Delhi District Court
Counsel Has Referred To Decisions In ... vs . State on 27 November, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.46/2010
FIR NO.121/2007
PS Chandni Mahal
U/s 366/376 IPC
In the matter of :
State
Versus
1. Imran,
S/o Salauddin,
R/o H.No.1770, Katra Khabas,
Pataudi House, Chandni Mahal, Delhi.
2. Zakir,
S/o Sh. Nannu Khan,
R/o H. No. 30/956, Gali No. 30/9,
Jafrabad, Delhi
3. Salauddin,
S/o Kutubuddin, R/o H.No.1770, Katra Khabas,
Pataudi House,
Chandni Mahal, Delhi.
4. Smt. Haseena,
W/o Salauddin ,
R/o H.No.1770, Katra Khabas,
Pataudi House, Chandni Mahal, Delhi.
FIR No. 121/2007 1
5. Irfan,
S/o Sh. Salauddin,
R/o H. No. 1770, Katra Khawas Pura,
Pataudi House, Darya Ganj. .......Accused persons
Date of Institution: 03.06.2007
Date of Judgment: 27.11.2012
J U D G M E N T
In this case, accused Imran accused has been facing trial for an offence under Section 366 IPC on the allegations that on 05.04.2007 in between 2 pm to 9.30 pm, he abducted the prosecturix, aged about 18 years, from her house with intent that she may be forced and seduced to illicit intercourse or knowing that she would be so forced and seduced, after her abduction. Thereafter, accused Imran is alleged to have administered her some stupefying substance with cold drink and subjected the prosecturix to rape in the area of Mustafabad. Allegations of criminal intimidation have also been levelled against him.
Zakir accused, has been facing trial for an offence under Section 328 IPC on the allegations that he administered some stupefying substance with cold drink, to the prosecutrix and wrongfully confined her at his house in Mustafabad after she had been abducted.
FIR No. 121/2007 2
Salauddin and his wife Smt. Haseena (parents of accused Imran) and Irfan @ Saddu, (brother of Imran) have been facing trial for offences under Section 120B IPC and 366 IPC on the accusation that on the aforesaid date they entered into a criminal conspiracy for abduction of the prosecutrix on the aforesaid date, time and place with aforesaid criminal intent.
2. In brief, case of the prosecution is that on 05.04.07, prosecutrix was present at her house while her mother had gone to cast vote. At about 2.00 p.m., accused Imran visited her house and took her to Chanakya puri Park for roaming about in an auto rickshaw. There accused Imran talked to her about marriage with her. Then he told her that he wanted that she meets his friend in Mustafabad. Thereupon, the prosecutrix accompanied Imran to Mustafabad, in a three wheeler. There accused Zakir, an employee in the factory of Imran, met them. Zakir took them to a room and made both of them sit there. Imran then sent Zakir to fetch cold drink. He once again sent Zakir to bring some articles. Zakir, accused left the room bolting the door from outside. The prosecutrix felt intoxicated. Imran accused then committed rape on her, in the said room against her will, saying that her mother had consented for their marriage. FIR No. 121/2007 3
On reaching her house, at 9.30 p.m., the prosecutrix, on inquiry told her mother that she had accompanied Imran. At about 2.00 a.m. during the night, Imran accused made a phone call to the prosecutrix and told her that his parents were not willing for their marriage. Mother of prosecutrix woke up and the prosecutrix told her the occurrence.
Initially, police did not register case. There were talks for marriage but those were not fruitful. Ultimately, present case was got registered on 08.04.2007. Accused persons were arrested.
Imran accused is alleged to have made disclosure statement and in pursuance thereof led the police party to his house and got recovered shirt and blood stained pant, which were turned into parcel and sealed. Imran and Zakir accused Zakir were got medically examined.
Prosecutrix was got examined under Section 164 CrPC. On 31.05.2007 Ct. Harbir Singh collected sealed sample parcel and deposited the same at FSL. Sh. Suresh, Assistant Director (Biology) examined material objects sent for analysis and submitted report During investigation Inspector Virender Singh collected copy of Icard of the prosecutrix from the Principal of Govt. Girls Sr. Sec. School, Bulbuli Khana, on his request for the purposes of verification of her date of birth.
FIR No. 121/2007 4
The Inspector prepared rough site plan of place of occurrence and also took photographs of the spot on his mobile phone. These were then got developed by him On completion of investigation, challan was put in Court. After compliance with provisions of Section 207 CrPC, case came to be committed to the Hon'ble Court of Session.
Charge
3. Prima facie case having been made out, charge for offences U/s 328 and 368 IPC was framed against the Zakir accused; charge for offences under Seciton 366, 328, 376, 506 and 109 IPC was framed against Imran accused; charge for offences under Section 120B, 366 read with Section 120B IPC was framed against accused Salauddin, Smt. Haseena and Irfan @ Saddu.
Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution evidence
4. In order to prove its case, prosecution examined following 19 witnesses: PW1 Dr. Ruqaiya Hasnat, Sr. To prove MLC Ex PW1/A of the prosecutrix Medical Officer, LNJP prepared on 08.04.2007 at LNJP hospital Hospital.
PW2 Dr. Ritu, CMO, LNJP To prove MLC Ex PW2/A of Imran accused Hospital. prepared on 09.04.2007 by Dr. Ram Jr. and MLC Ex PW2/B of Zakir accused by the same doctor on the same day.
FIR No. 121/2007 5 PW3 Dr. Deepak, Jr. Deptt of To prove arrival of accused Imran at MAMC on Forensic, MAMC 10.04.2007 his MLC Ex PW3/A PW4 Prosecutrix Complainant PW5 HC Anil Kumar Who took part in the investigation.
PW6 Smt. Shahida Mother of prosecutrix PW7 Sh. Ajay Pandey, To prove recording of statement Ex PW7/A i.e. ACMM, Delhi of the prosecutrix u/s 164 CrPC.
PW8 HC Bhairu Sahai To prove recording of FIR Ex PW8/A PW9 Ct. Babu Lal Who was accompanying Imran and Zakir at the time of their medical examination.
PW10 Ct. Harbir Singh To prove deposit of sealed parcels at FSL on 31.05.2007 PW 11 HC Badan Lal Who was also accompanying the prosecutrix at the time she was taken to hospital for her medical examination.
PW 12 Ms. Nisha Sister of the prosecutrixcomplainant. PW 13 ASI Gajender Singh Who partly investigated this case. PW 14 Sh. Suresh Babu To prove Ex PW14/A regarding exhibits from CFSL analysed there.
PW 15 Inspector Asha To prove presentation of challan in Court. Badola PW 16 Inspector Virender Who partly investigated this case. Singh PW 17 Mohd. Shafiq To prove arrest of Imran on 16.07.2007. PW18 Retd. SI Ishwar Singh Who moved application in Court for recording of statement of the prosecutrix.
PW 19 ASI Asha Bhist Investigating officer.
Statement of accused
5. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing in evidence against them and claimed false implication. However, they opted not to lead any evidence in defence.
FIR No. 121/2007 6
6. Arguments heard. File perused.
Discussion
7. As regards allegations of abduction, it has been submitted by learned defence counsel that prosecutrix and her mother while appearing in Court have made improvements on material aspects and as such no reliance should be placed on their testimony. Further, it has been submitted that as is available from the evidence led by the prosecution, it is the prosecutrix who of her own free consent left her house on 05.04.2007 and she cannot be said to have been abducted.
So far offence under Section 376 IPC is concerned, learned defence counsel has contended that there is nothing on record to suggest that prosecutrix was subjected to sexual assault by Imran accused on the given date, time and place and that rather accused persons have been falsely implicated for not having consented for marriage of the prosecutrix with Imran accused.
Further, it has been submitted that medical evidence does not reveal commission of sexual assault as against the prosecutrix. In support of his submissions, learned defence counsel has referred to decisions in Satbeer Singh vs. State 2004 (3) CC Cases(HC) 99, Kuldeep K. Mahato vs. State of Bihar 1998 CAR 424 and Ramu v. State of Haryana 2002 (1) FIR No. 121/2007 7 CC Cases (HC) 127.
Another argument advanced by the learned defence counsel is that occurrence is alleged to take place on 05.04.2007 and present case came to be registered on 09.04.2007 but prosecution has failed to explain delay of three days which adversely affects the case of prosecution and possibility of deliberation, consultation and false implication of the accused cannot be ruled out.
Delay in registration of case
8. Occurrence is alleged to have taken place on 05.04.2007 but the prosecutrix made statement Ex PW4/1 before the police on 08.04.2007 and had lodged the FIR Ex PW7/A No. 121 on 09.07.2007.
As per endorsement Ex PW9/A appended to the statement of Ex PW4/1, prosecutrix accompanied by her mother came to PS Chandni Mahal and made statement. Thereafter, prosecutrix was medically examined from LNJP hospital. After that ASI Asha Bisht sent rukka, on the same night, at 11.55 pm, which led to registration of this case on the midnight of 08/09.04.2012.
As noticed above, occurrence took place on 05.04.2007. According to the prosecutrix, she returned home at about 9.30 pm, but did not disclose commission of crime to her mother at FIR No. 121/2007 8 time or on that night. She rather told her that to have gone to the house of her friends.
At the house of Zakir, she regained consciousness at about 4 pm. She was admittedly carrying a mobile phone, but she did not make any phone call to her mother or relatives apprising them of the commission of crime soon after she regained consciousness and left house of Zakir after 4 pm. According to the prosecutrix, she informed her mother about commission of crime during night at about 2 am when Imran accused made phone call that he could marry her as her parents were not willing but this version cannot be relied on because of improvements and contradictions.
In cross examination of the prosecutrix, it stands recorded that after the occurrence Imran had taken her to his house in a TSR. This fact does not finds mention in her statement including chief examination.
Even otherwise, had she been taken by the Imran accused to his house, she must have met Smt. Haseena, mother of Imran and inquired from her about her willingness for her marriage with her son Imran. But there is nothing on record to suggest that the prosecutrix talked to Smt. Haseena at her house when she was allegedly taken to that place by Imran accused.
The prosecutrix could raise hue and cry on reaching Darya FIR No. 121/2007 9 Ganj where Imran is alleged to have dropped her so that he could not escape from there. However, there is nothing on record to suggest that even at that time she raised any hue and cry.
Although according to the prosecutrix, she informed her mother about commission of crime on the same night at 2 am after receipt of phone call from Imran that he parents were not ready for his marriage, PW6 Smt. Shahida nowhere stated that the prosecutrix had received any phone call from Imran. During trial prosecution has not led any evidence to any electronic evidence to prove phone call by Imran to the prosecutrix on her mobile phone on the night intervening 05/06.04.2007. According to her mother, what the prosecutrix told her during the night was that she had not visited her friend's house and that rather Imran accused accompanied by Salauddin had come and asked her to accompany them. Ordinarily, she must have questioned the prosecutrix as to the subsequent events i.e. since her departure from the house. Surprisingly, mother of the prosecutrix did not make further inquiry from her to what had happened thereafter.
It may be mentioned her that when her mother was examined in Court, she did not support the prosecution on various material aspect. She was put leading question by learned Addl. PP after seeking permission from the Court and only thereafter she admitted to have stated before the police about the FIR No. 121/2007 10 subsequent events as to the manner in which her daughter was enticed away and subjected to sexual assault at the house of Zakir after she was administered stupefying substance. Had the prosecutrix narrated her all these events, PW6 would have of her own stated about the same in chief examination without being put leading questions by learned Addl. PP.
Therefore, when the mother of the prosecutrix stated in her cross examination that her daughter had received phone call from Imran during the night at 2 am that his parents were not agreeable for his marriage, it is difficult to place reliance on her statement in this regard.
It is case of the prosecution that matter could not be reported to the police as Imran had given assurance to marry the prosecutrix.
According to the prosecution, parents of the accused Imran requested for a day's time to consider her marriage with Imran but on the next date, they did not come. However, when PW6 Smt. Shahida, mother of the prosecutrix was put leading questions by learned Addl. PP, she denied to have stated before the police that Imran had given assurance to marry the prosecutrix. A perusal of the statement of prosecutrix would reveal that she had improved upon her version about refusal of Imran to marry her.
FIR No. 121/2007 11
According to the prosecutrix, even mother of Imran had told during the mid night that Imran would marry her. However, this fact does not find mention in statement Ex PW4/1 made before the police.
As per version narrated by the prosecutrix and her mother, the SHO was initially reluctant to record statement of the prosecutrix and thereafter parents of the Imran accused had requested for time to consider for her marriage with Imran but on the next date they did not come and this led to delay in recording of the FIR.
A perusal of statement made by the prosecutrix would reveal that on 06.04.2007 two police officials from PS Chandni Mahal came to their house and told her mother that she has been called to police station by the SHO. According to her mother, they left for police station. After her mother left for police station, she slashed her wrist and neck. This version narrated by the prosecutrix is against her version which finds mention in Ex PW4/1, the statement made before the police. In Ex PW4/1, it finds mention that prosecutrix slashed her wrist and neck on the night intervening 56.04.2007 when Imran made phone call that his mother was not ready for his marriage with the prosecutrix and not that she slashed her wrist and neck when her mother left for police station.
FIR No. 121/2007 12
As per prosecution version on 07.04.2007 her mother called parents of Imran but they did not come and as such her mother left for police station, but nothing happened.
On the other hand, mother of the prosecutrix while appearing in Court as PW6 nowhere stated that she had called parents of Imran to her house on 07.04.2007 or that they had not come. According to PW6, SHO asked her to wait till the evening of 08.04.2007 as talks for compromise were stated to be going one.
As noticed above, Imran is son of maternal uncle of the prosecutrix and as such Imran and his parents are closely related to the prosecutrix and her mother. Had the SHO refused to register the case, the prosecutrix or her mother could contact senior police officers telling them that their version was not being recorded. However, there is nothing on record to suggest that any such step was taken.
It is case of the prosecution that on 08.04.2007 four persons from the side of Imran came to the house of the prosecutrix and extended threats not to lodge complaint with police but her mother informed the PCR. This fact does not finds mention in the statement of PW6. In her cross examination, PW6 stated that PCR staff was informed about arrival of four persons in drunken condition to her house and the threats extended at them not to pursue complaint given to the police. However, prosecution has FIR No. 121/2007 13 not examined any PCR staff to lend corroboration to this version of mother of the prosecutrix.
It is in the statement of PW12 Ms. Nisha sister of the prosecutrix that after 34 days Smt. Anisha, Bua of Imran acused came to their house and tried to give Rs.50,000/ for the act committed against her sister but they refused to accept the money. In this regard, it may be mentioned here that mother of the prosecutrix no where stated that Bua of Imran accused at any point of time visited her house and offered Rs.50,000/.
When we advert to the statement of prosecutrix, it is found that she has made statement in contradiction with statement of her sister. According to the prosecutrix, parents of the Imran accompanied by his bua had come to their house in the evening of 08.04.2007 and offered Rs.50,000/. Neither PW6 Smt. Shahida nor PW16 Smt. Nisha, sister of the prosecutrix stated that parents of Imran were accompaning Smt. Anisha at that time. Statement of prosecutrix was concluded on 08.04.2007 and rukka was despatched from the PS at 11.55 pm. Had any such payment been offered from the side of Imran, it must have been mentioned in the statement Ex PW4/1 made by the prosecutrix but there is no mention about it in Ex PW4/1.
So prosecution has failed to explain delay in recording of FIR.
FIR No. 121/2007 14
It is well settled that where there is delay in recording of FIR, it needs to be properly explained and where it remains unexplained, it can safely be said that the time gap was utilized in deliberations and consultations. Reference in this regard may be made to decision in Dhan Prasad vs. State of UP 2003 CrLJ 4127 wherein it has been observed that inordinate delay of 12 hours in lodging FIR left much time for concoction and deliberation and was held to have given serious jerk to prosecution case.
Offence under Section 366 IPC
9. While appearing in Court on 05.07.2008 as PW5, the prosecutrix gave her age as 19/20 years. Occurrence is alleged to have taken place on 05.04.2007. At the time of her medical examination, the prosecutrix furnished her age as 18 years. It is in the statement of PW16 Inspector Gajender Singh that during investigation he sent a letter Ex PW16/A for verification of date of birth of prosecutrix. He collected Ex PW16/B i.e. copy of identity card from Principal of Govt. Girl Sr. Secondary School, Bulbul Khana. However, Identity card Ex PA was seized vide Ex PW13/A when produced by mother of the prosecutrix in presence of ASI Gajender Singh. As per identity card issued by National Institute of Open Schooling, she was born on 09.10.1987. FIR No. 121/2007 15
As per evidence led by the prosecution, the prosecutrix was 19 yeas, 5 months and 26 days. In other words, as on 05.04.2007, the prosecutrix was major.
Then question arises as to whether the prosecutrix was abducted or kidnapped as alleged by her or she left her house on 05.04.2007 of her own free will as submitted by learned defence counsel?
According to the prosecutrix, on 05.04.2007, she was present at her house while her mother had gone to cast vote. At about 2.00 p.m., accused Imran visited her house and took her to Chanakya puri Park for roaming about in an auto rickshaw. There accused Imran talked to her about marriage with her. Then he told her that he wanted that she meets his friend in Mustafabad. Thereupon, she accompanied Imran to Mustafabad in a three wheeler, where accused Zakir an employee in the factory of Imran met them. Zakir took them to a room and made both of them sit there. Imran then sent Zakir to fetch cold drink. Again accused Imran sent Zakir to bring some articles and the latter left the room bolting the door from outside. She felt intoxicated. Imran accused then committed rape on her in the said room against her will, saying that her mother consented for their marriage.
FIR No. 121/2007 16
Admittedly, accused Imran is son of maternal uncle of prosecutrix. In her statement Ex PW4/1 made before the police, it does not find mention that Smt. Haseena, mother of Imran accused had come to her house while her own mother was away to cast vote. But this fact finds mention in her statement Ex PW4/3 recorded under Section 164 CrPC. The fact remains that the prosecutrix while making statement in Court on the point of arrival of accused Smt. Haseena at her house at 11 am on 05.04.2007 made improvements. It remains unexplained as to why she did not state in Ex PW4/1 about arrival of Smt. Haseena at her house at 11 am. Had she (Smt. Haseena) invited her (prosecutrix), she would not have omitted to state this material fact.
The prosecutrix was again confronted with her statement Ex PW4/1 and it transpires that she did not state before the police that it at about 12 noon Saddu @ Irfan, younger brother of Imran had come to her house and invited her to his house but she did not accompany him. So, the prosecutrix has made improvement in this regard while in her statement made in Court.
The prosecutrix has also made improvement in her statement Ex PW4/1, while making statement in Court, that Smt. Haseena accused had called her on telephone and again invited her, but she refused.
FIR No. 121/2007 17
A comparison of her statement Ex PW4/1 and the statement made in Court would further reveal that prosecutrix made improvement while making statement in Court regarding arrival of Saddu @ Irfan once again at her house at 2 pm or that she accompanied Irfan on foot.
In her statement Ex PW4/1, it stands recorded that on 05.04.2007 while her mother was away to cast vote and she was present at her house at 2 pm, Imran visited her house and enticed her away to Chanakyapuri in an auto rickshaw for roaming about.
A perusal of the statement made in Court when compared with statement Ex PW4/1 made before the police would reveal that she has made improvement upon her previous version on the point that Smt. Haseena asked her to accompany Imran and visit certain places or that she not allowed to go to her house for changing her dress before going out with Imran.
She has also made improvement upon her previous statement on the point that Salauddin, father of Imran accused told his wife Smt. Haseena that she should give her clothes. She also made improvement upon her previous statement on the point that she accompanied accused Imran from his house to Chankyapuri. As noticed in her statement made before the police, her version was that accused Imran enticed her away from her FIR No. 121/2007 18 house to Chankyapuri Park in an auto.
On these aspects, her statement made before police is also in contradiction with statements of her mother PW6 and isster Ms. Nisha PW12.
It is pertinent to mention that when prosecutrix was allegedly asked by Imran to accompany him from her house, she could refuse but she did not refuse to accompany him. Admittedly, when she accompanied Imran to roam about and she did not raise hue and cry at the time she left her house. She also did not tell auto rickshaw driver that she was being enticed away by accused Imran.
In her cross examination, the prosecutrix admitted that she accompanied Imran to the house of Zakir out of her free will. Imran did not threaten her or use any force. She further admitted to have accompanied Imran accused with other friends earlier also for visiting some places. She candidly admitted that she and Imran had love affair.
From this statement of prosecutrix, who was about 19 years of age on the given date, it cannot be said that she was kidnapped or abducted by Imran accused, what to say of prosecution of criminal conspiracy of his coaccusedhis parents and brother Irfan.
FIR No. 121/2007 19
Rather it appears that she accompanied Imran accused, her relative to roam about in his company voluntarily.
Offence under Section 366, 376 IPC and 328 IPC
10. A perusal of statement made by prosecutrix in court when compared with her statement Ex.PW4/1 made before the police would reveal that she has improved upon her previous version over making of phone call to accused Smt. Hasina Begam so as to inform her that her son Imran wanted to take her to the house of Zakir and that she was not willing to accompany him but his mother told her that there was no problem in accompanying her son to the house of Zakir who was a known person. This fact does not find mention in her statement Ex.PW4/1 made before the police. Had the prosecutrix made any such phone call from mobile phone of Imran she would not have omitted to state so while making statement before the police. No CDR of mobile phone of Imran to lend corroboration to the version of the prosecutrix about making of any phone call by her before accompanying Imran, accused from Chanakyapuri park for Mustafabad.
As per version narrated by the prosecutrix in court, Zakir, accused brought cold drink which she took on insistence of Imran accused. Thereafter, she felt giddiness. Imran, accused once FIR No. 121/2007 20 again sent Zakir accused to bring some articles. She felt intoxicated and became unconscious. According to prosecutrix, she regained consciousness after 4.00 p.m. At that time, she saw that Imran accused was putting clothes on his person. So according to prosecutrix, Imran, accused did commit rape on her in the said room.
As noticed above, learned counsel for accused has contended that no medical evidence has been led by the prosecution to prove that any substance was added to the cold drink served to the prosecutrix. There is nothing to suggest that any incriminating material was recovered from the said room of Zakir accused. Had the prosecutrix been medically examined on the same day and had any incriminating material been recovered from the room of Zakir then the things would have been otherwise.
It this regard, it may be mentioned that on comparison of statement made by the prosecutrix in Court with the statement made before the police i.e. Ex PW4/1 would reveal that she has made improvement upon material aspects.
While making statement in Court, the prosecutrix stated that on insistence of Imran accused she had taken cold drink but this fact does not find in her statement Ex PW4/1. In Ex PW4/1 what stands recorded in that when she and Imran were made to sit together in a room, after opening its lock, Imran asked Zakir to FIR No. 121/2007 21 bring a cold drink and that is how the same was served to her. The fact remains that words "insistence by Imran to have cold drink" does not find mention in the statement made by the prosecutrix before the police and she has made improvement upon this aspect.
It is case of the prosecution that Imran and prosecutrix reached the house of the Zakir at about 4 pm and they remained their for about 3 /4 hours. It is not case of the prosecution that in the room where the prosecutrix and Imran were made to sit together, any one other than Imran was present. The prosecutrix stated before the police that for the second time when Imran sent Zakir to bring something, Zakir put latch from outside while leaving the room.
It is not case of the prosecution that on 05.04.2007, the prosecutrix was got medically examined so that any stupefying substance could be detected. It is also not case of the prosecution that any incriminating material was recovered from the house of Zakir so as to connect him and Imran with the offence under Section 328 IPC.
In the given circumstances, even if the prosecutrix had accompanied Imran to the said house of Zakir on that date, of her free will, having seen that the latch had been put by the Zakir from the outside, she should have raised hue and cry. There is FIR No. 121/2007 22 nothing in the statement of the prosecutix that she raised any hue and cry so as to attract passerby or by way of resistance. This conduct of the prosecutrix creates doubt in the version narrated by her as to administration of stupefying substance at the house of Zakir.
As noticed above, according to the prosecutrix, she felt intoxicated and became unconscious and regained consciousness after 4.00 p.m. As per the statement of the prosecutrix made before court, after she was administered cold drink with some substance added to it, Imran made her to lie on the bed and that she asked her not to remove her clothes, but Imran accused represented that his mother had expressed her willingness for their marriage. Had the prosecutrix become unconscious, she could not state about these facts in her statement Ex.PW4/1. Even otherwise, had it so happened, the prosecutrix must have stated so in her statement made before the court. In her statement made before the court, the prosecutrix nowhere stated that after she was administered cold drink with some substance added to it, she was made to lie on a bed and Imran started removing her clothes to which she objected and thereupon, he told about consent of his mother for their marriage. FIR No. 121/2007 23
Under Section 376 IPC
11. As per version of the prosecutrix, at the house of Zakir, Imran accused made her to lie on a bed, removed her skirt to which she objected but the accused represented that her mother had expressed her willingness for their marriage and as such he committed sexual assault.
As noticed above, according to the prosecutrix, she was in love with Imran son of her maternal uncle. There is nothing in her statement to suggest that up to 05.04.2007 any differences arose between her and her family members or Imran or his family members over this love affair or that any proposal put forth by her parents for marriage with Imran had been turned down. Therefore, there was no occasion for Imran to suggest to the prosecutrix that her mother had then expressed her willingness for this marriage.
The prosecutrix was not medically examined on 05.04.2007. She was got medically examined on 08.04.2007. There is no just explanation for nonexamination of the prosecutrix medically on the same day. Even otherwise, at the time of her medical examination on 08.04.2007, doctor did not observe any external injury or any signs of forced intercourse. The doctor also did not observe any tear or laceration on exploration of Vagina. In view of FIR No. 121/2007 24 these observations by the doctor and examination of the prosecutrix immediately after 05.04.2007, it is difficult to believe the version narrated by the prosecutrix that on 05.04.2007, she was subjected to sexual assault by Imran at the house of Zakir accused.
In Ex PW1/A i.e. MLC of the prosecutrix, as per history narrated by her to the doctor, she had not changed her under garments since commission of rape, but she had taken bath after its commission and changed other clothes. Accordingly, one undergarment i.e. panty was seized and sealed by the doctor, as finds mention in MLC Ex PW1/A. In her cross examination, the prosecutrix stated that on the date of occurrence, she was wearing a burqua over skirt and top. According to her she had concealed her skirt and top on reaching her house and she did not tell her mother and sister about it. At another stage, she stated to have produced before the police skirt and top, 23 weeks after the occurrence.
A perusal of record would reveal that panty was analyzed at FSL, Kolkata but semen was not detected on this item.
In her cross examination prosecutrix admitted to have come out of the house at 9.30 pm. While making statement in Court, she deposed that she regained consciousness after 4pm. At that time, she saw Imran making her to wear clothes. She inquired FIR No. 121/2007 25 from Imran as to what he had done to her. Thereupon, it transpired that Imran had subjected her to sexual assault. However, this fact does not find mention in her statement Ex PW4/1.
It is significant to note that in her statement Ex PW4/1, the prosecutrix added that Imran had administered her a tablet in cold drink saying that with its intake, she would not get pregnant. However, this fact does not find mention in her statement made in Court.
When according to the prosecutrix, she regained consciousness after 4 pm, she should have left the house immediately thereafter. But in her cross examination she stated to have left the house of Zakir after 34 hours i.e. at about 7/8 pm. She has not explained her stay at the said house even after having regained consciousness.
In the given situation, having regained consciousness and come to know that she had been sexually assaulted she would have raised hue and cry. But there is nothing on record to suggest that she took any steps in this direction.
In her cross examination she admitted to have not raised any hue and cry even after having come out of the house of Zakir. She is alleged to have accompanied Imran to her house and reached their at about 99.30 pm. She could raise hue and cry on FIR No. 121/2007 26 the way so as to bring commission of crime to the notice of the public or police, but there is no such evidence.
She was carrying a mobile phone, as stands admitted in her cross examination. After having regained consciousness she could call her mother and relatives and inform her about the occurrence. Admittedly, she did not inform them mother or any other relative from mobile phone immediately after the occurrence. Prosecutrix reached her house at about 99.30 pm. Even at that time, she did not inform her mother about the occurrence. In this regard reference may be made to the cross examination of the prosecutrix and statement of her mother PW6 Smt. Shahida that on reaching her house, she told her mother that she was away to house of her girl friend. PW12 Ms. Nisha stated contrary to this statement of her mother that prosecutrix told them that she was sent by maternal aunt with Imran. This statement of the prosecutrix is not inconsonance with the statement made by PW6 Smt. Shahida as according to her when her daughter returned home after about 8 pm, while crying and her face was pale as she had been scolded by her son. Prosecutrix no where stated that she was scolded by her brother when she reached home at about 9.30 pm. It appears from the circumstances that the prosecutrix was consenting party. In this regard learned counsel has rightly FIR No. 121/2007 27 referred to decision in Satbeer Singh vs. State 2004 (3) CC Cases(HC) 99, Kuldeep K. Mahato vs. State of Bihar 1998 CAR 424 and Ramu v. State of Haryana 2002 (1) CC Cases (HC) 127.
Conclusion
12. From the material available on record and the above discussion, this court finds that prosecution has failed to substantiate accusations levelled against the accused persons beyond shadow of reasonable doubt. Extending benefit of doubt, all the accused persons deserves to be acquitted of all the charges framed against them. I order accordingly.
Case property be disposed of in accordance with rules on expiry of period for appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 27.11.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No. 121/2007 28