Delhi District Court
State vs . 1. Ali Mohd. on 25 July, 2015
IN THE COURT OF SH. SANJAY SHARMA-I
ADDL. SESSIONS JUDGE-01, NORTH EAST, KARKARDOOMA
COURTS, DELHI
SC No.88/2011
Unique Case ID No.02402R0380092011
State Vs. 1. Ali Mohd.
S/o Late Sh. Baru Khan,
R/o H.No.B-91, Gali No.4,
Bhagirathi Vihar-II, 33
Futa Road, Delhi.
2. Nasir
S/o Late Sh. Baru Khan,
R/o H.No.2627, Gali
No.22, New Mustfabad,
PS Gokalpuri, Delhi
(presently lodged in JC).
FIR No. : 326/2011
Under Sections : 354/376/307/34 IPC
Police Station : Gokalpuri
Date of Committal : 19.12.2011
Arguments Heard On : 06.07.2015
Date of Decision : 25.07.2015
JUDGEMENT
1. On 18.09.2011, the victim, a minor girl, about 16 years of age, lodged a report with PS Gokal Puri stating therein that she was a student of class
10. On 11.07.2011, her mother Smt. Zarina was admitted in Shastri Park State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.1 of 12 Hospital for her delivery. On that day, she was at her house alongwith her grandmother (Dadi), three sisters and one younger brother. She was sleeping in a room at ground floor alone; her grandmother in the Bethak and her three younger sisters and brother were sleeping on the roof. On 12.07.2011, at about 02:30am when she (victim) woke up, she found her hands and feet tied with two separate Dupattas. She asked her father i.e. accused Nasir as to why he was tying her hands and feet, he asked her to remain quiet and closed her mouth and committed wrong act (sex) with her. Thereafter, her father untied her hands and feet and she went to her grandmother straightway and told this incident to her. Her grandmother told her, she was telling lie against her son and did not pay any heed towards her. Thereafter, the victim went to the house of her Tauji i.e. the accused Ali Mohd. She knocked the door of his house for quite a long time but neither anybody open it nor she got any reply. She sat there near the door till 05:00pm. In the morning at the time of Azan, her Tauji opened the door and asked her as to why she was sitting there. She went inside his house and told the aforesaid incident to her Tauji. Her Tauji asked her to return to her house and assured her that he would talk to her father. Thereafter, she returned to her house where her father met her and asked her as to where she had gone. She told him that she had gone to her Tauji and told him about the incident. Her Tauji had also followed her. A conversation took place between her father and Tauji. Thereafter, her Tauji returned to his house. On the next day i.e. on 13.07.2011 when her mother had come from the hospital, she told all the facts to her mother. In the presence of her family members and relatives, her father confessed his guilt. At about 04:30pm, her father and Tau asked each other to kill her as she has defamed them. Thereafter, they tried to strangulate her with the help of a Chunni. Meanwhile, her mother came and rescued her. Thereafter, they all went away. After about 2 - 2 ½ hours the parents of the victim returned home and told the victim that State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.2 of 12 they have decided that she would not tell the incident to anyone and her father would not say anything to her. After some days, her father started teasing the victim. On 16.07.2011, the victim fell ill, her mother took her to a nursing home in the area of Mustfabad where her father did not allow her medical treatment due to fast (Roza). Her father did not say anything to her. But after the Rozas her father again started teasing her and used to ask her to look after her younger siblings as their mother and that he would end relations with his wife (mother of the victim).
2. On the basis of above statement of the victim, the present case was registered for offences punishable under Sections 376/506/34 IPC vide FIR No.326/2011.
3. On the completion of the investigation the chargesheet was filed before the Court of Ld. MM against the accused persons for the offences punishable under Sections 376/307/34 IPC. Thereafter, the case was committed to this Court vide order dated 19.12.2011.
4. Vide order dated 19.04.2012, the Ld. Predecessor framed a charge against the accused Nasir for offences punishable under Section 376/354 IPC and 307/34 IPC and a separate charge against the accused Ali Mohd. for offences punishable under Section 307/34 IPC.
5. During trial, the prosecution examined 11 witnesses in all.
6. PW-1 was the victim who deposed about the incident. PW-2 was Smt. Zarina, mother of the victim. PW-3 was HC Suraj Pal Singh, duty officer who proved the Rukka as Ex.PW3/A and copy of the FIR as Ex.PW3/B. PW-4 was HC Dharampal who had assisted the IO during investigation.
7. PW-5 was Dr. Devendra, CMO GTB Hospital who had proved the MLC of accused Nasir, as Ex.PW5/A. PW-6 was Ct. Nanak Chand who had also assisted the IO during the investigation. PW-7 was Ct. Ram Gilash in whose presence the accused Ali Mohd. was interrogated and arrested State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.3 of 12 by the IO. PW-8 was Ct. Hari Mohan who had deposited the exhibits of this case in FSL Rohini. PW-9 was Dr. Pryinka Gupta who had identified the handwriting and signatures of Dr. Reena Pal on the MLC of the victim, Ex.PW1/B.
8. PW-10 was SI Ishwari Prasad, 1st IO. He had received the MLC of the victim; seized the sample seal and Pullinda vide seizure memo Ex.PW10/A; recorded initial complaint of the victim, Ex.PW3/A and prepared the Rukka Ex.PW10/B. Thereafter the further investigation of this case was marked to W-SI Rano Devi. Again on 20.09.2011 the further investigation of this case was marked to SI Ishwari Prasad as W- SI Rano Devi was busy in some other work. Thereafter, he arrested the accused Ali Mohd., conducted his personal search and recorded his disclosure statement. He also got conducted the medical examination of accused Ali Mohd.
9. PW-11 was SI Rano Devi, 2nd IO. She had prepared the site plan, Ex.PW1/A at the instance of the victim; recorded the statements of the victim and her mother under Section 161 CrPC; arrested the accused Nasir; conducted his personal search; got his medical examination conducted in GTB Hospital. She also got the statement of the victim recorded under Section 164 CrPC and filed the chargesheet.
10. Thereafter, the statement of the accused persons under Section 313 CrPC was recorded. The entire prosecution evidence was put to them. They denied it and pleaded innocence and preferred to lead evidence in their defence. Two defence witnesses were examined. Accused Nasir examined himself as DW-1. DW-2 was Sagir who was examined on behalf of accused Ali Mohd.
11. I have heard Sh. Sukhbeer Singh, Ld. Addl. PP for the State and Sh.
Uday Vir Singh, Ld. Amicus Curiae for the accused Nasir & Sh. Sunil Kumar, Ld. Counsel for accused Ali Mohd.
State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.4 of 12
12. In the instant case, the FIR was registered on the statement of the victim.
Thereafter, her statement was recorded under Section 164 CrPC and she was further examined in the Court. In all her statements and deposition before the Court, the victim elaborately described the two incidents i.e. the first incident of rape committed upon her by accused Nasir on the night of 12.07.2011 and secondly the incident of attempt by both the accused to kill her by strangulation, dated 13.07.2011. In all her statements, the victim maintained the set of facts and no ambiguity could be pointed out in her cross-examination by the Ld. Defence Counsel or noted even by this Court on going through the said statements. She has categorically alleged that while she was sleeping, accused Nasir had tied both of her legs with Chunni as also her hands and thereafter committed rape upon her. She had also deposed that on that day her mother (PW-2) was hospitalised as she had to deliver a child. This fact has been corroborated by PW-2 in her testimony. Furthermore, this fact found corroboration in the testimony of accused Nasir, who had examined himself as DW-1. This shows that the mother of the victim i.e. PW-2 was not present in the house when the incident of rape took place with the victim.
13. Ld. Counsel for accused Nasir submitted that as per the deposition of PW-1, her grandmother was sleeping in other room and it was not possible for accused Nasir to have committed the rape. This argument cannot be appreciated since it is the case of the victim herself that accused Nasir had closed her mouth and therefore, she could not speak and thus, could not have called for any help. The victim further alleged that when she reported the matter to her grandmother, she rather rebuked her for making allegations against her son (accused Nasir).
14. It was pointed out by the Ld. Counsel for accused Nasir that in her testimony before the Court, the victim deposed that she was sleeping in State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.5 of 12 her room and the incident of rape took place there whereas according to the prosecution, as suggested to PW-2 during her cross-examination by the Ld. Addl. PP, the victim had led the police to the roof of their house where the accused Nasir allegedly had committed rape upon her.
15. It is a matter of record that PW-2 was not present in the house on the day of first incident of rape and she in her deposition has never proved the site plan. The IO (PW-11) had prepared the site plan at the instance of victim which is Ex.PW11/A. As per the site plan the incident had taken place in the room and as such, this piece of evidence as pointed out by the Ld. Counsel is of no help to the accused.
16. Accused Nasir has taken a plea that on the date of incident he had got PW-2 admitted in the hospital for the delivery of the child. In his testimony, the said accused (DW-1) deposed that he remained in the hospital for the entire night on 12.07.2011 alongwith the wife of his brother Jalaluddin and had left the hospital only at about 06:00am on 13.07.2011. Though, PW-2 had deposed that accused Nasir had got her admitted in the hospital but she never deposed that he had remained with her for the entire night in the hospital. On the contrary, PW-2 deposed that on the next day when she returned to the house, she was told by the victim that after getting her admitted in the hospital, accused Nasir returned to his house at about 02/02:30am. No suggestion was given to PW-2 during her cross-examination that the accused Nasir remained with her for the entire night alongwith the wife of Jalaluddin.
17. Furthermore, DW-1 i.e. accused Nasir had also failed to produce any admission record in respect of PW-2, nor examined any witness from the hospital to prove that he remained there as an attendant for the entire night. Hence, plea of alibi taken by this accused cannot be accepted.
State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.6 of 12
18. PW-1 i.e. the victim was cross-examined by the Ld. Defence Counsel for the accused. However, in her entire cross-examination the incident of rape could not be challenged in any manner, whatsoever.
19. Ld. Counsel for the accused Nasir further submitted that PW-11 i.e. the IO, deposed that she was posted at PS Jyoti Nagar whereas the present case pertains to PS Gokal Puri and as such, she could not have assumed the role of the IO without any formal orders. It is worth mentioning that in the cross-examination, the IO (PW-11) deposed that she was under
posting of sub-division Gokal Puri and as such, she was looking after the working of three police stations including PS Gokal Puri. She also deposed that no specific permission was sought from the SHO PS Jyoti Nagar to proceed for PS Gokal Puri as she was already under her official duties to cater to the needs of policing in PS Gokal Puri. There was no further cross-examination of the IO on this aspect. Hence, the argument in this respect as raised by the Ld. Counsel has no merits. Even otherwise, it is the official and administrative prerogative to depute any police officer for the investigation of the case in the same district and no irregularity can be said to have been committed in this case because the IO had investigated this case though she was posted at PS Jyoti Nagar.
20. Another defence taken by the accused Nasir is that he had been falsely implicated in this case as the victim was found in an objectionable condition with a boy by one of the neighbours and he reported this fact to his wife PW-2 on her return from the hospital but she quarrelled and thereafter both PW-1 and PW-2 met his elder brother Jalaluddin with whom PW-2 was having illicit relations for the last 4-5 years and then all of them have hatched a conspiracy to falsely implicate him in this case. In his testimony DW-1 Nasir had also alleged that his wife (PW-2) was having illicit relations with his elder brother for the last 4-5 years. But he never made any objection to it despite knowing it. In his cross-
State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.7 of 12 examination, accused Nasir admitted that he had never given any notice to PW-2 or Jalaluddin or filed any suit for divorce against her. Though, he deposed that he had informed his other brothers regarding this relationship but none of them was examined by him. He admitted that he did not divorce his wife despite knowing this relationship. In my opinion, it is a false plea taken by the accused Nasir. In case he had any knowledge about such relationship between his wife PW-2 and his brother Jalaluddin, he would have definitely raised some objections at some point of time. Further, if it was true, he could not have continued with sexual relations with his wife which is apparent as her wife delivered a child on the day of incident and there is no denial on part of accused Nasir that she was not carrying his child. No sane person with any amount of self respect would like to continue with physical relations with his wife if he comes to know about her having illicit relations with another man. Hence, this plea of the accused can also not be accepted.
21. As aforesaid, the entire allegation of rape by the accused committed upon the victim has remained un-rebutted and unchallenged during her entire cross-examination. There is further nothing to disbelieve the testimony of the victim and the reasons raised by the accused for his false implication, as aforesaid, have not been accepted by this Court.
22. It may also be appreciated that no girl of about 16 years of age would make such allegations against her father and against her modesty unless compelled by circumstances.
23. Apart from the aforesaid, it may also be taken note of the fact that the medical examination of the victim revealed that her hymen was torn; the injury was healed and that she admitted two fingers easily. This medical examination was conducted after about two months of the incident and therefore the possibility of any fresh injury has to be ruled out.
State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.8 of 12
24. The apex court in B.C. Deva Vs. State of Karnataka, reported at (2007) 12 SCC 122, in spite of the fact that no injuries were found on the person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Apex Court upheld the conviction of the accused. The Court observed that:
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
25. The forensic examination on the various exhibits taken from the both the victim and the accused are of no help as the samples were found to be putrefied. It may again be noted that these samples were taken after two months of the incident and therefore, there is no possibility of any semen stain or blood stain of the accused to have been found on any part of the body of the victim. However, the fact that her hymen was torn is clearly suggestive of the sexual intercourse and with no other evidence coming on record of the victim having entered into sexual intercourse with any other person; the only conclusion which can be drawn is that it was the result of the rape committed upon her by the accused Nasir. Hence, it has been proved beyond reasonable doubt that accused Nasir committed rape upon her own daughter i.e. the PW-1, the victim.
26. The other set of allegation against both the accused is that they tried to strangulate and kill the victim. The reasoning given by the PW-1 victim and her mother PW-2 had been that the matter came to the knowledge of State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.9 of 12 the relatives and therefore, in order to save their face both the accused tried to kill the victim. The victim was again cross-examined at length on this allegation by the Ld. Counsel for the accused Ali Mohd. However, nothing could be extracted from her to disbelieve the allegation. Ld. Counsel for the accused Ali Mohd. submitted that no injury could be found on the person of the victim during her medical examination. It is stated at the sake of repetition that the medical examination of the victim was conducted after about two months of the incident and therefore, there was absolutely no likelihood of the presence of any injury or injury mark upon the body of the victim. He further submitted that the alleged Chuuni with which she was tried to be strangulated was never recovered or seized. Again, since the incident was two month old the possibility of the Chunni having been recovered or seized was too remote.
27. Ld. Counsel for the accused Ali Mohd. further submitted that no public person was examined nor the statement of Jalaluddin was recorded to whom the matter was reported. The incident alleged had taken place inside the house of the victim and the presence of any public person is not at all possible. If the statement of Jalaluddin was not recorded, it was a lapse on the part of the IO for which no benefit can be extended to the accused. Even otherwise, if Jalaluddin would have been examined, he would have been a hearsay witness because the eye-witnesses of incident are PW-1, the victim herself and her mother PW-2 who have been examined and who had actually witnessed the incident. Their testimony in the Court to this incident has remained unchallenged and uncontroverted during their cross examination.
28. It was also argued by the Ld. Counsel for the accused persons that there had been a delay of about two months in lodging the report with the police in respect of both the incidents. The explanation in this respect has come in the testimony of the victim as well as her mother. It was such a State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.10 of 12 delicate matter that they both would have desisted in approaching the police. Further, it has come in the testimony of these two witnesses that they had discussed the matter with their relatives and accused Nasir had assured not to repeat the acts in future but when he again started molesting the victim, she was compelled to make the complaint to the police. Even otherwise, delay is no ground to disbelieve the otherwise trustworthy testimony of the victim.
29. It was also argued on behalf of the accused that they have been falsely implicated because of some property dispute between the accused and their brothers. However, no evidence has been placed on record by the accused that there was any dispute in respect of the house in which the accused Nasir was residing or in respect of any other property.
30. It was also tried to be argued that the victim was having illicit relations with some boy of Sonia Vihar and since accused Nasir came to know about it and rebuked the victim, he has been falsely implicated. This argument is also not acceptable in the absence of any particulars of that boy and is a completely vague allegation. Furthermore, this defence was never put to the victim during her cross-examination and it was rather suggested that she was in live-in relation with his cousin Sabir. For same reasoning, a similar defence was rejected by the Hon'ble High court of Delhi in Lokesh Mishra Vs. NCT of Delhi (Criminal Appeal 768 of 2010 decided on 12th march 2014).
31. Accused Ali Mohd. had also examined a witness in his defence, namely, DW-2 Sagir who simply deposed that on 13.07.2011 accused Ali Mohd. was with him from 02:00pm to 08:00pm and that they both were doing cable work in Gali No.25, Mustfabad. Firstly, this defence was never taken by accused Ali Mohd. during cross-examination of PWs and no suggestion to this effect was given either to PW-1 or PW-2 or the IO. Secondly, it has come in his cross examination, by the Ld. Addl. PP, that State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.11 of 12 he had been asked by accused Ali Mohd. to depose the facts as stated by him in his examination-in-chief. Hence, testimony of this defence witness cannot be accepted as he might be an interested and tutored witness.
32. It is clear from the above discussion that the prosecution has been able to prove its case against both the accused beyond reasonable doubt.
33. Accordingly, accused Nasir is held guilty for the offence punishable under Sections 376/354 IPC as also under Section 307/34 IPC. Similarly, accused Ali Mohd. is also held guilty for the offence punishable under Section 307/34 IPC.
34. Put up for arguments on the point of sentence as per the schedule given in the ordersheet.
Pronounced in the open court on 25.07.2015.
(Sanjay Sharma-I)
Addl. Sessions Judge-01
N/E Karkardooma Courts, Delhi
State Vs. Ali Mohd. & Anr. SC No.88/2011
Page No.12 of 12
IN THE COURT OF SH. SANJAY SHARMA-I
ADDL. SESSIONS JUDGE-01, NORTH EAST, KARKARDOOMA COURTS, DELHI SC No.88/2011 Unique Case ID No.02402R0380092011 State Vs. 1. Ali Mohd.
S/o Late Sh. Baru Khan, R/o H.No.B-91, Gali No.4, Bhagirathi Vihar-II, 33 Futa Road, Delhi.
2. Nasir S/o Late Sh. Baru Khan, R/o H.No.2627, Gali No.22, New Mustfabad, PS Gokalpuri, Delhi (presently lodged in JC).
FIR No. : 326/2011Under Sections : 354/376/307/34 IPC Police Station : Gokalpuri Order on Sentence
1. Vide judgment dated 25.07.2015, the convict Nasir was held guilty for offences punishable under Section 376/354 IPC & 307/34 IPC and convict Ali Mohd. for offence punishable under Section 307/34 IPC.
2. I have heard arguments on the point of sentence.
3. Ld. Addl. PP submitted that convict Nasir had been held guilty for committing rape on her own daughter, molesting her and thereafter making an attempt to kill her in order to hide his guilt and therefore, State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.13 of 12 deserves no leniency and prayed for the maximum punishment. Similarly it was argued that convict Ali Mohd. being the brother of convict Nasir aided him therefore, he is equally guilty in making an attempt to kill the victim and also prayed for maximum sentence to be imposed against him.
4. On the other hand, it was submitted by convict Ali Mohd. that he is a poor person, aged about 60 years and he is the bread earner of his family. It was also submitted that he is not a previous convict and is not facing trial for any other offence and as such a lenient view was prayed for.
5. As regards convict Nasir, it was argued by him that he is aged about 45 years and is the only bread earner of his family. It was further submitted that he was earning is livelihood by selling milk of three buffaloes which he owned and has no other means of income. It was pointed out that the youngest daughter of this convict is aged about 4 years and he has four other children. It was further submitted that this convict has also not been previously convicted and is not wanted in any other case and hence a lenient view was prayed for.
6. I have considered the aggravating and mitigating circumstances.
7. The offence proved against the convict Nasir is one of the most grave offences which can be imagined on earth. After committing rape on her daughter, he alongwith convict Ali Mohd. tried to kill her to save his face. Therefore, the law would not permit any leniency to be taken as far as this convict is concerned. However, considering his family background and the fact that he is the only support for the other four children, the youngest child being a four year old daughter, this Court is constrained to take a flexible approach and accordingly sentenced convict Nasir to rigorous imprisonment for a term of 7 years and a fine of Rs.5000/- for the offence punishable under Section 376 IPC, in default of payment of fine he shall undergo simple imprisonment for 2 months.
State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.14 of 12 He is further sentenced to rigorous imprisonment for a period of 2 years for the offence punishable under Section 354 IPC alongwith fine in the sum of Rs.3000/- and in default of payment of fine, he shall undergo 1 month simple imprisonment.
8. Convict Nasir has also been convicted under Section 307/34 IPC.
However, it is admitted case of the prosecution that no injury was found on the person of the victim nor any could be proved on record and therefore, he is sentenced to rigorous imprisonment for a period of 7 years for the offence under Section 307/34 IPC and also directed to pay a fine of Rs.5000/- failing which he shall undergo further simple imprisonment for 2 months.
9. Convict Ali Mohd. has only been convicted for the offence under Section 307/34 IPC. As aforesaid no injury was found on the person of the victim nor proved on record. He had only assisted co-accused, convict Nasir being the real brother. Hence, considering the relationship as well as his age, a lenient view is taken against him and he is sentenced to undergo rigorous imprisonment for a period of 3 years for offence under Section 307/34 IPC and is also sentenced to pay a fine in the sum of Rs.10,000/- failing which he shall undergo further imprisonment for a period of 2 months.
10. All the sentences shall run concurrently.
11. The convicts shall be entitled to benefit in terms of Section 428 CrPC.
12. A copy of judgment alongwith order on sentence be given to the convicts free of cost.
13. File be consigned to the Record Room after completion of due formalities.
Pronounced in the open court on 27.07.2015.
State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.15 of 12 (Sanjay Sharma-I) Addl. Sessions Judge-01 N/E Karkardooma Courts, Delhi State Vs. Ali Mohd. & Anr. SC No.88/2011 Page No.16 of 12