduced in evidence having not been put to the appellant, a serious prejudice is caused to him In 2009 Crl. L.J. 2962 (SC)... whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims tht the case is made out against the accused so that he may be able to given such explanation as he desires to give" Appellant is entitled to the benefit of doubt appeal is allowed and the appellant is acquitted of the charges under section 376/451 IPC - bail bond and surety bond are discharged".
On above mentioned judgments and arguments, Ld. counsel for accused is pressing for acquittal of accused.
33.Ld. counsel for accused further relied upon judgment of Hon'ble High Court of Delhi in case titled as "Kundan Lal & Others Vs. State, 2002 (2) JCC 873", wherein:
"Penal Code, 1860 Sec. 376 (2)(g)/366 Appreciation of evidence of prosecutrix Held: that the statement of the prosecutrix can be treated as being sufficient to sustain conviction, however, if there be any positive evidence to the contrary, then it would be unsafe to base conviction on her statement but would be prudent to took for corrobration.
Penal Code, 1860 Sec. 366/376 (2)(g) Prosecutrix State Vs. Mushir Ahmad SC No.165/2007 allegedly taken away and raped when her parents and brother had gone away to U.P. Sisterinlaw, who was present at house, not examined as witnessNext day brother reported the matter to police saying that some persons were teasing her sisterNo external injury on the body of prosecutrixSemen detected on salwar of prosecutrix were of AB Group, but no evidence to the effect that any of the accused was having AB GroupShirt of the prosecutrix also blood stained, but neither the prosecutrix was having any injury nor any of accused/appellants were injured so as to blood stained the shirt Held; that in the facts and circumstances of the case, it is not safe to rely on the statement of the prosecutrix in order to sustain a conviction u/s. 376 (2)(g) and 366 IPCAppellants acquitted."
34.Arguments heard. Record perused. On perusal of record it is revealed that DD No.25A dated 10.01.2007 mark Z was recorded at police station Gokalpuri regarding rape upon a girl. On receipt of DD, IO along with Ct. Ram Bhaj reached at the spot where they found one Marunisha, Mohd. Anas and Chanda Praveen. Accused Mushir Ahmad was apprehended by Marunisha, Mohd. Anas and Chanda Praveen at the instance of Chanda Praveen and brought by them before the police. Further perusal of record reveals that statement of Mehrunisha Ex.PW2/A was recorded on 11.01.2007 and on the statement of Mehrunisha FIR Ex.PW12/B was recorded.
35.On perusal of record of statement of PW1, it is revealed that accused took her inside in his house and slept with her and committed galat State Vs. Mushir Ahmad SC No.165/2007 kaam with her. Accused had opened the string of her salwaar and sab dabaya and it is further revealed that PW1 had stated that she did not narrate fact of rape to anybody including her neighbour and she does not know what happened thereafter. This witness was cross examined by Ld. APP for the state. In her cross examination, prosecutrix had admitted that one counsel from Delhi Mahila Ayog had come with her to court from her house and that counsel had tutored her statement which she has to depose in the court and that counsel had told her to identify the accused and shown her the accused before the lunch. In her further cross examination, prosecutrix had admitted that she had implicate the accused in the present case at the instance of her Bhaiya and Bhabhi. She further admit that on 10.1.2007 her bhaiya, bhabhi and one Mehrunisha had taken her to house of accused and her bhaiya and bhabhi had asked her to name the accused that he had committed rape upon her. She further admits in her cross examination that she was tutored by her bhaiya, bhabhi and Mehrunisha to implicate the accused. Again said, she had named the accused of her own. She further admits that she might have been given beatings by her bhaiya and bhabhi if she does not implicate the accused. In her further cross examination, State Vs. Mushir Ahmad SC No.165/2007 prosecutrix states that she was going to water tap when she was caught hold by accused whereas in her examination in chief she has deposed that she was going to park for strolling.
36.PW2 Mehrunisha. She states that at the time of leaving her house prosecutrix was alright. This witness had stated that incident was of 11.01.2007 whereas this witness had stated to police that she had left prosecutrix had left her house on 09.01.2007 without intimating to any person. In her cross examination this witness admits that she had deposed in the court at the instance of police.
37.PW3 Mohd. Anis who is the brother of prosecutrix. He states that during the intervening night of 09/10.01.2007 prosecutrix was not mentally well but this witness did not produce any medical document regarding ill mental condition of prosecutrix. This witness is hearsay as he was told by his brother Md. Rahis and Mehrunisha. Further this witness states that prosecutrix took him to the house of accused and he knocked the door and then accused came outside his house. Thereafter, PW Mehrunisha and he made call to police and police came there whereas DD entry 25A shows that puliya ke pass, State Vs. Mushir Ahmad SC No.165/2007 Karawal Nagar Road, Nala ki pulia ka pass a rape has been committed with my daughter and I am standing near masjid but site plan Ex.PW9/B does not reflect the sign of Masjid where alleged rape said to have been committed and further PW2 had not disclosed this fact in her statement Ex.PW2/A to the police.
38.On perusal of record it is further revealed that PW4 Md. Rahis had stated in cross examination that case has been registered on the statement of his brother whereas present case has been registered on the statement of PW2 Mehrunisha.
39.On perusal of record it is revealed that PW7 deposed in her examination in chief that prosecutrix was brought to her house by her neighbour Meharunisha and Mehrunisha had informed her and other family members that accused Mushir Ahmad had committed rape upon her. In her cross examination this witness admits that on 10.1.2007 at 9:00 a.m. prosecutrix had come back and taken bath and washed her clothes and she remained at house with her. This witness further states that prosecutrix did not tell her where she spent the night.
State Vs. Mushir Ahmad SC No.165/2007
40.On further perusal, it is revealed that PW9 IO had stated that accused was produced him by Mahrunisha, Md. Anas and Chanda Praveen. This witness states that Pulia Nala road, Munga Nagar is the house of accused whereas no address has been suggested in site plan inspite MLC of accused shows his address as A29, Gali No.1, Munga nagar, Delhi. In his cross examination this witness states that fact of rape upon prosecutrix was told by brother of Chanda Praveen, Md. Anas and Mehrunisha but PW7 Ruksar did not accompany them. Further, PW14 Ld. MM who had recorded the statement of prosecutrix states that mental condition of prosecutrix was good at the time of her statement.
41.Further perusal of record reveals that in cross examination of PW1 she has deposed that she had made statement to the police at the instance of Sahrunisha. In her cross examination PW1 also deposed that she was wearing red colour suit at the time of incident whereas seizure memo Ex.P1 shows recovery of green colour chhitdar kameez and badami green colour salwaar.
State Vs. Mushir Ahmad SC No.165/2007
42.On perusal of record, it is further revealed that medical examination of prosecutrix Ex.PW6/A which shows no external marks of injury upon prosecutrix and age of prosecutrix has been shown as 25 years and patient is mentally retarded since 10 years. Further, on MLC it is also written that prosecutrix is not able to give any proper history and that prosecutrix had taken bath after rape.
43. Hon'ble Allahabad High Court in case titled as 'Gokul Vs. State of U.P., 2003 Cri. L.J. 1100' (relied) wherein it has been held that:
"prosecutrix though went to market in the company of other persons returned back with the accused alone. Plea of prosecutrix that accused dragged her, throw her on ground behind bushes and forcibly raped inspite of her resistance. No injury was found on the body of prosecutrix in the medical examination. Prosecutrix was to held to be consenting party."
44.During perusal of record, it is revealed that prosecutrix did not raise any alarm when accused caught hold her in park during strolling. Hon'ble Supreme Court in judgment 'Masauddin Ahmed Vs. State of Assam, 2009 (3) JCC 2002' wherein :
"Penal Code, 1860 Sec. 376 - Rape - Consent of prosecutrix - Prosecutrix could not furnish any explanation as to why she did not raised the alarm or why she could not inform anybody in the hotel or while State Vs. Mushir Ahmad SC No.165/2007 coming from the hotel on next or on the road about the incident The prosecutrix appeeared to be a woman of easy virtue Thus it is a clear case of consent Appellant acquitted of charges."
45.During perusal of record, it is revealed that prosecutrix in here statement before police or Ld. MM even before the court did not state that she had put any struggle or raised any alarm while being taken by accused Mushir Ahmad. Hon'ble Supreme Court in judgment 'Shyam and another Vs. State of Maharashtra, AIR 1995 Supreme Court 2169", wherein :
"Penal Code (45 of 1860), S. 366 - Abduction - Prosecutrix not putting up struggle or raising alarm while being taken away by accused Prosecutrix appearing to be willing party to go with accused on her own - Culpability of accused not established Conviction set aside."
46.On further perusal of record, it is revealed that accused Mushir Ahmad was arrested vide his arrest memo Ex.PW3/B on 11.01.2009 at 6:00 a.m. and his personal search memo vide Ex.PW3/C was conducted but nothing was recovered.
State Vs. Mushir Ahmad SC No.165/2007
47.On perusal of record, it is further revealed that statement under section 164 Cr.P.C. Ex.PW14/C wherein prosecutrix had stated that one person took her to his house and in the night he committed galat kaam with her. He removed her salwaar and had committed rape upon her.
48.During the course of perusal of record, MLC of accused Ex.PW9/A, it reflects that semen sample of accused could not ejaculate.
49.Further on perusal of record it is revealed that in cross examination by ld defence counsel prosecutrix deposed that her family members including his brother did not try efforts to marry her despite her asking on various occasions. It is further revealed that prosecutrix was having visiting terms in the house of accused but her family members did not like it. It is further revealed from the cross examination of prosecutrix that Praveen wife of accused had tried to get prosecutrix married and she had brought many suitable matches for prosecutrix. She further admits that her family members were annoyed with the accused.
State Vs. Mushir Ahmad SC No.165/2007
50.On perusal of record, it is further revealed that in her cross examination prosecutrix admits that her bhabhi and bhaiya had asked her to falsely implicate the accused in this case and on the asking of her brother and bhabhi the present case was made.
51.On perusal of record it is revealed that in CFSL report semen could not be detected on exhibit No.1A, 1B, 2 and 3. However, blood could be detected on Ex. No.4 but serological analysis of Exhibit No.4 does not arise as other exhibits answered negative for semen test.
52.Further perusal of record shows that accused in his statement u/s 313 Cr.P.C. has deposed that he is innocent and due to enmity with Mehrunisha, he has been falsely implicated in the present case in collusion with brothers of the prosecutrix.
53.For the purpose of offence of rape it would be relevant to discuss the definition of rape has been given under section 375 IPC. Section 375 IPC is being reproduced as under: State Vs. Mushir Ahmad SC No.165/2007 "375. Rape - A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 sixteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Explanation. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Section 376 IPC which is reproduced hereunder:
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
State Vs. Mushir Ahmad SC No.165/2007 Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special State Vs. Mushir Ahmad SC No.165/2007 reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub section.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] So far as the offences u/s 366 and 342 IPC are concerned, let the relevant sections be reproduced verbatim which are as under: Section 366 IPC "Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with State Vs. Mushir Ahmad SC No.165/2007 another person shall also be punishable as aforesaid."
Section 342 IPC "Punishment for wrongful confinement - Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousands rupees, or with both."
54.After discussions the arguments, facts, circumstances and perusal of record, this court is of opinion that the statement of prosecutrix is highly improbable as same has not been corroborated by medical evidence.
55.Further, age of prosecutrix is 25 years and her mental level according to statements and conducts shows that prosecutrix was matured and well understanding capacity to understand. Since prosecutrix had been residing with her family members consisting of father, brothers and bhabhi. One Mahrunisha who is active role player in the present case and this witness has been found everywhere even PW7 Ruksar who is the bhabhi of prosecutrix did not make any complaint to police that she had been raped. PW7 never made any compliant to the police and this witness came to know about accused from her husband and devar after making complaint to State Vs. Mushir Ahmad SC No.165/2007 the police. The fact of rape has not been stated by the prosecutrix to the police. In her statement to the police dated 11.01.2007 prosecutrix had stated that "maine apne bhai bhabhi ko bataya ki issi aadmi ne uske sath galat kaam kiya tha" meaning thereby that I had told to my Bhai and Bhabhi that this person had committed 'galat kaam' with 'that'. This statement does not shown that 'galat kaam' was committed with her. These wording represent of 'galat kaam' committed with some other person. Further MLC of prosecutrix does not show any injury on private part. Further, prosecutrix when she returned to her house did not disclose this fact to her bhabhi and she took bath and changed her clothes whereas this prosecutrix in her cross examination refused to admit that she had stated to the police that she had told her neighbour Mehrunisha and bhabhi regarding the incident happened with her. To bring the case of prosecution under the definition of rape on the ground of injury, there must be some injury on the body of prosecutrix. If a lady is ravished by forcible intercourse then the injury (external) must appear on her person whereas in the present case no external injury was found on the body of prosecutrix.
State Vs. Mushir Ahmad SC No.165/2007
56.Supreme Court in case titled as "Dalbir Singh Vs. State of Punjab, AIR 1987 SC 1328," wherein it has been held that :
"No hard and fast rule can be laid down about the appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case."
57.Further, in case "Poolakkal Kunchu Vs. State, 1986 2 Crimes (Ker) 225 at pp. 228, 289", where it has been held that :
"In appreciating the evidence, the Courts will have to be definitely guided by human probabilities, even though exceptions can be had in cases where the clinching evidence deviating from human probabilities is available."
58.Further, in case "State Vs. Musa, (1991) 3 Cr LJ (Ori) 2168,"
wherein it has been held that :
(a) In a prosecution of an accused for an offence under section 376 IPC the totality of the circumstance are to be considered distinguishing grain from the chaff. If the remaining materials which are grain, lead to an inference that the accused committed the offence, he is to be convicted.
(b) while assessing evidence, our criminal jurisprudence puts the onus on the prosecution to prove beyond reasonable doubt that the accused has committed the crime since several accused persons may be acquitted but one innocent person should not be convicted.
(c)Apart from the punishment imposed, in our society the conviction attaches indelible stigma and a person is looked down upon. Even arrest on account of the allegations though not punishment, has some retarding effect on the person so far as his place in society.
(d) Hence, the onerous duty is cast on the Presiding Oficer of the Court to be scrutinising for convicting an accused.
(e) More heinous the offence, graver is the stigma. State Vs. Mushir Ahmad SC No.165/2007
59.Further, in case "Palanisamy Gounder Vs. State, (1993) 3 Crimes (Mad) 107, wherein it is held that :
"While appreciating evidence of a witness who has partially spoken truth and partially untruth, the Courts are to be on guard while deciding the nature of the offence committed by the accused."
60.After considering the story of the prosecution, evidence, arguments and perusal of records, this court comes to the conclusion that prosecutrix is not a reliable witness because in her statement at one place she states that she was going to a park for strolling and other place she states that she was going for a water to a tap. Further, prosecutrix returns in the morning to her house where she had been residing with her family members where she took bath and stay with her family members but did not disclose this fact to them. This the Mehrunisha PW2 who comes in picture and got lodged the complaint of rape upon prosecutrix with the police. Since the age of prosecutrix is 25 years, if anything had been committed with her she was capable to inform the police as no injury have been suggested in her medical examination, hence it is difficult to presume commission of rape upon the prosecutrix.
State Vs. Mushir Ahmad SC No.165/2007
61.In my opinion too it is not possible for a single man to rape a woman without any resistance at all when subjected to forcibly intercourse, the victim is likely to offer some resistance to protect her body from injury in form of bruises, abrasions, etc. that would offer physical evidence regarding the incident which is missing in the present case.
62.In my view, it would be dangerous to pass a conviction merely on the statement of prosecutrix without corroboration. Having considered all facts and circumstances as mentioned above this court find that prosecution has failed to prove the charge beyond reasonable doubt against the accused Mushir Ahmad under section 376 IPC. If totality of statement of prosecutrix is considered it comes out that accused had confined her illegally which covered by section 342 IPC and further statement of prosecutrix in the court that "accused opened string of salwar and sab dabaya nothing else was done by the said budda". This fact is covered only under section 354 IPC.
State Vs. Mushir Ahmad SC No.165/2007
63.Since the age of 25 years and no document of her mental illness has been placed on record and further conduct of prosecutrix shows that she was mature with well understanding capacity. Hence, ingredients of 366 IPC does not attract.
64.In the lights of above considerations, this court of the considered opinion that the prosecution has failed to prove the charge against accused Mushir Ahmad u/s 376 and 366 IPC beyond reasonable doubt. Accordingly, under the facts and circumstances of the case, this court hereby acquit the accused Mushir Ahmad from charges u/s 376 and 366 IPC and convict him under section 354 and 342 IPC. ANNOUNCED IN THE OPEN COURT ON THIS 17.03.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI State Vs. Mushir Ahmad SC No.165/2007 IN THE COURT OF SH. RAMESH KUMAR - II, LD.
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0178282007 Sessions Case No. 165/2007 FIR No. 21/2007 State Vs Mushir Ahmed s/o Bashir Ahmad r/o A29, G. No.1, Munga Nagar, Nala Road, Karawal Nagar, Delhi. Police Station Gokalpuri Convicted Under Section 342/354 IPC Date of Conviction 17.03.2011 ORDER ON SENTENCE: 23.03.2011 Pre: Ld. APP for the state. Convict Mushir Ahmad is on bail.
Sh. S.S. Singh, counsel for convict Mushir Ahmad. Arguments heard on point of sentence. Ld. APP submits that since prosecution has proved its case against convict Mushir Ahmad u/s 342/354 IPC. He further submits that convict be awarded severe punishment to teach a lesson to such persons and to put barrier on crime against woman in the society.
State Vs. Mushir Ahmad SC No.165/2007 On the other hand ld. Counsel for convict prayed that convict Mushir Ahmad is on bail and facing trial regularly. Ld. Counsel for convict further submits that he has been remained in JC for six months and twenty five days. Ld. Counsel for convict further stated that convict belongs to a poor family and he is having responsibility of his four daughters out of them two are of marriageable age and one son. Ld. Counsel for convict has requested for lenient view and requested to release the convict for the sentence already undergone against the convict.
Keeping in view the present scenario and the fact that the convict was of 45 years old at the time of commission of offence and has remained in JC for six months and twenty five days and convict is having responsibility of his children. The ends of justice will meet if convict is sentenced to a period of undergone and fine of Rs.1,000/ for offence u/s 342 IPC and fine of Rs.1,000/ for offence u/s 354 IPC in default convict shall undergone S.I for one month in each section. Sentence in both sections shall run concurrently. Fine of Rs.2,000/ paid. Accordingly, convict is released on undergone by giving him benefit of sanction 428 Cr.P.C. Orders accordingly.
File be consigned to record room.
ANNOUNCED IN THE OPEN
COURT ON THIS 23.03.2011 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
State Vs. Mushir Ahmad
SC No.165/2007