Delhi District Court
State vs . (1) Rajuddin on 15 July, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01,SOUTH,
PATIALA HOUSE COURTS,NEW DELHI
SESSIONS CASE NO. 141/08
CASE ID: 02403R0979552008
State Vs. (1) Rajuddin
S/o Tajuddin
R/o B-23, Shaheen Bagh,
New Delhi.
(2) Gulfam
S/o Mohd. Farukh
R/o B-97, Shaheen Bagh,
New Delhi.
(Facing proceedings before
Juvenile Justice Board)
FIR No. 158/06
Police Station Sarita Vihar
Under Sections 376/120B/34 IPC
Date of Institution of the case
in Sessions Court : 04/07/2006
Date of Institution of the case
in this Court : 16/10/2008
Date on which order was reserved : 06/07/2010
Date of Decision : 14/07/2010
SC No. 141/08 Page1/19
JUDGMENT
The SHO of police station Sarita Vihar has challaned the accused to face trial for the offences under Sections 376/120B/34 IPC. After supplying copies of documents and compliance of provisions of under Section 207 Cr.PC case is committed by learned Metropolitan Magistrate to the Court of Sessions under Section 209 Cr.PC. Keeping in view the provisions of Section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 Cri.L.J. 2913 the name of prosecutrix is being not given in the judgment.
BRIEF FACTS OF THE CASE The prosecution case in brief is that on 29/03/06 on receipt of DD No. 12, PP Shaheen Bagh, SI Manohar Lal alongwith Ct. Krishan Pal Singh went to the spot at B-23, Shaheen Bagh, New Delhi. There he found prosecutrix lying unconscious and her mother Munni was also present. He recorded statement of the prosecutrix who has stated in brief that she used to do the work of stitching the clothes. On that day i.e. 29/03/06, at about 2 PM she was at her house when a boy came to her and called her for the work by sewing cloth piece and she went with him at B-23, Shaheen Bagh where the pieces of clothes are made. The said boy Gulfam resides at B-97, Shaheen Bagh and she knew him for the last several days. When Gulfam met her in the room SC No. 141/08 Page2/19 the light was switched off. Gulfam switched on the light and caught hold of her. She raised hue and cry and tried to ran away but he closed her mouth with his hand and made her to lay down on the floor and then committed rape upon her. Thereafter he gave her a glass of water and when she tried to run away by crying, another person named Rajuddin S/o Tajuddin R/o B-23, Shaheen Bagh tried to prevent her from going outside and abused her. She became unconscious and thereafter she found herself in hospital. The prosecutrix has also stated that these persons with the bad intention had possibly committed rape upon her. The statement of the prosecutrix under Section 164 CrPC was recorded. The Investigating Officer made endorsement on the statement of prosecutrix and sent the rukka to the Police Station through Ct. Krishan Pal Singh for registration of the case. On the pointing our of the prosecutrix FIR was registered and charge sheet was prepared. The statement of witnesses under Section 161 CrPC were recorded and medical examination of prosecutrix was got done. As per order of the senior officers further investigation was done by W/ASI Adrina who arrested accused Rajuddin and got conducted his medical examination. The exhibits were sent for examination to FSL, Rohini but the result was awaited at the time of preparation of challan. The accused Mohd. Gulfam was a juvenile so the challan against him was submitted to Juvenile Justice Board and accused Rajuddin was challaned before the learned Metropolitan Magistrate to face trial SC No. 141/08 Page3/19 before learned Sessions Court.
CHARGE AND PLEA OF THE ACCUSED Prima facie case for the offence under Section 376/109 IPC was found made out against the accused and the charge under Section 376/109 IPC was framed accordingly, by the court on 01/08/2006, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
In support of its case, prosecution has examined 13 witnesses in all and the gist of their statements is mentioned as under:
PW1 is ASI Sumer Singh who was working as Duty Officer on 29/03/2006 in the Police Station concerned and has proved the copy of the FIR recorded by him as Ex.PW1/A. PW2 is Dr. Pooja, the Radiologist who got conducted X-ray of the prosecutrix and gave her detailed report as Ex.PW2/A stating that the bone age of the prosecutrix was between 10 to 13 years.
PW3 is the prosecutrix herself who has stated in brief that accused Gulfam (Juvenile) and Rajuddin then present in the court caught hold of her in the room and she was forcibly made to drink water by both of them. Both the accused persons laid her on the floor. Accused Gulfam (Juvenile) committed rape with her. Thereafter she lost her consciousness. When she regained her consciousness she SC No. 141/08 Page4/19 found herself in the hospital. She lodged police report Ex.PW3/A and identified her salwar as Ex.PW3/1.
PW4 is Rashid who is a hostile witness but in the cross examination conducted by learned Additional Public Prosecutor, he admitted that his father had taken one room on rent in house No. D 23, Shaheen Bagh and accused Rajuddin was its landlord. He also admitted that on 29/03/06 his father had gone to the house of some of his relatives and he was alone present in the abovesaid room. He also admitted that Gulfam also used to do embroidery work there. He, however, denied that police had recorded his statement Ex.PW4/A. PW5 is Ct. Kishan Pal Singh who has stated that on 29/03/06 he was posted as Constable at PP Shaheen Bagh. He alongwith SI Manohar Lal Meena on receipt of DD No. 12 reached at B-23, Shaheen Bagh where a girl was found in unconscious state. He alongwith Investigating Officer and PCR officials took the prosecutrix to AIIMS Hospital alongwith her mother. Prosecutrix was got admitted there. SI Manoar Lal moved an application to doctor for seeking permission to record the statement of prosecutrix. HC Jogender was also with them and he was busy in getting prosecutrix medically examined. After medical examination of the prosecutrix the doctor had given to him sealed parcels containing salwar of prosecutrix, sample seal and one slide. The same were seized by Investigating Officer vide memo Ex.PW5/A. Thereafter prosecutrix SC No. 141/08 Page5/19 and her mother were taken to police post. IO recorded statement of the prosecutrix as Ex.PW3/A and he made his endorsement on the said statement for registration of FIR. He took rukka to PS for registration of FIR. He got the FIR Ex.PW1/A registered and reached back with copy of FIR and rukkka to the spot which were given to IO. He joined the investigation of this case after registration of this case.
PW6 is Dr. B. L. Chowdhary who has medically examined accused Rajuddin and has given the opinion that on physical examination of Rajuddim there was nothing to suggest that he was incapable to perform sexual intercourse in normal circumstances.
PW7 is Ct. Subey Singh who has stated that on 30.03.06, he was posted as constable in PS Sarita Vihar. On that day he alongwith Ct. Satbir Singh were on patrolling duty in the area of poliec station and they were present in B-Block, Shaheen Bagh, at the same time women ASI Adrina met them and she joined them in the investigation. They reached H. No. 97, Shaheen Bagh and W/ASI Adrina had arrested accused Mohd. Gulfam (Juvenile) and the information about his arrest was given to his father Mohd. Farooq. Arrest memo was prepared and personal search of accused Mohd. Gulfam was conducted vide personal search memo. Thereafter they alongwith accused Mohd. Gulfam reached H.o. B-97, Shaheen Bagh and at the instance of Mohd. Gulfam accused Rajuddin then present in the court was arrested and documents regarding his arrest was prepared. Then they had taken SC No. 141/08 Page6/19 both the accused persons to AIIMS Hospital for their medical examination. Investigating Officer had moved an application to doctor for medical examination of those persons. Accused persons were got medically examined. The doctor had preserved the exhibits in respect of accused persons and the same were seized by Investigating Officer. Investigating Officer has produced both the accused persons before the learned Metropolitan Magistrate in Patiala House and the learned Metropolitan Magistrate directed to produce accused Gulfam before Juvenile Justice Board as he was juvenile.
PW8 is Ct. Satbir Singh. He corroborated with the statement of PW7 Ct. Subey Singh and has stated that on 30/03/06 when they reached in front of H. No. B-97, Shaheen Bagh, W/ASI Adrina met with them who had given the notice to father of the accused Gulfam for his arrest. His father produced Gulfam who was arrested in this case and accused Gulfam took them to the House No. B-23, Shaheen Bagh and gave the notice to the father of Rajuddin who produced Rajuddin and he was arrested vide memo Ex.PW8/A. His personal search was conducted . Thereafter both the accused were take to hospital for medical examination. After the medical examination of Rajuddin the doctor had given sealed pulanda which he gave to IO whe seized the same vide memo Ex.PW8/B. Witness identified accused Rajuddin then present in the Court and stated that accused Gulfam facing trial before juvenile court.SC No. 141/08 Page7/19
PW9 is ASI Adreena. He has stated that on 30.3.06 he was called in police post Shaheen Bagh police station Sarita Vihar and investigation of this case was handed over to him. On that day, he alongwith Satyabir and Ct Subey Singh went to Shaheen Bagh, B 97 at the address of accused Gulfam ( juvenile ). Accused Gulfam was arrested. He was interrogated. Thereafter he had gone to house no. B 23 Shaheen Bagh and on the pointing out of accused Gulfam accused Riajuddin who was then present in the court and was arrested vide his arrest memo Ex PW8/A, his personal search memo is Ex PW9/A. Both the accused were taken to hospital for their medical examination and got conducted their medical. After medical examination doctor on duty handed over to him sealed pulandas containing underwear, penial swab and blood sample which were taken into possession vide memo Ex PW8/B. He deposited the pulanda in malkhana. He prepared site plan Ex.PW9/B. He recorded the statements of witnesses. Thereafter, investigation was transferred.
PW10 is Irfan Ali. He has stated that on 29/03/06, he was working at the place near J-74, Abu Fazal Enclave and at about 2.30 or 3 PM he was standing at the bus stop of thokar No. 8 he was having the mobile phone. He received the information that at B-150, Thokar No. 8 Sahin Bagh, Okhla some mishappening had occurred with prosecutrix and upon this information he conveyed the message on number 100.
SC No. 141/08 Page8/19PW11 is Smt. Munni Begum, mother of the prosecutrix. She has stated that on 29/03/06, she was residing at B-50, Shahin Bagh. Prosecutrix is her daughter. She was residing with her. On that day, her daughter went near her house for doing some embroidery work. After receiving the information regarding some mishappening she went to that house which was B-23, Shahin Bagh. Police also arrived there. Her daughter was got medically examined at AIIMS. They came to PS where statement of her daughter was recorded and IO prepared site plan of the place of occurrence.
PW12 is Const Mukesh. He has stated that on 29/3/06 he was posted at police post Shahin Bagh and on that day an information was received at about 3.35 PM regarding kidnapping of the prosecutrix, B 150, Thokar No.8 Shahin Bagh Okhla. This information was lodged vide DD No 12 mark A. The original of which has been destroyed during the riot in the year 2007.
PW13 is Head Constable Jugendra Singh. He has stated that on 29/3/06 he was posted at police station Sarita Vihar PP Shahin Bagh, when he along with SI Manohar Lal, Ct Kishan Pal reached, B 23 Shahin Bagh upon receiving DD No. 12. PCR vehicle was present there. Victim along with her mother were sent to AIIMS Hospital for the medical examination of the victim. After her examination he collected MLC etc. and handed over the same to the IO at PP where her statement was also recorded.
SC No. 141/08 Page9/19PLEA AND DEFENCE OF THE ACCUSED In the statement under section 313 CrPC the accused Rajuddin has either denied the incriminating evidence emerging from prosecution case and put to him or has expressed his ignorance about the same. Accused has stated that it is false and fabricated story by the prosecution at the instance of complainant. Prosecution witnesses deposed falsely and are interested witnesses and police officials also deposed falsely to prove this false case against accused. Accused further stated that he is innocent and has been falsely implicated in this case by the prosecution at the instance of complainant because he was present at the time of incident in first floor of the building being a owner of the premises in question. He saw the prosecutrix with the accused Gulfam in a compromise condition and he started rebuking them and told the prosecutrix that he will inform the matter to their parents. That is why prosecutrix falsely implicated him in this case. ARGUMENTS AND FINDINGS Ld Addl PP has argued that charge under Sections 376/109IPC is proved against the accused as he is owner of the premises in which the rape was committed by co- accused Gulfam and co-accused is being tried before Juvenile Justice Board, therefore accused is liable to be convicted for the charge, more so, when the prosecutrix has supported the prosecution case and has stated that both the accused laid her down on the floor and committed rape.
SC No. 141/08 Page10/19ld. counsel for the accused, on the other hand has argued that the charges are not proved against the accused. It is argued that the co accused Gulfam who is facing proceedings before Juvenile Justice Board as per FIR has committed rape on the prosecutrix and not accused Rajuddin. It is argued that prosecutrix has made improvement in her statement so her statement should not be believed and the accused came there after commission of the rape by co accused Gulfam so he is entitled to be acquitted.
I have heard the ld Additional Public Prosecutor for State and learned counsel for the accused and have gone through the relevant provisions of law.
In this case, prosecutrix PW3 has stated in her examination in chief that accused Gulfam( Juvenile) and accused Rajuddin caught hold of her in the room and she was forcibly made to drink water by both of them. She felt little bit intoxicated and accused Gulfam removed her clothes. Both accused laid her on the floor, accused Gulfam committed rape with her. But in her subsequent statement made in examination in chief, she stated that both the accused committed rape on her. She has also stated that at the time of committing rape by Gulfam on her, accused Rajuddin was also present and thereafter she lost consciousness.
In the above statement of the prosecutrix she made several improvements in her statement, which led to lodging of the FIR in SC No. 141/08 Page11/19 this case. In the statement Ex. PW 3/A the prosecutrix has stated that accused Gulfam switched off the light and when she tried to run away by crying, accused Gulfam closed her mouth with one hand and laid her down on the floor and then committed rape on her. He also gave her glass of water and when she tried to run away by crying one Rajuddin son of Tajuddin came there and stopped her from going and abused her, then she became unconscious. In the statement Ex. PW 3/A or the FIR the prosecutrix has not alleged that accused Rajuddin has committed rape on her.
In the cross examination of the prosecutirx, she has admitted that accused Gulfam committed rape on her while putting her on the floor of the room. She also stated before police that accused Gulfam switched on the light and caught hold of her, when she cried and tried to run away he put one hand on her mouth and shut the same. He put her on the floor and committed rape with her and he had given a glass of water. She also admitted that she stated in the statement Ex. PW 3/A that accused Rajuddin stopped her from going outside and also abused her and then she lost her consciousness. However, she denied the suggestion that she stated before police after commission of rape when she tried to run while crying then accused Rajuddin came there. She was confronted with statement Ex. PW 3/A where it was so recorded. Therefore, the statement of the prosecutrix on oath in the examination in chief that she has made improvements SC No. 141/08 Page12/19 from her earlier statement Ex. PW 3/A. At the cost of repetition it is emphasis that in the earlier statement Ex. PW 3/A she alleged about commission of rape by co accused Gulfam and has stated that accused Rajuddin came afterwards. But in the statement made before the Court she has alleged commission of rape by accused Rajuddin also. This imprisonment, in my view should not be believed nor it is police case nor any charge framed that accused Rajuddin committed rape on the prosecutrix.
As regard charge of abetment of commission of rape framed against the accused Rajuddin, the prosecution relied heavily on the statement of one PW4 Rashid to show that accused Rajuddin sent him to call the prosecutrix and when the prosecutrix reached in the room then co-accused Gulfam( Juvenile) committed rape on her. But this witness PW4 Rashid is hostile witness Although he has admitted in the cross examination that Rajuddin is the landlord and his father had taken one room on rent in house no. 23, Shaheen Bagh and his father was doing the work of embroidery and co-accused Gulfam used to work with his father, but he has denied the suggestion that accused Rajuddin told him to call the prosecutrix who used to take clothes for embroidery from them and she was going to take his lunch at about 2 PM. He also denied the suggestion that he called the prosecutrix and left her with Rajuddin. Therefore, prosecution has failed to prove that accused Rajuddin instigated or facilitated for SC No. 141/08 Page13/19 commission of rape by accused Gulfam upon the prosecutrix or entered into any conspiracy in this regard. Hence, the charge under Section 376 IPC read with Section 109 IPC regarding abetment by accused Rajuddin of commission of rape by co accused Gulfam is not proved against accused Rajuddin beyond reasonable doubt.
However, it is established against accused Rajuddin that though he came afterward but he abused the prosecutrix after she was crying after commission of rape and wanted to run away and stopped her from going outside and then she lost consciousness. This act of the accused Rajuddin is squarely covered under Section 509 IPC as after commission of rape on prosecutrix by co- accused Gulfam( Juvenile) accused Rajuddin stopped her from going outside and also abused her and thereby he intruded upon the privacy of the prosecutrix, instead of helping the prosecutrix after co-accused Gulfam has committed rape on her.
In Ved Parkash versus State, Criminal Appeal No. 439/2008 decided on 24/4/2009 by Division Bench of our Hon'ble High Court the following observations were made:
"Section 218 CrPC 1973 requires framing of a charge for every distinct offence which the accused is charged of Section 221 is an Exception to Section
218. It provides that if a single act or series of acts is of such nature that it is doubtful which of several offences the facts which can be proved will SC No. 141/08 Page14/19 constitute, the charge can be framed for all offences or alternative changes can be framed. At the trial if it is established that the accused has committed an offence, he may be convicted though he may not have been charged with the offence. Section 218 embodies the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. However, it cannot be read pendantically to provide escape route to an accused. Justice Vivian Bose in the judgment reported as AIR 1956 SC 116, Willie ( William) Slaney Vs State of M.P. observed:
"That in judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for,whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself."
The said enunciation of law has stood the ground till date. Section 215 of the Code of Criminal Procedure states that no error either in stating the offence or the particulars required shall be regarded as material unless the accused SC No. 141/08 Page15/19 was misled by the error or defect resulting in a failure of justice".
Further, the offence under Section 509 IPC can be said to be minor offence for the offence for which accused is charged ,i.e., 376 IPC read with Section 109 IPC, therefore, by virtue of sub Section (2) of Section 222 CrPC the accused charged for the offence under Section 376 IPC read with Section 109 IPC can be convicted under Section 509 IPC.
RESULT OF THE CASE In view of the above discussion, I hold that prosecution has failed to prove the charge for the offence under Section 376 IPC read with Section 109 IPC, therefore, accused is acquitted for the Section 376 IPC read with Section 109 IPC. But the prosecution has been able to proved its case against the accused for the offence under Section 509 IPC. Let accused be heard on the point of sentence. Announced in the open court on 14/07/2010 ( S K Sarvaria ) Additional Sessions Judge-01/South Patiala House Courts/New Delhi SC No. 141/08 Page16/19 IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUDGE-01,SOUTH, PATIALA HOUSE COURTS,NEW DELHI SESSIONS CASE NO. 141/08 CASE ID: 02403R0979552008 State Vs. (1) Rajuddin S/o Tajuddin R/o B-23, Shaheen Bagh, New Delhi.
(2) Gulfam S/o Mohd. Farukh R/o B-97, Shaheen Bagh, New Delhi.
(Facing proceedings before
Juvenile Justice Board)
FIR No. 158/06
Police Station Sarita Vihar
Under Sections 376/120B/34 IPC
Date of Institution of the case
in Sessions Court : 04/07/2006
Date of Institution of the case
in this Court : 16/10/2008
Date of Decision : 14/07/2010
Date of order on sentence : 15/07/2010
SC No. 141/08 Page17/19
ORDER ON SENTENCE
By my judgment dated 14.07.2010 accused was convicted for the offence under Section 509 IPC.
Ld. Addl PP for the State has argued that deterrent punishment should be awarded to the convict.
On the other hand, learned Counsel for the accused has submitted that accused belong to a poor family and he is a sole bread earner of his family. So lenient view may be taken in his favour.
I have heard the learned Additional Public Prosecutor for the State, accused persons and have gone through the trial court record and relevant provisions of law.
The nominal roll of the convict was called from Central Jail, Tihar.
Accused Rajuddin remained in custody for 2 years 5 months and 16 days during the investigation and trial of the case.
In view of the above submissions and keeping in view the overall facts and circumstances of the case accused/convict Rajuddin is sentenced under section 509 IPC to undergo Rigorous Imprisonment for one year.
The period of detention already undergone by the convict/accused during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under section 428 Cr.P.C. As the SC No. 141/08 Page18/19 convict Rajuddin has already undergone the detention for more than sentence of imprisonment awarded to him, there is no need for sending him to jail.
Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order of sentence be supplied to convict/accused free of cost. Personal bond and surety bond furnished by accused are cancelled.
File be consigned to record room.
Announced in the
open court on 15/07/2010 (S.K. SARVARIA )
Additional Sessions Judge-01 South
Patiala House Courts/New Delhi
SC No. 141/08 Page19/19