MD PANAULLAH Vs. STATE OF DELHI

JUDGEMENT

(1.) Aggrieved by a judgment dated 04.09.2012 in Sessions Case No. 05/11 arising out of FIR No.415/10 PS Narela by which Md.Panaullah (A-1) and Mohd.Mumtaz (A-2) were convicted for committing offences under Sections 328/376(2)(f) IPC, they have preferred the appeals. By an order dated 06.09.2012, A-1 was awarded RI for ten years with fine Rs. 10,000/- under Section 376 (2)(f) IPC and RI for five years with fine Rs. 5,000/- under Section 328 IPC. A-2 was sentenced to undergo RI for ten years with fine Rs. 10,000/- under Section 376 (2)(f) IPC. The sentences were to operate concurrently.

(2.) Briefly stated the prosecution case as reflected in the chargesheet was that in between eight or nine months, before 09.10.2010 the appellants sexually assaulted "X" (assumed name) aged around 13 years after administering poisonous substance to her on various dates and criminally intimidated her. It is relevant to note that A-1 is X's father and A-2 was acquainted with her before the occurrence being A-1's friend. On 08.10.2010, at A-1's residence, marriage of his elder daughter Majida Khatun was to take place. Many relatives including PW-2 (Afsana), PW-6 (Akhtari) and PW-8 (Mohd.Bilali) had participated in the said marriage. PW-2 (Afsana) suspected that A-1 was concealing real facts about ill health of her daughter "X". She became suspicious and forcibly touched X's abdomen and felt that she was pregnant. She immediately called PW- 1 (Nageena) working as counsellor for NGO known as "STOP". One midwife was called at the spot who confirmed that "X" was pregnant. People from the locality gathered and A-1 was beaten. Intimation was given to the police. "X" disclosed that she was sexually assaulted by the appellants. Daily Diary (DD) No.14A (Ex.PW-4/A) was recorded at PS Narela. The investigation was assigned to SI Mohd. Yaqub Khan, who went to the spot. After recording victim's statement (Ex.PW-5/A), he lodged First Information Report. "X" was medically examined and her statement under Section 164 Cr.P.C. was recorded. During investigation, Investigating Officer recorded statements of the witnesses conversant with the facts. The accused persons were arrested and medically examined. After completion of investigation, a charge-sheet was filed against both of them in the Court. The prosecution examined sixteen witnesses to prove their complicity in the crime. In 313 Cr.P.C., they denied their involvement in the crime and pleaded false implication at PW-2 Afsana's behest. The trial resulted in their conviction as aforesaid. Being aggrieved and dissatisfied, they have filed the instant appeals.

(3.) I have heard the learned counsel for the parties and have examined the file. Initially, in her statement under Section 161 Cr.P.C. (Ex.PW-5/A) and under Section 164 Cr.P.C. (Ex.PW-5/B), "X" had implicated A-1 for committing rape upon her for the past one year. PW-1 (Nageena), PW-2 (Afsana), PW-6 (Akhtari) and PW-8 (Mohd.Bilali) also deposed that on 08.10.2010, during their presence at A-1's house, "X" had informed A-1 also to be the perpetrator of the crime. It enraged the public and A-1 was beaten at the spot. However, when "X" was examined as PW- 5, in her Court statement, she completely exonerated A-1 and specifically deposed that he did not commit any wrong act with her. She alleged that her statement given to the police was incorrect and was under pressure. The Trial Court, however, based A-1's conviction on the basis of circumstantial evidence noting unnatural and unreasonable conduct of A- 1; that of the prosecutrix "X"; her sisters; behaviour of the crowd coupled with the deposition of public witnesses including PW-1 (Nageena) and PW-2 (Afsana). The Trial Court was of the view that due to her sister (Majida)'s intervention who used to visit her in Nirmal Chaya, "X" opted not to support the prosecution case.