Delhi District Court
State vs . Subhan Ali Etc. on 11 December, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST
TRACK COURT (NORTH): ROHINI: DELHI
Sessions Case No: 58548/16
State
Versus
1. Subhan Ali @ Gangi
S/o. Mohd. Majeed
R/o House No. C2/1268, Sector27,
Rohini, Delhi.
2. Nand Kishor
S/o. Sh. Mahesh Verma
R/o House No. C2/1211, Sector27,
Rohini, Delhi.
FIR No. : 543/15
Police Station : Shahbad Dairy
Under Section : 376D/451/506/34 IPC
Date of Committal to Sessions Court: 17.07.2015
Date on which Judgment reserved : 05.12.2019
Date on which Judgment announced: 11.12.2019
JUDGMENT
1. Both accused have been forwarded to face trial for raping their neighbour.
State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 1 of 18
2. The criminal judicial system came into motion on the statement of the victim to the effect that she had studied upto 10 th class and used to reside in a rented house with her husband and two children. Accused Subhan Ali was her neighbour. On 26.04.2015 at about 3:00 pm, she was tying string of her Salwar after urination when Subhan Ali barged into her house and pushed her on the bed and started saying that she should sleep with him atleast once. He removed his underwear and lied on her and inserted his hand into her Salwar. She threw him aside and started shouting and accused ran away. She concluded the statement saying that accused had attempted to rape her.
In statement U/s 164 Cr.P.C., she named second accused Nand Kishor saying that when accused Subhan Ali attempted to rape her, Nand Kishor was standing guard outside her house.
3. Charge under section 376D and Sec. 506/34 IPC was framed against both the accused persons on 16.02.2016 to which they pleaded not guilty and claimed trial. Additional charge U/s 452 IPC was also framed against accused Subhan Ali.
4. In order to prove the case, the prosecution examined 14 witnesses.
5. As PW1, the prosecutrix deposed all the facts stated by her in complaint Ex.PW1/A, upon which FIR was registered. Additionally, she deposed that accused Subhan Ali inserted his finger State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 2 of 18 in her private part and at that time, accused Nand Kishor was standing near her door. She gave intimation to her husband who made a call at 100 number, but police did not come to the spot. Thereafter, she gave information of the incident at 100 number upon which a lady police official came there and took her to Dr. BSA Hospital where she was medically examined and her statement Ex.PW1/A was recorded by the IO. She returned home at about 5:00
- 6:00 pm with IO and accused was arrested on her identification vide arrest and personal search memos Ex.PW1/B and Ex.PW1/C respectively and thereafter, his disclosure statement was also recorded. She admitted that her statement Ex.PW1/D u/s 164 Cr.P.C. was also recorded.
PW2 Ajit, husband of the prosecutrix, could not recall the date and month, but stated that it was two years ago when he received a call from his wife at about 3:00 pm when he was driving his Champion Auto in Bawana, who told that a person had entered her home and the second accused Nand Kishor was present outside the gate. He asked his wife to inform police on 100 number. Simultaneously, he also gave information to the police.
6. PW13 W/Ct. Mamta deposed that while working on channel no. 123, CPCR PHQ, she received information at about 3.13 pm from mobile no. 7210409915 that a person had forcibly entered in the house of the caller and he was attempting to do 'jabardasti' State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 3 of 18 with her. She filled up PCR FormI Ex.PW13/A and sent the same to the concerned officer.
PW12 ASI Lakhmi Chand was working on channel no. 135, CPCR PHQ on 28.04.2015 when he received information at 3.28 pm from mobile no. 9873402991 to the effect that the caller had given complaint against Nand Kishore one day before and that he again entered in their house and did 'chedchad' with children and children were thrown out of the house. He filled up PCR FormI Ex.PW12/A and sent the same to the concerned officer.
PW5 HC Sunita registered DD No. 25A on 26.04.2015 at 3.29 pm after receipt of information from wireless operator to the effect that a person had entered in the house and he was misbehaving with children.
PW4 SI Puran Chand registered case FIR Ex.PW4/A on 26.04.2015 at 9.05 pm on receipt of rukka from Ct. Krishna sent by ASI Kusum Lata.
7. PW6 Dr. Mradulika Sharma, being S.R. Gynae in BSA hospital, examined victim on 26.04.2015 who was brought there with the history of sexual assault by her neighbour Gargi. She prepared her MLC Ex.PW6/A. PW8 Dr. Rajesh Rajkumar Rajput examined accused Subhan Ali on 26.04.2015 at 12.07 am, found no fresh external injury on his body and prepared MLC Ex.PW8/A. State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 4 of 18 PW7 Dr. Yudhvir Singh identified handwriting and signatures of Dr. Ajay Vijayran on the MLC of accused Subhan Ali. He deposed that the said doctor had left the service of the hospital and his recent whereabouts were not known. He was conversant with his handwriting and signatures as he had worked with him during the course of their employment. He deposed that as per MLC Ex.PW7/A, accused Subhan Ali was brought in the hospital by Ct. Jaswant upon which he was examined by Dr. Ajay Vijayran.
8. PW11 SI Mahesh Kumar deposed that on receipt of DD No. 22A Ex.PW4/A on 26.04.2015, he alongwith Ct. Anil reached the spot i.e. H. No. C2/1856, Sector27, Rohini, Delhi where victim met him. He informed the duty officer for sending a lady official to the spot. He next deposed that W/Ct. Krishna and Ct. Anil took victim to BSA Hospital for medical examination. ASI Kusum Lata also came there and got conducted her medical examination.
PW10 Ct. Krishna deposed that she reached the spot on the asking of duty officer on 26.04.2015 and came across SI Mahesh. She and SI Mahesh Kumar took victim to BSA Hospital where ASI Kusum Lata also joined them and got medical examination of the victim conducted. A lady official from NGO namely Nav Shristi came in the hospital and only thereafter, statement Ex.PW1/A of the victim was recorded upon which endorsement was made by the IO and the same was taken by her to the police station and FIR was got State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 5 of 18 lodged. After registration of FIR, she returned to the spot and handed over documents to the IO. Accused Subhan Ali was arrested in her presence.
PW9 ASI Kiran Pal deposed that accused Nand Kishor was arrested by ASI Kusum Lata in police station itself in her presence vide arrest memo Ex.PW9/A.
9. PW3 Ms. Sunita Antil, TGT Social Science/Admission Incharge in SKV Badli, placed on record the date of birth documents of victim in which it is mentioned that she was born on 01.06.1992.
10. PW14 ASI Kusum Lata deposed that she reached BSA Hospital on 26.04.2015 and met SI Mahesh, Ct. Anil, Ct. Krishna and victim. She obtained MLC of the victim and in the meanwhile, a lady official of NGO reached there who counseled the victim and then she recorded her statement Ex.PW1/A, prepared rukka Ex.PW14/A upon which Ct. Krishna got registered the case FIR and returned to the spot and handed her over copy of FIR. She next deposed that the victim and other staff members reached the spot and prepared site plan Ex.PW14/B at the instance of victim. Then she went towards the house of accused Subhan Ali and arrested him. On her instruction, accused Subhan Ali was got medically examined in BSA hospital by Ct. Jaswant. He was got medically examined next day also through Ct. Jaswant. She further deposed that statement Ex.PW14/C of the victim was got recorded in Rohini Courts. She State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 6 of 18 and HC Kiran Pal were present in police station on 15.05.2015 where accused Nand Kishor came and he was arrested. At last, she filed the chargesheet.
11. On 19.04.2019, both accused persons admitted following statements/documents/proceedings u/s 294 Cr.P.C.: S. Name of the Documents Admitted Denied Exhibits No.
1. FIR No. 543/15 recorded Yes Ex.PX1 & by Duty Officer ASI Ex.PX2 Puran Chand and Certificate U/s 65B Indian Evidence Act issued by him
2. Ms. Rajni Ranga, Ld. Yes Ex.PX3 & MM who conducted the Ex.PX4 proceedings U/s 164 Cr.P.C. & issued Certificate regarding its correctness
12. Under section 313 Cr.P.C., accused Subhan Ali @ Gangi admitted that he was neighbour of the victim. He admitted his arrest also.
Accused Nand Kishor stated that he did not know where the victim used to reside but he knew her husband.
13. Not a single witness was examined in defence.
14. Ld. defence counsel argued that accused Nand Kishor was a mechanic and he had repaired the Champion Auto of the State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 7 of 18 husband of victim for which her husband was to pay Rs. 300/, which he was not paying. One day before the incident, Nand Kishor had visited the house of the victim for that amount and victim and her husband had quarreled with him. Only due to that reason, he has been falsely implicated. He next argued that name of accused Nand Kishor is not mentioned in the complaint. His name figured only in statement u/s 164 Cr.P.C. recorded next day to the effect that he was standing guard at the time of rape. He next argued that in a brief history to the doctor, the victim did not tell that accused Nand Kishor was standing guard at the time of rape.
Regarding accused Subhan Ali @ Gangi, ld. counsel argued that the police was given information of the incident on 100 number twice. The first call was made by victim's husband at 3:13 pm and second call was made by the victim herself at 3:28 pm. In both informations, different facts were stated. He next argued that there are variations in the complaint and statement of the victim u/s 164 Cr.P.C. Next submission is that the victim did not tell the name of the accused to the treating doctor as Subhan Ali. He named a person namely Gargi, which is not the name of Subhan Ali. The victim has made huge improvement by deposing that accused Subhan Ali had inserted finger in her private part.
15. Ld. Additional PP admitted that the name of accused Nand Kishor is not mentioned in the complaint but he was standing State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 8 of 18 guard on the gate of the victim's house when she was raped by accused Subhan Ali. He further admitted that the victim had named only one accused i.e. Gargi before the doctor, who had treated her.
Regarding accused Subhan Ali, he submitted that different versions came in two different PCR Forms as the intimation of the incident was given on 100 number by two different persons. He next submitted that there are minor variations in the complaint and statement of the victim u/s 164 Cr.P.C. which do not go to the root of the case. The victim told the examining doctor that accused Gangi had sexually assaulted her. Gangi is the second name of accused Subhan Ali. Last submission is that Subhan Ali, as deposed by the victim, was under the influence of liquor at the time of the incident and that fact is corroborated by his MLC.
16. Accused Nand Kishor: PW2, husband of the prosecutrix deposed that he used to drive a Champion Auto. He admitted in crossexamination that accused Nand Kishor had repaired his Champion Auto, for which he had to pay him Rs.300/. The repair had taken place about three years ago. He further admitted that there was a quarrel between him and accused Nand Kishor one day before the date of incident.
The victim admitted in cross examination that accused Nand Kishor had repaired Champion vehicle of her husband for which he was demanding Rs.300/. Further admission is that accused State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 9 of 18 Nand Kishor had visited her house on 25.04.2015 to collect Rs.300/. She further admitted that a quarrel had taken place between her husband and accused Nand Kishor in her house on 25.04.2015 for which her husband had gave a complaint against him to PS Shahbad Dairy.
Evidence of PW1 and PW2 proves that there was a quarrel between accused Nand Kishor and husband of the victim one day before the incident as victim's husband was not paying him Rs.300/, which he was demanding for repairing his Champion Auto. So, there was a reason for the victim to implicate accused Nand Kishor falsely.
17. The victim admitted in crossexamination that she did not name Nand Kishor in complaint Ex.PW1/A. Perusal of the complaint also shows that his name is conspicuously missing.
Victim named him first time in the statement u/s 164 Cr.P.C. recorded next day i.e. 27.04.2015 to the effect that when she forced accused Subhan Ali to flee from her house, his friend (Nand Kishor) was standing guard outside her house and he also went away from there. Had accused Nand Kishor been present outside her house, at the time of the rape, she would have definitely stated so in her complaint Ex.PW1/A. Due to inimical relation, she had every reason to name him as accused in her subsequent statement.
State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 10 of 18 When the victim was examined medically on 26.04.2015 at about 7:35 pm, she told the treating doctor, as mentioned in MLC Ex.PW6/A, that her neighbour Gangi tried to harass and assault her sexually, but no intercourse happened. When the PCR van reached the spot after receipt of two informations of the incident, attending official reported back to the Central PCR that the victim's neighbour had done 'chedchad' with her and that person was in inebriated condition. MLC of accused Subhan Ali Ex.PW8/A dated 26.04.2015 timed at 12:06 am, shows BAC as 18 mg i.e. he was drunk. It is pertinent to mention that vide that MLC, accused Subhan Ali was examined within 09 hours of the incident. Statement of the victim to the PCR van officials that her neighbour, who was drunk, had done 'chedchad' with her, also suggests that 'chedchad' was not done by accused Nand Kishor, but by accused Subhan Ali as it was only accused Subhan Ali who was found drunk.
18. The prosecutrix deposed that when she came out, she found Nand Kishor standing near her door. She nowhere deposed that he was standing as guard when she was being raped by Subhan Ali. There is nothing on the file which may suggest that when Subhan Ali entered the house of the victim, then accused Nand Kishor had come with him and stood guard. No witness deposed about the time when Nand Kishor left that place. So, there is no evidence about the time of arrival and leaving of the place by Nand State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 11 of 18 Kishor. In absence of such evidence, it cannot be said that he had come to the place with Subhan Ali and also left with him after standing guard.
19. In view of the above discussion, it is held that prosecution has failed to prove case against accused Nand Kishor.
20. Accused Subhan Ali @ Gangi: Objection of accused Subhan Ali @ Gangi regarding his name as Gangi is baseless. He was arrested on the day of incident itself at 10.30 pm vide arrest memo Ex.PW1/B in which his name is mentioned as Subhan Ali @ Gangi. To the same effect is his personal search memo Ex.PW1/C. He was medically examined in the same night at 12.06 am vide MLC Ex.PW8/A in which his name is mentioned as Subhan Ali @ Gangi. He has been chargesheeted as Subhan Ali @ Gangi. In statement U/s 313 Cr.P.C., his name is mentioned as Subhan Ali @ Gangi. Before raising such objection at the time of final arguments, the accused never took objection that Gangi was not his name. Even the victim had told his name to the treating doctor as Gangi as mentioned in her MLC. In complaint Ex.PW1/A also, the name of the accused is mentioned as Subhan Ali @ Gangi. So, it is held that Subhan Ali and Gangi are the names of one and the same person.
21. It is correct that different informations were given to CPCR PHQ at 3.13 pm and 3.28 pm vide PCR forms Ex.PW13/A State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 12 of 18 and Ex.PW12/A respectively. Information at 3.13 pm was that a person had entered in the house of the caller and he was trying to do 'jabardasti' with the caller. The complaint was classified as the complaint of eve teasing. At 3.28 pm, the information was that the caller had complained against Nand Kishor one day before that day and that he had again entered in the caller's house and was doing 'chedchad' with the children and had thrown children out of the house. That complaint was categorized by CPCR as miscellaneous complaint. But it should be taken into mind that victim and her husband had separately given complaint on 100 number separately. After the incident, the victim told her husband about the incident, who gave information on 100 number. Simultaneous information was given by victim also. So, two versions were bound to occur. When the call was attended by MPV, as per both PCR forms, response of the prosecutrix was that a neighbour had done 'chedchad' with her and the neighbour was drunk. So, the version of the victim right from beginning is that 'chedchad' was done with her by the person who was inebriated. Such a version cannot be said to be ambiguous from carrying two meanings.
22. PCR forms shows that at the very outset, the victim told PCR van official at 3.47 pm that her neighbour, who was drunk, had done 'chedchad' with her. She was medically examined on the same day at 7.35 pm and she told the treating doctor that her neighbour State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 13 of 18 Gangi had tried to harass and assault her sexually. Statement of the victim to the PCR official that the accused was drunk, is corroborated by MLC Ex.PW8/A of Subhan Ali, prepared just after nine hours of the incident, in which it is mentioned that BAC was 18 mg. So, as per MLC also, accused Subhan Ali @ Gangi was drunk.
23. Hence, there is no dispute about the complicity of accused Subhan Ali @ Gangi in the offence. The moot question is about exact offence done by him.
In examination in chief, prosecutrix deposed that he entered into house house when she was tying string of her salwar after urination. He asked her to sleep with him as his wife was not present. She further deposed that he tried to make her lie on the bed and then inserted his fingers in her vagina. By deposing that he inserted his fingers in her vagina, the victim has made a huge improvement. Perusal of her complaint Ex.PW1/A shows that allegations against accused Subhan Ali @ Gangi are that he threw her on bed and made her to lie there, removed his own underwear and lied upon her and put his hand in her salwar. Under section 164 Cr.P.C., she told Ld. MM that he pushed her on bed, caught her salwar and put hand in the salwar. So, as per her complaint Ex.PW1/A and statement Ex.PW1/D, allegations were that accused Subhan Ali @ Gangi put his hand in her salwar. But in examination in chief, she deposed that he inserted fingers in her vagina. Had State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 14 of 18 accused done so, the victim would have revealed that fact to the IO or atleast to the Ld. MM. Moreover, she told the examining doctor, as mentioned in MLC Ex.PW6/A, that her neighbour had tried to harass and assault her sexually but no intercourse took place. Due to big improvement made in examinationinchief, the same is ignored.
24. Now, remaining allegations against accused Subhan Ali @ Gangi as per her deposition are as under: "...Meanwhile Subhan Ali entered into my room. Accused Subhan Ali asked me that his wife was not present in his home, so he wanted to sleep with me. Accused Subhan Ali tried to make me lie on the bed and my children were crying. He had removed his pant...".
25. Regarding attempt to rape, the Hon'ble Apex Court held in Aman Kumar & Anr. Vs State of Haryana, (2004) 4 SCC 379: 9 "A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 15 of 18 and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparation are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation."
10: "An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in partexecution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation and, possessing, except for failure to State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 16 of 18 consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11: "In order to find an accused guilty of an attempt with intent to commit a rape, could has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
Following was held by Hon'ble Punjab & High Court in Varender Vs. State of Haryana, Crl. Appeal No. 1133SB/2004 decided on 04.08.2005:
19: "The prosecution has further proved that the undergarments of the prosecutrix were removed and the accused has lay down on her and attempted to commit rape. However, none of the witnesses stated that the accused had also removed his clothes and there is no medical evidence to show that the prosecution had suffered any injury on any part of her body. In the given circumstances, the evidence State Vs. Subhan Ali etc. SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 17 of 18 would follow sort of the required ingredients for proving attempt to rape. It can only be described as the stage of preparation for committing the said offence..."
26. In view of above allegations and citations, the case of the prosecution is absolutely not covered U/s 376 IPC. It is not covered even U/s 376/511 IPC. At the last, only sections 452 & 354 IPC are made out.
CONCLUSION:
27. In view of above discussion, accused Nand Kishore is acquitted of the charges levelled against him but accused Subhan Ali @ Gangi is held guilty for offences U/s 452/354 IPC.
UMED Digitally signed
by UMED SINGH
SINGH GREWAL
Date: 2019.12.13
GREWAL 17:25:59 +0530
Announced in the open Court (Umed Singh Grewal)
On this 11th December 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State Vs. Subhan Ali etc.
SC No. 58548/16; FIR No. 543/15, PS Shahbad Dairy Page No. 18 of 18