CRL. LP No. 9/2008

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IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON: OCTOBER 31, 2011

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CRL. L.P. No. 9/2008 and Crl. M.A 818/2008

STATE

..... Appellant

Through: Mr. M.N. Dudeja, APP for the State

versus

MOHD. ASHRAF

..... Respondent

Through: None

CORAM:

MR. JUSTICE S. RAVINDRA BHAT

MS. JUSTICE PRATIBHA RANI

1. Whether the Reporters of local papers

YES

may be allowed to see the judgment?

2. To be referred to Reporter or not?

YES

3. Whether the judgment should be

YES

reported in the Digest?

MS. JUSTICE PRATIBHA RANI (OPEN COURT)

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1. By virtue of this petition, the State seeks leave to appeal against the judgment

dated 17^th August, 2007 of learned Additional Sessions Judge by which respondent

Mohd. Ashraf was acquitted of the charge of having committed an offence punishable

under Section 376/506 IPC. The facts of the case are that on 26^th March, 2005 at about

9.28 p.m. vide DD No. 49-B, P.S. Samai Pur, Badli was informed about the complaint

being received from Shabnam that her husband was doing „galat kaam‟ with her

daughter. The DD was marked to ASI Prem Singh for necessary action. The intimation

of the rape being committed was also given to WSI Parvati of P.S. Samai Pur, Badli who

also reached the spot and found ASI Prem Singh along with his staff present there. The

complainant Shabnam Begum along with her daughter, the child victim „R‟ (the name of

2011:DHC:5516-DB

CRL. LP No. 9/2008

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the child victim withheld) and her husband were found present. As per the complaint Ex.

PW-2/A, Mohd. Ashraf was the second husband of the complainant and she had two

children from her first husband Mohd. Ismail, after whose death, she married the

respondent Mohd. Ashraf. The complaint also said that on 24^th March, 2005, she was

away on work and when she returned home in the evening, her neighbour Salma

informed her that, at about 5 PM, (when she visited the complainant‟s house to take the

cooker), she saw the respondent doing „galat kaam‟ with her daughter. She questioned

the child victim who confirmed the same and further informed her that earlier too he had

done such said „galat kaam‟. When she asked the respondent why he had done so, he

threatened her. Again on 26^th March, 2005, in her presence, the respondent tried to do

„galat kaam‟ with the child victim under the influence of liquor and she informed the

PCR about the incident as well as the earlier incident of rape having been committed

upon her daughter three days back. After registration of FIR No. 231/05 at P.S. Samai

Pur, Badli in respect of the incident, the child victim „R‟ as well as the respondent were

sent for medical examination. Statements of the witnesses were recorded.

2. After completion of investigation, the charges of having committed the offences

punishable under Section 376/506 IPC were framed against the respondent to which he

pleaded not guilty. In order to bring home his guilt, the prosecution examined 10

witnesses. Out of these witnesses, the statements of PW-1 the child victim „R‟; PW-2 her

mother and complainant Shabnam Begum; and PW-3 Salma her neighbour are very

crucial to decide the present petition; their testimonies are to be considered in the light of

findings given by PW-4 Dr. Shakuntala on the MLC Ex. PW-4/A of the child victim.

3. After considering material discrepancies and improbabilities regarding the

occurrence and whether the „galat kaam‟ or rape was committed by the respondent, once

or more than once, whether there was a fatal delay in reporting the matter to the police

and whether the conduct of the eye witness PW-3 Salma in the facts and circumstances

was normal and probable, the Trial court arrived at the following conclusion:-

“(i)

the version narrated by the prosecution witnesses is inconsistent on

material aspects;

(ii)

it does not stand established that on 26.3.2005 the accused

com