Delhi District Court
State vs . Shakil Ahmad on 30 January, 2016
IN THE COURT OF SHRI SANJIV JAIN ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK COURT (SOUTH EAST) SAKET COURTS: NEW DELHI Unique ID no. 02406R0242962015 SC No. : 124/15 FIR No. : 582/15 U/s. : 328/376/323/307 IPC PS : Jamia Nagar In the matter of: State (Govt. of NCT of Delhi) ................... Complainant Versus Shakil Ahmad, S/o Sh. Amiruddin, R/o Village RamanWala, Tehsil & Post Najibabad Bijnaur, UP .........................Accused Date of Institution : 01.08.2015 Judgment reserved for orders on : 30.01.2016 Date of pronouncement : 30.01.2016 JUDGMENT
1. On 29.04.2015, an information vide DD no. 15A, was received at the police station Kotwali about taking of a girl to LNJP hospital. SI Seema reached there and met SI Sanjay Gupta who handed over the FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 1 of 11 MLC of the prosecutrix and stated that the prosecutrix has alleged rape by her previous husband i.e. the accused. Her gynecological examination was got conducted. The doctor handed over the exhibits of the prosecutrix in sealed condition alongwith the sample seal. Prosecutrix was got counseled. Her statement was recorded. She alleged that she was married to Aas Mohd. from whom she has two children aged 17 and 14 years. She has taken divorce from Aas Mohd. About 7 8 years ago, she started working as maid in Happy Home, Okhla, Batla House, Delhi. There she met the accused who used to drive the school bus. They got married and from their relations, she gave birth to a child Rehan who at present is 6 years of age. She alleged that about 2½ years ago, accused has divorced her. The related documents of divorce were prepared in the Court at Seelampur whereby the accused had agreed to pay Rs. 1500/ p.m. as maintenance. About 1015 days before, she had talked to the accused for the education of Rehan.
She alleged that on 28.04.2015, she again talked to the accused who asked her to bring the clothes of Rehan for his admission in a boarding school. At about 12:30 p.m., she reached Shastri Park hospital where at about 1:30 / 2 p.m. accused came in a car and got them seated. He took them to Happy Home school. He told her that FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 2 of 11 they would go at around 5 / 6 p.m. after a call. When till 6 p.m., no call came, she asked him to make a call. She alleged that at about 8 / 9 p.m., the accused brought sugarcane juice for her. After taking juice, she felt drowsy and slept on the rear seat of the car. When she woke up, she found the accused removing her salwar. She alleged that the accused committed rape upon her. When she pushed him, he started beating her. He punched on her mouth. He asked her to keep quiet lest he would kill her. Thereafter, he took her in a lonely place and in the morning he dropped her at her house. He again beat her and tried to kill by strangulating her.
3. On her statement, zero FIR was registered at the police station Kotwali u/s 376/307/506 IPC. Since the incident had happened in the area of Okhla, after seeking directions, the case was sent to the police station Jamia Nagar, where FIR 852/15 was registered. The statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. On 26.05.2015, accused was arrested. He was got medically examined for his potency. His exhibits were collected. During investigation, the clothes of the prosecutrix were collected. The documents of divorce were collected. The exhibits were sent to the FSL. After the investigation, the accused was sent for trial for the offences punishable u/s 376/307/506 IPC.
4. After complying with the requirements contemplated u/s 207 FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 3 of 11 Cr.P.C. the case was committed to this Court.
5. After hearing arguments, vide order dated 01.10.2015, prima facie case was made out against the accused and the charge u/s 328/376 and u/s 323/307 IPC was framed.
6. To substantiate its case, prosecution examined the prosecutrix as PW1, her son Rehan as PW2, and IO SI Shanti as PW3.
PW1 / Prosecutrix has testified on oath that she got married to the accused about 7 8 years ago. Earlier she was married to Aas Mohd. After taking divorce from Aas Mohd., she started working in Happy Home, Okhla, Batla House as maid. There she met the accused who was working as Driver. They started talking to each other and got married. She has 7 years old son from this wedlock. She stated that about 1 year ago, accused divorced her as there used to be quarrel between them. The accused used to pay Rs. 1500/ p.m. as maintenance for her son. She stated that on 28.04.2015, she called the accused on the request of Rehan as he wanted to meet him. The accused called them at Shastri Park. At about 1 p.m., she reached there. After about half an hour, accused came in a car and made them sit in the car. He FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 4 of 11 took them to Okhla Park where they remained till 5 p.m. There was traffic jam on the road. At night, accused took them to the house of his relative near Jamia School, Okhla. She stated that on the way, the accused parked his car on the side of the road, where he established sexual relation with her with her consent. She stated that on the next day she asked the accused to give Rs. 30,000/ for the admission of her son in a boarding school but the accused refused. A quarrel took place and the accused slapped and punched her. She got enraged and went to the police station leaving her son with the accused. She made the complaint Ex.PW1/A. She was taken to LNJP hospital where she was examined vide MLC Ex.PW1/B. The doctor seized her clothes. She stated that since she was angry with the accused, in a fit of anger, she lodged the complaint making allegations of rape, however, their physical relation was consensual and accused never forced upon her. On 01.05.2015, she gave the statement Ex.PW1/C to the Magistrate as per the contents of FIR. She stated that the accused was arrested on 26.05.2015 and she got FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 5 of 11 the custody of the child. She proved the documents of her divorce Ex.PX.
She was declared hostile. On being cross examined by the public prosecutor, she denied that the accused had given her juice and after taking the juice, she started feeling giddy and went to sleep on the rear seat of the car. She also denied the accused established physical relation with her forcibly without her consent and when she tried to resist him, he beat her and gave a fist blow on her face as a result she sustained injuries. She denied that accused threatened to kill her. She also denied that accused tried to kill by strangulating her. PW2 is the son of the prosecutrix. He stated that the accused had beaten her mother. She was weeping when she came out from the car.
PW3 SI Shanti is the IO of this case. She deposed on the lines of investigation and proved the Zero FIR Ex.PW3/C, which was recorded on the statement of the prosecutrix Ex.PW3/A. She also proved the MLC of the prosecutrix prepared at LNJP hospital Ex.PW3/D. She proved the FIR Ex.PW3/E recorded at the police station FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 6 of 11 Jamia Nagar. She took into possession the exhibits of the prosecutrix vide memo Ex.PW3/F, prepared the site plan Ex.PW3/G and got recorded statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/E. She collected the documents of divorce Ex.PX and arrested the accused. She sent him for medical examination vide MLC Ex.PW3/B and collected his exhibits. She sent the exhibits to FSL.
7. Looking into the testimony of the prosecutrix, her son and the IO, I did not find any purpose to examine the remaining prosecution witnesses as they came in motion at the instance of the prosecutrix. Sayed had witnessed the talaknama of the accused from the prosecutrix. The accused never challenged the prosecutrix as to the beatings and punching given by him on her person. The prosecution evidence was accordingly closed.
8. After the prosecution evidence, the statement of the accused u/s 313 Cr.P.C. was recorded wherein he admitted to have married with the prosecutrix and given divorce to her. He admitted that a child namely Rehan was born from their relations. He also admitted that he used to pay Rs. 1500/ p.m. as maintenance. He stated that the physical relation between him and the prosecutrix in the car was with the FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 7 of 11 consent of the prosecutrix. He stated that the prosecutrix had asked him to pay Rs. 30,000/ for the admission of Rehan in a boarding school and when he refused, a quarrel took place. He lost his tamper and hit on the nose of the prosecutrix. He denied that he tried to kill her by strangulating her.
9. I have heard the arguments advanced by Ld. Counsel Sh. R.P. Pandey for the accused and Ld. Addl. PP for the state and gone through the entire evidence on record.
10. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 8 of 11 urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
11. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 9 of 11
12. The testimony of the prosecutrix would show that she had married with the accused after taking divorce from her previous husband. She gave birth to a child namely Rehan. She has also taken divorce from the accused. Her testimony reveals that on 28.04.2015, she had met the accused at Shastri Park from where the accused took her to Okhla where in the car, the accused established physical relation with her with her consent. She has stated that when she asked the accused to pay Rs. 30,000/ for the admission of Rehan in a boarding school, accused refused and a quarrel took place. The accused slapped her and punched her. She got enraged and went to the police station making allegations of rape although their physical relation was consensual and accused never forced upon her. She was cross examined at length but she denied that the accused had raped her or strangulated to kill her.
13. In the instant case, the prosecutrix was discharged on the same day after her medical examination. She was examined in the ENT department. The prosecutrix did not complain difficulty in breathing and swallowing nor there was any change in her voice. There was no bleeding from her ear. There were blood clots on her nose and tenderness. There were superficial abrasions on her nose and face. There was 2 cm x 1 cm superficial abrasion on her neck. The FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 10 of 11 injuries in the present case are simple in nature. There is no evidence that the accused strangulated the prosecutrix. Nothing can be inferred from the evidence and the material available on record that accused attempted to kill the prosecutrix. The accused had slapped and punched on the prosecutrix in a fit of anger when a quarrel took place between them over admission of Rehan in a boarding school. PW2 has stated that the accused beat the prosecutrix and when she came out from the car, she was weeping. The accused has also admitted to have beaten and given punch on the prosecutrix.
14. On considering the entire material on record in the given circumstances, I am of the view that the necessary ingredients of the offences punishable u/s 328/376/307 IPC are not proved against the accused. The accused is therefore acquitted of the offences punishable u/s 328/376/307 IPC. The prosecution has successfully proved its case for the offence punishable u/s 323 IPC against the accused qua his beating and punching the prosecutrix. I hold the accused guilty of the offence punishable u/s 323 IPC and convict him thereunder. Announced in the open court today i.e. 30.01.2016 (Sanjiv Jain) ASJSpl. FTC / South East Saket Courts, New Delhi.
FIR No. : 582/15 State Vs. Shakil Ahmad PS : Jamia Nagar, New Delhi. Page No. 11 of 11