Delhi District Court
State vs . Mohd. Nazim on 25 September, 2018
IN THE COURT OF MS SHEFALI BARNALA TANDON, MM-6 (C), TIS HAZARI
COURT, DELHI.
FIR No.302/2007
U/s. : 377/511 IPC
P.S. : Sadar Bazar
State Vs. Mohd. Nazim
JUDGMENT
1. CIS number of the case : 288692-2016
2. CNR number of the case : DLCT02-000116-2009
3. The date of commission of offence : 07.08.2007
4. The name of the complainant : Mr. "D" (with held to secure the
identity of victim)
5. The name & parentage of accused : Mohd. Nazim
S/o Mohd. Ansar
R/o VPO Bhatora, District
Darbhanga, Bihar.
6. Offence under which charge has been: U/s 377 r/w section 511 IPC
framed
7. The plea of accused : Pleaded not guilty
8. Final order : Acquitted of the charge
U/s 377 r/w section 511 IPC
Date of Institution : 12.06.2009
Judgment reserved on : 25.09.2018
Judgment announced on: 25.09.2018
FIR No.302/2007 State Vs. Mohd. Nazim 1 of 12
PS Sadar Bazar
STATEMENT OF THE REASONS FOR THE DECISION :-
1. Briefly stated, the facts of the case as unfolded from the charge- sheet are that on 07.08.2007, at about Mid Night, at H.No.7786/29, Katra Atma Ram, Delhi, within the jurisdiction of PS Sadar Bazar, accused attempted to commit carnal intercourse against the order of nature with complainant Mr. "D" and fled away on his raising alarm. He also attempted to commit similar offence a week ago also. Thereby, the accused committed the offence punishable u/s. 377/511 IPC and accordingly, charge-sheet was filed.
2. The copy of charge-sheet as well as its annexures were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and charge for the offence u/s. 377 r/w section 511 IPC was framed against accused Mohd. Nazim by the Ld. Predecessor of the Court vide order dated 16.08.2011 to which he pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined 12 witnesses. Relevant portion of testimony of witnesses is discussed hereinafter.
4. PW-1 Mr. "D" (Complainant-name with held to secure identity of victim) deposed that in the year 2007, he had come to Delhi and stared working at a bag manufacturing factory at Katra Atma Ram, Bara Hindu Rao, Delhi. The factory was of one Mohd. Rizwan, who was also known as Gulfam and he used to reside in the factory itself. Accused Mohd. Nizam was also employed in the same factory, also used to reside in the same factory itself and both of them alongwith 4/ 5 labourers used to sleep in the factory itself in the same room was FIR No.302/2007 State Vs. Mohd. Nazim 2 of 12 PS Sadar Bazar (accused was correctly identified by him). He further deposed that on 07.08.2007, he went to sleep in the night and suddenly he felt some weight on his body, he woke up and found his underwear was removed to his knees and accused was also naked, who was trying to put his penis inside his anus. Thereafter, he raised alarm and on this, accused fled away. Around 5/ 6 days earlier also, accused had tried to commit this act with him, when he had objected to his gesture, he had threatened to kill him. As he was afraid, so, he did not go to the PS immediately to the police, however, on 09.08.2007, he went to the PS and made a complaint to the police proved as Ex.PW1/A. Police accompanied him to his factory and prepared site plan at his instance proved as Ex.PW1/B where accused had tried to commit unnatural sex with him. Thereafter, police made efforts to search accused and he was apprehended at Idgah Road where he was arrested & personally searched vide memo proved as Ex.PW1/C & Ex.PW1/D respectively. Thereafter, he got medically examined and his undergarments were taken by the doctors. He correctly identified his cloth i.e. nikar which were seized by the police after the incident proved as Ex.P1.
During his cross-examination, he denied that 4/5 persons were sleeping in the room where the offence was committed on the day of incident and voluntarily stated that 2 childrn were sleeping in the room at that time, one was elder to him and the other was younger. He also deposed that when he raised alarm, the children, present in the room woke up. He also deposed that the similar nature of incident happened 2 days before the incident and he never deposed that it happened 5/ 6 days ago. He also deposed that Qadar was his neighbour in the village, who had brought him to Delhi and he stayed with him till the time he started living in the factory. However, he did not tell Qadar about the present incident but took him to PS for making the complaint against the present accused.
FIR No.302/2007 State Vs. Mohd. Nazim 3 of 12 PS Sadar Bazar
5. PW-2 Ct. Mitra Pal deposed that on 09.08.2007, he joined investigation in the present case alongwith IO/SI Mahipal Singh and upon receipt of secret information qua accused Mohd. Nazim, who was stated to be present at Idgah Road Park, both of them alongwith complainant Mr. "D" went at the spot and arrested him at the instance of complainant. Arrest memo and personal search memo of accused already proved as Ex.PW1/C and Ex.PW1/D respectively. Thereafter, they returned to the police post alongwith accused and complainant. At the police post, accused was interrogated and during interrogation, he made disclosure statement proved as Ex.PW2/A. Thereafter, accused was sent to hospital for medical examination with alongwith Ct. Rajeev and complainant. His statement was recorded by the IO.
During his cross-examination, he admitted that public persons were present at the spot from where accused was arrested, however, none was made to join the investigation by the IO.
6. PW-3 HC Rajbir Singh deposed that on 09.08.2007, he was present at the the police post and had accompanied ASI J.P.Singh with Mr. "D" for the medical examination of Mr. "D" to Hindu Rao Hospital where he was medically examined. His MLC was prepared and undergarments were seized vide seizure memo proved as Ex.PW3/A and sealed pullanda alongwith MLC was handed over to SI J.P.Singh. Thereafter, IO recorded the statement of victim Mr. "D", prepared tehrir and tehrir as handed over to him. He went to the PS, got the case registered and handed over the copy of FIR alongwith original tehrir to the IO. His statement was recorded by the IO.
7. PW-4 Retired ASI J.P. Singh deposed that on 09.08.2007, one boy namely Mr. "D", aged about 15 years, came to police post and stated that one person namely Mohd. Nazim had tried to commit carnal intercourse with him in FIR No.302/2007 State Vs. Mohd. Nazim 4 of 12 PS Sadar Bazar the night of 07.08.2007. Thereafter, he alongwith Ct. Rajbir and the body Mr. "D" went to Hindu Rao Hospital for his medical examination. After medical examination, he was referred for medico legal expert for opinion. He had handed over the copy of MLC of Mr. "D" to SI Mahipal Singh, ICPP recorded his statement, prepared a rukka and sent it for registration of FIR through Ct. Rajbir Singh. IO recorded his statement.
8. PW-5 Ct. Mohan Ram deposed that on 24.08.2007, on the directions of IO, the then MHC (M) had handed over to him four sealed pulandas duly sealed with the seal of HRH, sample seal, form FSL and relevant papers vide RC No. 114/21, dated 24.08.2007 for depositing the same to FSL, Rohini. He deposited the same with the lab accordingly and handed over the receipt to the then MHC (M).
9. PW-6 Sh. Dinesh Kumar (Medical Record Clerk) proved MLC No. 7984/07 of patient Mr. "D" prepared by Dr. Sayed Rehman Hussain of the Hindu Rao Hospital as Ex.PW6/A.
10. PW-7 Dr. Om Prakash deposed that on 09.08.2007, he examined the patient Mr. "D", aged about 15 years, vide MLC No.7984/07 proved as Ex.PW6/A and had further referred the patient to medico legal expert for expert opinion.
11. PW-8 Dr. M.K. Panigrahi deposed that on 09.08.2007, he examined patient namely Mr. "D", who was brought by SI Mahipal with an alleged history of victim of sodomy vide his detailed examination report proved as Ex.PW8/A. He took samples of anal swab and sent the same to FSL for examination.
During his cross-examination, he admitted that there was no injury FIR No.302/2007 State Vs. Mohd. Nazim 5 of 12 PS Sadar Bazar around the anus of the patient.
12. PW-9ASI Ved Pal Singh deposed that on 09.08.2007, three pulanda were deposited by IO/ SI Mahipal Singh and one pulanda deposited by ASI J.P. Singh and also articles of personal search of accused. He took the same into his possession and made entry in register No. 19 at Sr. No.2745 regarding the same. As per record, on 24.08.2007, vide RC No.114/21, samples were sent to FSL through Ct. Mohan Ram and on 06.05.2008, result from FSL received with case property with the seal FSL Rohini through Ct. Dhirender. Result FSL was handed over to SI Arun Kumar Tyagi. Copy of extract of entry No.2745 of register No.19 proved as Ex.PW9/A and copy of RC proved as Ex.PW9/B respectively.
13. PW-10 ASI Joginder Singh deposed that he handed over the articles seized and sealed by Medical Officer after examination of the accused with the sample seal to IO, which were taken into possession vide memo proved as Ex.PW10/A.
14. PW-11 Sh. K.V. Singh (Medical Record Clerk) proved the MLC/ sexual report No.798807, dated 09.08.2007 of accused Mohd. Nazim, prepared by Dr. Rajeev as Ex.PW11/A.
15. PW-12 Retd. SI Mahipal Singh (Investigating Officer) deposed that on 09.08.2007, he was present at police post when complainant namely Mr. "D" came to police post and narrated the incident of 07.08.2007 to him. Thereafter, he sent complainant alongwith ASI J.P. Singh for medical examination to Hindu Rao Hospital. After examination, ASI J.P. Singh deposited the exhibits and brought MLC and handed over the same to him wherein doctor referred the complainant for medico legal expert. Thereafter, he recorded the statement of FIR No.302/2007 State Vs. Mohd. Nazim 6 of 12 PS Sadar Bazar complainant already proved as Ex.PW1/A. He prepared rukka on the said statement proved as ExPW 12/A and sent the same for registration of FIR with Ct. Rajbir. Thereafter, he also prepared site plan at the instance of complainant already proved as Ex.PW1/B and came back to police post alongwith complainant where Ct. Rajbir handed over him original tehrir and copy of FIR. Then, accused was arrested and personally searched vide memo already proved as Ex.PW1/C & Ex.PW1/D respectively. Body inspection memo of the accused was prepared vide memo proved as Ex.PW12/B. He also recorded the disclosure statement of accused vide memo already proved as Ex.PW2/A and he also got the the medical examination of accused conducted at Hindu Rao Hospital. He also seized the exhibits of accused vide memo already proved as Ex.PW10/A. After obtaining the priority letter, he sent the exhibits to FSL. After completion of investigation, he prepared the challan and filed the same before the court. He correctly identified the one shorts (nikkar) of complainant as Ex.P1, two plastic sealed bottles as Ex.P2 & PW3 and clothes of accused as Ex.P4 respectively.
During his cross-examination, he failed to remember whether complainant came to PS for making complainant alone or with somebody. He stated that he did not record statement of public persons he interrogated during investigation as they did not disclose anything against the accused. He admitted that he did not record statement of 4/ 5 boys, present during the incident, as the complainant himself stated that they were sleeping at that time.
Thereafter, prosecution evidence was closed.
16. Statement of accused u/s. 313 Cr.P.C. was recorded separately and all the incriminating evidence coming on record was put to the accused, which he denied in general and stated that the present case is a false one. The FIR No.302/2007 State Vs. Mohd. Nazim 7 of 12 PS Sadar Bazar complainant was employed in the factory where he was the supervisor and 4/ 5 other boys were also working in the factory. It was a small room and many other boys were sleeping in the said room except the complainant. The complainant joined the factory only ten days ago prior to the incident and as his work was not found satisfactory by him, he reported the matter to the owner of the factory and the goods prepared by him were being returned by the customers which caused a lot of loss to the owner and he was removed from the service two days prior to the alleged date of incident. He never slept in the room in that factory, as alleged by the complainant as he was residing in tenanted premises alongwith his brother in the house of Allahwala. The complainant out of grudges and personal vendetta has filed a false case against him.
Accused chose to lead evidence in his defence and got examined two witnesses.
17. Mr. Afroz examined as DW-1 deposed that accused is his real brother. There are two factories in Bara Hindu Rao, one is owned by Gulfam and other is owned by Allahwala. Both the abovesaid owners of two factories are real brothers. His brother and himself have been working in the said factories separately. The complainant Mr. "D" was employed in one of the factory and worked there for about a week in the month of August, 2007. Further, complainant was expelled from his factory on the complaint of his brother i.e. present accused because of negligent work of complainant. Lot of complaints regarding the quality of work done by complainant were received from market alongwith return of goods. Furthermore, complainant was expelled 3/4 days prior to the present matter and complainant has requested them to keep him back on the job but they denied. On the day of report by the complainant, he approached in the morning and made request to them to allow him to join the factory but he and his brother refused the same, therefore, the complainant was annoyed, went from there and FIR No.302/2007 State Vs. Mohd. Nazim 8 of 12 PS Sadar Bazar got this report registered.
18. Mr. Mohd. Gulfam examined as DW-2 deposed that he knows the accused as he was working with him as Supervisor in his Karkhana, situated at 7786/29, Katra Atma Ram, Bara Hindu Rao, Delhi. Mr. Afroz i.e. elder brother of accused was working with his elder Brother namely Abdul Kayum @ Allawala. The distance between the said two karkhana is about 50-60 meters. They both deal in business of making carry bags. The person namely Mr. "D" used to work in his karkhana and he worked only about 7-8 days as his work was not upto the mark. He was terminated on 05.08.2007/06.08.2007 by him from his job as he suffered loss. Thereafter, police approached him on 08/ 09.08.2007 and inquired from him and also recorded his statement. He told the police about the termination of Mr. "D" and that the present matter is false and no such incident as alleged had occurred. The police officials recorded his statement, however, they did not obtain his signature on the same. In his factory, 5/6 workers used to sleep in night, however, accused Nazim used to sleep with his brother Mohd. Afroz at the factory where he used to work.
19. Final arguments on behalf of Ld. APP for the State and Ld. Counsel for accused. The entire record has been carefully perused.
20. The case of the prosecution as put forth by complainant, examined as PW-1 is that the complainant was employed in the bag manufacturing factory and used to sleep in a small room in the factory itself alongwith 4/ 5 labours. On 07.08.2007, while he was sleeping in the aforesaid room, at the factory, he felt some weight on his body and when he woke up, he found his underwear was removed and accused was also without any cloth, who was trying to put his penis inside his anus. When he raised alarm, the accused fled away from the spot.
FIR No.302/2007 State Vs. Mohd. Nazim 9 of 12 PS Sadar Bazar
The accused has tried to commit the aforesaid act 5/ 6 days before the date of alleged incident. However, no PCR call has been made by complainant on the alleged date of incident or prior when the accused attempted the similar nature of offence and threatened to kill the complainant. The complainant directly went to PS on 09.08.2007 for lodging the complaint.
Further, during his cross-examination, he denied that 4/ 5 labours were sleeping in that room on the date of incident and two children, one being elder to him and one younger, were sleeping with him in the small factory room and when he raised alarm, they both woke up but soon after the incident, all three of them again went to sleep. Further, he also deposed that one of his neighbour of village namely Qadar accompanied him to the PS, however, he did not tell Qadar about the present incident.
21. The Investigating Officer during his testimony as PW-12 admitted that he did not record statement of public persons, he interrogated during investigation, as they did not disclose anything against the accused out of fear. It is very surprising that the Investigating Officer has not recorded statement of children, stated to be sleeping with the complainant at the time of incident despite they being important witnesses of res gestae and no notice given to them for joining investigation has been proved on record by the Investigating Officer. Further, it is also surprising that the Investigating Officer has neither recorded the statement of owner of factory where the incident is alleged to have happened nor the statement of 4/ 5 labours stated to be sleeping in the room with the complainant on regular basis or the statement of Qadar stated to have accompanied the complainant to the PS. The Investigating Officer also failed to remember whether the complainant came alone to the PS for lodging complaint or was accompanied by someone.
FIR No.302/2007 State Vs. Mohd. Nazim 10 of 12 PS Sadar Bazar
22. Furthermore, it is the defence of the accused that as the complainant was removed from his services at the factory 2 days prior to the alleged date of incident, he out of personal vengeance and grudge has made the present false complaint against him and on the alleged date of incident or otherwise, he was not sleeping in the room in the factory and used to reside/ sleep alongwith his brother in tenanted premises else where. To prove his defence, the accused got examined two witnesses i.e. DW-1 his real brother Mr. Afroz and DW-2 owner of spot/ factory where the offence is alleged to have occurred namely Mohd. Gulfam. Both the DWs have supported the defence taken by the accused and stated that accused used to sleep with his brother i.e. DW-1 at factory of Allahwala. During cross-examination of complainant, suggestions as to the defence put forth by the accused were put to him, which he denied in general. Hence, the defence taken by the accused has been consistent since beginning of trial which has casted serious doubts upon the story of prosecution.
23. Even the FSL report filed on record admissible under 293 Cr.PC states that on the Exhibits "1, 2, 3a to 3d" semen could not be detected.
24. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
25. In these facts and circumstances, it is held that prosecution has failed to bring home the guilt of accused beyond reasonable doubt as its story is full of contradictions and there has been serious lacunas in the investigation done by the Investigating Officer. Accordingly, accused Mohd. Nazim is acquitted of FIR No.302/2007 State Vs. Mohd. Nazim 11 of 12 PS Sadar Bazar charge u/s. 377 r/w section 511 IPC in the present FIR bearing No.302/2007, PS Sadar Bazar.
SHEFALI Digitally signed by
SHEFALI BARNALA
Announced and dictated in the BARNALA TANDON
Date: 2018.09.27
open Court today i.e. on 25.09.2018 TANDON 17:11:51 +0530
(Shefali Barnala Tandon)
MM-06, Central, Tis Hazari Court
Delhi
All pages are duly signed.
FIR No.302/2007 State Vs. Mohd. Nazim 12 of 12
PS Sadar Bazar