Delhi High Court
Suman @ Mohd Hasan vs State on 4 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th September, 2018
% Decided on: 4th October, 2018
+ CRL.A. 981/2017
SUMAN @ MOHD HASAN ..... Appellant
Represented by: Ms. Naomi Chandra, Advocate
versus
STATE ..... Respondent
Represented by: Mr. Ashok K. Garg, APP for
the State with SI Prity Bala, PS
New Friends Colony.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. By the present appeal, Suman @ Mohd. Hasan challenges the
impugned judgment dated 29th August, 2017 convicting him for the offences
punishable under Sections 452/506/325/366/354B and Sections 376/511 IPC
and the order on sentence dated 8th September, 2017 directing him to
undergo rigorous imprisonment for a period of three years and to pay a fine
of ₹5,000/-; in default whereof to undergo simple imprisonment for a period
of three months for the offence punishable under Section 452 IPC, rigorous
imprisonment for a period of one and a half year and to pay a fine of
₹3,000/- and in default whereof to undergo simple imprisonment for a
period of two months for the offence punishable under Section 506 IPC,
rigorous imprisonment for a period of three years and to pay a fine of
₹10,000/-; in default whereof to undergo simple imprisonment for a period
of four months for the offence punishable under Section 325 IPC, rigorous
imprisonment for a period of three years and to pay a fine of ₹7,000/-; in
default whereof to undergo simple imprisonment for a period of four months
for the offence punishable under Section 366 IPC, rigorous imprisonment
for a period of three years and to pay a fine of ₹5,000/-; in default whereof
to undergo simple imprisonment for a period of three months for the offence
punishable under Section 354B IPC and rigorous imprisonment for a period
of four years and to pay a fine of ₹10,000/-; in default whereof to undergo
simple imprisonment for a period of six months for the offence punishable
under Section 376/511 IPC.
2. Learned counsel for the appellant submits that there are variations in
the testimonies of witnesses as to how the appellant entered the house at
1:30 A.M. There were two versions of the prosecution story, one that
appellant threatened the husband of the prosecutrix and he ran away and the
other that the husband of the prosecutrix chased the appellant. The two
relatives have not been examined as prosecution witnesses. Since the
prosecutrix became unconscious, she would not have known what had
happened. Husband of the prosecutrix was the only eye witness, who
purportedly saw the prosecutrix in a naked condition and the appellant lying
on top of her. Though there were public witnesses when the prosecutrix was
recovered in the aforesaid condition, however, they have not been examined.
Injury was due to the fall and not due to sexual offence. Lastly, even on the
basis of the evidence on record, no sexual offence has been made out.
3. Learned APP for the State submits that the statement of the
prosecutrix that the appellant pushed her was corroborated by her husband
(PW-2). Further, the prosecutrix was found in naked condition in the
godown and semen was found on the underwear of the appellant proving the
case of the prosecution. There was recovery of knife and the appellant was
apprehended at the spot. Thus the appeal be dismissed.
4. Police machinery was set into motion on 5th April, 2015 at 2:04 A.M.
on receipt of information that one lady from Jhuggi No. 365, Taimur Nagar
had been taken to the jungle. Aforesaid information was recorded vide DD
No. 5A (Ex.PW-4/D) and was assigned to SI Janak Singh. He along with
Ct. Mahender went to pahari No.2, Taimur Nagar and met the husband of
the prosecutrix. He with the help of the husband of the prosecutrix and
public persons tried to search the prosecutrix. When they reached the
godown of Siraj, public persons present there told him that Suman @ Mohd.
Hasan was lying on that lady in a naked condition and the clothes of the
prosecutrix were also disturbed. Suman @ Mohd. Hasan was apprehended
and at that time he was in his underwear only. The prosecutrix was without
clothes. Suman @ Mohd. Hasan was taken to the police station and the
prosecutrix was taken to the hospital. The doctor declared her unfit for
statement. Her MLC was collected. Statement of husband of prosecutrix
was recorded vide Ex.PW-10/A on which FIR No. 133/2015 (Ex.PW-4/A)
was registered at PS New Friends Colony for offences punishable under
452/323/506/365/376 IPC.
5. SI Sajjan Kumar, Incharge Crime Team, along with SI Janak and
W/SI Seema went to Taimur Nagar Jhuggi, inspected the spot and lifted the
blood samples. A salwar of a lady was also found at the jhuggi. Thereafter,
they went to the vacant plot where a pink colour upper garment of a lady and
a yellow colour t-shirt of a man were found. Aforesaid articles were seized
vide seizure memo Ex.PW-13/G. One mobile phone of make Samsung was
also recovered from the pant of Suman @ Mohd. Hasan which was also
seized vide seizure memo Ex.PW-13/H. Spot was photographed vide
Ex.PW-14/P1 to Ex.PW-14/P13 and a report on the spot was prepared vide
Ex.PW-11/A.
6. Suman @ Mohd. Hasan was arrested vide arrest memo Ex.PW-2/B.
His personal search was conducted vide Ex.PW-13/A and disclosure
statement was recorded vide Ex.PW-13/B. Pointing out memo of the place
of incident was prepared at the instance of Suman @ Mohd. Hasan vide
Ex.PW-13/C. A knife was recovered from the godown of Siraj at the
pointing out of Suman @ Mohd. Hasan which was seized vide seizure
memo Ex.PW-13/E. On 13th April, 2015, the exhibits were sent to FSL.
7. On 17th April, 2015, an application vide Ex.PW-16/D was moved
before the Magistrate for recording of statement of prosecutrix under
Section 164 Cr.P.C. who got recorded her statement on 5th May, 2015, after
another application vide Ex.PW-8/A was filed before the Magistrate for
recording of her statement.
8. Prosecutrix (PW-1) stated that on 5th April, 2015 at about 1:30 A.M.,
when she, her husband and children were sleeping in the house, they heard
the noise of knocking on the door. When they asked who was knocking,
they got to know that he was the brother of her husband. Her husband
opened the door. Suman @ Mohd. Hasan entered the house and bolted the
door from inside. He was carrying knife and revolver. He asked her to
remove the clothes and then threatened her husband with the knife. She
started shouting from the room. Suman @ Mohd. Hasan made her fall on
the ground and she became unconscious. Her husband ran away from the
house to save his life. She came into senses in the hospital. She stated that
she came to know from people that she was lying naked near the nala of her
house.
9. Husband of prosecutrix (PW-2), deposed in sync with the testimony
of the prosecutrix. He further stated that when Suman @ Mohd. Hasan
pounced upon his wife, she fell from the first floor to the ground floor and
sustained injuries on the head. He escaped from the jhuggi and raised hue
and cry to awake the neighbours. During search of his wife, she was found
in a straw godown at pahari No. 1. When he saw her wife, she was in naked
condition and Suman @ Mohd. Hasan was lying on her.
10. Dr. Indrajit (PW-3), SR Medicines, JPN Trauma Centre, AIIMS,
Delhi deposed that he observed six injuries on the person of the prosecutrix
which are noted below:
i. Wound 1 Abrasion right forehead right temporal and
maxillary region
ii. Wound 2 Laceration right fronto-temporal region 5 X
0.5 cm
iii. Wound 3 Other contusion over the right shoulder
acromial process 3 X 3 cm
iv. Wound 4 Abrasion right knee small abrasion 2 X 1 cm
v. Wound 5 Abrasion right forearm flexor aspect linear
abrasion 2 cm
vi. Wound 6 Swelling over the left wrist
11. Injuries on the prosecutrix were opined to be grievous as she had
suffered occipital sub dural hemotoma with occipital sub arachnoid
hemorrhage. MLC was proved vide Ex.PW-3/A and discharge summary
vide Ex.PW-3/B.
12. Ms. Imrana (PW-15), Sr. Scientific Officer (Bio), FSL Rohini, New
Delhi stated that on examination, no male DNA profile could be generated
from the source of Ex.1 and Ex.2 (vaginal slide and swab of prosecutrix) and
Ex.10b (salwar of prosecutrix). Male DNA profile generated from the
source of Ex.7 (underwear of appellant) was similar with DNA profile
generated from Ex.4 (blood in gauze of the appellant). Detailed report was
proved vide Ex.PW-15/A.
13. Jaunesh (PW-6) and Jeetu (PW-7), neighbours of the prosecutrix,
were declared hostile.
14. Appellant has not been charged of the offence of rape but attempt to
rape, hence non-accounting of the male DNA in the vaginal smear of the
prosecutrix is immaterial. From the evidence of the prosecutrix it is evident
that Suman @ Mohd. Hasan came to their house at midnight, threatened
them making the prosecutrix fall down resulting in her becoming
unconscious and receiving injuries. Further, offences committed by Suman
@ Mohd. Hasan have been narrated by the husband of the prosecutrix who
stated that he went out for help and when they came back, found her
missing. When they searched her, she was found in a naked condition with
Suman @ Mohd. Hasan lying on her. Version of the prosecutrix is
corroborated by her husband and injuries received. Further version of the
husband of the prosecutrix is corroborated by the recovery of the clothes of
the prosecutrix from the place of incident as also the first PCR call made and
proved as Ex.PW-4/D.
15. Contention of learned counsel for the appellant that there is variation
in the testimony of the prosecutrix and her husband qua his running away
from the spot has been duly explained by her husband who ran to call people
for help, one of whom made the PCR call. Further, because public
witnesses have not supported the case of the prosecution, does not belie the
version of the prosecutrix and her husband.
16. In view of the discussion aforesaid this Court finds no ground to
interfere in the impugned judgment of conviction and order on sentence.
Appeal is dismissed.
17. Copy of this order be sent to Superintendent Central Jail, Tihar for
updation of the Jail record.
18. TCR be returned.
(MUKTA GUPTA)
OCTOBER 04, 2018 JUDGE
'rk'
