State of NCT of Delhi v. Subhan Ali @ Gangi & Anr.

1. This hearing has been done through hybrid mode.

2. The present leave petition has been filed on behalf of the Petitioner- State of NCT of Delhi assailing the impugned judgment of conviction and order on sentence dated 11th December, 2019 and 13th December, 2019 respectively, passed by Sh, Umesh Grewal, ld. ASJ, Special FTC (North), Rohini Courts, Delhi, whereby the Accused/Respondent has been convicted in SC No. 58548/16, in FIR No. 543/15 registered in PS. Shahbad Dairy under Sections 376D/451/506/34 IPC.

3. Vide the impugned order on sentence, the Accused/Respondent herein has been convicted under Sections 452/354 IPC. The relevant portion of the 16:44 order on sentence dated 13th December, 2019 is extracted hereinunder:

4. The background of the present case as stated in the petition is that an incident was reported by the complainant/survivor, stating that, on 26th April, 2015 at about 3:00 PM she was sexually assaulted by the Accused/Respondent herein. Thereafter, a PCR call was made at about 3.45 PM and in the said call it was recorded that the complainant had alleged that the Accused/Respondent had done ‘chedhchad’ with her. It was further alleged that two children were present at the time when the Accused had misbehaved with her.

5. The statement of the survivor under Section 164 Cr.P.C. was recorded before the ld. Magistrate being Ex.PW1/A. The survivor had stated as under: 16:44

6. On perusal of the above, it is seen that the survivor has stated that the Accused/Respondent had entered her room forcibly and after she had gone to the washroom, the Accused/Respondent had pushed her on the bed and had tried to molest/rape her. In the said statement there is no allegation of sexual intercourse.

7. In terms of these facts, the trial was conducted and the survivor had testified before the Court. In the testimony she stated that the Accused/Respondent had inserted his finger in her private parts. The Trial Court, however, disbelieved the same and convicted the Accused/Respondent only under Section 354/452 of IPC. Under Section 376 of IPC the Accused/Respondent was acquitted. The reasoning given by the Trial Court is as under: “22. PCR forms shows that at the very outset, the victim told PCR van official at 3.47 pm that her neighbour, who was 16:44 drunk, had done ‘chedchad’ with her. She was medically examined on the same day at 7.35 pm and she told the treating doctor that her neighbour Gangi had tried to harass and assault her sexually. Statement of the victim to the PCR official that the accused was drunk, is corroborated by MLC Ex.PW8/A of Subhan Ali, prepared just aftger nine hours of the incident, in which it is mentioned that BAC was 18 mg. So, as per MLC also, acused Subhan Ali @ Gangi was drunk.

23. Hence, there is no dispute about the complicity of accused Subhan Ali @ Gangi in the offence. The moot question is about exact offence done by him.”

8. The submission of Mr. Bahri, ld. APP for State is that the testimony of PW-1 is clear to the effect that there was sexual assault committed by the Accused/Respondent and that he had inserted his finger into her private parts. Hence, it is a clear case of rape under Section 376 of IPC. Mr. Bahri, ld. APP further submits that the previous statements made on behalf of the survivor have not been confronted to the witness, hence the same cannot be considered as an improvement to acquit the Accused under Section 376 IPC.

9. On the other hand, Ms. Raju, ld. Counsel for the Accused/Respondent submits that this testimony of the survivor is not to be believed.

10. The Court has heard the matter. On a perusal of the initial complaint as also the statement of the survivor under Section 164 Cr.P.C., the Trial Court observes that there is absence of the following facts:

(i) Mr. Nand Kishore, the co-accused with whom the husband of the survivor had a dispute, was standing outside the door of the room where the alleged incident occurred;

(ii) There is no allegation that the Accused/Respondent had inserted his finger in the private parts of the survivor. In view of these two facts, the testimony given before the Court, was not 16:44 believed.

11. Clearly, the reasoning of the Trial Court is a plausible reasoning. A perusal of the MLC would also show that contemporaneously, the prosecutrix did not allege any sexual intercourse. The MLC is extracted below for a ready reference: