Delhi District Court
State vs Accused on 15 April, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0285462010 SC NO.74/13 Date of Institution :01.12.2010 FIR No.118/10 Date of Argument :15.04.2013 PS Seelampur Date of Order :15.04.2013 U/S 376 IPC State Versus Accused Shahjad S/o Masroof Ali R/o E-13/A-478, Jhuggi New Seelampur, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 25.05.2010 at 11 p.m. and also on 27.05.2010 at 3 p.m. at _________________Y_____________ Delhi, accused committed sexual intercourse with Ms. __X___, aged about 35 years, here in after referred to as the prosecutrix, at her aforesaid jhuggi against her will and without her consent. She reported the matter to the police on 28.05.2010. Her statement was recorded. Police after making endorsement on her statement recorded FIR No. 118/10 u/s 376 IPC at P.S. Seelampur against the accused.
SC No.74/13 State vs. Shahjad Page 1 of 6IO inspected the place of occurrence and prepared site plan. The prosecutrix was sent to GTB Hospital and her medical examination was conducted. MLC was prepared. Her samples were also taken which were handed over to HC Shakuntala who took her for medical examination and she deposited the same in the police Malkhana. Accused Shahzad was arrested on the same day. His arrest memo and personal search memo were prepared. He was also taken to GTB Hospital. His MLC was also prepared. His samples were taken and handed over to SI Jaswant Singh who took him to hospital. Samples were initially deposited to police Malkhana and subsequently sent to FSL. Prosecutrix was also produced before Ld. M.M. for recording her statement u/s 164 Code of Criminal Procedure, here in after referred to as the Code. On completion of investigation, police filed a charge sheet against the accused for his trial for the offence punishable u/s 376 IPC.
2. Ld. M.M., after supplying of copies, committed this case to the court of sessions and it was assigned to Ms. Nisha Saxena, Ld. ASJ, North East, Karkardooma Courts, Delhi.
3. Vide order dated 18.01.2011, the Court was of SC No.74/13 State vs. Shahjad Page 2 of 6 the opinion that there was a prime facie case for framing of charge against accused for his trial for the offence punishable u/s 376 IPC, therefore, charge against the accused for the said offence was framed and read over to him in vernacular language. Accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, partly examined the prosecutrix as PW1 and SI Jaswant Singh as PW2.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution further examined PW1 in support of its case.
7. As the prosecutrix did not support the prosecution case and remaining witnesses were of formal nature, therefore, prosecution evidence was closed.
8. As there was no incriminating evidence against the accused, therefore, statement of accused u/s 313 of SC No.74/13 State vs. Shahjad Page 3 of 6 the Code was dispensed with.
9. After closing of prosecution evidence, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State. I also heard Ld. Defence Counsel and perused file.
10. On perusal of file, considering the arguments of Ld. Additional Public Prosecutor for State and Ld. Defence Counsel and on analyzing the evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond reasonable suspicion and shadow of doubt. The reasons which support my decision are firstly, that prosecutrix did not support the prosecution case. Initially, she stated that the accused forcibly committed sexual intercourse with her on 25.05.2010 and 27.05.2010 without her consent and against her will but when she was put to cross examination, she stated that she knew the accused as she was having visiting terms at his house. The accused committed sexual intercourse with her with her consent. The accused was unmarried. She had been residing with the accused prior to the incident and she had been maintaining physical relations with him as husband and wife. The report Ex.PW1/A was not read over to the prosecutrix. She was illiterate but she knew how to SC No.74/13 State vs. Shahjad Page 4 of 6 make the signatures. Police obtained her signatures and she did not know the contents of the documents which she signed. She was declared hostile and she was cross examined by Ld. Additional Public Prosecutor but during cross examination too, she did not support the prosecution case and stated that statement Ex.PW1/A was not recorded on her dictation and that was not read over to her. She also stated that she made the statement before Ld. M.M. in anger at the instance of some persons. Thus, the statement of prosecutrix remained inconsistent, unreliable and untrustworthy. It is unsafe to act upon on the basis of her such single testimony.
11. Secondly, statement of PW2 is of formal in nature. He only proved copy of FIR as Ex.PW1/A, rukka as Ex.PW1/B, seizure memo as Ex.PW1/C, and samples as Ex.PW1/D. Thus PW2 is not a witness of occurrence.
12. Lastly, the remaining witnesses who remained unexamined are not the witnesses of occurrence. These witnesses are not material witnesses. Their testimonies are also of formal in nature. In the absence of incriminating evidence by eye and material witness i.e. the prosecutrix, their statements are of no use in proving the prosecution case. I am also of the view that their testimonies, including SC No.74/13 State vs. Shahjad Page 5 of 6 the testimony of IO, will not going to change the result of the case and recording testimonies of these witnesses will only be a futile exercise.
CONCLUSION
13. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case against accused beyond any reasonable suspicion and shadow of doubt that he committed offence of rape on the prosecutrix. Consequently, by giving him benefit of doubt, accused is acquitted for the offence of rape punishable u/s 376 IPC.
14. However, in view of provisions of Section 437 A of the Code, accused is directed to furnish within a week bail bond/surety bond in the sum of Rs.10,000/- with one surety of like amount for the period of six months.
15. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court
Dated:15.04.2013 (DR. T. R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
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