Sallamuddin vs State
2013 Latest Caselaw 1047 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+              CRL.A. 954/2012 and Crl. M.B. No. 2118/2012
%                                            Reserved on: 21st February, 2013
                                             Decided on: 4th March, 2013
SALLAMUDDIN                                                ..... Appellant
                               Through:   Ms. Kanchan Kumari and Mr. R.N.
                                          Jha, Advocates.
                      versus
STATE                                                 ..... Respondent

Through: Mr. Manoj Ohri, APP.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present appeal, the Appellant impugns the judgment dated 24th July, 2012 convicting the Appellant for offence under Section 354 IPC and order on sentence dated 26th July, 2012 directing him to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs. 10,000/-. The receipt of payment of fine amount has been placed on record.

2. Learned counsel for the Appellant contends that there are material improvements in the statement of PW3 the complainant. Her husband and uncle, who were material witnesses and could have corroborated the version of the Complainant, have not been examined. The FIR was registered belatedly. No statement of the prosecutrix was recorded under Section 164 Cr.P.C. The Appellant was never performing the work of sorcery. Though on the same evidence, the learned Trial Court has acquitted the Appellant for offence under Sections 376/506 IPC however, he has been convicted for offence under Section 354 IPC erroneously. The Appellant has been falsely

implicated and thus he be acquitted of the offence punishable under Section 354 IPC.

3. Learned APP for the State on the other hand contends that on the basis of the statement of the prosecutrix PW3 the offence under Section 354 IPC is clearly made out. Despite cross-examining the Complainant at length, nothing has been elicited. Learned APP on instructions states that the State has not filed any appeal against the acquittal under Sections 376/506 IPC.

4. Heard learned counsels for the parties. FIR No. 546/2005 was registered at PS Samay Pur Badli on the complaint of PW3 the prosecutrix who stated that on 23rd July, 2005 she was present at her Jhuggi and was not well when somebody told her that a Mullah residing at Yadav Nagar can cure the problem. Her husband went and called the Appellant to the jhuggi. The Appellant sent her husband to Shiv Mandir for fetching water. After sending her husband, the Appellant made her to eat five cloves. Thereafter he covered her mouth with a black cloth and forcibly committed rape on her and threatened that in case she would raise an alarm he would kill her. After committing rape, the Appellant ran away from the jhuggi. When her husband came back from Shiv Mandir, she narrated the whole incident to him. Thereafter she went to Police Station along with her husband where her statement Ex. PW3/A was recorded. In the cross-examination this witness admitted that the Appellant Salamuddin was working as a kabari. She further admitted that her father-in-law was sitting outside the jhuggi when the Appellant came to her jhuggi. On cross-examination when asked about how rape was committed, this witness stated that her sari was lifted and repeated penetration was done three-four times. She denied the suggestion that the accused has been falsely implicated in order to take revenge as he

did not give the price of waste iron which she wanted to sell to him and he had quarreled with her. The learned Trial Court observed that in her statement to the police this witness has only stated that her breast was touched by the Appellant and thus FIR was registered only under Section 354 IPC and a charge sheet was filed thereon. Since during the course of examination PW3 made statement with regard to rape, the case was committed to the Court of Sessions. On committal, the Court of Sessions after hearing on the point of charge, framed a charge under Section 376/506 IPC.

5. In the FIR Ex. PW1/A the prosecutrix stated that since she was suffering from the effect of evil spirits, somebody told her about a Mulla of Yadav Nagar who used to do sorcery and give relief. So on 23rd July, 2005 her husband called the Mulla to her jhuggi when her uncle was sitting outside. Her husband was sent by the Mulla to bring water from Shiv Mandir situated little away from the jhuggi. The Mulla kept three cloves in her hand and told that "you make a remembrance of kali mai as you are under the effect of three planets which will be removed". Her head was covered with a black towel and he started touching her breast and started doing the wrong acts. When her husband came, since she was ashamed she did not disclose this incident to her husband and later on 28 th July, 2005 she disclosed it to her husband who took her to the police station where her complaint was recorded. The learned trial court held that the testimony of the prosecutrix cannot be relied upon since there were material improvements in her statement from her earlier statement and even the factum of threatening was totally missing in Ex. PW3/A. Further the prosecutrix raised no alarm, despite the fact that her uncle was sitting

outside. Moreover, the prosecutrix was not medically examined by the police officer before or after recording her statement Ex. PW3/A. In view of the belated statement, the learned Trial Court acquitted the Appellant under Sections 376/506 IPC. However, in view of the act of accused/Appellant Sallamuddin of touching the breast of the prosecutrix and using criminal force against her with intention to outrage her modesty, the Appellant was convicted under Section 354 IPC. It may be noted that in her statement before the Court, the prosecutrix nowhere stated that the Appellant after covering her mouth with black cloth touched her breast. Her statement in Court is of committal of rape and not touching the breast. On the basis of the statement of the prosecutrix in the FIR, the learned Trial Court could not have convicted the Appellant for offence under Section 354 IPC. In view of the aforesaid discussion, the Appellant is entitled to be acquitted of the charge under Section 354 IPC. The impugned judgment dated 24th July, 2012 and the order on sentence dated 26th July, 2012 are set aside. The Appellant, who is in custody, be released forthwith, if not required in any other case.

6. The appeal is disposed of. Consequently, the application for suspension of sentence is dismissed as infructuous. Trial Court record be sent back forthwith.

(MUKTA GUPTA) JUDGE March 04, 2013 'vn'