Delhi District Court
State vs Accused on 7 November, 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.02402R0335012011 SC NO.103/13 Date of Institution :29.11.2013 FIR No.313/11 Date of Argument :30.10.2013 PS Nand Nagri Date of Order :31.10.2013 U/S 365/366/376/328/343 IPC State Versus Accused Mohd. Salim S/o Latif R/o H.No. 157, Laprosy Complex Kodi Colony, Sewa Samiti Tahir Pur, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 24.07.2011 --------------------------------------------- X---------------------------------------------------------- , herein after referred to as the complainant, lodged a missing report at PS Nand Nagri stating that his wife ------Y--------, herein after referred to as the prosecutrix, aged about 25 years went to Sunder Nagri Market at 5.00 PM on 22.07.2011 but she did not return back. That information was recorded vide DD No. 9A on that day. The police filled in Missing Person Form and tried to search the prosecutrix but failed. On SC No.103/13 State vs. Salim Page 1 of 36 29.07.2011, the prosecutrix arrived at Police Station and IO recorded her statement. She alleged that on 22.07.2011 at 5.00 PM, she had left her house for Shani Bazar, Sunder Nagari, Delhi for buying vegetables. At 5.15 PM, Salim, herein after referred to as the accused, who was her tenant, met her in that market and asked where she was going? She replied that she was going to buy vegetables. He started walking with her and also offered Pepsi. On drinking Pepsi, she felt unbearable pain in her head. She did not know where the accused had taken her thereafter but when she regained her consciousness, she found herself in a room. The accused had confined her in the said room for about 6 days. On 28.07.2011, the accused committed wrong act with her. On the same day, her husband, the complainant brought her back from that room which was situated in Khassi Colony, Ghaziabad, UP. Due to fear, she did not tell all the incidents to her husband. She narrated the incidents to her husband on 29.07.2011 and then he brought her to the PS. She was taken to GTB hospital where she was medically examined. Doctor obtained her samples and handed over to Lady Constable Anita who brought her for the purpose of medical examination. She handed over the samples to W/ASI Vidya Rawat, herein after referred to as the IO, and she seized the same vide seizure memo and thereafter, deposited the SC No.103/13 State vs. Salim Page 2 of 36 same in the Malkhana. IO also inspected the place of incident and prepared site plan. The accused was arrested on the same day and his arrest memo and personal search memo were prepared. He was interrogated. He was also taken to GTB hospital where he was medically examined. Doctor opined that there was nothing to suggest that he was incapable of doing sexual intercourse. Doctor also obtained his samples and handed over the same to Constable Sonu Kadian, who took him to GTB hospital. He handed over the samples to IO, who seized the same vide separate seizure memo and deposited in the Malkhana. The prosecutrix was produced before Ld. M.M. on 30.07.2011 for recording of her statement u/s 164 of Code of Criminal Procedure, herein after referred to as the Code. Samples were sent to FSL and FSL report was obtained. After completion of investigation, IO filed a charge sheet against the accused for his trial for the offences punishable u/s 365/366/343/328/376 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case, was assigned to Sh. Surinder Kumar Sharma by Hon'ble Addl. Sessions Judge, Incharge North East District, Karkardooma Courts, Delhi.
SC No.103/13 State vs. Salim Page 3 of 363. The court vide order dated 24.01.2012 opined that prima facie case for framing of charge for the offences punishable u/s 328/343/365/366/376 IPC was made out against the accused. Therefore, charge against the accused for his trial for the said offences was framed and read over to him. The accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined ASI Dal Chand as PW1; Ct. Sonu Kadian as PW2; prosecutrix Ms. ------Y---- as PW3; HC Manoj as PW4; ------ X---- as PW5 and Rakesh as PW6.
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 lady Ct. Anita as PW7; Ms. Suchi Laler, Ld. M.M. AS PW8; Ct. Dharam Singh as PW9; Dr. Ritu, Senior Research Associate, GTB Hospital, Dehi as PW-10; ASI Begh Raj Singh as PW-11; Dr. Sushma, CMO GTB hospital; Anwari as PW-13; SI Rajeev Kumar as PW-14 and ASI Vidya Rawat as PW-15.
SC No.103/13 State vs. Salim Page 4 of 367. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. Accused admitted that he was residing in premises No.
------------------------------------Y------------------------------------, of the prosecutrix as a tenant with his wife and a child. He denied rest of the evidence and pleaded that he was innocent. The accused opted not to lead any defence evidence.
8. After closing of evidence by prosecution and recoding of statement of the accused, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused and perused file.
9. In order to prove its case that accused committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly, that the accused administered either poison or stupefying, intoxicating or unwholesome drug in the pepsi cold drink of the prosecutrix; and secondly, that cold drink was offered to the prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it SC No.103/13 State vs. Salim Page 5 of 36 to be likely that they will thereby cause hurt to the prosecutrix.
10. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing woman to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
11. In order to prove its case that accused committed an offence of kidnapping or abducting with intent secretly and wrongfully confining a person, punishable u/s 365 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted or kidnapped with the intention to cause the prosecutrix to be secretly and wrongfully confined.
12. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution SC No.103/13 State vs. Salim Page 6 of 36 has to prove firstly, that sexual intercourse was committed with the prosecutrix; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
13. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved all the offences against the accused beyond reasonable suspicion and shadow of doubt and the accused is liable to be held guilty and convicted for all the alleged offences.
Delay in Reporting the matter to the Police
14. It has been argued by Ld. defence Counsel that there is delay in reporting the matter to the police. As per statement of PW5 ------X----, husband of the prosecutrix, prosecutrix went missing on 22.7.2011 after 5 p.m. but as per statement of PW11, the DD entry regarding her missing was recorded only on 24.7.2011. He further argued that as per statement of PW5 ------X---- the prosecutrix was recovered from the alleged place of occurrence at Khasi Colony, Ghaziabad on 28.7.2011 in the morning at about 5 a.m. but he did not inform the police about the recovery of the prosecutrix and produced the prosecutrix on the next day. Thus, there is again delay of one day in reporting the matter to the police.
SC No.103/13 State vs. Salim Page 7 of 3615. On the other hand, Ld. Additional Public Prosecutor submitted that there is no unreasonable delay in reporting the matter to the police and if there is, it has been properly and reasonably explained. As per statement of PW5 husband of the prosecutrix, the prosecutrix was scared. She did not tell all the incidents to her husband promptly and in these circumstances, delay in producing the prosecutrix before the police had taken place.
16. On perusal of cross examination of PW3, I find that she admitted that at the time when her husband got her rescued, some persons of locality i.e. about 10-12 persons gathered there. In that gathering no police official was present. Police was not called at the spot. She was perplexed and nervous so she did not narrate the incident to anyone. They had gone to the P.S. in the evening on the same day. On that day her statement was recorded by the police.
17. PW5 on this aspect deposed that on 22.7.2011 his wife namely ------Y---- Begum had gone to purchase some house hold items from Sunder Nagri market at about 5 p.m. but she did not return back. He lodged missing report giving the description of his wife. He further SC No.103/13 State vs. Salim Page 8 of 36 deposed that on 28.7.2011 he reached at Khassi Colony, Rajeev Nagar, Ghaziabad. He found his wife ------Y---- in a room at Khassi Colony. He brought her back. His wife told him that accused present in the court made her to drink sedative pepsi and thereafter she was taken in a room. In cross examination PW5 stated that on 22.7.2011 he did not make any call at number 100. He went alone to the P.S. on the next day at about 9.30/10 a.m. when his report was recorded in the P.S. On 22.7.2011 police officials advised him to see his wife at her parental house and other relative. On 23.7.2011 when his missing report was recorded in the P.S., he remained present in the P.S. till 2 p.m. but he did not remember when his missing report was recorded. He did not make any complaint against the police officials between 23.7.2011 to 28.7.2011. He also deposed that he returned back to his house on 28.7.2011. On that day he made a call at number 100 about recovery of his wife but he did not remember the time when it was made. After about 15 minutes, police arrived at his house. He could not tell the name of the police officials who reached at his house. He also informed SI Rajeev regarding recovery of his wife on that day after reaching of PCR officials at his office. SI Harsh and Rajeev visited his house in the evening but he did not recall the exact time of their visit and they remained at his house for about 10-15 SC No.103/13 State vs. Salim Page 9 of 36 minutes. They did not reduce anything in writing.
18. The arguments of Ld. Defence Counsel that delay has not been explained, is not convincing. Although there is some delay in reporting the matter to police as the report was lodged on 24.7.2011 in spite of the fact that the prosecutrix was missing from her house since 22.7.2011 and the prosecutrix was produced at the police station on 29.7.2011 in spite of the fact that she was recovered on 28.7.2011 yet this delay is liable to be ignored in view of principles of law laid down in case of State of Punjab v. Gurmit Singh And Others, 1996 SCC (Cri) 316 wherein Apex Court observed that:
"7. The trial court also disbelieved the version of the prosecutrix regarding rape. It found that the testimony of the prosecutrix did not inspire confidence for the reasons
(i) that there had been delay in lodging the FIR and as such the chances of false implication of the accused could not be ruled out.***
8.***The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally SC No.103/13 State vs. Salim Page 10 of 36 lodged. The prosecution has explained that as soon as Trilok Singh PW6, father of the prosecutrix came to know from his wife, PW7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of Village Pakhowal, where in the tubewell kotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage, etc. of their daughter." [Emphasis supplied] Contradictions in the Statements of the Witnesses
19. Ld. Defence Counsel further argued that there are various contradictions in the testimonies of prosecution witnesses and those contradictions have made the testimony of the prosecution witnesses unreliable and untrustworthy.
20. On the other hand, Ld. Additional Public Prosecutor for the State argued that testimony of the prosecutrix and other witlessness are reliable and trustworthy. She also argued that minor discrepancies and embellishments, if any, may be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:SC No.103/13 State vs. Salim Page 11 of 36
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
21. On analysing the prosecution witness, I find contradictions in the testimonies of prosecution witnesses SC No.103/13 State vs. Salim Page 12 of 36 on the following points.
Regarding Tenancy of the Accused
22. The prosecutrix PW3 on this aspect deposed that accused Salim who met her on 22.7.2011 at about 5.15 p.m. was her tenant. In her statement EX.PW3/C recorded before Ld. M.M. she also deposed that on 22.7.2011 at 5 p.m. she had gone to market and their tenant Salim came there. Her husband PW5 on this aspect deposed that on 28.7.2011 there was no tenant in his house. Statement of mother of PW5 and mother in law of PW3 is silent on this aspect.
Administration of Sedative Substance to the Prosecutrix and committing of Rape on her
23. The prosecutrix in her statement EX.PW3/B made to the police stated that on 22.7.2011 at about 5 p.m. she had gone to Shani Bazar, Sunder Nagri to take some vegetable. At about 5.15 p.m. her tenant Salim met her in the market and asked her where she was going? She replied that she was going to buy vegetable. He started walking with her and offered pepsi. She took the same. Suddenly she felt headache. Thereafter, accused Salim took her to somewhere and when she regained her consciousness she found herself in a room where Salim SC No.103/13 State vs. Salim Page 13 of 36 kept her forcibly for six days and on 28.7.2011 he committed wrong act forcibly with her. On the same day, her husband ----X-- came in that room which was situated in Khassi Colony, Ghaziabad, U.P. and took her with him.
24. In the statement before Ld. M.M., she stated that on 22.7.2013 at about 5 p.m. her tenant Salim came from back side and asked as to where she was going? She replied that she was going to buy vegetables and he started walking along with her. A pepsi was in his hand and he asked her to drink pepsi. She refused to drink. However, Salim handed over the pepsi in her hand and also told her that he was also going to her home. After drinking the pepsi, she felt giddiness. She also felt intoxicated. He took her through some streets but she could not recognize and when she regained her consciousness she found herself in a room. Then accused came there having a knife in his hand and he forcibly committed wrong act with her. She was lying and accused Salim raped on her and asked her to take food. She declined. However, he made her to eat rajma. She again became unconscious. Day before previous day her husband came there after searching her. She heard his voice and he took her to her house.
25. In the court as PW3 she deposed that on SC No.103/13 State vs. Salim Page 14 of 36 22.7.2011 at about 5 p.m. at Shani Bazar, Sunder Nagri Salim who was her tenant came to her and asked her as to where she was going? She replied that she had come to buy vegetable. He asked her to drink pepsi and she drank pepsi. All of a sudden she started feeling giddiness. She did not know where she was taken. Accused Salim kept her in confinement for six days in lock. On 28.7.2011 accused forcibly committed sexual intercourse with her. Prior to committing sexual intercourse, he had threatened her by showing knife. On that day her husband ----X---- came there in her search and on hearing his voice she replied and her husband brought her from Kachchi Colony, Ghaziabad. She did not narrate the incident to her husband due to fear on that day.
26. Thus, the statement made by the prosecutrix to the police is silent about showing of knife or giving of beating which was deposed before this court but fact of beating was also not disclosed before Ld. M.M. There is also contradiction in her statement on the point of forcibly made to eat her rajma. This was neither stated in the statement before the police nor before this court. In addition to, in the statement EX.PW3/B made to police and as PW3 made before this court she categorically stated that she was raped on 28.7.2011. Her statement SC No.103/13 State vs. Salim Page 15 of 36 EX.PW3/C is silent about date of making physical relations/committing wrong act. Moreover, in the statement EX.PW3/B she only mentioned that wrong act was committed with her by Salim but in the statements before Ld. M.M. and before this court she also deposed that sexual intercourse was committed with her.
27. It has to be seen, if the contradictions, inconsistencies found in the testimonies of the prosecution witnesses and particularly, narrated herein above are of such a nature which may create reasonable suspicion and shadow of doubt or these are of minor in nature and liable to be ignored.
28. In my view the inconsistencies found in the testimonies of the prosecutrix and her husband, etc are not material. These contradictions are not of such a nature which may create reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case. In my opinion such inconsistencies are likely to happen in every case and are liable to be ignored in view of the principles of law laid down in case of State v. Jai Hind (supra) and in case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696,wherein the Apex Court in paragraph 13 observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The SC No.103/13 State vs. Salim Page 16 of 36 discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
29. My decision further finds support by a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031, wherein the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
30. Ld. Defence Counsel further argued that accused was falsely implicated in this case. There was a dispute between the prosecutrix and her husband. She SC No.103/13 State vs. Salim Page 17 of 36 might have left her house on her own and due to previous enmity with the accused, he was falsely implicated in this case.
31. On perusal of examination in chief and cross examination of prosecutrix I find that her statement is silent regarding dispute between her and her husband. Even it was not suggested to the witness that she left her house due to matrimonial dispute with her husband or she falsely implicated the accused due to previous enmity. PW5, the husband of the prosecutrix, denied the suggestion that on 22.7.2011 he gave severe beatings to his wife or that due to that reason his wife left his house and started living with his sister and brother in law. He also denied the suggestion that he again gave beatings to his wife on 28.7.2011 and due to that reason she again left her house while saying that she would not live with him or that she started living with her sister and brother in law in Punjab. Ld. Defence Counsel has failed to cross examine the husband on the point of matrimonial dispute between him and his wife or on the aspect of his previous enmity with the accused. Thus, it is held that arguments of Ld. Defence Counsel on this aspect is not convincing.
Causing hurt by means of poison, etc. SC No.103/13 State vs. Salim Page 18 of 36
32. Prosecutrix PW3 on this aspect deposed that on 22.7.2011 at about 5 p.m. p.m. she had gone to Shani Bazar, Sunder Nagri to purchase vegetable. At about 5.15 p.m. accused Salim who was her tenant met her in the market and asked her where she was going? She replied that she was going to buy vegetable. He started walking with her and offered a pepsi cold drink and asked her to drink pepsi and she took the pepsi. After taking pepsi, all of a sudden she sustained unbearable headache. She did not know where she was taken by the accused. When she regained her consciousness she found herself in a room. In cross examination she stated that accused was already having with him a pepsi bottle. It was a plastic bottle of normal size. She took the pepsi from bottle itself. She had only taken the pepsi despite her offer, accused did not take the same. Initially she refused to take pepsi but on the insistence of the accused, she had taken the same and he had told her that he would also accompany to her house. She had started dizziness for some time but in less than five minutes. Thereafter, she sat down after covering a little distance. She could not make any complaint to anyone as she was not feeling well. She denied the suggestion that no such incident had taken place or that she did not consume the pepsi or she did not fell dizziness. As she became unconscious so she could not tell as to how SC No.103/13 State vs. Salim Page 19 of 36 she was removed from that place by the accused.
33. PW5, husband of the prosecutrix on this aspect deposed that on 28.7.2011 he reached Khassi Colony, Rajiv Nagar Ghaziabad in search of his wife. He found his wife in a room at Khassi Colony and he brought her back. His wife told him that accused present in the court had made her to drink sedative pepsi in Sunder Nagar Market and thereafter she was taken in a room.
34. On the basis of evidence on record and particularly discussed herein above, it is held that prosecution evidence on record has proved beyond reasonable suspicion and shadow of doubt that accused made the prosecutrix to drink pepsi containing sedative or unwholesome drug and after drinking the same she lost her consciousness and also felt severe head ache and thus the accused caused hurt to the prosecutrix by means of poisonous substance, etc. Abducting or inducting woman for marriage etc. and secret and wrongful confinment
35. The prosecutrix PW3 on this aspect deposed that after drinking the pepsi she became unconscious and when she regained her consciousness she found herself in SC No.103/13 State vs. Salim Page 20 of 36 a room. She did not know where she was taken. When she regained consciousness she found herself in a room. Accused Salim kept her forcibly in that room for six days in lock. In cross examination, she stated that she did not remember the duration after which she regained consciousness, it may be after 2-3 hours. When she regained consciousness it was very early morning. She could not tell exact time as she was not wearing watch. She was not knowing at that time the room where she was taken but now she can locate that room and that room was situated in Khassi Colony, Seemapuri. When she was retuning from that place she came to know about that place on the way. She was confined in that room for about 5-6 days. She could not make complaint to any person as she was not allowed to come out from that room. The room in which she was confined was around 10-12 ft. and it was a brick made house. She was not aware as to who was the owner of that room. She did not observe that house perhaps it was 2/3 storeyed building. She did not have knowledge if other persons were residing as tenant in surrounding area. There was no kitchen in that room. There was toilet inside the room in a corner. She denied the suggestion that she was not taken away by Salim anywhere. When her husband got her rescued some persons of the locality i.e. around 10-12 persons gathered SC No.103/13 State vs. Salim Page 21 of 36 there near the house but no police official was among them.
36. Husband of the prosecutrix PW5 on this aspect deposed that on 28.7.2011 he reached Khasi Colony, Rajeev Nagar, Ghaziabad in search of his wife. She was found in a room at Khasi Colony. He brought her back. In cross examination, he denied the suggestion that on 22.7.2011 he gave severe beating to his wife and due to that reason his wife left his house and started living with her sister and brother in law or that he had brought his wife on 28.7.2011 from Punjab or that his wife told him that she would not live with him. He stated that on 28.7.2011 he left his house at about 4 a.m. in search of his wife in Seemapuri as first wife of the accused was residing there. While searching his wife from Seemapuri, he went to Khasi Colony. He made enquiries from two persons and they both told him about his wife and told the directions of said house from where his wife was recovered. He did not make any call from the said gali to the police. He did not know the house from where his wife was recovered. One old lady had opened the door of the said house. He could not tell the area of that house. When he entered into the house he found his wife there. He remained present in that house for about 10-15 minutes. He did not notice as to SC No.103/13 State vs. Salim Page 22 of 36 whether there were any tenant in the said house or not. He did not inform the local police. He did not notice whether the toilet and bathroom were there in that house? In that house there were two ladies. There was another old lady and one was his wife. His wife was looking perturbed.
37. PW6, owner of the room from where the prosecutrix was recovered, deposed that he was the owner of the house No. -------------------------Z-------------------------------. Accused Saleem present in court was known to him. Last year accused came to him alongwith one lady and told that said lady was daughter of his uncle. He asked a room in his house and accordingly, he gave one room on rent. Accused remained in his house for 2-3 days. After 2-3 days of his leaving, police officials reached at his house and police enquired about that lady and he came to know that that lady was not daughter of his uncle and she was wife of another person. As PW6 could not tell the detail about the date, etc., he was cross examined by Ld. Addl. Public Prosecutor of State after declaring him hostile and in cross examination he admitted that accused was with him alongwith one lady on 22.7.2011 and name of that lady was ------Y---- and police came to his house on 29.7.2011 alongwith that lady and accused and that accused had kept that lady forcefully in that room. In cross examination SC No.103/13 State vs. Salim Page 23 of 36 conducted by Ld. Defence Counsel he stated that when accused came to his house for hiring a room on rent he was not present at his house and his wife was present there and she provided rented accommodation to him. On that day when he came back to his house at about 7 p.m., the accused was not present in the tenanted room and the room was found locked and he came at abut 8-9 p.m. His wife allowed the accused to take room on rent alongwith one lady as the accused told her that said lady was daughter of his uncle. Room was hired @ Rs.1,000/- p.m. However, no document was executed. Accused Saleem and that lady used the toilet situated at roof of first floor. During the stay of that lady with the accused he never heard any noise or cry.
38. PW15 on this aspect deposed that she alongwith prosecutrix reached at --------------------Z------------------------- where on her pointing out site plan EX.PW15/B was prepared. In cross examination she stated that on 29.7.2011 at about 3.30 p.m. she went to Rajiv Nagar. It took them about 1-1/2 to 2 hours in completing proceedings at Rajiv Nagar. The area of that house was about 50 sq. yards. She could not tell the storey of that house as she visited on the ground floor of that house. There were two rooms.
SC No.103/13 State vs. Salim Page 24 of 3639. On the basis of evidence available on record and particularly discussed herein above, it is held that prosecution has established beyond any reasonable suspicion and shadow of doubt that the prosecutrix was abducted after making her to drink sedative pepsi and she was secretly and wrongfully confined in a room at Khasi Colony.
Sexual intercourse/rape with the prosecutrix by the accused.
40. The prosecutrix PW3 on this aspect deposed that on 28.7.2011 accused committed sexual intercourse with her. Prior to committing sexual intercourse with her she was beaten by the accused and she was threatened by showing her a knife. In cross examination she denied the suggestion that no such incident had taken place.
41. PW5 on this aspect deposed that his wife the prosecutrix told him that accused present in the court made her to drink sedative pepsi and took her in a room. She further told that accused Salim forcibly raped her.
42. PW7 on this aspect deposed that on 29.7.2011 she was posted at P.S. Nand Nagri as constable and she SC No.103/13 State vs. Salim Page 25 of 36 alongwith WSI Vidya Rawat had taken the prosecutrix to GTB Hospital for her medical examination and after her medical examination sexual assault kit, outer closing packed alongwith sample seal, the sealed parcels alongwith sample seal were received from the hospital which were seized vide memo EX.PW5/A which was signed by her at point B. In cross examination she stated that they reached at the hospital at abut 2/2.30 p.m.
43. PW8 Ld. M.M. on this aspect deposed that on 30.7.2011, she recorded statement of ------Y----, wife of ------ X---- u/s 164 of the Code. She proved her statement EX.PW3/C. On perusal of statement EX.PW3/C, I find that the prosecutrix, inter alia, stated that accused Salim came to her with a knife and committed wrong act with her. When she was lying accused laid down on her and inserted his penis inside her.
44. PW10 on this aspect deposed that on 29.7.2011 she was working in GTB Hospital as Senior Resident. On that day at about 1.30 p.m. ------Y---- w/o ------X---- aged 25 years was brought by lady Ct. Anita Bhagat for her medical examination with the alleged history of rape by Salim with history of missing from the house since 22.7.2011. After giving of sedative she was taken to some place where he SC No.103/13 State vs. Salim Page 26 of 36 had sexual intercourse with her once. Patient had taken bath and brought all the previous clothes when she was with accused Salim. On her local examination she found no redness, congestion, tear pubic hair not matted, hymen old torn. MLC was proved as EX.PW3/A.
45. PW12 on this aspect deposed that on 29.7.2011 she was working as CMO, GTB Hospital. On that day Dr. Amit Kumar Sharma prepared MLC No. C-4364/11 under his supervision. The MLC was proved as EX.PW12/A. On perusal of MLC, I find that it was opined by the doctor that there was nothing indicative that accused was incapable of performing sexual intercourse. PW15 IO proved various memos and also proved the FSL result EX.PW15/D & EX.PW15/E.
46. On analysing of evidence, I find that MLC of accused also contained that undergarment and blood sample of the accused were taken into possession. In the FSL result it has been mentioned that human semen was detected on one dirty underwear EX.2, dirty pyjama EX.6a, and one dirty lady shirt EX. 6b. The evidence on record and particularly discussed herein above, has further proved beyond reasonable suspicion and shadow of doubt that the accused committed sexual intercourse with the SC No.103/13 State vs. Salim Page 27 of 36 prosecutrix forcibly without her consent and against her will after threatening her and thus accused committed offence of rape on the prosecutrix.
Reasons of Conclusions
47. After considering the arguments of Ld. Addl. Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has successfully proved its case against the accused Salim beyond any reasonable suspicion and shadow of doubt that he committed not only offence of causing hurt by poisonous substance, offence of abducting or inducing a woman to compel her marriage, etc. and offence of secretly and wrongfully confinement of an abducted person but also he committed offence of rape. The reasons which support my conclusion are firstly that the prosecution evidence on record and particularly discussed herein above has proved all the ingredients which are necessary for proving the above mentioned offences.
48. Secondly, the inconsistencies found in the testimony of the prosecutrix and her husband are not material. Such inconsistencies are likely to happen in every case and are liable to be ignored.
SC No.103/13 State vs. Salim Page 28 of 3649. Thirdly, the delay in reporting the matter to police has been properly explained and the delay is liable to be ignored.
50. Fourthly, the testimony of prosecutrix has been corroborated by other witnesses, firstly by her husband PW6, PW-5 owner of the house where she was secretly and wrongfully confined and raped, doctors who conducted medical examination of prosecutrix and the accused and opined that there was evidence of sexual assault on the prosecutrix and accused was capable to perform sexual intercourse.
51. Fifthly, all the arguments of Ld. Defence Counsel discussed herein above in detail have been found as not convincing.
52. Sixthly, there is nothing in cross examination of prosecution witness which could create any reasonable suspicion and shadow of doubt that the above mentioned offences were not committed on the prosecutrix by the accused.
53. Seventhly, the other prosecution witnesses also SC No.103/13 State vs. Salim Page 29 of 36 supported the testimony of the prosecutrix and further corroborated the prosecution case. For example, PW1 proved copy of FIR EX.PW1/A and endorsement on the rukka as EX.PW1/B. PW2 is the constable in whose presence accused was arrested and his arrest memo EX.PW2/A and personal search memo EX.PW2/B were prepared and accused was taken to GTB Hospital for the purpose of medical examination. He also proved seizure memo regarding taking into possession sealed parcels and samples vide memo EX.PW2/D. PW4 is the MHCM who proved entries regarding deposit of case property and sending over the same to FSL as EX.PW4/A, EX.PW4/B and EX.PW4/C. PW9 is the constable who took the samples and deposited the same to FSL vide RC No. 96/21. PW12 proved handwriting of Dr. Amit Kumar Sharma on MLC EX.PW12/A of accused Mohd. Salim. PW13 is the mother in law of the prosecutrix. She told that prosecutrix had gone to market to purchase vegetables but she did not return and she could be traced only after 8/10 days. The prosecutrix told her that accused Salim committed rape on her. PW14 is the IO who partly investigated the case and arrested the accused, prepared his arrest memo EX.PW2/A, personal search memo EX.PW2/B and seized sealed parcels and sample vide memo EX.PW2/D. PW15 is the main IO who further supported the prosecution case and proved various SC No.103/13 State vs. Salim Page 30 of 36 memos referred to herein above, besides proving her endorsement EX.W15/A on the statement of the prosecutrix EX.PW3/B, site plan of place of occurrence as EX.PW15/B and FSL result as EX.PW15/D. She also prepared the charge sheet and filed it in the court. Thus, prosecution case has also been supported by the police and other witnesses.
54. Eighthly, the prosecution evidence has achieved the standard of proof of proving its case against the accused Salim, as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
55. Ninthly, there is no evidence on record showing any motive or reason for the prosecutrix to depose against SC No.103/13 State vs. Salim Page 31 of 36 the accused particularly when the accused Salim was her tenant and he was living in her house with his wife and a child unless he committed the alleged offences. The accused has failed to prove any enmity with the prosecutrix or her husband. My view finds support by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
56. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. Therefore, It is bounden duty of this court to hold accused Salim guilty and convict him.
CONCLUSION SC No.103/13 State vs. Salim Page 32 of 36
57. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has successfully proved its case against the accused Salim beyond any reasonable suspicion or shadow of doubt that he committed offence of causing hurt by poisonous substance punishable u/s 328 IPC; offence of abducting or inducing a woman to compel her marriage, etc. punishable u/s 366 IPC; offence of secretly and wrongfully confinement of an abducted person punishable u/s 365 IPC; and offence of rape punishable u/s 376 IPC. Resultantly, accused Salim is held guilty and convicted for the offences punishable u/s 328/366/365/376 IPC.
Announced in the Open Court Dated: 31.10.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.103/13 State vs. Salim Page 33 of 36 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC NO. 103/13 FIR No. 313/11 PS Nand Nagri U/S 328/366/365/376 IPC State Versus Mohd. Salim ORDER ON SENTENCE 07.11.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused Mohd. Salim in J.C. Sh. A.K. Pandey, Advocate for the convict/ accused.
I have heard arguments on the quantum of sentence and perused file.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is a first offender; he is young boy aged about 22 years; he is a poor person; he has wife and a child of about 3 years of age to maintain; he has widow mother and two minor sisters; he is a patient of TB; and he has been in jail for more than 27 months. It has been prayed that lenient view in sentence may be taken.
3. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that deterrent punishment may be awarded to the accused as case has SC No.103/13 State vs. Salim Page 34 of 36 been proved by the prosecution against the accused.
4. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just, fair and appropriate if moderate view in sentence is taken.
5. Accordingly, convict/accused Mohd. Salim is sentenced to undergo simple imprisonment for 4 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for 1 year for the offence punishable under section 328 IPC.
6. Convict/accused Mohd. Salim is further sentenced to undergo simple imprisonment for 4 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for 1 year for the offence punishable under section 366 IPC.
7. Convict/accused Mohd. Salim is further sentenced to undergo simple imprisonment for 3 years and he is further sentenced to pay a fine of Rs.4,000/- in default simple imprisonment for 9 months for the offence punishable under section 365 IPC.
8. Convict/accused Mohd. Salim is further sentenced to undergo rigorous imprisonment for 7 years and he is further sentenced to pay a fine of Rs.10,000/- in default simple imprisonment for 18 months for the offence punishable under section 376 IPC.
SC No.103/13 State vs. Salim Page 35 of 369. All the sentences will run concurrently.
10. It is further ordered that if convict/accused Mohd. Salim has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C. As per judicial record, the accused has been in JC since 29.7.2011 till date.
11. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.15,000/- will be payable to the prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation, if available to her under other laws.
12. The convict/accused Mohd. Salim be sent to imprisonment to serve the sentence.
13. A copy each of judgment and order on sentence is supplied to convict/accused Mohd. Salim free of cost.
File be consigned to Record Room.
Announced in the Open Court
Dated:07.11.2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
SC No.103/13 State vs. Salim Page 36 of 36