Delhi District Court
State vs . 1. Irshad Kureshi on 21 February, 2013
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FIR No. 254/09
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST & OUTER DISTRICT : DELHI
SESSIONS CASE NO. : 101/13
Unique ID No. : 02404R0304502009
State Vs. 1. Irshad Kureshi
S/o Mohd. Istaq Kureshi
R/o H. No. 276, B Block,
J. J. Colony, Bawana,
Narela, Delhi
FIR No. : 254/09
Police Station : Narela
Under Sections : 376 IPC
Date of committal to session Court : 30/01/2010
Date on which judgment reserved : 15/02/2013
Date of which judgment announced : 21/02/2013
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FIR No. 254/09
PS - Narela
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under : That on 28/08/2009, Ratna, R/o E1824, J. J. Colony, Bawana with prosecutrix (name with held being a case U/s 376 IPC), aged about four years D/o Irshad Kureshi, R/o B 543, J. J. Colony, Bawana came to the PS - Narela and at that time, W/ASI Rajbala was present in the Police Station and informed her that the father of the prosecutrix Irshad Kureshi had committed rape with the prosecutrix. On which, ASI Rajbala, sent the prosecutrix and Ratna with W/Constable Kamlesh to SRHC Hospital for medical examination where vide MLC No. 959/09, the medical examination of the prosecutrix was got conducted on which doctor had endorsed alleged H/O sexual assault by father yesterday night and referred to Higher Centre, BSA Hospital for examination. At the hospital, Reshma Kureshi W/o Irshasd Kureshi, aged 22 years, R/o B 543, J. J. Colony, Bawana, Narela, Delhi got 2 of 45 3 FIR No. 254/09 PS - Narela recorded her statement which is to the effect that, she alongwith her husband and daughter/prosecutrix lives at the said address on rent and does the work of sorting out the junk (kabada). She was married about five years back with Irshad Kureshi. She is having one daughter/prosecutrix, aged about four years. She is having a dispute with her husband for the last 15 days and about 7 days back, her husband had turned her out of the house after beating her and she had gone to live with her Bhabhi at Sadar Bazar and had left her daughter/prosecutrix at the house of her sister (Ratna) at J. J. Colony, Bawana. Three days ago, her sister Ratna, who lives at E - 1824, J. J. Colony, Bawana telephoned her and had told her that her husband had taken her daughter/prosecutrix forcibly. Yesterday, at about 11:00 a.m, her husband Irshad Kureshi had telephoned her Bhabhi and told, "if you (Reshma) did not come then he will poison your daughter and this deal will prove costly to you". He again phoned in the night at about 12:00 and told, "since you (Reshma) have not come, the result of this you will come to know by the morning and for this you have to pay a very heavy price". In the morning, she received a call from her sister that "your husband Irshad Kureshi had committed a wrong act (Galat Kaam) with your daughter" and he, after 3 of 45 4 FIR No. 254/09 PS - Narela leaving the daughter/prosecutrix, at her house had left saying that he is coming after taking money. Complainant further stated that after this, she came at J. J. Colony, Bawana and went to the Jhuggi where they used to live and there the clothes were found heavily stained with blood. She came to know that her sister had taken her daughter/prosecutrix to PS - Narela and from there she came to know that Police had taken the prosecutrix for medical examination at SRHC Hospital. When she reached at SRHC Hospital, there her daughter/prosecutrix was found with, her sister and Police staff. From her daughter/prosecutrix with great difficulty she came to know that, in the night Papa firstly pressed her mouth and then removed her clothes and made him naked and when she started weeping he gave a slap on her face and thereafter, Papa fell down upon her. Complainant further stated that her husband Irshad Kureshi had committed wrong act (Rape) with her four years old daughter, legal action be taken against her husband Irshan Kureshi. The statement has been heard and is correct.
From the statement of the complainant and the MLC, on finding that an offence u/s 376 IPC appeared to have been committed. The said statement of Reshma Kureshi was endorsed by ASI Rajbala and 4 of 45 5 FIR No. 254/09 PS - Narela got the case registered. The sealed pullindas were taken into Police possession and were deposited in the Malkhana. Site plan without scale at the instance of Reshma Kureshi was prepared. Prosecutrix was produced in the Court for recording her statement u/s 164 Cr.P.C. Statements of witnesses were recorded. At the instance of Reshma Kureshi, her husband Irshad Kureshi was arrested. His disclosure statement was recorded and at his instance, the pointing out (nishan dehi) was got done. He was medically examined and the sealed exhibits were taken into police possession and deposited in the malkhana. Sealed pullindas were sent to the FSL.
Upon completion of the necessary further investigation challan u/s 376 IPC was prepared against accused Irshad Kureshi and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
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3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 (2) (f) IPC was made out against the accused. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has infact produced and examined 12 witnesses. No prosecution witness has been examined as PW3. It appears that this lapse has occurred due to inadvertence. PW1
- Ratna, PW2 - W/Constable Kamlesh, PW4 - Sh. Vishal Singh, Ld. MM, PW5 - Smt. Reshma Kureshi, PW6 - the Prosecutrix, PW7 - W/HC Sneh Lata, PW8 - Constable Raj Kumar, PW9 - Dr. Leena Bhatnagar, Sr. Gynae, BSA Hospital, Delhi, PW10 - HC Suresh Kumar, PW11 - ASI Raj Bala, PW12 Dr. Hema, Specialist, Gynae & Obst., SRHC Hospital, Delhi and PW13 - Dr. Avdesh, Medical Officer, SRHC Hospital, Narela, Delhi.
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5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Ratna is the Mausi (sister of Reshma Kureshi, the mother of the prosecutrix) of the prosecutrix with whom the prosecutrix was living and from whom the custody of the prosecutrix was taken by the accused Irshad Kureshi on the date of the incident. She deposed regarding the facts of the custody given of the prosecutrix to accused and thereafter, leaving of the prosecutrix by the accused with her and the facts regarding taking the prosecutrix to the hospital and of the Police informed.
PW2 W/Constable Kamlesh who joined the investigation on 28.08.2009 with IO ASI Raj Bala (PW11) and deposed that she got the prosecutrix medically examined from SRHC Hospital and proved the seizure memo of the sealed pullindas given by the concerned doctor after the medical examination of the prosecutrix Ex. PW2/A signed by her at point 'A' and also proved the seizure memo of the bed sheet, saris having blood stains Ex. PW2/B signed by her at point 'A' and proved the 7 of 45 8 FIR No. 254/09 PS - Narela bed sheet, one sari and another sari having blood stains Ex. P1 to P3.
PW4 - Sh. Vishal Singh, Ld. MM, Rohini Courts, Delhi who deposed that an application was assigned to him for recording the statement of prosecutrix u/s 164 Cr.P.C. as he was working as Link MM in Rohini Courts. He asked some questions in regard to understanding and giving rational answers to the questions put to her in regard to alleged incident of rape. He did not find her to be fit to give the rational answer as she was of minor age and innocent. So he did not deem it fit to examine her and proved the proceedings in this regard Ex. PW4/A signed by him at point 'A'.
PW5 - Smt. Reshma Kureshi, is the wife of the accused Irshad Kureshi who proved her statement made to the Police Ex. PW5/A signed by her at point 'A' and also proved the seizure memo of the blood stained clothes of the prosecutrix Ex. PW5/B signed by her at point 'A' and proved the seizure memo of the bed sheet, sarees which were blood stained Ex. PW2/B signed by her at point 'B'. She also proved the arrest memo of accused Irshad Kureshi Ex. PW5/C, his personal search memo 8 of 45 9 FIR No. 254/09 PS - Narela Ex. PW5/D signed by her at points 'A' and identified the bed sheet, one saree and another saree having blood stains Ex. P1 to P3, the clothes of the prosecutrix, a baby pajama, a dirty TShirt and an underwear (all blood stained) Ex. P4 to P6.
PW6 - The prosecutrix, who is the victim who deposed that she used to remain with her Khala (Mausi) when her mother used to go out of the house. The name of her Khala was Ratna. Her father had brought her from her Khala's house in the dukan (shop). She does not know what was done by Papa on that day. She did not support the prosecution and was also crossexamined by the Ld. Addl. PP for the State PW7 - W/HC Sneh Lala is the Duty Officer who proved the computerised copy of the FIR Ex. PW7/A signed by her at point 'A' and her endorsement Ex. PW7/B regarding registration of the FIR vide DD No. 20A signed by her at point 'A' and also proved the copy of the Kayami DD No. 20A as Ex. PW7/C. 9 of 45 10 FIR No. 254/09 PS - Narela PW8 - Constable Raj Kumar who joined investigation with IO PW11 ASI Raj Bala and deposed on the investigational aspects and besides proving the other memos also deposed that the accused was got medically examined from SRHC Hospital and proved seizure memo of the sealed pullinda handed over by the concerned doctor after the medical examination of the accused Ex. PW8/A signed by him at point 'A'. He also deposed that on 05/10/2009, he deposited the sealed exhibits in the FSL.
PW9 - Dr. Leena Bhatnagar, SR, Gynae, BSA Hospital, Delhi who proved the medical examination of prosecutrix as was conducted by Dr. Samta and also proved the photocopy of the discharge card Ex. PW9/A signed by Dr. Samta at point 'A'.
PW10 - HC Suresh Kumar is the MHC(M) who proved the relevant entries of the Register No. 19 Ex. PW10/A, Ex. PW10/B and also proved the copy of the RC No. 142/21/2009 Ex. PW10/C and the copy of the acknowledgment given by the FSL for deposition of the 10 of 45 11 FIR No. 254/09 PS - Narela samples Ex. PW10/D. PW11 - ASI Raj Bala is the Investigating Officer (IO) of the case who deposed on the investigational aspects and besides proving the other memos also proved her attestation at point 'B' on the statement Ex. PW5/A of PW5 - Reshma Kureshi and also proved her endorsement Ex. PW11/A made under the statement of PW5 - Reshma Kureshi and proved the site plan Ex. PW11/B, disclosure statement of accused Ex. PW11/C, the FSL Reports Ex. PX and PY and also proved a bed sheet, two sarees Ex. P1 to P3 and a baby pajama, a dirty TShirt and an underwear Ex. P4 to P6 respectively.
PW12 - Dr. Hema, Specialist, Gynae & Obst., SRHC Hospital, Delhi who proved the gyanocological examination of the prosecutrix as was conducted by Dr. Geeta on the MLC Ex. PW12/A signed by Dr. Geeta at point 'A'.
PW13 - Dr. Avdesh, Medical Officer, SRHC Hospital, Narela, Delhi who proved the medical examination of the accused as was 11 of 45 12 FIR No. 254/09 PS - Narela conducted initially by Dr. Rahul and later on by Dr. Sachin, SR, Surgery and proved the opinion of Dr. Sachin, SR Surgery that there is no finding suggestive that the alleged patient/Irshad Kureshi was incapable of performing sexual intercourse, at point 'A' to 'A' on the MLC Ex. PW13/A signed by Dr. Sachin at point 'A' and by Dr. Rahul at point 'B'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Irshad Kureshi was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. Accused opted to lead defence evidence and in his defence, examined one witness namely DW1 Ms - Bharul W/o Abdul Salam R/o B - 278, Bawana, J. J. Colony, Delhi.
DW1 - Ms. Bharul deposed that she is residing at B - 278, Bawana, J. J. Colony, Delhi since 9/10 years and knows accused Irshad Kureshi as he is residing in her neighbourhood. She also knows wife of Kureshi namely Reshma since her marriage with the accused. The 12 of 45 13 FIR No. 254/09 PS - Narela quarrel used to take place between the accused and his wife since beginning from their marriage and the relation between them were not cordial and sometimes she used to left (leave) the home. During the days of Ramzan 4/5 years ago, prosecutrix (name withheld) was not with accused as wife of accused had left the home about 1015 days back alongwith prosecutrix. Accused Irshad Kureshi has been falsely implicated by his wife in a false case.
The testimony of the defence witness shall be dealt with in detail during the course of the appreciation of the evidence.
7. Ld. Counsel for the accused submitted that the accused is innocent and has been falsely implicated in this case by the complainant PW1 - Ratna and PW5 - Reshma. He further submitted that PW1 - Ratna with whom the accused allegedly left the baby prosecutrix after the incident, the reaction of PW1 - Ratna was very strange that after knowing the fact that her niece is bleeding from her vagina she did not opt to go to a Doctor, rather she immediately went to the Police Station. He further submitted that statement of baby prosecutrix u/s 164 Cr.P.C.
13 of 45 14 FIR No. 254/09 PS - Narela was not recorded by PW4 - Sh. Vishal Singh, Ld. MM as he did not find her fit to examine u/s 164 Cr.P.C. as she was not giving rational answers to his questions. But baby prosecutrix was examined by the prosecution who did not utter anything against the accused rather she was declared hostile and crossexamined by the Ld. Addl. PP. He further submitted that intimation regarding the arrest of the accused was given to Istaq, brother of the accused who used to reside in same Jhuggi. This fact also find mention in the arrest memo of the accused. This fact raises doubt on the prosecution story when other persons were available in the same house where the act was committed, then why they were not made witnesses or the accused in the case. He further submitted that PW5 - Reshma in her crossexamination submitted that she used to leave home for work at 9:00 a.m and used to come at about 10:00 p.m. daily without any holiday, if so, then how she came to know about the incident at work. He further submitted that PW5 - Reshma, after knowing the incident went to the Jhuggi of the accused but found it locked but later when she came with the IO of the case, how she got the keys of the Jhuggi. It remained unexplained. He further submitted that PW9 - Dr. Leena has stated that injuries of the victim/prosecutrix are possible even without 14 of 45 15 FIR No. 254/09 PS - Narela sexual act as falling on ground or any pointed object and has also stated that if any adult male would do sexual act with the child of tender years, then injuries on his private part possible. But no injuries were found on the private part of the accused in his medical. He further submitted that FSL Result also favours the accused as semen was not detected from any of the clothes sent for FSL examination. The testimony of PW12 - Dr. Hema also favours the accused who has stated that vagina of the victim/prosecutrix is admitting tip of the finger only. He further submitted that PW11 - ASI Raj Bala IO neither inquired from the neighbours of the accused nor from the neighbours of PW5 - Reshma and PW1 - Ratna to know the truth. He further submitted that in the circumstance charges against the accused is highly doubtful and prosecution has failed to prove the guilt of the accused beyond reasonable doubts and prayed for the acquittal of the accused.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of 15 of 45 16 FIR No. 254/09 PS - Narela the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard the Ld. Addl. PP for the State and Sh. Deepak Sharma, Amicus Curiae for the accused and have also carefully perused the entire record.
10. The charge for the offence u/s 376 (2)(f) IPC against accused Irshad Kureshi is that in the intervening night of 2728/08/2009 at Jhuggi No. B - 543, J. J. Colony within the jurisdiction of PS - Bawana he committed rape on baby prosecutrix (name withheld) aged about five years.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
16 of 45 17 FIR No. 254/09 PS - Narela AGE OF THE PROSECUTRIX
12. PW5 - Smt. Reshma Kureshi, mother of the prosecutrix in her examinationinchief has deposed that at the time of the incident, her daughter was about four years of age.
During her crossexamination, PW5 - Smt. Reshma Kureshi has deposed that she had been married with the accused in the year, 2004 i.e. five years before the incident.
Inspite of incisive crossexamination nothing material has been brought out in the crossexamination of PW5 - Reshma Kureshi so as to impeach her creditworthiness on this aspect.
It is nowhere being disputed nor has been suggested by the accused that his daughter, the prosecutrix was not aged about four years at the time of incident on 27/08/2009.
In the circumstances, it stands established on the record that PW6 - Prosecutrix was aged about four years on the date of the alleged incident on 27/08/2009.
17 of 45 18 FIR No. 254/09 PS - Narela MEDICAL EVIDENCE
13. PW2 - W/Constable Kamlesh has deposed in her examinationinchief that on 28/08/2009, she got the prosecutrix medically examined from SRHC Hospital.
PW12 Dr. Hema, Specialist, Gynae & Obst., SRHC Hospital, Delhi in her examinationinchief has deposed that : ".......As per MLC No. 959/09, on 28/08/2009 patient/prosecutrix (name withheld) was produced in the hospital through W/Constable Kamlesh who was medically examined by Dr. Geeta. As per the examination, her general condition was stable, there was no stratch mark or bruise present. On local examination, there was a third degree perineal tear present, feacal incontinence present, hymen ruptured, vagina admitting tip of finger. Vaginal smear taken. On per rectum examination cervix and uterus appeared normal. Under garments, samples vaginal swabs, vaginal slides, nail clippings were taken and were handed over to Police official. The MLC is in the handwriting of Dr. Geeta which is Ex. PW12/A and has been signed by Dr. Geeta at point 'A'."
PW9 - Dr. Leena Bhatnagar, SR, Gynae, BSA Hospital, Delhi who proved the medical examination of prosecutrix conducted by 18 of 45 19 FIR No. 254/09 PS - Narela Dr. Samta and also proved the photocopy of the discharge card Ex. PW9/A signed by Dr. Samta at point 'A'.
There is nothing in the crossexamination of PW2 - W/Constable Kamlesh and PW9 - Dr. Leena Bhatnagar as to impeach their creditworthiness. Despite grant of opportunity, PW12, Dr. Hema was not crossexamined on behalf of accused.
In view of above and in the circumstances, the medical/gynaecological examination of PW6 - Prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW13 - Dr. Avdesh, Medical Officer, SRHC Hospital, Narela, Delhi who proved the medical examination of the accused as was conducted initially by Dr. Rahul and later on by Dr. Sachin, SR, Surgery and proved the opinion of Dr. Sachin, SR Surgery that there is no finding suggestive that the alleged patient/Irshad Kureshi was incapable of performing sexual intercourse, at point 'A' to 'A' on the MLC Ex. PW13/A signed by Dr. Sachin at point 'A' and by Dr. Rahul at point 'B'.
19 of 45 20 FIR No. 254/09 PS - Narela Despite grant of opportunity, PW13 - Dr. Avdesh was not crossexamined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that the accused was not incapable of performing the sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW11 - ASI Rajbala IO in her examinationinchief has deposed that she procured the FSL Report and filed in the Court and proved the FSL Report as Ex. PX and & PY.
As per biological report Ex. PY the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '1'.
20 of 45 21 FIR No. 254/09 PS - Narela Exhibit '1' : One underwear having dirty brownish stains. Parcel '2' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '2a' & '2b'.
Exhibit '2a' & '2b' : Two microslides having faint whitishsmear. Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '3'.
Exhibit '3' : Cotton wool swab on a wooden stick having brown stains described as 'vaginal swab'.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '4'.
Exhibit '4' : Few nail clippings.
Parcel '5' : One sealed cloth parcel sealed with the seal of "MSP"
containing exhibits '5a', '5b', & '5c'.
Exhibit '5a' : One baby pyjama having brown stains. Exhibit '5b' : One dirty TShirt having brown stains. Exhibit '5c' : One underwear having brown stains. Parcel '6' : One sealed cloth parcel sealed with the seal of 21 of 45 22 FIR No. 254/09 PS - Narela "SRHC HOSPITAL NARELA DELHI" containing exhibit '6' kept in a tube.
Exhibit '6' : Dark brown foul smelling liquid described as 'blood sample' Parcel '7' : One sealed plastic bag parcel sealed with the seal of "MSP" containing exhibits '7a', '7b', & '7c'. Exhibit '7a' : One bed sheet having brown stains. Exhibit '7b' : One saree having brown stains. Exhibit '7c' : One saree having dirty stains.
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '3', '5a', '5b' & '5c', '6', '7a' & '7b'.
2. Blood could not be detected on exhibits '1', '4' & '7c'.
3. Semen could not be detected on exhibits '1', '2a', '2b', '3', '4', '5a', '5b', '5c', '7a', '7b' & '7c'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'P. Sh. FSL DELHI' The serological report Ex. PX reads as under : 22 of 45 23 FIR No. 254/09 PS - Narela Exhibits Species of origin ABO Grouping/ Remarks Blood Stains: Human No reaction '3' Cotton Wool Swab '5a' Pyjama Human No reaction '5b' TShirt Human No reaction '5c' Underwear Human No reaction '6' Blood Sample Sample blood putrefied, hence no option '7a' Bed Sheet Human No reaction '7b' Saree Human No reaction On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibits 3 (cotton wool swab), of the prosecutrix, exhibit 5a (Pyjama), of the prosecutrix, exhibit 5b (TShirt), of the prosecutrix, exhibit 6 (blood sample), of the accused, exhibit 7a (Bed Sheet), exhibit 7b (Saree). Blood could not be detected on exhibits '1', '4' & '7c'. Semen could not be detected on exhibits '1', '2a', '2b', 23 of 45 24 FIR No. 254/09 PS - Narela '3', '4', '5a', '5b', '5c', '7a', '7b' and '7c'.
On a conjoint reading of the medical evidence, the gynaecological examination on MLC Ex. PW12/A of the prosecutrix together with the MLC of accused Irshad Kureshi Ex. PW13/A, in the light of the biological and serological evidence detailed hereinabove it clearly rules out any recent sexual activity.
Accordingly, it stands established on the record that no recent sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PY with regard to the description of the articles contained in the parcels, it is noticed that, Parcel No. 1 to Parcel No. 5 and Parcel No. 7 belong to PW6 - prosecutrix which were seized vide seizure memo Ex. PW2/A, Parcel No. 6 belong to accused Irshad Kureshi which was seized vide seizure memo Ex. PW8/A. As per the biological report Ex. PY prosecution has 24 of 45 25 FIR No. 254/09 PS - Narela discharged its initial burden of proving the presence of blood on exhibit exhibit 3 (cotton wool swab), exhibit 5a (Pyjama), exhibit 5b (TShirt), exhibit 7a (BedSheet) and exhibit 7b (Saree). Accused was under an obligation to explain how and under what circumstances, the human blood came to be present on the abovesaid exhibits.
The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea raised by the Ld. Counsel for accused that prosecution failed to corelate the human blood detected in the forensic report to the accused.
16. The whole case of the prosecution hinges on the testimonies of PW1 - Ratna, PW5 Smt. Reshma Kureshi and PW6 - Prosecutrix.
Now let the testimonies of PW1 Ratna, PW5 - Smt. Reshma Kureshi and PW6 - Prosecutrix be perused and analyzed.
25 of 45 26 FIR No. 254/09 PS - Narela PW1 - Ratna is the Mausi (sister of Reshma Kureshi, the mother of the prosecutrix), who in her examinationinchief has deposed which is reproduced and reads as under : "I do not remember the exact date however last year, on one day, during the month of Ramzan after opening my Roza I was cooking meals younger brother of accused Irshad Kureshi present in the Court today (correctly identified) came to me at about 7:00 p.m. and asked me that Irshad Kureshi who was standing outside was calling for his daughter/prosecutrix (name withheld) who used to reside with me approximately since her birth as their used to be frequent quarrels between her father Irshad Kureshi and her mother Reshma but I refused initially as prosecutrix (name withheld) was hungry and told him that only after she would be fed he can take her but he insisted whereupon considering that Irshad Kureshi was her father and wanted to meet her hence I myself hanaded over the custody of prosecutrix(name withheld) to Irshad. Due to the quarrel and beating given by accused Irshad Kureshi to his wife Reshma, Reshma was residing at the house of her Bhabhi at Nabi Karim/Sadar Bazar. Accused went from my house alongwith prosecutrix (name withheld) to his house. Next day in the morning Irshad again came back to my house and handed over prosecutrix (name withheld) to me but at that time the colour of prosecutrix (name withheld) was pale yellow and she was not well. On my asking Irshad told me that prosecutrix (name withheld) was suffering from fever last night and thereafter he left my house immediately. I saw blood stains on the clothes of prosecutrix (name withheld) and thereafter I removed her clothes and saw that she was bleeding from her private 26 of 45 27 FIR No. 254/09 PS - Narela parts. I took prosecutrix (name withheld) to the nearby Police official of the beat area and on his advice I took her to PS - Narela. Police officials of PS - Narela got prosecutrix (name withheld) medically examined at SRHC Hospital and my sister Reshma reached at the hospital as I had informed her telephonically regarding my reaching at SRHC Hospital alongwith prosecutrix (name withheld) and Police. On my asking prosecutrix (name withheld) told me, "Papa ne kamra band kar ke light band kar ke mujhe neeche mara. Papa nemeri dono tange pakad ke meri kachi utari, khud bhi nange hogae aur mujhe mara". These facts were disclosed to me by prosecutrix (name withheld) at my house and at hospital doctors did not permit us to talk to her as she was not well. From SRHC Hospital prosecutrix (name withheld) was referred to BSA Hospital as such she was admitted in the BSA Hospital.
At this stage, Ld. APP seeks permission to ask some leading questions to the witness.
Heard. Allowed.
Question : I put it to you that accused had taken prosecutrix (name withheld) from your house on 27/08/2009?
Answer : It is correct, even otherwise it was month of Ramzan and on that day it was 8th Roza."
From the aforesaid narration of PW1 - Ratna, it is clear that the prosecutrix was residing with her and on the date of the incident she had handed over her custody to the accused and on the next morning, accused came back to her (PW1 - Ratna) house and handed over the prosecutrix to her and at that time, the colour of the prosecutrix was pale yellow and she was not well and on her asking, accused told her that 27 of 45 28 FIR No. 254/09 PS - Narela prosecutrix was suffering from fever last night and thereafter, accused left her house immediately. She saw blood stains on the clothes of prosecutrix and after removal of her clothes, she saw that prosecutrix was bleeding from her private parts and took her to the Police and the Police got the prosecutrix medically examined at SRHC Hospital.
Inspite of incisive crossexamination of PW1 - Ratna, nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW1 - Ratna on the aspect that the prosecutrix was taken away from her custody by the accused has also been corroborated by PW6 - Prosecutrix in her examinationinchief wherein, she has specifically deposed that she used to remain with her Khala (Mausi) when her mother used to go out of the house. The name of her Khala was Ratna. Her father had brought her from her Khala's 28 of 45 29 FIR No. 254/09 PS - Narela house in the dukan (shop). The testimony of PW6 - Prosecutrix on the said facts so deposed by her remained intact that she was brought by her father, the accused from her Khala's house (PW1 - Ratna). There is nothing in the crossexamination of PW6 - Prosecutrix so as to impeach her creditworthiness on the said aspect.
The testimony of PW1 - Ratna that on finding prosecutrix bleeding from her private part and contacted the Police who got the prosecutrix medically examined at SRHC Hospital has been corroborated by PW2 - W/Constable Kamlesh, PW11 - ASI Rajbala, IO and PW12 Dr. Hema.
Further, the part of the testimony of PW1 - Ratna that on her asking, prosecutrix told her "Papa ne kamra band kar ke light band kar ke mujhe neeche mara. Papa ne meri dono tange pakad ke meri kachi utari, khud bhi nange ho gae aur mujhe mara" is relevant u/s 6 and 8 of the Indian Evidence Act, 1872 as the said facts had been disclosed by PW6 - prosecutrix to PW1 - Ratna relating to the crime shortly after the incident. Moreover, the said part of the testimony of PW1 - Ratna, has not been challenged during the course of crossexamination on behalf of the accused and has remained intact.
29 of 45 30 FIR No. 254/09 PS - Narela The testimonies of PW1 - Ratna and PW6 - Prosecutrix has been corroborated by PW5 - Smt. Reshma Kureshi, mother of the prosecutrix in material particulars.
In her examinationinchief, PW5 - Smt. Reshma Kureshi has specifically deposed that in the year, 2009, she was residing alongwith her husband and daughter/prosecutrix in B - Block, J. J. Colony, Bawana, Delhi. About one week before the incident, she had gone to the house of her brother in Nabi Karim as there was a dispute between her and her husband. Her daughter/prosecutrix was residing, during that time, with her sister Ratna whose house is situated at E - Block and the house number was 1824, J. J. Colony, Bawana, Delhi.
During the entire crossexamination of PW5 Reshma Kureshi, it has nowhere been disputed that prosecutrix was not residing in the house of PW1 - Ratna on the date of the incident.
During her crossexamination, PW5 - Reshma Kureshi has negated the suggestions that she, in connivance with her sister - Ratna falsely implicated the accused in this case or that she alongwith her sister fabricated evidence against the accused to implicate him falsely in this 30 of 45 31 FIR No. 254/09 PS - Narela case or that accused did not commit rape on her daughter or that she is deposing falsely or that she could not tell the telephone numbers of her sister and Bhabhi today, as no such call was received by her on the date and time as alleged or that she and her sister Ratna tutored her daughter to depose against the accused or that her sister Ratna has ruptured the hymen of her daughter artificially to implicate the accused in a false case.
PW5 - Smt. Reshma Kureshi in her examinationinchief has specifically deposed that "when my daughter - prosecutrix (name withheld) was taken from the house of my sister Ratna after about two hours later, I received a phone call from my husband and called me back to my house as my daughter was not well. In case, I would have not come, then he will give poison to my daughter. I told him not to return because he was quarreling with me again and again. Again my husband has called to me at about 1:00 a.m. in the night and threatened me that in case I had not returned back to the house and in lieu of that I have to pay a high value (Bhari Keemat Chukani Paregi) for it and till morning I came to know about it."
On careful perusal and analysis of the said part of the PW5 31 of 45 32 FIR No. 254/09 PS - Narela
- Smt. Reshma Kureshi, the same is found to be natural, clear and inspires confidence. It is not the case of the accused that there was no quarrel between her and him or that her daughter - prosecutrix was not residing with her mausi (PW1 - Ratna). Except putting the suggestions to PW5 - Smt. Reshma Kureshi, as detailed hereinabove and which have been negated by her (PW5 - Smt. Reshma Kureshi), the said part of testimony of PW5 Smt. Reshma Kureshi has remained intact.
It is also to be noticed from the contents of the said part of the testimony of PW5 - Reshma Kureshi that it was only the accused who was aware about the fact that she had brought her daughter/prosecutrix from the house of her mausi (PW1 - Ratna) and was in the custody of him (accused) and this very fact was not in the knowledge of PW5 - Smt. Reshma Kureshi which she came to know through the said telephone call of the accused. Admittedly, PW5 - Reshma Kureshi was not present in the house of her sister PW1 - Ratna, at the time when prosecutrix was taken away by the accused from the house of PW1 - Ratna. Simply because of the fact that PW5 - Smt. Reshma Kureshi is not able to tell the telephone numbers of her sisters and Bhabhi, her testimony cannot be disbelieved on the aspect that no 32 of 45 33 FIR No. 254/09 PS - Narela such telephone call as was made by the accused was not received by her.
Moreover, he fact that prosecutrix used to live in the house of her mausi (PW1 - Ratna) has not been disputed by the accused as the same has not been challenged during the crossexamination of PW6 - Prosecutrix wherein she had deposed "My khala (Ratna) used to give beatings to me during my stay in her house".
17. While analysing the testimony of PW1 - Ratna, PW5 - Smt. Reshma Kureshi and PW6 - Prosecutrix as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW1 - Ratna, PW5 - Smt. Reshma Kureshi and PW6 - Prosecutrix which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1
- Ratna that accused has been falsely implicated in this case or that as she has good contacts with local Police, thus, she managed this false case against accused and the suggestion to PW5 Smt. Reshma Kureshi that she in connivance with her sister - Ratna falsely implicated the accused in this case or that she alongwith her sister fabricated evidence against the accused to implicate him falsely in this case or that accused did not 33 of 45 34 FIR No. 254/09 PS - Narela commit rape on her daughter or that she is deposing falsely or that she could not tell the telephone numbers of her sister and Bhabhi today, as no such call was received by her on the date and time as alleged or that she and her sister Ratna tutored her daughter to depose against the accused or that her sister Ratna has ruptured the hymen of her daughter artificially to implicate the accused in a false case, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further, there is no iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of DW1 - Ms. Bharul, his neighbour.
DW1 - Ms. Bharul in her examinationinchief has deposed that she is residing at B - 278, Bawana, J. J. Colony, Delhi since 9/10 years and knows accused Irshad Kureshi as he is residing in her neighbourhood. She also knows wife of Kureshi namely Reshma since her marriage with the accused. The quarrel used to take place between the accused and his wife since beginning from their marriage and the 34 of 45 35 FIR No. 254/09 PS - Narela relation between them were not cordial and sometimes she used to left (leave) the home. During the days of Ramzan 4/5 years ago, prosecutrix (name withheld) was not with accused as wife of accused had left the home about 1015 days back alongwith prosecutrix. Accused Irshad Kureshi has been falsely implicated by his wife in a false case.
During her crossexamination by the Ld. Addl. PP for the State, DW1 - Ms. Bharul has deposed that she knows accused Irshad Kureshi for the last 9/10 years. She is house wife. Accused Md. Irshad Kureshi is running a meat shop. She has not made any complaint to the Police regarding the false implication of accused Irshad Kureshi. She negated the suggestions that today she is deposing falsely to save accused Irshad @ Kureshi as he is her neighbour and she is having good relations with him.
The careful perusal and analysis of the testimony of DW1 - Ms. Bharul indicates that she has not deposed anything which may aid or assist the case of the accused. Rather, her testimony corroborates the testimony of PW1 - Ratna and PW5 - Smt. Reshma Kureshi. The testimony of DW1 - Ms. Bharul is totally silent on the aspect that the prosecutrix was not taken by the accused from the custody of PW1 -
35 of 45 36 FIR No. 254/09 PS - Narela Ratna or that on the next day in the morning her custody was not given back to PW1 - Ratna. In her examinationinchief, DW1 - Ms. Bharul has only deposed that during the days of Ramzan about 45 years ago, prosecutrix was not with accused as wife of accused had left the home about 1015 days back alongwith prosecutrix. The said part of the testimony of DW1 - Bharul does not come to the rescue of the accused Irshad Kureshi that the custody of prosecutrix was not obtained by him from the house of PW1 - Ratna, sister of his wife PW5 - Reshma Kureshi or that the custody of prosecutrix was not given back to PW1 - Ratna by him on the next day in the morning. Moreover, during her crossexamination, DW1 - Ms. Bharul has specifically deposed that she had not made any complaint to the Police regarding the false implication of accused Irshad Kureshi. If DW1 - Ms. Bharul was knowing very well accused Irshad Kureshi for the last 910 years and she was knowing that accused had been falsely implicated by his wife then what prevented her (DW1 - Ms. Bharul) not to lodge a Police complaint against his false implication. Nonlodging of the Police complaint speaks volume. In the circumstance, it appears that DW1 - Ms. Bharul is a procured witness.
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18. Ld. Counsel for the accused raised the plea that PW1 - Ratna, after knowing the fact of her niece bleeding from vagina did not opt to go the Doctor but went to Police Station.
I have carefully pursued and analysed the evidence on the record.
The existence of strained relations between accused and his wife PW5 Reshma has not been disputed by the accused. It is also not in dispute that in the hour of crisis, different persons react differently,. PW1 - Ratna, acted/reacted in the manner she felt appropriate. Moreover, no explanation of PW1 - Ratna was obtained on the aspect regarding which the plea has been raised during her crossexamination.
In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
19. Ld. Counsel for the accused submitted that intimation regarding the arrest of the accused was given to Istaq, brother of the accused who used to reside in same Jhuggi. This fact also find mention in the arrest memo of the accused. This fact raises doubt on the prosecution story when other persons were available in the same house 37 of 45 38 FIR No. 254/09 PS - Narela where the act was committed, then why they were not made witnesses or the accused in the case.
I have carefully perused and analysed the evidence on the record.
Accused was arrested vide arrest memo Ex. PW5/C. I have carefully perused the same.
There is nothing on the record to substantiate, the theory of "some other persons were available in the same house where the act was committed" as propounded by the accused.
Accused nowhere in his statement u/s 313 Cr.P.C. stated that his brother Istaq was also living with him in the Jhuggi nor any suggestion regarding the said theory so propounded was put to PW1 - Ratna and PW5 - Reshma during their crossexamination.
In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
20. Ld. Counsel for the accused raised the plea that PW5 - Reshma after knowing the incident went to the Jhuggi of the accused but 38 of 45 39 FIR No. 254/09 PS - Narela fount it locked but later when she came with the IO of the case, how she got keys of the Jhuggi, it remained unexplained.
I have carefully perused and analysed the evidence on the record. The fact regarding which the plea has been raised was not put to PW5 - Reshma during her incisive crossexamination. For such failure, accused is to blame himself and none else.
In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
21. Ld. Counsel for the accused submitted that PW11 - ASI Raj Bala IO neither inquired from the neighbours of the accused nor from the neighbours of PW5 - Reshma nor from the neigbours of PW1 - Ratna to know the truth.
I have carefully pursued and analysed the evidence on record.
The testimony of PW11 - ASI Raj Bala is on the record. Her testimony is found to be cogent and reliable and she has candidly 39 of 45 40 FIR No. 254/09 PS - Narela deposed the facts/acts which she experienced, observed and carried out during the course of investigation and has also withstood the rigors of crossexamination. Moreover, non inquiry from the neighbours of the accused or that of PW5 - Reshma and PW1 - Ratna does not falsify the case of the prosecution which is otherwise proved on the record by the clear, cogent and convincing evidence.
In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
23. It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia 40 of 45 41 FIR No. 254/09 PS - Narela majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
41 of 45 42 FIR No. 254/09 PS - Narela On analysing the testimony of PW6 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination on MLC Ex. PW12/A of the prosecutrix and MLC of accused Irshad Kureshi Ex. PW13/A, as discussed herein before, the act of performing of recent sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda is ruled out.
In the circumstances, it stands clearly established on the record that no recent sexual intercourse activity has taken place in the instant case.
However, the act of accused Irshad Kureshi and of use of criminal force against PW6 - Prosecutrix whereby, she suffered injuries in her perineal region was committed with intent to outrage her modesty, therefore, is covered within the mischief of Section 354 IPC.
The provisions of Section 354 IPC makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are :
42 of 45 43 FIR No. 254/09 PS - Narela
(a)That the assault must be on a woman.
(b)That the accused must have used criminal force on her.
(c)That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage of the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. (Ref: Ram Kirpal Vs. State of MP AIR 2007 SC (Supp) 49).
In State of Punjab Vs. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could 43 of 45 44 FIR No. 254/09 PS - Narela be said to be possessed of 'modesty' which could be outraged. In answering the above question the majority view of the Hon'ble Supreme Court was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC.
24. In view of above and in the circumstance, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in the intervening night of 2728/08/2009 at Jhuggi No. B
- 543, J. J. Colony, Bawana, Narela, Delhi accused Irshad Kureshi used criminal force upon her daughter/prosecutrix (PW6), a minor girl aged about 4 years whereby, she suffered injuries in her perineal region and the criminal force was used upon her with intent to outrage her modesty.
I accordingly, hold accused Irshad Kureshi guilty for the offence punishable u/s 354 IPC and convict him thereunder.
However, prosecution has failed to prove its case for the offence punishable u/s 376 (2) (f) IPC against accused Irshad 44 of 45 45 FIR No. 254/09 PS - Narela Kureshi, therefore, accused Irshad Kureshi is acquitted for the offence punishable u/s 376 (2) (f) IPC.
25. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Irshad Kureshi in the commission of the offence u/s 354 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Irshad Kureshi beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Irshad Kureshi guilty for the offence punishable u/s 354 IPC and convict him thereunder. However, accused Irshad Kureshi is acquitted for the offence punishable u/s 376 (2) (f) IPC. Announced in the open Court (MAHESH CHANDER GUPTA) on 21st Day of February, 2013 ASJ/Spl. FTC N/W & Outer District Rohini, Delhi 45 of 45