Delhi District Court
State vs Rashid//Fir No.19504 on 17 February, 2011
:1:
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - 01,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 190/2008
FIR No. 195/2004
PS : BAWANA
U/s. 365/376 IPC
STATE
VERSUS
RASHID S/O AHMAD HUSSAIN
R/O. JHUGGI NO. 312, F BLOCK
SHAHBAD DAIRY, DELHI
Date of Institution : 09.09.2004
Date of receipt of case in this court : 05.12.2008
Arguments heard On : 10.02.2011
Order Announced On : 14.02.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI J. P. SINGH, COUNSEL FOR ACCUSED.
JUDGMENT
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:2:
1. The name of the prosecutrix / victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 CLJ 2913.
2. The facts as projected in the charge sheet are that on 02.06.04 Riyazuddin s/o Mohd. Shahzad along with his wife Smt. Gulshan Begum came to police station with his daughter prosecutrix S and a boy named Rashid, the accused and informed that accused has committed wrong act with his daughter. Accordingly DD No.12 was recorded and W/SI Sanjeeta was called from police station Sultan Puri and prosecutrix S and accused Rashid were handed over to her. W/SI Sanjeeta got prosecutrix S medically examined and after confirmation of commission of rape on the prosecutrix, she recorded statement of prosecutrix S who stated to the police that she was residing with her parents at Jhuggi No. 144 F, Shahbad Dairy, Delhi and used to work in a pital factory with her maternal grandmother and used to do work STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:3: of picking of pital in the factory. On 01.06.04 at about 9 pm she along with her friend Roshni d/o Hamid, who is her neighbour, had gone to DDA grounds in Sector 25 to attend the call of nature. In the meantime, her neighbour accused Rashid along with his two friends came there and lifted her and put her in a maruti van which was parked there and took her to Municipal Corporation School at Shahbad Village where the two boys along with accused Rashid took her inside the school and left her and accused Rashid inside the school and went away. Thereafter accused Rashid put his hand on her mouth and removed her salwar after removing the string of her salwar. She further stated in her statement that accused Rashid also removed his pants and committed wrong act with her and did not allow her to raise alarm. After about half an hour accused Rashid left her near Lal Building School and went away. Thereafter she slept at the house of Pardesi, her brother (muhbola). In the morning about 5 am her father and Pardesi took her back to her home and there she informed her father about the incident and thereupon mother and father of prosecutrix S took her to police post Shahbad STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:4: where her statement was recorded and she was medically examined at M. B. Hospital, Pooth Khurd, Delhi.
3. On the statement of prosecutrix S, W/SI Sanjeeta got a case u/s 365/376 IPC registered. During investigation W/SI Sanjeeta prepared site plan at the instance of prosecutrix S. Accused Rashid was arrested and accused and prosecutrix S were sent for medical examination. Exhibits collected in this case were seized. Bone age determination of prosecutrix S was done in which the doctor opined her age to be between 14 to 17 years. Statement of prosecutrix U/s 164 CrPC was got recorded. Statements of witnesses were recorded and after completion of investigation challan was filed in the court for trial of offence punishable u/s 365/376 IPC.
4. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
5. Vide order dt. 15.10.2004 Ld. ASJ, Delhi framed STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:5: charge u/s 363/366/376 IPC against the accused to which he pleaded not guilty and claimed trial.
6. Prosecution in support of present case examined PW1 prosecutrix S, PW2 Gulshan (mother of prosecutrix S) PW3 Riazuddin ( father of prosecutrix S), PW4 Smt. Anuradha W/o Pardeshi, PW5 Pardeshi (muhbola brother of prosecutrix S) and PW9 Roshan (friend of prosecutrix S).
7. The prosecution further examined police witnesses PW6 ASI Vijay Kumar who recorded FIR N0. 195/04 Ex.PW6/A and also made endorsement on rukka Ex.PW6/B. PW11. Ct. Chokha Ram who deposed exhibits , sealed pullandas on 21.07.2004 at FSL, Rohini. PW 12 HC Ram Karan who joined the investigation on 02.06.2004 and went to Hospital for medical examination of prosecutrix S and accused Rashid. There he collected sealed pullandas handed over by doctor which were seized by investigating officer vide memos Ex.PW12/A and Ex.PW12/B. He also took the rukka for registration of FIR. He also witnessed the arrest of STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:6: accused Rashid vide memo Ex.PW12/C and his personal search memo Ex.PW12/D.
8. PW 13 HC Rajender Singh ,MHC(M) proved that on 02.06.2004 seven exhibits with sealed parcels and sample seals deposited and he made entry in Register No.19 Ex.PW13/A. On 29.07.2004 six sealed parcels with sample seals sent to FSL, Rohini vide RC and entreis made at Ex.PW13/A. On 12.10.2004 exhibits were deposited from FSL, six sealed parcels and entry made at Ex.PW13/A.He also proved RC No.120/21 Ex.PW13/D.
9. PW 16 W/HC Bala Ram who joined the investigation with HC Ram Karan. PW 14 Inspector Sanjeeta, Investigating Officer. PW 15 Ms.Kaveri Baweja, Ld. MM who proved recording of statement of prosecutrix S under Section 164 Cr.P.C. and proceedings vide Ex.15/A and Ex.PW15/B. She also issued certificate and supplied the copy of proceedings to the IO.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:7:
10. Prosecution examined PW 7 Dr. Jitendra Kumar who proved MLC of accused Rashid Ex. PW7/B and also of prosecutrix S Ex.PW7/A. PW 8 Dr. Narender Singh Khurana who proved the handwriting and observation of Dr. Saroj Aggarwal. The MLC is Ex.PW7/A. Dr. Saroj Aggarwal examined prosecutrix S being the gynaecology expert. He further proved the X-ray reports which were examined by Dr. Anil Khari for estimation of age of prosecutrix S. The final opinion is given that prosecutrix S is above 14 years but less than 17 years. PW 10 Sh. V. Sankara Narayanan, FSL proved biological report Ex.PW10/A1 and serological report Ex.PW10/A2.
11. The prosecution evidence closed vide order dated 29th July 2010 as per statement of Ld. APP for the state. However, thereafter accused moved an application under Section 311 Cr.P.C. for cross-examination of PW 14 Inspector Sanjeeta. Thereafter prosecution evidence was closed.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:8:
12. Statement of accused recorded under Section 313 Cr.P.C. Accused pleaded innocence and wished to examine evidence in defence but later on he wished not to examine any witness therefore defence evidence was closed.
13. I have heard Sh. P.K. Verma , Ld. APP for the State and Sh. J. P. Singh, Counsel for the accused and perused the record.
14. The law is well settled that the star witness of prosecution is prosecutrix S PW1. However, in order to establish her testimony it is necessary to first examine the circumstances. In order to establish the circumstances and the time of incident prosecution examined PW 9 Smt. Roshan who alleged to accompany the prosecutrix S on the day of incident when she went to attend the call of nature. She turned out to be hostile and in cross-examination by Ld. APP nothing came on record. PW 2 Smt. Gulshan, mother of prosecutrix S deposed that she is the eldest daughter among her children. On 01.06.2004 at about 9:00 pm her daughter STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:9: prosecutrix S had gone to attend the call of nature but did not returned home. She was worried and when her father Riazuddin returned she informed him about the missing of daughter. Thereafter they went to the house of PW5 Pardeshi who was not present at his house. At about 11:30 pm Pardeshi came to their house and told that prosecutrix S did not came to their house. Thereafter they went to search her but Riazuddin refused to accompany as something wrong should not be done with him. Pardeshi himself went to search her daughter along with 1-2 other friends but came back that she is not traceable. As per his advise they slept. Pardeshi told that accused Rashid had taken her daughter and will return soon. She further deposed that at about 5:00 am her husband and one relative have gone to search prosecutrix S and found that she was coming on the road. She started crying on seeing them and told that accused Rashid along with two of his friends had kidnapped and committed rape upon her. She was also confined at Govt. School by the accused and thereafter dropped at the house of Pardeshi. She slept in the night as she was very scared.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:10:
15. PW2 Gulshan further deposed that then they took her daughter to Police Chowki where her statement was recorded. She was also medically examined. She was produced before Magistrate for recording of her statement. Accused was arrested from his house. She denies that she know the exact date of birth of her daughter but she was one year old when Rajiv Gandhi, Prime Minister of India was assassinated. Her date of birth was not registered in MCD. She stated the age of her daughter about 15-16 years at the time of incident. In the cross-examination she admits that accused and his father were residing in their Jhuggi and there was dispute regarding vacation of Jhuggi. She admits that about 12:00 in night Pardeshi informed that accused Rashid had taken their daughter but no report was lodged in the night. She denies the suggestion that her daughter was missing however no report lodged. She denies that her daughter was kidnapped and raped by the accused. She denies that the accused is falsely implicated as they want to vacate them from the Jhuggi.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:11:
16. She further deposed in cross-examination that prosecutrix S returned home around 4:00 am. Then they went to police station around 7:30 am. She denies that her daughter made statement to police and Magistrate, being tortured by them. She denies that Pardeshi had committed rape upon her daughter and accused is falsely implicated. No report lodged by them on missing of the daughter. Daughter had came back alone in the morning. She denies that accused is falsely implicated in this case.
17. PW 3 Riazudding father of prosecutrix S deposed that on 01.06.2004 when he came to his house after plying rickshaw then her wife told that prosecutrix S has gone for easing at about 8:30-9:00 pm but did not returned. He tried to trace his daughter from his neighbourhood and relatives places. On suspicion he had reached at the house of one Pardeshi where accused used to reside but his daughter was not there. On next day morning his daughter was found at the house of Pardeshi at about 6:00 am. He further deposed that Pardeshi had accompanied him for the whole night for STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:12: the searching of his daughter but he did not disclosed that his daughter was at his house. He further deposed that his daughter disclosed to him that accused Rashid committed rape upon her then daughter was taken to police station where her statement was recorded. She was taken for medical examination at hospital. The age stated to be 20 years at the time of incident and as she was born in village her name was not registered in Corporation.
18. In the cross-examination he deposed that age of prosecutrix S is now 18 years old and he has no documentary evidence. The family of the accused forcibly taken the possession of his Jhuggi which was handed over by his brother-in-law Nanhe Khan but failed to vacate. He admits that he was forcibly evicted with the help of public. He denies that the accused is falsely implicated in this case as there was animity because of possession of Jhuggi. He denies that prosecutrix S had gone away with Pardeshi and stayed whole night voluntarily and in the morning she was brought by Pardeshi. He denies that Pardeshi did not jointed him for STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:13: search of his daughter at 11:30 pm. He denies that accused is falsely implicated.
19. PW 4 Anuradha wife of Pardeshi desposed that she does not remember the date, month and year. At about four years back at about 7:00 pm father of prosecutrix S came to her house and asked about her husband. On this she told that her husband Pardeshi is not present in the house. At about 10:00 pm her husband Pardeshi came then she told this fact to him. Her husband went to house of prosecutrix S. Then her husband and father of prosecutrix S went to trace prosecutrix S. At about 12:00-01:00 in midnight prosecutrix S came to their house and told that 4-5 persons were chasing her and asked for help to PW4. She further deposed that prosecutrix S stayed at her house during night. At about 6:00 am her husband came along with father of prosecutrix S and took away her daughter. In the cross-examination, she stated that there is a park between the house of prosecutrix S and her house. Her husband has good relation with father of prosecutrix S. She did not took prosecutrix S to her house in STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:14: the night as her child was very small. She admits that at that time her dewar aged 12-13 years was present in the house. She did not inform neighbourer Ram Chander in this regard.
20. PW 5 Pardeshi deposed that he does not remember the date and month. Four years back at about 11:00 pm he came back to his house after locking the shop. His wife Anuradha told him that father of prosecutrix S came and called him at his house then he went there. Father of prosecutrix S told him that prosecutrix S is not traceable. Thereafter he along with prosecutrix S went to trace at A- Block, parking of the tanker and also at the market of B-Block but she could not be traced. Thereafter they went to the house of prosecutrix S. He further deposed that he along with the father of prosecutrix S came to his house then his wife Anuradha told him that prosecutrix S had came to their house in the night and also told that accused Rashid put the knife and asked the address of maternal uncle of prosecutrix S. Thereafter they went to police station along with prosecutrix S. In the cross-examination he deposed that he STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:15: mentioned about the knife but same was not recorded in statement under Section 161 Cr.P.C. He further deposed that prosecutrix S told to the police that accused had not done any thing wrong with her except pointing out knife at her. At that time Zahir Abbas, father of prosecutrix S and Ct. Surender were present at police station. He admit that accused was arrested on the same day. Father of prosecutrix S is not related to him but distantly related.
21. The close scrutiny of testimony of above discussed witnesses establish that on the day of incident on 01.06.2004 the prosecutrix S has left her house around 9:00 pm thereafter she was not traceable. She was traced at the house of Pardeshi . At A-Block parking or B-Block parking she was not traced. In the night no complaint was lodged by parents of prosecutrix S with the police. PW 4 Smt. Anuradha established that prosecutrix S in the midnight at about 12:00- 1:00 am came to their house and stated that 4-5 persons were chasing her and she stayed in the house and in the morning at about 06:00am her husband and father of STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:16: prosecutrix S came and took her however PW5 Pardeshi gave a different version. He returned at his house at about 11:00 pm and thereafter went to the house of prosecutrix S as earlier PW 3 Riazuddin father of prosecutrix S came to his house for searching prosecutrix S. Then around 6:00 pm when he returned at his house then PW4 Anuradha his wife told that prosecutrix S came to their house and told that accused Rashid put knife and asked the address of maternal uncle. PW3 Riazuddin testified that in the night around 9:00 pm on 01.06.2004 when he returned then came to know that prosecutrix S was missing. On suspicion he went to the house of Pardeshi where accused used to visit. On next morning around 6:00 am he found her daughter at the house of Pardeshi. PW 5 Pardeshi concealed this fact from him. Thereafter they went to the police station. The facts however emerging out from their testimony is that there was a dispute regarding Jhuggi between father of prosecutrix S and family of accused. The Jhuggi was vacated forcibly with the help of public. The facts which are crystalized are that on 01.06.2006 at about 9:00 pm prosecutrix S went missing in STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:17: the night. She stayed at the house of PW4 Anuradha and P5 Pardeshi and in the early morning she was taken to police when her parents came to know about the incident of rape occurred with her.
22. The star witness of prosecution is PW-1 prosecutrix S. Now, in the light of established circumstances that she was missing since 9.00 p.m. on 01st June, 2004 and traced out in the early morning hours. Prosecutrix S specifically deposed that accused along with two of his friend kidnapped her and took her to Government school near Sector 25 in a Maruti car. Thereafter, he along with his friends forcibly took her inside the school then two boys ran away. Thereafter, accused removed her salwar and also his pant and underwear and committed rape. She was confined there for half an hour. Thereafter, accused dropped her at PW-5 Pardesi's house at Shahbad Dairy A Block and in the morning she disclosed all these facts to her parents. They took her to police chowki and police recorded her statement Ex.PW-1/A. She proved statement under section 164 Cr.P.C.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:18: made before ld. M.M. Ex.PW-1/B. Her clothes were also seized. The fact that she remained in the night hours at the house of PW-5 Pardesi is established on the basis of testimony of PW-4 Anuradha, wife of Pardesi. In the cross- examination she denied that she had gone with Pardesi or that is why she was brought by him. She denied that due to enmity with family of accused present case was registered in which accused was falsely implicated. No question or suggestion put to the vital facts stated by prosecutrix S in the cross-examination. The vital part remained unrebutted. No question or suggestion put that accused had not kidnapped her and not removed her to Government school near Sector 25 where he committed rape upon her. The statement made to the police and ld. M.M. under section 164 Cr.P.C. are on similar lines. The prosecutrix also deposed before the court the same facts and no improvement or contradiction brought on record.
23. The medical evidence brought on record of prosecutrix MLC Ex.PW-7/A reflects that there was nail marks STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:19: on her cheek and vagina lax. The testimony of PW-7 Dr. Jitender Kumar remained unrebutted. The testimony of PW-1 prosecutrix S corroborated by PW-7 Dr. Jitender Kumar.
24. Now, coming to the aspect of age of the prosecutrix, prosecutrix stated her age as 15 years. However, her parents are not definite on the age. Her mother stated that she was born at village and her age was one year at the time of assassination of Rajiv Gandhi, Prime Minister of India. Her father PW-3 Razuddin stated her age 20 years or 17 years. He was also not confirmed about the age. No birth date has been registered with the authorities. However, she undergone medical test of age determination. PW-8 Dr. Narender Singh Khurana proved the report Ex.PW-8/B. According to final opinion the age of prosecutrix established between 14-17 years. The law is well settled that benefit of age mentioned in the report shall be given and the age which is on the higher side shall be given to prosecutrix. Her age has been, therefore, according to the beneficial interpretation the age of the prosecutrix is 17 years. The STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:20: testimony of prosecutrix PW-1 in the circumstances established, is believable and proved the truthfulness of the incident which had taken place with her. There is no circumstances established which indicate that there is any iota of false implication of the accused. One cannot put forward his daughter with such charges in order to take revenge regarding dispute of jhuggi. No one can compromise with the honour of his daughter by false implication. The testimony of prosecutrix PW-1 is believable, truthful and sufficient to prove the charges against the accused.
25. On the above observation and discussion, prosecution has proved that accused kidnapped prosecutrix S from the lawful guardianship of her parents and forced her to illicit intercourse and committed rape upon her. Hence, accused is convicted of the offence under section 363, 366, 376 IPC.
Announced in the open court (SANJAY KUMAR) today i.e. 14.02.2011. ASJ-01 (NW),ROHINI COURTS: DELHI STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:21: THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - I, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI SC No. 190/2008 FIR No. 195/2004 PS : BAWANA U/s. 365/376 IPC STATE VERSUS RASHID S/O AHMAD HUSSAIN R/O. JHUGGI NO. 372, F BLOCK SHAHBAD DAIRY, DELHI Date of Institution : 09.09.2004 Date of receipt of case in this court : 05.12.2008 Order Announced On : 14.02.2010 Order on Sentence announced on : 17.02.2010 SHRI P.K. VERMA, APP FOR THE STATE.
SHRI J.P. SINGH, COUNSEL FOR CONVICT.
ORDER ON SENTENCE STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:22:
1. Ld. counsel for convict submits that convict is a married person and having two daughters of age 3-1/2 years and 8 months and he has to support his old parents. He further submits that convict never involved in any other criminal case. He requests that lenient view may be taken against the convict.
2. I have heard ld. counsel for the convict and perused the record.
3. Convict involved in an offence of kidnapping of prosecutrix and then he committed rape upon her. The charges proved are serious and grave in nature.
4. Hence, keeping in view the facts and circumstances of the case, I award sentence u/s 363 IPC to convict to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of six STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:23: months.
5. I further award u/s 366 IPC sentence to convict to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of one year.
6. I further award sentence u/s. 376 IPC to convict to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of one year.
7. All these sentences awarded to convict shall run concurrently. Benefit of section 428 Cr.P.C. Shall be given to convict. Copy of judgment and order on sentence be supplied free of cost.
8. File be consigned to record room after necessary compliance.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.
:24: Announced in the open court (SANJAY KUMAR) today i.e. 17.02.2011 ASJ-01 (NW),ROHINI COURTS: DELHI.
STATE VS RASHID//FIR NO.19504 PSBAWANA//U/S. 363/366/376 IPC.