Delhi District Court
State vs Mohd. Irshad And Others//Fir ... on 1 May, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE:SPECIAL FAST TRACK
COURT:ROHINI :DELHI
Sessions Case No : 57397/16
STATE
V/S
1. MOHD. IRSHAD,
S/O. MOHD. ILYASH,
R/O. E/656, JAHANGIRPURI,
DELHI.
2. MOHD. ABID,
S/O. ABDUL SHAKOOR,
R/O. E517, JAHANGIRPURI,
DELHI.
3. SHAKEEL,
S/O. MOHD. HANIF,
R/O. E511, 1st FLOOR,
JAHANGIRPURI,
DELHI.
4. LAJPAT RAI,
S/O. HARISH CHANDER,
R/O. H.NO.102, MOHHALA
PUNJABAN THE KHURJAN,
BULANDSHEHAR, U.P.
STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 1 of 15
FIR No : 42/13
Police Station : SWAROOP NAGAR.
Under Section : 376A/365/279/34 IPC & SECTION 3
OF PDPP ACT.
Date of Committal to Sessions Court: 16.04.2013
Date on which Judgment reserved: 24.04.2019
Date on which Judgment announced: 01.05.2019
Present: Shri Ashok Kumar, ld. Addl. PP for State.
Shri Kameshwar Mishra, ld. Counsel for all four accused.
JUDGMENT
1. All four accused persons have been forwarded by police to face abduction and rape trial.
2. Police case is that the prosecutrix had come to Delhi two months prior to the incident alongwith her brotherinlaw (Jija) Chotu and started residing in Sector16, Rohini with him and her sister. She developed friendship with accused Shakeel and accompanied him outside twice or thrice for strolling as he had promised to marry her. On 06.02.2013, at about 7:30 P.M., Mohd. Shakeel alongwith his two friends, whose names she later came to know through their conversation as Mohd. Irshad and Mohd. Abid, came there in Santro car number DL 8CG6980. She was taken to the house of their friend namely Lajpat Rai STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 2 of 15 situated in Uttarakhand Colony. The accused persons took drinks there and she was also made to take drink. She was gangraped by them all turn by turn from 8:30 P.M. to 2:00 A.M. of 07.02.2013. After raping, accused Mohd. Shakeel and his friends Irshad and Abid were bring her back in the same car to drop at Rohini. The car was chased by police officials and was taken to the police station.
3. Charge under Section 376D IPC and 365/34 IPC was framed against accused all accused persons on 24.05.2013 to which they pleaded not guilty and claimed trial.
4. In order to substantiate the case, the prosecution examined as many as 25 witnesses.
PW4 HC Krishan Pal was incharge PCR Sugar8 in the night intervening 6/7.02.2013 from 8:00 P.M., to 8:00 A.M. He alongwith others was checking vehciels in front of the Transport Authority, Burari, when a Santro car bearing number DL8CG6980 having tinted glasses came from the side of village Burari at 2:53 A.M. Signal was given to stop the car but the driver rammed the same in barricades and sped away towards ring road, Wazirabad. He started chasing the car and on the way, flashed messages to other PCR. PCR Vans Sugar10 & Sugar - 11 also started chasing the vehicle. At last, the Santro car was stopped at Wazirabad flyover in which three boys and a girl were found sitting. The boys were under the influence of liquor and they disclosed their names as Irshad, Abid and Shakeel. The girl told during enquiry that she had been abducted by the accused persons from Sector16, Rohini and raped. He STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 3 of 15 deposed that he intimated those facts to control room Sugar1 and took the boys, girl and Santro card to PS Burari and handed over to the police officials. Santro car number DL8CG6980 was seized vide seizure memo Ex.PW4/B bearing his signature at point A. He identified the car as Ex.P1. He lastly deposed that he had handed over copy of call book Ex.PW4/A of his van, which is in his handwriting.
PW8 HC Darshan Singh was the Incharge of PCR Van Sugar10 and his duty was also from 8:00 A.M. to 8:00 P.M. He deposed the facts deposed by PW4.
PW15 HC Kuldeep Singh was incharge of PCR Van Sugar 11 and he also deposed on the same line as deposed by PW4.
PW19 ASI Rajinder Singh deposed that in the night intervening 6/7.2.2013, he alongwith HC Sheeshpal and Ct. Ramesh was on duty on a picket near Burari Transport Authority and was checking vehicle after placing barricades. A silver colour Santro car was seen coming from the side of Burari and going towards ring road and it was being driven at very high speed and had tinted glasses due to which nothing was visible inside the car. Signal was given to stop the car but it hit barricades and fled towards ring road. He next deposed that a PCR Van Sugar 8 was stationed at a distance of 100150 yards from them and hence, that PCR Van started chasing it. After two hours, staff of PCR came to Transport Authority Burari and informed that the car had been stopped at Wazirabad. He next deposed that the official of PS Burari directed him, HC Sheeshpal and Ct. Ramesh to reach the police station STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 4 of 15 after completing duty hours. So, they reached at the police station at 6:00 A.M., where W/SI Neeraj informed that there were five persons in the car four male and one female. He came to know the name of males as Irshad, Shakeel, Abid and Lajpat Rai.
Evidence of PW23 ASI Shishpal is on the line of testimony of PW19.
5. PW18 SI Pawan Kumar was posted as SI on CPCR on 07.02.2013 when he received a call at 2:53 A.M. regarding hitting of barricades by a car near Burari Authority. He recorded the call print out of which in the form of PCR form is Ex.PW18/A.
6. PW22 SI Naveen Kumar deposed that he was posted in PS Burari in the night intervening 6/7.02.2013 and was on emergency duty from 8:00 A.M. to 8:00 P.M., with Ct. Ishwar. After receipt of DD No.7A regarding an accident at Burari Authority picket, he alongwith Ct. Ishwar reached there and found none. After inquiry from District Control Room, he was told that the occupants of the vehicle had already been taken to PS - Burari by PCR officials. He returned to the police station and made inquiry from HC Krishan of PCR Van Sugar8. Prosecutrix told him that accused persons had kidnapped and rape her. He intimated those facts to the SHO PS Burari, who assigned investigation to W/SI Neeraj and so, he handed over the accused persons and prosecutrix to newly appointed IO.
PW7 Ct. Ishwar Singh deposed on the same lines of evidence of PW22. Additional testimony is that all four accused persons STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 5 of 15 and prosecutrix were taken to Aruna Asaf Ali Hospital where they were medically examined and after medical examination, the doctor had handed over sealed pullandas containing exhibits, which were seized by him. He next deposed that the incident pertained to PS - Swaroop Nagar and hence, after registration of Zero FIR in PS Burari, the accused persons and prosecutrix were taken to PS - Swaroop Nagar.
7. PW20 W/SI Neeraj is almost the 2 nd IO. She deposed that she reached PS Burari on receipt of information on 07.02.2013 at 3:00 3:15 A.M., SI Naveen produced all three accused persons and prosecutrix before her and she recorded statement Ex.PW20/A of the prosecutrix, made endorsement Ex.PW20/B and got registered the Zero FIR. In the meantime, the associate of accused persons Lajpat Rai also reached there and he was identified by the prosecutrix as the 4 th person who had also raped her. She next deposed that all accused persons and prosecutrix were taken to Aruna Asaf Ali Hospital where their medical examination was conducted. Exhibits of accused persons Shakeel, Abid, Lajpat and Irshad were seized vide seizure memos Ex.PW17/A, Ex.PW16/B, Ex.PW20/C and Ex.PW20/E respectively. The Santro Car was seized vide memo Ex.PW20/D bearing signatures at point B. HC Sheesh Pal had produced broken barricade which was taken into possession vide memo Ex.PW20/F. As per the statement of prosecutrix, the offence had occurred in the territorial jurisdiction of PS - Swaroop Nagar and hence, she produced all accused persons, prosecutrix and all documents before SHO, PS - Swaroop Nagar. She identified the santro STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 6 of 15 car Ex.P1 and barricades Ex.P2.
PW17 W/Ct. Savitri deposed that all four accused persons and prosecutrix were produced in police station by HC Krishan Kumar. On inquiry, the victim had told W/SI Neeraj that she had been raped by all accused. Her statement was recorded and thereafter the accused persons and victim were taken to Aruna Asaf Ali Hospital and after their medical examination the doctors handed over exhibits of the prosecutrix to IO who seized the same vide seizure memo Ex.PW17/A bearing her signature at point A. Thereafter, she accompanied W/SI Neeraj, all accused persons and prosecutrix to the police station Swaroop Nagar. She identified the barricade and santro car as Ex.P1 and Ex.P2 respectively.
PW16 Ct. Bani Ram deposed that on 07.02.2013, he alongwith W/SI Neeraj, Ct. Amit, Ct. Ramesh and W/Ct. Savitri took all accused persons to Aruna Asaf Ali Hospital for medical examination. After medical examination, exhibits were handed over by the doctor to IO who seized the same. The accused and prosecutrix were brought back to the police station, zero FIR was got registered and after investigation was assigned to PS - Swaroop Nagar as incident of rape had occurred in the territorial jurisdiction of that PS.
8. PW2 ASI Bhim Singh registered zero FIR Ex.PW2/A on 07.02.2013 at 6:00 A.M., when W/SI Neeraj handed him over rukka. After registration of FIR, original rukka and copy of FIR were given to the IO.
STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 7 of 15 PW1 HC Bhagwan Singh was the duty officer in police station Swaroop Nagar on 07.02.2013 and registered the case FIR Ex.PW1/A at 3:00 P.M. on receipt of zero - FIR from PS - Burari and handed over copy of FIR and original rukka to Ct. Sunita for handing over the same to W/SI Snehlata to whom further investigation was assigned.
9. PW3 Dr. Surender Kumar deposed that he examined accused Shakeel on 07.02.2013 and prepared the MLCs Ex.PW3/A, took samples and handed over the same to the IO and referred the case to Forensic Medicine and SR Surgery for further examination and opinion.
PW21 Dr. Kamini Singhal had medically examined the prosecutrix, accused Irshad, Abid and Lajpat Rai vide MLCs Ex.PW21/A to Ex.PW21/D respectively bearing her signatures at points A. PW5 HC Charan Singh was working as MHC(M) in PS -
Swaroop Nagar on 07.02.2013 when W/SI Shashi Lata deposited with him three, four, four, four and four pullandas on the same day at different times and he made entry no. 632 Ex.PW5/A in register no.19. Personal search articles were deposited by SI Neeraj on the same day i.e. 07.02.2013 and he made entry at serial no.633 Ex.PW5/B in register No.19. He next deposed that santro car bearing registration number DL 8CG6980 and broken the barricade were also deposited on the same day and he made entry at serial no. 634 Ex.PW5/C in register no.19. On 15.02.2013, he had handed over the exhibits to Ct. Vinay Kumar vide STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 8 of 15 RC No. 15/21/13 but the same could not deposited in the FSL due to some objection and he again deposited the exhibits in sealed condition in Malkhana. Those exhibits were again sent through Ct. Vikas Pradhan on 18.02.2013 vide RC No. 17/21/13. At that time also, the exhibits could not deposited due to some objection and hence, he again deposited the exhibits in sealed condition in the malkhana. Third time, on 20.02.2013, the exhibits were sent to FSL through Ct. Vikas vide RC No.21/21/13. This time, some exhibits were deposited while some other were returned with some objection. He again deposited remaining exhibits in sealed condition in malkhana.
Ct. Vikas PW11 deposed that he took the delivery of the exhibits from MHC(M) on 20.02.2013 vide RC No. 21/21/13 and deposited in the FSL and after deposit, handed over acknowledgment receipt to the MHC(M). He claimed that he did not tamper with the exhibits as long as the same were in his possession.
10. PW6 SI Naresh Pal was incharge Crime Team on 08.02.2013 when he alongwith his staff inspected the car bearing registration number DL8CG6980 in PS - Swaroop Nagar and prepared report Ex.PW6/A. PW10 Ct. Subhash was also part of the mobile crime team when he clicked photographs Ex.PW10/B1 to Ex.PW10/B11 on 08.02.2013. Negatives of those photographs are Ex.PW10/A1 to Ex.PW10/A11.
PW9 Raj Kumar is a property dealer as well as agriculturist.
STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 9 of 15 He used to run his office in a house in Uttarakhand Enclave, near Burari and for office purposes, he had employed a boy namely accused Lajpat Rai, who used to reside in the office itself and was residing in that office on the day of the incident.
PW24 ASI Devender Kumar claimed himself to be a qualified Grade1 Mechanic having done specialized training in Automobile and Vehicle Mechanic from ITI, Delhi. He deposed that he mechanically inspected the santro car DL8CG6980 on 10.02.2013 and noticed that fresh damage on rear bumper. Both bumpers were found dislocated. He prepared mechanical inspection report Ex.PW24/A. PW13 Ms. Anita Chari, Senior Scientific Officer (Biology Division) conducted biological examination of the exhibits and prepared reports as Ex.PW13/A and Ex.PW13/B. PW14 Gopal Krishan, Dealing Assistant from State Transport Authority, Wazirpur, Delhi deposed as per record, car no. DL 8CG6980 was registered in the name of Mohd. Irshad on 19.12.2001. The document of the car is Ex.PW14/A.
11. PW12 Ct. Ram Avtar deposed that W/SI Neeraj from PS Burari produced prosecutrix, four accused persona and documents before SHO, Police station Swaroop Nagar, who instructed registration of case FIR and handed over investigation to W/SI Shashi Bala. Accused were arrested and personally searched vide memos Ex.PW/A to Ex.Pw11/H respectively and their disclosure statement Ex.PW11/J to Ex.PW11/M were recorded. He next deposed that he and IO took the accused persons STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 10 of 15 and victim to Uttarakhand Enclave, PartII, Burari, where the place of occurrence was pointed out by four accused persons and pointing out memos Ex.PW11/N to Ex.PW11/Q respectively were prepared.
12. PW25 W/Inspector Shashi Lata is the last IO. She deposed that W/SI Neeraj produced all four accused persons, prosecutrix, santro car, exhibits and documents before her on 07.02.2013. She handed over zeroFIR copy to the duty officer on the basis of which she registered case FIR and thereafter, she arrested the accused persons and recorded their disclosure statement after interrogation. Thereafter, the accused persons led them to the place of incident and pointed out the same as the place where they had raped the victim. At the instance of the prosecutrix, she had prepared rough site plan Ex.PW25/A. She deposed that crime team had inspected the spot on 08.02.2013 and she recorded the statement of members of that team and also collected the PCR form. She got the offending vehicle mechanically inspected through ASI Devender on 10.02.2013. Case properties were deposited in FSL on 20.03.2013 and thereafter she filed the chargesheet.
13. Under section 313 Cr.P.C., the accused persons denied the whole incriminating material.
14. Ld. Addl. PP argued that accused Mohd. Irshad, friend of the prosecutrix, he came to her house on 06.02.2013 at 7:30 P.M. in the company of his friends Abid and Shakeel and took her in his santro car DL8CG6980 to the room of 4th friend Lajpat Rai. There, all four accused drank to full capacity and also forced the prosecutrix to have STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 11 of 15 liquor and thereafter, she was raped from 8:30 PM to 2:00 A.M. After raping, they were bringing her back from Burari to Sector16, Rohini, where she used to reside with her sister and brotherinlaw. It is was midnight when their car was signaled to stop. Instead of stopping, it was rammed into barricades and the occupants drove the car towards ring road. He next argued that car was chased by several police officials and ultimately, it was stopped at Wazirabad flyover. He argued that DNA report is against the accused. It was accused Irshad, who was driving and moreover, the vehicle is owned by him. It was he who had hit the car in barricades and in this way, he committed an offence u/s. 279 IPC and Section 3 of the Prevention of Damage of Public Property Act.
On the other hand, ld. Counsel for the accused argued that the prosecutrix did not appear in the witness box and hence it cannot be said that any of the accused had done sexual intercourse with her. About the FSL report, he argued that it is only Mohd. Irshad. But the report does not prove that he had raped the victim because the victim did not appear in the witness box to say that sexual intercourse was done by accused Irshad. He next argued that none of the prosecution witnesses deposed that the offending vehicle was being driven by accused Irshad when it was rammed into barricades. He did not question the mechanical inspection report and the crime team spot inspection report saying that the same come into play only after establishment of the fact that the offending vehicle was being driven by any of the accused.
15. Jeans Pant, Tshirt, underwear and bra of the prosecutrix STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 12 of 15 were sent to the FSL. Simultaneously, the blood samples of all accused were also sent to FSL which came to the conclusion in DNA Finger Printing Report Ex.PW13/A that human semen was detected on Jeans Pant, TShirt and underwear of the prosecutrix. After DNA examination the laboratory reported that the DNA profile from the source of exhibit i.e. blood gauze of accused Mohd. Irshad was similar with DNA profile from the source of exhibit i.e. Jeans Pant, TShirt and underwear of the victim. However, the DNA profile on the source of exhibit i.e. blood gauze of accused Mohd. Abid, Lajpat Rai and Mohd. Shakeel were not similar with the DNA profile from the source exhibit i.e. Jeans Pant, T Shirt and underwear of the victim. So, the report is only against accused Mohd. Irshad to the effect that the human semen found on the Jeans Pant, TShirt and underwear of the prosecutrix was of the accused Irshad. But that report, in itself, does not prove that Mohd. Irshad had committed sexual intercourse with the prosecutrix because his semen stains were found only on the clothes of the victim and not in his vagina. Moreover, the prosecution did not examine victim to prove that any of the accused had sexual intercourse with her and that also without her consent or against her will. So, the prosecution has failed to prove rape charge against any of the accused.
16. The prosecution story in chargesheet was that PW4, PW8, PW15, PW18, PW19 and PW23 were the persons who had chased the offending vehicle in which accused persons were travelling. They all were the competent witnesses to depose which of the accused was STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 13 of 15 driving the Santro car. Perusal of their evidence shows that none of them deposed that Mohd. Irshad was driving the car.
It is not in dispute that the car in question is owned by the Irshad. But only on strength of the ownership, the court cannot reach to the conclusion it was being driven by him, when it was rammed into barricades.
The broken barricade was taken into possession vide memo Ex.PW20/F and was produced in the court as Ex.P2 in broken condition. The Santro Car was seized vide seizure memo Ex.PW4/B, in which it is mentioned that its front and rear bumper were both found damaged and left mirror was broken and there were scratches on the right side touching of barricades. It is mentioned in the mechanical inspector report Ex.PW24/A that front and rear bumpers were damaged and dislocated from both sides. There were dents and scratches on the body. Right front door also had scratches. The left side mirror was also found damaged. Crime inspection report Ex.PW26/A is to the effect that the front bumper was found damaged from left and right side. The front number plate was found affixed in zigzag manner. The front head light and bumper were found having scratch marks on the right side i.e. driver side. All these documents show that car in question was damaged on the day of the incident when the same was rammed into barricades. Due to collison, public property i.e. barricade was damaged. But the million dollar question is who was driving the car when it was rammed into barricades. On that point, every prosecution witness is silent. So, the prosecution has STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 14 of 15 failed to prove case against any of the accused u/s. 279 IPC and Section PDPP Act.
17. In view of above discussion, accused persons Mohd. Irshad, Abid, Shakeel and Lajpat Rai are acquitted of the offences they were charged with.
The personal and surety bonds of the accused persons are hereby cancelled. Sureties are hereby discharged. The endorsement made, if any, on any document of soundness of sureties, be cancelled and the document be returned to sureties.
18. However, in terms of Section 437(A) Cr.PC., accused persons have furnished the fresh personal bonds in the sum of Rs.10,000/ each with one surety of like amount, which are accepted with the directions to appear before higher court, in the event, they receive any notice of appeal or petition against the Judgment.
File be consigned to record room
Announced in the open Court (Umed Singh Grewal)
on this 01st May, 2019 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
STATE VS MOHD. IRSHAD AND OTHERS//FIR NO.42/13// PS - SWAROOP NAGAR 15 of 15