Delhi District Court
228 (A) Ipc And Directions Of Supreme ... vs . Puttraj on 7 September, 2016
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case Number. 27583/2016
Sessions Case No. 60/2015
Assigned to Sessions. 24.11.2015
Arguments heard on 07.09.2016
Date of Judgment 07.09.2016
FIR No. 242/2015
State v. 1. Rasid (JC)
S/o Sh. Mohd. Salim,
12/11, 232, Roop Nagar, Delhi110007.
2. Mohd. Salim,
S/o. Sh. Abdul Gani,
12/11, 232 Roop Nagar, Delhi110007.
Police Station Roop Nagar
Under Section 376, 328/376, 328, 323/34 and 509/34 IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Roop Nagar had filed a challan vide FIR No.242/15 dated 16.04.2015 u/s.
328/323/509/354/376/376(2n)/506/34 IPC for the prosecution of accused persons namely Rasid and Mohd. Salim in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is a Fast Track Court for trial of the cases pertaining to crime against woman, hence this case was sent by Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi to this court for trial. 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 Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
SC No.60/2015 State Vs. Rasid etc. 1/102. The case of the prosecution is that on 16.04.2015 a DD No.31A was recorded at PS Roop Nagar. On receipt of DD, SI Rakesh Kumar alogwith W/Ct. Joginder reached at Bhagat Singh Chowk, Roop Nagar, Delhi where they came to know that victim has been shifted to Hindu Rao Hospital by CATS vehicle. Thereafter, SI Rakesh Kumar reached at Hindu Rao Hospital and recorded statement of victim wherein prosecutrix stated that she is a housewife and in Burari her house is under construction and for making gate her under construction house she had met with accused Rashid. It is further stated that phone number of Rashid was given by her husband's friend namely Nafis. It is further stated that due to this work she had begun conversation with accused Rasid. He had told her that she came at his shop to look the goods and she had gone to the shop of Rashid at Roop Nagar near temple at about 4:30 p.m. Rashid was not at his shop and father of Rasid and two other boys were sitting outside the shop and shutter of the shop was closed and father of Rasid told her that her work will be done and within 1 or two days he would like to visit her said her house in order to make the gate. It is further stated that she talked over phone to Rashid and he told that he had gone to Shakti Nagar and he will come after some time at his shop. At about 5:45 p.m., Rashid came at his shop and talked with her and accused Rashid offered her cold drink and accused Mohd. Salim, father of Rashid had asked her to deposit advance money then accused Rashid had brought cold drink and she started consuming cold drink while talking. It is further stated that on pretext of depositing money some quarrel was happened with Rashid and his father and she started feeling giddy and started developing unconsciousness. It is further stated that she told the accused Rashid that he had given her some intoxicated substance. Thereafter, accused Rashid gave her kick below on her genital stating that "tere jaisi randiyan maine bahut dekhi hai". Then father of accused Rashid shouted that "iss behan ki lodi ka kaam tamam kar do". Thereafter, she became unconscious and when she SC No.60/2015 State Vs. Rasid etc. 2/10 regained her consciousness she found herself near the shop of Rashid at Bhagat Singh Chowk. When she regained her unconsciousness, she called at 100 number and ambulance taken her to hospital. On the basis of statement of prosecutrix, present FIR No.242/2015 u/s 328/323/509/34 IPC was registered. During the course of investigation, accused persons were arrested.
CHARGE:
3. On the basis of material available on record, Ld. Predecessor of this court vide order dated 04.01.2016 framed a charge against accused Rashid for the offence punishable u/s 376, 328/376 and 328 IPC and against accused persons namely Rashid and Mohd. Salim for the offence punishable u/s 323/34 and 509/34 IPC to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 02 witness namely PW1 SI Nirmal Kanta and PW2 Prosecutrix.
5. PW1 SI Nirmal Kanta is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex.PW1/A and endorsement vide Ex.PW1/B. This witness has also proved certificate under section 65B Evidence Act vide Ex.PW1/C. This witness has also proved DD No.13A vide Ex.PW1/D.
6. PW2: Prosecutrix 'S@S' is a material witness being victim and complainant.
This witness deposed that accused Rasid present in the court (correctly identified) is known to her being friend of her husband and he had been residing at some distance from her house.
7. This witness further deposed that she had called accused Rasid some time in the SC No.60/2015 State Vs. Rasid etc. 3/10 month of March or April 2015 regarding manufacturing of door and grill for her under construction house at Burari, Delhi. Accused told her that he would like to visit her said house in order to make the door and grill.
8. This witness further deposed that after about a week accused called her at Karawal Nagar, Delhi at a restaurant in the evening time to talk to him in connection with the making of the said grill and door. She reached there and discussed the matter and then accused asked her to deposit some advance money and also told he that he would visit her house for the said purpose.
9. This witness has further deposed that once accused had also telephoned her to come to ISBT, Kashmere Gate. She reached there but accused did not come.
10. PW2 further deposed that after about 15 days or so accused called her at his shop at Roop Nagar, Delhi. She reached the shop of the accused at about 06.00 pm 07.00 pm where father of the accused, Salim present in the court met her and two three persons were also there but accused was not there. He came there after half an hour. Accused Salim asked her to deposit the entire money for making grill and door but she said to him that she would not make the entire payment unless and until door and grill are manufactured. On this a quarrel was ensued. He abused her. In the meantime accused Rashid also came up there, pacified her and told her to sit there comfortably. Accused Rasid had also quarreled with her on the asking of making payment for the purpose of manufacturing grill and door.
11. PW2 further deposed that accused Rasid served her cold drink. Even after taking cold drink quarrel was continue. After consuming the cold drink she felt that accused had mixed up something in the cold drink. She started feeling giddy and started developing unconsciousness. Accused Rasid gave her kick below on her SC No.60/2015 State Vs. Rasid etc. 4/10 genital. After some time she went aside at some distance near a "Kuredan" there she become unconscious.
12. Before offering her cold drink probably accused Rasid had also called the police on number 100. Police official came there and took her to Hindu Rao Hospital. She regained consciousness in the hospital. She was medically examined by the doctor. She had given the brief account of incident to the doctor who had conducted her medical examination. She remained admit in the hospital for two days.
13. During her admission at the hospital, police recorded her statement whereon she also appended her signature. This witness further deposed that at the time of recording her statement she was not in fit state of mind. She had narrated the entire incident the police officials.
14. This witness has proved statement under section 164 Cr.PC vide Ex.PW2/A (running into 8 pages).
15. PW2 further deposed that she does not remember the registration number of Swift DZire car in which he had taken her somewhere at about 05.30 pm and she does not remember the place. Accused had not committed any wrong act with her. Thereafter, accused dropped at Red Light, Khajuri. Again said at Karawal Nagar and she took an Auto and went to her house. Thereafter, accused never took her anywhere in the said car. PW2 further deposed that accused had not done anything wrong with her at any point of time. Accused never served her any drink laced with sedative.
16. PW2 further deposed that she had made complaint against both the accused persons for the quarrel ensued on account of payment for making two grills and SC No.60/2015 State Vs. Rasid etc. 5/10 grill door.
17. On question: Did you make any complaint against both the accused persons with regard to the present incident? This witness replied that police had obtained her signatures on some blank sheet and on some written sheet. Since she was illiterate she was not aware about the contents of the written paper.
18. This witness has proved complaint vide Ex.PW2/B.
19. This witness had also given her statement to Ld. Magistrate, Tis Hazari Court vide Ex.PW2/A.
20. This witness was also got medically examined by the police twice. This witness has proved the MLC with regard to her first medical examination vide Ex.PW2/C and the MLC with regard to her second medical examination vide Ex.PW2/D.
21. This witness further deposed that she had not stated to the doctor who had conducted her medical examination regarding sexual assault committed by the accused Rasid.
22. The prosecutrix was declared hostile by the Prosecution. Despite her cross examination, she failed to support the case of the Prosecution.
23. In her cross examination by Ld. Addl. PP for the State, this witness admits that she met the accused Rasid for the first time on 02.04.2015 and on the same day he had called her at ISBT Kashmere Gate. Vol. When she went there accused Rasid was not present there. This witness had denied to the suggestion that on that day at about 06.00 pm when she went to Kashmere Gate ISBT, accused SC No.60/2015 State Vs. Rasid etc. 6/10 Rasid met her and made her to sit in his gray color swift car bearing registration number something 1757 on the pretext of taking her to his shop. This witness admits that accused Rasid had served her Limca soft drink laced with sedative and when she consumed the same she became like unconscious and when she regained consciousness she found that her clothes were disturbed and also become suspicious that accused Rasid had committed sexual intercourse with her. This witness had denied to the suggestion that accused Rasid had committed rape with her. Confronted with the statement u/s 164 Cr.PC already Ex.PW2/A wherein said facts are recorded at point B to B. This witness admits that accused Rasid had dropped her at about 09.00 pm on that day at Khajuri Pusta. This witness further admits that on account of fear and honour she could not tell the incident to anyone. This witness had denied to the suggestion that her daughter Neha aged about 16 years had seen her condition when she reached her home. Confronted with the statement u/s 164 Cr.PC already Ex.PW2/A wherein said facts are recorded at point C to C. This witness had denied to the suggestion that accused Rasid had called her on her mobile phone and came at GT Karnal Road in the same Swift car and despite her resistance he made her sit in that car and said to her "bhabhi tum bahut acchi lagti ho" and that he bought Maaza colddrink and gave it to her to drink the same and that when she drunk the Maaza she again lost her senses and realized that accused Rasid was committing rape with her. Confronted with the statement u/s 164 Cr.PC already Ex.PW2/A wherein said facts are recorded at point D to D. This witness had denied to the suggestion that when she reached her home, she narrated the facts of entire incident to her husband on telephone who was in Bombay at that time. This witness had further denied to the suggestion that on 16.04.2015 at about 04.00 pm she went to the shop of the accused Rasid at Roop Nagar and at that time the father of the accused Rasid namely coaccused Mohd. Salim was present and that he called the accused Rasid there and accused Rasid offered her colddrink stating that it was a different colddrink and nothing would happen SC No.60/2015 State Vs. Rasid etc. 7/10 after drinking the same but as soon as she consumed the same she started feeling giddy and that she did not consume the full Limca rather saved some of it and kept it in her bag and that in the meantime accused Rasid hit her on her genital stating that"tere jaisi randiyan bahut ghoomti hain aur roz hamari dukaan per aisi 36 aati hain and that somehow she escaped from there and thereafter, she dialed telephone number 100 and stated to police that twothree boys had served colddrink to her and did badtamijee with her. Confronted with the statement u/s 164 Cr.PC already Ex.PW2/A wherein said facts are recorded at point E to E. This witness had denied to the suggestion that police recorded her statement Ex.PW2/B wherein she had stated the incident in brief and thereafter, she appended her signature at point A thereon. This witness had denied to the suggestion that she is deposing falsely that her signatures were obtained on blank sheet of paper or that the said statement was read over to her, then she appended her signature thereon. This witness had denied to the suggestion that she had also given the aforesaid facts of incident in her statement Ex.PW2/E. Confronted with the statement u/s 161 Cr.PC Ex.PW2/E wherein the complete account of incident are mentioned.
24. This witness had denied to the suggestion that on 01.07.2015 accused Rasid was arrested on her identification at police station vide arrest memo Ex.PW2/F. This witness had denied to the suggestion that she had also stated this fact in her statement Ex.PW2/G. Confronted with the statement Ex.PW2/G wherein the said facts are recorded. This witness admits that arrest memo Ex.PW2/F bears her signature at point A. This witness had denied to the suggestion that on 04.07.2015 she had also joined the investigation and led the police party to the place of incident where police prepared site plan. This witness had denied to the suggestion that she had also stated this fact in her statement Ex.PW2/H. Confronted with the statement Ex.PW2/H wherein the said facts are recorded. This witness had denied to the suggestion that she had also stated this fact in her SC No.60/2015 State Vs. Rasid etc. 8/10 statement Ex.PW2/I. Confronted with the statement Ex.PW2/I wherein the said facts are recorded. This witness had denied to the suggestion that on 16.04.2015 she refused to give gastric lavage to the doctor who had conducted her medical examination as she was scared on account of insertion of feeding pipe in her nose or that on that account she could not tell the complete incident to the IO or that due to dignity and honour she could not lodge complaint against the accused Rasid qua the rape committed by him. This witness had denied to the suggestion that she had stated the said facts in her statement Ex.PW2/K. Confronted with the statement Ex.PW2/K wherein the said facts are recorded. This witness had denied to the suggestion that she has been won over by the accused, deliberately concealing the true facts of the case and deposing falsely.
25. This witness was cross examined by Sh. Arun Sharma with Sh. Prashant Rawat, Ld. counsel for both accused persons. In her cross examination, this witness admits that accused Mohd. Salim did not do anything wrong with her nor he ever misbehaved her. It is also correct that accused Rasid never gave her any kick blow on her genital. This witness further admits that she had mentioned the fact that Rasid had given her kick blow on her genital on account of confusion.
26. Ld. counsel for accused requests to close P.E. as prosecutrix has not supported the case of prosecution.
27. On the other hand, Ld. Addl. PP for the State seeks permission to examine other material/public witnesses to the prove the incident in question. Heard.
PERUSAL OF RECORD:
28. Record perused. On perusal of record, it is revealed that prosecutrix cross examined and discharged and from close scrutiny of testimony of prosecutrix, it is revealed that no incriminating evidence could come on record to proceed SC No.60/2015 State Vs. Rasid etc. 9/10 further. Hence, in these circumstances further trial of case would not serve any purpose. Hence, the request of Ld. Additional PP is declined and P.E. is closed.
29. Since no incriminating evidence could come on record, hence, S.A. u/s 313 Cr.
P.C. is dispensed with. Accused persons namely Rasid and Mohd. Salim are acquitted from the charges. Both accused persons are directed to execute bail bond u/s 437 A Cr. P.C. in sum of Rs.25,000/ each with one surety each in the like amount.
30. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 07.09.2016.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.60/2015 State Vs. Rasid etc. 10/10