Mohd. Islam v. State

1. By way of the present appeal, the appellant seeks to assail the judgment of conviction dated 05.08.2017 and order on sentence dated 10.08.2017 passed by the learned Additional Sessions Judge – Special Fast Track Court, Saket Courts, New Delhi, in SC No. 57/2016 and 2455/2016, arising out of FIR No. 113/2016 registered at P.S. New Friends Colony. Vide the order on sentence, the appellant was sentenced to undergo RI for a period of 2 years alongwith fine of Rs.5,000/-, in default whereof he was sentenced to undergo SI for 3 months, for the offence punishable under Section 354 IPC; RI for a period of 7 years alongwith fine of Rs.15,000/-, in default whereof he was directed to undergo SI for 4 months, for the offence punishable under Section 376 IPC; and RI for a period of 1 year alongwith ASWAL fine of Rs.5,000/-, in default whereof he was sentenced to undergo SI for 2 months, for the offence punishable under Section 506 IPC. The sentences were ordered to run concurrently and benefit under Section 428 Cr.P.C. was granted to the appellant.

2. On the last date of hearing, noting that the appellant has been released from jail on completion of his sentence and payment of fine, notice was directed to be served upon him. The learned APP for the State has handed over a status report, which is taken on record. As per the status report, the appellant could not be traced despite efforts. However, Mr. Sanjeev Kumar Baliyan, learned counsel for the appellant, submits that in the absence of any instructions to the contrary, he will press the present appeal on merits. Accordingly, the Court has proceeded to hear submissions on the merits of the appeal.

3. The prosecution’s case, in a nutshell, is that the appellant molested the prosecutrix on 26.03.2016, committed rape upon her on 28/29.03.2016, and threatened to kill her if she disclosed his actions to anyone.

4. During trial, the prosecution examined a total of 9 witnesses in support of its case. The prosecutrix testified as PW-1, her father as PW-2, and the doctor who conducted the prosecutrix’s medical examination and prepared the MLC testified as PW-5. On the other hand, the appellant, in his statement recorded under Section 313 Cr.P.C., asserted his innocence and claimed false implication. He, however, did not lead any defence evidence.

5. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case, as he had objected to the prosecutrix going out to meet her boyfriend and other persons who used to come and meet her in his absence. He contends that the ASWAL prosecutrix admitted in her cross-examination that her statement was recorded by the police 3-4 times, and that her statement recorded on 30.03.2016 was her 2nd statement to the police, indicating that improvements were made in her account at the instance of the police. He further states that the first information recorded by the police with respect to the present case, vide DD No. 34A exhibited as PW-4/A, contains no mention of rape. Additionally, it was submitted that the fact that no semen was detected by the FSL report (PW-8/J) on any of the sealed parcels that were examined and the fact that the MLC (PW-1/B) did not detect any injuries on the prosecutrix’s person prove the appellant’s innocence. It was further submitted that the MLC’s omission of any reference to chickenpox casts doubt on the prosecution’s case.

6. Learned APP for the State vehemently opposes the present appeal, arguing that the appellant was rightfully convicted by the Trial Court. She contends that the prosecutrix’s testimony has remained consistent throughout, in her complaint (Ex. PW-1/A), her statement under Section 164 Cr.P.C. (Ex. PW-1/C), and the brief history of the incident recorded in the MLC by the examining doctor on the narration of the prosecutrix. It is submitted that the assault, rape, and criminal intimidation committed by the appellant were clearly established by the prosecutrix's credible and reliable testimony. She states that the prosecutrix has no reason to falsely implicate the appellant, who is the husband of her cousin sister. She further asserts that the inconclusive nature of the FSL report and the MLC does not mean that the necessary ingredients to establish the offence of rape are absent, as penetration even without injury or semen discharge amounts to rape.

7. I have heard the learned counsels for the parties and gone through the record.

8. In the prosecutrix’s complaint recorded by SI Shashi Dixit/PW-8, which is exhibited as PW-1/A, the prosecutrix stated that she is illiterate, works as a nanny, and had stayed back in Delhi for work after her parents left for the village on 18.03.2016. That same day, she developed spots on her body (chickenpox). On 20.03.2016, the appellant took her to his room to care for her, applied milk to the spots, and she began recovering. She further stated that on the night of 26.03.2016, the appellant touched her chest with his hand, upon which she rebuked him. In the early hours of 28/29.03.2016, around 4:00 a.m., he forcibly held her hands, and removed her clothes; when she tried to raise an alarm, he slapped her and committed sexual assault upon her. After the incident, he threatened to kill her if she told anyone, and out of fear, she remained silent. On the night of 29.03.2016, at about 9:30 p.m., the appellant knocked on her door and asked her to open it; when she refused, he began banging on the door, and further threatened to break it down and force himself upon her. She then called the police, who arrived and took the appellant away. Her statement recorded by PW-9 under Section 164 Cr.P.C. to the same effect is exhibited as PW-1/C.

9. The prosecutrix was examined as PW-1 and reiterated the contents of her complaint and statement recorded under Section 164 Cr.P.C. She further deposed that she first informed the police about the incident on 29.03.2016 and subsequently disclosed the full details on 30.03.2016, adding that her statement was recorded three to four times. She stated that although she had consulted a doctor for chickenpox, she did not provide any medical papers to ASWAL the I.O. She mentioned that she had applied milk on her body just once, with the appellant assisting her in applying it only on her hands and legs, and not on her whole body.

10. The father of the appellant was examined as PW-2; however, he turned hostile. He corroborated PW-1’s testimony in part, insofar as the facts within his knowledge, deposing about the prosecutrix’s employment situation and confirming that he had gone to his village on 18.03.2016. He further stated that, on 30.03.2016, the prosecutrix had informed him that the appellant had raped her and that she had registered a case against him.

11. PW-5 is the doctor who conducted the medical examination of the prosecutrix and prepared her MLC (Ex. PW-1/B). She has deposed that the prosecutrix narrated to her a history of rape committed upon her by the appellant herein, which she recorded in the MLC. She has also confirmed in her testimony that the hymen of the prosecutrix was torn.

12. PW-8 collected the FSL report, which is exhibited as Ex. PW-8/J. The remaining witnesses were formal in nature and deposed to various aspects of the investigation.

13. The primary defence taken by the appellant is that he has been falsely implicated by the prosecutrix, as he had objected to her going out to meet her boyfriend and other persons who used to come to meet her in his absence. On a perusal of the record, this assertion is found to be bald and vague. No material has been placed before the Court to substantiate the claim that the prosecutrix was meeting anyone inappropriately or that such conduct led to any altercation which could have given rise to a motive to falsely implicate the appellant. The defence’s suggestion of false implication, being unsubstantiated, cannot by itself displace the consistent ASWAL account provided by the prosecutrix.

14. The contention that the prosecutrix’s statements lacked credibility as she gave 3–4 statements to the police, and that her statement dated 30.03.2016 (Ex. PW-1/A) was her second one, indicating improvement at the instance of the police, is without merit. The prosecutrix deposed that she had spoken to the police multiple times. However, the complaint (Ex. PW- 1/A) and the statement under Section 164 Cr.P.C. (Ex. PW-1/C) relied upon by the prosecution are consistent with her testimony before the Trial Court. Minor variations during the course of preliminary inquiry do not, without more, raise a presumption of tutoring or improvement, particularly when the core allegations remain unchanged. As regards the submission that DD No. 34A (Ex. PW-4/A) does not mention rape, this entry merely records the call received and the immediate response by the police; it is not the formal version of events given by the prosecutrix. The substantive allegations were recorded shortly thereafter in Ex. PW-1/A. The absence of detail in the initial DD entry does not discredit the subsequent complaint or the testimony of the prosecutrix.

15. The learned counsel for the appellant has relied on the FSL report (Ex. PW-8/J), which did not detect semen, and the MLC (Ex. PW-1/B), which recorded no external injuries and made no mention of chickenpox. However, it is well-settled that the absence of semen or injuries is not fatal to a prosecution under Section 376 IPC, as neither is an essential ingredient of the offence. Notably, the MLC confirmed that the hymen of the prosecutrix was torn. The silence of the MLC on the presence of chickenpox does not go to the root of the matter.