Aslam @ Akram vs The State (Nct Of Delhi)
2015 Latest Caselaw 3322 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 20th FEBRUARY, 2015
                           DECIDED ON : 24th APRIL, 2015

+                        CRL.A.No.577/2003

      ASLAM @ AKRAM                                     ..... Appellant

                         Through :   Mr.Shailender Dahiya, Advocate
                                     with Mr.Pradeep Ahlawat,
                                     Advocate along with appellant in
                                     person.

                         versus

      THE STATE (NCT OF DELHI)                          ..... Respondent

                         Through :   Mr.Navin K.Jha, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 21.07.2003 of learned Addl.

Sessions Judge in Sessions Case No. 63/2001 arising out of FIR No.40/01

PS Khajoori Khas by which the appellant - Aslam @ Akram was

convicted under Sections 366/376 IPC, he has filed the instant appeal. By

an order dated 22.07.2003, he was awarded RI for ten years with fine `

10,000/- each under Sections 366/376 IPC. Both the sentences were to

operate concurrently.

2. Briefly stated, the prosecution case as set up in the charge-

sheet was that on 25.02.2001 at about 07.00 P.M. from 20 Foota Road, A-

Block, Shree Ram Colony, the appellant kidnapped prosecutrix „X‟

(assumed name) a minor from the lawful guardianship of her parents

without their consent and thereafter sexually assaulted her. The police

machinery was set in motion when victim‟s father - Mustaq Ahmed

lodged Missing Person Report (Ex.PW-3/A) at 07.45 P.M. at Police

Station Khajoori Khas. SI Ajay Kumar along with HC Surender, Const.

Ram Gopal and Const. Devender, on receipt of the information,

immediately went to a deserted plot at Gokalpuri. The appellant was

found in the company of „X‟ who was lying naked there. The appellant

was arrested at the spot. The Investigating Officer after recording

statement of the victim‟s father - Mustaq Ahmed (Ex.PW-3/B) lodged

First Information Report by sending rukka (Ex.PW-15/A) at 12.45 A.M.

„X‟ was taken for medical examination. Statements of the witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against the accused for the

commission of the aforesaid offences. The prosecution examined sixteen

witnesses to establish its case. In 313 Cr.P.C. statement, the appellant

denied his involvement in the crime and pleaded false implication. The

trial resulted in his conviction as aforesaid. Being aggrieved and

dissatisfied, the appellant has preferred the instant appeal.

3. I have heard the learned counsel for the parties and have

examined the file. Indisputably, „X‟ aged around 6 / 7 years was

kidnapped and sexually assaulted. The crucial aspect for determination is

whether the appellant was the author of the crime. The prosecution

witnesses have given divergent and inconsistent versions. It has come on

record that the appellant was also involved in FIR No. 31/01 of PS

Khajoori Khas under Sections 363/376 IPC and Investigating Officer in

the said FIR was also SI Ajay Kumar, the Investigating Officer in this

case. In that case, SI Ajay Kumar had visited with the prosecutrix in the

said FIR to the spot where allegedly, he had sexually assaulted her. This

had led the Investigating Officer to suspect the perpetrator of the crime of

this FIR to be present at the said plot along with the prosecutrix „X‟.

Accordingly, PW-15 (SI Ajay Kumar) along with other police officials

immediately, on receipt of DD No.13A (Ex.PW-3/A), went there. Strange

enough, the appellant and the prosecutrix „X‟ were found at the said very

place which was earlier used by the appellant for committing similar

offence in case FIR No. 31/01 of PS Khajoori Khas. It is significant to

note that the appellant has been acquitted in the said FIR by a judgment

dated 04.10.2002. Learned counsel for the appellant in the written

submissions on record has stated that in para No.5 of the said judgment, it

was observed "It appears that the accused was arrested without any

rhyme or reason. It is well known that when one robber is arrested, the

police tries to involve him in untraced cases of robberies." In the said

judgment it was further observed that the Investigating Officer had made a

clumsy attempt to frame the accused in this case. It is further relevant to

note that the appellant was also implicated in another FIR No. 343/2000

P.S. Khajoori Khas under Sections 363/376/506 IPC. As per written

submissions on record, the appellant was acquitted in the said case vide

judgment dated 04.09.2001 and it was observed by the Court "Despite

sustained cross-examination on behalf of the State the said witnesses have

remained firm on the stand of neither naming nor identifying the accused

to be the person involved in the incident and parents of the prosecutrix

have gone to the extent of blaming the police authorities by saying that

they had handed over the real culprit to the police but police had let him

go off and fixed the accused (facing trial) in the present case." Still in

another FIR No. 280/2000 PS M.S.Park under Sections 363/376 IPC, the

appellant was acquitted. In para No.9 of the judgment dated 14.07.2003, it

was observed "The fact that how the accused was apprehended is still

shrouded in mystery."

4. In the instant case also apprehension of the appellant at the

very spot where he had sexually assaulted the victim in case FIR No.31/01

of the same police station is highly suspect. The witnesses have given

inconsistent and contradictory statements in this regard. The prosecutrix

„X‟, in her cross-examination, disclosed that the boy who had committed

the offence had gone away and he was subsequently apprehended by the

police and then showed to her. It belies the statement of the Investigating

Officer that both appellant and „X‟ were found red handed at the spot. As

per prosecution case, SI Ajay Kumar along with other members of the

police team inlcuding PW-4 (Saima) and PW-3 (Mustaq Ahmed) had

arrived at the spot soon after lodging of DD No.13A (Ex.PW-3/A).

However, PW-3 (Mustaq Ahmed), victim‟s father merely deposed that

when he had accompanied the police in search of „X‟, in Gokalpuri, the

girl was recovered with the appellant. He revealed that SI Ajay Kumar

told him that he had caught the accused when the prosecutrix was being

sexually assaulted. Apparently, PW-3 (Mustaq Ahmed) did not see the

commission of rape. He was informed of the apprehension of the accused

and the nefarious act committed by him by PW-15 (SI Ajay Kumar). As

per PW-15 (SI Ajay Kumar)‟s testimony when he allegedly reached the

spot, he found the accused present in the corner of a room on the said plot

where „X‟ was lying naked. He was not categorical to say that he had

witnessed the appellant committing rape upon the prosecutrix. In the

cross-examination, he admitted that at the time of his apprehension, the

appellant was not naked. PW-2 (Const. Ram Gopal) who had

accompanied the Investigating Officer gave a different version disclosing

that on their arrival at the spot, they found the appellant committing rape

upon „X‟. PW-1 (Const.Devender), another member of the raiding team,

did not state if the appellant was found doing any objectionable activity at

the spot. He merely stated that at the pointing of Saima - victim‟s sister,

the accused was apprehended. PW-11 (HC Surender) deposed that when

they went a vacant plot in Gokalpuri Extension, the appellant met them

with „X‟ there and was identified by Saima - victim‟s sister to be abductor

of her sister. PW-4 (Saima) merely deposed that when she accompanied

the police and her father in search of the accused, the accused was seen

going out of the door with her sister and was apprehended by the police.

The prosecution witnesses have given conflicting statements about the

apprehension of the accused and also whether he was indulging in any

sexual activity with „X‟ that time.

5. The occurrence took place at around 07.00 P.M. when „X‟

was allured by the assailant and was sexually assaulted therafter. In DD

No.13A (Ex.PW-3/A) recorded at 07.45 P.M., victim‟s father - Mustaq

Ahmed disclosed that he came to know about the kidnapping of his

daughter from his other daughter - Saima aged about 10 years. There is no

mention in the DD No. 13A (Ex.PW-3/A) and statement (Ex.PW-3/B) if

PW-4 (Saima) was in the company of the prosecutrix „X‟ at the time of

her kidnapping. PW-4 (Saima) claimed that she and her sister „X‟ were

going to her father when on the way, the accused took her with him to

Gokalpuri. She thereafter went to her father and informed about the

kidnapping. The prosecutrix „X‟, on the contrary, in examination-in-chief,

itself disclosed that none was with her at the time when the accused had

taken her to Gokalpuri on the pretext to get her toys. For the first time

PW-4 (Saima) in Court statement deposed that the kidnapper who had met

them on the way had told that he knew their father and would bring toys

for her sister - „X‟. He also wanted to give her ` 50 note which she

refused. In the cross-examination, she was confronted that her statement

(Ex.PW-4/DA) recorded under Section 161 Cr.P.C. where these facts did

not find mention. The prosecution witnesses have given contradictory

statements about the distance between the place of apprehension of the

accused and the police station. Admittedly, the appellant was beaten and

was medically examined. It is stated by the Investigating Officer that the

beatings were given by the public persons to the appellant after the

occurrence. Apparently, public witnesses who had allegedly beaten the

accused were available at the spot. However, for the reasons known to the

Investigating Officer, no such independent witness was associated in the

investigation. The factum of giving of beatings to the accused finds

mention in Ex.PW-3/B also. Delay in lodging the complaint has remained

unexplained. „X‟ was taken for medical examination at around 12.10 A.M.

despite her recovery at about 08.30 or 08.45 P.M. MLC (Ex.PW-8/A) of

the appellant records the arrival time for his medical examination at the

same very hospital (GTB Hospital, Delhi) at 11.45 P.M. FSL reports

(Ex.PW-14/A & Ex.PW-14/B) reveal that human blood of „A‟ Group was

detected on Ex.1a (Salwar), Ex.1b (Lady‟s shirt), Ex.3 (Pants). It is,

however, not clear if the blood group of the assailant was also of „A‟

Group. The semen stains were detected on Ex.1a (Salwar), Ex.1b (Lady‟s

shirt) and Ex.3 (Pants). However, its group could not be established to

connect the appellant with the crime. In the disclosure statement (Ex.PW-

1/C), it was recorded that earlier also the appellant had committed rape at

the same spot with other girls. It was further recorded therein that the

appellant had raped two more victims - A & B (assumed name) in the

other FIRs.

6. The investigation is defective and deficient. Statement of the

prosecutrix was not recorded under Section 164 Cr.P.C. No Test

Identification Proceedings were conducted to ascertain the identity of the

assailant when „X‟ categorically informed the Court that the boy who had

sexually assaulted her had gone away and the accused was brought

subsequent to that and was shown to her by the police. PW-3 (Mustaq

Ahmed) has gone to the extent to depose that Saima - her daughter had

informed that one „Murseleen‟ had taken away the prosecutrix. PW-5 (X)

further disclosed that the police had made a telephone call to her father

and he came later on at the spot. No incriminating material like blood /

semen was found at the spot to infer commission of rape there. No injury

was found on the private part of the appellant.

7. Appellant‟s conviction is primarily based upon the statement

of the prosecutrix „X‟. The Court is conscious that the sole testimony of a

rape victim is enough to base conviction. At the same time, it is settled

position of law that the statement of the prosecutrix must be of sterling

quality and is found to be credible and convincing. The evidence of a

child witness is to be evaluated carefully and with great circumspection

because a child is susceptible to be swayed by what others tell him / her

and thus he or she is an easy prey to tutoring. The Court has to assess as to

whether the statement of the victim before the Court is the voluntary

expression of the victim and that she was not under the influence of

others. Where there are two possible views one in favour of the accused

and other against him, the Court would invariably lean in favour of the

view favouring accused.

8. In the light of above discussion, the appellant deserves to be

given benefit of doubt. The appeal is allowed. The conviction and

sentence are set aside. Bail bond and surety bond stand discharged.

9. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE APRIL 24, 2015 / tr