Delhi District Court
Sc No. 56/11 State vs Atik Alam Page No. 1 Of 7 on 26 September, 2012
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : SMT. MADHU JAIN
IN THE MATTER OF
CASE ID No. 02406R0229272011
SESSIONS CASE NO. 56/11
FIR NO. 322/10
POLICE STATION SUNLIGHT COLONY
UNDER SECTION : 376 IPC
STATE
VERSUS
ATIK ALAM
S/O SH. MOHD. MUSTAQ
R/O HOUSE NO. 130,
HOUSE OF RAJENDER CHAUDHARY,
SARAI KALE KHAN, NEW DELHI.
DATE OF INSTITUTION : 07.12.2010
DATE OF RESERVING ORDER : 26.09.2012
DATE OF DECISION : 26.09.2012
J U D G M E N T
Case of Prosecution:
1. On 09.09.2010 on receipt of DD No. 46 Police post Sarai Kale Khan W/ASI Anil Sharma reached at H.No. 130, Sarai Kale Khan where HC Maqtub Ali along with the staff was present. Statement of complainant Firoza SC No. 56/11 State Vs Atik Alam Page No. 1 of 7 was got recorded wherein she told that accused Atik Alam has committed rape with her minor daughter 'X' ( name withheld to keep her identity confidential) aged around 4 ½ years. Prosecutrix was got medically examined at AIIMS Hospital by the police officials and a case under Section 376 of IPC was registered against the accused. Accused Atik Alam was arrested. Personal search memo and arrest memo of the accused were prepared by the police officials. Accused was sent for his medical examination. Statement of witnesses was recorded by the Investigating officer. Statement of prosecutrix under Section 164 Cr.P.C was also got recorded by the Investigating officer and after completion of the investigation, the charge sheet under Section 376 of IPC was filed against the accused in the court.
2. Since the offence under Section 376 of IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused:
3. Prima facie case under section 376(2)(f) IPC was made out against the accused. Charge under Section 376(2)(f) IPC was framed against the accused by my Ld. Predecessor vide order dated 20.01.2011 to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined ten (10) witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under:
Material Witnesses:
SC No. 56/11 State Vs Atik Alam Page No. 2 of 7
5. PW1 is the prosecutrix (name withheld to keep her identity confidential) who stated that accused Atik Alam took her to railway phatak, removed her clothes and inserted his finger into her private part. Blood started oozing out from her private parts. She cried in pain. Accused told her not to say anything to anyone about the incident. She further correctly identified her undergarments which she was wearing at the time of incident.
6. PW2 is Smt. Firoza, complainant and mother of prosecutrix who has stated that her husband runs a Tea shop. Accused Atik Alam used to work as helper in the shop of her husband and used to stay in the shop. Her daughter/prosecutrix also used to go to the shop of her father. Accused Atik took her daughter from the shop to railway phatak without anyone's knowledge.
At about 4/4.15 am accused brought the prosecutrix who was crying and beating the accused. Thereafter, her daughter went to the toilet. Her husband also went there and saw blood on the underwear of his daughter. She also saw that prosecutrix was bleeding from her private parts. On enquiry, she told her mother that accused did 'badtamiji' with her. Her husband locked the accused in the Tea shop. Thereafter, she along with her husband and prosecutrix went to police station and lodged complaint. Subsequently, accused was arrested.
7. PW10 is Mohd. Kayamuddin, father of prosecutrix who has also deposed on the lines of PW2.
8. PW8 is W/ASI Anil Sharma, Investigating officer of the case, who conducted the whole investigation, arrested the accused , got accused and prosecutrix medically examined and has proved all the memos in this regard. Formal Witnesses:
9. PW4 is HC Matloob Ali who stated that he along with Ct. Ganga SC No. 56/11 State Vs Atik Alam Page No. 3 of 7 Dhar went to the place of incident and took accused to police station sunlight colony, got accused medically examined at AIIMS Hospital and proved on record all the memos.
10. PW5 is Sh. Munish Markan, Ld. Metropolitan Magistrate who recorded the statement of prosecutrix under Section 164 of Cr.P.C Ex.PW5/A.
11. PW6 is W/HC Constable Meena Arora who recorded the FIR Ex.PW6/A and made endorsement on rukka vide Ex.PW6/B.
12. PW7 is HC Satbir who handed over six sealed parcels to W/ASI Anil Sharma for depositing in FSL, Rohini and after depositing the same W/ASI Anil Sharma handed over FSL form and copy of RC to him. Case property remained in his possession and was not tempered with and his statement was recorded by the Investigating officer. Medical Witnesses:
13. PW3 is Dr. Asit Kumar Sikary who has medically examined the accused and prepared MLC Ex.PW3/A.
14. PW9 is Dr. Aruna Kumari who has correctly identified the signatures and handwriting of Dr. Divya Awasthi and proved on record MLC of prosecutrix Ex.PW9/A. Statement & Defence of accused:
15. Statement of accused under Section 313 Cr.P.C was recorded wherein accused denied the case of the prosecution and stated that he is innocent and has been falsely implicated in the present case.
16. I have heard the Ld. Amicus Curiae for accused and Ld. Additional Public Prosecutor for the State and have carefully perused the SC No. 56/11 State Vs Atik Alam Page No. 4 of 7 record.
Arguments of Ld. Defence Counsel for the accused:
17. Ld. Defence Counsel for the accused argued that at the most a case under Section 354 of IPC is made out against the accused as prosecutrix herself has stated that accused did not commit rape upon her and inserted his finger into her private parts.
Arguments of Ld. APP for the state:
18. Ld. APP for state argued that prosecution has been fully able to prove its case beyond reasonable doubt and accused is liable to be convicted for the offence.
Conclusion:
19. PW1 is the prosecutrix in the present case. Her testimony has been recorded on 06.09.2011 which is relevant and is reproduced as under: " It was the month of Ramzan and in the night time Atik Bhaiya took me towards the railway phatak. He caught hold of me in his lap and he sat down on a stone. Thereafter, Atik Bhaiya removed my undergarment ( pantie) and inserted his finger into my private part meant for passing the urine. Blood started oozing from my " peshab wali jagah" and I had acute pain and I started crying. Therafter, I started beating Atik Bhaiya. The accused asked me not to narrate the incident to anybody. Thereafter, I was also taken to the court and I had told the same facts to the court."
PW1 is a small child aged about 5 years. There is no reason to disbelieve her testimony. In her cross examination she has stated that accused used to work at the shop of her father and her parents used to scold and beat the SC No. 56/11 State Vs Atik Alam Page No. 5 of 7 accused before the incident but no suggestion has been given to her that she is telling a lie or no such incident took place with her.
20. PW2 is the mother of the prosecutrix. The word used by this witness in her testimony is that accused did " batamiji" with her daughter. She has nowhere stated that accused committed rape upon her daughter. She stated that she and her husband saw some blood on the underwear of her daughter and she was bleeding from her private parts. PW1 has also stated that accused inserted his finger into her private part and blood started oozing out. The defence taken by the accused is that he was working at the shop of the father of prosecutrix and was not paid salary for months. When he demanded the salary he has been falsely implicated in the present case. But the defence taken by the accused is neither proved by him nor there is anything on record which suggest that accused made any complaint regarding the non payment of his salary to any other authority.
21. PW5 is Sh. Munish Markan who recorded the statement of prosecutrix under Section 164 of Cr.P.C Ex.PW5/A. In the statement under Section 164 of Cr.P.C Ex.PW5/A, prosecutrix has stated the same fact which she has stated in the court. As per the FSL report, which is admissible in evidence under Section 293 of Cr.P.C, the blood was detected on the underwear Exhibit F1 of the prosecutrix. Thus, testimony of the prosecutrix and her mother is further corroborated by the FSL result. As per the MLC Ex.PW9/A of the prosecutrix also, a small tear between hymen and left labia minora was present which also corroborates the testimony of PW1 and PW2. Nothing material has come out of cross examination of PW2 and PW10. SC No. 56/11 State Vs Atik Alam Page No. 6 of 7
22. Thus, neither the prosecutrix nor her mother has stated that accused committed rape upon the prosecutrix. The deposition of the prosecutrix is to the effect that accused inserted his finger into her private part. In such circumstances, the factum of rape of the prosecutrix cannot be said to be proved. At the most it can be said that accused outraged the modesty of the prosecutrix and committed an offence under Section 354 of IPC.
23. So far as the remaining witness are concerned they are the police officials who joined the investigation of the case with the investigating officer. Nothing material has come out of their cross examination. PW10 is the father of the prosecutrix who has also stated that her daughter on enquiry had told his wife that accused inserted his finger into her vagina. For the sake of repetition it may be mentioned that accused had failed to prove the defence taken by him. In view of the testimony of PW1 , PW2 and PW10 which is further corroborated by the medical evidence i.e. MLC , PW9/A of the prosecutrix and the FSL report, the prosecution has been able to establish a case under Section 354 of IPC against the accused. Accused is therefore, held guilty and convicted for the offence under Section 354 of IPC.
ANNOUNCED IN THE OPEN COURT ON 26.09.2012 ( MADHU JAIN ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI/26.09.2012 SC No. 56/11 State Vs Atik Alam Page No. 7 of 7