Delhi District Court
State vs . 1. Leeton Sheikh on 26 August, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 1232/2011
Unique Case Identification No. : 02404R195562010
State Vs. 1. Leeton Sheikh
S/o Fazal Hak
R/o B4/53, JJ Colony
Bhalaswa Dairy, Delhi.
(Convicted)
2. Rinku Singh
W/o Sarvender Singh
R/o D1/868, Colony Bhalaswa
Dairy, Delhi.
(Acquitted)
FIR No. : 58/2010
Under Section : 376/506/109/454/328/34 Indian penal Code
Police Station : Bhalaswa Dairy
Date of committal to Sessions Court : 27.8.2010
Judgment reserved on : 15.7.2011
Judgment pronounced on : 25.8.2011
JUDGMENT
Brief Facts:
As per the allegations, on 7.11.2009 at about 11 AM at D1/846, JJ Colony, Bhalaswa Dairy, the accused Leeton Shiekh SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 1 of 60 committed rape upon the prosecutrix 'S' (name is withheld as this is the case under Section 376 IPC) and while committing the said offence of rape, he also criminally intimidated the prosecutrix. It is further alleged that before commission of the offence of rape upon the prosecutrix 'S', the coaccused Rinku Singh abetted the accused Leeton Sheikh for the said offence by administering intoxicating substance in the tea of the prosecutrix with intent to facilitate the commission of rape upon her by Leeton Sheikh. It is also alleged that the accused Rinku Singh has assaulted or used criminal force upon the prosecutrix intending to outrage her modesty by holding her hands in order to facilitate the commission of rape upon the prosecutrix by the coaccused Leeton Sheikh.
Case of prosecution in brief:
The case of the prosecution in brief is that on 21.04.2010 on the receipt of DD No.19A regarding rape, SI Sushila Rana went to Police Station Bhalswa Dairy and met complainant / prosecutrix 'S' (name is withheld as this is the case under Section 376 IPC) and her husband Gajraj Singh and recorded the statement of prosecutrix.
The prosecutrix told SI Sushila Rana that in the previous year in the month of March, Leeton Sheikh came to her house and stayed there a tenant and one day he brought a lady and left her stating that she was his wife and after which went away. SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 2 of 60 Complainant further told the IO that after 1520 days when Leeton did not return, she asked that lady where her husband Leeton was, on which that lady told her that Leeton is not her husband and he has only brought her and kept her there on which she (prosecutrix) with the help of Pradhan of the area and other residents got the room vacated. The prosecutrix has further told the IO that after about two months accused Leeton came back to her house and asked about the whereabout of that lady who was staying in her house whom he had left behind on which she told him that she had gone away and on this Leeton got annoyed and started threatening her with dire consequences saying that he would not spare her (prosecutrix) and she would not be able to show her face in the area and thereafter he started harassing her on her mobile. The prosecutrix has told the IO that on 7.11.2009 she was alone at her house when Rinku Singh, who was also residing in the same area, came to her told that she wanted a cup of tea and she herself went to the kitchen and prepare two cups of tea and offered one cup of tea to her (prosecutrix) and as soon as she (prosecutrix) consumed the tea she started feeling drowsy and soon thereafter Leeton Sheikh came inside and closed the door from inside. She has further stated that thereafter before she could react, the accused Rinku Singh caught hold of her hands and accused Leeton closed her mouth with his hand and accused Leeton forcibly committed rape upon her against her wishes and also threatened her SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 3 of 60 not to disclose anybody about the incident or else he would kill her thereafter they both left. The prosecutrix further told the IO that she informed her husband who got very agitated and called both Leeton Sheikh and Rinku Singh and confronted them after which they both offered apology and therefore they did not informed the police at that time being apprehensive of the future of their two children. The prosecutrix has further told the IO that on 7.4.2010 Rinku called from mobile no. 8802585073 on her (prosecutrix's) mobile no. 8802052648 and Leeton Sheikh started objectionable and suggestive talk with her and at about 10:30 Leeton Sheikh suddenly came from the backside of her house by using the terrace on which she was shocked and she screamed very loudly and raised an alarm on which Leeton got scared and ran away from backside. Thereafter, she informed her husband who informed the police and thereafter they went to the police station.
CHARGE:
Charges under Section 376/506 Indian Penal Code were settled against the accused Leeton Sheikh. Further, charges under Section 109 read with Section 376 and Section 328/354 Indian Penal Code were settled against the accused Rinku Singh. Both the accused pleaded not guilty and claimed trial.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 4 of 60 EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many as fourteen witnesses.
Public Witnesses:
PW13 is the prosecutrix 'S' (name is withheld as this is the case under Section 376 IPC) who has been examined in Camera Proceedings in Chamber. The prosecutrix has deposed that she is residing at the given address along with her husband and two daughters and her husband is a taxi driver by profession. According to her, the accused Leeton Sheikh whom she has correctly identified in the court came to her house and stayed as tenant along with one lady. She further deposed that just threefour days after Leeton had come to her house, another lady came looking for Leeton claiming herself to be his wife and she told her (prosecutrix) that Leeton is her husband and he has brought another lady to stay with him in their (witness's) house. According to the witness, there was a quarrel between Leeton and the second lady who claimed to be his wife and after some time Leeton told them that he is going along with his wife and will return after settling all his disputes with her. The prosecutrix has further deposed that Leeton did not come back for 1015 days and thereafter she (witness) along with her husband sought the intervention of the Pradhan of the area and asked that lady who SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 5 of 60 Leeton had left at her (witness's) house to vacate the same after which that lady also left. According to the witness, after few days Leeton came back to her house and asked her about the whereabouts of that lady whom he had left behind on which she (witness) told him that that lady had gone away and on knowing this, Leeton got annoyed and started threatening her (the witness) with dire consequences stating that he would not spare her and she would not be able to show her face in the area. The prosecutrix has further deposed that she was having a mobile phone at that time and had started receiving frequent telephone calls which used to come from one number only where one man used to make claims of his being in love with her but she used to cut the phone and she told her husband about the same. According to the witness, whenever her husband call back on the number from which the calls were coming, sometimes a child would pick up to speak and sometimes the person on the other side would say that the child must have dialed the number.
The prosecutrix has further deposed that the accused Rinku whom she had correctly identified in the court, is her neighbour and used to put committees and was on good terms with her. On 7.11.2009, Rinku came to her house in the morning when she was alone and first Rinku started talking with her about the committees and thereafter she wanted to have tea but she (witness) told her (Rinku) that she was busy and if she wanted to drink tea she SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 6 of 60 should make it herself. According to the witness, the accused Rinku got up and made tea for herself and also for her (witness) and brought two glasses of tea and offered one glass to her (witness) and the other glass she took herself. The prosecutrix has further deposed that after she drank the tea given by Rinku, she started feeling drowsy and soon thereafter, she heard a knock on the door and she asked as to who was on the door but before anybody could reply, Rinku immediately got up and opened the door stating it was her brother and as soon as Rinku opened the Kundi, the accused Leeton came inside and closed the door from inside. According to the prosecutrix before she could react, Rinku caught hold of her hands and Leeton closed her mouth with his hand and he forcibly committed rape upon her against her wishes and after the act, he threatened her saying tujhe batana hai to bata dae, mai kisi se nahi darta, teri ijjat ka sawal hai aur teri hi badnami hogi, and thereafter, both the accused Rinku and Leeton left. According to the witness, she immediately called up her husband and told him to come home but did not tell him about the incident since she never wanted to disturb him while he was on duty. The prosecutrix has further deposed that her husband came home early and she narrated the entire incident to him on which her husband got very agitated and left the house and after some time he came back with accused Rinku and Leeton and there was a lot of hot talk between her husband and the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 7 of 60 accused Rinku and Leeton, since her husband wanted to know why they had committed this act upon her. According to the prosecutrix, both the accused first admitted their mistake and pleaded with her husband saying that they have small children and they should forgive them for the act and on his, her husband warned both the accused for future and did not want to aggravate the issue due to fear of social humiliation her daughters would have to face and they both (i.e. prosecutrix and her husband) thought it best to suppress and not to highlight the incident.
The prosecutrix 'S' has further deposed she continued to receive calls from unknown number but she did not receive them. On 7.4.2009, at about 10.30 PM, the accused Rinku called her on moile and she picked up the call not knowing it was from Rinku and only after she picked up the phone that she came to know that the lady on other side was Rinku. According to the witness, the accused Rinku attempted to converse with her and when she (witness) asked Rinku why she had called, Rinku told her to forget the incident, but in the meanwhile the accused Leeton picked the phone from Rinku and again started the objectionable and suggestive talk with her (prosecutrix) on which she immediately disconnected the phone and telephoned her husband and informed him about the same. According to the witness, her husband advised her not to feel scared as he was calling the police on 100 number and also told when she receive any SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 8 of 60 such call, she should keep on talking so that the accused could be caught red handed. The witness has further deposed that, even after this she kept on receiving the calls from the same number and she picked up one such call and as per the advise of her husband she kept on talking to the accused who was on telephone on the other side but while she was still talking with the accused on the telephone, the accused suddenly came from the backside of her house by using the terrace, on which she was shocked on seeing the accused and screamed very loudly and raised an alarm on which the accused Leeton got scared and ran away from the backside. The prosecutrix has thereafter deposed that, soon thereafter she received a call from her husband and she told him about the incident on which her husband told her to come in the park so that they could go to the police station and thereafter she along with her husband went to the police station. She has deposed that her husband gave an application to the police and the police thereafter recorded her statement and police asked them to return home and did not take any action and they returned home on 7.4.2099. According to the witness, the accused Leeton continued to call them and started threatened them for withdrawing the complaint or would face dire consequences. She has further deposed that since she was receiving repeated threatening calls, therefore out of fear, they went to the house of one of their relatives and stated staying with them for sometime but since accused SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 9 of 60 Littion continued to harass her, then she along with her husband went to the Deputy Commissioner of Police and inform him that the police was not taking any action and it was thereafter that they were called to the police station on 21.4.2009 when her statement Ex.PW13/A bearing her signatures at point A was recorded after which she and her husband were taken by the police to the house of accused Leeton who was residing in the same area. According to the witness, it was the police who had traced out the place were the accused Leeton was residing but when she went to the house of the accused Leeton and she immediately pointed out towards him and identified him as the person who had committed rape upon her on which he was arrested vide memo Ex.PW8/A bearing her signatures at point C after which is personal search was also conducted vide memo Ex.PW8/B. She has deposed that after the arrest of the accused Leeton, she was taken to the BJRM hospital where her medical examination was conducted.
The prosecutrix has further deposed that the investigating officer had also brought her to the court on 7.5.2010 and produced her before Ld. MM who recorded her statement under Section 164 Cr.PC where she narrated the entire incident to Ld. MM, which proceedings are Ex.PX1 (not disputed by the accused persons) and her statement is Ex.PW13/B bearing her signatures at point A at various pages. She further deposed that on 18.5.2010 the police came to her house and she took them to the house of Rinku and on her pointing out the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 10 of 60 identification, Rinku was arrested vide memo Ex.PW11/B bearing her signatures at point C and her personal search was also conducted vide memo Ex.PW11/C. In her cross examination by Ld. defence counsel, this witness has testified that she has studied till class 8th and her husband is 10th class passed. According to the witness, their house is in the name of her husband but she is unable to tell whether the land on which our her is constructed was allotted to her husband in lieu of removal of the Jhuggi's and has voluntarily added that when she got married, the house was already constructed so she is not aware of its background. According to her, their house is measuring 12 sq. yard and is constructed upto three floors. She has deposed that the house on one side is upto the ground floor only, whereas the house on other side is built up to 1½ floor and the house on the back is also built upto 1 ½ floors. She has admitted that the house opens on the side back gali and has deposed that on all the sides, people are residing except on one side which is ground floor where nobody is residing. She is not aware of the owner of the house which is empty and has voluntarily added that ever since she has got married she has seen that adjoining house was empty. She has deposed that there is no window on their house which opens towards the house which is vacant and adds that they have walls on the three sides and the staircase leading to the first and second floor are from outside. The SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 11 of 60 witness has deposed that after the incident they are not giving their house on rent to anybody and at the time when Leeton was given a room on rent, there was one other tenant but after the incident they decided not to give the house on rent and got the rooms vacated from the other tenant also. According to the prosecutirx, at the time when she got married there was no tenant and voluntarily adds that at that time the room was kacha and after her marriage it was made pukka and floors were added. She does not know what is meant by kirayanama. She has deposed that there was no written agreement between them and Leeton he was kept as tenant on the asking his of 23 friends who were known to her husband. She has stated that she is married for the last nine years and is residing in the same house ever since. She does not know any one in the family of Leeton except the lady to came to their house claiming to be his wife. She states that she has never gone to the house of Leeton nor she is aware if the mother of Leeton is also living in the same area and has voluntarily added that had she known she would have gone and told the mother of accused Leeton what he had done. She has deposed that the friends of Leeton who had recommended him as a tenant and had also come when the issue regarding the lady being brought by the accused had arisen and was taken up with the Pradhan of the area and has voluntarily added that it was only thereafter that they were advised to ask that lady to vacate the room as the accused Leeton had already SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 12 of 60 left. The witness is not aware if that lady had made any complaint against the accused Leeton or not. She has denied the suggestion that the accused Leeton was never a tenant at her house.
The prosecutrix has further deposed that the accused Rinku is known to her for the last 23 years and she had also put committees with Rinku but stated that she herself is not running any committee and has only put one committee with Rinku where Rinku is the cashier. According to her, Rinku is putting committees for the last three years and she (witness) was with her in the same committed along with other persons but the witness is unable to tell the name of other persons and has voluntarily adds that Rinku may know. The prosecutrix has denied the suggestion that they have created the entire story against the accused Rinku and Leeton and it is for this reason that the matter had never been reported to the police previously and has voluntarily adds that she will not put her reputation on stake like this. She has deposed that she had told the police about the threats issued by the accused Leeton and also that he had been claiming to be love with her and harassing her by making calls. According to her, she had signed her statement Ex.PW13/B after reading the same and further adds that the police recorded the statement in short cut but she has told all the things to them which she has now told this court. She has denied that she had made improvements in the court and never told these facts to the police. SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 13 of 60
According to the prosecutrix 'S', on the day when the accused Leeton had committed rape upon her with the help of accused Rinku, it was Rinku who opened the door and before she could react, the accused Rinku caught hold of her hands and the accused Leeton closed her mouth with his hand. She further testified that she always had good relations with Rinku prior to this incident, but after this incident the entire family of accused Rinku has made her life hell. She has further denied the suggestion that there had not been any incident of any violations or threats on account of the dispute with the accused Leeton and Rinku. She has denied that she had taken money from the committee which did not want to pay back the money and she therefore falsely implicated the accused Rinku and Leeton in the present case. She has denied that she was in competition with Rinku since she was also running committees and that accused Leeton used to supply members to Rinku due to which reason she has implicated both accused Rinku and Leeton and has voluntarily added that she is not running any committees and has no concern with the same and she would not put her reputation on stake for such an issue since she has two small daughter. She has further denied that the accused Rinku or Leeton have not come to her house on 7.11.2009 as alleged by her nor there was any occasion for Rinku to prepare tea.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 14 of 60
PW12 Gajraj Singh has deposed that on 7.11.2009 when he returned home from his work at about 67 PM, he found his wife crying and she told him that the accused Leeton had committed rape upon her with the help of Rinku. According to the witness, on knowing this he got agitated and called Rinku and through Rinku he also called Leeton to his house and confronted them with the same on which Leeton told him that he has committed a mistake and threatened him not to expose this incident to anybody or else he (witness) and his wife (prosecutrix) would suffer social humiliation (badnami) and also threatened that in case they complaint the matter to the police, they would suffer consequences. The witness deposed that he did not made any complaint to the police on account of social humiliation and also due to fear of the accused. The witness has further deposed that even thereafter also his wife continued to receive telephone calls on her mobile and was continously harassed by the accused after which he closed the telephone number of his wife and got another number but somehow Leetaon came to know about the new number and continued to make suggestive and obscene calls to her. The witness has deposed that on 7.4.2010, first the accused Rinku called up his wife and thereafter handed over the phone to Leeton who again started speaking objectionably to his wife and also threatened her the he would be coming to her house. According to the witness, his wife disconnected his call and SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 15 of 60 telephoned him and told about the incident on which he told his wife not to worry. He thereafter, made 100 number call and informed the police. When he reached home, he found his wife and children very disturbed and his wife told him that the accused had made repeated calls to her and thereafter the accused came to her house through the terrace and tried to use force upon her in an attempt to rape her but she raised a hue and cry on which the accused escaped from the roof. According to the witness, on coming to know the incident, he took his wife to the police station and reported the matter to the police. The witness has deposed that even thereafter he kept receiving threats on the mobile of his wife to withdraw the complaint or else it will not be good. According to the witness, on the intervening night of 21/22.4.2010, he along with his wife was called by the police to the police station and when they went there, the police took them to the house of Leeton Shiekh where on their identification the accused Leeton was arrested by the police vide memo Ex.PW8/A and personally searched vide memo Ex.PW8/B. The witness has correctly identified both the accused in the court.
On asking by the Addl. PP the witness has deposed that he had also gone with his wife to the BJRM hospital where she was medically examined.
In his cross examination by Ld. defence counsels, the witness PW12 has deposed that the husband of the accused Rinku is a SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 16 of 60 driver and used to ply private taxi and her house is situated just behind his house. The witness has admitted that both his family and the family of Rinku are residing in the area for about 10 years and prior to this incident they were having visiting terms. This witness has further admitted that his wife was running a chit (committee) in which the accused Rinku was the member, but he does not know the amount of chit. According to the witness on 7.11.2009, Rinku Singh came to his house of her own when his wife was there and he was not at home. He has deposed that Leeton had come to him on rent on the second floor from March 2009 but he (witness) did not inform the police regarding giving the house on rent. He has deposed that the house was let to him through some persons who were known to him (witness) but no rent agreement was executed. According to the witness, the monthly rent was of Rs.1,000/ and the accused had paid only Rs.500/ as advance. He has deposed that Leeton had hardly stayed in his house for about 23 days as he had brought some lady claiming to be his wife and after about 23 days when another lady came to his room after locating his residence, then they (witness) came to know that she was his first wife. According to the witness, he did not make any complaint to the PCR or local police regarding the conduct of accused Leeton Sheikh when he brought another lady in his house. He has admitted that he did not see the accused while jumping on their roof from his roof and returning back to his roof. SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 17 of 60 He also does not know any person who had seen the accused jumping the roofs except his wife. According to the witness, he did not make any call to PCR when the accused Leeton was talking obscene language on his mobile phone or at the time when quarrel has taken place. He also does not know the detail about the family members of Rinku Singh but he admits that her devar was residing with her in a rented house. The witness has denied that the suggestion that noting such happened as alleged above by him or that he has deposed falsely. He has further denied that the suggestion that there was dispute regarding committee between accused and his wife and that is why in order to take revenge from the accused, he and his wife have concocted this story and falsely implicated the accused in this case. According to the witness, prior to the accused three was one more tenant at first floor.
PW9 Shishir Malhotra, Authorized Officer / Nodal Officer of Aircel Ltd., has brought the summoned record pertaining to connection No. 918802585073 and No. 918802052698 and has deposed that No. 918802585073 is in the name of Leeton Sheikh and No. 918802052698 is in the name of Gajraj Singh. This witness has proved the certified copies of the application forms which are Ex.PW9/A and Ex.PW9/B respectively. The witness has also placed on record the certified copy of the call detail record of both above said numbers for the period 1.11.2009 to 31.5.2010 (wrongly stated SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 18 of 60 as it is for the period 01.01.2010 to 31.05.2010) which are Ex.PW9/C and Ex.PW9/D respectively. He has also placed on record the Cell ID Chart / details of both the numbers for the 1.11.2009 to 31.5.2010 which are Ex.PW9/E and Ex.PW9/F respectively. This witness has not been cross examined on behalf of the accused despite opportunity and hence the entire testimony has gone unrebutted.
PW9 Shishir Malhotra was recalled for further examination. He has deposed that on 11.02.2011 when he appeared to depose before this court, he had brought the certified copy of the call details record of telephone numbers 918802585073 and 918802052698 and that as per the record maintained in their office, the connection No. 918802585073 is in the name of Leeton and the certified copy of the application form is Ex. PW9/A. He has also deposed that connection No. 918802052698 is in the name of Gajraj Singh and the certified copy of the application form is Ex.PW9/B. He has proved the certified copy of the cell ID chart/details of the number 8802585073 for the period 22.12.2009 to 22.04.2010 which number was activated only on 22.12.2009 and therefore the CDRs prior to this are not available. He has also deposed that number 918802052698 was activated only on 25.11.2009 and therefore the CDRs prior to this are not available. The call details record for the mobile 918802585073 is Ex.PW9/C. The call details record for the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 19 of 60 mobile 918802052698 is Ex.PW9/D. According to the witness, the entire record which she has produced now, had earlier handed over to the concerned officer of the police in a soft copy and also mail to them vide email ID acpshalimarbagh[email protected]. The Certificate U/S 65 B of evidence is already placed on record and is now Ex.PW9/E in respect of mobile number 918802585073 and Ex.PW9/F in respect of mobile number 918802052698 bearing signatures of this witness at point encircled "X" respectively. The witness has not been cross examined on behalf of the accuse despite opportunity and hence the entire testimony has gone uncontroverted. Medical Evidence:
PW4 Dr. Sanjay Kumar has deposed that on 21.4.2010 Dr. Mahender Sharma was working as JR at BJRM hospital under the supervision of Dr. Manoj, the then CMO. The witness has further deposed that Dr. Mahender Sharma examined the patient / prosecutrix 'S' W/o Gajraj Singh aged about 290 years female with alleged history of sexual assault vide MLC Ex.PW4/A bearing signatures of Dr. Mahender at point A and also bearing the name of Dr. Manoj at point B. According to the witness, thereafter the patient was referred to Obs. and Gynae, for further gynaecological examination.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 20 of 60
The witness has further deposed that as per the record, on 22.4.2010, Dr. Pradeep Kumar (JR) examined the patient Leeton Sheikh @ Jamalluddin vide MLC Ex.PX2 bearing the signatures of Dr. Pradeep Kumar at point A and also bears the signatures of Dr. Manoj at point B. The witness has deposed that Dr. Pradeep and Dr. Mahender have left the services of the hospital. He has further deposed that he is well conversant with handwriting of Dr. Mahender, Dr. Pradeep and Dr. Manoj as he has seen them while writing and signing in the course of his official duties and therefore he has identified their signatures on the aforesaid MLCs. This witness has not been cross examined on behalf of the accused despite opportunity and hence the entire testimony has gone uncontroverted.
PW5 Dr. Mamta has deposed on behalf of Dr. Simitra who was working as SR Gyane at BJRM hospital on 21.4.2010 and has examined the prosecutrix 'S', aged about 29 years vide MLC Ex.PW4/A and thereafter referred to SR Gyane for further management. On seeing the MLC Ex.PW4/A, this witness has deposed that linear abrasion approximately 68 CM on left forearm posteriorly has been mentioned. The witness has further deposed on the basis of the MLC that on local examination, labia majora on both side is slightly red in hue; no fresh tear on introitus, no laceration, no discharge, no bleeding, on pervaginum examination introitus admitting two fingers, hymen was torn, no bleeding, no discharge. SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 21 of 60
This witness has deposed that she is well conversant with the handwriting of Dr. Sumitra as she has seen her while writing and signing the course of her duties and therefore she identified the findings of Dr. Sumitra at point C on the MLC. This witness has not been cross examined on behalf of the accused despite opportunity and hence the entire testimony has gone uncontroverted. Forensic Evidence:
PW6 Sushi Bala has deposed that on 12.5.2010 two sealed parcels were received in the office of FSL Rohini which were assigned to her. According to the witness after examining the exhibits, she gave detailed biological report which is Ex.PW6/A bearing her signatures at point A. The witness has further deposed that she also examined the exhibits serologically and gave report which is Ex.PW6/A bearing her signatures at point A. This witness has not been cross examined on behalf of the accused despite opportunity and hence the entire testimony has gone uncontroverted. Police / Official Witnesses:
PW1 HC Himmat Singh has been examined by way of affidavit which is Ex.PW1/A bearing his signatures at point A and B. He has proved the DD No. 56B recorded by him copy of which is Ex.PW1/B bearing his signatures at point A. (original seen and SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 22 of 60 returned). In his cross examination by Ld. defence counsels, the witness has deposed that the DD Entry 56B was recorded by him at 10:40 PM on 7.4.2010 regarding a quarrel between two persons whose names have not been mentioned in the said DD entry. The witness deposed he does not remember the name of wireless operator who gave the information regarding the fight between two persons nor he disclosed the name of those persons.
PW2 HC Narayan Singh has been examined by way of affidavit which is Ex.PW2/A bearing his signatures at point A and B. This witness has proved the registration of the FIR in the present case. According to him, he on receipt of the rukka, had registered the FIR copy of which is Ex.PW2/B bearing his signatures at point A (original seen and returned). In his cross examination by Ld. defence counsels, the witness has admitted that at the time of registration of FIR, complainant or her family member was not present. The witness has voluntarily added that at that time the complainant was present in the room of the Investigating Officer. He has deposed that the FIR was registered at 10:20 PM.
PW3 HC Brijpal has also been examined on by way of affidavit which is Ex.PW3/A bearing his signatures at point A and B. He has deposed that on instructions of the IO, he had taken the exhibits of this case to the FSL. He has proved the RC No. 11/21/10 dated 12.5.10 and also the receiving of FSL and relevant entries at SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 23 of 60 Register No.19, which are Ex.PW3/B, Ex.PW3/C and Ex.PW3/D respectively. In his cross examination by Ld. defence counsel the witness has admitted that two parcels including two sample seals were handed over to him on 22.4.2010.
PW7 L/Ct. Chaya has deposed that on 7.4.2010 she was posted at PCR Control Room and received the information regarding the quarrel at D1/846, JJ Colony, Bhalaswa Dairy, Swaroop Nagar, on which she filled the PCR form which is Ex.PW7/A. In her cross examination by Ld. defence counsels, the witness has deposed that she received the information from one Gajraj Singh at about 10.33 PM. She did not make any separate entry regarding receipt of this information. She had transferred this information to the concerned police station.
PW8 Ct. Satish has deposed that on 21.4.2010 he was posted at Police Station Bhalaswa Dairy and along with Ct. Majeet reached at BJRM hospital at about 12:30 AM where SI Sushila Rana along with HC Asha, Ct. Jaipal and complainant and her husband Gajraj Singh were also present. The witness has further deposed that they all reached at B4/53, Bhalaswa Dairy, JJ Colony where the complainant had pointed out the house of accused Leeton Shiekh. The witness has deposed that he knocked the door on which one person opened the door and on seeing that person the complainant identified him as Leeton Sheikh who had committed wrong act with SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 24 of 60 her on 7.11.2009 without her consent. The witness has further deposed that, on seeing them Leeton Sheikh tried to run away but he (witness) and Ct. Manjeet apprehended him and he was arrested in this case vide memo Ex.PW8/A and personally searched vide memo Ex.PW8/B both bearing signatures of this witness at point A. According to the witness, thereafter disclosure statement of the accused Leeton Sheikh was recorded vide Ex.PW8/C bearing his signatures at point A and signatures of Ct. Majeet at point B. The witness has deposed that the accused Leeton Shiekh took them to the house of complainant i.e. D1846, JJ Colony, Bhalaswa Diary where the accused Leeton identified the room of the house where he has committed rape upon complainant, and thereafter the Investigating Officer prepared the pointing out memo vide Ex.PW8/D which bears the signatures of this witness at point A and signatures of Ct. Manjeet at point B. According to the witness, thereafter the IO prepared the site plan at the instance of the prosecutrix and recorded the statement of complainant and her husband Gajraj Singh under Section 161 Cr.PC.
According to PW8 Ct. Satish, he along with IO / SI Sushila Rana, Ct. Manjeet and the accused Leeton Shiekh went to BJRM Hospital where the medical examination of Leeton Shiekh was got conducted. The witness has deposed that he also received the sealed parcels along with MLC from the hospital which he SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 25 of 60 handed over to the IO who seized the same vide memo Ex.PW8/E bearing his signatures at point A and signatures of Ct. Manjeet at point B and thereafter the accused was sent to lockup. This witness has identified the accused Leeton Shiekh in the court.
In his cross examination by the accused, the witness PW8 has deposed that he had not made any separate departure entry in the police station when he joined the investigations and has voluntarily added that the combine entry was made along with Ct. Manjeet. He reached BJRM hospital at about 12:30 AM (midnight) and left the hospital after about 1520 minutes. According to him, the accused Leeton Sheikh was apprehended at about 22.15 AM from his house. The witness has admitted that where the accused Leeton Shiekh is residing there are number of residential houses where people are living but the IO did not join any public person at the time when the accused was apprehended. He has deposed that the accused was alone in his room as he was residing there as a tenant and there were other rooms where other tenants are residing. According to the witness, no other tenant from the adjoining rooms are called when the accused was apprehended. He has deposed that at the time the accused was apprehended, no other person came to the spot. The witness has denied the suggestion that the accused himself voluntarily joined the investigation when he was called to the police station but he was falsely implicated.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 26 of 60
PW10 Ct. Ravinder has deposed that on 12.5.2010 he was posted as constable at Police Station Bhalaswa Dairy and was handed over two sealed pullandas and two sample seals by MHC (M) HC Brij Pal for taking the same to FSL, Rohini, having the seal of MS BJRM. He took the said pullandas and deposited in the FSL Rohini and handed over the receipt to the HMC (M). According to the witness, the pullandas remained intact till such time they were in his possession.
In his cross examination by Ld. defence counsels, the witness has deposed that he received the aforesaid pullandas at about 9:30 AM and went to FSL in a Auto whose remember he does not remember. He also made endorsement on the register while the pullandas and sample seals were handed over to him by HC Brij Pal.
PW11 HC Asha has deposed that on 21.4.2010, she was posted at RCI Cell Sub Division Jahangirpuri and joined the investigations of this case along with SI Sushila Rana and reached the BJRM Hospital at about 10.3011 PM. She got the medical examination of the prosecutrix conducted and also received the pullandas and handed over the same to the IO who took the said pullandas into possession vide memo Ex.PW11/A bearing her signatures at point A. She had also accompanied the IO and the complainant to the house of accused Leetaon who was arrested in her presence vide memo Ex.PW8/A. On 18.5.2010 she along with the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 27 of 60 IO and the complainant went to the house of accused Rinku Singh and got the accused Rinku Singh arrested at the instance and on identification of the prosecutrix vide memo Ex.PW11/B, personally searched vide memo Ex.PW11/C and her disclosure statement was recorded vide memo Ex.PW11/D all bearing signatures of this witness which she has identified in the court. The pointing out memo Ex.PW11/E at the instance of accused Rinku Singh also bears the signatures of this witness at point A. In her cross examination by Ld. defence counsels, the witness PW11 has admitted that the house of accused Leeton is surrounded by other houses. She has deposed that the house of Rinku Singh is a jhuggi type house and that Rinku was arrested at about 3 PM. According to the witness, no public witness was joined at the time of arrest and also at the time of preparation of personal search memo and disclosure memo of Rinku. Witness has denied the suggestion that the IO did not make any local inquiry but has admitted that no statement of any public person was recorded because none agreed to make the statement. The witness has deposed that disclosure statement of Leeton was recorded at about 11 PM. She has denied the suggestion that she did not join the investigations and it is for this reason that all the documents pertaining to the accused Leeton do not bear her signatures. According to the witness, they reached BJRM hospital along with the prosecutrix and Gajraj SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 28 of 60 Singh at about 101015 PM and it took them about 11 ½ hours to complete the examination of prosecutrix and other formalities in the hospital. She has denied the suggestion that the disclosure statement of accused Leeton was recorded in the police station after duress. She has further denied the suggestion that all the documentation pertaining to the arrest of the accused Leeton was done in the police station.
PW14 SI Susheela Rana has deposed that on 21.04.2010 she was posted at RCI Cell Sub Division Jahangirpuri and on that day on the receipt of information vide DD No. 19A regarding rape, she went to PS Bhalswa Dairy and met the complainant 'S' and her husband. She recorded the statement of the prosecutrix vide Ex.PW13/A bearing her signature at point A and thereafter prepared the rukka Ex.PW14/A bearing her signature at point A and got the present FIR registered through the Duty Officer. Thereafter, she along with HC Asha, Ct. Jai Pal, Complainant and her husband went to BJRM hospital where HC Asha got the medical examination of prosecutrix conducted. According to the witness, HC Asha received the exhibits and MLC from the doctor related to complainant 'S' which she took into possession vide seizure memo Ex.PW11/A bearing her signature at point B. The witness has deposed that in the mean time Ct. Satish, Ct. Manjeet came in the hospital and Ct. Satish handed over the copy of FIR and original rukka to her and thereafter, SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 29 of 60 they all including complainant and her husband reached at B4/53, JJ Colony, Bhalswa Dairy where complainant 'S' had pointed out the said house where the accused was residing. The witness deposed that Ct. Satish knocked the door on which the accused Leeton Sheikh opened the door and the complainant identified him as the same person who had committed rape upon her and after being satisfied Leeton Sheikh was arrested in this case vide memo Ex.PW8/A bearing her signature at point D and was personally searched vide memo Ex.PW8/B bearing her signature at point D. Thereafter, the accused was throughly interrogated and his disclosure statement was recorded vide Ex.PW8/C bearing her signature at point C. The witness has further deposed that thereafter they all including the accused, complainant and her husband reached at D1/846, JJ colony Bhalswa Dairy and pointed out the house of complainant and she prepared the site plan at the instance of complainant vide Ex.PW14/B bearing her signatures at point A and the memo of pointing out at the house of complainant was also prepared which is ExPW8/D bearing her signature at point D. Thereafter, she recorded the supplementary statement of prosecutrix 'S' and also the statement her husband Sh. Gajraj U/s 161 Cr. P. C after which they were relieved.
According to the witness PW14, thereafter the accused Leeton Sheikh was taken to BJRM Hospital for his medical SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 30 of 60 examination and Ct. Manjeet and Ct. Satish got his medical examination done and Ct. Satish handed over sealed parcel containing exhibits of accused Leeton Sheikh duly sealed with the seal of the hospital to her (witness) which she seized vide memo Ex.PW8/E bearing her signature at point C. The witness has deposed that they brought the accused Leeton Sheikh back to the police station and deposited the parcels with the MHC (M) and recorded the statements of concerned police officials i.e. HC Asha, Ct. Manjeet and Ct. Satish U/s 161 Cr. P. C. According to the witness, on the same day at about 2.00 PM, the accused Leeton Sheikh was taken out from the lock up and he was produced before Ld. MM and was thereafter got sent to Judicial Custody. The witness PW14 has further deposed that on 07.05.2010 the complainant 'S' was brought to the court and her statement statement U/s 164 Cr. PC was recorded before Ld. MM which statement is Ex.PW13/B. The witness deposed that on 12.05.2010 she sent the exhibits of both the accused and the complainant to FSL Rohini through Ct. Ravinder vide RC No. 11/21/2010. According to the witness, on 18.05.2010 she along with HC Asha, Ct. Satish went to the house of complainant 'S' and took complainant and her husband and reached at D1/868, JJ Colony, Bhalswa Dairy. The witness has deposed that the complainant 'S' had identified the said house as the same where the coaccused Rinku Singh was residing and Ct. Satish knocked the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 31 of 60 door and accused Rinku Singh opened the door when at the same time complainant 'S' had identified accused Rinku Singh as the same person who had come to the house of complainant on the day of incident and she got mixed some intoxicating substance in the tea and served it to her and on the identification of the complainant, the accused Rinku Singh was arrested in this case vide memo Ex.PW11/B bearing her signature at point C. The witness has also deposed that Rinku was also personally searched vide memo Ex.PW11/C bearing her signature at point B and after detailed interrogation, her disclosure statement was recorded vide Ex.PW11/D bearing signature of the witness at point B. According to the witness, the accused Rinku Singh also took them to D1/868, JJ colony Bhalswa Dairy and the complainant and her husband were also with them at that time and the accused Rinku Singh pointed out the house of prosecutrix where she served the tea to the complainant. The witness has deposed that she prepared memo to this effect vide Ex.PW11/E bearing her signature at point B and recorded the supplementary statement of complainant 'S' and her husband and they were relieved. The witness has further deposed that the accused Rinku Singh was also taken to BJRM Hospital for her medical examination where W HC Asha got her medical examination conducted vide MLC Ex.PX3. The witness has deposed that she also collected the FSL result later, on which was submitted to the Court SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 32 of 60 which are Ex.PW6/A to Ex.PW6/C. She has deposed that she collected the call detail of the conversation of accused Leeton Sheikh which are Ex.PW14/C (collectively). She has correctly identified both the accused Leeton Sheikh and Rinku Singh in the court.
In her cross examination by Ld. defence counsels, the witness PW14 has admitted that when she recorded the statement of 'S' in the police station, the other public persons were also present in the police station. She further testified that when the disclosure statements of both the accused were being recorded she requested some public persons to join in the proceeding but none agreed. She had prepared the site plan Ex.PW14/B on 22.04.2010. She has admitted that the place of incident is situated in a thickly populated / congested area and she made inquiries regarding other occupants in the building but it has come to her notice that at the time of incident there was no family in the building. The witness has further deposed that the complainant was living along with her two children and husband. Witness has denied the suggestion that she was told by some persons that there was some dispute between the parties in connection with the committee. She has voluntarily added that she was only told that parties were often quarreling but there was no information regarding any dispute of committee. According to the witness, the public persons did not disclose the reason for frequent quarrels. She has admitted that there was a crowd in the area when SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 33 of 60 the police official went to arrest Rinku Singh. She requested some public persons to become a witness of her arrest but none agreed and the public persons did not tell her that they were not willing to join as witnesses because it was a matter of personal disputes between the parties. She does not remember the names of those public persons who were asked to join the investigations. She states that she did not give them any legal notice for non joining in the investigation. She admits that complainant had told her that there was a frequent visit of the accused and her to each others house. According to the witness, the complainant 'S' was interrogated on the aspect whether she informed the local police at the time when Leeton Sheikh was given room on rent. According to the witness, the Pradhan of the area whose name she does not remember now, was also interrogated by her and requested to join the proceeding but he also refused. She admits that but she did not give him any legal notice for non joining the investigation. She has deposed that there was no complaint prior to this incident that the accused Leeton Sheikh had brought a lady whom he was introducing as his wife. She has further deposed that the complainant 'S' got vacated her house from that lady when the accused did not come even for two months and that lady left the house along with her belongings and has voluntarily added that it was done with the intervention of Pradhan after the complainant made a complaint to him in this regard. She has denied the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 34 of 60 suggestion that no such complaint was made to the Pradhan and it is a cooked up story. Witness has admitted that as per record the accused Leeton Sheikh had made telephonic calls with the complainant but she is unable to give the duration of call as it is a matter of record. According to the witness, she did not take signature of 'S' on the site plan Ex.PW14/B. She has denied the suggestion that no such incident had taken place or that she did not conduct the investigation of this case properly.
The witness PW14 was recalled for additional statement / clarifications on the directions of the court on the aspect of call detail records placed on record by PW9 Shishir Malhotra. The witness has been questioned by the court if she made any inquiry/ investigations from the complainant with regard to the mobile phone number of accused Litton Shiekh which was in use prior to 22.12.2009 on which the witness has replied that she was only told by the prosecutrix about the number 918802585073. On further court question if she made any inquiry/ investigations from the complainant with regard to the mobile phone number of accused Rinku Singh which was in use on 7.11.2009, the witness has deposed that she did not make any such inquiry. She has further deposed that the prosecutrix did not give her any number of Rinku Singh and no further inquiries were made. The court has further asked the witness if she could inform about the mobile phone number used by Litton SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 35 of 60 Sheikh and Rinku Singh on 7.11.2009 and the witness has deposed that she is unable to give any such detail. According to the witness, she had given five numbers to the service provider for giving the call details and the details of only two numbers were provided. She has deposed that at the moment, she is unable to tell the details of other three numbers which she had given to the service provider.
The witness was directed by the court to go through the record and inform the court and after seeing the record, the witness states that the mobile numbers 9910697956, 9810663429 and 9350552238 belong to the complainant and her husband whereas mobile number 9910697956 belonged to the husband of the prosecutrix namely Gajraj and the other two numbers belonged to the complainant. On further query by the court that Shishir Malhotra (PW9) who has been recalled for further examination by the court, has informed that he had sent the soft copy of the Call Detail Record in respect of the mobile numbers 918802585073 and 918802052698 but the said record has not been placed on the judicial file along with the charge sheet this witness has deposed that she has placed before the court those set of papers which were given to her by the ACP Office. This witness has encircled the relevant entries at various points encircled 'X' on Ex.PW9/C & Ex.PW9/D on which the prosecution has relied. She has not been cross examined on behalf of the accused during this additional examination. SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 36 of 60
STATEMENT OF ACCUSED &DEFENCE EVIDENCE:
After completing the prosecution evidence, statement of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied.
The accused Leeton Sheikh has stated that he is innocent and has been falsely implicated in this case. According to him, the aforesaid allegations are incorrect and false. He has further stated that the complainant was running committees and he used to help her and also used to participate in the committees. According to him, the prosecutrix had to returned Rs.42,000/ in respect of a committee and when he asked for his money, she refused on which a quarrel took place and she threatened him to implicate in criminal case and thereafter, in order to evade the payment of his money, she got him falsely implicated in the present case.
The accused Rinku Singh has similarly stated that she is innocent and has been falsely implicated in this case and that the aforesaid allegations are incorrect and false. According to her, the complainant was running committees and she used to help her and also used to participate in the committees. Accused Rinku has further stated that the prosecutrix had to returned Rs.42,000/ in respect of a committee and when she asked for her money, the prosecutrix refused on which a quarrel took place and the prosecutrix threatened SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 37 of 60 to implicate her in criminal case and thereafter, in order to evade the payment of her money, the complainant got her falsely implicated in the present case.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the record of the case. My findings are as under: Identity of the accused:
The identity of both the accused Leeton Sheikh and Rinku Singh is not disputed. They have both been named in the FIR and were previously known to the prosecutrix and have also been duly identified by the prosecutrix and her husband Gajraj Singh, in the court and I hereby hold that in so far as the identity of the accused is concerned, the same has been established.
Age of the prosecutrix:
The prosecutrix is a married women having children and therefore the age of the prosecutrix is not an issue as it is evident that she married to Gajraj Singh and is having two children from this wedlock and is a major.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 38 of 60 Medical / Forensic Evidence:
It is alleged that the incident had taken place in Novermber 2009 whereas it was reported much later in the month of April 2010. The MLC of the prosecutrix and the FSL report placed on record, do not assist the prosecution in any manner in so far as the allegations and charges under Section 376 IPC are concerned. Allegations against the accused:
In so far as the allegations against the accused Leeton Sheikh are concerned, according to the prosecutrix, in the previous year in the month of March, the accused Leeton Sheikh stayed at the house of the prosecutrix as a tenant and one day he brought a women and left her there stating that she was his wife, while he himself went away. It is further alleged that after about 1520 days when he did not return back, the prosecutrix asked that lady, where her husband Leeton was, on which that lady told her that Leeton is not her husband and he has only brought her and kept her there. On coming to know these facts that Leeton was staying with the said women in their house without prior marriage, the prosecutrix in order to avoid any dispute asked that lady to vacate the room and later on with the help of Pradhan of the area and other residents they got the room vacated. Wife of Leeton had also come to the house of the prosecutrix and created a scene and Leeton left with her. After about SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 39 of 60 two months when the accused Leeton returned and came to know of it he got annoyed and threatened the prosecutrix with dire consequences saying that he would not spare her.
The coaccused Rinku Singh is the resident of the same area and is known to the prosecutrix being neighbours and also because she was running a committee where the prosecutrix was a member. According to the prosecutrix, on 7.11.2009 she was alone at her house when Rinku Singh came and told her that she wanted a cup of tea on which she (prosecutrix) told her to make tea of her own after which Rinku Singh prepared two cups of tea and offered one cup of tea to her (prosecutrix) and as soon as she (prosecutrix) consumed the tea she started feeling unwell. In the meanwhile somebody knocked on her door and before she could react, Rinku Singh opened the door stating it was her brother, and the accused Leeton Sheikh came inside and closed the door from inside. Thereafter, while the accused Rinku Singh held the hands of prosecutrix and accused Leeton Sheikh committed rape upon her against her wishes and also threatened her not to disclose anybody about the incident or else he would kill her after which they both left. According to the prosecutrix after the incident she informed her husband but for the fear of social humiliation that she and their daughter would have to face, the prosecutrix and her husband decided to suppress the incident and not to report the same to the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 40 of 60 police but he confronted both Leeton Sheikh and Rinku Singh about the incident on which there was a lot of hot talk between them. Both the accused Leeton Sheikh and Rinku Singh apologized to the prosecutrix and admitted their mistake and pleaded for mercy saying that they have small children and should be forgiven. Thereafter, the prosecutrix started receiving telephone calls from unknown numbers where some person was indulging into objectionable and suggestive conversation about which fact the prosecutrix informed her husband and they had also changed there mobile numbers. On 7.4.2010 accused Rinku Singh called on the mobile of the prosecutrix and started to make conversation with her and told her to forget the incident, but after some time the accused Leeton Sheikh took the phone from Rinku Singh and started objectionable and suggestive talk with her on which she immediately cut the phone line and informed her husband about the same who told her that he is calling at 100 number and also told her that in case she receive any call, she should keep talking so that he could caught the called red handed. According to the prosecutrix, she thereafter received another call from the same number from which Rinku Singh had been calling as per the advice of her husband, she kept talking with the accused who was on the other side since she wanted that the call may be traced out, but suddenly the accused Leeton Sheikh came from the backside of her house by using the terrace on which she was shocked and she SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 41 of 60 screamed very loudly and raised an alarm on which Leeton got scared and ran away from backside. Thereafter, she informed her husband who informed the police and thereafter they went to the police station. The relevant portion of her statement is as under:
"....... Litton Sheikh who is present in the court (correctly identified by the witness) had come to our house and stayed as tenant along with one lady. Just three four days after Litton had come to our house, another lady came looking for Litton claiming herself to be his wife and she told me that Litton was her husband and he has brought another lady to stay with him in our house. There was a very big quarrel between Litton and the second lady who claimed to be his wife and after some time Litton told us that he is going along with his wife and will return after settling all his dispute with her. Thereafter, Litton did not come back for 1015 days and I along with my husband sought the intervention of the Pradhan of the area asked that lady who Litton had left at our SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 42 of 60 house to vacate our house after which that lady also left. After few days Litton came back to our house and asked about the whereabouts of that lady who was staying in our house whom he had left behind on which I told him that she had gone away. Litton got annoyed at this and started threatening me with dire consequences saying that he would not spare me and I would not be able to show my face in the area.
I was having a mobile phone at that time and I started receiving frequent telephone calls which used to come from one number only where one man used to make claims of his being in love with me but I used to cut the phone and told my husband about the same.
Whenever my husband call back on the number from which the calls were coming, sometimes a child would pick up to speak and sometimes the person on the other side would say that the child must have dialed the number.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 43 of 60
The accused Rinku who is present in the court (correctly identified by the witness) is my neighbour. She is residing in the same area and used to put committees and I was on good terms with her. On 7.11.2009, Rinku came to my house in the morning. At that time I was alone at my house. First Rinku started talking with me about the committees and thereafter she wanted to have tea but I told her that I was busy and if she wanted to drink tea she should make it herself. Rinku thereafter got up and made tea for herself and also for me and brought two glasses of tea. She offered me one glass and the other glass she herself took. After I drank the tea given by Rinku, I started feeling drowsy. Soon thereafter, I heard knock on the door and I asked who was on the door but before anybody could reply, Rinku immediately got up and opened the door stating it was her brother. As soon as Rinku opened the Kundi the accused Litton came inside and closed the SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 44 of 60 door from inside. Thereafter, before I could react, Rinku caught hold of my hands and Litton closed my mouth with his hand and he forcibly committed rape upon me against my wishes and after the act, he threatened me saying tujhe batana hai to bata dae, mai kisi se nahi darta, teri ijjat ka sawal hai aur teri hi badnami hogi. Thereafter, both the accused Rinku and Litton left.
I, immediately called up my husband and told him to come home but I did not tell him about the incident since I did not want to disturb him while he was on duty. My husband came home early and I narrated the entire incident to him on which my husband got very agitated and left the house. After some time he came back with accused Rinku and Litton and there was a lot of hot talk between my husband and the accused Rinku and Litton, since my husband wanted to know why they had committed this act upon me. Both the accused SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 45 of 60 first admitted their mistake and pleaded with my husband saying that they have small children and we should forgive them for the act. My husband warned both the accused for future and did not want to aggravate the issue due to fear of social humiliation my daughters would have to face and we both (i.e. me and my husband) thought it best to suppress and not to highlight the incident.
I however continued to receive calls from unknown number but I did not receive them. On 7.4.2009, at about 10.30 PM Rinku called me on my mobile. I picked up the call not knowing it was from her and only after I picked up the phone then I came to know that the lady on other side was Rinku. Accused Rinku attempted to converse with me when I asked her why she had called, she told me to forget the incident. However, in the meanwhile accused Litton picked the phone from Rinku and again started the objectionable and suggestive talk SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 46 of 60 with me. I immediately cut the phone and telephoned my husband and informed him about the same. My husband advised me not to feel scared as he was calling the police on 100 number and also told me when I receive any such call, I should keep on talking so that the accused could be caught red handed. Even after this I kept on receiving the calls from the same number and I picked up one such call and as per the advise of my husband I kept on talking to the accused who was on telephone on the other side but while I was talking with the accused on the telephone, he suddenly came from the backside of my house by using the terrace. I was shocked on seeing the accused on which I screamed very loudly and raised an alarm. The accused Litton got scared and ran away from the backside. Soon thereafter I received a call from my husband and I told him about the incident on which my SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 47 of 60 husband told me to come in the park so that we could go to the police station. I went to the park and from there I along with my husband went to the police station. My husband gave an application to the police and the police thereafter also recorded my statement.
Thereafter, police asked us to return home but they did not take any action. Thereafter we return home on 7.4.2099.
The accused Litton continued to call us and started threatened me and my husband for withdrawing the complaint or would face dire consequences. Since I was receiving repeated threatening calls, therefore out of fear we went to the house of one of our relatives and stated staying with them for sometime. Since accused Littion continued to harass me, I and my husband went to the Deputy Commissioner of Police and inform him that the police was not taking any action, it was thereafter that we were called to the police station on 21.4.2009 SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 48 of 60 my statement Ex.PW13/A bearing my signatures at point A was recorded........"
I may observe that there is a long delay in registration of the FIR and the only evidence on record is the uncorroborated testimony of the prosecutrix. No doubt, conviction can be based upon the uncorroborated testimony of the prosecutrix provided it is found to be credible and trustworthy. In the present case, there has been a long delay of five months in reporting the incident of rape to the police, for which no valid explanation is forthcoming. At the time of the incident, no alarm had been raised by the prosecutrix nor any medical was got conducted after the incident. Also, no complaint was made to the police or to any authorities. The case of the prosecution is that the prosecutrix had informed her husband about the incident and he had even confronted the accused with the same on which there was a hot talk between them. No independent witness from the area either been cited or examined to this effect, though it is evident from the testimony of the Investigating Officer / SI Sushila Rana that she had come to know from the area that there were frequent quarrels between the parties but she did not make any inquries in respect of the same. Why was it that the Investigating Officer did not investigate the said aspect which was essential. There are two probabilities, one that what is stated by the prosecutrix is SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 49 of 60 correct and it is because of the incident of rape that there was frequent quarrels but in this regard no evidence has been collected, and second that it could be due to other reasons i.e. the prosecutrix not wanting to refund the committee money as claimed by the accused. Had the investigating officer inquired into this aspect from the neighbours and other persons of the area, things would have been clear and the court would not have been left guessing. Therefore, in such an eventuality where two views are possible on evidence adduced, one pointing to the guilt of the accused and one to the innocence of the accused, the view which is favourable to the accused is normally to be adopted. (Ref.: State of U. P. Vs. Munni Ram & Ors., 2010 (12) JT 180).
In so far as the call detail record for the second incident dated 7.4.2010 is concerned, the oral testimony of the prosecutrix finds due corroboration from the call detail record placed before this court which is Ex.PW9/C and Ex.PW9/D duly proved by PW9 Shishir Malhotra. The call detail record Ex.PW9/C and Ex.PW9/D show that calls were being made to the phone being used by the prosecutrix which details are shown at various pages Mark 'X'. Therefore, the oral testimony of the prosecutrix to the effect that she was being harassed on telephone, finds due corroboration from the call detail records at points 'X' and the accused Leeton has not been able to offer any explanation for the same or controvert the same. SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 50 of 60
This being so, I hold that in so far as the incident dated 7.11.2009 is concerned, the same has not been proved and established for which benefit of doubt is given to both the accused, but in so far as the incident dated 7.4.2010 is concerned, the same has been duly proved to the extent that the accused Leeton Sheikh had been making offending calls to her, stands established but not the fact that he had outraged her modesty since according to her own testimony, the prosecutrix has deposed that as soon as she saw the accused who had entered her house, she was alarmed and she screamed on which he escaped. Thus, it has been proved that it was the accused Leeton Sheikh who had made call on the mobile of the prosecutrix and made suggestive and objectionable conversation with her and even entered to her house from backside by using the terrace but as soon as the prosecutrix raised an alarm, he ran away.
However, the aspect that it was the accused Rinku Singh who first made the call and later handed over the phone to the accused Leeton Sheikh has not been proved and established beyond reasonable doubt, the only evidence on record being the oral testimony of the prosecutrix which does not find any corroboration from independent source and it will not be safe to rely upon her uncorroborated testimony. Benefit of doubt is therefore given to the accused Rinku Singh for the same.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 51 of 60 FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 52 of 60 Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the both accused Leeton Sheikh and Rinku Singh is established being resident of the same area. In so fas the age of prosecutrix is concerned, it is not an issue as it is evident that she is married to Gajraj Singh and is having two children from this wedlock and is a major. Further, the MLC of the prosecutrix and the FSL report, do not assist the prosecution in any manner in so far as the allegations of rape are concerned. It is evident that there is a considerable delay (five months) in registration of the FIR for which no valid explanation is forthcoming.
However, in so far as the incident dated 7.4.2010 is concerned, it has been proved and established since from oral testimony of the prosecutrix which finds due corroboration from the call detail records that the accused had been making annoying calls toe the prosecutrix to which there is no rebuttal on behalf of the accused Leeton Sheikh. However, in so far as the allegations of threat and outraging her modesty on 7.4.2010 is concerned, same have not been established and proved beyond doubt. Therefore, under these circumstances, I hereby acquit the accused Leeton Sheikh from the charges under Section 376/506/354/34 Indian SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 53 of 60 Penal Code but hold him guilty for the offence under Section 509 Indian Penal Code and accordingly convict him.
Further, in so far as the accused Rinku Singh is concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The materials brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Rinku Singh. 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 guilt of an accused. I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Rinku Singh beyond reasonable doubt and hence, benefit of doubt is being given to her who is acquitted of the charges under Section 109 read with 376 IPC and Section 328 & 506 read with Section 34 Indian Penal Code.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 54 of 60
Be listed for arguments on sentence qua the accused Leeton Sheikh, on 26.8.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 25.8.2011 ASJ (NW)II: ROHINI SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 55 of 60 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 1232/2011 Unique Case Identification No. : 02404R195562010 State Vs. 1. Leeton Sheikh S/o Fazal Hak R/o B4/53, JJ Colony Bhalaswa Dairy, Delhi.
(Convicted)
2. Rinku Singh W/o Sarvender Singh R/o D1/868, Colony Bhalaswa Dairy, Delhi.
(Acquitted)
FIR No. : 58/2010
Under Section : 376/506/109/454/328/34 Indian penal Code
Police Station : Bhalaswa Dairy
Date of Judgment : 25.8.2011
Arguments heard on : 26.8.2011
Date of Sentence : 26.8.2011
APPEARANCE:
Present: Addl. PP for the State.
Convict in JC with Sh. A. P. Singh, Advocate.
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 56 of 60
ORDER ON SENTENCE:
This is the case where the accused Leeton Sheikh was charged for the offence under Section 376/506/509/354/34 Indian Penal Code and the accused Rinku Singh charged for Section 109 read Section 376/328/506/34 Indian Penal Code. Vide my detailed judgment dated 25.8.2011 the accused Leeton Sheikh has been acquitted of the charges under Section 376/506/354/34 Indian Penal Code but has been held guilty for the offence under Section 509 Indian Penal Code, whereas in so far the accused Rinku Singh is concerned, the prosecution has not been able to prove and substantiate the allegations under Section 109 read with 376 IPC and Section 328 & 506 read with Section 34 Indian Penal Code, against her, for which benefit of doubt has been given and the accused Rainku Singh has been acquitted of the same.
As per the allegations, on 7.11.2009 at about 11 AM at D1/846, JJ Colony, Bhalaswa Dairy, the accused Leeton Shiekh and Rinku Singh in furtherance of their common intention entered into the house of the prosecutrix 'S' (name is withheld as this is the case under Section 376 IPC) and thereafter Rinku Singh administered some intoxicating substance in the tea and served the same to the prosecutrix after which the prosecutrix felt unwell and thereafter Rinku Singh caught hold the hands of the prosecutrix and the accused Leeton Sheikh committed rape upon the prosecutrix without her SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 57 of 60 consent and while doing so the accused also criminally intimidated the prosecutrix. It is alleged that during the period 7.11.2009 to 7.4.2010 the accused Leeton Sheikh was regularly making phone calls to the prosecutrix and was making obscene and objectionable conversation with her. It is further alleged that on 7.4.2010 the accused Leeton Sheikh and Rinku Singh in furtherance of their common intention made a telephone call to the prosecutrix 'S' and Rinku Singh initiated the conversation while Leeton Sheikh took over the phone and started making obscene and objectionable suggestions to the prosecutrix and while continuing to make such calls, the accused Leeton Sheikh entered into the house of the prosecutrix from backside by using terrace and thereafter used criminal force upon her. However, on the basis of the testimonies of various witnesses including the prosecutrix, the accused Leeton Sheikh has only been convicted for the offence under Section 509 Indian Penal Code.
I have heard the arguments on the point of sentence. The convict Leeton Sheikh is a young boy aged about 30 years, married, having a family comprising of mother, father, three brothers, three th sisters, wife and four children. He is 5 class pass and has been working as helper in a cable factory. He has already remained in judicial custody for a period of One Year, Four Months and Four Days. The convict is involved in the following cases also: SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 58 of 60
1. FIR No. 20/08, under Section 279/338 IPC & Sec.
3/181 M.V. Act PS Swaroop Nagar.
2. FIR No. 344/02, under Section 323/324 IPC, PS Hazrat Nizamuddin.
3. FIR No. 33/08, under Section 325 IPC, PS Swaroop Nagar.
4. FIR 260/05 under Section 393/120B IPC, PS Hazrat Nizamuddin.
Ld. counsel appearing on behalf of the convict has vehemently argued that the a lenient view be taken against him keeping in view his young age. Ld. counsel has further argued that however the convict is involved in four other cases but has not yet been convicted in any case. Addl. PP for the State on the other hand has argued that in view of the seriousness of the offence committed by the convict, he deserve leniency and strict view should be taken against the convict.
I have considered the rival contentions. Keeping in view the young age of the convict and the fact that he has already remained in judicial custody for the period of One Year, Four Months and Four Days during trial, any harsh view taken against him would be prejudicial to his future. However, the convict is involved in four other criminal cases but has not yet convicted in any SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 59 of 60 case. In view of the above as the convict Leeton Sheikh has already remained in the custody for the period more than the punishment as provided under Section 509 Indian Penal Code, therefore under these circumstances, this court is left with no option but to sentence the convict Simple Imprisonment for a period of One Year for the offence under Section 509 Indian Penal Code.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants. The convict be released forthwith if not wanted in any other case.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 26.8.2011 ASJ (NW)II: ROHINI
SC No. 1232/10, State Vs. Leeton Sheikh, FIR No. 58/10, PS Bhalaswa Dairy Page 60 of 60