Delhi District Court
State vs Jahid S/O Habib, R/O House Of Jaan on 24 May, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0377562010
Sessions Case No. 25/2011
Assigned to Sessions. 20.04.2011
Arguments heard on 16.05.2013
Date of Judgment 22.05.2013
FIR No. 414/2009
State Vs Jahid S/o Habib, R/o House of Jaan
Bhai Buland Masjid, Bihari Chowk,
Shastri Park, Delhi.
Police Station Seelampur
Under Section 363/354/367 IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Seelampur had filed a challan vide FIR No.414/2009 dated 17.02.2010 u/s 363/376 IPC for the prosecution of accused Jahid in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. Keeping in view of section 228 (A) IPC and directions of Supreme court in SC No.25/2011 State v. Jahid "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. Since Ld. ASJ, Sh. Gurdeep Singh, had passed an order whereby it is declared that offence u/s 376 IPC is not made out against accused and offence u/s 354/363 IPC were made out vide order dated 20.05.2010. This court has received case file from Ld. District & Sessions Judge after receiving the order of Ld. MM dated 08.04.2011 wherein it was decided that offence u/s 367 IPC was also made out against accused.
3. In nutshell, case of prosecution is that on 29.12.2009 a DD No.50B Ex.PW9/A was recorded at police station Seelampur regarding rape upon a minor girl. Copy of DD No.50B was assigned to S.I. Manoj Kumar. On receipt of DD, S.I. Manoj Kumar along with Ct. Irfan had reached at the spot i.e. Buland Masjid, Bihari Chowk, Shastri Park, Delhi where Smt. Noorjahan and Smt. Farzana had produced a person namely Jahid before him. Victim was also produced there. S.I. Manoj Kumar had recorded the statement of Smt. Noorjahan Ex.PW4/A. Thereafter, S.I. Manoj Kumar had handed over the custody of accused Jahid to Ct. Irfan and he along with the victim and complainant went to GTB Hospital and S.I. Manoj Kumar had got the victim medically examined vide MLC mark 'Y'. Thereafter, SI Manoj Kumar had made endorsement Ex.PW12/B upon the same for registration of FIR at PS. Accordingly, FIR No. 414/2009 u/s 363/354 IPC Ex. PW3/B was registered against accused Jahid s/o Habib. During the course of investigation police had arrested accused Jahid.
SC No.25/2011 State v. Jahid CHARGE:
4. On the basis of material available on record this court vide order dated 06.06.2011 framed a charge against accused Jahid for the offence punishable u/s 363/354/367 IPC to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
5. In order to prove its case prosecution has examined 13 witnesses namely PW1 Prosecutrix- victim, PW2 W/ASI Kusum Lata, PW3 Retired ASI Harbir Singh, PW4 Smt. Noor Jahan, PW5 Smt. Farzana, PW6 Ct. Harjeet Singh, PW7 Ct. Irfan Ahmad, PW8 Dr. P.K. Saha, CMO, GTB Hospital, PW9 Ct. Narender, PW10 HC Jaswant Singh, PW11 Sh. Vivek Kumar Gulia, ld. CCJ/ARC (C), PW12 S.I. Manoj Kumar and PW13 Dr. Priyadarshni Nanda.
6. PW1 Prosecutrix is the victim aged about 6 years. After examining this witness by the court for the purpose of ascertaining her knowledge and capacity, this witness has been examined in Camera. In her deposition, this witness submitted that on the day of incident at about 4:00 p.m., she had gone to market along with her brother namely Chand to purchase the Besan, there was a tea shop near the shop of Besan. Accused Jahid present in the court had met her and her brother near the tea shop and he had given Rs.5/ to her brother and took him to his house. This witness further states that accused Jahid had directed her brother to stand by turning his face towards the wall. Thereafter, accused put off her pink colour pajama and he put his finger SC No.25/2011 State v. Jahid into her private part. Thereafter, accused put off his wearing pajama and he put his penis into her vagina and blood started oozing out from her private part and she felt pain. Thereafter, she along with her brother Chand reached at her house and narrated the fact of incident to her mother. This witness further deposed that her landlord had called to the police and police taken her to hospital where she was medically examined by lady doctor.
7. This witness was cross examined by Ld. counsel for accused, in her cross examination victim had stated that they were three sisters and one brother. This witness stated that the besan shop is situated just next to her gali (dusriwali gali). This witness had produced besan and given to her mother and several persons were present at the tea shop. This witness further submits that police had made enquiry from her on the day of incident and she had gone to police station along with her mother, wife of landlord and her son. This witness stated that she was not tutored by any person. In her statement u/s 164 Cr. P.C., this witness stated that accused had put his penis into her vagina after putting off his pajama but this fact is confronted with the statement Ex.PW1/DA. This witness had denied to the suggestion that accused had not put off his pajama and put his penis into her vagina.
8. PW2 W/ASI Kusum Lata. This witness is the I.O. of this case. She stated that on 25.01.2010 investigation of this case was assigned to her by the order of senior police officers and by that time major part of investigation of the had been completed by S.I. Manoj Kumar. On that day, she had reached at the house of victim SC No.25/2011 State v. Jahid and made interrogation from victim and her mother and recorded their statements.
9. This witness had collected ossification test report of victim from GTB Hospital along with XRay plates. In her cross examination, this witness admits that FIR of the present case was registered for offence u/s 363/354 IPC and previous I.O. had got recorded statement of victim u/s 164 Cr.P.C.
10.PW3 Retired ASI Harbir Singh. This witness is the Duty Officer. This witness has deposed that on 29.12.2009 he was posted at police station Seelampur and was on duty as Duty Officer from 4:00 p.m. to 12:00 midnight. During his duty at about 10:50 p.m. rukka Ex.PW3/A recorded by S.I. Manoj Kumar was presented through Ct. Irfan upon which he got typed FIR through Computer Operator. This witness has proved copy of FIR vide Ex.PW3/B.
11.This witness had recorded DD No.50B dated 29.12.2009 at about 6:15 p.m. in DD register B at serial No.50. This witness had received information from wireless operator that one man was caught hold at Bihari Chowk, Near Buland Masjid, Shastri Park, Delhi who had committed rape upon a girl. This witness had not been cross examined by Ld. counsel for accused.
SC No.25/2011 State v. Jahid
12.PW4 Smt. Noor Jahan. This witness is the mother of victim. In her deposition she submits that on 29.12.2009 at about 5:00 p.m. she had sent victim along with her son to market to purchase besan by giving her Rs.5/. Victim did not return till 6:00 p.m., she went to the shop of Saleem to find out victim and her son. Shopkeeper had told that victim and her son had returned from his shop after taking besan. Thereafter, she started search of victim and her son in neighbourhood but in vain. When she was preparing food at home victim and her son came while weeping, on enquiry victim and her son had told her that accused present in the court had taken them at his house by giving them Rs.5/ where he had removed wearing clothes of victim and accused had laid upon victim and he tried to insert his penis into her private part.
13.This witness along with her land lady Smt. Farzana and victim reached at the house of accused which was nearby her tenanted house, at that time he was found putting lock at the gate of his room and he was about to leave his premises where victim had identified him and some public persons had given beatings to him. This witness states that her statement Ex.PW4/A was recorded where she had put her thumb impression at point A and her signature in Bengali language at point B. This witness had identified the Pajami of the victim worn by her at the time of incident.
14.Cross examination of this witness could not be done as report in respect of this witness received with the report she had left the address given in summons one year ago.
SC No.25/2011 State v. Jahid
15.PW5 Smt. Farzana. This witness is the landlady of complainant. In her testimony, this witness stated that Smt. Noor Jahan has been residing at ground floor of her house. Accused present in the court is known to her being resident of her locality and resides in a gali ahead from her house. This witness further stated that victim aged about five years returned to her house and told her mother about bad act of accused Jahid. She along with Noor Jahan and victim had gone to the house of accused on 29.12.2009 and found him present in front of his house. Victim had identified him. This witness further submits that public persons had caught hold him and beaten him.
16.In her cross examination by ld. counsel for accused, this witness submits that she had five tenants in her house and no rent agreement was executed between her and her tenants. This witness further submits that Smt. Noorjahan had told her about the incident in her room. This witness further submits that she had told to police in her statement that she was sitting in the room of Smt. Noorjahan when victim had come and told about the incident and that neither victim nor Smt. Noorjahan had disclosed the name of accused when they had told about the incident to her. This witness in her voluntarily version had stated that victim had taken them to house of accused but at that time it was found locked and that after about ½ hour accused came at his house and victim identified him there before them and we all return back to our respective houses on seeing the house of accused locked and in between they had not informed the police about the incident. However, they had told about the incident to some neighbours in between ½ hour but she had not told about the incident to the SC No.25/2011 State v. Jahid tenants of her house. This witness admits that father of victim used to ply cycle rickshaw in the area of Old Delhi and he was having a mobile phone. This witness further submits that accused was produced tot he house of Noorjahan by some neighbours then some public persons had called the police, thereafter, he was arrested. This witness further submits that she had not told aforesaid fact to the police in her statement. This witness further submits that accused is known to her elder son namely Nazmi as accused was earlier her tenant. This witness denied to the suggestion that there had been a quarrel between accused and her son Nazmi for two times.
17.PW6 Ct. Harjeet Singh. This is the witness of taking exhibits to FSL Rohini for analysis.
18.PW7 Ct. Irfan Ahmad. This witness was on emergency duty on 29.12.2009 and he accompanied S.I. Manoj to whom DD No.50B was assigned and both of them had reached at house of one Jaan Bhai, near Buland Masjid, Shastri Park, Delhi in pursuance of aforesaid DD. In his presence, S.I. Manoj had interrogated victim and her mother and came into conclusion that it was the matter of sexual assault. Accused Jahid was produced by public persons before them. In his presence, S.I. Manoj Kumar had taken accused in the custody at the spot. In his presence, complainant had produced one pink colour Pajami to S.I. Manoj Kumar and S.I. Manoj Kumar converted aforesaid Pajami into a parcel and sealed the same with the seal of SK and seized vide seizure memo Ex.PW4/B. SC No.25/2011 State v. Jahid
19.In his presence, S.I. Manoj Kumar had made endorsement Ex.PW3/A and sent the rukka through this witness. This witness had come along with rukka and copy of FIR and delivered the same to S.I. Manoj Kumar, at that time S.I. Manoj Kumar was busy in the preparation of site plan of the spot at the instance of complainant. This witness had taken accused Jahid to GTB Hospital for his medical examination as directed by the I.O. where he was medically examined vide MLC mark 'XX'. This witness had handed over MLC and accused to I.O. In his presence, accused had made his disclosure statement Ex.PW7/D.
20.This witness was cross examined after allowing application u/s 311 Cr.P.C. vide order dated 23.04.2013. In his cross examination, this witness stated that they had gone to Bihari Chowk, Buland Masjid in pursuance of DD No.50B where custody of accused was given to them. This witness had denied to the suggestion that he went to spot along with S.I. Manoj Kumar or that he had witness the proceedings or that accused was beaten by Farzana, her son and their relatives on money dispute as accused was earlier resides in the house of Farzana as tenant.
21.PW8 Dr. P.K. Saha, CMO, GTB Hospital. This witness has proved the MLC of accused Jahid vide Ex.PW8/A on behalf of Dr. Sudhanshu Shekhar. This witness submits that on local examination there was redness, pain on left eye. Tenderness and swelling on the left side of face. Multiple contusion mark on right posterior SC No.25/2011 State v. Jahid scapular and back. Swelling and tenderness on left thigh region. He had also opined that there was nothing to suggest that patient was incapable to perform sexual intercourse.
22.PW9 Ct. Narender. This witness had recorded information in DD No.50B regarding a person has been apprehended who had allegedly committed rape with a girl as Ex.PW9/A.
23.PW10 HC Jaswant Singh. This witness has been examined as MHC(M). This witness submits that on 29.12.2009, S.I. Manoj Kumar had deposited five sealed parcels in malkhana and he had recorded the same in DD No.19 at serial No.4114. On 10.02.2010 he had delivered the five sealed parcels and sample seal to Ct. Harjeet vide RC No.140/21 for depositing the same in FSL, Rohini, Delhi and he had made entry in register No.19 to this effect and on 30.08.2010 five parcels and report of FSL were received from FSL, Rohini, Delhi through Ct. Lal Babu and the then MHC (M) made an entry in this regard in register No.19.
24.This witness has proved copy of register No.19 containing abovesaid entries running into four pages vide Ex.PW10/A collectively, copy of RC No.140/21 vide Ex.PW10/B and copy of the acknowledgment issued by FSL vide Ex.PW10/C. SC No.25/2011 State v. Jahid
25.PW11 Sh. Vivek Kumar Gulia, ld. CCJ/ARC (C). this is the witness of recording of statement u/s 164 Cr. P.C. of the victim This witness had proved proceedings of statement u/s 164 Cr.P.C. vide Ex.PW1/DA.
26.PW12 S.I. Manoj Kumar. This witness is the I.O. of this case. This witness submits that on 29.12.2009 at about 6;15 p.m. DD No.50B was assigned to him regarding rape upon a girl. Thereafter, he along with Ct. Irfan had gone to Buland Masjid, Bihari Chowk, Shastri Park, Delhi, where complainant Smt. Noorjahan and Smt. Farzana had produced a person namely Jahid, accused present in the court before him. Victim was also produced over there. This witness had recorded statement of Smt. Noorjahan. This witness had handed over custody of accused Jahid to Ct. Irfan and he along with victim and complainant went to GTB Hospital where victim was medically examined vide MLC mark 'Y' and he received sealed parcels from doctor after medical examination of victim and seized the sealed parcels vide memo Ex.PW12/A. This witness had prepared rukka on the statement of complainant and prepared site plan at the instance of complainant. Complainant had produced Pajami which victim was wearing at the time of incident and this witness had seized the same vide seizure memo Ex.PW4/B. This witness had instructed Ct. Irfan to get accused Jahid medically examined from the GTB Hospital. This witness had also recorded disclosure statement of accused which is Ex.PW7/D and this witness had deposited the case property with malkhana and lodge accused in the lockup. This witness had recorded statement of Ct. Irfan and supplementary statement of complainant Smt. Noor Jahan. This witness had produced accused before court on SC No.25/2011 State v. Jahid 30.12.2009 and section u/s 376/511 IPC was added in this case.
27.This witness had got recorded the statement of victim before Ld. MM on 07.01.2010 and on 23.01.2010 investigation of this case was assigned to W/S.I. Kusumlata. This witness had identified Pink colour Pajama of the victim.
28.This witness was cross examined by Ld. counsel for accused after allowing application u/s 311 Cr. P.C. vide order dated 15.03.2013. In his cross examination, this witness admits that phone number of caller was not mentioned in DD No.50B and caller could not be tranced. He further deposed that complainant had apprised him that someone had call up the police. This witness further submits that PW Noorjahan and Farzana had kept accused in their captivity and produced accused before him. This witness further submits that accused was produced before him at Bihari Chowk, Buland Masjid, Shastri Park, Delhi and house of Farzana was situated at Bihari Chowk. This witness had denied to the suggestion that there was dispute between son of Farzana and accused over money.
29.PW13 Dr. Priyadarshni Nanda. This witness has proved MLC No.5959/09 of victim vide Ex.PW13/A on behalf of Dr. Shagun Sinha.
STATMENT OF ACCUSED U/S 313 CR.P.C.:
30.After prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded where accused Jahid denied all allegations, evidence and circumstances put to him. SC No.25/2011 State v. Jahid In statement u/s 313 Cr.P.C. accused Jahid claimed that he is innocent and falsely implicated in the present case by Farzana, her son Nazmi using Noorjahan and her daughter. Accused further claimed that he was earlier residing in the h ouse of Farzana and Nazmi used to take money except the rent whenever he required. At the time of leaving the house Nazmi had not returned his money amounting Rs.2,000/ which was due to him and he had asked him several occasions to return the same but he denied and threatened him for the dire consequences and false implication as he had good rampart with officials of PS Seelampur and on the day of incident Nazmi took him inside his house and severely beaten him along with his relatives and falsely implicated him in the case with the collusion of police. Accused has preferred to lead any D.E but he could not examined the defence witnesses. Hence, D.E. Closed.
31.Thereafter, case was fixed for final arguments.
ARGUMENTS
32.Ld. APP for State, argued that there are charges against the accused Jahid for offences u/s 363/354/367 IPC which was framed on 30.11.2011.
33.Ld. APP for the State has further submitted that there was no occasion for PW1 Victim and PW4 Smt. Noorjahan to falsely implicate the accused at the behest of their landlord as they were nothing to do with the alleged dispute between the SC No.25/2011 State v. Jahid accused and PW Farzana.
34.Ld. APP for the States has further submitted that testimonies of PW1 victim, PW4 Smt. Noor Jahan and PW 5 Smt. Farzana are sufficient to convict the accused for offences charged as prosecution has proved its case beyond reasonable doubt.
35.On the other hand ld. counsel for accused has submitted that there is delay in registration of FIR and section 367 is not sustainable and there is no single word regarding 367 IPC has come out.
36.Ld. counsel for accused further pointed out that PW3 Retired ASI Harbir Singh has deposed in his testimony that he has seen copy of DD No.50B dated 29.12.2009 which had been recorded by him at about 6:15 p.m. in DD register B at serial No.50 and as per record, he had received information from wireless operator that one man was caught hold at Bihar Chowk, Near Buland Masjid, Shastri Park, Delhi who had committed rape upon a girl. Aforesaid information was recored by him in DD No.50B and PW9 Ct. Narender has also deposed that he has brought the summoned record i.e. the original DD No.50B dated 29.12.2009 and on that day, he was posted at police station Seelampur and was working as DD writer from 4:00 p.m. to 12:00 midnight. At 6:15 p.m., PCR call was received with effect that a person has been apprehended who had allegedly committed rape with girl. He had recorded this information in DD No.50B vide Ex.PW9/A. Depositions of both these PWs creates doubt about who had recorded DD entry. These are the minor contradictions. Even SC No.25/2011 State v. Jahid there is minor defect that is fatel to the case of prosecution.
37.Ld. counsel for accused further submitted that PW5 corroborate the version of PW1. When victim was sent to bring besan from the shop why victim had gone to the tea shop where from she was allegedly kidnapped by accused.
38.Ld. counsel for accused further submitted that there is contradictions regarding arrest of accused. As per prosecution story, I.O. had arrested the accused from his house whereas PW5 states that accused was arrested from her house.
39.Ld. counsel for accused further submitted that son of PW5 Smt. Farzana had enmity with accused on the issue of some money with accused, hence, accused had been implicated. Noor Jahan, mother of victim used to support the Farzana. PW5 Farzana is interested witness. Hence, she cannot be relied upon. Victim states that she had gone to police station along with her mother, wife of landlord and Nazmi. Hence, victim is tutored in this case. On these grounds, ld. counsel for accused has prayed for acquittal of accused Jahid from the charges.
PERUSAL OF RECORD:
40.On perusal of record, it is revealed that on 29.12.2009 a DD No.50B Ex.PW9/A regarding the rape incident was assigned to S.I. Manoj Kumar and on receipt of DD No.50B, S.I. Manoj Kumar along with Ct. Irfan reached at the spot i.e. Buland Masjid, Bihar Chowk, Shastri Park, Delhi and found Smt. Noorjahan, Smt. Farzana SC No.25/2011 State v. Jahid and the victim.
41.It is further revealed that PWs Noorjahan and Farzana had apprised S.I. Manoj Kumar that accused had been beaten by public persons.
42.It is further revealed that S.I. Manoj Kumar had got medically examined accused and victim in GTB Hospital vide MLC Ex.PW8/A and Ex.PW13/A respectively and S.I. Manoj Kumar had seized the sealed samples collected by the doctor during medical examination of the victim vide memo Ex.PW12/A.
43.It is further revealed that S.I. Manoj Kumar had recorded statement of complainant Ex.PW4/A and after putting his endorsement Ex.PW12/B the present case was registered vide FIR Ex.PW3/B.
44.It is further revealed that S.I. Manoj Kumar had prepared site plan Ex.PW12/C at the instance of the complainant.
45.It is further revealed that complainant had produced the pajama of the victim which she was wearing at the time of incident and the same was seized by the I.O. vide Ex.PW4/B.
46.It is further revealed that accused Jahid was arrested by I.O. vide arrest memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C and SC No.25/2011 State v. Jahid accused had made disclosure statement vide Ex.PW7/D and sealed sample collected during his medical examination was seized vide memo Ex.PW7/A.
47.It is further revealed that on 07.01.2010 the victim had given her statement u/s 164 Cr. P.C. Ex.PW1/DA before Ld. MM.
48.It is further revealed that I.O. W/ASI Kusumlata had sent the samples collected during medical examination of accused and that of the victim and also the pajama of the victim through Ct. Harjeet Singh to FSL vide RC No.PW10/D and FSL results Ex.DX and Ex.DY show that human semen was detected on exhibit '1' i.e. the pajama (salwar) of the victim. I.O. had obtained the ossification test report of the victim vide Ex.PW2/A and as per report the age of the victim was opined between 4 6 years.
49.It is further revealed that accused has claimed in his statement u/s 313 Cr.P.C. that he is innocent and falsely implicated in the present case by Farzana, her son Nazmi using Smt. Noorjahan and her daughter.
50.Before reaching at any conclusion let the relevant sections i.e. 363/354/367 IPC be reproduced, which are as under : Section 363 IPC: "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
SC No.25/2011 State v. Jahid 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 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 subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowingly 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.
51.Present case was registered on the statement of complainant Smt. Noorjahan Ex.PW4/A, who is the mother of victim on that fact that she had sent the victim to market for purchase of Besan from shop and on return victim had told her that one uncle had committed wrong act with her and she had gone to the house of accused where victim had pointed out the accused and public persons also gathered there and they had beaten him and someone had called PCR.
52.PW1 who is the victim had been examined behind the curtains in camera proceedings. This witness has supported the case of prosecution. In her testimony this witness had identified the accused who had met her and her brother near Tshop. SC No.25/2011 State v. Jahid and he had given Rs.5/ to her brother and took them to his house. This witness further deposed that accused Jahid had directed her brother to stand by turning his face towards the wall and thereafter, accused put off her pink colour pajama and he put his finger into her private part and thereafter, accused put off his wearing pajama and he put his penis into her vagina and blood started oozing out from her private part and she felt pain. On reaching her house along with her brother victim had told aforesaid incident to her mother. In her cross examination, victim has denied to the suggestion that she was tutored by counsel for Delhi Woman Commission. This witness had stated that she was not tutored by any person. This witness admits that her statement u/s 164 Cr. P.C. was recorded in the court wherein she had stated that accused had put his penis into her vagina after putting of his pajama. Although this statement of victim was confronted on this fact.
53.PW4 Noorjahan who is the complainant in this case whose examination in chief was completed but his cross examination was deferred on 04.04.2012 as counsel was not well on that day and thereafter, this witness could not be traced and reports all times received with that she was not available.
54.PW5 Smt. Farzana who is the wife of landlord of complainant and victim. This witness had identified accused being the resident of her locality and resides in Gali from his house. This witness further states that victim had told her mother about the bad act of accused Jahid and this witness had gone along with victim and Noorjahan to the house of accused on 29.12.2009 and found present him in his house. Victim SC No.25/2011 State v. Jahid had identified him. Police had come. Public had given beatings to him. In his cross examination, this witness states that she had made her statement to the police when police had come at the house of Noorjahan complainant and same had been read over to her by the police. This witness further states that she was sitting in the room of Smt. Noorjahan when victim had come and told about the incident. Further, this witness submits that neither victim nor Noorjahan disclosed the name of accused when they told about the incident to her. This witness had accompanied Noorjahan for the examination of victim. This witness had denied to the suggestion that Noorjahan complainant was neither her tenant nor she was her neighbour. This witness had denied to the suggestion that neither she went to her home on the day of incident nor she informed her about the incident when she was in her room.
55.PW2 ASI Kusum Lata who is I.O. in this case. This witness states that on 25.01.2010 investigation of this case was assigned by order of senior police officer. By that time major portion of investigation was completed by previous I.O. S.I. Manoj Kumar. This witness had sent sealed parcels to FSL, Rohini on 10.02.2010. this witness had collected ossification test report of victim and placed the same on judicial file. In her cross examination, this witness states that she had filed chargesheet in the present case in the court of Ld. MM, MLC of victim was available during the period of chargesheet but result of FSL was awaited. This witness admits that FIR of the present case was registered of offence u/s 363/354 IPC. This witness had denied to the suggestion that accused had falsely implicated in this case and at the instance of complainant and son of Farzana.
SC No.25/2011 State v. Jahid
56.PW ASI Harbir Singh. He was duty officer and he states that on 20.12.2009 at about 10:50 p.m. rukka Ex.PW3/A recorded by S.I. Manoj Kumar who was present before him. He got typed FIR Ex.PW3/B through computer operator.
57.PW7 Ct. Irfan. This witness had accompanied S.I. Manoj Kumar and reached at the spot i.e. house of one Jaan Bhai, near Buland Masjid, Shastri Park, Delhi, in compliance of DD No.50B. This is the witness of arrest of accused and this is also the witness of seizing of Pajami of victim. This witness had also accompanied mother of victim to medical examination of victim along with S.I. Manoj Kumar. This witness had taken accused Jahid to GTB Hospital for his medical examination. In his presence, I.O. sealed three parcels and sample seal.
58.In his cross examination, this witness states that custody of accused was given to them near Bihari Chowk, Buland Masjid.
59.PW8 Dr. P.K. Shah. This witness has proved the MLC of accused Jahid vide Ex.PW8/A on behalf of Dr. Sudhanshu Shekhar. This witness submits that on local examination there was redness, pain on left eye. Tenderness and swelling on the left side of face. Multiple contusion mark on right posterior scapular and back. Swelling and tenderness on left thigh region.
60.Since victim has stated that accused had committed wrong act with her at his house by taking at his house. This fact she has proved in the court as well but MLC of SC No.25/2011 State v. Jahid victim does not suggest that either there was any offence of rape had been committed by accused. This fact has also been confronted with the statement of victim u/s 164 Cr.P.C. which was not mentioned in that statement. This fact had came before this court during her examination.
61.Since Ld. Predecessor, Sh. Gurdeep Singh, Ld. ASJ had passed an order whereby it is declared that offence u/s 376 IPC is not made out against accused and offence u/s 354/363 IPC were made out vide order dated 20.05.2010. Hence, case was again sent back to court of ld. MM. On perusal of record, it reveals that during examination of victim, ld. MM had decided that offence u/s 367 IPC was also made out against accused which was exclusively triable by the Sessions Court. Hence, again case for offence u/s 363/354 IPC with 367 IPC was sent to this court for trial. After hearing arguments of parties, charge u/s 363/354/367 IPC was framed against accused Jahid.
62.It is settled law that testimony of minor victim must be scrutinized carefully before come to any conclusion. On careful scrutiny of the testimony of victim, it has been established that victim was not tutored by any person. She had denied that she had been tutored by counsel for Delhi Woman Commission. Victim herself had identified the accused and narrated the fact of incident. PW4 who is the mother of victim had also corroborated the fact of victim. PW5 who is the landlady of complainant and victim had also deposed on the same footing consistently with the case of prosecution. Even though MLC does not suggest the fact of rape which is also otherwise is not the case of prosecution.
SC No.25/2011 State v. Jahid
63.Requirement of section 354 IPC is that a woman was assaulted or subjected to use of assault criminal force on her and the intention of the accused was to outrage her modesty. Accused knew that modesty will outraged thereby. Hon'ble Supreme Court in Raja Pandurang v State (2004) 4 SCC 371 had laid down the essential ingredients as under :
a. that assault must be on woman;
b. that the accused must have used criminal force on her; and c. that the criminal force must have been used on the woman intending thereby to outrage her modesty or knowing that his acts would likely to outrage her modesty.
64.Victim in her testimony had stated that accused had taken her along with her brother from tea shop to his house and Ld. counsel for accused argued that no one was present at the tea shop from where accused had taken the victim. It is stated that it is not necessary that on each point of time one must be present to see the kidnapping of child. In fact, kidnappers keep watch for such moment when he may kidnapped innocent children. In this case also accused had taken the victim from tea shop when no one was present there. Hence, submission of Ld. counsel for accused has no relevance and it proves that accused had committed the offence u/s 363 IPC by taking victim from lawful guardianship of her parents.
65.Since accused had taken victim and her brother at his house and directed her brother to stand by putting his face towards wall and thereafter, he had removed the Pajami SC No.25/2011 State v. Jahid of the victim. Thereby he had used criminal force. Since he had put his finger inside the vagina of the victim had proved that he has committed the offence of outraging of the modesty of woman punishable u/s 354 IPC.
66.Since accused had taken the victim from lawful guardianship of her parents. Hence, it is not disputed that he had kidnapped the victim with intention to fulfil his unnatural lust which defines the offence punishable u/s 367 IPC.
67.It is equally settled that if testimony of child witness is a voluntarily expression and is an accurate impression of the same, no corroboration of testimony is required. Hon'ble Apex Court in judgment '(1993) 2 Supreme Court Cases - State of Himachal Pradesh Vs Raghubir Singh' where it has held that :
"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record......"
68.From the close scrutiny of statement of victim u/s 164 Cr. P.C. it is revealed that even though statement of victim u/s 164 Cr. P.C. have been confronted on the fact that accused had put his penis into her vagina after putting off her pajama but same is not material fact and in the testimony of victim minor contradictions. SC No.25/2011 State v. Jahid
69.In her statement u/s 164 Cr. P.C. victim had told that accused had removed her clothes and misbehaved with her and put his hands and that she was bleeding from her private part. This fact suggest that accused had taken the victim to fulfil his unnatural lust. Since it could not be explained by Ld. counsel for accused as to why the victim had named the accused in the present case. On the fact of contradictions as argued by ld. counsel for accused same are of minor nature and which are not fatal to the case of prosecution and benefit of same cannot be given to the accused.
70.Since being human and tied in the chain of social responsibility a prudent expects that elder will protect the minor from any hazardous or danger. Accused in the present case who was residence of nearby house of victim, he was expected to protect the victim being minor from such any assault which he failed to do it and testimony of victim is corroborated by other PWs. After taking into consideration the facts available on record, arguments of the parties coupled with facts and circumstances of the case, this court is of the view that prosecution has proved its case beyond reasonable doubt and inspire the confidence of this court. Particularly, testimony of victim is consistent on the fact of charge against accused. At this stage, minor contradictions are not relevant for accused and this court held guilty accused Jahid for the offences u/s 363/354/367 IPC.
PRONOUNCED IN THE OPEN COURT ON THIS 22.05.2013 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.25/2011 State v. Jahid IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 0I : NORTH EAST / KARKARDOOMA COURTS: DELHI.
FIR No. 414/2009
State Vs Jahid S/o Habib, R/o House of Jaan
Bhai Buland Masjid, Bihari Chowk,
Shastri Park, Delhi.
Police Station Seelampur
Under Section 363/354/367 IPC
ORDER ON SENTENCE:
24.05.2013
Pre: Ld. APP for the State.
Convict Jahid produced from JC.
Sh. Rajesh Ranjan, Ld. counsel for convict.
Arguments heard on point of sentence. Ld. APP for the State submits that since prosecution has proved its case against convict 363/354/367 IPC. He further submits that convict be awarded severe punishment as he had committed a heinous crime against a minor child. Hence, he has prayed for maximum sentence to the convict.
On the other hand ld. counsel for convict prayed that convict has been remained in JC for 67 months and he has clear antecedents and he is not a previous convict. Ld. counsel for convict further submits that convict belongs to a poor family and he is having responsibility of his family and he is the only bread earner in his family. Ld. counsel for convict has requested for lenient view and requested to release the convict for a period already undergone.
SC No.25/2011 State v. Jahid Arguments heard. Record perused. From perusal of record, it is revealed that the from the act of convict it appears that he had committed offence of unnatural lust after kidnapping and outraging the modesty of not only the victim but also the faith of humanity by doing such immoral act. Convict has caused damages to public and social disorder among the public. The society expect from such person like the age of convict that he would take care of such minor children but convict had been failed in doing so.
After considering the fact and circumstances of the present case, perusal of case and considering the age of convict and responsibility of his family, this court comes to the conclusion that ends of justice will be met if the convict Jahid is sentenced for 07 years imprisonment for the offence u/s 363 IPC and fine of Rs.1,000/ in default imprisonment for one month, and is sentenced for 02 years imprisonment for the offence u/s 354 IPC and fine of Rs.500/ in default imprisonment for 15 days, and is sentenced for 07 years imprisonment for the offence u/s 367 IPC and fine of Rs.1,000/ in default imprisonment for one month.
All the sentences shall run concurrently against convict qua offences against for which he has been convicted. Benefit of section 428 Cr. P.C. be also given to the convicts. Accordingly, sentence is awarded. Fine not paid.
Copies of the judgment along with sentence order be given to the convict forthwith free of cost.
PRONOUNCED IN THE OPEN
COURT ON THIS 24.05.2013 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
SC No.25/2011
State v. Jahid
SC No.25/2011
State v. Jahid