Delhi District Court
State vs . Mohd. Shafiq on 22 March, 2013
State Vs. Mohd. Shafiq
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 51 of 2012
ID No: 02401R0363072012
FIR No. : 102/2012
PS. : D.B.G. Road
U/S : 376/511 IPC
STATE
VERSUS
Mohd. Shafiq
S/o Mohd. Sabdul
R/o Village Amchura, PS-K.Nagar,
Post Kaja Kothi,
Distt. Jn. Purnia Katihar, Bihar
Present Address:
Jhuggi No. 92, Railway Line, Kishan Ganj,
Delhi.
.........Accused
Date of Institution : 06.08.2012
Date of Committal to Sessions Court : 10.09.2012
Date of pronouncement of judgment : 22.03.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Dinesh Sharma, Advocate, Amicus curiae for accused
J U D G M E N T (Oral):
1. Briefly stated facts of prosecution case are that on May 18, SC No. 51/12 Page no. 1 of 6 State Vs. Mohd. Shafiq 2012, victim (since she is the victim of attempt to rape, her identity is withheld and hereinafter she is referred to as victim/complainant) got recorded her statement to the police of PS D.B.G Road alleging that she was living in jhuggi located near Kishan Ganj along with her family comprising of four younger sisters and parents. It was alleged that on May 12, 2012, her mother had gone to the hospital as her younger sister was ill and her mother informed her father that her younger sister had been admitted in the hospital, thus her mother would remain in the hospital. It was alleged that after taking the dinner, victim along with her younger sisters had gone to bed. It was alleged that when she was sleeping, her father Mohd. Shafiq i.e. accused came near to her and removed here pyjami and underwear and thereafter he had taken out his male organ and started rubbing his male organ with her vagina and also tried to insert the same in her vagina. It was alleged that when victim stated that she would raise alarm, her father (accused) fled away from the spot. It was stated that at about 5 AM, accused returned to jhuggi and tendered apology to the victim. It was alleged that on the next day also her mother remained in the hospital, consequently after serving food to her younger sisters, victim went to her bed at about between 9 PM to 10 PM. It was alleged that her father i.e. accused again came to her and removed her pyjami and panty and rubbed his male organ with her vagina and when she tried to raise alarm, accused gagged her mouth. It was alleged that accused had scolded her and asked her to sleep. It was alleged that she had intimated the incident to her mother on phone. On May 17, 2012, her mother came from the hospital and she had a quarrel with her father (accused), consequently her mother lodged a complaint against the accused with police. During investigation, police has seized the exhibits and arrested the accused. During medical examination, hymen of victim was found intact.
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State Vs. Mohd. Shafiq
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 376/511 IPC.
3. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on August 31, 2012. Thereafter, case was assigned to this Court on September 10, 2012. Accordingly, case was registered as Sessions case No. 51/2012.
4. Vide order dated October 11, 2012, a charge for the offence punishable under Section 376/511 IPC IPC was framed against accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused, prosecution has examined as many as following ten witnesses:-
PW1 Smt. 'X' (being the mother of victim, her identity is withheld and hereinafter she is referred to as Smt. 'X') PW2 Smt. Gayatri Devi, shopkeeper PW3 Ms. Pinki, formal witness PW4 HC Satya Parkash, MHC(M) PW5 Const. Rashmi, formal witness PW6 Const. Harinder, formal witness PW7 Const. Vipin Kumar, formal witness PW8 ASI Om Parkash, investigating officer PW9 Dr. Pratibha S. Malik, proved the MLC of victim PW10 Victim
6. Since all the material witnesses turned hostile completely and did SC No. 51/12 Page no. 3 of 6 State Vs. Mohd. Shafiq not support the prosecution case in any manner, prosecution evidence was closed and examination of accused under Section 313 Cr.P.C was dispensed with vide separate order dated March 22, 2013.
7. I have heard Sh. R.K. Tanwar, learned Additional Public Prosecutor for the State and Sh. Dinesh Sharma, Advocate, Amicus Curiae for the accused and perused the record carefully and gave my thoughtful consideration to their contentions.
8. Though prosecution has examined ten witnesses, yet prosecution case was based on the testimony of the PW1 (mother of the victim) and PW10 (victim) but both the witnesses turned hostile completely and did not support the prosecution case in any manner. PW1 deposed that on May 12, 2012, she had taken her younger daughter to Kalawati hospital as she was sick and she got admitted her in the hospital. She further deposed that her husband i.e. accused also accompanied her at that time. She further deposed that her daughter remained admitted in the hospital for two days. She further deposed that when she returned after two days, her daughter (victim) told her that accused under the influence of liquor tried to touch her body under the impression that she was the wife of Mohd. Shafiq (accused). The witness was cross-examined at length by learned Additional Public Prosecutor but nothing could be extracted during her cross- examination, which may help the prosecution to prove the culpability of accused. She categorically denied the suggestion that accused had made any attempt to commit rape upon the victim (PW10). She further denied the suggestion that PW10 ever told her that her father i.e. accused made an attempt to commit rape upon her. Similarly, PW10 also turned hostile completely by deposing that her father had not done any wrongful act towards her. She deposed that she had lodged a complaint against her SC No. 51/12 Page no. 4 of 6 State Vs. Mohd. Shafiq father as he used to beat her and her mother. Though witness was cross- examined at length by learned Additional Public Prosecutor but nothing could be extracted during her cross-examination, which may help the prosecution in any manner to prove the culpability of accused.
9. The testimony of PW2 Gyatri is also relevant as prosecution case is that victim had narrated the incident to her mother (PW1) on phone in the presence of PW2. Though PW2 deposed that victim had made a call to her mother on her phone but deposed that she did not know what talk had taken place between victim and her mother as she was busy with her customers at the shop. Though witness was cross-examined at length by learned Additional Public Prosecutor but nothing could be extracted during her cross-examination, which may help the prosecution in any manner to prove the culpability of accused.
10. The testimony of PW9 Dr. Pratibha S. Malik is also relevant as she had examined the victim vide MLC Ex. PW9/A. She admitted that there were some reddish marks on the vagina and the inflammation are possible due to numerous reasons and she had not specifically mentioned that the excoriation marks were absent. She fairly admitted that hymen of the victim was found intact. Thus, the testimony of PW9 is also not sufficient to prove the culpability of accused, particularly when victim herself deposed that no such wrongful act had been committed by the accused upon her.
11. Rest of the witnesses are formal in nature and their testimony are not relevant to prove the guilt of accused.
12. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to prove the guilt of accused for the SC No. 51/12 Page no. 5 of 6 State Vs. Mohd. Shafiq offence punishable under Section 376/511 IPC. Thus, I hereby, acquit accused Mohd. Shafiq thereunder.
Announced in the open Court
On this 22nd day of March, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/DELHI
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