Delhi District Court
State vs . Moinuddin Sardar Page No. 1/22 on 18 March, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique ID No : 02406R0133272014
SC No. : 147/14 and 1504/16
FIR No. : 176/14
U/s. : 323/34, 370/376/511/34 IPC
PS : Kotla Mubarak Pur, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Moinuddin Sardar
S/o Sipahi Sardar
R/o Thakur Chowk,
P.S Jain Nagar, Distt. West 24 Pargana,
West Bengal.
Raffikul Sardar @ Rafiq ( Declared PO on 17.01.2017)
S/o Jagangir Sardar
R/o Bammner Chek, P.S Joy Nagar
District 24 South Pargana,
West Bengal. .........................Accused
Date of Institution : 15.07.2014
Judgment reserved for orders on : 27.02.2017
Date of pronouncement : 08.03.2017
J U D G M E N T
Facts
1.On 01.03.2014, at about 10.25 p.m, an information vide DD No. 41A was received at the police station Kotla Mubarak Pur, New Delhi that a lady who has come from Bengal has been feeling scared in Room No. 73, House No. A54, Bapu Park, Kotla FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 1/22 Mubarak Pur, New Delhi. SI Sushil Kumar went there and met the prosecutrix 'Y'. She was unable to understand and speak English or Hindi. She was taken to Safdarjung Hospital but she refused for her medical examination. Ms Pallavi from NGO Shaktivahini was called to counsel and translate the language of the prosecutrix.
2. The prosecutrix 'Y' alleged that she had gone to Howrah to board a bus for Mumbai. She lost her mobile and met a girl namely Shyamoli who advised her not to go to Mumbai but to Delhi and work in a cloth factory. Shyamoli called Moinuddin Sardar on phone. He came there and pretended that he does the business of cloth and would employ her in his business. She (prosecutrix 'Y') came with Moinuddin to Delhi by train. On 01.03.2014 evening, she was taken to Kotla by Moinuddin where Rafiq also came. Both of them took liqour. Moinuddin then tried to open her pant and forced himself upon her. When she resisted, he hit a bottle on her head. She however pushed him and ran away. She started shouting. Many persons gathered and one of them called the police at 100 number.
3. She was again taken to the hospital on 02.03.2014 where she was medically examined. On her statement, case u/s 323/354(B)/363/354/365/376/511/34 IPC and u/s 8 POCSO Act was registered. SI Pratima did further investigation. The place of incident was found to be at C7, House No. A54 Bapu Park, New Delhi. One girl i.e the prosecutrix 'Y' was also found there. She could understand Bengali only. Ms Pallavi Ghosh was again called.
Prosecutrix 'X' alleged that she was brought at Delhi by Rafiq on the false promise of marriage. On 03.03.2014, during FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 2/22 medical examination, she alleged that she was raped by Rafiq. Her exhibits were collected and Section 376 IPC was added. Section 370 IPC was also added. Accused Moinuddin Sardar was arrested. He was got medically examined. His exhibits were collected. Statements of both the prosecutrix 'X' and prosecutrix 'Y' were got recorded u/s 164 CrPC. Prosecutrix Y was found to be above 18 years of age. Coaccused Rafiq could not be arrested and he was declared Proclaimed Offender. After the investigation, accused Moinuddin Sardar was sent for trial for the offences punishable u/s 323/354/354B/365/370/376/511/34 IPC.
4. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. Charge
5. Prima facie case was made out against the accused Moinuddin Sardar vide order dated 06.08.2014 and the charge was framed for the offences punishable under section 323/34, 370/376 IPC r.w 511/34 IPC. He pleaded not guilty and claimed trial. Prosecution Evidence
6. To substantiate its allegations against the accused, the prosecution examined as many as fifteen witnesses.
PW1 Ct Pawan Kumar was present when the IO arrested the accused Moinuddin Sardar vide arrest memo Ex. PW 1/A. PW2 Dr. Anchal Sablok did the medical examination of the prosecutrix 'Y' on 02.03.2014 at Safdarjung Hospital after recording the history. She stated that there was no history of physical assault, FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 3/22 penile penetration, oral sex etc as given by HC Mohan Rai, Interpretor. She stated that the prosecutrix was willing for any kind of physical or gynecological examination. She proved her MLC Ex. PW 2/A. She stated that on 03.03.2014, she also examined the prosecutrix 'X' in the hospital. She was accompanied by HC Mohan Rai, Interpretor who gave her the history of incident. She stated that there was no history of any other physical assault except the hit on her head nor there was any history of breast sucking, oral sex or anal intercourse. She collected her samples and handed over to Ct. Jasbir Kaur alongwith the sample seal in sealed condition. She proved her MLC Ex. PW 2/B. PW3 Ct Naveen Kumar took the accused Moinuddin Sardar to AIIMS for his medical examination. He collected his exhibits and handed over to the IO vide memo Ex. PW 3/A. PW4 is the prosecutrix 'X'. She testified on oath that in March, 2014, she left her house after she was scolded by her mother. She went to her brother's house at Sonarpur where she stayed for a day. She did not tell him anything. She then went to the railway station to catch train for Basunti but she instead getting down at Basunti, got down at Sialdah Railway Station inadvertently. There she met two sisters whom she requested to help her to purchase ticket for FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 4/22 Basunti but they instead asked her to accompany them outside the railway station. They gave her one bedsheet, artificial neck chain and pair of chappals and got removed her silver chain and ear rings. One of them wore her jewellery. When she objected, they threatened her to keep quiet. In the meantime, Rafiq came with his elder brother. They had brought cake. After eating, she felt giddy. She stated that the sisters got her in a taxi with Rafiq who took her to Nikko park and then to Howrah Railway Station from where on 27.02.2014 they boarded a train for Delhi at about 7.00 p.m. Accused Rafiq told her that after giving the examination, he would come back to Sialdah. His brother asked her to go with him to Delhi saying that he would get them married. She stated that they reached Delhi after 24 hours where at night Rafiq took her in a room where the accused Moinuddin Sardar came with the prosecutrix 'Y'. They all consumed liqour and ate food. She was also forced to consume liqour but when she refused, she was given beatings. They pulled her hairs and slapped her. Although she raised alarm but since the room was closed, no one heard. Rafiq then committed rape upon her in the morning. Moinuddin was standing outside the room with the prosecutrix 'Y'. She stated that prosecutrix 'Y' was forcibly brought by the accused Moinuddin and Rafiq. She was also beaten by them.
FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 5/22 She stated that accused Moinuddin then took her outside the room. The other persons snatched her mobile phone. She stated that after committing rape, accused Moinuddin and Rafiq forced her to go for prostitution. On the same day at about 9.00/10.00 p.m, two more girls came and talked to Rafiq who asked her to get ready saying that those two girls would take her with them. He also told her that she cannot leave them before two years. She stated that at about 5.00 p.m, accused Moinuddin and prosecutrix 'Y' came in her room and asked her to serve them meal. Accused Moinuddin Sardar closed the door of the room, removed the pajama of prosecutrix 'Y, tore her kurta and tried to establish physical relation with her but she pushed him aside and raised alarm. Prosecutrix 'Y' opened the door and many persons gathered. Rafiq fled away from the spot. She also managed to come out from the room and raised alarm. Police came and took her and the prosecutrix 'Y' and the accused Moinuddin to the police station. She proved her MLC Ex. PW 4/A. She stated that when they were in the police station, two bengali ladies were called whom they narrated the whole incident. She also proved her statement recorded u/s 164 CrPC Ex. PW 4/B. In the crossexamination, she stated that during her journey from Sialdah to Delhi, she was not fully FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 6/22 conscious and she regained her consciousness after reaching the room at Delhi. She denied that the accused Moinuddin did not commit any wrong with her and she had come to Delhi of her own.
PW5 Om Prakash was the landlord of House No. A 54, Bapu Park, Kotla Mubarak Pur. He stated that there were 60 rooms in the building and Devender Kumar was the caretaker.
PW6 Dr Abhishek Yadav was the Chairman of the board constituted under the directions of Child Welfare Committee for conducting the age determination of the prosecutrix Y. He proved the report Ex. PW 6/A, as per which her age was between 20 to 22 years. He proved the Xray films of bones and teeth Ex. PW 6/C1 to C10.
PW7 is the prosecutrix 'Y'. She testified on oath that her parents have expired. About two years ago, a lady namely Shyamoli met her at Sialdah Railway Station, Kolkata. She assured her to provide a good job. She took her in a house and called someone. One boy namely the accused came there. She was having Rs.15,000/ with her.
She stated that on 01.03.2014, Moinuddin brought her to Delhi and took her in a house where a man and woman were present. She stated that at night, all of them took liqour. They also forced her to take liqour but she did not. She stated that she tried to FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 7/22 escape from there but they did not allow her to go out. They told her that they would do 'galat kaam' with her. They beat her, gagged her mouth and pressed her neck. Accused Moinuddin asked her to call him 'her husband'. When she refused, he beat her. He closed the door of the room, removed her pajama, tore her kurta, removed his clothes and tried to make physical relation with her but she pushed him aside, raised alarm and opened the door. On hearing her alarm, many persons gathered and apprehended the accused Moinuddin. The other man managed to escape from there. She stated that among those persons, one person knew Bengali. She narrated him the whole incident. He called the police. She was got medically examined and the police recorded her statement Ex. PW 7/A with the help of a Bengali lady. She proved her statement under Section 164 Cr.P.C Ex.PW7/B. On being crossexamined, she stated that she was carrying mobile phone with her but she does not remember its number. She stated that she did not tell to anyone that she was being taken to Delhi by the accused. She admitted that she had refused for her internal examination. She denied that the accused did not bring her to Delhi nor he attempted to commit any wrong with her.
PW8 Tamash Ranjan Ghosh translated the statement of prosecutrix 'X' recorded u/s 164 CrPC.
FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 8/22 PW9 Ms Pallavi Ghosh translated the statement of the prosecutrix 'Y' Ex. PW 7/A recorded on 02.03.2014. She stated that in her presence, the prosecutrix had pointed out the room opposite to Room No. C7, III Floor, A54, Bapu Park, Kotla Mubarak Pur.
PW10 Devender Kumar Rath was the caretaker of the premises A54, Bapu Park. He stated that he had given Room No. C7 to Rafiq on rent on 01.03.2014. When he asked him to give his identity proof, he left the house in the evening. He stated that on 26.05.2014, when he was cleaning the room, he found a copy of the voter ID card of Rafiq Ex. PW 10/B which he handed over to the police vide memo Ex. PW 10/A. On being crossexamined, he stated that there were 56 rooms in the building.
PW11 Ms Bhavna Kalia Ld MM recorded the statement of the prosecutrix 'X' u/s 164 CrPC Ex.
PW4/B.
PW12 HC Hari Om was the Duty Officer. He
proved the FIR Ex. PW 12/A.
PW13 SI Sushil Kumar did part investigation of the case. He on receipt of DD Ex. PW 13/A reached A54, Bapu Park where he met the prosecutrix and the accused Moinuddin Sardar. He got the prosecutrix medically examined, recorded her statement with the help of Ms Pallavi Ghosh, prepared the rukka and got FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 9/22 the case registered. He handed over further investigation to WSI Pratima.
PW14 Dr Hansraj proved the MLC of accused Moinuddin Sardar Ex. PW 14/A prepared by Dr Karthik Krishna as per which the accused was capable of performing sexual intercourse under normal circumstances. He stated that the penile swab and control swab of the accused were collected and handed over to the police alongwith the sample seal. PW15 SI Pratima was the investigating officer of the case. She deposed on the lines of investigation. She stated that she had met the prosecutrix 'Y' on the spot. She knew Bengali only. She recorded her statement with the help of Pallavi Ghosh. She got her medically examined vide MLC Ex. PW 2/A and collected her exhibits. She also got her ossification test conducted and arrested the accused Moinuddin Sardar vide memo Ex. PW 1/A, got him medically examined and collected his exhibits vide memo Ex. PW 3/A. She also collected the photocopy of voter card of accused Rafiq from the caretaker Devender Kumar Rath.
Statement of Accused
7. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He denied all the incriminating evidence against him and stated that he has been falsely implicated in this case.
FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 10/22 Defence Evidence
8. The accused did not examine any witness in defence.
Arguments
9. I have heard the arguments advanced by Sh. Pawan Kumar Mittal, Ld Legal Aid Counsel for the accused and Sh. Mohd. Iqrar,Ld. Addl. PP for the State.
10. Ld counsel for the accused vehemently argued that there are material improvements in the testimony of prosecution witnesses. Both the prosecutrix have stated certain facts in their deposition which did not form part of their statements recorded during investigation. The physical relations of the prosecutrix 'X' with the accused Rafiq were consensual which is evident from her MLC as no injuries were found during her medical examination. The allegations made by the prosecutrix 'Y' that she was beaten mercilessly are also negated by her MLC. There is no evidence to show that the accused Moinudding Sardar trafficked the prosecutrix 'Y' for prostitution. She of her own had come to Delhi to do some job. Ld counsel stated that it is a case of false implication of the accused and the accused deserves to be acquitted.
11. Ld Addl. PP on the contrary argued that both the prosecutrix were brought to Delhi by the accused Moinuddin Sardar and Rafiq giving allurement that Moinduddin Sardar would employ prosecutrix 'Y' in his business and accused Rafiq would marry the prosecutrix 'X'. Their intention was something else. They wanted to drag both the prosecutrix into prostitution. Accused Rafiq committed rape upon prosecutrix 'X'. Accused Moinuddin Sardar attempted to commit rape upon the prosecutrix 'Y'. She raised FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 11/22 alarm. Accused Moinuddin Sardar then a hit a bottle on her head. She however pushed him and ran away. She started shouting and many persons gathered. The accused Moinuddin Sardar was apprehended on the spot. Ld Addl. PP stated that the coaccused Rafiq absconded and he was declared Proclaimed Offender. Ld Addl. PP stated that the testimonies of the prosecutrix X and Y are consistent and cogent as to the involvement of the accused persons in the alleged offences. There was no reason for the prosecutrix to falsely implicate the accused persons. Ld Addl. PP stated that it is a fit case where the accused Moinuddin Sardar be convicted. Findings
12. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record.
13. Section 375 IPC defines rape. It reads as:
"Rape A man is said to commit "rape"
who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.......
Fifthly..........
Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 12/22 to the offence of rape.
Exception.......
14. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
15. Section 323 IPC provides punishment for voluntarily causing hurt to any person.
16. Section 370 IPC provides punishment for trafficking of a person. A person, who for the purpose of exploitation, (a) recruits, (b) transports (c) harbours (d) transfers, or (e) receives, a person or person by using threats or using force, or any other form of coercion or by abduction or by practising fraud, or deception, or by abuse of power or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any other person having control over the person recruited, transported, harbured, transferred or received, commits the offence of trafficking.
17. Section 511 IPC provides punishment for attempting to commit an offence punishable with imprisonment or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, where no expressed provision is made for the punishment of such an attempt, shall be punished... for a term which may extend to one half of the longest term of imprisonment provided for that offence or with such fine as FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 13/22 is provided for the offence, or with both.
18. On an analysis of the testimony of the prosecutrix 'X', I find that the prosecutrix had left her house since she was scolded by her mother. She caught a train for Basunti but instead she got down at Sialdah railway station where she met two ladies. Those two ladies instead helping her brought her outside the railway station where Rafiq (PO) and his brother came. They gave her cake, as a result, she felt giddy. She was brought at the Howrah Railway Station from where she was brought at Delhi in a train. Rafiq told her that after the examination, he would come back to Sialdah. His brother however made her agree to go with Rafiq saying that he would marry her. Her testimony shows that she was taken in a room where she was forced to consume liqour. When she refused, she was given beatings. Accused Moinuddin Sardar was also there. They pulled her hairs and slapped her. Although she raised alarm but since the room was closed, no one heard. Accused Rafiq committed rape upon her. She has stated that the prosecutrix 'Y' was also forcibly brought by the accused Moinuddin and Rafiq. They also beat her. Both of them forced her to go for prostitution. On the same day, they called two girls and asked her to get ready to go with those girls and said that they would not allow her to leave before two years. She has also stated that at about 5.00 p.m, accused Moinuddin and prosecutrix 'Y' came. Accused Moinuddin closed the door of the room, removed the pajama of prosecutrix 'Y' and tore her kurta. He tried to establish physical relation with her but prosecutrix 'Y' pushed him aside and raised alarm. Prosecutrix Y opened the door and many person gathered. Accused Rafiq fled FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 14/22 away from the spot however accused Moinuddin Sardar was apprehended. She categorically denied that accused Moinuddin did not do any wrong with her and she had come to Delhi of her own.
19. Testimony of prosecutrix 'Y'/PW7 would show that a lady namely Shyamoli had met her at Sialdah railway station who assured her to provide her a good job. She called the accused Moinuddin Sardar who on 01.03.2014 brought her to Delhi. He took her in a house where at night he and Rafiq forced her to take liqour. She tried to run away from there but they did not allow her. They told her that they would do galat kaam with her. Her testimony further shows that both of them beat her, gagged her mouth and pressed her neck. Moinuddin Sardar also asked her to call him as husband but when she refused, he beat her, closed the door of the room, removed her pajama, tore her kurta, removed his clothes and tried to make physical relations with her but she pushed him aside. She raised alarm and opened the door. Many persons gathered and apprehended the accused Moinuddin Sardar however Rafiq managed to escape. She categorically denied that accused Moinuddin Sardar did not bring her to Delhi or did not attempt to commit rape upon her. Both the prosecutrix X and Y proved their statements u/s 164 CrPC Ex. PW 4/B and Ex. PW 7/B respectively. The prosecutrix 'Y' also proved her complaint Ex. PW 7/A. Both the prosecutrix were examined vide MLC Ex. PW 4/A(prosecutrix 'X') and MLC Ex. PW 2/A(prosecutrix Y). They had given the history of incident to the doctors in which the prosecutrix 'X' had alleged that she was brought at Delhi by Rafiq for getting her into a job where he committed rape upon her at about 5.00 a.m . She had also FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 15/22 stated that he hit her on her head.
20. I do not agree with the contentions of Ld counsel that her MLC does not show any physical assault on her person. Her MLC finds mention that there was no history of any other physical assault. The prosecutrix 'Y' in the history given to the doctor had stated that she was brought by the accused Moinuddin to Delhi giving an assurance for getting her a job where he attempted to commit rape upon her. She started shouting so he could not succeed. Their testimonies are very categorical to the fact that both the accused were there in the house. When they refused to go for prostitution, they beat her. Prosecutrix 'Y' has stated that accused Moinuddin beat her, gagged her mouth and pressed her neck. Prosecutrix 'X' has stated that the accused Rafiq pulled her hairs and slapped her. Facts and circumstances show that what the accused persons did was in furtherance of common intention to sexually exploit both the prosecutrix and to drag them into prostitution. They had called the ladies and asked both of them to go with them saying that they would have to stay with them for two years. I find, the testimonies of both the prosecutrix consistent with the statements u/s 164 CrPC and the history narrated by them during their medical examination.
21. Although there are minor improvements in the testimony of PW4/prosecutrix 'X' that her mother scolded her and for that reason she left her house or that she went to Sonarpur or stayed in the house of her brother or she took train for Basunti and got down at Sialdah railway station inadvertently where she met two ladies who removed her chain etc or Rafiq and his brother came FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 16/22 there who gave her cake as a result, she started feeling giddy and thereafter she was brought to Delhi and brother of the accused Rafiq had asked her to go with Rafiq that he would marry her or that they forced her to take liqour but these improvements do not go to the root of the case and create doubt on her veracity. It is not the case that the prosecutrix 'X' knew the accused Rafiq and Moinuddin Sardar from before or was interested in their false implication. She is very categorical to the fact that accused Rafiq committed rape and both of them forced her to go into prostitution so that they would live on her earnings. She has stated that accused Moinuddin also attempted to commit rape upon the prosecutrix 'Y'. When they cried for help, accused Rafiq fled away while the accused Moinuddin Sardar was apprehended. In her statement Ex. PW 4/B, she has categorically stated that the accused Rafiq brought her to Delhi where he committed rape upon her. She was also given beatings.
22. It is also true that there are some improvements in the testimony of prosecutrix 'Y' as to the accused Moinuddin forcing her to take liqour by pressing her neck or the accused tearing her kurta and removing her clothes or when she raised alarm, many persons gathered but she has categorically denied that the accused Moinuddin Sardar did not bring her to Delhi nor attempted to commit rape upon her. She has stated that accused Moinuddin had beaten her. She denied that she has falsely implicated the accused in the fit of anger. She is very consistent and cogent as to the incident happened with her. I do not find any material to doubt on her veracity. In the case of the prosecutrix 'Y' also, she did not know the FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 17/22 accused Moinuddin Sardar from before. There is no material to show that the prosecutrix 'Y' had enmity against the accused Moinuddin or was interested in his false implication. In the instant case, the police party reached the spot immediately after receipt of DD Ex. PW 13/A about the incident. They had met the prosecutrix 'Y' and the accused on the spot. Testimony of PW10 shows that accused Rafiq used to live at the premises where the incident took place i.e at C7/A54, Bapu Park, New Delhi. As per the Ossification Test report which is proved by PW6, prosecutrix 'Y' was 2022 years of age. Prosecutrix 'X' has stated her age as 22 years.
23. In the case reported in Bhargavan and others Vs. State of Kerala (9) ADSC 403 it was held, "normal discrepancy is expected, however, honest and truthful a witness may be. This does not corrode the credibility of the witness". The human memory is vicissitudinous. In Appabhai vs. State of Gujarat AIR 1988 SC 696, it was held that the errors due to the lapse of memory may be given due allowance. All the facts and circumstances prove the complicity of the accused persons in the commission of the alleged offences.
24. In State of Maharasthra v. Chandraprakash Kewalchand Jain, 1990 AIR 658, it was observed: "A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime....................................................................... ............If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 18/22
25. In the instant case, the evidence of both the prosecutrix is of sterling quality. It is consistent and credible. Their demeanor show them to be honest and truthful witnesses. There are no material improvements, embellishments and exaggerations in their testimonies. The minor and immaterial discrepancies have no bearing in this case.
26. It is well settled law that in a case of rape/sexual assault, the sole testimony of the victim is sufficient to establish the guilt of the accused and no corroboration is required. The evidence of the victim of sexual assault cannot be tested with suspicion as that of an accomplice. The Supreme Court in Radhu v. State of Madhya Pradesh 2007 Crl.L.J. 4704 succinctly laid down the principles thus: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. "
27. It was held in State of UP v. M. K. Anthony, AIR 1985 SC 48 as follows: "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 19/22 the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal dual between a rustic and refined lawyer."
28. Nevertheless in a criminal trial prosecution has to prove its case beyond reasonable doubt but the doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth to constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantive, should not be mere vague apprehensions. A fair doubt is based upon decision of common sense. In Sucha Singh and another v. State of Punjab J.T.2003(6) SC 248 it has been ruled that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. It was also reiterated in Gurbachan FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 20/22 Singh v. Satpal Singh and others AIR 1990 SC 209. In case State of U.P v. Ashok Kumar Srivastava AIR 1992 SC 840 it was held that prosecution is not required to meet any and every hypothesis put forward by the accused.
Conclusion
29. Facts and circumstances of the present case show that both the prosecutrix were brought by the accused persons namely Rafiq (PO) and Moinuddin Sardar giving them allurement that they would arrange a job for them. Their intention was dishonest since beginning. They kept both the prosecutrix in the room at Bapu Park, Kotla, New Delhi where the accused Rafiq(PO) committed rape upon the prosecutrix 'X' and the accused Moinuddin Sardar attempted to commit rape upon the prosecutrix 'Y'. They wanted to drag both the prosecutrix into prostitution. When they opposed, they were given beatings. I am of the view that both the accused persons for the purpose of sexual exploitation of both the prosecutrix brought them to Delhi by inducement. They intended to drag them into prostitution. They had called the girls to take them for prostitution but somehow they raised alarm. It is thus proved that they had attempted to traffick both the prosecutrix for their sexual exploitation. The prosecution has also proved that the accused Moinuddin attempted to commit rape upon the prosecutrix. It is also proved that accused Moinuddin Sardar with coaccused Rafiq voluntarily caused hurt on the person of both the prosecutrix.
30. I am of the view that necessary ingredients of the offences punishable under section 370 r.w 511/34, 376 r.w 511 IPC and under section 323/34 IPC are proved against the accused FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 21/22 Moinuddin Sardar. I therefore hold him guilty and convict him thereunder. Accused Rafikul Sardar @ Rafiq is Proclaimed Offender. The prosecution is at liberty to revive its case as and when accused Rafikul Sardar is apprehended or gets any clue of him.
31. Let the accused Moinuddin Sardar be heard on the point of sentence on the date as fixed by the Court.
Announced in the open court ( Sanjiv Jain )
on 08.03.2017 ASJ ( Special, FTC)
SouthEast: New Delhi.
FIR No. : 176/14
P.S : Kotla Mubarak Pur
State Vs. Moinuddin Sardar Page No. 22/22
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK COURT : SAKET COURTS: NEW DELHI.
Unique ID No : 02406R0133272014 SC No. : 147/14 and 1504/16 FIR No. : 176/14 U/s. : 323/34, 370/376/511/34 IPC PS : Kotla Mubarak Pur, New Delhi. State (Govt. of NCT of Delhi) ................... Complainant Versus Moinuddin Sardar S/o Sipahi Sardar R/o Thakur Chowk, P.S Jain Nagar, Distt. West 24 Pargana, West Bengal. ...................... Convict Date of Institution : 15.07.2014 Date of order on sentence : 18.03.2017 ORDER ON SENTENCE
1. Vide separate judgment dated 08.03.2017, Moinuddin Sardar has been convicted of the offences punishable under section 370 r.w 511/34, 376 r.w 511 IPC and under section 323/34 IPC.
2. I have heard Shri Mohd. Iqrar, Ld. Addl. PP for the State and Sh. Pawan Kumar Mittal, Ld. Legal Aid Counsel for the convict on the point of sentence.
3. It is submitted by Ld. counsel that the convict Moinuddin Sardar is aged about 40 years. He has a family comprising of his wife and two children aged 17 and 14 years respectively. They are school going. His parents have expired. He used to do embroidery FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 23/22 work. Ld. counsel stated that the convict does not have any criminal antecedents. He is in custody since 02.03.2014. Ld. counsel stated that keeping in view the antecedents of the convict, his family circumstances and his conduct during the course of trial, leniency may be shown while awarding the sentence.
4. Ld. Addl. PP on the contrary argued that the convict does not deserve any leniency. Both the prosecutrix were brought by the accused persons namely Rafiq (PO) and Moinuddin Sardar giving them allurement that they would arrange job for them. Their intention was dishonest since beginning. They kept both the prosecutrix in the room at Bapu Park, Kotla, New Delhi where the accused Rafiq (PO) committed rape upon the prosecutrix 'X' and the accused Moinuddin Sardar attempted to commit rape upon the prosecutrix 'Y'. They wanted to drag both the prosecutrix into prostitution. When they opposed, they were given beatings. Ld. Addl. PP submits that the offences are serious in nature and the convict does not deserve any leniency.
5. I have considered the submissions.
6. The Supreme Court in Ankush Maruti Shinde & Ors. Vs. State of Maharashtra 2009 AIR SCW 4022 has observed:
"Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice or "order" should meet the challenges confronting the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was committed. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 24/22 committed, the motive for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration.
The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.
7. The convict in the instant case brought the prosecutrix 'Y' to Delhi giving an allurement that he would arrange a job for her. His intention somehow was different. He wanted to drag her into prostitution. When both the prosecutrix opposed, he and coaccused Rafiq (PO) gave them beatings. Convict Moinuddin also attempted to commit rape upon her. It is true that the convict is aged about 40 years and has a family to support but on the other hand we must see the plight of both the prosecutrix, who were subjected to trafficking for their sexual exploitation. They were given beatings. Prosecutrix 'Y' was attempted rape while the prosecutrix 'X' was raped by co accused Rafiq. The aforesaid offences are universally considered to FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 25/22 be amongst the most morally and physically, reprehensible crime in society and assault on the body, mind, privacy and the entire fabric of the victim. Their dignity is shredded. The social stigma attached to this crime is such that many a times, a crime would go unreported by the victim.
8. Keeping in view his antecedents, age and the facts and circumstances of the case, I sentence the convict Moinuddin Sardar to undergo rigorous imprisonment for a period of three and a half years and to pay a fine of Rs. 15,000/, in default thereof to undergo simple imprisonment for a period of six months for the offence punishable under section 370 r.w 511/34 IPC. He is sentenced to undergo rigorous imprisonment for a period of three and a half years and to pay a fine of Rs.15,000/, in default thereof to undergo simple imprisonment for a period of six months for the offence punishable under section 376 r.w 511 IPC. The convict is sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under section 323/34 IPC. He be given benefit of section 428 CrPC. All the sentences shall run concurrently. The fine amount if realized be paid to both the prosecutrix after the expiry of the period of appeal i.e Rs.15,000/ each to both the prosecutrix.
9. I also recommend that appropriate compensation under section 357A CrPC be awarded to both the prosecutrix. A copy of this order be sent to Secretary, Delhi Legal Service Authority, South District, New Delhi for deciding the quantum of compensation to be awarded under the scheme referred to in sub section 1 of section 357A CrPC.
FIR No. : 176/14 P.S : Kotla Mubarak Pur State Vs. Moinuddin Sardar Page No. 26/22
10. Attested copy of the judgment, order on sentence, copy of charge, evidence, statement under section 313 CrPC, exhibited documents be given to the convict, free of cost.
11. File be consigned to record room.
Announced in the open
court on 18.03.2017 (Sanjiv Jain)
ASJSpl. FTC / South East
Saket Courts, New Delhi
FIR No. : 176/14
P.S : Kotla Mubarak Pur
State Vs. Moinuddin Sardar Page No. 27/22