Delhi District Court
State vs Aftab on 20 September, 2013
1
IN THE COURT OF MR. PRITAM SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE/ SOUTH EAST DISTRICT/ SAKET
COURT COMPLEX, NEW DELHI.
Unique Identification no. 02403R0355392003
Case no. RBT358/1 dated 15.04.2013
FIR No. 152/2000
PSNew Friends Colony
State Vs Aftab
JUDGEMENT
S. No. of Case : RBT358/1 dated 15.04.2013
Date of Commission : 28.03.2000
of offence
Name of Complainant : Sh.Ashif Ali
Name and address : Aftab
of accused S/o Late Sh.Salahuddin
R/o House No.1883, Mohalla Kabristan,
Turkman Gate, Delhi.
Offence Complained : U/s. 377 IPC
Plea of accused : Not guilty
Arguments heard : 13.09.2013
Date of judgment : 20.09.2013
Find order : Acquitted
1. The brief case of prosecution is that on 28.03.2000 at about 0630 p.m. at House No.D15, Gali No.2, Batla House, Okhla, New Delhi, the accused voluntarily had carnal intercourse against the order of nature with Ashif Ali.
2. Chargesheet was filed in the court and the accused Aftab was supplied complete set of documents. Thereafter, vide order dated 17.01.2005 notice FIR no. 152/2000 State Vs Aftab 1 of 5 2 was framed u/s 377 IPC against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove charges against the accused, the prosecution has examined nine witnesses. Ct. Bhagwati Prasad was examined as PW1, Ct. Naresh was examined as PW2, HC Jagir Singh was examined as PW3, ASI Kartar Singh was examined as PW4, Sh.Ashif, who is victim, was examined as PW5, Ct. Ajay Kumar is PW6, ASI Salvinder Singh was examined as PW7, Dr. Sanjeev Lalwani was examined as PW8 and SI Sanjeev Dodi was examined as PW9. The following documents were exhibited in the prosecution evidence.
(i) Seizure memo of pent and shirt Ex. PW1/A (ii) Arrest memo of accused Ex. PW1/PX1 (iii) Personal search memo of accused Ex. PW1/PX2 (iv) Seizure memo of test tube seal and sample seal Ex. PW2/A (v) Seizure memo of the kurtapajama Ex. PW2/B (vi) Case property i.e. kurtapajama Ex. PW2/C (vii) Case property i.e. one pajama Ex. PW2/D (viii) Copy of the FIR Ex. PW4/A (ix) Endorsement on the Rukka Ex. PW4/B (x) MLC of the victim Ashif Ex. PW5/A (xi) Statement of the victim Ex. PW5/B (xii) Seizure memo of pant and Tshirt Ex. PW5/C (xiii) FSL reports Ex. PW8/A Ex. PW8/B (xiv) Endorsement on the complaint Ex. PW9/A (xv) Site Plan Ex. PW9/B (xvi) Case property i.e. Pent Ex. P1 (xvii) Case property i.e. shirt Ex. P2 (xviii) Case property i.e. Tshirt Ex. P3 FIR no. 152/2000 State Vs Aftab 2 of 5 3
4. The statement of accused u/s 313 Cr.P.C. was recorded where he denied the deposition of witnesses against him being false and interested witnesses. Accused is in defence examined himself as DW1 u/s 315 Cr.P.C. after taking permission in writing from the court.
5. Arguments heard. Record perused and considered carefully.
6. PW5 is the victim as per the prosecution story. PW5 deposed that he did not remember regarding the matter and he did not make any complaint to the police. However, he gave left thumb impression on a blank paper. PW5 further deposed that he was medically examined from AIIMS Hospital vide MLC Ex.PW5/A, which bore his left thumb impression at point 'A'. As PW5 was not supporting the prosecution story, Ld. APP sought permission to crossexamine PW5 and Ld. APP was allowed. In the crossexamination done by Ld. APP, PW5 deposed that he was residing with his brotherinlaw at Gali No.2, Okhla, New Delhi. PW5 denied that on 28.03.2000, Mohd. Aftab, the accused, had committed carnal intercourse with him. PW5 further denied that he had made a complaint of this incident to his brotherinlaw. PW5 further denied that he gave any written statement to the police. On confrontation with the statement Ex.PW5/B from point 'A' to 'A', PW5 deposed that he had not made any such statement, however, his left thumb impression was at point 'B'. PW5 further denied that he gave his gray pent and Tshirt to the IO and the IO seized the same vide seizure memo Ex.PW5/C, which bore his left thumb impression at point 'A'.
7. PW5 is the victim as per the prosecution story and he is the only eye FIR no. 152/2000 State Vs Aftab 3 of 5 4 witness. However, PW5 did not support the case of the prosecution. PW5 categorically denied that accused had committed carnal intercourse with him on 28.05.2000. PW5 further deposed that he did not make any complaint to the police and the police took his left thumb impression on a blank paper. According to the prosecution, the victim narrated the incident to his brotherinlaw namely Harun, but Harun could not be examined and on 07.12.2012, Ld. Counsel for the accused made submissions that accused would not dispute the FSL report as well as statement of Harun. On this, the recording of statement of FSL witness and PW Harun were exempted by Ld. predecessor of this court. Perusal of statement u/s 161 Cr.P.C. of Harun reveals that on 28.03.2000, he had gone to attend a marriage of his friend Ramesh and when he came back the victim informed him that the accused did carnal intercourse with him. As the victim himself did not support the prosecution case and even denied that he made any complaint to the police regarding the alleged incident, therefore, the statement u/s 161 Cr.P.C. of Harun is not of much relevancy, even it is a hearsay evidence and inadmissible.
8. PW8 Dr. Sanjeev Lalwani, who examined the accused, deposed that on local examination of genitals, no injuries were seen. PW8 also examined the victim and deposed that no fresh injury was seen over the body. Anus was soiled with stains, two swabs taken, sphincter normal in tone. Anus admitting one finger. There was mucosal redness, no tear or blood stains seen. PW8 gave his opinion in his report Ex.PW8/B that possibility of sodomi cannot be ruled out in the present case. PW8 Dr. Sanjeev Lalwani did not rule out possibility of sodomi, FIR no. 152/2000 State Vs Aftab 4 of 5 5 therefore, he took two anal swabs and handed over to IO for further examination. The same were sent to FSL for their examination. As per the FSL result, blood was detected on Ex.1 i.e. Gauze cloth piece, but not stated to whom it belongs. Even semen could not be detected on Ex.2 i.e. cotton wool swab described as 'anal swab'. Thus, the FSL report does not support the story of the prosecution that accused has done carnal intercourse with the victim. All other witnesses are formal in nature, therefore, their testimony are not discussed here.
9. In view of the above discussion, I am of the considered view that the prosecution failed to prove his case against the accused beyond reasonable doubts. It is well settled law that benefit of doubt goes in favour of the accused.
10. Accordingly the accused, Aftab S/o Sh.Salauddin is acquitted from the charge of offence u/s 377 IPC. Bail bond and surety bond of the accused Aftab are extended for next six months at request of the accused u/s 437A Cr.P.C. File be consigned to the Record Room.
Announced in Open Court (PRITAM SINGH )
Dated: 20.09.2013 Additional Chief Metropolitan Magistrate
South East District/Saket Court Complex,
New Delhi/20.09.2013
FIR no. 152/2000 State Vs Aftab 5 of 5