Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, on 17 August, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 453/2018
Assigned to Sessions. 03.07.2018
Arguments heard on 17.08.2018
Date of Judgment 17.08.2018
FIR No. 42/2018
State V Mudasir Hamid, s/o. Hamidullah
Gaine, r/o. Village Banghal, P.O.
Sopat, Teh. & P.S. Devsar, Distt.
Kulgam, Kashmir.
Police Station Darya Ganj
Under Section 376 (2)(n) IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Darya Ganj had
filed a challan vide FIR No.42/2018 dated 03.02.2018 u/s. 376 IPC for the
prosecution of accused Mudasir Hamid in the court of ld. Metropolitan
Magistrate. After compliance of the requirement of section 207 Cr. P.C. the
case was sent to this court being the designated Special Fast Track Court for
trial of the offences of sexual assault against the women through the Office of
Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view
of section 228 (A) IPC and directions of Supreme court in "State of Karnataka
Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006,
CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
Case No.453/2018
State Vs. Mudasir Hamid 1/10
BRIEF FACTS OF THE CASE:
2. On 03.02.2018, prosecutrix gave complaint in police station alleging that accused Mudasir Hamid had been living on rent in the same building where she resides and she became friendly with him in August 2013 and after that she continued to meet and talk with him and during these talks accused promised her to marry and on this pretext he made sexual relationship with her on 4 th floor of his flat in the said building. She also alleged that she became pregnant on account of the physical relationship made by accused with her and her family came to know about this and then accused get her abortion done forcibly in a clinic in Karol Bagh. Thereafter, family members of the prosecutrix meet the family members of accused in Amritsar, Punjab for the purpose of marriage of prosecutrix with accused but before members of Muslim Committee Punjab parents of accused refused to marriage of prosecutrix with accused. So, she lodged a complaint for taking action against the accused as he has made physical relationship with her on false pretext of marriage.
3. On the basis of complaint of prosecutrix, W/SI Meenakshi got registered the case in PS Darya Ganj. She got prosecutrix medical examined. She refused her internal examination. Prosecutrix was also counselled and also pointed out the place of incident at 4th floor in the building where accused had established physical relationship with prosecutrix. On 05.02.2018, statement of prosecutrix u/s 164 Cr.P.C. was got recorded by I.O. through Ld. MM. Thereafter, on 08.03.2018 accused was arrested on the identification of prosecutrix and he was medically examined at LNJP Hospital. After completing investigation charge sheet was filed and the matter was committed to this court for trial.
Case No.453/2018 State Vs. Mudasir Hamid 2/10CHARGE:
4. On the basis of material available on record, this court vide order dated 25.07.2018 framed charge against accused Mudasir Hamid for the offence punishable u/s 376 (2) (n) IPC, to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
5. So far prosecution has examined only three witnesses.
6. PW1: Prosecutrix 'S' is a material witness being victim and complainant. She deposed that she has studied upto 6th class. Her family consists of her mother, one brother and four sisters including her. Her father has expired. She has correctly identified the accused to be the same person against whom she had lodged the present complaint.
7. PW1 further deposed that accused is her husband. His name is Mudasir Hamid.
She knows accused for last 45 years. She further deposed that she married him about 3 months back by way of Nikah with the agreement of her family members and family members of accused. She deposed that she had lodged complaint against the accused on account of some misunderstanding. She further deposed that accused is a resident of Kashmir and he had left Delhi and did not contact her for quite a long time, so she thought that he is avoiding her and cheating her as accused had established physical relationship with her on promise of marriage. She does not remember the date when accused established physical relationship with her in her house on the top floor.
Case No.453/2018 State Vs. Mudasir Hamid 3/108. She has proved her MLCs MarkX and MarkX1 bearing her signature at point A. She has also proved her complaint vide Ex.PW1/A and her statement recorded u/s 164 Cr.P.C. vide Ex.PW1/B.
9. This witness was declared hostile by Ld. Addl. PP for the State. In cross examination by Sh. M. Zafar Khan, Ld. Addl. PP for State, she admitted that she had stated in her complaint Ex.PW1/A that accused had established physical relationship with her on pretext of marriage several times on the fourth floor of our building where he had been residing as a tenant. She deposed that she had stated to police that she had become pregnant on the account of the physical relationship established by the accused with her and her family members had also come to know about her being pregnant. However, this fact is not correct and she had stated so to pressurize the accused.
10. She admitted that she had stated in her complaint Ex.PW1/A that accused forcibly got her abortion done in a Parivar Sewa Clinic in Karol Bagh, Delhi. This fact she had falsely stated in her complaint. In fact, she did not undergo any abortion.
11. She admitted that she had stated in her complaint Ex.PW1/A that her family members had gone to the clinic of accused in Punjab where a meeting took place with his family members and her family members and parents of accused refused to marry accused with her. This fact is not correct, infact father of accused had come to Delhi with the proposal of marriage of accused with her.
Case No.453/2018 State Vs. Mudasir Hamid 4/1012. She admitted that she had stated in her statement Ex.PW1/B before Magistrate that Jija of accused tried to beat her family members during the Panchayat and family members of accused also told them to take compensation and remained silent and she told before Ld. Magistrate that she wanted justice and not the compensation. It is also not correct. She admitted that she had stated date of her abortion as 26.12.2017 in her statement Ex.PW1/B but this fact is not correct.
13. She admitted that today she has deposed about the true facts of the case and she had given false facts to the police and before the Ld. Magistrate during the investigation of this case.
14. She admitted that on her insistence and pressure police registered the present case. She had denied to the suggestion that she had signed arrest memo of the accused at the time of his arrest. On seeing the arrest memo Ex.PW1/C she identified her signature at point A thereon. She had denied to the suggestion that on her insistence accused was arrested in this case on 08.03.2018 or that she has deposed falsely in order to save the accused from the case.
15. On being cross examined by Sh. Mohd. Elahi, ld. counsel for accused, she deposed that she had dictated her complaint Ex.PW1/A to police. She had stated the facts of her pregnancy in her complaint Ex.PW1/A at the instance of police. She deposed that accused had established physical relationship with her on her consent. She admitted that accused had not established physical relationship with her by any cheating.
Case No.453/2018 State Vs. Mudasir Hamid 5/1016. PW2: W/SI Sunita deposed that on 12.02.2018 she was given further investigation of this case while she was posted in PS Daryaganj, Delhi. She deposed that as per the mobile phone numbers given in the complaint of the prosecutrix she examined the call details record of accused and its location was found in the area of Tavi Vihar, Jammu & Kashmir. Then she along with SI Mukesh Tomar, HC Pheninder, Ct. Sonu and W/Ct. Ekta reached in Police Post Sidra by train. She deposed that initially they reached Jammu by a train and thereafter, reached Police Post Sidra by a car.
17. She further deposed that as per mobile phone location of the accused, some police officials from Police Post Sidra accompanied them to search the accused in Tavi Vihar. They in the company of local police reached at the house of the accused in Tavi Vihar but the address of the accused was not found present there. Thereafter, they approached Division Officer, Nagrota, Kashmir to find out the current location of accused but could not be traced. Thereafter, she talked to her ACP and SHO in Delhi on phone and on their instructions, she reached Anantnaag at the house of the accused but it was found that it was falling in the district Kulgam. They reached there but he was also not found present there. Thereafter, they all returned back to Delhi by leaving local police officials there.
18. She further deposed that on 08.03.2018 accused surrendered himself in police station along with prosecutrix. She interrogated him and arrested him vide arrest memo already Ex.PW1/C bearing her signature at point B. His personal search was conducted vide personal search memo Ex.PW2/A bearing her signature at point A. He was medically examined vide MLC MarkXX Case No.453/2018 State Vs. Mudasir Hamid 6/10 regarding his potency. She recorded supplementary statement of prosecutrix Ex.PW2/B bearing her signature at point A and HC Som Nath under section 161 Cr.P.C. She has correctly identified the accused in the court.
19. On Court question:Had you recorded the same statement of the prosecutrix which she had stated to you? She replied that yes, she had recorded word to word statement of the prosecutrix whatever she had told her.
20. On being cross examined by Sh. Mohd. Elahi, ld. counsel for accused, she deposed that prosecutrix had dictated her statement to her which she recorded. She had denied to the suggestion that she did not visit area of Anantnaag or Jammu & Kashmir or Kulgam etc. or that she has deposed falsely in this regard.
21. PW3: W/SI Minakshi is the Investigating Officer. She has deposed on the lines of investigation. She has proved statement of prosecutrix vide Ex.PW1/A. She prepared rukka Ex.PW3/A bearing her signature at point A. She took the prosecutrix to LNJP Hospital where she was medically examined vide MLC already MarkX1. Prosecutrix refused for undergoing her internal medical examination. Prosecutrix was also counseled from Ms. Pooja, counselor of DCW. She also visited the spot of incident where prosecutrix was raped on fourth floor of the building. She has proved site plan vide Ex.PW3/B. She has also proved the statement of the prosecutrix under section 164 Cr.P.C. vide Ex.PW1/B. She deposed that on 06.02.2018 further investigation of this case was taken over by W/SI Sunita.
Case No.453/2018 State Vs. Mudasir Hamid 7/1022. On being cross examined by Sh. Mohd. Elahi, ld. counsel for accused, she deposed that at the time she recorded the statement of prosecutrix, her sister and mother were present, she does not remember their names. She did not record their statements. She deposed that she visited the spot of incident on 03.02.2018 itself. This witness had denied to the suggestion that she did not record statement of prosecutrix properly or that statement of prosecutrix was manipulated by her to register the case or that prosecutrix never wanted to get the case registered against the accused or that she herself had registered the case voluntarily or that she is deposing falsely in the court.
23. Ld. counsel for accused requested to close P.E. on the ground that prosecutrix being a star witness, has not supported the case of the prosecution and no purpose would serve in continuing further trial.
24. On the other hand, Ld. Addl. PP for the State has objected to the prayer of ld. counsel for accused and submitted that the case of prosecution cannot be thrown overboard merely on the ground that prosecutrix has not supported the case of prosecution and that prosecution should be allowed to continue with the trial. Heard.
PERUSAL OF RECORD:
25. Since prosecutrix herself has turned hostile and has not supported the case of prosecution on any aspect, hence, no needful purpose would be served to continue with the trial. The allegation of rape cannot be proved by any other witness cited in the charge sheet except prosecutrix. Even if the testimony of Case No.453/2018 State Vs. Mudasir Hamid 8/10 other prosecution witnesses is accepted. It would not be of any help in the absence of supported version of prosecutrix which has not come on record as prosecutrix turned hostile and changed her version. Hence, the request of Ld. Addl. PP for the State for further examination of other witnesses is declined and P.E. is closed.
26. Since no incriminating evidence has come on record. Hence, S.A. u/s 313 Cr. P.C. is dispensed with. Accordingly, accused Mudasir Hamid is acquitted from the charge u/s 376 (2)(n) IPC.
27. Accused is directed to execute bail bond u/s 437 A Cr. P.C. in sum of Rs. 25,000/ with one surety in the like amount.
28. Since prosecutrix has been turned hostile. Hence, prosecutrix does not deserve for any compensation from the court.
29. The testimony in the present case is clear example of misuse of due process of law and such kind of cases is giving wrong message in the society. Earlier, prosecutrix has lodged the complaint with the allegation of rape by the accused and further before the Magistrate she had also given the same version and in the court, she had been turned hostile. On one call entire machinery of criminal system come in active mode and in the court prosecutrix turned hostile. Hence, it is a grave misuse of process of law by the prosecutrix. Such type of complaint is misusing the due process of law and defaced Delhi as rape Capital. Therefore, SHO is directed to take necessary action against the prosecutrix/complainant in the present case.
Case No.453/2018 State Vs. Mudasir Hamid 9/1030. Copy of this order be sent to SHO concerned for necessary action and compliance.
31. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 17.08.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Digitally signed by RAMESH KUMAR RAMESH Date:
KUMAR 2018.08.18
15:12:06
+0000
Case No.453/2018
State Vs. Mudasir Hamid 10/10