Mohd Ishtar @ Istak & Anr v. State

SANGITA DHINGRA SEHGAL, J. OCTOBER 25, 2017 gr//

IN THE HIGH COURT OF DELHI AT NEW DELHI + Judgment reserved on:12thOctober,2017 Judgment pronounced on: 25thOctober,2017 MOHD. ISHTAR @ ISTAK & ANR ....Appellants Through: Mr. Sitab Ali Chaudhary, Amicus Curiae, (Advocate) for appellant No.1 Mr. Arvind Kumar, Advocate for appellant No.2 versus STATE ....Respondent Through: Mr. Ashok Kumar Garg, APP for the State. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL 1. The present appeal has been instituted by the appellants under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") against the impugned judgment dated 13.11.2013 and order on sentence dated 18.11.2013 passed by the Court of Additional Sessions Judge (hereinafter referred as "ASJ"), Special Fast Track Court (North West District), Rohini Courts, Delhi in case FIR No. 187/2011 registered at Police Station - Kanjhawala, New Delhi, whereby the appellants were convicted under Section 376(2)(g) and 506 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo rigorous imprisonment of ten years and a fine of Rs.10,000 for the offence punishable under Section 376(2)(g) IPC and in default of payment of fine, to further undergo two years rigorous imprisonment. The appellants were further sentenced to undergo rigorous imprisonment of five years with a fine of Rs.5000/- for the offence punishable under Section 506 of IPC and in default of payment of fine the appellants shall further undergo rigorous imprisonment for one year. 2. The case of the prosecution as observed by the ASJ, vide its order dated 13.11.2013 is : - "That on 01/08/2011, SI Rajesh Kumar on receipt of DD No.26A in the Police Station Kanjhawala met the complainant/prosecutrix and made inquiries from her who told about the committal of galat kaam with her, on which she, accompanied by L/Constable Anita, was taken to Sanjay Gandhi Hospital where her medical examination was got conducted vide MLC No. 1073/11, on the MLC the doctor has endorsed, "Brought for medical examination as victim in case of sexual assault today". The sealed pullindas handed over by doctor after her medical examination were taken into police possession. Thereafter, prosecutrix accompanied by L/Constable Anita came back to the Police Station, where NGO Anuradha was also found present. In the presence of NGO Anuradha, prosecutrix (namely withheld being a case u/s 376 IPC) W/o Ram Milan R/o Umed Master Ka Makan near Hira Lal School, Madan Pur Dabas, Delhi, permanent address; Dev Raha, PS- Jatara, District Teekamgarh (M.P.) made the statement which is to the effect that, she along with her family lives on rent and does the labour work (Mehnat Mazdoori Ka Kaam) with her husband. Today on 01/08/2011 she was at her house only as for the last 2-3 days she was not getting any work and today at about 11:00-12:00 noon in the day time she was going to collect her balance wages and was passing through 35 Foota road and when on that road she reached near Masjid situated on that road, on the way, two persons namely Mohd. Mustkim and Mohd. Ishtar who does the masonery work, to whom she was knowing previously met, who after alluring her, took her in that house where they used to work (Aaj Dinank 01/08/2011 Ko Main Ghar Par Thi Kyonki Pichle Do Teen Se Koi Kaam Nahi Mil Raha Tha Main Aaj Waqt Kareeb 11:00-12:00 Baje Din Apni Pehle Ki Bakaya Mazdoori Lene Ke Liye 35 Foota Road Par Ja Rahi Thi Ki Jab Main Us Road Par Stith Masjid Ke Paas Pahunchi To Mujhe Raste Mei Do Shakhs Jinke Naam Mohd. Muskeen Va Mohd. Ishtar hain Jo Dono Raaj Mistry Ka Kaam Karte Hain Va Jinko Mian Pehle Se Jaanti Hu Mujhe Mile Aur Behla Fusla Kae Mujhe Us Ghar Mei Le Gae Jahan Ye Dono Kaam Karte The) and where firstly Mustkim and then, Mohd. Ishtar committed galat kaam with her and when she tried to save herself from them, on which Mustkim pressed her mouth and threatened if she tried to scream then they will kill her and thereafter, they turn by turn had committed ga