Delhi District Court
State vs . Muzaffar Ali @ Mulla S/O. Sh. Surat Ali on 7 November, 2012
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:
01(EAST) : KARKARDOOMA COURT: DELHI.
SC No. 72/2011
FIR No. 331/10
PS. Geeta Colony
US. 376/506 IPC
Instituted on 13.05.2011
Argued on 17.10.2012
Decided on 31.10.2012
State Vs. Muzaffar Ali @ Mulla S/o. Sh. Surat Ali
R/o. House No. 221, Gali No. 5, Rani
Garden, Geeta Colony, Delhi
JUDGMENT
1. Briefly stated the case of the prosecution is that DD No. 31A was lodged in PS on 01.12.10 at 6.37 PM regarding rape of 11-12 years old girl by a Bengali boy at Rani Garden opposite Hanuman Mandir. IO Inspector PW9 Asha Thakur reached at the spot i.e. House No. 221, Jail Wali Gali, Gali No.5, Rani Garden, Geeta Colony, Delhi. Prosecutrix and her parents met her there. Accused was already apprehended by public persons. Accused was arrested. Prosecutrix and accused were separately sent to SDN hospital for their medical examination. IO PW9 recorded statement of prosecutrix wherein she mentioned that she lives in her house with her younger brothers and sisters. Her mother works in a garment factory and her father does the business of ironing the clothes. On 1.12.10 at about 4.00 PM she was alone in the house and was watching T.V. Accused entered into her room and bolted it from inside. Accused threatened her to kill in case she raised alarm.
FIR No. 331/2010 1 page of 14 Accused removed his pant and underwear and also removed her Pyjami and underwear. Accused raped her and threw white discharge on her. Again accused threatened her to kill in case she told anything about this incident to her parents. She started crying, her brother Shivam returned to house and asked her reason for crying but she did not tell him anything. In the evening, her father returned to house and Shivam told him that she was crying. She told everything to her father.
2. After medical examination of prosecutrix and accused, pulandas were given to IO PW9 by doctor and same were taken into possession. Statement of prosecutrix was got recorded by Ld MM under Section 164 Cr.P.C. IO sent exhibits to FSL Rohini. After investigation, police filed chargesheet against accused under Section 376/506 IPC
3. Charge was given to the accused under Section 376 IPC to which he pleaded not guilty and claimed trial.
4. To prove its case, prosecution examined nine witnesses. PW1 Satya Narayan is the father of the prosecutrix. He proved arrest memo and personal search memo of accused Ex. PW1/A and B. PW2 HC Harprasad proved relevant entries in Register No. 19 in Malkhana pertaining to this case as Ex. PW2/A to B. PW3 HC Pramod Kumar was duty officer,he proved DD No. 31 A Ex. PW3/A, FIR Ex.PW3/B and did endorsement on rukka Ex.PW3/C. PW4 Ct. Mahipal on 13.01.2011 took exhibits from Malkhana and deposited the same with FSL. PW5 Dr. Purnima proved MLC of accused and prosecutrix as Ex.PW5/A & B. PW6 Dr. Ruchi Mathur, SR Gynae, SDN Hospital did gynecological examination of prosecutrix and proved her report Ex.PW6/B. PW7 is prosecutrix. She proved her complaint Ex.PW7/A and her statement recorded by Ld. M.M under Section 164 Cr.P.C as Ex. PW7/B.PW8 Usha is the mother of prosecutrix. PW9 FIR No. 331/2010 2 page of 14 Inspector Asha Thakur is IO, she proved seizure memo Ex.PW9/A vide which sexual assault kit and one sample seal given to her by Ct. Hanif were taken into possession and Ex.PW9/B vide which pulandas given to her by Ct. Hanif were also taken into possession ruqqa Ex. PW9/C, site plan Ex.PW9/D and disclosure statement of accused Ex.PW9/E.
5. On the basis of incriminating evidence against accused, his statement under Section 313 Cr.P.C was recorded wherein he denied all the prosecution evidence against him and took defence of false implication. However, accused did not lead any defence evidence.
6. I have heard arguments of Ld. Addl. PP Sh Ashok Kumar and Sh. A.K. Bali, Ld. Legal Aid Counsel for accused and have gone the case file.
7. Ld. APP submitted that statements of prosecutrix and her parents are consistent as accused was neighbour of the prosecutrix and she has specifically stated that accused had raped her and had thrown white discharge on her. It is stated that MLC Ex.PW5/B of the prosecutrix prepared on the same day also supports statement of prosecutrix as in the history it is mentioned that she was raped by her neighbour. It is stated that FSL report also supports prosecution case as semen was detected on the underwear of the accused.
8. Ld. Legal Aid Counsel submitted that statement of prosecutrix is full of contradictions and improbabilities. It is stated that as per MLC, hymen was fount intact and there is no external injury on the person of the prosecutrix which proves that she is making false allegations against accused. It is stated that even as per FSL report, no semen was detected on any of the exhibits taken during MLC of the prosecutrix. It is stated that prosecution has failed to produce any document to establish exact age of the prosecutrix. It is stated that accused was neighbourer of the FIR No. 331/2010 3 page of 14 prosecutrix and due to some enmity, he was falsely implicated by family of prosecutrix in this case.
9. Prosecutrix while deposing as PW7 has stated the same facts as mentioned by her in her complaint Ex.PW7/A. Ex.PW7/B is the statement of prosecutrix recorded by Ld. M.M Sh. Devender Kumar Garg. Even before Ld. MM prosecutrix had made similar statement as mentioned in the complaint and deposed before this court. During her cross examination, prosecutrix has stated that she knew accused two months prior to this incident; she could not raise alarm as accused put his hand on her mouth; accused threw his discharge on the ground. She denied the suggestion that accused was not present in his house on the day of the incident as he had gone to attend his work.
10. Ex. PW7/B is the statement of prosecutrix recorded by Sh. Devender Garg, Ld. MM. Here she has reiterated the incident as mentioned by her in complaint Ex. PW7/A. Here she has specifically stated that accused put his penis into her vagina.(Unhone Aapne Peshab Karne Wali cheej mere Peshab Karne Wali Jagha par ghusa di thee ) Thereafter accused threw white discharge which fall on the ground. Thereafter accused asked her to clean it.
11. PW1 Satya Narayan is the father of prosecutrix. He deposed that he has two sons and two daughters. Prosecutrix is his eldest child. She was about 12-13 years of age at the time of this incident. He used to work of ironing of clothes and used to take lunch at his house and after taking lunch he again used to go for his work. His wife used to return from her work in the evening at about 7.00 PM. On 01.12.2010 at about 3.00 PM he came to his house to take lunch and returned back after 15-20 minutes. He again returned back home in the evening at about 6.00 PM. His wife called him at his work place to bring a saree for her as she wanted to change. He FIR No. 331/2010 4 page of 14 went to his house and his son Shivam met him and told that prosecutrix was crying. He asked prosecutrix and she told him about this incident. He immediately called his wife and PCR. Public had already caught hold accused. Accused and prosecutrix were medically examined. Police recorded statement of prosecutrix. Accused was arrested. Police also prepared site plan at the instance of prosecutrix. During cross he stated that prosecutrix was born on 18.10.99. He denied the suggestion that she was more than 16 years of age at the time of this incident; there was no mobile phone at his house on 01.12.2010; the room where the alleged incident took place was shown to the police before going to PS; police did not lift anything from the room in his presence. He voluntarily stated that accused had got the room cleaned through the victim under threat. The victim had not changed her clothes by that time. He called his wife at about 6.20-6.30 PM and she reached home before the arrival of the police. He admitted that accused was residing in the same building with his family where he was residing. He further stated that wife of accused had gone to her native village.
12. PW8 Usha is the mother of prosecutrix. she also deposed similar facts as deposed by her husband i.e PW1. In addition, she stated that on 1.12.010 at about 6.00 PM her husband came to her factory to give a saree which was asked by her and thereafter went back to home. After some time he made a call to her telling that prosecutrix is crying as accused had raped her. Hearing this she immediately came back to home. On 3.12.10 prosecutrix was produced before the court of Ld. M.M and there her statement was recorded under Section 164 Cr. P.C. During cross she has stated that she had told the police that she did not take other clothes of her daughter as her daughter was not having other clothes so FIR No. 331/2010 5 page of 14 doctor did not take into possession clothes of her daughter. She admitted that accused along with his wife and daughter was residing in the neighbourhood. She stated that at that time his wife had gone to her parents house. She denied the suggestion that she refused to give clothes of her daughter to the police as no such incident had occurred. She voluntarily stated that since she was not carrying other set of clothes due to this reason she did not hand over clothes of her daughter to the doctor.
13. EX.PW5/B is the MLC of prosecutrix prepared by PW6 Dr. Ruchi Mathur, SR Gynae. As per MLC, there is no sign of external injury. Hymen was intact.
14. Ex. PA1 is FSL report given by Senior Scientific Officer ( Biology). As per results of analysis, human semen was detected on Ex.5 i.e. underwear of the accused. As per report, semen could not be detected on any of the exhibits in the sexual assault kit.
15. One of the main contention raised by Ld. Legal Aid counsel for accused is that statement of prosecutrix is contradictory, her hymen was found intact and there was no injury found on her person which shows that allegations made by her against accused are false and in fact no such incident took place. Statement of prosecutrix before this court as PW7, her complainant Ex. PW7/A and her statement recorded by Ld. MM under Section 164 Cr.P.C as Ex.PW7/B are consistent and facts projected by her appears to be probable. Only contradiction which is apparent in the statements is that as per complaint Ex. PW7/A, prosecutrix has stated that accused threw white discharge on her but as per Ex. PW7/B, she has stated that white discharge of accused fell on the ground. Other contradiction which is apparent in the statement of prosecutrix is that only in Ex. PW7/B, prosecutrix has stated that accused asked her to clean white discharge but her statement before this court FIR No. 331/2010 6 page of 14 and complaint Ex. PW7/A are silent to this effect.
16. It needs no elaboration that a conviction can be based on the uncorroborated evidence of prosecutrix if the same is consistent and inspires confidence. Our High Court in Virender Vs. The State of NCT of Delhi, Criminal Appeal No. 121/2008 decided on 29.09.09, dealt with similar contentions raised by accused. In Para No. 13, reliance is placed upon 2007 Criminal Law Journal 4704 Radhu v. State of Madhya Pradesh where Apex Court observed as follows:-
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 , the act will still be a 'rape ', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent.
Similarly, the opinion of a doctor that there
was no evidence of any sexual intercourse or
rape, may not be sufficient to disbelieve the
accusation of rape by the victim. Bruises,
FIR No. 331/2010 7 page of 14
abrasions and scratches on the victim especially on the forearms, wrist, face, breast, things and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
17. In MANU/SC/7825/2008 Moti Lal Vs. State of M.P., Apex Court has observed that the Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.
18. As per Medical Jurisprudence and Toxicology( Twenty First Edition by Modi at page 369) it is mentioned that to constitute an offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia Majora or the vulva or pundenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. Rape is crime and not a medical condition. In MANU/SC/0509/1992, Madan Gopal Kakkad Vs. Naval Dubey, FIR No. 331/2010 8 page of 14 Apex Court has observed that it is not essential that hymen should be ruptured provided it is clear that there was penetration.
19. Other important aspect to be considered is that has the prosecutrix understood the essence of the acts which were committed by accused with her. Same has to be borne out from the statement of prosecutrix and other circumstances appearing on record. Prosecutrix was aged about 12 years at the time of this incident. While deposing before this court she has specifically stated that accused put his hand on her mouth and raped her. However in Ex. PW7/B recorded under Section 164 Cr.P.C she has specifically stated that accused put his penis inside her vagina From this, I find no reason to doubt that prosecutrix was not in position to understand the essence of the acts which accused is alleged to have been committed with her. As already discussed, doctor found no extra injury or resistance mark on the persons of the prosecutrix. Presence of injury marks and bruises on the person of the victim of rape is not sine qua non to the resistance put by her to the attempt of rape. In this case, prosecutrix is just 13 years of age and accused is a grown up man of 27 years. Prosecutrix has specifically alleged that accused put his hand on her mouth and after committing rape, accused threatened to kill her if she disclosed it to any one. The circumstances show that prosecutrix might have got overawed with the presence of accused in her room, as her parents had gone out for their work and no one from her family members was present. Being overawed she might have meekly surrendered to the lust of the accused.
20. The main contention raised by Ld. Legal Aid counsel is that statement of prosecutrix does not inspire confidence being uncorroborated even from medical evidence. In Bharwada Bhoginbhai vs State of Gujarat (1983) SC Cases 217, Apex FIR No. 331/2010 9 page of 14 Court has observed that refusal to act on the testimony of the victim of sexual assault, in the absence of corroboration as a rule, is adding insult to injury. In para No. 11, Apex Court observed that on principal the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury( which is not shown or believed to be self- inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye- witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would thereafter be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world ( obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the ' probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming , subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation. Or when the 'probabilities factor' is found to be out of tune."
21. Ld. Legal Aid counsel has further assailed statement of FIR No. 331/2010 10 page of 14 complainant PW1 and PW8 Smt. Usha who are parents of the prosecutrix, pointing out contradictions in their statements that how they contacted each other when they reached at their house. To my mind, these are minor contradictions, having no relevance as statement of prosecutrix is found to be clear, cogent, credible and probable.
22. Even in statement under Section 313 Cr. P. C accused had admitted that he used to live in the neighbourhood of the prosecutrix. Only defence taken by accused is that on the day of the incident he left his house for office at 7.00 AM and till 4.30 AM, he remained at the place of his work. At 5-5.30 PM he returned to his house, he was caught by an auto driver of the street, who was relative of the prosecutrix alleging that he had raped prosecutrix. Accused was not unknown face to the prosecutrix being residing in her neighbourhood. Even parents of the prosecutrix were knowing the accused. No defence has been put forth by the accused that why prosecutrix or her parents made false allegations against him. If accused had attended his work on that day, especially at the time of this alleged incident, he could have easily proved by summoning requisite record, from his place of work but same is not done by him. Even accused has not disclosed office where he used to work or where his place of work was situated. Therefore, defence taken by accused appears to be sham.
23. Other contention raised by Ld Legal Aid Counsel for accused is that as per prosecutrix, discharge of the accused fell on the ground then why same was not seized by the police and clothes of the prosecutrix which she was wearing at the time of this incident were not taken into possession by the police. I agree with the contentions that clothes of the prosecutrix should have been taken into possession by the police. As per PW8, mother of the FIR No. 331/2010 11 page of 14 prosecutrix, she did not take other clothes of her daughter as her daughter was not having other clothes, so doctor did not take into possession clothes of her daughter. But there is no such observation of Doctor on MLC Ex. PW5/B. Statement of IO PW9 is also silent to this effect. IO should have seized clothes worn by prosecutrix at the time of incident which would have been an important piece of evidence supported by FSL report. Law is settled that on account of insufficient investigation by the police, prosecution case cannot be allowed to fall. Reliance is placed upon Zahira Abdulla S. Sheikh Vs. State of Gujarat 2004 Crimila Law Journal 2050 where Apex Court has observed that accused cannot be solely acquitted on account of defect in investigation. To do so, would tantamount to playing into the hands of investigating Officer , if investigation is designedly defective.
24. From the various circumstances discussed above, it stands established that accused being neighbour of the prosecutrix, was known to prosecutrix and must have been aware that prosecutrix is alone in her house at the time of commission of this offence. Statement of prosecutrix is clear, cogent, credible and is remains un-impeached. Accordingly prosecution has held to have proved guilt of the accused for the commission of offence punishable under Section 376/506-I IPC beyond reasonable doubt. Accused is accordingly held guilty for these offences.
Announced in the open Court ( SANJAY GARG )
on 31.10.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 331/2010 12 page of 14
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE 01 (EAST) :KARKARDOOMA COURTS : DELHI SC No. 72/2011 FIR No. 331/10 PS. Geeta Colony US. 376/506-I IPC State Vs. Muzaffar Ali @ Mulla S/o. Sh. Surat Ali R/o. House No. 221, Gali No. 5, Rani Garden, Geeta Colony, Delhi ORDER ON QUANTUM
1. I have heard argument of Sh. Abdul Aleem Ld. Addl. PP for the State and Sh. A.K. Bali, Ld. Legal Aid Counsel for convict on quantum of sentence.
2. Ld. APP submits that keeping in view gravity of the offences maximum punishment be awarded to the convict.
3. Ld. Legal Aid counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated the the convict is of young and is having a family constituting his wife and two minor children aged about 4 and 2-1/2 years. It is stated that he is in J/C since beginning. It is stated that a lenient view be taken and he be sentenced to period of imprisonment already undergone by him as under- trial in this case.
4. Prosecutrix was aged about 12 years when accused raped her. In MANU/SC/7825/2008 Moti Lal Vs. State of M.P, the Apex Court has observed that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the FIR No. 331/2010 13 page of 14 helpless female.
5. The incident of the rape is especially with the children of tender age is on the rise. Keeping in view all these factors in mind, aggravating and mitigating circumstances, the convict is sentenced as under :-
For the offence punishable u/s. 376 IPC he is sentenced to undergo RI 7 years and shall also be liable to pay fine of Rs. 1,000/- in default to undergo SI for one month. For the offence punishable u/s.506-I IPC he is sentenced to undergo RI 1 year. Both the sentences to run concurrently.
6. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
ANNOUNCED IN OPEN COURT
ON 07.11.2012 (SANJAY GARG)
ADDL. SESSIONS JUDGE(EAST) - 01
KARKARDOOMA COURTS : DELHI
FIR No. 331/2010 14 page of 14