Delhi District Court
State vs Allauddin on 20 August, 2014
1
IN THE COURT OF SH GULSHAN KUMAR
ADDITIONAL SESSIONS JUDGE01 (SOUTH)
SAKET COURTS: NEW DELHI
S.C. No. 76/11
ID No. 0240SRO427912009
State
Vs.
Allauddin
Son of Mohd. Nabi Jaan
R/o Village Madhaypur, PS Kolwahi
District Madhubani (Bihar)
FIR No. 143/09
P.S. Neb Sarai
U/S 376/363 IPC
Date of Institution: 08.09.11
Arguments heard:20.08.14
Date of pronouncement of judgment: 20.08.14
JUDGMENT
1 Brief facts of the present case are that, on receipt of DD No.17A dated 02.07.09 SI Dev Karan alongwith constable N.P Thankanchan reached at B106, Shiv Park, Khanpur, Delhi, where they met with victim girl, who has stated that wrong act was done with her at Saket. The victim girl stated that she can tell the place of occurrence. Accordingly, SI Dev Karan, constable N.P Thankanchan and one Kabir, son of Mohd. Khalid, R/o B66A, Khanpur, the victim girl and one Shaifali Begum reached the spot behind Max Hospital . The victim girl was got medically examined at AIIMS. I.O recorded the statement of father of victim girl and prepared the Rukka and got the FIR lodged through Constable N.P Thankanchan. IO seized the skirt and blood stained clothes of the victim girl. IO got the statement of victim girl U/S 164 Cr.P.C recorded. Accused was arrested. During the investigation the statements of witnesses were recorded. After Sessions Case No. 76/11 State V. Allauddin Page1/15 2 completion of investigation chargesheet has been filed. 2 A charge has been framed against accused in respect of offence U/S 366(A)/376(1)(f) IPC with the allegations that on 02.07.09 at 12.30 PM from house no.B 106, Shiva Park, Khanpur, Delhi, he kidnapped a minor girl Shivani, aged about nine years from the guardianship of her parents with such intention and knowledge that the victim may be subjected to the illicit intercourse with some person and he has also committed rape upon her. Accused pleaded not guilty to said charge and claimed trial. 3 To substantiate its allegations, prosecution has examined PW1 Lady Constable Santosh, PW2 HC Ramphal, PW3 Surender Singh, PW4 Constable Datta Darade, PW5 Constable N.P Thankarchan, PW6 Dr. Reeta Mahey, PW7 Kabir, PW8 Malika Begam, PW9 Sanjeev Kumar, PW10 Shivani, PW11 Dharampal, PW12 Ct. Jaswant, PW13 SI Dev Karan, PW14 Constable Suresh Chand, PW15 W.ASI Saroj, and PW16 Dr. Sudipta Ranjan Singh.
4 PW1 Lady constable Santosh is a formal witness. She has deposed that on the intervening night of 2/3790, she took prosecutrix to AIIMS hospital for her medical examination on the directions of IO. Medical exhibits of the prosecutrix goven to her by the doctor were handed over to the IO vide memo Ex.PW1/A. 5 PW2 Head Constable Ramphal is a formal witness, who has proved the FIR Ex.PW2/A. 6 PW3 Surender Singh has deposed that on 02.07.09, he was present in his house. One Khalik, a contractor of Kabari resides at B106, Shiv Park. On that day, wife of one Khalik, had come to him and told that the blood was oozing towards the foot from the daughter of one Dharampal residing in his plot. He had gone there at B106, Shiv Park, where a large number of people were present. He had seen that victim girl having blood in the foot as well as on her cloth. He had informed the police by dialing 100 number.
Sessions Case No. 76/11 State V. Allauddin Page2/15 3In crossexamination, PW3 has stated that he came to know about the incident at about 2.00 PM. The House No.B106, is situated at a distance of about 100/150 yards.
7 PW4 Ct. Datta Darade has deposed that on 07.07.09, he had joined the investigation in the present case alongwith W.ASI Saroj. He alongwith prosecutrix, her parents and IO went to the Patiala House court, where Ld. M.M. Had recorded the statement of the prosecutrix. Thereafter, they went alongwith the prosecutrix to the house of the prosecutrix. IO asked about the prosecutrix as to which and where is the boy, who committed the wrong with her. The prosecutrix had pointed out a person named Allauddin at BBlock near his house stating that this the boy, who had committed the wrong with her on Friday. He apprehended the accused. IO had arrested the accused and prepared documents i.e arrest memo, personal search memo as well as disclosure statement. 8 PW5 Constable N.P Thankarchan has deposed that on 02.07.09, he was on emergency duty alongwith SI Dev Karan. He was told by SI Dev Karan that he had received a call about a rape committed with a girl. He alongwith SI Dev Karan had reached at the spot and found prosecutrix, aged about 9 years and a large number of crowd. Prosecutrix had taken them to Saket Drain behind Max Hospital. SHO was already present there alongwith other staff. Prosecutrix had shown them the place where the rape was committed with her. IO prepared the Rukka and gave to constable N.P. Thankarchan. He got the case registered.
In crossexamination, PW5 has deposed that nothing was found at the place of incident. No blood mark was there.
9 PW6 Dr. Reeta Mahey has deposed that on 02.07.09, she examined the patient i.e prosecutrix. The patient was bleeding profusely since 12.30 PM. On examination, she found that she(Prosecutrix) was bleeding and there were 2x3 cm vulval Sessions Case No. 76/11 State V. Allauddin Page3/15 4 hematoma and there was 2x1 cm tear in the right vulva, which was bleeding. Hymen was ruptured. There was no bleeding coming from the vagina. Vaginal smear and under garments were taken and sent for testing. She has prepared the detailed MLC Ex.PW6/A. 10 PW7 Kabir has deposed that on 02.07.09 he was present at his junk shop at B107, Shiv Park, Khanpur, Delhi. In the afternoon, he saw a crowd at B106 where several jhuggies were built. He saw the prosecutrix was bleeding and the blood was lying on her leg. Local police came.
11 PW8 Malika Begam has deposed that on 02.07.09 she was present at his house and was doing house hold work. At that time, a girl named Khushi came to her and informed that prosecutrix is bleeding. She called one Surender, who was at work at nearby place. Surender called the police.
12 PW9 Sanjeev Kumar, Ld. M.M. has deposed that he has recorded the statement of prosecutrix U/S 164 Cr.P.C. He has proved the statement U/S 164 Cr.P.C Ex.PW9/4. The application for recording statement is Ex.P1. Copy of statement was supplied to the IO on his application Ex.P2.
13 PW10 Prosecutrix is the star witness of the case. She has deposed that accused Allauddin called her on the pretext of giving her empty half and quarter bottles. He took her to his house "Wahan par isne mera balatakar kiya, balatkar se mera matlab hai ganda kaam", where he committed rape upon her after removing his clothes and her clothes. After doing galat kaaam, he sent her out of his house. One Kabir uncle reached there, who took her to PS and thereafter she was medically examined. Her mother also reached at PS. Later on her statement was also recorded in the court, which Ex.PW9/A. In Crossexamination, Prosecutrix has deposed that she knew accused Allauddin as he was residing in the neighbourhood. She went at the spot to collect the empty quarter and half bottles. She has further deposed that her father had not tutored her Sessions Case No. 76/11 State V. Allauddin Page4/15 5 even when her statement was recorded earlier in the court. She has denied the suggestion that she was deposing falsely at the instance of her father. 14 PW11 Dharampal is the father of the prosecutrix, who has deposed that he received a call from one Kabir on the day of incident. Kabir told her that some incident had taken place with her daughter. He reached there, where her daughter was present. His wife accompanied her to the PS. Prosecutrix was got medically examined. He has proved his statement recorded by the police Ex.PW11/A. He has also handedover the clothes of his daughter vide Ex.PW11/B. Accused was arrested in his presence vide arrest memo Ex.PW11/C and his personal search memo is Ex.PW11/D. He has identified the clothes of the prosecutrix, which are Ex.P1, P2 and P3.
In crossexamination, PW11 has deposed that they remained at the hospital throughout the night. His daughter was discharged from the hospital after two days. His daughter told him about the incident in the morning in the hospital. He has denied that any quarrel took place over water with the father of the accused. 15 PW12 Constable Jaswant has deposed that on 08.07.09, he took accused Allauddin to AIIMS Hospital, where he got medically examined him. His medical exhibits were given to him by the doctor in a sealed condition, which were handed over by him to the prosecution vide memo Ex.PW12/A. 16 PW13 SI Dev Karan has deposed that on 02.07.09 upon receiving DD No.17, he reached at B106, Shiv Park, where he came to know that a girl was raped. He took the victim to the hospital alongwith lady constable and her parents, where she was medically examined and she was also admitted. Prosecutrix was not fit for the statement. He recorded the statement of her father Dharampal, which is Ex.PW11/A, prepared rukka Ex.PW13/A and got the FIR registered through constable N.K Thankanchan. After registration of FIR, investigation of the case was taken up by SI Saroj. SI Saroj seized the Sessions Case No. 76/11 State V. Allauddin Page5/15 6 clothes of the prosecutrix vide Ex.PW11/B in his presence. He has also seized the sample seal alongwith sealed clothes and other exhibits of the prosecutrix vide memo Ex.PW1/A prior to handing over the investigation to SI Saroj.
17 PW14 Constable Suresh Chand has deposed that on 29.07.09, he took the case property from MHC(M) as per directions of IO of this case and deposited the same with the FSL, Rohini.
18 PW15 W.ASI Saroj has deposed that he has received the investigation of this case on 03.07.09. Prosecutrix was not fit for statement as she was in ICU. She was discharged on 06.07.09, when she recorded her statement. She prepaed the site plan Ex.PW15/A and collected the medical exhibits of the prosecutrix on 03.07.09 vide memo Ex.PW11/B. She also got the statement of prosecutrix recorded u/s 164 Cr.P.C and arrested the accused on the same day vide arrest memo Ex.PW11/C and his personal search memo Ex.PW11/D was also prepared. She has also recorded the disclosure statement of accused vide memo Ex.PW15/B and got him medically examined. He has also seized medical exhibits vide memo Ex.PW12/A. MLC of accused was collected vide memo Ex.PW15/C. She has also proved the FSL report Ex.PW15/D and Ex.PW15/E. In crossexamination, PW15 has deposed that she recorded the statements of Surender, Shaifali and Kabir at the spot. She has denied that accused was arrested from his factory and after watching the film at Civil Cinema, Badarpur Border. She has denied that accused was falsely implicated in the present case at the instance of parents of prosecutrix.
19 PW16 Dr. Sudipta Ranjan Singh has proved the MLC Ex.PW15/C, which bears the signatures of Dr. Manish Goyal . He has also proved the opinion given by Dr. Manish Goyal that "there was found nothing to suggest that accused is incapable of performing sexual intercourse in ordinary circumstances."
Sessions Case No. 76/11 State V. Allauddin Page6/15 720 After examination of prosecution witnesses, accused has been examined U/S 313 Cr.P.C. He has denied the allegations of prosecution and has stated that he is innocent and falsely implicated in this case. He has further stated that on the day of incident he was not present at the spot and watching a moving namely New York at Civil Cinema, Badarpur alongwith his friend namely, Aftab from 12.00 noon to 3.00 PM. Thereafter, they returned to factory. He was lifted from the factory situated at Khanpur on the next day by the police. He was intentionally implicated in the present case by the father of the prosecutrix due to previous enmity with his father. 21 In his defence, accused has examined two witnesses. They are Smt. Khursheeda Begam (DW1) and Sh. Abdul Khalid (DW2).
22 DW1 Smt. Khursheeda Begam has deposed that on the day of incident, she saw prosecutrix was bleeding from her legs. She asked her about the same to which her younger sister replied that one dog had bitten her. Thereafter, she called her maternal aunt (mami) namely, Malika Begam. Many people gathered there. Husband of Malika Begam called the police at 100 number.
In crossexamination by ld. Chief Prosecutor, she has stated that she did not notice any dog bite mark on the body of injured prosecutrix. She also did not see herself any dog biting on prosecutrix. She has further stated that she has taken to the court by the brother of accused, whose name she does not know. She has denied that no dog bite was ever caused to prosecutrix and this concocted story has been built up by her in connivance with brother of accused in order to save the accused as she knew that he committed rape upon prosecutrix and the injuries were caused at the private part of prosecutrix. 23 DW2 Abdul Khalid has deposed that his son namely Mohd. Kabir was made a witness in this case by the police. Nothing had happened there. He never seen accused Allauddin coming at House No.B106. Mother of the prosecutrix had quarrel with the Sessions Case No. 76/11 State V. Allauddin Page7/15 8 brother of Allauddin regarding water 23 days before the date of incident.
In crossexamination by ld. Chief Prosecutor, he has admitted that he cannot say Kabir has stated truthfully or falsely in the court. He had not visited any police official with regard to this case and did not make any written representation to anybody. He has denied that he is deposing falsely in order to save the accused Allauddin, as he is closed to his father.
24 I have heard arguments from ld. Chief Prosecutor and Ld. counsel for accused. I have also perused the case file.
25 Ld. counsel for accused has argued that accused has been falsely implicated in the present case. Charge U/S 376 IPC against accused has not been proved beyond reasonable doubt. Mere fact that prosecutrix has stated that she has been raped by the accused is not sufficient to establish that rape was committed upon the prosecutrix by accused. Accused has been falsely implicated in the present case as there was a quarrel over water between the father of prosecutrix and father of the accused. 26 On the other hand, ld. Chief Prosecutor has argued that prosecution has proved its case against accused beyond reasonable doubt. Accused has committed rape upon prosecutrix. The testimony of witnesses is consistent and there is no discrepancy in their statements.
27 I have considered the submissions of both parties and have perused the record carefully.
28 Rape has been defined U/S 375 of Indian Penal Code. Punishment of rape has been laid down U/S 376 IPC. A man is stated to have committed rape, except the case as mentioned in Section 375, as sexual intercourse with a woman under the circumstances falling under any of the six descriptions mentioned therein. To prove the act of rape, four ingredients are essential namely:
Sessions Case No. 76/11 State V. Allauddin Page8/15 91 Act of sexual intercourse with a woman in question; 2 Act was done in the circumstances falling under any of the five descriptions specified in Section 375 IPC;
3 That such a woman was not the wife of accused or if she was his wife, she was under 15 years of age; and 4 There was penetration.
In State V. Asha Ram, 2006 Crl. L.J. 139, it has been held that "it is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
In Bharwada Bhoginbhai Hirjibhai V. State of Gujarat, AIR 1983 SC 753 it has been observed that " in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? It was further pointed out that on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexoffence is entitled to great weight, absence of corroboration notwithstanding. The aforesaid observation was made by this Court because of the following factors: (1) A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any Sessions Case No. 76/11 State V. Allauddin Page9/15 10 incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or as acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society whereby and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands' family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the crossexamination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent."
29 Prosecutrix(PW10) has categorically stated that she was raped by accused Allauddin. She has been crossexamined at length by ld. counsel for accused. Ld. counsel for accused has failed to pin point any discrepancy in the statement of prosecutrix. Prosecutrix has stated that accused has committed rape upon her after removing his clothes and her clothes. She has also explained "wahan par isne mera balatakar kiya, balatkar se mera matlab hai ganda kaam". Her statement is corroborated by the medical evidence. PW3 Surender Singh, PW7 Kabir, PW8 Malika Begam has supported Sessions Case No. 76/11 State V. Allauddin Page10/15 11 the version of the prosecutrix. They have categorically stated that prosecutrix was bleeding profusely on 02.07.09.
30 Accused has examined DW1 Smt. Khursheeda Begam and DW2 Sh. Abdul Khalid in his defence. DW1 Smt. Khursheeda Begam has stated that on the day of incident, she saw prosecutrix was bleeding from her legs. When she asked about the same, prosecutrix's younger sister replied that one dog had bitten her. In cross examination by ld. Chief Prosecutor, she stated that she did not see herself any dog bitting on prosecutrix. DW2 Abdul Khalid has only stated that nothing had happened on the day of incident. Both witnesses are not reliable. As per the medical evidence there is no dog bitting on the legs of the prosecutrix. Moreover, accused has not taken this defence in his statement U/S 313 Cr.P.C or in the crossexamination of prosecution witnesses. 31 It is now a well settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. A plethora of decisions by Hon'ble Supreme Court would show that once the statement of prosecutrix inspires confidence and is accepted by the court and such conviction can be based only on the solitary evidence of prosecutrix and no corroboration would be required unless there are compelling reasons which necessitates the courts for corroboration of her statement. Corroboration of testimony of prosecutrix as a condition for judicial reliance is not a requirement of law but guidance of prudence under given facts and circumstances. 32 The testimony of the witnesses is consistent and there is not discrepancy in their statements. The testimony of witnesses are reliable, trustworthy and inspire confidence. There is no reason to disbelive the statement of prosecution witnesses. 33 In view of above discussion, I am of the considered view that prosecution has proved its case beyond reasonable doubt against accused Allauddin U/S 366(A)/376(1)(f) IPC. Accordingly, accused Allauddin is convicted for the offence U/S U/S 366(A)/376(1)(f) Sessions Case No. 76/11 State V. Allauddin Page11/15 12 IPC.
34 Put up for arguments on the point of sentence on 29.08.14.
Announced in the open court today
i.e on 20.08.14 (Gulshan Kumar)
Additional Sessions Judge01(South)
Saket Courts, New Delhi
Sessions Case No. 76/11 State V. Allauddin Page12/15
13
IN THE COURT OF SH. GULSHAN KUMAR
ADDITIONAL SESSIONS JUDGE 01 (SOUTH)
SAKET COURTS : NEW DELHI
S.C. No. 76/11
ID No. 0240SRO427912009
State
Vs.
Allauddin
Son of Mohd. Nabi Jaan
R/o Village Madhaypur, PS Kolwahi
District Madhubani (Bihar)
FIR No. 143/09
P.S. Neb Sarai
U/S 376/363 IPC
Arguments on sentence heard : 02.09.14
Order on sentence announced: 02.09.14
ORDER ON SENTENCE
In the present case, accused Allauddin has been convicted for the offences U/S 366(A)/376(1)(f) IPC vide my separate judgment dated 20.08.14. 2 I have heard arguments on the point of sentence from ld. counsel Sh. Santosh Kumar Pandey for convict and Ld. Chief Prosecutor for State. 3 Ld. counsel for convict has prayed for a lenient view by submitting that accused/convict is a poor man. His parents are old aged. There is no one to look after his parents. His mother is suffering from paralysis. He is the only earning member in his family.
Sessions Case No. 76/11 State V. Allauddin Page13/15 144 On the other hand, ld. Chief Prosecutor for State has prayed for imposition of maximum punishment upon the convict for the proved commission of offences. He has further submitted that convict has committed rape upon a minor girl of eight years old. The act of convict is brutal. Accused be sentenced to life imprisonment.
5 I have considered the submissions of both parties and have perused the file.
6 "In the recent past, Delhithe Capital City of our Country has witnessed unprecedented protests by common man and there was public outcry to make the city safe for women who have been guarnteed equal rights to live with dignity. Delhi was referred to as 'Rape Capital' by every newspaper highlighting instances and plight of rape victims. People from all strata of society came on the street with the demand of 'Death Penalty for Rapists'. Aim was to provide speedy justice and also send a strong message to the offenders as well to the potential offenders that legal system is capable of tackling the problem and punishing the guilty without any delay thereby providing some solace to the victims of sexual assault that the guilty has been punished as per procedure established by law.
A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had even occurred. She would be conscious of the danger of being ostracised by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated.
Sessions Case No. 76/11 State V. Allauddin Page14/15 157 In the present case, accused has been convicted for the offences 366(A)/376(1)(f) IPC. Accordingly, accused/convict Allauddin is sentenced to rigorous imprisonment for a period of ten years and a fine of Rs. 10,000/ in respect of offence U/S 366A IPC. In default of payment of fine, convict will suffer simple imprisonment for three months. Convict is also sentenced to rigorous imprisonment for a period of ten years and a fine of Rs. 10,000/ in respect of offence U/S376(1)(f). In default of payment of fine, convict will suffer simple imprisonment for three months.
8 It is ordered that substantive sentences of imprisonment will run concurrently.
9 Accused/convict will get the benefit of Section 428 Cr.P.C. 10 A copy of this order be given to the convict free of costs. 11 File be consigned to Record Room.
Announced in the open court today
on 02.09.14 (Gulshan Kumar)
Addl.Sessions Judge01(South)
Saket Court, New Delhi
Sessions Case No. 76/11 State V. Allauddin Page15/15