Delhi District Court
State vs (I) Salim @ Amir on 10 July, 2013
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeSpl. FTC2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 30/13
UID No. : 02401R0202942011
State versus (i) Salim @ Amir
S/o Sh.Late Mustafa
R/o H.No.2332, Gali Salim Shah
Kucha Challan,
Daryaganj
Delhi.
(ii) Armaan S/o Sh.Abdul Vashit
R/o H.No.3, Mandi Vaas
PS Kotwali, Muradabad, UP.
(Discharged vide order dated
7.6.11)
(iii) Mehfuz S/o Late
Mohd.Ibrahimh
S/o Late Mohd.Ibrahimh
R/o C05, Gali Masjid Wali,
Babarpur, Shahdara, Delhi.
Case arising out of:
FIR No. : 09/11
Police Station : Jama Masjid
Under Section : 363/376/120B IPC
Judgment Reserved on : 04.07.2013
Judgment pronounced on : 10.07.2013
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JUDGMENT
Case of the Prosecution:
The case as borne out from the chargesheet is that on 14.02.2011 at about 10:15 PM on receipt of information about commission of rape upon a girl, ASI Pushpa along with Ct.Santveer reached LNJP Hospital where they met ASI Mohd.Usman and Ct.Shiv Pal. ASI Mohd.Usman handed over to ASI Pushpa DD No.24A dated 14.02.2011 on the instructions of PS Jama Masjid. Statement of the victim 'F' (name withheld in order to protect the identity of the Prosecutrix) was recorded after her medical Ex.PW13/A, wherein she stated that she is illiterate and has been residing at H.No.1705, Suiwalan, Gali Takhatwali, Chandni Mahal, Delhi along with her father and younger brother. Her mother had expired about three years prior to the date of incident.
She further alleged that on 13.02.2011 she had gone to the house of her Mausi Jameela at about 3 PM and has started for her home at about 6 PM. When she reached at Bazar Chitli Kabar Sui Walan in front of Durga Chowmin, she started looking for clothes at the shop of :3: garments shop. One boy aged about 3032 years, who was present at the said garments shop told her that she can choose good quality cloth which is kept at the godown and she accordingly accompanied him to the said godown for the same. On the way that boy disclosed his name as Amir. She further alleged that after some time, Amir took her to a building whose name was later revealed as Hotel DRomana behind Jagat Cinema, where two persons were already present there, who did not inquire anything from both of them. Amir then took her to a room in the said hotel and pushed her inside the room. Three boys were already present in the said room who left from the said room upon their entering into the said room. It was further alleged that Amir bolted the door of the room from inside and started misbehaving with her and had bitten her on her left cheek forcibly and also scratched her behind her left ear with his nails.
It was also alleged by the Prosecutrix that when she resisted to his said acts, Amir caught hold of the hands of the Prosecutrix tightly and took off her clothes as well and his clothes and tried to put his private part into her private part. During this process, :4: Prosecutrix 'F' cried due to pain upon which, accused Amir left her. It is alleged that accused Amir made her sleep on the seat of a car which was parked outside the gate of Hotel. The Prosecutrix returned to her house in the morning.
It was further averred by the complainant that due to fear she did not disclose the matter to anyone at that time but on 14.02.2011 at about 2 PM, she disclosed the entire incident to her bua Shazia on phone, who called the police on 100 number. Her Bua took her to Lady Irwin hospital where the police from PS Chandni Mahal also reached there along with lady police and got the medical examination of the Prosecutrix conducted.
On the basis of the statement of the Prosecutrix, rukka was prepared and case under Sections 363/376/511 IPC was registered. During investigation, the Prosecutrix was got medically examined and her bone age Xray was also conducted whereby her aged was determined to be 16 years with margin of six months on either side. The exhibits were deposited in the malkaha and the Accused Amir was arrested at the instance of the Prosecutrix whose name was revealed as :5: Salim @ Amir. Further upon the disclosure statement of accused Amir, accused Armaan and Mehfuz were also arrested and section 120B IPC was added later on. It is further the case of the Prosecution that accused Mehfooz who is an employee at Hotel Deromana intentionally aided Salim @ Amir in committing the aforesaid offence for arranging a room for him in the said hotel through accused Arman, who acted as an agent in arranging the said room on asking of accused Salim.
It is also the case of the Prosecution that during the medical examination of the Prosecutrix 'F' by the Medical Board constituted for determination of her age, it was revealed that the victim 'F' is pregnant. The opinion regarding her pregnancy was given to her Bua 'S'. However, she informed the investigation agency that the Prosecutrix had slipped from the stairs on 25.03.2011 at about 8:30 PM, which resulted in bleeding and termination of her pregnancy. She was got medically examined at the emergency ward of LNJP hospital. 'S', Bua of the Prosecutrix also handed over the Emergency Card to the IO which was taken into police possession. The Call Detail :6: Record of all the three persons were obtained during the course of investigation and the charge sheet was subsequently submitted before the court for offence punishable under Sections 363/376/120B IPC on the basis of material collected during the course of investigation. Charges:
On the basis of material on record, Accused Salim @ Amir was charged for offence punishable under Section 376 IPC whereas accused Mehfuz Ahmad was charged for the offence punishable under Section 109 IPC read with Section 376 IPC vide order dated 07.06.2011 to which both of them pleaded not guilty and claimed trial. Accused Arman was however discharged vide order dated 07.06.2011. Prosecution Evidence:
As per record, Prosecution examined 27 witnesses to prove the guilt of the Accused.
The Prosecutrix 'F' being the star witness was examined as PW10. She deposed that on 13.02.2011 she had gone to the house of her aunt Jamila who lives near Daiwali Masjid and while she was returning to her house at about 6:30 PM and reached at the corner of :7: Chitlikabar at Durga Chowminwala near Suiwalan, she saw accused Salim present there who was selling clothes at footpath. She asked him to show the clothes for purchase to which she was told that better quality clothes were kept in the godown. The prosecutrix told him to show her the clothes at that place only and the accused took her to go to the godown. She further deposed that accused Salim took her to a room inside a hotel type building. Three persons were already present in that room. Those persons came out of the room. She also deposed that accused Salim pushed her forcefully inside the room and then bolted the room from inside. Inside the room accused Salim removed his clothes and then removed her clothes and committed rape on her. She also deposed that accused Salim threatened her to kill if she raised alarm.
The Prosecutrix further deposed that after she was left by accused Salim, she came out of the place and called her aunti Shazia on phone who took her to the hospital. She also deposed that she had given description of accused Salim to the police who had brought him to the Jama Masjid Police Station. The witness correctly identified :8: accused Salim by name and by specifically pointing at him. However, she failed to identify the other coaccused Mehfuz in court as she deposed that she do not know him and had never seen him.
The Prosecutrix further deposed that at the time of her medical examination she was wearing the clothes which included one shawl, one suit and shamiz and had identified the said articles vide Ex.P5 (one lady shirt), Ex.P6 (one Shameez) and Ex.P7 (one Salwar) when shown to her in the court. However, the Prosecutrix failed to state whether the name of the hotel was Deromana and denied that she stated this name to the police or that the hotel was situated behind Jagat cinema. The Prosecutrix also deposed having made statement under Section 164 Cr.PC (Ex.PW10/A) before the ld. MM and had also identified her signatures on the same.
'S' who is the Bua of the Prosecutrix was examined as PW11. She deposed that Prosecutrix 'F' is the daughter of her brother and since the wife of his brother had died about four years ago and his brother is mentally retarded, she is looking after his daughter i.e. the Prosecutrix 'F'. She further deposed that on14.02.2011 at about 5 PM :9: she received a call from the Prosecutrix who had asked her to reach at Hotel Deromana. She accordingly reached in front of the hotel and found 'F' present there. The Prosecutrix 'F' was not in good condition at that time. She also deposed that the Prosecutrix was missing from the house from the evening of 13.02.2011. Upon her asking Prosecutrix told her that on 13.02.2011 she was going to the house of Jamila Khala and she she reached near Durga Chowmeen Centre, she stopped near a cloth vendor. The Prosecutrix was having Rs.100/. She further deposed that the Prosecutrix 'F' asked the cloth vendor to show her clothes. However, the vendor said that cloth of better quality was available at another store. The witness was also told by the Prosecutrix 'F' that the said cloth vendor took her to Deromana hotel and further that the boy namely Salim threatened her and committed rape. This witness further deposed that on hearing from Prosecutrix 'F', she called the PCR but PCR did not reach there. She took the Prosecutrix to the hospital. PCR and local police met them at the said hospital. Police recorded the statement of Prosecutrix 'F'. This witness further deposed that Prosecutrix was got medically examined at the hospital and after :10: registration of the case, police took Prosecutrix to the place of occurrence. However, the witness herself did not accompany them.
In order to estimate the age of the Prosecutrix 'F', Prosecution examined the members of the Board viz., Dr.Sreenivas as PW2, Dr.G.S.Pradhan as PW3, Dr.Monica Kelkar and Dr.Sarita Shyam Sunder as PW16. After the examination so conducted by the aforesaid PWs the age of the Prosecutrix 'F' was opined around 16 years with margin of 06 months on either side. The report to this effect has been exhibited as Ex.PW2/A bearing signatures of each of the respective Board Member.
Dr.S.N.Basna stepped into the witness box as PW13 who was deputed by the Medical Superintendent of the LNJP Hospital in place of Dr.Ajaz, who medically examined the Prosecutrix vide MLC No.21733 dated 14.02.2011 and had left the hospital. This witness correctly identified the handwriting of Dr.Ajaz as he had seen him writing and signing during the official course of the duties. The said MLC is exhibited as Ex.PW13/A. Dr.Devender stepped into the witness box as PW12 who deposed regarding treatment of Prosecutrix :11: 'F' in his department vide EM No.2646. This witness advised the ultrasound vide his note Ex.PW12/A. PW5 is Dr.Savita who deposed that on 14.02.2011, while she was working as Sr.Resident in the Department of Gynae & Obstetrics, LNJP hospital the Prosecutrix 'F' was referred to Department of Gyne vide MLC No.64402 dated 14.02.2011. She along with Dr.Sunita and Dr.Parul examined the Prosecutrix. This witness proved detailed clinical note to this effect vide Ex.PW5/A. On the other hand Dr.Ubaid stepped into the witness box as PW1 and deposed regarding preparation of MLC of accused Salim and proved the same as Ex.PW1/A. This witness deposed that the patient was referred to Department of Forensic Medicine, MAMC for the opinion of sexual capability.
The witnesses of Prosecution also include PW7 ASI Hari Singh who deposed regarding receipt of an information on 14.02.2011 at about 8:40 PM about a rape with a girl at House No.1705, Gali Thakat wali, Gali Guliyan and lodging of the said information vide DD No.24A. He proved the same as Ex.PW7/A. PW6 is HC Jagdish :12: Prasad who deposed regarding receipt of rukka at about 1:55 AM on 15.02.2011 being sent by ASI Pushpa through Ct.Shiv Pal. This witness deposed regarding recording of the said entry vide DD No.4A and registration of FIR thereafter and proved the same as Ex.PW6/A. Ct.Santbir stepped into the witness box as PW26. He deposed that on the intervening night of 1415.02.2011 while he was posted at PS Jama Masjid, at about 9:45 PM he was sent by the SHO to the house of ASI Pushpa. Thereafter he along with ASI Pushpa reached at LNJP hospital as per the directions of SHO. On reaching the hospital ASI Mohd.Usmaan and W/Ct. Renu met them and informed them that Prosecutrix, SI Khalid Akhtar and W/Ct.Babita are also present in the hospital pertaining to medical examination of the Prosecutrix. He further deposed that ASI Pushpa handed over to him tehrir prepared on the basis of the complaint of Prosecutrix. IO had directed him to get the case registered on the basis of Tehrir. This witness upon being cross examined by ld. APP admitted that ASI Usmaan handed over DD No. 24A to ASI Pushpa as the incident pertaining to rape had taken in the area of Jama Masjid. He also admitted that he returned back to the :13: hospital at about 3:30 AM and handed over copy of FIR and original rukka to IO and that from the hospital he along with IO, prosecutrix and her Bua Sajia Bano reached at Deromana hotel at about 4:30 AM. He further admitted that the prosecutrix pointed out room No.205 on the second floor as the place of incident where incident of rape had taken place.
ASI Mohd.Usman was examined as PW14 who deposed that on 14.02.2011 at about 8:40 PM on receipt of a call from PS Chandni Mahal regarding the rape at H.No.1705, Takhatwali Gali, Guliyan, he lodged an information vide DD No.24A. Then he alongwith Ct.Renu and SHO went to JPN Hospital where they came to know that medical examination of a girl aged about 14 years was going on and the place of occurrence was hotel Deromana which fell in the area of PS Jama Masjid. He further deposed that ASI Pushpa and other staff from PS Jama Masjid also reached there and conducted further proceedings. ASI Pushpa got the case registered and after sending of rukka by ASI Pushpa from the hospital, all of them reached hotel Deromana where victim pointed out room No.205 as the room where she was raped. :14:
SI Khalid Ahkhtar was examined as PW15 who deposed that on 14.02.2011 at about 5:55 PM while he was posted at PS Chandni Mahal DD No.23 was assigned to him. He contacted the caller on his mobile No.9213883279, who introduced her name as Shajia, the Bua of the Prosecutrix and informed him that she had brought the Prosecutrix 'F' to LNJP hospital and was present there. This witness further deposed regarding his visit to the LNJP hospital along with L/Ct.Babita where they came to know that offence of rape had been committed at Hotel Deromana which falls within the jurisdiction of PS Jama Masjid. This witness further deposed regarding having communicated the information to the police of PS Jama Masjid and arrival of ASI Usman, one lady constable and ASI Pushpa from PS Jama Masjid to the hospital consequent thereupon.
PW25 is W/Ct.Babita who deposed regarding having taken the Prosecutrix to JPN hospital on 14.02.2011 on the directions of SI Khalid and collection of three pulandas duly sealed with the seal of the hospital and handing over of the same to IO/ASI Pushpa which were seized vide seizure memo Ex.PW25/A. Whereas PW8 HC :15: Brahma Nand deposed regarding deposit of the case property on 15.02.2011 at Serial No.806 in the register No.19 and proved the same as Ex.PW8/A. This witness further deposed regarding handing over of five sealed parcels with sample seal on 22.02.2011 to Ct.Ajay Pal for depositing at FSL, Rohini vide RC No.05/21 and proved his endorsement in this regard vide entry Ex.PW8/A at point P to P1. The further proved the original RC register and acknowledgment vide Ex.PW8/B and Ex.PW8/C respectively.
PW9 HC Lajpat Rai being the part of the investigation team on 15.02.2011 deposed regarding arrest of accused Salim, Arman and Mehfooz, conduct of their personal search vide memo Ex.PW9/A, Ex.PW9/B and Ex.PW9/C respectively, recording of their disclosure statements vide Ex.PW9/D, Ex.PW9/E and Ex.PW9/F and recovery of mobile phones from each of the accused vide memo Ex.PW9/G, Ex.PW9/H & Ex.PW9/I respectively, seizure of register of hotel Deromana vide seizure memo Ex.PW9/J and medical examination of the accused persons on 15.02.2011 and collection of blood sample of accused Salim vide seizure memo Ex.PW9/K. This witness also :16: identified the case property at the time of his examination in the court i.e. register of hotel Deromana (Ex.P1), one TATA mobile recovered from accused Salim (Ex.P2), one mobile Nokia 7210 recovered from accused Arman (Ex.P3) and one mobile Nokia 1650 recovered from accused Mehfooz (Ex.P4).
Ct. Ajay Pal Singh stepped into the witness box as PW21 and deposed regarding collection of five sealed parcels on 22.03.2011 vide Road Certificate No.5/21 from the MHC(M) of PS Jama Masjid for deposit at FSL Rohini and collection of its receipt thereof. While Ct.Anand Kumar was examined as PW23 who deposed regarding seizure of pant and a shirt from the house of accused Salim at H.No. 2332, Kucha Chalan, Daryaganj on 16.02.2011 at the instance of the accused Salim.
PW24 is Ct.Balram who deposed regarding his visit to Tis Hazari Lock up on 07.03.2011 along with ASI Pushpa and obtaining the custody of Salim from the lock up of Tis Hazari and taking of accused Salim for his medical examination at MAMC Hospital before he was produced before the court.
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PW22 is Sh.Deepak Dabas, ld. MM who deposed regarding recording of the statement under Section 164 Cr.PC of the Prosecutrix on an application (Ex.PW22/A) on 19.02.2011. He also proved the statement of Prosecutrix which was recorded by him as Ex.PW22/B. In order to prove the entries in the register of Hotel Deromana, Sabihuddin Siddiquee being the proprietor of the Hotel Deromana was examined as PW17, who deposed that in the year 2011, there were about 1012 employees at the said hotel and one Liyakat Ali was serving as a Manager at the said hotel who used to run the hotel. He further deposed that accused Mehfooz was one of his employees. This witness was confronted with the register Ex.PW17/A which was identified by him upon seeing it, wherein the first entry is dated 11.06.2010 and the last entry is of 14.02.2011. This witness further deposed that he came to know from his Manager Liyakat Ali that a girl was illegally made to stay in one of the rooms of the hotel on 13.02.2011 and that no entry was made in this regard in the register.
Prosecution also examined PW18 Sh.R.K.Singh, Nodal :18: Officer, Bharti Airtel Ltd. who deposed regarding the mobile connection No.9910684251 which is in the name of accused Mehfuz Ahmed S/o Mohd.Ibrahim and proved the CDR of the same as Ex.PW18/B. Whereas Sh.Amar Nath Singh, Alternate Nodal Officer, Idea Cellular deposed regarding the mobile phone connection No. 9718193607 which stands in the name of Arman Arora S/o Anil Arora and proved the photocopy of the application form accompanied by photocopy of driving licence as Ex.PW19/A (Colly.). On the other hand, PW20 Sh.Rajiv Ranjan Assistant Nodal Officer, Tata Tele Services Ltd. stepped into the witness box with regard to the mobile connection No.9268540809 which is in the name of Jamila and proved the Customer Application Form and copy of the election ICard as Ex.PW20/A (Colly.). This witness further proved the CDR of the said mobile number as Ex.PW20/B. Lastly, the IO/ASI Pushpa stepped into the witness box as PW27 and deposed that on 14.02.2011 while she as present at her house, she received an information on telephone from the SHO PS DBG Road to reach at PS Jama Masjid for investigation of a rape case. :19: She also received an information from the PS Jama Masjid to reach at LNJP Hospital and that Ct.Santbir was reaching at her house to pick her up. She along with Ct.Santbir reached LNJP hospital at about 11:15 PM where ASI Usman, L/Ct.Renu and Ct.Ajay Pal were found present. She came to know that the medical examination of the Prosecutrix 'F' is being conducted and that DD No.24A is recorded to this effect at PS Jama Masjid. She further deposed that ASI Usman handed over to her the copy of DD No.24A (Ex.PW27/A) for necessary action in the matter. She reached at Gyne Ward where Prosecutrix came out after her gyne examination along with her Bua Shazia. L/Ct.Babita handed over copy of the MLC to her, as per which the hymen of the Prosecutrix was intact. She recorded the statement of the Prosecutrix which is already Ex.PW6/A. This witness made an endorsement on the statement of the Prosecutrix and prepared rukka Ex.PW27/B under Section 376/511 IPC and handed over the same to Ct.Ajay Pal for getting the FIR registered at PS Jama Masjid.
PW27 further deposed regarding the preparation of the site plan Ex.PW27/C at the instance of the Prosecutrix, arrest of the :20: accused Salim vide arrest memo Ex.PW27/D, recording of his disclosure statement Ex. PW1/D, conduction of personal search of Salim vide his personal search memo Ex.PW9/A and recovery of one mobile phone from accused Salim having 'Idea' sim vide seizure memo Ex.PW9/G. This witness also deposed regarding the arrest of remaining two accused viz., Arman and Mehfooz vide their arrest memos Ex.PW27/E and Ex.PW27/F respectively and recording of their disclosure statements vide memos Ex.PW9/E and Ex.PW9/F respectively.
This witness further deposed regarding recording of statement of the Prosecutrix before the ld. MM on 19.02.2011. She also got the ossification test of the prosecutrix for determination of her age and collected the report in this regard which is exhibited as as Ex.PW2/A. PW27 also deposed that the pregnancy test which was conducted at the time of MLC of the Prosecutrix came positive, so Section 376 IPC was added after deleting Section 511 IPC. She informed the Bua of the Prosecutrix about the pregnancy test on :21: telephone, who after 23 days informed the IO ASI Pushpa (PW27) that the Prosecutrix slipped and it resulted in an abortion. This witness also collected the medical record of the hospital where the Prosecutrix was taken vide seizure memo Ex.PW27/G as also the emergency card which is exhibited as Ex.PW27/H. The potency test of the accused Salim @ Amir was got conducted and she collected the MLC Ex.PW27/I in this regard. The witness also deposed regarding the collection of the Call details pertaining to the accused persons and sending of the case property to the FSL for opinion. IO ASI also deposed that on 16.02.2011, one blue colour jeans and one striped shirt of white and purple colour were recovered from the house of the accused Salim at his instance and was seized vide seizure memo Ex.PW27/J. Further, in the hospital L/Ct.Babita handed over to her two envelopes and one pulanda, all sealed with the seal of LNJP Hospital along with sample seal on the intervening night of 1415.02.2011, which were seized by her vide seizure memo exhibited as Ex.PW25/A. This witness also correctly identified the case property which was seized by her during the course of investigation. :22: Plea of the Accused:
The evidence on record was put to both the Accused in their statement recorded under Section 313 CrPC wherein both of them denied the allegations made against them and claimed innocence and false implication. However, no evidence was led by both of them in their defence.
Arguments : Analysis : Findings:
I have heard arguments of both the respective learned counsels appearing on behalf of accused Salim @ Amir and Mehfooz, as also the Prosecution in the light of evidence on record.
It was contended by learned APP that on the basis of evidence brought on record that the guilt of the accused stands proved beyond reasonable doubt. Per contra, learned counsel representing accused persons opposed the case of the Prosecution stating that the Prosecution has failed to discharge the onus of proving the guilt of the accused and both the accused be acquitted.
It was submitted by learned counsel for accused Salim that there are several lapses in the investigation of the case and that the case :23: against the accused is false and fabricated. It was pointed out that as per PW6 HC Jagdish Prasad who was posted as Duty Officer at PS Jama Masjid on 15.02.2011, the rukka sent by IO ASI Pushpa was received through Ct.Shiv Pal and the case was registered on the basis thereof. On the other hand, PW26 Ct.Santbir deposed that ASI Pushpa handed over the tehrir to him for getting the case registered on the basis of the same and that the case was got registered by him. IO ASI Pushpa (PW27) however, deposed before the court that she got the case in hand registered through Ct.Ajay Pal. Ct.Ajay Pal, on the other hand, who has been examined as PW21 did not depose any thing regarding getting the case registered on the directions of the IO. Rather, he deposed that on 22.03.2011, he collected five sealed parcels vide Road Certificate No.5/21 from the MHC(M) of PS Jama Masjid and deposited the same at FSL Rohini. It was hence argued by learned defence counsel that the Prosecution has failed to establish as to who got the case registered and the statement of the IO to this effect also cannot be accepted. Moreover, Ct.Shiv Pal who got the case registered as per the deposition of PW6 HC Jagdish Prasad has not been :24: examined as a witness.
I have considered the aforesaid arguments. However, in view of deposition of PW26 Ct.Santbir, it has been proved that the case was got registered by the IO through this witness. The factum of registration of FIR is also not in dispute.
Prosecution examined Dr.Sreeniwas (PW2), Dr.G.S.Pradhan (PW3), Dr.Monika Kelkar (PW4) and Dr.Sarita Shyan Sunder (PW16) in order to establish the age of the Prosecutrix. All the said witnesses deposed that upon medical examination, the age of the Prosecutrix was opined to be 16 years on the date of the examination (with margin of 6 months on either side). None of these witnesses was crossexamined by the accused and hence it has been established on record that at the time of incident in question, the Prosecutrix was about 16 years of age (with margin of 6 months on either side).
It was next contended by learned defence counsel that the place of commission of the alleged offence has not been proved on record by the Prosecution. My attention was drawn in this regard to the testimony of the Prosecutrix herself, who was brought into the witness :25: box as PW10. It was pointed out by learned defence counsel that in her examinationinchief the Prosecutrix merely stated that she was taken by the accused to a place which was like a hotel. She also deposed that the accused Salim took her to a room inside the hotel type building. When the witness was further probed by the learned APP she deposed that she does not know the name of that hotel. She also did not know that this hotel was behind the Jagat Cinema. Learned defence counsel also pointed out that in her crossexamination also though she stated that she had pointed out the place of occurrence to the Investigation Agency, no pointing out memo has been prepared. Further, the Prosecutrix also claimed to have pointed out the route taken by the accused to take her to the alleged place of occurrence and the Investigating Agency has neither prepared any memo nor recorded her statement to this effect.
Learned defence counsel also argued that the investigating officer had not conducted any investigation with regard to the existence of any cloth shop where the accused Salim was allegedly selling the clothes. Similarly, the Investigation Agency did not :26: examine the Mausi of the Prosecutrix namely Khala Jameela whose house she is stated to have visited on the date of occurrence as claimed by her in her complaint Ex.PW10/A. Extending his arguments further, learned defence counsel again referred to the crossexamination of the IO ASI Pushpa (PW27) and pointed out that the IO stated in her crossexamination that she did not record the statement of 'Khala' of the Prosecutrix or any other person near the shop of Durga Chowmeen. She also stated in her cross examination that she did not record any statement of any person to the effect that the accused works at the cloth shop. Rather, in her cross examination the IO ASI Pushpa (PW27) voluntarily deposed before the court that sometimes the Prosecutrix used to point out towards one shop and sometimes towards other shop. Learned defence counsel hence argued that the shop in question where the accused Salim @ Amir was allegedly working has also not been established by way of any cogent evidence on record by the Prosecution. The next contention of the learned defence counsel is that the Prosecutrix admittedly stated the name of accused as Amir in her complaint :27: Ex.PW10/A as well as her statement under Section 164 Cr.PC. The IO ASI Pushpa (PW27) also stated in her crossexamination that in her complaint Ex.PW10/A the Prosecutrix has named the accused as Amir and not as Salim @ Amir. She also stated that no other witness disclosed during the course of investigation that the name of the Amir is also Salim. It was contended by learned defence counsel that it is apparent that the accused has been falsely implicated in this case.
I have considered the said argument. A careful perusal of the same would reveal that the IO ASI Pushpa (PW27) in her cross examination explained before the court that the name of the accused as Salim was revealed during the course of investigation and he had also mentioned his name in the disclosure statement as Salim @ Amir. I find no force in the argument that the fact that merely because the Prosecutrix named the accused as Amir in her complaint Ex.PW10/A and her statement recorded under Section 164 Cr.PC, it inevitably leads to the conclusion that the accused has been falsely implicated in this case. It is noteworthy that when the Prosecutrix 'F' stepped into the witness box as PW10, she had clearly identified the accused present :28: before the court by his name as well as by specifically pointing out at him. In these circumstances, the fact that the Prosecutrix named him merely as Amir in her complaint Ex.PW10/A as well as in her statement recorded under Section Cr.PC, to my mind, cannot be said to be fatal to the case of the Prosecution. Moreover, it is not the plea of the accused that his name is not Salim @ Amir.
It was pointed out that as per the allegations of the complainant as contained in the complaint Ex.PW10/A the accused had merely attempted to rape her. He also drew my attention towards the deposition of PW27 IO ASI Pushpa and submitted that in her examinationinchief itself, the IO deposed before the court that Section 376 IPC was added after deleting Section 511 IPC as the pregnancy test of the Prosecutrix conducted at the time of her medical examination for the purposes of determination of the age was found to be positive.
It was argued that as per the aforesaid statement of the IO, it is apparent that the section of rape was converted from one of attempt to rape merely because the pregnancy test of the Prosecutrix was found to be positive at the time of her medical examination conducted for the :29: purpose of her age assessment on 09.03.2011, as per report Ex.PW2/A. He further pointed out that as per the said report Ex.PW2/A, the hymen of the Prosecutrix was found to be torn, while as per her MLC dated 14.02.2011 Ex.PW13/A the hymen of the Prosecutrix was found to be intact upon her examination conducted on the very first day of the alleged incident when her Urine Pregnancy Test (UPT) was also found negative. It was argued that apparently the Prosecutrix conceived during the intervening period i.e. between 14.02.2011 and 09.03.2011 when her hymen was also found ruptured which was not so on 14.02.2011 as recorded on MLC Ex.PW13/A. Learned defence counsel hence argued that the allegations of rape against accused Salim are patently false as Section 376 IPC has been added as per the IO because the Prosecutrix was found to be pregnant. The pregnancy of the Prosecutrix, if at all, cannot be attributed to the act allegedly committed by Salim since the hymen of the Prosecutrix was found to be intact on 14.02.2011.
On the other hand, it was argued by ld. APP that in her complaint Ex.PW10/A, although the Prosecutrix claimed that the :30: accused tried to commit rape upon her. However, at the same time she stated in her complaint Ex.PW10/A that she experienced pain in the said process which clearly implies that there was penetration, though slight, which clearly amounts to rape within the meaning of Section 375 IPC, as per the explanation. Explanation appended to Section 375 reads as under:
"375........
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape".
It was further argued by the ld. APP that the testimony of the Prosecutrix finds corroboration from the report of FSL Ex.PW27/K, as per which the human semen was detected on the following exhibits:
Exhibit 1c(ii) - Cotton wool swab on a wooden stick kept in a tube.
Exhibit 1d Cotton wool swab on a wooden stick kept in a tube. Exhibits 2a & 2b - Two Microslides having faint whitish smear. Exhibit 3a One lady's shirt having dirty stains.
Rebutting this argument, learned defence counsel again drew my attention to MLC Ex.PW13/A and the contents of the casualty card of the Prosecutrix Ex.PW5/A dated 14.02.2011, wherein :31: the examining doctor has recorded that 'the history suggestive of use of condom by assailant'. It was submitted by learned defence counsel that in view of the aforesaid, the presence of human semen as per the FSL result Ex.PW21/K is improbable and the case of the Prosecution is apparently false and fabricated.
Learned APP has sought to contradict this argument by arguing that the contents of casualty card Ex.PW5/A merely record that there is history of use of condom by the assailant and there is no conclusive proof of the same. It was further argued by ld. APP that no question was put to the Prosecutrix by the defence with regard to the use of contraceptive by the accused and the mere fact that it has been recorded by the examining doctor that there is history suggestive of use of contraceptive, the same cannot belie the report showing the presence of human semen on the shirt of the Prosecutrix and on her internal vaginal swab.
Having considered the rival submissions made at the Bar, the evidence on record and the relevant statutory provisions, I am unable to subscribe to the arguments advanced by the learned defence :32: counsel. No doubt, the case was initially registered under Sections 376/511 IPC which was later changed to Section 376 IPC. It is also not in dispute that the IO deposed before the court that the Section 511 IPC was deleted and the case was treated as one under Section 376 IPC as the pregnancy report of the Prosecutrix at the time of her medical examination for her age assessment was found to be positive. It is also a matter of record that on 14.02.2011 when her MLC Ex.PW5/A was prepared the hymen of the Prosecutrix was found intact.
The aforesaid undisputed facts, however cannot, in any manner, be said to be sufficient to hold that the Prosecutrix was not raped by accused Salim @ Amir as deposed by her before the court. To my mind, the allegations as contained in her complaint Ex.PW10/A are in sync with her deposition before the court and not at variance thereto. It is noteworthy that in her complaint Ex.PW10/A the Prosecutrix claimed that the accused put his private part into her private part and when she cried due to pain, he left her. When she stepped into the witness box as PW10, she deposed that she was raped by the accused. In view of the explanation of Section 375 IPC as aforesaid, it is amply :33: clear that penetration, however slight, is sufficient to constitute rape.
There has also been a consistent view of the Hon'ble Superior Courts and it has been held in a catena of judgments that even a slightest penetration is sufficient to make out the offence of rape. In this regard, reference is made to the following judgments of the Hon'ble Apex Court:
a) Wahid Khan vs. State of M.P., 2010 Crl.L.J. 517 &
b) Aman Kumar & Anr. vs. State of Haryana, AIR 2004 SC 1497 In the present case, the Prosecutrix clearly stated in her complaint Ex.PW10/A that the accused tried to put his private part in her private part and she experienced pain, which obviously implies that there was penetration, though slight, it may have been. The absence of any damage or rupture of hymen is also not indicative of the fact that the Prosecutrix was not raped.
Reference in this regard may again be made to the judgment of the Hon'ble Supreme Court in the case of Wahid Khan vs. State of M.P. (supra). In the said case the Hon'ble Apex Court relied upon the information expressed by Modi in Medical Jurisprudence and :34: Toxicology (Twenty Second Edition) at page 495 which reads as under:
"Thus to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law".
It has also been held in the aforesaid judgment, besides several other precedents, that in case of rape, the testimony of the Prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.
Moreover, I also find that the mere mention of the history suggestive of use of contraceptive by the assailant in the MLC Ex.PW13/A and casualty card Ex.PW5/A does not conclusively prove the use of contraceptive by the assailant. Besides, the Prosecutrix has not deposed anything to this effect either in her examinationinchief, nor was she questioned about the same during her entire length of cross :35: examination.
The observation in the MLC regarding history merely suggestive use of condom, cannot be said to have an overriding effect on the testimony of the Prosecutrix. For the same reasons, the presence of human semen on exhibits viz., Exhibit 1c(ii), Exhibit 1d, Exhibits 2a & 2b & Exhibit 3a, as per FSL result Ex.PW27/K cannot be doubted. It is also worthwhile to mention at this juncture that the FSL result Ex.PW27/K was never questioned by the defence and there is no cross examination in this regard. Furthermore, the alleged use of condom by an assailant, can by no stretch of imagination, imply that there was no rape. There is also always possibility of improper use of the contraceptive. Hence, the aforesaid observation in the MLC Ex.PW5/A is not sufficient, in my view, to throw out the entire case of the Prosecution, or to doubt either the Prosecutrix, or the FSL result Ex.PW27/K, particularly when the defence did not question the FSL result Ex.PW27/K (which is admissible per se under Section 293 Cr.PC.) I am also unable to subscribe to the argument of learned :36: defence counsel that since the place of occurrence has been pointed out by the Prosecutrix before the court, her deposition cannot be relied and acted upon and the case of the Prosecution is false.
A careful reading of the evidence on record in its entirety clearly shows that it has been brought on record that Prosecutrix who is aged about 16 years, was uneducated and could barely sign her name in 'Urdu'. She was even unable to recall the dates with certainty. In these circumstances and upon considering the social and educational background of the Prosecutrix, it is not surprising that she could not tell the name of the hotel. She however, deposed that she was taken to a hotel like building.
Next, although it has come on record that the Urine Pregnancy Test (UPT) of the Prosecutrix conducted on 09.03.2011 was found positive and her hymen was also found ruptured on that day, thus indicating a possible sexual act in between 14.02.2011 and 09.03.2011 with some other person, would not absolve the accused for the offence of rape committed by him upon the Prosecutrix on 13.02.2011 which has been established on record beyond reasonable doubt by the evidence led :37: on record.
I may also mention at this juncture that the investigation in the present case has been truly shoddy and the Investigating Officer has failed to make any sincere efforts in gathering evidence which could have been relevant. Be that as it may, the law in this regard is still well settled that any lapse on the part of the Investigating Agency in conducting the investigation cannot entitle the accused to any benefit on this score. The other lapses in the investigation as also pointed by the learned defence counsel also to my mind cannot be said to be fatal to the case of the Prosecution.
It cannot be lost sight of that it is well settled law that lapse on part of Investigating Agency cannot be a ground for acquittal of accused. Reference may be made to Paras Yadav and Ors. Vs State of Bihar 1999 Crl. L. J 1122 wherein it has been held as under: "While commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be :38: examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice".
Also, in the case of State of Bengal Vs Meer Mohd. Umed and Others JTD 2000 (9) SC 467, the Hon'ble Supreme Court has held: "The function of the Criminal Courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officer. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation....."
In the light of the above discussion, the deposition of the :39: Prosecution witnesses and the material on record, I am therefore of the considered opinion that the Prosecution has been able to prove its case that accused Salim @ Amir S/o Late Sh.Mustafa committed rape upon the Prosecutrix and he is thus found guilty for the offence punishable under Section 376 IPC.
I may also hasten to clarify at this juncture that though the medical evidence on record has proved that the Prosecutrix was aged about 16 years (with margin of 6 months either side), the accused must be given benefit of the same as it cannot be said with affirmation, that the Prosecutrix was below 16 years of age at the time of commission of the alleged offence. However, in view of evidence as discussed above, it has been held that she was raped by the accused Salim @ Amir and that the said act was done without her consent, offence under Section 376 IPC is still proved to have been committed by the accused.
Lastly, though it has been argued by the accused that there is no reason whatsoever which has been brought on record for his false implication in this case and it has not been explained as to why the Prosecutrix have falsely implicated him in this case. Rather, consistent :40: view has been taken by the Hon'ble Superior Court that in the Indian society any girl or woman would not make false allegations against a person as she is fully aware of the repercussions flowing therefrom. In this regard, I may again refer to the case of Wahid Khan Vs. State of M.P (Supra), wherein Hon'ble Apex Court has emphasized as under:
"It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom.
Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is".
Accordingly, in the light of aforesaid discussion accused :41: Salim @ Amir S/o Late Sh.Mustafa is hereby convicted for the offence punishable under Section 376 IPC.
However, insofar as accused Mehfuz S/o Late Mohd.Ibrahimh is concerned, as discussed in the preceding paragraph, he is facing trial for the offence punishable under Section 109 read with Section 376 IPC. It is the case of the Prosecution that he aided accused Salim @ Amir in committing the offence of rape upon the Prosecutrix by intentionally providing him aid i.e. by giving him a room in Hotel Deromana, where accused Salim @ Amir committed rape upon the Prosecutrix. He was arrested pursuant to the arrest of the accused Salim @ Amir upon being identifying by the Prosecutrix and his disclosure statement was also recorded on 15.02.2011. It is the case of the Prosecution that the accused Mehfuz was working as Manager in Hotel Deromana. He was friendly with one Armaan, who was also charge sheeted by the Investigation Agency (but was discharged vide order dated 07.06.2011). On 13.02.2011, at about 10 PM, Armaan made call to accused Mehfuz and requested that one of his friends requires a room in Hotel Deromana and he arranged a room i.e. Room No.205 at IInd :42: floor of the hotel for which Armaan gave him Rs.200/ and no entry was made in the hotel registered by the accused Mehfuz in this regard.
To prove its case the Prosecution examined PW17 Sabihuddin Siddiquee. He deposed that in the year 2011, one Liyakat Ali was serving as a Manager at the said hotel, though accused Mehfuz was one of their employees. He also exhibited the hotel register as Ex.PW17/A. Learned defence counsel pointed out that the Prosecution failed to prove it case that Mehfuz was not the Manager of the hotel. Moreover, the deposition of PW17 that he came to know from the Manager Liyakat Ali that a girl was illegally made to stay in one of the rooms of the hotel on 13.02.2011 without any entry cannot be read in evidence being hearsay. It was further pointed out that the Prosecutrix failed to identify the accused Mehfuz, though it is the case of the Prosecution that accused Mehfuz accompanied accused Salim @ Amir and the Prosecutrix to room No.205 on the day of the incident.
On going through the record, I find that the Prosecutrix (PW10) not only failed to identify accused Mehfuz but also :43: categorically denied that she was present at the time when the assailants in this case were arrested. She claimed that the accused was not arrested in her presence from the hotel. Though Accused Mehfuz was specifically arrested at the instance of the Prosecutrix, she denied that he was present in the hotel on the day and time at the time of the incident in question. The Prosecutrix being star witness also failed to identify accused Mehfuz at the time of her examination in the court. The Prosecution did not lead any other evidence to prove its case against the accused Mehfuz. Undisputedly, his disclosure statement recorded during the court of investigation is inadmissible in evidence. The claim of the Prosecution that he was the Manager of the Hotel Deromana also stands falsified from the deposition of PW17 Sabihuddin Siddiquee. Further, the arrest of the accused Mehfuz upon the identification of the Prosecutrix has also not been established on record. There is hence no evidence to hold accused Mehfuz guilty of charge under Section 109 read with Section 376 IPC. Consequently, he is liable to be acquitted for the same.
Hence, in the light of aforesaid discussion and upon :44: considering the evidence in its totality as also the relevant case law cited hereinabove, accused Salim @ Amir S/o Late Mustafa is hereby convicted for the offence punishable under Section 376 IPC. Let him be heard on the point of sentence.
Announced in the Open Court
on 10.07.2013 (Kaveri Baweja)
Additional Sessions JudgeSpl. FTC2
(Central)
Tis Hazari Courts: Delhi.
:45:
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 30/13
UID No. : 02401R0202942011
State versus (i) Salim @ Amir
S/o Sh.Late Mustafa
R/o H.No.2332, Gali Salim Shah
Kucha Challan,
Daryaganj
Delhi.
(ii) Armaan S/o Sh.Abdul Vashit
R/o H.No.3, Mandi Vaas
PS Kotwali, Muradabad, UP.
(Discharged vide order dated
7.6.11)
(iii) Mehfuz S/o Late
Mohd.Ibrahimh
S/o Late Mohd.Ibrahimh
R/o C05, Gali Masjid Wali,
Babarpur, Shahdara,
Delhi. (Acquitted)
Case arising out of:
FIR No. : 09/11
Police Station : Jama Masjid
Under Section : 363/376/120B IPC
Judgment pronounced on : 10.07.2013
:46:
ORDER ON SENTENCE
Vide judgment dated 10.07.13 accused Salim @ Amir has been convicted for offence punishable under Section 376 IPC, whereas accused Mehfuz has been acquitted of the charges alleged against him. On the other hand, accused Armaan has already been discharged by the court vide order dated 07.06.2011.
I have heard the arguments on the point of sentence. It is submitted by the learned defence counsel that the convict Salim @ Amir is a young boy of 24 years and is in custody for the last about 2½ years. It is further submitted that he is not involved in any previous case. A prayer for lenient view is made on behalf of Convict Salim @ Amir.
On the other hand, Ld. APP submits that there is no scope of any leniency, considering the gravity of offence proved to have been committed by Convict Salim @ Amir.
Having considered the entire facts and circumstances of the case, I find that this is not a case where any leniency should be shown to the convict. Thus, having regard to the offence proved to have been :47: committed by him, the convict Salim @ Amir S/o late Sh.Mustafa is sentenced to undergo Rigorous imprisonment for a period of 07 years in addition to payment of fine of Rs.5,000/, in default whereof, he shall undergo for Simple Imprisonment for 01 year. The convict shall be entitled to benefit of Section 428 Cr.PC.
Copy of judgment and order on sentence be provided to convict Salim @ Amir free of cost. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
12.07.2013