Delhi District Court
State vs . on 5 April, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
Saleem Qureshi
S/o Bhura Qureshi
R/o E44/A9 Jhuggi
New Seemapuri,
Delhi.
FIR NO: 121/09
PS: Seemapuri.
U.Sec: 376 IPC
Sessions Case No. : 84/2009
Date of Institution of case : 04.06.2009
Date on which reserved for Judgment : 26.02.2011
Date of Judgment : 18.03.2011
JUDGMENT:
The present case of rape was registered on the statement of one Zubeda who is mother of the victim child Baby Sessions Case No.84/09 Page1/29 2 Ziya aged 4 years.
Zubeda stated in her complaint that she was married to the accused 15 years back. She was having four children, Nisha aged 12 years, Neha aged 10 years, Nagma aged 8 years and Ziya aged 4 years. She further stated that about five years back her husband had left her and had gone to Ahmadabad. On 4.4.2009, accused Salim came to the house of his brother Gama in Seemapuri, Delhi. She along with her children went to meet him. After having talks with her husband, she left all her four children there. At about 9.00 p.m her daughter Nagma came to her and told her (Zubeda) to save Ziya. She went there with Nagma and saw that Ziya was crying and blood was oozing from the private part of Ziya. Ziya was pointing towards accused Salim Qureshi and weeping.
On this statement of the complainant Zubeda, FIR in this case was registered. Investigation was carried out. Accused was arrested. After completion of investigation challan was filed in the court for the offence punishable under section 376 IPC.
Ld.M.M after supply of copies etc, committed the case to the court of Sessions.
Sessions Case No.84/09 Page2/29 3
Vide order dated 12.10.2009, charge for the offence punishable under section 376 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
In support its case the prosecution examined 16 witnesses.
PW1 Baby Ziya aged four years is the victim in the case.
Before recording her statement, certain preliminary questions were put to her by the court in order to ascertain that whether was able to understand the questions and was capable of giving rational answers. After being satisfied that the witness was able to understand the questions put to her and was capable of giving rational answers to the questions put to her, her statement was recorded.
She stated several days back during night time, she was sleeping with her father on the roof. Her father removed her clothes, inserted finger (the witness pointed towards her vagina). She further stated then her father laid over her body, bit on her lips, scratched her face and when she screamed, her father shut her mouth.
Sessions Case No.84/09 Page3/29 4
Ld.Addl.PP had put some leading question to the witness and she admitted that when her father put finger in her vagina, she felt pain and then her father did wrong act with her from where she urinates. She further admitted that her father did wrong act with his susu wali jaghe in her susu wali jaghe. She felt pain and blood oozed from her susu wali jaghe.
PW1 further stated that her sister Nagma came after hearing her cries and thereafter she (Nagma) called her mother. She (PW1) narrated all the fact to police aunti. She further stated that earlier also she had come in similar type of room and narrated the facts to an aunti and had put her thumb impression on a paper. PW 1 further stated that her father had also licked her susu wali jaghe.
PW2 Zubeda is mother of the victim child. She stated that she was married to accused Saleem Quareshi in the year 1993 and four children were born out of the said wedlock namely Nisha aged 12 years, Neha aged 10 years, Nagma aged 8 years and Ziya aged 4 years. From the last about four years she was residing with her sister Smt. Naseem. Four years prior to this incident her husband accused Saleem Qureshi was working in Okhla Mandi. Her husband deserted her four years ago when Ziya was 1015 days Sessions Case No.84/09 Page4/29 5 old. She tried to contact the accused i.e her husband on telephone and through relatives also but the accused did not talk to her.
She further stated that in the month of April 2009 accused returned back to the house of her jeth (brotherinlaw) Gama. She along with her children went to see accused and the accused told her that he had come to take his children. She left all her four children there and she (PW2) went to house of her sister residing in the same vicinity in next street. The day was 4th April 2009 when she had left her children with accused. On the same day at about 9.00 p.m Nagma came to her and told her to save Ziya. She became frightened and immediately rushed there. On reaching there she saw that Ziya was in the lap of her Jethani (sisterin law) Smt.Shamima and was crying with pain. She took baby Ziya in her lap and checked her. She found that her clothes were stained with blood, her (Ziya) face was swollen and blood was oozing from her vagina. She further stated that her other relatives also gathered there and her sister informed the police.
PW2 further stated that she made inquiries from Ziya who told her that her father removed her clothes, inserted his finger in her vagina, bit and scratch on her face and lied down upon her Sessions Case No.84/09 Page5/29 6 (Ziya) and did galat kaam. Police and the ambulance reached there. Her daughter was taken to GTB Hospital and admitted in Ward No.11. Police made inquiries from her and her statement Ex.PW 2/A was recorded. Her daughter was kept in ICU and she was not allowed to see her daughter. Police arrested accused Saleem Qureshi.
PW2 further stated that Woman ASI Tej Wati also came in the hospital and she made inquires from her (PW2). She had shown the spot to ASI Tejwati who prepared site plan at her instance. Clothes of her daughter were also seized. Ziya remained admitted in hospital for treatment for about six days and then she was discharged. Woman ASI Tej Wati also made inquires from her daughter. Her daughter Ziya was also produced before the court where her (Ziya) statement was recorded.
She further stated that since the date of this incident, all the four children are with her.
PW3 Baby Nagma is sister of the victim child. As the witness was aged 12 years certain preliminary questions were put to her in order to ascertain that the witness was able to understand the questions put to her and was capable of giving rational answers. Sessions Case No.84/09 Page6/29 7 After being satisfied that the witness was able to understand the questions and was capable of giving rational answers, the statement of the witness was recorded.
She stated that she was residing with her mother Smt. Zubeda at the house of her father and was studying in 4th Standard at MCD Primary School, Dilshad Garden. Her father was doing business of meat at New Seema Puri. Her father had gone to Ahmadabad for service and he used to go away from the house after picking quarrel with her mother. She further stated that she does not remember the exact date, but it was about one year ago her father Salim Qureshi returned back from Ahmadabad after four years. At about 2 P.M. her father asked her and her other sisters to come at house. Her sister informed her mother about the said fact and her mother took her and her sisters to her father at house of her aunty (Tai). Her mother left them there and her mother went to the house of her Mausi (Khala). She further stated that they took meal and also played there. Her sister Ziya went to sleep with her father at first floor. She and her sisters were at that time on the ground floor. At about 8.00 p.m, she heard cries of her sister Ziya. She along with her sister Nisha went upstairs and they found Ziya lying Sessions Case No.84/09 Page7/29 8 unconscious on the floor and blood was oozing from her vagina. Her father was standing in naked condition. She and her sister Nisha brought Ziya downstairs. Ziya remained there with her sister Nisha and she (PW3) went to call her mother from the house of her Mausi. She returned back there with her mother. Thereafter, her mother took her sister Ziya to hospital. She told her mother about the facts. Her sister Ziya remained admitted in the hospital, police made inquiries from her and recorded her statement.
Certain leading questions were put to this witness by Ld. Additional P.P and she admitted it to be correct that when they were playing in the house of her Tai, her father was drinking liquor at that time. She further admitted it to be correct that she was brought in the court for recording her statement and her statement was recorded, which she had signed.
PW3 Nisha (In fact she is PW4 but due to inadvertence she has been mentioned as PW3) is also a sister of the victim child. As the witness was aged 12 years certain preliminary questions were put to her in order to ascertain that the witness was making the statement voluntarily. After being so satisfied that the witness was able to understand and questions and Sessions Case No.84/09 Page8/29 9 give rational answers and she was making statement voluntarily, the statement of the witness was recorded.
She stated that 4.4.2009, she was returning from her school, her father Saleem, met her after about four years. He had left them in Delhi and had gone to Ahamdabad. Her father told her to come to the house of her Tai (aunt) and that her father would take them to Ahamdabad. She told her mother about the same. Her mother took all the four sisters to the house of her aunt (Tai) which is in New Seeampuri. When they reached there with their mother, accused started quarreling with her mother and used filthy language. Her mother left them (all the four sisters) with the accused. At 2.00 p.m and her mother left for the house of her Mausi.
Thereafter they all the four sisters started playing with their cousin sisters at the roof of the house of her aunt. Her father was taking liquor and her younger sister Ziya slept while playing. She (Nisha) alongwith her sisters and cousin sisters came downstairs. Her sister slept with her father on the mat. After about 1015 minutes she heard noise of cries of her sister Ziya. Her younger sister Nagma rushed upstairs. Nagma came to her and told Sessions Case No.84/09 Page9/29 10 that Ziya was sitting naked and weeping. She alongwith her cousin sister Shabana and Kanwar Jahan went upstairs and found that blood was oozing from (witness pointed out towards her private part). She saw that her father was sitting in the corner in naked condition and his hands were stained with blood. She further stated that she brought her sister Ziya downstairs and gave her (Ziya) to her aunt. Her sister Nagma informed her mother, her mother came and called the police. Her sister Ziya was taken to hospital in ambulance. Her mother and mausi Naseem accompanied her (Ziya) in ambulance.
She further stated that police had made inquires from her after about four days and her statement was recorded. She was also called at Karkardooma courts and her statement was recorded there.
PW4 Smt.Shamim (In fact she is PW5 but due to inadvertence she has been mentioned as PW4) stated that accused Saleem Qureshi is her devar (brotherinlaw) and the name of name of wife of accused is Zubeda. Accused was having four daughters namely Baby Nisha, Nagma, Ziya and name of the fourth one she did not remember. The accused had left his children in Delhi and Sessions Case No.84/09 Page10/29 11 had gone to Ahmadabad. Accused Saleem was called from Ahmadabad. She did not remember the exact date, but about one year back he (accused) was called from Ahmadabad and a settlement was arrived at between the accused and Smt.Zubeda. All the four daughter were with accused. At that time she was pregnant and she went to the house of her jethani. Thereafter she heard noise and came to her house. She came to know that all the above persons had gone away from there. She did not know what proceedings police had conducted, however, her statement was recorded by the police after about 45 days.
This witness was declared hostile and was cross examined by Ld.Addl.PP but nothing incriminating could surface of on record against the accused.
PW5 Ms.Shabana (In fact she is PW6 but due to inadvertence she has been mentioned as PW5) stated that she was with her badi ammi in the hospital as she was not feeling well.
This witness was declared hostile by the prosecution and was crossexamined at length by the Ld.Addl.PP but nothing incriminating could surface on record against the accused which could be of any help to the prosecution. This witness however Sessions Case No.84/09 Page11/29 12 admitted that accused was her Chacha (uncle) and he had come to Ahmadabad to her house as she was called by her Chachi (aunt) Zubeda.
PW6 SI Ajit Singh (In fact he is PW7 but due to inadvertence he has been mentioned as PW6) is the initial I.O. of the case. He stated that on 04.04.09 on receipt of DD No. 37A (Mark P6/A), he along with Ct. Manoj went near Masjid Jhuggi, New Seemapuri where he came to know that the injured had been shifted to GTB Hospital by the ambulance. He along with Ct. Manoj proceeded to GTB Hospital. There met one child Ziya aged about 4 years who was admitted in the hospital. He obtained the MLC of Ziya and she was declared unfit for statement by the concerned doctor. He also met Zubeda mother of child Ziya and recorded her statement Ex.PW2/A, made his endorsement Ex.PW6/A, prepared a rukka and handed over the same to Ct.Manoj for getting the present case registered. He further stated that had also made a request in his endorsement that the investigation of the present case should be handed over to some lady police officer.
After registration of the present case Ct.Manoj and Sessions Case No.84/09 Page12/29 13 ASI Tejwati reached GTB Hospital and ASI Tejwati interrogated the witnesses present in the hospital. Ct.Manoj had also handed over the exhibits of patient Ziya to I.O. ASI Tejwati which were seized by the ASI Tej Wati vide seizure memo Ex.PW6/B. He then along with the I.O. and complainant Zubeda reached at the place of occurrence at E44/A9, Jhuggi, New Seemapuri. Zubeda pointed out towards her husband Saleem who was interrogated and arrested vide arrest and personal search memo which are Ex.PW6/C and Ex.PW6/D. The I.O. also recorded the confession statement of accused Saleem Ex.PW6/E. A pointing out memo Ex.PW 6/F of the first floor of the house E44/A9 was prepared at the instance of the accused. The I.O. also prepared site plan Ex.PW6/G on the pointing out of the complainant Zubeda. The accused was got medically examined in GTB Hospital through Ct.Manoj. Ct.Manoj then returned back and handed over sealed exhibits to I.O. which was seized vide Ex.PW6/H. The exhibits were deposited with the MHC (M). Accused was put in the lock up. The I.O. also recorded his statement in the police station.
PW7 Shahjahan (In fact she is PW8 but due to inadvertence she has been mentioned as PW7) stated that when the Sessions Case No.84/09 Page13/29 14 incident took place, she was not present at the house and had gone to her tayi's (aunt) house.
This witness was also declared hostile by the prosecution and was crossexamined at length by the Ld.Addl.PP but nothing incriminating could surface on record against the accused which could be of any help to the prosecution.
PW8 Ms.Shuchi Shahmiri Ld.M.M (In fact she is PW9 but due to inadvertence she has been mentioned as PW8) recorded statements of Baby Ziya, Nagma and Nisha under section 164 Cr.P.C and proved the same as Ex.PW8/A, Ex.PW8/B and Ex.PW8/C. PW9 Dr.Bhawna Aggarwal (In fact she is PW10 but due to inadvertence she has been mentioned as PW9) examined the patient Baby Zia aged four years on 4.4.2009 at about 11.00 p.m. She further stated that on general examination, the lips of the patient were swollen, bruised and bruises were present on the face. On gynecological examination, bleeding was found present and hymen was found torn. Bite marks were present on labia. The patient was advised examination under anesthesia and on examination bladder was catheterized, draining clear urine, scratch Sessions Case No.84/09 Page14/29 15 marks were present over labia minora, oozing from scratch marks were present. The patient was unfit for statement.
She further stated that clothes of the patient were sealed and two slides were also prepared. She proved the MLC prepared by her as Ex.PW 9/A. PW10 HC Mahipal Singh (In fact he is PW11 but due to inadvertence he has been mentioned as PW10) stated that on 9.4.2009 he had taken pulladan to FSL Rohini but since the papers were not complete, the pullandas could not be deposited. He further stated that on 15.04.2009, he again took the pullandas to FSL Rohini vide RC NO. 25/21 and he handed over the receipt of deposit to the MHC(M).
PW11 Dr.Geetika Goel (In fact she is PW12 but due to inadvertence she has been mentioned as PW11) stated that the opinion Ex.PW11/A regarding the patient Zia to be fit for making statement Ex.PW11/A has been given by Dr.Nanadni on the MLC on 4.4.2009. She identified the signatures and handwriting of Dr.Nandani on the MLC. She stated that Dr.Nandani had since left the hospital and her present whereabouts were not known.
PW12 Dr.Sumit (In fact he is PW13 but due to Sessions Case No.84/09 Page15/29 16 inadvertence he has been mentioned as PW12) stated on 5.4.2009 the patient Saleem Qureshi was examined by Dr.Laxmi Kant and prepared the MLC Ex.PW12/A under his supervision. He stated that Dr.Laxmi Kant has since left the hospital and his present whereabouts were not known. He identified the signatures and handwriting of Dr.Laxmi Kant on the MLC Ex.PW 12/A. PW13 HC Arun Kumar (In fact he is PW14 but due to inadvertence he has been mentioned as PW13) stated that on 5.4.2009 ASI Tejwati deposited with him 7 sealed parcels and two sample seals regarding which he made entry at Srl. No.3693 in Register No.19. He further stated that on 8.4.2009 he sent the sealed parcels to FSL Rohini but the same could not be deposited due to deficiency of documents. He further stated that on 15.04.2009 exhibits were again sent to FSL Rohini through Ct. Mahipal vide RC NO. 25/21 and Ct.Mahipal handed over to him the receipt of the same. He proved the photocopies of the receipts as Ex.PW13/A and PW13/B respectively.
PW14 Ct.Manoj (In fact he is PW15 but due to inadvertence he has been mentioned as PW14) had joined investigation of the case with the I.O. SI Ajit Kumar. He deposed Sessions Case No.84/09 Page16/29 17 on the same lines as deposed by PW6 SI Ajit Kumar. Ct. Manoj stated that he had taken the rukka to the police station for the registration of the FIR. After the registration of the FIR the investigation was entrusted to ASI Tej Wati. He further stated that accused was arrested in his presence at the instance of Zubeda.
PW15 ASI Tejwati (In fact she is PW16 but due to inadvertence she has been mentioned as PW15) is the I.O. of the case. She stated that on 5.4.2009 the present case was entrusted to her after registration. She had received rukka and copy of FIR Ex.PW 15/A from the Duty Officer HC Bhim Singh. She further stated that she along with Ct.Manoj reached GTB Hospital where SI Ajit Singh was present. She met Baby Zia aged 4 year who had been declared unfit for statement. She also met her mother Zubeda. I.O. further stated that Ct.Manoj handed over to her exhibits which were given by doctor and she seized the same vide memo Ex.PW 6/B. She also collected MLC Ex.PW9/A of Baby Ziya from SI Ajit Singh. Thereafter she along with SI Ajit Singh and Ct. Manoj reached Jhuggi No.E44/A9, New Seemapuri where accused Salim Qureshi was arrested on the pointing out of Zubeda vide memos Ex.PW6/C and PW6/D. He recorded disclosure statement Ex.PW Sessions Case No.84/09 Page17/29 18 6/E of the accused and prepared pointing out memos Ex.PW6/F of the incident, at the instance of accused.
The accused was got medically examined through Ct. Manoj and exhibits were seized vide memo Ex.PW 6/H. Site plan Ex.PW 6/G was prepared at the instance of Zubeda. Thereafter she recorded statement of witnesses and informed Delhi Commission of Women and one NGO Pratidhi. Statement of Baby Zia under section 161 Cr.P.C was recorded by her on 10.04.2009. She also got recorded statements of Baby Zia, Nisha and Nagma under section 164 Cr.P.C.
She sent the exhibits to FSL Rohini and later on results Ex.P15/A and Ex.P15/B were obtained and filed in the court. After completion of investigation challan was filed in the court.
Statement of accused was recorded under section 313 Cr.P.C wherein he denied all the allegations against him and stated that he had been falsely implicated in this case on a false complaint lodged by his wife Zubeda as he had refused to divorce her. He further stated that Zubeda wanted to marry someone else.
Accused preferred to lead DE and examined DW1 Hazi Iqbal in his defence.
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DW1 Hazi Iqbal stated that he knew Zubeda who is wife of accused Saleem Qureshi. She was now living with his cousin brother namely Shabbu in Ghaziabad U.P on rent as his (Sabbu) wife for last about 56 years. He further stated that accused and Zubeda used to quarrel with each other on the issue of divorce as Zubeda wanted to take divorce from accused but the accused was not agreeing to it. He further stated that accused has doing the work of selling meat at Ahmadabad.
I have heard Sh. Mukul Kumar Addl.P.P for the State and Sh.S.S.Chaudhary Counsel for the accused. I have also gone through the case file.
It was contended by Ld.Addl.PP for the State that the prosecution has been fully able to establish its case against the accused. It was submitted that statements of PW1 Baby Ziya, PW 2 Zubeda, PW3 Baby Nagma and PW4 Nisha fully proved that on the day of the incident, when Zubeda left her children with the accused, the accused committed rape with his daughter Baby Ziya aged four years. As per Ld.Addl.PP case of the prosecution is fully supported by the medical evidence which has come on record. As per Ld.Addl.PP the accused is liable to be convicted for such Sessions Case No.84/09 Page19/29 20 heinous crime.
On the other hand it was submitted by Ld.Counsel for the accused that the accused has been falsely implicated in this case by the police at the instance of wife of the accused. It was further the contention of the Ld.Counsel that Zubeda who is wife of accused wanted the accused to divorce her, but the accused was not agreeable to it, therefore he was falsely implicated in this case. It was further the contention of the Ld.Counsel Zubeda was living with some other person as his wife. It was further the contention of the Ld.Defence Counsel that PW5 Shamim and PW6 Ms.Shabnam had not supported the prosecution case. As per Ld.Counsel the accused was liable to be acquitted.
I have considered the rival contentions.
PW1 Baby Ziya is the victim in this case. PW2 Zubeda is the mother of the victim. PW3 Baby Nagma and PW4 Nisha are the sisters of the victim who were present at the spot at the time of the incident.
It was contended by Ld.Counsel for the accused that PW1 is a tutored witness. It was the contention of the Ld.Counsel that it has come in the crossexamination of PW1 that her mother Sessions Case No.84/09 Page20/29 21 had told her as to what she (PW1) had to depose in the court. PW 1 had further stated that the police aunti and one aunti had told her as to what she (PW1) had to say in the court. Therefore the testimony of PW1 Baby Ziya could not be relied upon.
PW1 Baby Ziya was reexamined by the Ld.Addl.PP in which she stated that she (PW1) had stated only those facts which happened with her. It is further important to note that PW1 Baby Ziya was a child aged only four years. At this tender age, it is difficult to tutor a child. Hence, this contention of the Ld.Counsel does not hold much ground.
The other contention of the Ld.Counsel was the PW1 Baby Ziya stated that her father did galat kaam with her, that does not mean rape was committed with her. As per Ld.Counsel galat kaam cannot be said to be rape.
Certain leading questions were put to PW1 by Ld.Addl.PP for the State wherein PW1 admitted that her father had down wrong act with her at the place from where she urinates and her father did wrong acts with her with his susu wali jaghe in her susu wali jaghe. She further stated that blood had oozed out from her susu wali jaghe.
Sessions Case No.84/09 Page21/29 22
We have to keep in mind that the witness was aged only four years. At this age, the witness would not have known the meaning of rape. This witness clearly stated in her examinationin chief that when she was sleeping her father had removed all her clothes and inserted finger, and the witness has pointed towards her vagina. It is clear that the witness has not able to speak in words but told her story by pointing out.
Further more, the testimony of PW1 finds support from the testimony of PW3 Nagma and PW4 Nisha who are elder sisters of Baby Ziya. Both these witnesses were present in the house when the incident took place and they had reached the spot immediately on hearing the cries of Baby Ziya.
PW3 Baby Nagma stated that when they heard the cries of Ziya they immediately rushed to the roof of the house. There they found her sister Ziya lying on the floor and blood was oozing from her vagina while her father i.e accused was there in naked condition.
Similarly, statement of PW1 Ziya and PW3 Nagma further find support from the statement of Nisha who was also present in the house at the time of the incident and she also Sessions Case No.84/09 Page22/29 23 immediately reached at the roof of the house on hearing the cries of Baby Ziya on calling of her sister Nagma. There she saw that blood was oozing from the private part of Ziya and her father was sitting there in naked condition and his hands were soaked with blood.
PW2 Zubeda who is mother of Baby Ziya stated that when she reached at the house on calling of Nagma, she found her daughter Ziya in the lap of her jethani (sisterinlaw) Smt. Shamim. She took Ziya in her lap and found that her clothes were stained with blood, her face was swollen and blood was oozing from her vagina. Zubeda further stated that on inquiries from Ziya, she told that her father her removed her clothes and inserted finger in her vagina.
Testimony of all these witnesses further finds support from the medical evidence.
PW1 Baby Ziya in her statement had stated that her father removed her clothes, father bit on her lips and scratched her face. He had also inserted finger in her vagina and had also licked her vagina. She also stated that the accused did wrong act with her in her susu wali jagha with his susu wali jagha.
Dr.Bhawana Aggarwal (PW9) examined Baby Ziya. Sessions Case No.84/09 Page23/29 24 She stated that lips of the patient were swollen, bruised and bruises were present on the face. On gynecological examination, bleedings was present and the hymen was torn, bite and scratch marks were present on labia minora.
Thus, it is clear that the rape was committed on the person of Baby Ziya by her father i.e the accused.
The other contention of the Ld.Counsel was that PW5 Smt.Shamim and PW6 Ms.Shabana have not supported the prosecution case. Hence, it is not safe be rely upon the testimony of PW1 to PW4 as they are interested witnesses.
Although, It is correct that PW5 and PW6 have not supported the prosecution case, but both the witnesses have admitted the presence of accused and Baby Ziya at the house at the time of the incident.
PW6 Ms.Shabana stated in her crossexamination by the Ld.Addl.PP that that accused, who is her Chacha had come to her house as he was called by her Chachi Zubeda. She also admitted that all the four children of accused were present in the house at that time.
Similarly PW5 Smt. Shamim who is sisterinlaw of Sessions Case No.84/09 Page24/29 25 accused, stated that after settlement all the four daughters were handed over to the accused who had come to her house.
Thus, the presence of accused and his four daughter at the time of the incident is not denied by these witnesses.
The contention raised by the Ld.Defence Counsel is without any merits as they are not the witnesses of the incident, Moreover, the other witnesses have supported the prosecution case.
Now we come to the defence taken by the accused. He had stated that he has been falsely implicated by his wife Zubeda as she wanted divorce from him as she wanted to marry somebody else and he was not willing to divorce her.
In his defence, the accused examined DW1 Hazi Iqbal who stated that Zubeda used to quarrel with Saleem Qureshi on the issue of divorce but the accused was not willing for the same. He further stated that Zubeda was living with his cousin brother namely Shabbu as his wife.
In his crossexamination by the Ld.Addl.PP he stated that he did not remember when Zubeda married Saleem Qureshi. He has not having any visiting terms with her nor he ever visited her house. He also did not know where Shabbu was residing at Sessions Case No.84/09 Page25/29 26 present.
When this witness has not having any visiting terms with Zubeda nor he ever visited his house, then how could he know about the relation between accused and Zubeda. It is also important to note that this witness has not seen Zubeda living with her cousin brother Shabbu as his wife. Hence, testimony of this witness is not of much help to accused.
Even otherwise, as stated that by the accused that he has been falsely implicated in this case as Zubeda wanted divorce from her and wanted to marry somebody else, and for this reason she has falsely implicated him in this case. It is very difficult to believe that a mother would stoop so low, so as to implicate her husband in the rape case of his own daughter just for taking divorce from him. Accused has also not been able to prove on the record that Zubeda wanted to marry somebody else.
The other contentions of the Ld.Counsel was the the site plan was prepared on the pointing out of complainant Zubeda but the same does not bear the signatures of Zubeda, In my view this does not have any effect on the merits of the case when the material witnesses have fully supported the prosecution story. Sessions Case No.84/09 Page26/29 27
Thus from the above discussion, it is clear that all the material witnesses PW1 Baby Ziya, PW2 Zubeda , PW3 Baby Nagma and PW4 Nisha are consistent and corroborative. They were crossexamined at length but they could not be shaken from their stand. Testimony of Baby Ziya further finds support from the medical evidence.
Hence, it is proved on record that on the day of the incident, i.e 4.4.2009, accused committed rape with Baby Ziya. The accused is therefore held guilty for the offence punishable under section 376 IPC and convicted thereunder.
Accused be heard separately on the point of sentence. Announced in open Court on 18th March' 2011.
(Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No.84/09 Page27/29 28 IN THE COURT OF SURINDER KUMAR SHARMA ADDITIONAL SESSIONS JUDGE - NORTH EAST KARKARDOOMA COURTS : DELHI State Vs. Saleem Qureshi S/o Bhura Qureshi R/o E44/A9 Jhuggi New Seemapuri, Delhi.
FIR NO: 121/09 PS: Seemapuri.
U.Sec: 376 IPC ORDER ON SENTENCE 05.04.2011 Present: Sh.Mukul Kumar Addl.PP for the State.
Convict Saleem Qureshi in J.C with Sh.S.S.Chaudhary Advocate.
Arguments heard on the point of sentence.
It was submitted by the Ld.Addl.P.P for the State that convict has committed rape with his own daughter aged 4 years and he deserves maximum punishment.
On the other hand it was submitted by Ld.Counsel for the Sessions Case No.84/09 Page28/29 29 convict that convict is not a previous convict. It was further the submission of the Ld.Counsel for the convict that convict is in J.C for two years. It was submitted that a lenient view be taken against him.
I have considered the submission of both the sides. This is a case of rape where a father has committed rape with his own daughter aged 4 years. In my view, the convict does not deserve any leniency.
Keeping in view the facts and circumstances of the case, convict Saleem Qureshi is sentenced to undergo Imprisonment for life with fine of Rs.20,000/ (Twenty thousand) for the offence punishable under section 376 IPC. In default of payment of fine, the convict shall further undergo Simple Imprisonment for six (6) months.
Copy of the judgment and order on sentence be given to the convict free of cost today itself.
File be consigned to Record Room.
Announced in open Court on th 5 April ' 2011.
(Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No.84/09 Page29/29