Delhi District Court
Fir No. 1194/2014 State vs . Lallan Shah Ps Sultan Puri on 4 May, 2018
FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE: (NORTH
WEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 04/15)
Unique ID no. 02404R0007302015
State V/s Lallan Shah
FIR No. : 1194/14
U/s : 376/366 IPC
& Sec. 6 of POCSO Act
P.S. : Sultan Puri
State V/s Lallan Shah
S/o of Sh. Ashrafi Shah
R/o A3/48, Sector18,
Rohini, Delhi.
Date of institution of case : 07.01.2015
Date of arguments : 04.05.2018
Date of pronouncement of judgment : 04.05.2018
J U D G M E N T :
1.The facts of the case as borne out from the record are that on 20.10.2014, after entrustment of DD no. 33A, W/SI Rakhi reached at Sanjay Page 1 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri Gandhi Memorial Hospital, where SI Deepak Purohit and Ct. Dhan Singh met her and then SI Deepak Purohit handed over the MLC of the victim A as well as MLC of baby of victim A and told that victim, who is unmarried, has delivered a child and that the victim A is admitted in the ward and child is admitted in the nursery. Thereafter, IO SI Rakhi got the prosecutrix A counseled through NGO counselor and recorded her statement to the effect that in the month of May 2014, she was not feeling well and her mausa Lallan i.e. the accused took her to Badli on the pretext to get her check up through a Mulla and as the shop of said Mulla was found closed, the accused took her to a house, where he committed penetrative sexual assault upon her without her wishes and consent and thereafter, accused took her to the said Mulla, got her medicines and then left her to her house. She further stated that she did not disclose about the incident to her mother as they were already tensed because of her previous case and thereafter, the accused took her 23 times to that room on the pretext of getting her medicine and committed penetrative sexual assault upon her forcibly. She further stated that since last 56 months, she was also not menstruating and she disclosed about this fact to the accused, but he asked her not to worry about it and ultimately, due to more pain in her stomach, she was got admitted in Sanjay Gandhi Memorial Page 2 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri Hospital, where she delivered the child and said child is of accused and she requested for legal action against the accused.
On the basis of statement of the prosecutrix as well as MLC, present case FIR was registered. On 20.10.2014, the new born child of prosecutrix was expired. Accused was arrested, his personal search was got conducted and his disclosure statement was also recorded. Accused was also medically examined at SGM Hospital and his sealed exhibits were deposited in the Mal Khana. The statement of prosecutrix U/S 164 CrPC was got recorded. Prosecutrix was got counseled at CWC. Exhibits were got sent to the FSL. Documents regarding the date of birth of prosecutrix were collected and thereafter, on completion of investigation, charge sheet was prepared and filed before this court.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 20.05.2015, charges u/s 366 IPC and 5 (j) (ii) (l) (n) and (p) of POCSO Act 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (f) (h) and (n) IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
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FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri
3. In order to prove the charges against the accused, prosecution examined as many as 18 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the prosecutrix at the instance of her parents. Accused did not lead any evidence in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Balram Tyagi, ld. Defence counsel, for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW1, HC Rajeev Kumar, was posted as Duty officer in PS Sultan Puri at the relevant time and he proved the attested copy of DD no. 26A as Ex. PW 1/A, recorded by him regarding request for sending the lady officer at SGM Hospital. He also proved the computerized copy of FIR as Ex. PW1/B, endorsement made by him on rukka as Ex. PW1/C and certificate u/s 65B of Page 4 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri Evidence Act as Ex. PW1/D. There is no cross examination of this witness.
PW2, Ms. Shefali Barnala Tandon, ld. M.M, in her evidence proved statement of the victim as Ex. PW2/B, recorded by her under Section 164 Cr.P.C on 28.10.2014. There is no cross examination of this witness.
PW3, HC Vinod Kumar was working as MHCM at PS Sultan Puri at the relevant period and he proved the entries made by him in register no. 19 and 21 as Ex. PW3/A to Ex. PW3/D, which were made by him at the time of deposit of case property with him and at the time of sending the same to FSL Rohini and deposed regarding the same. There is no material crossexamination of this witness.
Victim A in the present case was examined as PW4 and the relevant portion of her testimony is as under : "I am residing at the address mentioned in the list of witness against my name with my parents and my six brothers and sisters. I am the eldest born child of my parents. We are four sisters and three brothers. I am studying in 9 th standard in a Government School, at Nithari, Aman Vihar, Delhi. In the month of May, 2014, I was not feeling well. My mother wanted to take me to doctor's clinic. Page 5 of 18
FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri My Mausa Lallan Shah, present in the court today (correctly identified through the design of wooden partition) asked my mother that he knew a Mulla in village Badli, who gives medicines for such ailments. My mother had asked the accused to take me alongwith him to the said Mulla at Badli. He took me to the shop of Mulla, but the shop of that Mulla was closed. Thereafter, accused took me to a room, where he did Galat Kaam with me.
Q: What do you mean by Galat Kaam? A: Initially he touched me inappropriately and thereafter, he made physical relations with me against my wish.
Accused did not stop despite my refusal and protest. He talked with my mother and told her that he would bring back to home in the evening after getting medicine from the Mulla. Thereafter, he took me to that Mulla, where I got medicines and thereafter, he left me at my house. I did not disclose about the incident to anyone in my family as I was scared because another case of rape committed upon me was pending trial in this court, wherein also, I was the victim. I was apprehending that my parents may not scold me and due to this reason I did not tell about the incident to anyone. The accused had committed rape upon me twothree occasions again after the abovesaid incident on the pretext of Page 6 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri getting me medicines. I was not having my periods for the fivesix months from the date of registration of FIR. I informed about this to my Mausa i.e. the accused, who told me that due to the weakness I am not getting my periods.
On 19.10.2014, I had stomachache and continued for the whole night, due to this my parents took me to SGM Hospital in the early morning hours. Doctor gave me injection to relieve me from pain in the Emergency Ward. After having injection, I had a severe pain and I had delivered a baby boy in the Emergency Ward itself. The child was of accused Lallan. Police was called, who recorded my statement, which is now Ex. PW4/A, bearing my signature at point A. Medical examination of my baby was also conducted. Earlier also, I had come to the court, where my statement was recorded by a Lady Judge.
At this stage, the witness is shown her statement recorded u/s.164 Cr.P.C., whereupon she admits her signature at point A. The said statement is already Ex. PW2/B. I did not point out the place of incident and the shop of said Mulla to the police, as I did not know that place. I did not retain the medicine given by the said Mulla to me. I took that medicine only once and thereafter, I had thrown away the subsequent doses. It was in the liquid form.
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FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri Xxxxx by Sh. B.L. Madhukar, Ld. Counsel for the accused.
My date of birth is 21.10.1997. I do not know, whether I have a birth certificate issued by MCD in my name, or a copy thereof was submitted in my school at the time of my admission. I was born in Delhi. It is wrong to suggest that prior to coming to Delhi, I was studying in 3 rd class in Bihar. I was directly admitted to 3rd class in the school first attended by me in Delhi. It is wrong to suggest that at the time of delivery, my age was 19 years.
The accused had taken me to the shop of Mulla first time in an auto rickshaw. We had reached there at about 1200 noon. We had left our home at 10.00 a.m. At the shop of Mulla, there was no advertisement board and it was a single room shop. We had stayed in the shop of Mulla for about 10 minutes. It took us 30 minutes to reach at that room, where the accused had taken me after finding the Mulla's shop closed. We had gone by a different auto rickshaw. I do not know as to whether somebody had met us in that room. It was a ground floor room and that house had only single room. I remained in that room till 5.00 p.m. It is wrong to suggest that I was not taken to that room by the accused as nobody met us there. It is further wrong to suggest that I do not remember the date of the incident of the first time, as no such incident had taken place. From the said room Page 8 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri to the Mulla's shop, we had gone on foot. We had reached Mulla's shop at about 6.00 p.m. There were other patients as well in the shop of Mulla Ji. We reached back to our house at about 8.30 p.m. by bus. I do not remember the bus route number. From 10.00 a.m. to 8.30 p.m., accused had spoken to my mother on phone, but I did not had any talk with anybody on phone. Vol. I was not having mobile phone. I do not remember the time, when the accused had spoken to my mother on phone. I do not remember the mobile phone number of my mother. The accused had dropped me at my house and had also stayed for about half an hour on that day. I do not remember the dates of subsequent penetrative sexual assault committed upon me by the accused. It is wrong to suggest that I do not remember the aforesaid dates because no such penetrative sexual assault were committed upon me by the accused. From May, 2014 till 19.10.2014, my mother had not got me examined through any doctor. It is correct that I had not told about the sexual assaults to my mother prior to 19.10.2014. Court question : Why you did not communicate about sexual assaults to your family members ?
Ans. On account of an earlier case of sexual assault committed upon me by another person, I had to bear a lot from my family members and as such, I could Page 9 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri not muster courage to disclose about the sexual assaults committed upon me by the accused, to my family members.
It is incorrect to suggest that I had not told about the aforesaid sexual assaults to any of my family members because no such assaults had ever taken place with me through accused.
The accused is Jija of my Chachi. I do not know whether there had been a quarrel between my Chachi and the wife of accused. I do not know as to whether my Chachi and the wife of accused have not been on speaking terms for a fairly long time. It is wrong to suggest that my father had sought a loan of Rs.25,000/ from the accused, which he could not give to him and as such he got the accused falsely implicated in this case by using me as a tool.
I came to know of my pregnancy only on 20.10.2014 in the hospital. Police had met me first time in this case in the hospital on 20.10.2014. Police had made further inquiries from me in the hospital after I was discharged from the hospital on 22.10.2014. Ex. PW4/A was recorded by the police on 20.10.2014 in the hospital. Thereafter, I did not go to Police Station in this case ever. It is wrong to suggest that at the instance of my parents, I have falsely implicated the accused on account of a family dispute. It is correct that none of Page 10 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri my Chachas and Taaus are on visiting and talking terms with us. It is wrong to suggest that I have deposed falsely."
PW5 is the doctor who conducted the post mortem of new born baby of the victim. There is no cross examination.
PW6 is the brother of the victim who accompanied the IO when accused was arrested on 21.10.2014 from his residence. There is no material cross examination.
PW7 is the doctor who initially examined the victim. There is no cross examination.
PW8 is the doctor who examined the accused. There is no cross examination.
PW9 is the father of the victim who stated that victim is his eldest daughter born on 21.10.1997 and accused is his cobrother. On 19.10.2014, his daughter had severe stomach ache and she was taken to SGM hospital on 20.10.2014 where she delivered a male baby. His daughter told that accused raped her when he took her to a Mulla for getting medicine. In the cross examination, he stated that he got married in 1989 and his first child was born in 1992 and victim, the Page 11 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri next child was born in 1997 and he had no idea about the sexual assault upon the victim girl before 20.10.2014.
PW10 is the doctor in whose presence the victim delivered the male baby who was shifted to Nursery and stated that her parents were not willing for further investigation. There is no cross examination.
PW11 is the mother of the victim who stated that victim is a eldest daughter and she cannot tell her exact date of birth but was 17 years old at the time of incident and accused is sadu of her younger brother in law and on 19.10.2014, her daughter had severe stomach ache and was taken to hospital on 20.10.2014 where she delivered a male baby and she informed that accused has done galat kaam with her when he had taken to one mulla for getting medicine. In the cross examination, she stated that she is not aware about the exact date of birth of the victim and at the time of her admission, a madam got prepared an affidavit of the age of the prosecutrix and she had no proof of date of birth of the victim. She further told that she came to know about the alleged sexual assault by the accused only on 20.10.2014 in the hospital.
PW12 is the IO who was entrusted DD no. 26A regarding admission of a 17 years old girl in the hospital. After reaching hospital, after coming to know Page 12 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri about the nature of the case, he called duty offer to send some lady IO and further investigation was handed over to W/SI Rakhi. There is no material cross examination.
PW13 is the DD writer who recorded DD no. 26A. There is no cross examination.
PW14 is the Teacher from the first attended school of the victim where her date of birth is mentioned as 21.10.1997 on the basis of affidavit submitted by her mother. There is no material cross examination.
PW15 is the second IO who recorded the statement of the victim, prepared rukka and got this FIR registered and arrested the accused and got him medically examined and collected the exhibits of the accused, victim and her child and deposited with the MHC(M) and later on send the same to FSL through Ct. Parvesh and recorded the statement of witnesses and filed the chargesheet. In the cross examination, the IO admitted that in an earlier case, decided vide FIR No. 295/13, PS Sultan Puri Ex.PW15/DX1, the victim has been held to be more than 18 years of age in that case.
PW16 is the Scientific Officer from FSL, Rohini who proved on record Ex.PW16/A and allelic data Ex.PW16/B. There is no cross examination. Page 13 of 18
FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri PW17 is businessfriend of accused who was selling coconuts with the accused and stating that one day two years ago, accused brought one girl and asked for the keys of the room to get coconuts from there. He gave keys to him and does not know what happened thereafter.
PW18 is the moja clerk from record room session, who proved on record the judgment passed in FIR no. 295/13, PS Sultan Puri, titled as State Vs. Mohit already Ex.PW15/DX1.
6. It has been argued for the accused that there is unexplained delay in lodging the FIR, the victim has already been held to be major in judgment Ex.PW15/DX1 and further the FSL did not match with that of accused and this clear case of false implication to settle family scores.
7. The Ld. Addl. P P on the other hand has argued that victim as per her first attended school was minor and further did not tell about the incident of sexual assault by the accused because of pressure of earlier FIR no. 295/13 involving rape upon the victim and only because the FSL result does not support the fact that the male baby boy delivered to the victim was not fathered by the accused is Page 14 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri no ground to disbelieve her and she is a reliable witness and conviction can be based on her sole testimony without corroboration.
8. I have considered the arguments advanced at bar and carefully gone through the entire record.
9. As far as the age of victim is concerned, the prosecution itself has proved the judgment Ex.PW15/DX1 passed in FIR no. 295/13 dated 12.12.2014 involving the victim herein of an incident of rape dated 06.05.2013. In that case the Ld. Court held the victim to be major by disbelieving the same piece of evidence i.e. the same school record produced in this case. That judgment now has attained finality and in itself is sufficient to say that victim was major as on date of incident in this case i.e. from May, 2014 to October, 2014. Otherwise also, it is clear from the record that the parents of the victim are not aware of the exact date of birth of the victim as recorded in her school. The mother of the victim PW 11 stated that at the time of her admission, one madam got prepared an affidavit of the age of the victim and she had no proof of her date of birth. This shows that the date of birth in the school record were mentioned in an affidavit got prepared Page 15 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri by one madam and the mother of the victim had no personal knowledge of the facts of the affidavit. Further, the parents of the victim in their examination in chief stated that victim is their first born child and they got married in 1989. It is only in their cross examination, they said that victim is their second child and for this reason, they cannot be relied upon as far as the date of birth of the victim is concerned. The prosecution as such has failed to prove that the victim was minor during the period of alleged sexual assault on her.
10. Coming to the main incident, there is unexplained delay in lodging the FIR. Admittedly, the first alleged sexual assault was committed in May, 2014 but the FIR was registered only on 20.10.2014 when the victim delivered a male baby in SGM hospital. Why she did not report the alleged sexual assault to anyone including her parent remains unexplained. It cannot be ignored that the FSL result does not support the case of sexual assault by the accused which means that victim had physical relation with some one else. Further, there are contradictions in the statement of the victim u/s 164 Cr.P.C. and the statement given in the court. In her statement u/s 164 Cr.P.C. she stated that the accused took her for getting medicines and in the way took her to his friends house and there he Page 16 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri established physical relation with her and after getting her medicine brought her back in the evening. In the court, she stated that the victim first brought her to the shop of mullah which was closed and then took her to a room and there he committed rape upon her and subsequently, he again committed rape upon her on 23 occasions on the pretext of getting medicines. In the court, she improved her testimony by stating that she was sexually assaulted more than once. On the other hand, her mother PW11 in her cross examination, stated that accused only once took her daughter for getting medicine from mullah which is contrary to the statement of the victim who stated that accused took her 23 times on the pretext of getting medicines and raped her. Further, if accused sexually assaulted the victim in May, 2014 then it is not possible that a fully matured male baby could be delivered without any assistance on 20.10.2014. The MLC Ex.PW7/A shows that the victim delivered a live male baby without any aid or medicine and it was a regular delivery. The same rules out a case of sexual assault in May, 2014. The prosecution has not been able to prove that the victim was less than 18 years of age at the time of incident and that accused sexually assaulted her. Accused is given benefit of doubt. Accordingly, he is acquitted. His bail bond stands cancelled and surety bond stands discharged. Endorsement, if any on the Page 17 of 18 FIR No. 1194/2014 State Vs. Lallan Shah PS Sultan Puri documents of accused or his surety be cancelled. The original documents of accused or his surety, if on record, be returned to him forthwith.
Announced in the open Court (Amit Kumar)
on 04.05.2018 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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