Delhi District Court
State vs Saleem on 25 July, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 149/1
Unique Identification No. 02404R5175022004
State
Versus
Saleem
Son of Isubuddin
R/o village Asara,
PS Ramala,
District Bagpat (U.P.)
FIR No. 107/03
PS - Narela
U/s. 363/366A/368/506/376/34 of IPC
Date of institution of the case: 06/01/2003
Arguments heard on: 19/07/2011
Date of reservation of order: 19/07/2011
Date of Decision: 25/07/2011
JUDGMENT
Earlier, the father of prosecutrix i.e. Kishan Kumar got recorded DD No. 12 A on 31/03/2003 regarding missing of his daughter, the prosecutrix. Later on, he suspected that his daughter, the prosecutrix was kidnapped by some unknown person. So, FIR was recorded on 04/04/2003 U/s. 363 of IPC. During investigation, efforts were made to recover the prosecutrix and SC No. 149/1 1/15 publications in the newspapers were got done. Information was also circulated through Doordarshan.
Later on, the parents of the prosecutrix told to the police that prosecutrix had returned, but was under fear. So, they produced the prosecutrix before DIU, NorthWest and DD No. 10 of 09/01/2003 was recorded. Seizure memo regarding the recovery of prosecutrix was prepared.
Statement of prosecutrix was got recorded U/s. 164 of Cr.PC and she disclosed certain facts. Site plan of the place of house of Chairman Rajbala Chaudhary was prepared. Site plan of the house, where prosecutrix was kept by the accused persons, was also prepared. Prosecutrix was sent for her medical examination and certain articles sealed with the seal of "SD" were taken into possession by the IO by preparing a memo. School leaving certificate of the prosecutrix regarding her age was also collected with other record. Bone age xray for determination of age of the prosecutrix was also got conducted.
Accused Anwar and Saleem were arrested in this case on 09/10/2003. Their medical examination was also got conducted and relevant documents were collected with exhibits from the doctor.
The exhibits were sent to FSL and report was obtained. On completion of investigation, chargesheet was filed U/s. 363/366A/368/506/376/34 of IPC against both the accused. Accused Zubeda, Busara and Gajala were declared proclaimed offenders.
Case was committed to the Court of Session and was received on 10/06/2004.
SC No. 149/1 2/15
Charge U/s. 363/366A/368/34 of IPC, 376/34 of IPC and 386/34 of IPC was framed against accused Anwar on 16/07/2004 to which he pleaded not guilty and claimed trial.
Charge U/s. 368/34 of IPC, 376/506/34 of IPC was framed against accused Saleem on 16/07/2004 to which he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW21 in all. On completion of evidence of the prosecution, statement of accused Saleem was recorded. He has denied the case of the prosecution and has further pleaded that he is innocent and has been falsely implicated in this case at the instance of one Rajbala.
Accused Anwar is not well and is bed ridden. Hence, he has been exempted since December 2008 and his statement of accused has not been recorded till today U/s. 313 of Cr.PC and on the request of accused Saleem as he is in custody since September 2003, his case has been separated.
I have heard learned Addl. PP for State, Ms. Sadhna Bhatia, Amicus Curiae for accused Saleem and have gone through the evidence brought on record with material placed.
Finding qua age of the prosecutrix:
In this respect, PW1, the prosecutrix, has deposed that at the time of incident, she was student of 8th class and her date of birth is 06/10/87. PW1 has not been cross examined regarding the fact that she was not studying in 8th class at the time of incident or that her date of birth is not 06/10/87.
PW2 Kishan Kumar, father of the prosecutrix, has stated that prosecutrix was born on 06/10/87. He has further stated that he had also handed SC No. 149/1 3/15 over the school leaving certificate to the police showing date of birth of his daughter Mark 2B.
PW2 has also not been cross examined regarding date of birth of prosecutrix in any manner. PW3 Kaushalya Devi, mother of the prosecutrix, has not stated anything about the date of birth or age of the prosecutrix. PW9 Ramesh Kumar has produced certain record pertaining to admission of the prosecutrix. As per record, she was admitted in 6th class on 16/04/99 and according to admission register, her date of birth is 06/10/87, photocopy of which is Ex. PW9/A and she left the school on 19/07/2003, when her name was struck off from the school. PW9 has also identified the signatures of Principal on school leaving certificate Ex. PW9/B. PW9 has also not been suggested that a false date of birth is given or date of birth, as recorded in the school record, was without any basis. PW15 Dr. N.S. Khurana has proved the bone age report of the prosecutrix, which was opined by Dr. Anil Khari in between 14 to 17 years and has also proved his report Ex. PW15/C. This PW has also not been cross examined by learned defence counsel in any manner. PW21 Inspector Umesh Kumar has also proved the school leaving certificate of the prosecutrix Ex. PW9/B and copy of admission register Ex. PW9/A. He also got conducted the bone age Xray vide his application Ex. PW21/C. In view of above, all the witnesses have corroborated each other. Their testimonies are unshaken and unrebutted. From the depositions of all these witnesses, prosecution has been able to prove beyond reasonable doubts that date of birth of prosecutrix is 06/10/1987. So, on the day of the incident, she was less than 16 years.
SC No. 149/1 4/15 Finding qua offence U/s. 368/34 of IPC, 376/34 of IPC and 506/34 of IPC PW1, the prosecutrix, has deposed about her kidnapping/abduction by accused Anwar. She has not deposed anything against accused Saleem regarding her kidnapping/abduction in any manner. PW1, the prosecutrix, has deposed that accused Saleem had committed rape upon her against her will and consent, who is younger brother of accused Anwar. She has further stated that accused Saleem had committed rape upon her against her will and consent and on 09/10/2003, she pointed out the place, where she was confined and rape was committed upon her. She has further deposed that accused Saleem was arrested vide memo Ex. PW1/C and she signed the same. She also signed the personal search memo of accused Saleem Ex. PW1/F. In the cross examination, it has come that she was kept in the house for five months and she was beaten by accused and also made to work forcibly at his house. She was not given proper food for five months and was given only "Roti" with water. In the cross examination, PW1, the prosecutrix, has again deposed that accused Saleem used to commit rape upon her three times in a week. PW1, the prosecutrix, has further deposed in the cross examination that she had not gone to anyones house during the period of five months and villagers, who used to visit the house of accused Anwar, never talked with her. She has further deposed that accused Saleem used to live separately and used to visit the house of accused Anwar. She was doing the household work except preparing the meal. She used to bring fodder from outside the house. She used to go in the afternoon for bringing the fodder alongwith the daughters of accused Anwar and used to come back at 2.00 p.m. She has further deposed SC No. 149/1 5/15 that there was no gate outside the house. So, from the deposition of PW1, the prosecutrix, it is clear that accused Saleem was not residing in the house of accused Anwar. So, it cannot be said that she was wrongfully concealed and confined in the house of accused Anwar by accused Saleem. Accordingly, prosecution has not been able to prove offence U/s. 368 of IPC against accused Saleem in any manner, for which, he is acquitted.
From the deposition of PW1, the prosecutrix, the prosecution has been able to prove beyond reasonable doubts that accused Saleem had committed rape upon the prosecutrix three times in a week by visiting the house of accused Anwar.
The prosecutrix went missing on 31/03/2003 and report was lodged by PW2 Kishan Kumar on 04/04/2003. Later on, he received information that his daughter had reached in the house of Chairman at Tikri, District Baghpat, U.P. So, he alongwith his brother in law Sanjay and mother in law Angoori Devi reached there, where prosecutrix was found present. They brought the prosecutrix back to their house and provided her medical treatment. The prosecutrix was produced at PS, where her statement was recorded by the police. On 09/10/2003, SHO alongwith his team had reached at their house and they all had gone to Village Sara, District Baghpat, U.P., where prosecutrix pointed out the house of both the accused and both the accused were found sitting outside their house. They were arrested and their personal searches were conducted. Both accused were brought to Delhi and were produced before the Crime Branch. Statement of his daughter was recorded.
PW2 Kishan Kumar has further proved his report Ex. PW2/A and SC No. 149/1 6/15 recovery memo of his daughter Ex. PW2/B. Nothing came out from the cross examination of PW1 and PW2. The only defence accused Saleem has raised is that he has been falsely implicated in this case at the instance of Rajbala. PW1, the prosecutrix, has denied the suggestion that her relatives were staying in Village Tikri and she used to go there prior to the incident and at the instance of Chairman Rajbala, accused persons were falsely implicated in this case as there was dispute between Rajbala and the accused persons. No defence witness has been examined in this respect nor any material evidence has been brought on record to prove the defence. The prosecutrix pointed out the house, where she was taken by accused Anwar and both the accused were arrested on her pointing out. PW2 Kishan Kumar has corroborated these facts.
PW2 Kishan Kumar has also denied the suggestion that his daughter visited Tikri and other places prior to the incident as she was suffering from BhootPret.
PW3 Kaushalya, mother of the prosecutrix, has also deposed the same facts regarding the missing of prosecutrix and her recovery.
Smt. Rajbala has been examined as PW19. She has deposed that about seven years back, she was Chairman of town area of Village Tikri. In the evening time, a girl was brought at her house by some ladies, who had gone to the field to pick up the grass. The girl was perplexed and was not responding properly. She did not disclose her name and address to her at that time. She kept her in her house and provided food and shelter. On the next date, she made inquiries and came to know about her address and phone number. She informed at the house of prosecutrix and her family members came there i.e. SC No. 149/1 7/15 her maternal uncle, her father and some other persons. She handed over the girl to them. In the presence of her family members, on inquiry, the prosecutrix told that she was kidnapped by one Anwar and his younger brother had committed rape with her and she was kept by them in Village Asara, District Baghpat, U.P. PW19 has further deposed that later on, police came to her village and she told the above facts to the police. Site plan of her house was prepared by the police Ex. PW19/A. PW19 has not made statement in consonance with her previous statement. So, she has been cross examined by learned Addl. PP, wherein she has admitted the date as 30/08/2003 and has further admitted that prosecutrix told her that she was kidnapped by one Anwar from Narela, Delhi, on 31/03/2003 after administering her some intoxicants and he took her to his village Asara and has further admitted that prosecutrix told her that both the accused committed rape upon her and she was kept there forcefully. The prosecutrix has further told that Zubeda, Gajala and Bushra used to beat and torture her and they were having knowledge of rape committed with her by accused Anwar and Saleem. Nothing has been suggested to PW19 in the cross examination that at her instance, prosecutrix has deposed falsely as she wanted to implicate both the accused persons due to enmity. Rather suggestions given to this witness are that prosecutrix was not brought to her house; that she did not hand over the prosecutrix to her family members; that she has deposed falsely being Pradhan of the area at the instance of the IO and that prosecutrix has not told about the incident and involvement of both the accused to her in the presence of her family members. So, there is no consonance in the defence SC No. 149/1 8/15 of the accused as suggested to the witnesses. Different suggestions have been given to the witness at different times. Nothing has been brought on record that PW19 was having any enmity with accused Saleem. PW19 has corroborated with PW2 Kishan Kumar and other witnesses that prosecutrix was brought to her house by some ladies and she informed the family members of the prosecutrix, who reached there and took the prosecutrix back to their house at Delhi.
Nothing has been brought on record that the family members of the prosecutrix were having any relative or known persons in Village Tikri. Nothing has been brought on record that prosecutrix reached village Asara at her own. Nothing has been brought on record that prosecutrix or her family members were having any motive to falsely implicate accused Saleem in any manner.
PW8 retired SI Jagir Singh has deposed that on 04/04/2003, he was posted at PS Narela and was working as Duty Officer from 4.00 p.m. to 12 midnight and at about 8.00 p.m. complainant Kishan Kumar came to him and he lodged report, which was recorded by him Ex. PW2/A, on the basis of which, he registered FIR of this case. He further handover the copy of FIR to SI Panna Lal for further investigation. Nothing came out from his cross examination to disbelieve his testimony in any manner.
PW18 retired SI Panna Lal has stated that missing report vide DD No. 18A dated 31/03/2003 was lodged by Kishan Kumar. On 04/04/2003, Krishan Kumar, father of the prosecutrix again came at the PS and on his statement, FIR under Section 363 of IPC was registered. On 08/04/2003, SC No. 149/1 9/15 Krishan Kumar produced the photograph of his daughter and it was sent to missing persons squad and Doordarshan. Photocopy was also sent to National Crime Report. He tried to search the accused and on 16/04/2003, case was transferred to ASI Ramesh Chand.
PW20 Inspector Umesh Kumar has stated that on 27/08/2003, he was posted at DIU, NorthWest District as SI. On that day, investigation of this case was handed over to him. On 01/09/2003, prosecutrix was produced in DIU, NorthWest by her parents. He recorded statement of prosecutrix and her parents. He prepared recovery memo Ex. PW2/B and sent the prosecutrix for her medical examination at BSA hospital with lady Constable Geeta. After medical examination, doctor handed over one packet sealed with the seal of "SD" alongwith sample seal, which was seized vide memo Ex. PW13/A. Prosecutrix was discharged from the hospital on 03/09/2003 and was sent in the custody of her parents.
PW21 has further deposed that on 03/09/2003, he got recorded statement of prosecutrix U/s. 164 of Cr.PC vide application Ex. PW21/A, which was recorded on 06/09/2003 and he obtained the copy of the same vide application Ex. PW21/B. PW21 has further deposed that on 09/10/2003, he alongwith ASI Ved Prakash, Head Constable Sarv Daman and one Constable reached at the house of prosecutrix and took prosecutrix and her father and reached at Tikri Village, District Bagpat, U.P., where they met with Chairman of the Village Raj Bala and recorded her statement. He prepared rough site plan Ex. PW19/A. Thereafter, they reached at PP Asara, District Bagpat, U.P.. He made arrival SC No. 149/1 10/15 entry in PP Asara and took two local Constables and reached at the house of the accused persons. There, on the pointing of prosecutrix, both the accused were arrested vide memo Ex. PW1/B and Ex. PW1/C. He also conducted personal searches of both the accused vide memo Ex. PW1/E and Ex. PW1/F. Thereafter, at the instance of the prosecutrix, he prepared site plan, where the prosecutrix was raped, vide Ex. PW12/A. Both the accused were brought to Delhi and were sent for their medical examination in BSA hospital. After their medical examination, both the accused were sent to J.C. PW21 has further deposed that on 20/10/2003, both the accused were called on production warrants and their police remand for four hours was taken. Thereafter, both the accused were taken to Bara Hindu Rao hospital for their medical examination and he collected MLC of both the accused Ex. PW6/A and Ex. PW6/B. He also seized blood sample of both the accused vide memo Ex. PW17/A and deposited the case property in the malkhana. During the course of investigation, he got sent the case property to FSL and report is Ex. PW21/D. Learned Amicus Curiae has contended that pointing out of house of the accused persons and their arrest is doubtful as PW2 Kishan Kumar has stated that his daughter accompanied the police persons, who were 34 in number and went to Bagpat. He also went with them in his separate car. They left for Bagpat in the evening at about 9.00 p.m and he was accompanied by his brother in law in the car and they reached there within 23 hours, whereas PW12 HC Sarv Daman Singh has stated that on 09/10/2003, they started from the PS at about 4.00 a.m. They had gone in a private TATA sumo. He was in uniform and some of the police officials were in civil dress. They reached at SC No. 149/1 11/15 Village Asara at about 5.30/6.00 a.m. He does not know, who was driving the TATA Sumo. All the writing work was carried out, while sitting in the courtyard of the house of accused persons. They left the village at around 7.00 a.m. for Delhi and whereas PW21 Inspector Umesh Kumar has stated that they had hired a TATA Sumo from Village narela to go to Village Tikri. He drove the Tata Sumo. They reached there at about 6.30 or 7.00 a.m. and reached at PP Asara within five minutes and after completing the proceedings, they left the house of accused persons at about 11.30 a.m. he had prepared all the memos in his own handwriting.
I have considered the submissions of learned Amicus Curiae. Except the time, there is no contradiction in the depositions of the witnesses. PW2 Kishan Kumar left for Bagpat in a separate car, whereas police party went in a TATA Sumo, which has been corroborated by the witnesses with each other. PW1, the prosecutrix, has also deposed that on 09/10/2003, she alongwith police had gone to Village Asara at the house of the accused persons and had pointed out the place, where she was confined and raped. Both the accused were present there. Thereafter, they came back to Delhi. She does not know the date, when she had gone. She does not remember when she reached at Village Asara and when she came back. PW1 has denied the suggestion that she did not go to Village Asara alongwith the police after her coming back to Delhi. PW1 has not been cross examined at length about the pointing of house of accused and their arrest, but in the cross examination, PW1 has testified that she visited the house of accused persons with the police and pointed out the same and accused persons were arrested from there. So, the contradictions SC No. 149/1 12/15 pointed out by learned Amicus Curiae are not tenable in any manner.
PW1, the prosecutrix, has nowhere deposed that she was threatened by accused Saleem at any time. Neither the same has come in the cross examination except the suggestion that she was never threatened by accused Saleem in any manner. So, the prosecution has not been able to prove offence Us. 506 of IPC against accused Saleem in any manner. Accordingly, accused Saleem is acquitted for the offence U/s. 506 of IPC.
PW5 lady Constable Geeta took PW1, the prosecutrix, to BSA hospital for her medical examination and after her medical examination, she was taken to Tis Hazari Courts , from where, she was sent to Nari Niketan.
PW4 Dr. Renu Rathi has proved the MLC of prosecutrix by identifying the writing and signatures of Dr. Anupama Gupta on MLC Ex. PW4/A. Hymen was found torn, which corroborated with the deposition of PW1, the prosecutrix that she was raped by accused Saleem thrice in a week.
PW6 Dr. Deepak Kumar Das has proved the MLC of accused Saleem. He was examined on 20/10/2003 as was brought by PW21 SI Umesh kumar. Accused Saleem was examined by Dr. Manoj Mangla. PW6 has identified his writing and signing on MLC Ex. PW6/B. According to MLC, there was nothing to suggest that accused Saleem was incapable of performing the sexual intercourse.
The exhibits, which were collected in this case, were taken to CFSL by PW14 HC Jaswant on 18/11/2003. He deposited the same in CFSL, Kolkatta on 20/11/2003 and on return, handed over the copy of the receipt to IO.
SC No. 149/1 13/15
PW16 HC Vijender Singh was working as MHC(M) at that time and has deposed that on 01/09/2003, PW21 SI Umesh Kumar deposited with him one packet sealed with the seal of "SD" alongwith sample seal. He made entry at serial No. 1151 in register No. 19. On 20/10/2003, blood sample of accused Anwar alongwith sample seal was deposited by PW21 SI Umesh Kumar, in respect of which, he made entry at serial No. 1226 in register No. 19. The copies of the entries are collectively Ex. PW16/a.
On 11/11/2003, the exhibits were sent to CFSL Kolkatta through PW14 HC Jawant Singh vide RC No. 121/21/03, who on return, handed over the receipt to him. Copy of RC is Ex. PW16/B. So, both PW14 and PW16 have corroborated each other in this respect and have been able to prove beyond reasonable doubts that exhibits were collected by PW21 SI Umesh Kumar, who further deposited the same with PW16 i.e. MHC(M), which were sent to CFSL Kolkatta through PW14.
PW17 HC Vinod Kumar has also proved the fact that he handed over the blood sample of accused Saleem and Anwar, which was handed over to him by the doctor, to PW21 SI Umesh Kumar, who seized the same vide memo Ex. PW17/A. In view of above discussion, the testimony of PW1, the prosecutrix, is unrebutted and unshaken. She inspires confidence and is trustworthy. She has deposed before the court that she was raped by accused Saleem in the house of coaccused Anwar thrice in a week against her will and consent, forcibly, which is also corroborated with her medical examination report, wherein her hymen was found torn. Her testimony remained unshaken and SC No. 149/1 14/15 unrebutted during her cross examination. She was aged less than 16 years at the time of incident. Accordingly, prosecution has been able to prove offence Us. 376 of IPC against accused Saleem beyond reasonable doubts, for which, he is held guilty and convicted for the same. Announced in Open Court on dated 25th of July, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 149/1 15/15 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 149/1 Unique Identification No. 02404R5175022004 State Versus Saleem Son of Isubuddin R/o village Asara, PS Ramala, District Bagpat (U.P.) FIR No. 107/03 PS - Narela U/s. 376 of IPC Date of Decision: 25/07/2011 Date of order on Sentence: 25/07/2011 ORDER ON SENTENCE 25/07/2011 Present. Ld. Addl. PP for State.
Convict Saleem from JC with Amicus Curiae Ms. Sadhna Bhatia. Heard on the point of sentence.
Learned Amicus Curiae has contended that convict Saleem is in custody since 09/10/2003. Learned Amicus Curiae has further contended that convict Saleem has no children and he has been deserted by his wife. His father also expired during trial. Learned Amcius curiae has further contended that SC No. 149/1 16/15 convict Saleem is not a previous convict nor habitual offender. Hence, a lenient view be taken.
On the other hand, learned APP for State has contended that convict Saleem raped the minor prosecutrix for about five months, hence, he be punished accordingly.
Offence U/s. 376 of IPC has been proved only against accused Saleem, for which, he has been convicted. The same is punishable with imprisonment of either description which shall not be less than seven years, but which may be for life or for a term which may extend to 10 years and shall also be liable to fine.
Considering the above facts and circumstances and the fact that convict Saleem is in custody for the last about eight years, sentence of seven years S.I. is imposed with fine of Rs. 2000/ upon convict Saleem U/s. 376 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for one year.
Benefit of Section 428 of Cr.PC be given.
Convict Saleem is in custody from 09/10/2003 till today. Fine deposited.
Announced in Open Court on dated 25th of July, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 149/1 17/15 SC No. 149/1 18/15