Delhi District Court
State vs Alijaan @ Mulla S/O Allah Mehar, R/O B on 3 October, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0197092011
Sessions Case No. 35/2011
Assigned to Sessions. 07.07.2011
Arguments heard on 26.09.2012
Date of Judgment 29.09.2012
FIR No. 42/2011
State Vs Alijaan @ Mulla s/o Allah Mehar, r/o B
41, Gali No.11, Gamri, Bhajanpura,
Delhi.
Police Station Bhajanpura
Under Section 451/354/323/367 IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Bhajanpura had filed a challan vide FIR No.42/2011 dated 01.02.2011 u/s 354/323 IPC for the prosecution of accused Mulla in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. and ld. MM finding fact of section 367 IPC committed this case before ld. District Judge & Addl. Sessions Judge I/C, North East District, Delhi. Since this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by ld. District Judge & Addl. Sessions Judge I/C, North East District, Delhi to this court for trial. SC No.35/2011 State v. Alijaan @ Mulla 1/17
2. In nutshell, case of prosecution is that on 01.02.2011 at about 12:15 a.m. a DD No.2A was recorded at police station Bhajanpura on the information received from duty/Lady Ct. Kiran No.8037/PCR from ESI Hospital, Jhilmil, Delhi, regarding rape upon a minor girl. Copy of the same DD was assigned to SI Sunil Kumar for necessary action. On receipt of DD No.2A, SI Sunil Kumar had reached at ESI Hospital, Jhilmil, Delhi and collected MLC of victim Ex.PW9/A. Parents of victim had also met him there but they did not tell him anything about the incident on that night.
3. On 01.02.2011, at about 8:00 a.m. SI Sunil Kumar had called Neetu Joshi from Angeja Foundation (NGO) for counseling of victim and SI Sunil Kumar along with her had reached at ESI Hospital, Jhilmil, Delhi. Neetu Joshi made counseling to the victim as well as her parents. SI Sunil Kumar had recorded statement of Smt. Kajal, mother of victim Ex.PW1/A and made endorsement Ex.PW5/A upon the same to get registered FIR u/s 354 and 323 IPC against accused. Accordingly, FIR No.42/2011 u/s 354/323 IPC Ex.PW5/B was registered against accused Mulla. During the course of investigation, police had arrested accused Mulla. Ld. Court of MM had framed charges u/s 354/451/323 IPC against accused Alijaan @ Mulla. During the course of examination, ld. court of MM finding the fact of section 367 IPC from the testimony of victim had committed this case for trial before Sessions Court. SC No.35/2011 State v. Alijaan @ Mulla 2/17 CHARGE:
4. On the basis of material available on record this court vide order dated 03.08.2011 framed a charge against accused Alijaan @ Mulla for the offence punishable u/s 451/354/323/367 IPC to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
5. In order to prove its case prosecution has examined 10 witnesses namely PW1 Ms. Neetu Joshi, PW2 Ct. Anuj Malik, PW3 Ct. Khusi Ram, PW4 Victim, PW5 HC Prem Pal Singh, PW6 Smt. Kajal, PW7 S.I. Balbir Singh, PW8 Sh. Jitender, PW9 Dr. Nishi Mitra and PW10 S.I. Sunil Kumar.
6. PW1, Ms. Neetu Joshi (NGO). This witness has deposed that in the year 2011 or before he was attached with NGO (Angeja Foundation) as counselor and coordinator and she used to visit different police stations and used to counseling to the victims of sexual offences.
7. This witness has further deposed that on 01.02.2011, at about 08:30am, she had received a phone call of S.I. Sunil from P.S. Bhajanpur, Delhi and she went there and from there she along with S.I. Sunil had reached ESI Hospital, at Jhilmil, Vivek Vihar, Delhi, where, they met to victim, aged about 5 years and her parents and she had talked with victim. This witness has further deposed that victim had told her that on 31.01.2011 one person namely Mulla had put his finger into her private parts. SC No.35/2011 State v. Alijaan @ Mulla 3/17 This witness has further deposed that Smt. Kajal, mother of victim had told her the same facts.
8. This witness has been cross examined by ld. legal Aid counsel for accused. In her cross examination by ld. legal aid counsel for accused, this witness has deposed that she has been working with the aforesaid NGO for last two years and her name, address and telephone numbers were provided by the NGO/Delhi Women Commission to Police Stations. S.I. Sunil informed her on telephone that yesterday he had visited the aforesaid hospital where mother of victim was hopeless and not in a position to make her statement, so she was called. No police official was present when she made some enquiries from victim and she had noted down the facts which were told to her by victim and by her mother.
9. PW2 Ct. Anuj Malik. This is the witness of delivery of rukka Ex.PW1/A and copy of FIR to SI Sunil Kumar for investigation.
10.PW3 Ct. Khusi Ram. This is the witness of arrest of accused Alijaan @ Mulla. This witness has proved arrest memo Ex.PW3/A and personal search memo Ex.PW3/B, and disclosure statement Ex.PW3/C of accused Alijaan @ Mulla.
11.PW4 Victim is a material witness. This witness has been examined by this court after ascertaining her knowledge and capacity of understanding by putting some questions and after getting reply on being satisfied that this child witness can SC No.35/2011 State v. Alijaan @ Mulla 4/17 understand questions and reply the same.
12.This witness has deposed that accused Mulla is known to her being the same resident of same house and on the day of incident, she was going to toilet after returning from school. This witness has further deposed that accused called her and he took her to his room. This witness has further deposed that accused covered her under the quilt and he put off her underwear (Kachha) and put his hands on her private part (susu karne wali jagah). Blood started oozing out from her private part. Thereafter, he sent back her to her room.
13.In her cross examination by ld. legal aid counsel, this witness has deposed that accused had not threatened and beaten her. This witness further deposed that he had not stated to anyone about the said incident.
14.This witness denied that she had sustained injury on her private part due to falling on hard surface while playing. This witness has further denied that she has been tutored by her parents and police.
15.PW5 HC Prem Pal Singh is a formal witness being Duty Officer. This witness has proved copy of FIR vide Ex.PW5/B.
16.PW6 Smt. Kajal, mother of victim is a material witness being complainant. This witness has deposed that on 31.01.2011 at about 02:00pm, she along with her SC No.35/2011 State v. Alijaan @ Mulla 5/17 husband and her elder daughter Anjali had gone to take medicine from dispensary after leaving her younger daughter, victim, aged about 5 years in her tenanted room and they returned at their room at about 04:30pm. This witness has further deposed that she had noticed blood stains on the wearing pant of victim and she asked her about blood stains on her pant and victim had told her that Alijaan @ Mulla, accused present in court (correctly identified), had called her in his room, he put off her pant and inserted his finger into her vagina as a result of which blood had come out and it was also told by victim to her that on seeing the blood accused had run away from his tenanted room.
17.This witness had washed off the pant of victim and provided her another one and took her to I.G.E.S.I. Hospital, Jhilmil, Delhi, where, she was medically examined vide MLC Mark X and they remained in aforesaid hospital till 09:30pm.
18.This witness has further deposed that she had not told anything to police about the aforesaid incident as she was nervous.
19.This witness has further deposed that one lady, namely, Neetu Joshi was called by the police, she made some enquiries from victim and victim had told the facts of incident to her. This witness has proved her statement Ex.PW1/A.
20.In her cross examination by ld. legal aid counsel for accused, this witness denied that accused did not commit any wrong act with victim, or that victim had not told her SC No.35/2011 State v. Alijaan @ Mulla 6/17 anything about the incident. This witness further denied that her husband had borrowed some loan from accused and on demanding the said loan accused had been falsely implicated in this case. This witness further denied to suggestion that no such offence has been committed by the accused with the victim.
21.PW7 S.I. Balbir Singh. This witness has proved copy of DD No.2A vide Ex.PW7/A.
22.PW8 Sh. Jitender is landlord of accused. This witness has deposed that accused, present in court (correctly identified), was residing as a tenant in a room of the first floor of his house at the rent of Rs.500/ per month and accused had joined the tenancy threefour years prior to incident.
23.This witness has further deposed that accused had left his tenanted room after putting lock after incident and he had tried to trace him through his mobile phone but he could not be traced by him. This witness has further deposed that he was called by police at P.S. and he provided mobile number of accused to them and they traced him through his mobile phone and after about 810 days accused was apprehended.
24.In his cross examination by ld. legal aid counsel, this witness has deposed that police had recorded his statement in the present case.
SC No.35/2011 State v. Alijaan @ Mulla 7/17
25.PW9 Dr. Nishi Mitra. This witness has proved MLC of victim vide Ex.PW9/A. This witness has mentioned alleged history given by victim at encircled portion Ex.PW9/A.
26.In her cross examination by ld. legal aid counsel for accused, this witness has deposed that hymen torn and bleeding cannot be ruled out while playing or falling.
27.PW10 S.I. Sunil Kumar is a material witness being I.O. This witness has deposed that on the intervening night of 31thJan. & 1stFeb.2011, he was on duty at P.S. Bhajanpura, Delhi and on that day copy of DD No.2A, Ex.PW7/A, was assigned to him to take action into the matter at about 12:20am, which was in connection of rape upon victim, aged about 5 years old. This witness had reached at E.S.I. Hospital, Jhilmil, Delhi, in pursuance of aforesaid DD, where, he had collected MLC of victim, Ex.PW9/A, which runs upto two sheets. This witness has further deposed that parents of victim had also met him there but they did not tell him anything about the incident on that night.
28.This witness has further deposed that on 01.02.2011, at about 08:00am, he had called Neetu Joshi, from Angeja Foundation (NGO) for counseling of victim and Neetu Joshi had made counseling of the victim as well as her parents. This witness had recorded statement of Smt. Kajal, mother of victim, Ex.PW1/A and made endorsement Ex.PW5/A which bears his signature at point X to get registered the FIR Ex.PW5/B for offence u/s 354 and 323 IPC against the present accused. SC No.35/2011 State v. Alijaan @ Mulla 8/17
29.This witness has proved unscaled site plan Ex.PW10/A which was prepared at the instance of PW Jitender.
30.This witness has proved arrest memo Ex.PW3/A, personal search memo Ex.PW3/B and disclosure statement Ex.PW3/C of accused Alijaan @ Mulla.
31.In his cross examination by ld. legal aid counsel, this witness has deposed that he had enquired the mother of victim but she did not tell anything about the incident. This witness has further deposed that he had not recorded statement of father of victim. This witness has further deposed that he had not obtained the statements of other tenants of the building in which victim and complainant had been residing. This witness denied that he had not properly and fairly investigated the present case. STATMENT OF ACCUSED U/S 313 CR.P.C.:
32.After prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded where accused Alijaan @ Mulla denied all allegations, evidence and circumstances put to him. In statement u/s 313 Cr. P.C. accused Alijaan @ Mulla deposed that he is innocent and falsely implicated in the present case as some money had been borrowed from him by the father of victim and on demanding the said loan amount some altercation had taken place between them and due to that reason he has been falsely implicated in this case. Accused has not preferred to lead any D.E. SC No.35/2011 State v. Alijaan @ Mulla 9/17
33.Thereafter, case was fixed for final arguments.
ARGUMENTS
34.Ld. APP for State, Sh. Zenual Abedeen argued that case is registered u/s 367/451 IPC. Ld. APP for the State further argued that initially case was registered u/s 354/323 IPC. On evidence of victim, case was sent to this court for trial.
35.Ld. APP for the State further argued that PW1 victim has stated in her testimony that accused had taken her to his room and covered her under the quilt. PW1 victim has further stated in her testimony that accused put off her underwear (Kachha) and put his hands on her private part (susu karne wali jagah) and blood started oozing out from her private part. Identity of accused is not disputed.
36.Ld. APP for the State further argued that opinion of doctor corroborate the testimony of victim. Hence, case is covered u/s 354 IPC.
37.Ld. APP for the State further argued that PW6 had not lodged any report with police and she took the victim to ESI Hospital where police came but this witness didnot disclose anything to him. Then PW10 called PW1 at the hospital. Lady constable Kiran had passed information to police station that case of rape with 5 years old girl and on this DD No.2A was registered.
38.Ld. APP for the State further argued that the present case is squarely covered under SC No.35/2011 State v. Alijaan @ Mulla 10/17 the ingredients of section 354/451/367 IPC as the statement of prosecutrix before the court is sufficient to convict the accused Alijaan @ Mulla for the offence charged as prosecution has proved its case beyond reasonable doubt.
39.On the other hand ld. legal aid counsel for accused argued that as per evidence section 367 IPC is not made out. Section 451 IPC also not made out. As per prosecutrix accused had not entered in the house of victim. Hence, section 451 IPC not made out.
40.Ld. legal aid counsel further argued that as per rukka Ex.PW5/A Ms. Kajal has not given alleged history of section 367 IPC to S.I.
41.Ld. legal aid counsel for accused further argued that victim had not told anything to her mother about the incident but in the next morning such statements of section 367 IPC and 451 IPC come out in the story of prosecution after consulting by one Neetu Joshi from NGO. Version of complainant and of I.O. are contradictory.
42.Ld. legal aid counsel for accused further argued that complainant had not made any complaint to police station but police received information from ESI Hospital and matter was proceeded.
43.Ld. legal aid counsel for accused further argued that police had also not taken into possession the quilt used in commission of crime. No tenant has been examined. SC No.35/2011 State v. Alijaan @ Mulla 11/17
44.Ld. legal aid counsel for accused further argued that as per PW4, victim was wearing pant at the time of incident but victim in her statement states that she was wearing kachha at the time of incident.
45.Ld. legal aid counsel for accused further argued that victim had sustained injury while playing and not by accused. Doctor also has not confirm opinion.
46.Ld. legal aid counsel for accused further argued that father of victim has not examined by prosecution. As per MLC of victim, father had got admitted the victim in the GTB Hospital. Place of arrest of accused is public place and no person has been made witness to arrest of accused.
47.Ld. legal aid counsel for accused further argued that PW8 Jitender, is landlord of house of victim.
48.Ld. legal aid counsel for accused further argued that victim had not told anything to Neetu Joshi, NGO and victim had told everything to police at the instance of Neetu Joshi but without consulting the victim. On these grounds, ld. legal aid counsel for accused has prayed for acquittal of accused Alijaan @ Mulla from the charges. PERUSAL OF RECORD:
49.Arguments heard. Record perused. On perusal of record it is revealed that on SC No.35/2011 State v. Alijaan @ Mulla 12/17 01.02.2011 at about 12:15 a.m. a DD No.2A was recorded at police station Bhajanpura on the information received from Lady Ct. Kiran No.8037/PCR, ESI Hospital, Jhilmil, Delhi, regarding rape upon a minor girl and copy of the same DD was assigned to S.I. Sunil Kumar.
50.On perusal of record, it is further revealed that on receipt of DD No.2A, SI Sunil Kumar had reached at ESI Hospital, Jhilmil, Delhi and collected MLC of victim Ex.PW9/A. Parents of victim also met him there but they did not tell him anything about the incident on that night.
51.On perusal of record, it is further revealed that on 01.02.2011, at about 8:00 a.m. SI Sunil Kumar had called Neetu Joshi from Angeja Foundation (NGO) for counseling of victim and SI Sunil Kumar along with her reached at ESI Hospital. Neetu Joshi made counseling from victim as well as her parents. SI Sunil Kumar had recorded statement of Smt. Kajal, mother of victim Ex.PW1/A and made endorsement Ex.PW5/A upon the same to get registration of FIR u/s 354 and 323 IPC against accused. Accordingly, FIR No.42/2011 u/s 354/323 IPC Ex.PW5/B was registered against accused Mulla.
52.On perusal of record, it is revealed that I.O. had prepared unscaled site plan Ex.PW10/A at the instance of PW Jitender.
53.On perusal of record, it is further revealed that I.O. has proved arrest memo SC No.35/2011 State v. Alijaan @ Mulla 13/17 Ex.PW3/A, personal search memo Ex.PW3/B and disclosure statement Ex.PW3/C of accused Alijaan @ Mulla.
54.On perusal of record, it is further revealed that PW9 Dr. Nishi Mitra has proved MLC of victim vide Ex.PW9/A. This witness has mentioned alleged history given by victim at encircled portion Ex.PW9/A and opined that hymen torn but no active bleeding could be detected.
55.Before reaching at any conclusion let the relevant sections i.e. 451/354/323/367 IPC be reproduced, which are as under : Section 451 IPC :
House trespass in order to commit offence punishable with imprisonment. Whoever commits house trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
Section 354 IPC :
Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
Section 323 IPC :
Punishment for voluntarily causing hurt. Whoever, except in SC No.35/2011 State v. Alijaan @ Mulla 14/17 the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 367 IPC :
Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
56.Since the present was registered on the statement of mother of prosecutrix. Even medical reports shows that hymen of prosecutrix was found torn and that might have been done by putting finger by accused in her private parts. This cannot be ruled out. As far as testimony of minor victim/prosecutrix is concerned, as a rule of prudence it has to be see with close scrutiny.
57.It is a settled law that testimony of minor requires close scrutiny before reaching any conclusion and corroboration may also be required as per facts of the case. Since in the present case victim has been 05 years old and she in her examination in chief stated that accused had called her in his room and covered her in quilt and put his fingers in her private parts. But in entire testimony of prosecutrix, it could not come on record that accused had committed any offence of rape or he put the victim under threat or given beatings to her.
SC No.35/2011 State v. Alijaan @ Mulla 15/17
58.As prosecutrix has stated in her testimony that accused called her and took her inside the room of his house and accused had put off her kachha and had penetrated his finger into her vagina. From the testimony of victim and her mother it could not come on record anywhere that accused had entered into the house of victim. Hence, section 451 IPC is not attracted.
59.Since victim had stated in her testimony before this court that accused had not threatened or beaten her. Hence, Section 323 IPC is also not attracted.
60.Further, from the testimony of victim it could not come on record that accused had kidnapped or abducted the victim. Since kidnapping is an essential ingredient for the purpose of offence u/s 367 IPC which is absent. Hence, section 367 IPC cannot be said to attracted.
61.Further, it his established that victim was called by accused at his tenant house where he had covered the victim under quilt and put his fingers into the private part of her body, resultantly blood started oozing out. No doubt as per MLC there is no injury upon the person of victim. However, fact of outraging of modesty of victim cannot be ruled out. Hence, In the opinion of this court, fact of offence u/s 354 IPC is attracted.
SC No.35/2011 State v. Alijaan @ Mulla 16/17
62.After considering the fact and circumstances of the case and relying on the testimony of prosecutrix, this court comes to the conclusion that prosecution has proved its case against accused Alijaan @ Mulla beyond reasonable doubt for the offence u/s 354 IPC. Accordingly, this court held guilty accused Alijaan @ Mulla for the offence u/s 354 IPC and acquit him from charges u/s 451/323/367 IPC. PRONOUNCED IN THE OPEN COURT ON THIS 29.09.2012 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI.
SC No.35/2011 State v. Alijaan @ Mulla 17/17 IN THE COURT OF SH. RAMESH KUMAR - II, LD.
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 42/2011
State Vs Alijaan @ Mulla s/o Allah Mehar, r/o B41,
Gali No.11, Gamri, Bhajanpura, Delhi.
Police Station Bhajanpura
Convicted under section 354 IPC
ORDER ON SENTENCE:
03.10.2012
Pre: Ld. APP for the State.
Convict is in JC.
Sh. K.N. Sharma, ld. legal aid counsel for convict.
Arguments heard on point of sentence. Ld. APP for the State submits that since prosecution has proved its case against convict Alijaan @ Mulla u/s 354 IPC. He further submits that convict Alijaan @ Mulla be awarded severe punishment to teach a lesson to such persons and to put barrier on crime against woman in the society.
On the other hand ld. legal aid counsel for convict prayed that convict is in JC w.e.f. 07.02.2011 and facing trial regularly. Ld. legal aid counsel for convict further stated that convict belongs to a poor family and he is having responsibility of his younger brothers and other family members being elder one SC No.35/2011 State v. Alijaan @ Mulla 18/17 in the family and his parents have already expired. Ld. legal aid counsel for convict has requested for lenient view and requested to release the convict for the sentence for the period already undergone.
Arguments heard. On perusal of record, it is revealed that convict Alijaan is in JC since 07.02.2011 and he is having the responsibility of his younger brothers and other family members. This court comes to the conclusion that the ends of justice will meet if convict is sentenced for a period already undergone Accordingly, convict is released on sentence for the period already undergone.
In terms of Section 437 (A) Cr. P.C. Alijaan @ Mulla is directed to execute bail bond in sum of Rs.10,000/ with one surety in the like amount for the period of six months. Order accordingly.
Copy of judgment and sentence be provided to convict free of cost. File be consigned to record room.
PRONOUNCED IN THE OPEN
COURT ON THIS 03.10.2012 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
SC No.35/2011
State v. Alijaan @ Mulla 19/17
SC No.35/2011
State v. Alijaan @ Mulla 20/17