Delhi District Court
State vs Gulbahar Ali @ Raju & Anr -:: Page 1 Of 13 ... on 20 October, 2015
-:: 1 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 19/2015.
Unique Case ID Number : 02401R0076362015
State
versus
1. Mr. Gulbahar Ali @ Raju,
Son of Mr. Usman Ali,
Resident of Village Padupara, PS Dhupthara,
District Golpara, Assam.
2. Mr. Sayed Ali @ Raju,
Son of Mr. Thapa Mohd,
Resident of B-2/552-553, Raghubir Nagar,
New Delhi.
First Information Report Number : 795/2014
Police Station : Khayala
Under sections 323 / 342 / 368 / 370 / 376 / 120-B and 34 of the Indian
Penal Code.
Date of filing of the charge sheet before : 19.12.2014
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 12.02.2015.
Arguments concluded on : 20.10.2015.
Date of judgment : 20.10.2015.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the
State
Accused Mr. Gulbahar Ali @ Raju on bail.
Accused Mr. Sayed Ali @ Raju has been produced from
judicial custody in some other case on production warrant.
He has been taken into custody in the present case.
Mr. Raj Kumar Roy, counsel for accused Gulbahar @ Ali @
Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala
Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code.
State versus Gulbahar Ali @ Raju & anr -:: Page 1 of 13 ::-
-:: 2 ::-
Raju.
Mr. Sanjeev Kumar Jha, Amicus Curiae for accused Sayed Ali
@ Raju.
Prosecutrix is present.
IO/ Inspector Bimla is present.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
************************************************************
JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."...........Kurt Cobain ************************************************************
1.Mr. Gulbahar Ali @ Raju and Mr. Sayed Ali @ Raju, both the accused persons have been charge sheeted by Police Station, Khayala, Delhi for the offence under sections 323, 342, 368, 370, 120-B and 34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that since period not disclosed at Guwhati, Assam, accused Gulbahar Ali @ Raju had established physical relations thrice with the prosecutrix (name mentioned in file and withheld to protect the identity of the prosecutrix) on a false promise to marry her; Accused Gulbahar Ali @ Raju enticed the prosecutrix to come from Delhi to Assam on a false promise to marry her and to get her a good job in Delhi and took her to the house of co-accused Sayed Ali @ Raju and co-accused Julie (who is a Proclaimed Offender), left her and when the prosecutrix was alone, accused Gulbahar Ali forcibly had physical relations with her; Accused Gulbahar Ali @ Raju along with accused Syed Ali @ Raju and co- accused Julie (Proclaimed Offender) entered into a conspiracy at Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 2 of 13 ::-
-:: 3 ::-
unknown time that the prosecutrix would be sold and they were trying to sell her.
2.After completion of the investigation, the charge sheet against accused persons Mr. Gulbhar Ali @ Raju and Mr. Sayed Ali @ Raju was filed before the Court of the learned Metropolitan Magistrate on 19.12.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 12.02.2015.
3.After hearing arguments, vide order dated 07.08.2015, charge for offence under sections 376,417,420,370, 511 and 120-B of the IPC was framed against the accused Mr. Mr. Gulbhar Ali @ Raju and charge for offence under sections 376, 109 and 120-B of the IPC was framed against the accused Mr. Sayed Ali @ Raju to which they pleaded not guilty and claimed trial.
4.In order to prove its case, the prosecution has examined the prosecutrix as PW1.
5.All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 3 of 13 ::-
-:: 4 ::-
implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed. Preliminary inquiries have been made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
6.The prosecutrix, as PW1, has deposed that she came to Delhi from Assam with her free consent with the accused Gulbahar Ali @ Raju as she was in relationship with the accused him for the last three years. She had physical relations with him with her free consent and without any fear, threat, coercion, influence or pressure. She had misunderstanding and had quarrel with the accused Gulbahar Ali @ Raju on small matters and therefore, she made complaint against the accused him. She had married with the accused Gulbahar Ali @ Raju on 28.02.2015 and she has no grievances against the accused Gulbahar Ali @ Raju. (The prosecutrix has produced a document of marriage (Ex.PW1/A) which is stated to be written in Bengali. (The marriage certificate is admitted by both the accused, defence counsel and the Amicus Curiae). She is living happily with accused Gulbahar Ali @ Raju. She has further deposed that she has never seen accused Sayed Ali earlier. She was made to see accused Sayed Ali @ Raju through the screen and after she has seen him, she deposed that accused Sayed Ali, who is present in the Court today whom she has seen through the screen has not committed any offence Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 4 of 13 ::-
-:: 5 ::-
against her. She has not identified accused Sayed Ali @ Raju through the screen. She can identify accused Julie (Proclaimed Offender), if shown to her. She is not present in the Court today. She is making her statement today before the Court at her own free will. She is not under any threat or pressure. Accused Gulbahar Ali @ Raju has not committed any offence. Accused Gulbahar Ali @ Raju has not raped her on a false promise of marriage. He has married her as he had promised. She had physical relations with him with her free consent and there was no misrepresentation by the accused. She did not have any grievance against both the accused since they have not committed any offence. She has prayed that both the accused may be acquitted.
7.As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
8.In her cross examination by the Additional Public Prosecutor for State, (the complaint (Ex. PW1/B) is read over to the witness), the prosecutrix has admitted that she had made the complaint (Ex.PW1/B) against accused Gulbahar Ali @ Raju, Sayed Ali @ Raju and Julie (Proclaimed Offender) to the police and the contents had been written as per the version told by her. She voluntarily stated that she had made the complaint at the instance of her well wisher as she had some misunderstanding and quarrel with accused Gulbahar Ali @ Raju. The accused have not committed any offence. She has denied the suggestion that she accompanied the accused Gulbahar Ali @ Raju due to misrepresentation by the accused or that he tried to sell her. She further Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 5 of 13 ::-
-:: 6 ::-
denied the suggestion that the accused had raped her at Raghubir Nagar House, where he took her after coming to Delhi, rather she had relation with the accused with her free consent. She did not know how to read and write Hindi and whatever was written in the complaint. She had put her thumb impression. She has denied the suggestion that the accused did not allow her to talk to her parents when she was with the accused at Raghubir Nagar, Delhi. She has admitted that she was taken by the police to DDU hospital where she was medically examined vide MLC (Ex.PW1/C). She has admitted that she was produced by the police before the Court of learned Metropolitan Magistrate at Tis Hazari Courts and she has recorded her statement under section 164 Cr.P.C (Ex.PW1/D). The statement under section164 Cr.P.C., Ex.PW1/D is read out to the witness and she has deposed that she had made the complaint at the instance of her well wisher as she had some misunderstanding and quarrel with accused Gulbahar Ali @ Raju. The accused have not committed any offence. She has admitted that she was counselled by a Counsellor of NGO in the Police Station vide the counselling report (Ex.PW1/E). She had also admitted that she had shown the place of incident to the police and the site plan (Ex.PW1/F) was prepared at her instance. She has admitted that accused Gul Bahar Ali @ Raju was arrested by the police in her presence vide arrest memo (Ex. PW1/G). The accused Syed Ali @ Raju was also arrested in her presence vide arrest memo (Ex. PW1/H). She voluntarily stated that she had told the police that the accused had not committed any offence. She has denied the suggestion that she had not told the police that the accused had not committed any offence. She had given her mobile phone to Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 6 of 13 ::-
-:: 7 ::-
accused Gulbahar Ali @ Raju with her free consent. (The Additional Public Prosecutor has pointed out that the mobile phone has not been produced by the MHCM. Both the accused, defence counsel and amicus curiae have submitted that they are not disputing the identity of mobile phone and it need not be produced.) She can identify her clothes which were seized by the doctor during her medical examination. (Both the accused, defence counsel and amicus curiae have submitted that they are not disputing the clothes of the prosecutrix as she was in a consensual physical relationship with accused Gulbahar Ali and her clothes had been taken by the doctor. The Additional Public Prosecutor has submitted that as the clothes are admitted same not required to be put to the witness in her cross examination). She has denied the suggestion that accused Gulbahar Ali @ Raju, Sayed Ali@ Raju and Julie had entered into a criminal conspiracy to sell her. She has denied the suggestion that she had made the complaint to the police and deposed before the learned Metropolitan Magistrate against both the accused voluntarily and not due to wrong advise or at the instance of some well wishers or due to misunderstanding and quarrel. She has denied the suggestion that she has forgiven the accused Gulbahar Ali @ Raju as he has married her and due to this reason she not deposing against him. She denied the suggestion that she is deposing falsely as she has won over by both the accused. She has denied the suggestion that she is deposing falsely.
9.She has also been cross examined on behalf of accused Mr.Gulbahar Ali @ Raju. She has admitted that the accused Gulbahar Ali @ Raju has not committed any offence. She admitted that accused has not raped her. Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 7 of 13 ::-
-:: 8 ::-
She admitted that accused had promised to marry her and he has honoured his promise. She admitted that she had physical relations with the accused with her free consent. She has again prayed that the accused Gulbahar Ali @ Raju may be acquitted.
10.She has also been cross examined on behalf of accused Mr.Sayed Ali @ Raju. She has admitted that accused Sayed Ali has not committed any offence. She admitted that accused has not raped her nor committed any other offence against her. She has again prayed that the accused Sayed Ali @ Raju may be acquitted.
11.In the circumstances, as PW1, the prosecutrix, who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to both the accused Gulbahar Ali @ Raju and Sayed Ali @ Raju and has not deposed anything incriminating both the accused, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself, the most material witness, has not supported the prosecution case and is hostile.
12.Statements under section 313 of the Cr.P.C of accused Mr. Gulbahar Ali @ Raju and Mr. Sayed Ali @ Raju are dispensed with as there is nothing incriminating against them when the prosecutrix is hostile and Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 8 of 13 ::-
-:: 9 ::-
nothing material has come forth in her cross examination by the prosecution.
13.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
14.In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the prosecutrix has retracted and resiled from her earlier statement. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
15.In the light of the aforesaid nature of deposition of the prosecutrix, Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
16.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 9 of 13 ::-
-:: 10 ::-
differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
17.If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
18.Consequently, no inference can be drawn that accused Gulbahar Ali @ Raju and Sayed Ali @ Raju on the allegations that since period not disclosed at Guwhati, Assam, accused Gulbahar Ali @ Raju had established physical relations thrice with the prosecutrix on a false promise to marry her; Accused Gulbahar Ali @ Raju enticed the prosecutrix to come from Delhi to Assam on a false promise to marry her and to get her a good job in Delhi and took her to the house of co- accused Sayed Ali @ Raju and co-accused Julie (Proclaimed Offender) left the prosecutrix alone and accused Gulbahar Ali forcibly had physical relations with her; Accused Gulbahar Ali @ Raju along with accused Syed Ali @ Raju and co-accused Julie (Proclaimed Offender) Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 10 of 13 ::-
-:: 11 ::-
entered into a conspiracy at unknown time that the prosecutrix would be sold and they were trying to sell her.
19. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused Gulbahar Ali @ Raju has not raped her on a false promise of marriage and he has married her as he had promised. Accused Sayed Ali @ Raju has not not raped her nor committed any other offence against her. She has even prayed for their acquittal. She has never seen accused Syed Ali @ Raju earlier and not even identified him. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
20.The prosecutrix has deposed that both the accused has not committed any offence. Accused Gulbhar Ali @ Raju Patel has not raped her on a false promise of marriage. He has married her as he had promised. Accused Sayed Ali@ Raju has not raped her nor committed any other offence against her. She has never seen accused Syed Ali @ Raju earlier and not even identified him. She did not have any grievance against both the accused since they have not committed any offence. She has deposed that both the accused may be acquitted.
21.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences of rape, rape on a false Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 11 of 13 ::-
-:: 12 ::-
pretext of marriage and conspiracy of selling her. The evidence of the prosecutrix makes it highly improbable that such incidents ever took place. She has categorically deposed that the accused Gulbhar Ali@ Raju has not raped her on a false promise of marriage and he has married her as he had promised. Accused Sayed Ali @ Raju has not raped her nor committed any other offence against her. She has even prayed for their acquittal.
22.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Gulbahar Ali @ Raju for the offences under sections 376, 417, 420, 370, 511 and 120-B IPC and accused Mr. Sayed Ali @ Raju for the offences under sections 376, 109 and 120-B IPC as the prosecution has failed to prove that both the accused has committed the offences of rape, rape on a false pretext of marriage and entering into a conspiracy of selling the prosecutrix.
23.Consequently, both accused Mr. Gulbahar Ali @ Raju are hereby acquitted for the offence under sections 376, 417, 420, 370, 511 and 120-B IPC and Mr. Sayed Ali @ Raju are hereby acquitted for the offence under sections 376, 109 and 120-B IPC.
24.Compliance of section 437-A Cr.P.C. is made in the order sheet.
25.Case property be destroyed after expiry of period of limitation of Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 12 of 13 ::-
-:: 13 ::-
appeal.
26.It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
27.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
28.After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room. The file be revived as and when accused Julie, who is a Proclaimed Offender, is apprehended or on application of either side.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 20th day of September, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 19 of 2015.
Unique Case ID Number : 02401R0076362015.
FIR No. 795/2014, Police Station Khayala Under sections 323,342,368,370,376,120-B, 34 of the Indian Penal Code. State versus Gulbahar Ali @ Raju & anr -:: Page 13 of 13 ::-