Delhi District Court
State vs . (1) Shiv Ram on 2 November, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 66/2012
Unique Case ID: 02404R0316112011
State Vs. (1) Shiv Ram
S/o Jadu Ram
R/o House No. 8,
Swayam Swidha Colony,
Punjabi Bagh, Delhi.
(2) Baldev Jaiswal
S/o Ram Sunder Jaiswal
R/o M52, Vishnu Garden
Shyam Nagar, Delhi.
(3) Baba Bamdev
S/o Rajender Prasad
R/o 3181, Mahendra Park
Rani Bagh, Delhi.
Permanent Address: ITI Bajra
Hehal, Post Hehal, PS Pandra,
Distt. Ranchi, Jharkhand
FIR No. : 175/2011
Police Station : Rani Bagh
Under Section : 376 (2) (g)/506/328 Indian Penal
Code.
Date of committal to Sessions Court : 13.08.2012
Date on which orders were reserved : 02.11.2012
Date on which judgment pronounced : 02.11.2012
State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 1 of 49
JUDGMENT
(1) As per the allegations, on 2.6.2011 at 9 to 10 PM at House No. Rani Bagh, the accused Shiv Ram, Baldev Jaiswal and Baba Bamdev in furtherance of their common intention administered some stupefying or intoxicant in the Pepsi (Cold Drink) to the prosecutrix 'S' (name of the girl is withheld being the case under Section 376 IPC), and thereafter they committed gang rape upon her and also criminally intimidated her to kill her if she discloses the incident to anybody.
Case of prosecution in brief:
(2) The case of the prosecution is that on 19.6.2011 at 7:18 PM a call regarding rape was received at Police Station Rani Bagh vide DD No. 24A pursuant to which SI Govind along with Ct. Shri Bhagwan reached House No. 3089 Mahendra Park, Rani Bagh which house was found locked and met a girl 'S' aged 23 years, daughter of Vinod Munda, R/o Village & Post Office Kumohari, Distt. Gumla, Jharkhand and also residing at A154, Sudershan Park, Moti Nagar, Delhi. The prosecutrix 'S' gave her statement to the police wherein she informed them that she used to come Delhi for the last 67 years for doing job and in December 2010 she had come Sudershan park Moti Nagar along with one Salmi in search of job. According to the prosecutrix 'S' she knew one Baba Bamdev for the last 2 ½ years as State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 2 of 49 he is running an NGO by the name of Jharkhand Nyaya Manch. She informed the police that on 2.6.2011 Baba Bamdev came to the house of Salmi when she (the prosecutrix) told him that she is not doing any job on which Baba Bamdev told the prosecutrix that he was residing alone at House No. 3089, Mahendra Park,, Rani Bagh and offered her a job at his house. She also told the police that thereafter she came to the house of Baba Bamdev where he asked her to cook some more food as his friends were coming to his house. At about 9:10 PM Shiva Ram who is running an NGO by the name of Sewa Bharti Sansthan and one Baldev came to his house. They were carrying a bottle of liquor and Pepsi with them. It is alleged by the complainant that thereafter these persons i.e. Shiv Ram, Baldev Jaiswal and Baba Bamdev offered Pepsi to her and compelled her to consume the same. After she consume the same, she started feeling nauseated and hence went inside to the other room and lay on the bed after which she lost her consciousness. According to the complainant, first the accused Baba Bamdev removed her clothes and committed rape on her, thereafter his friends Baldev Jaiswal and Shiva Ram also similarly committed rape on her. She further alleged that when she got up in the morning she did not find any clothes on her body and when she questioned Baba Bamdev he threatened her with dire consequences and to kill her in case if she informed about the incident to anybody. According to the prosecutrix, she remained State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 3 of 49 silent on account of this threat but on 19.6.2011 when she went to the Punjabi Bagh Church to attend to the Sunday prayers she met one Ranjeeta whom she knew previously. She confided in Ranjeeta about the incident. Thereafter she was encouraged by Ranjeeta and feeling confident she made a call to 100 number.
(3) On the basis of the statement of the prosecutrix the present case was got registered after which her medical examination was got conducted and her statement was got recorded under Section 164 Cr.P.C. on 25.6.2011 wherein she supported the aforesaid version given by her to the police. The accused Shiv Ram, Baldev Jaiswal and Baba Bamdev were arrested on the basis of these allegations made by the prosecutrix. However, the prosecutrix again appeared before the Ld. MM on 26.7.2011 and made a statement under Section 164 Cr.P.C. wherein she informed the Ld. MM that in her earlier statement under Section 164 Cr.P.C. recorded on 25.6.2011 she had given an incorrect/ false version as she was under pressure from some persons namely Anil Jaiswal, Vikesh Chauhan and Munna Kaushik. According to her, when she was staying at Moti Nagar, Vikesh Chauhan and Anil Jaiswal had taken her to some house at Shakurpur on the pretext of getting her a job where they met Munna Kaushik and Vinod Tyagi. There all these persons had shown the photographs of three persons (the accused before this Court) and asked her to make allegations of rape against them but when she State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 4 of 49 refused they threatened to kill her and her family at Jharkhand. She told the Ld. MM that it was under their pressure that she had made this false complaint. She clarified to the Ld. MM that the accused persons namely Shiv Ram, Baldev Jaiswal and Baba Bamdev had not committed any rape upon her and further clarified to him that rather she had never met the accused at any point of time. She further told the Ld. MM that she had now shifted to Sarita Vaihar from Moti Nagar and as soon as the pressure of these persons (Vikesh Chauhan and Anil Jaiswal) was removed from her, she came to the court at the first instance to inform the court about the correct position.
(4) After completion of investigations charge sheet was filed against all the accused namely Shiv Ram, Baldev Jaiswal and Baba Bamdev for the offence under Section 376 (2) (g)/506/328 IPC. CHARGE:
(5) Charge under Section 328/376 (2) (g)/506 Indian Penal Code was settled against the accused Shiv Ram, Baldev Jaiswal and Baba Bamdev to which they pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has examined as many as twenty witnesses as under:
State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 5 of 49
Public witnesses/ prosecutrix:
(7) PW15 Shri Swatantra Dikshit has deposed that he is residing at H. No. 3090, Mahendra Park, Rani Bagh, Delhi since his birth and he is working as a Pujaari and is owner of the H. No.3089 and H. No.3090. According to him the H. No. 3089 has been given on rent to Baba Baam Dev, (accused who has been correctly identified by the witness). He states that Baba Bam Dev and he had vacated the said house in the month of June, 2011 either in 5th or 6th the exact date he do not recollect. Witness has further deposed that the police had come to his house in the month of June for interrogation perhaps it was 08 or 09 and that time the said house was vacant and as on date the said premises has been given on rent and some family has been residing.
(8) Leading questions were put to the witness by the Ld. APP with due permission of the court wherein for the state, witness has admitted that accused Baba Bam Dev vacated the house on 08.09.2011. According to him he did not recollect the exact date. He has also stated that and he do not recollect if the police had recorded his statement on 23.09.2011 and has voluntarily explained that they had come to his house on two three occasions but date on which his statement was recorded he does not recollect.
(9) In his cross examination by Ld. defence counsel, witness has deposed that there was no written agreement regarding tenancy State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 6 of 49 between him and the accused and the house given on rent of two room sets. Witness has further deposed that the accused remained in his premises for about five to six months and he did not give any rent receipt to him. According to him he used to receive rent by cash and he had given the premises on rent to him in the month of January, 2011 and he did not visit the family/ house of Baba Baam Dev. Witness has further deposed that the accused used to give rent to him by coming to his house and there were no complaints. Witness has denied the suggestion that he used to frequent the house of the accused to collect rent. According to him he cannot tell if there was no furniture including bed in the house of the accused and has voluntarily explained that he never entered in the house till the house in his possession. Witness has further deposed that he was not present at the spot when he vacated the house and he was present and he took over the possession of the house and put his articles. According to him he did not see the accused bringing any furniture including bed when he took the possession and has voluntarily explained that he just given a key of the said premises to Baba Baam Dev. Witness has further deposed that he does not know if Baba Baam Dev was present in the premises on 02.06.2011 or not. Witness has denied the suggestion that he was deposing falsely on the instructions of the Investigating officer.
State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 7 of 49 (10) PW16 Ranjeeta has deposed that she is residing at A482/83, Shakurpur, Delhi for last 3 years along with family comprising of her husband, two sons and she had vacated the said house for two months i.e. June and July, 2011. According to her on 19.06.2011 which was a Sunday she had gone to the Punjabi Bagh Church where she met the prosecutrix 'S' who was known to her previously as she had frequently seen her in the Church. She has deposed that there the prosecutrix informed her that about 20 to 22 days back she was called by Baba Baam Dev to his house for cooking meals and when she went to the house of Baba Baam Dev there she also found two others persons Baldev and Shiva Ram. She further told her that after cooking the meals she was asked by these persons to cut the salad. Soon thereafter, these persons offered a Pepsi to her and when she (prosecutrix) consumed this Pepsi she lost her consciousness. According to the witness, the prosecutrix 'S' further told her that when she got up in the morning after regaining her consciousness she did not find any clothes on her body. Witness has further deposed that on hearing this she (witness) told her (prosecutrix 'S') she told her that they will go to see the house of these persons "maine usko kaha jaake dekhenge". Witness has further deposed that in the evening she received a call from 'S' at around 4 4:30 PM and she went to Britannia Chowk where she met her and from there,'S'took her to Mahendra Park Chowk and then to State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 8 of 49 a Mata Mandir. Adjoining the Mandir there was a house which was locked and 'S' pointed out the said house as the one where she had gone on the calling of Baba Baam Dev. According to her on finding the house locked, she started crying when a large number of persons collected and somebody made a call on 100 number and thereafter, she along with prosecutrix 'S' went to Police station Rani Bagh and she can identify the accused whom 'S' had named. The witness has correctly identified all the accused in the court and states that she can identify them because she has seen them in the various functions in the Church. She has clarified that 'S' states had not pointed out the accused in her presence.
(11) On a court question if she knew the accused persons previously, witness has denied the same and has stated that she was told about by 'S' and it was then that she came to know them after the registration of the case though she had seen these persons earlier in the Church. On a further court question the witness has clarified that the prosecutrix 'S' was not employed with Baba Baam Dev but she (witness) was told that she (prosecutrix) often used to go to his house on his call to cook meals for him.
(12) During her cross examination by Ld. defence counsel, witness has deposed that she did not tell the police whatever she has stated to the court regarding 'S' informed her that about 20 22 days before she was called by Baba Baam Dev to his house for cooking on State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 9 of 49 which she went to the house of Baba Baam Dev where she also found two others persons Baldev and Shiva Ram. According to her she also did not tell the police that'S'further told her that after cooked meals she was asked by these persons to cut the salad and that thereafter, these persons offered a pepsi and when 'S' consumed the pepsi she lost her consciousness and that in the morning when she got up and regained her consciousness she did not find any clothes on her body. According to her she also did not tell the police that on hearing this she told'S'that they will go and see the house of these persons "maine usko kaha jaake dekhenge" or that in the evening she received a call from 'S' at around 4 4:30 PM and she went to Britannia Chowk where she met her and from there, 'S' took her to Mahendra Park Chowk and then to a Mata Mandir. According to her she also did not tell the police that adjoining the Mandir there was a house which was locked and 'S'pointed out the said house as the one where she had gone on the calling of Baba Baam Dev and on finding the house locked, she started crying, a large number of persons collected and somebody made a call at 100 number. Witness has denied the suggestion that'S'did not tell her all these things and it was this reason that she did not disclose the same to the police earlier. Witness has denied the suggestion that she has improved upon her statement only to armtwist the accused persons and falsely implicated. Witness has denied the suggestion that the entire incident State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 10 of 49 has been concocted, fabricated or that no such incident has happened. (13) Witness has further deposed that when she went to the Church her family members were also with her and 'S' did not disclose this incident to her in the presence of her family. According to her she did (witness) not disclose to the Priest of the Church or to the sisters present there as to what 'S' had told her. Witness has further deposed that 'S' was known to her for about one and half years prior to this incident. Witness has admitted that she was not aware of the personal details of prosecutrix 'S' and has voluntarily explained that she had only met her in the Church. According to her, she also did not disclose to her husband and her family members to what 'S' had told her. Witness has further deposed that her husband is running a placement agency at Shakurpur under the name and style of J.R. Enterprises which is a registered agency but she did not have the details of registration. He has admitted that even previously she has appeared before another court and has voluntarily explained that she had gone to Court No.102. The witness has further explained of her own that the said case was pertaining to a minor being put under employment through a placement agency. Witness has denied the suggestion that accused Baba Baam Dev is running an NGO and her husband is having a professional rivalry with him there being a clash of interest as his NGO is rescuing tribal from the exploitation of their placement agency. Witness has denied the suggestion that State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 11 of 49 prosecutrix 'S' had been associated with her husband's placement agency and she and her (prosecutrix 'S') husband used her against the accused. According to the witness she did not know any Salmi. She has further deposed that after coming to know about the incident she did not make any telephone call to the police from the Church nor she informed any authority. According to her from the Church she came back home alongwith her family but she did not inform anybody about what 'S' had told her. Witness has admitted that when she reached the house of the accused as pointed out by 'S' a large number of public persons gathered at the spot and some neighbour had told her that prosecutrix 'S' frequently came to the house of the accused. She has thereafter voluntarily explained that they told her that she (prosecutrix 'S') came here for cooking meals. According to her the person who informed her that 'S' frequently came to the house of the accused was the neighbour who was residing at the top floor of the same building where the house of the accused was situated. Witness has further deposed that she did not enter in the house because it was locked and has voluntarily explained that later when the police came they entered the house and found there was nothing in the house except a Setty for sitting purposes. According to the witness it was the owner of the property/ Panditji who opened the lock. She has stated that she went to the Britannia Chowk alone. State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 12 of 49 (14) According to the witness she is not aware if any Munna Kaushik, Vikesh Chauhan, Anil Jaiswal and Vinod Tyagi are friends of her husband. She is also not aware if Munna Kaushik is also running an NGO at Shakurpur and has voluntarily explained that she is aware of the names of these persons (i.e. Munna Kaushik, Vikesh Chauhan, Anil Jaiswal and Vinod Tyagi) because they are the local netaas and their photographs are normally pasted all over the area at the time of Elections. According to her Prior to the day when 'S' had disclosed the incident to her she was not coming to the church and has voluntarily explained that she had seen her only on 2 3 occasions and from last one and a half years. Witness has denied the suggestion that 'S' has been used by these local netaas in connivance with herself and her husband to falsely implicate the accused persons being political and professional rivals. Witness has denied the suggestion that she was deposing on the tutoring and asking of the Investigating officer, his husband and his associates i.e. Munna Kaushik, Vikesh Chauhan, Anil Jaiswal and Vinod Tyagi. (15) PW18 is the Prosecutrix 'S' who has deposed that she used to come to Delhi from 6 7 years before and in every year after working as a maid servant in the houses she returns back to her village. According to her she is known to Salmi original resident of Torpa, Jharkhand who was also residing Sudarshan Park, Motinagar, Delhi. Witness has further deposed that she did not remember the State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 13 of 49 date and month but in the year 2011 that she had again came to Delhi for work as a maid servant and she stayed with above said Salmi at Sudarshan Park, Motinagar, Delhi and there was a placement agency below the house of the Salmi where she approached Vikesh Chauhan, owner of the placement agency for work. According to her on 19th day of month she does not remember in the year 2011 Vikesh Chauhan took her to Shakurpur in a room where 3 persons namely Munna Kaushik, Vinod Tyagi and Anil Jaiswal were already present and they showed photographs of three persons to her and told her that these three persons shown in the photograph were to be falsely implicated in a rape case which she refused. However, these persons threatened to kill her and also to kill her parents and other family members at her village as they (the said persons) were aware of her original address. Witness has further deposed that thereafter, they took her to the Rani Bagh at the house of Baba Baam Dev and the above said four persons disclosed the name of the persons shown in the photograph to him as Baba Baam Dev, Shiva Ram and Baldev Jaiswal. According to her, the above said Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal dialed the number of the police and thereafter, on their instructions she spoke to the police and it was on their instructions that she told the police that rape had been committed upon her. Witness has further deposed that police came at Rani Bagh and took her to the Police State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 14 of 49 station Rani Bagh and police made inquiries from her. Thereafter the police also took her to the hospital and she was medically examined there. Her statement was thereafter recorded at the Police station Rani Bagh and on the next day, she reached at the house of Salmi. Witness has further deposed that after 2 3 days she ran away from the house of Salmi and went to Sarita Vihar in the house of Raju a resident of his village. The witness i.e. prosecutrix 'S' has deposed that she had earlier given her statement to the Ld. MM, Rohini on the instructions of Anil Jaiswal before going to Sarita Vihar at the house of Raju. Witness has further deposed that after 23 days of reaching at the house of Raju she again moved an application before Ld. MM for recording of her statement since she wanted to tell / disclose the true facts before Ld. MM and it was thereafter that the Ld. MM, Rohini Courts recorded her statement which, in fact, was true. She deposed that thereafter she went to her Village Jharkhand. (16) During her cross examination by Ld. APP, witness has deposed that she had studied upto class five and she has four brothers and two sisters. She has stated that parents are farmers and they are not doing any other employment and her elder brothers are unemployed. According to her, she used to come to Delhi at any time after completion of one year but in the year 2011 she came to Delhi in the middle of the year. Witness has further deposed that Vikesh Chauhan did not provide any job to her. She is unable to tell State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 15 of 49 the name of placement agency of Vikesh Chauhan. Witness has denied the suggestion that Vikesh Chauhan was not having any placement agency or that she never met any Vikesh Chauhan for her job and that is why this person namely Vikesh Chauhan did not provide any job to her. Witness has admitted that Ex.PW18/A bears her signatures at Point A. Witness has admitted that in December, 2010 she came to Delhi and has voluntarily explained that due to infection near her neck she returned back to her village. She has admitted that she had stated to the police that in December, 2010 she had come to Delhi for job and resided with Salmi at Sudarshan Park, Motinagar, resident of her near of her village. She has also admitted that she has stated to the police that Baba Baam Dev was running an NGO by the name of Jharkhand Nyaymanch and has voluntarily explained that she gave this statement on the instructions of Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal. Witness has denied the suggestion that she knew Baba Baam Dev since two and a half years.
(17) Witness has admitted that she has stated to the police that Baba Baam Dev used to help girls if they did not receive salary from the placement agency and has voluntarily explained that she gave this statement on the instructions of Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal. Witness has denied the suggestion that on 02.06.2011 Baba Baam Dev came to Sudarshan Park at the State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 16 of 49 house of Salmi Devi and inquired about her well being. She has denied that she told Baba Baam Dev that she has not got the job. Witness has further denied the suggestion that Baba Baam Dev asked her to come at his house as he was living there alone and there was difficulty in doing his household work and asked her to do his household work. She has also denied that on the same day, she went to the house of Baba Baam Dev at H.No.3089, Rani Bagh, Mahendra Park, Delhi and on reaching there Baba Baam Dev told her that some of his friends were coming to his house and asked her to prepare more food for dinner. Witness has further denied the suggestion that at about 9:10 PM Shiva Ram, Owner of Seva Bharti Sansthan came at the house of Baba Baam Dev and these persons brought liquor and pepsi bottles and asked her to fetch glasses and thereafter, they told her to take pepsi and on her refusing, they forced her to take pepsi by saying that they were like her brothers. She has denied that after taking pepsi she fell unconscious and she lay down on the bed in the inside room. Witness has further denied the suggestion that after some time Baba Baam Dev came in the room and removed her clothes and committed rape upon her. She has denied that due to unconscious she was not able to protest or that thereafter, Shiva Ram and Baldev also committed rape with her. Witness has further denied the suggestion that on the next morning she found herself in a nude condition or that she asked Baba Baam Dev about the incident State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 17 of 49 then he threatened her that if she told about this to anyone then he will kill her and her family members. Witness has further denied the suggestion that thereafter, she came to Sudarshan Park but she did not tell about this fact to anyone. She has denied that on 19.06.2011, she went to the Punjabi Bagh Church where she met Ranjeeta R/o E324, Shakurpur, Delhi where Ranjeeta asked about the reason for her sadness and she told all the facts to her. Witness has further denied the suggestion that she took her to Rani Bagh Mahendra Park by encouraging her or that thereafter, she i.e. Ranjeeta made a call on 100 number.
(18) Witness has admitted that she gave her statement to the police vide Ex.PW18/A and told the facts as mentioned in the Ex.PW18/A. When the statement Ex.PW18/A was read over to the witness and confronted to the witness/prosecutrix 'S', she explained that gave this statement on the instructions of Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal and further stated that no such incident took place. Witness has admitted that Ld. MM recorded her statement vide Ex.PW18/B bearing her signatures at PointA. Witness has admitted that Ld. MM asked her to tell the true facts before him. According to her, she did not tell true facts to the Ld. MM at Rohini Courts at the first instance when she was taken before the Rohini Courts and State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 18 of 49 voluntarily explained that she was under pressure of these persons namely Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal and she gave her statement as per their instructions. Witness has denied the suggestion that she gave her true statement before Ld. MM vide Ex.PW18/B or that she was not under pressure of Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal. Witness has further denied the suggestion that she did not give statement Ex.PW18/B as per the instructions of Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal. Witness has further deposed that she was taken before the Ld. MM by the Lady Police Official and Anil Jaiswal also accompanied them. Witness has admitted that she was alone in the chamber of the Ld. MM when her statement was recorded. Witness has denied the suggestion that Anil Jaiswal did not accompany them to the Rohini Courts. Witness has admitted that statement U/s 164 Cr.PC is Ex.PW18/C bears her signatures at PointA. Witness has admitted that she moved an application for recording of her statement again before the Ld. MM, Rohini Courts, accompanied by Raju and thereafter, her statement Ex.PW18/C was recorded. According to her she was brought from Naari Niketan for recording of her second statement recorded by Ld. MM. Witness has denied the suggestion that she moved an application for recording of her statement at the instance of the accused persons or that thereafter, she made a false statement before the Ld. MM State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 19 of 49 Ex.PW18/C on the instructions of accused persons to save them. According to the prosecutrix 'S' she can identify these four persons namely Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal if shown to her. Witness has admitted that Shiva Ram was arrested at her instance on 20.06.2012 vide Ex.PW18/D bearing her signatures at Point A and his personal search was also conducted vide memo Ex.PW18/E bearing her signatures at Point A. Witness has denied the suggestion that accused Shiva Ram committed rape upon her that is why he was arrested at her instance and has voluntarily explained that he was arrested at her instance as per instructions of persons namely Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal. Witness has denied the suggestion that she does not know any person namely Ranjeeta personally and has voluntarily explained that she met her at the instructions of four persons namely Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal. Statements Ex.PW18/F and Ex.PW18/G read over to the witness but witness denied so depose to the police. Witness has denied the suggestion that she gave her true statement Ex.PW18/A before the police and her statement ExPW18/B before the Ld. MM. Witness has denied the suggestion that she gave her first statement vide Ex.PW18/C before the Ld. MM at the instructions of the accused persons as she has been won over by them. According to State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 20 of 49 her she cannot identify Baba Baam Dev, Shiva Ram and Baldev. Witness has denied the suggestion that she has been won over by the accused persons so she has not deposed true facts before the court.
(19) When the accused Baba Baam Dev, Shiva Ram and Baldev were specifically shown and put to the witness she stated that she did not know these accused persons and could identify them. (20) The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
Medical witnesses:
(21) PW10 Dr. Manideepa has deposed that on 20.06.2011 prosecutrix D/o Shri Vinod Munda, Aged 23 years with the present history of sexual assault on 02.06.2011 was brought. After conducting the medical examination, she referred the patient to S.R. Gyane. The MLC of the patient is Ex.PW10/A bearing her signatures at Point A. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(22) PW11 Dr. Kalpana has appeared in the court on the instructions of the Medical Superintendent, Bhagwan Mahavir Hospital to depose on behalf of Dr. Pragya who was no longer working in the hospital. She identified the handwriting and signatures State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 21 of 49 of Dr. Pragya in her official capacity. According to her on 20.06.2011 patient 'S' was produced before Dr. Pragya with the alleged history of sexual assault for the purposes of MLC and gyne examination and she was examined by Dr. Pragya who after the examination of the patient gave her observations on Ex.PW10/A at portions X to X1 bearing her signatures at point B which she identify. Witness has further deposed that as per the observations hymen tear was old. In her cross examination by Ld. defence counsel, witness has admitted that the patient was never produced before her and she was only deposing on the basis of the official record.
(23) PW12 Dr. Yukti Wadhawan has deposed that on 19.06.2011 patient 'S' D/o Vindo Muda was brought to the casualty by W/ Ct. Man Mohan Kaur with the alleged history of sexual assault and thereafter she was referred to S.R. Gyanacology by the doctor on duty. According to her she was thereafter brought produced on the intervening night of 19.06.2011 20.06.2011 at 12:45 AM (Midnight) and the patient did not consent for her internal examination. Witness has further deposed that after examining her she gave her observations on the MLC Ex.PW12/A which observations are present at Point X to X1 bearing her signatures at Point A. The refusal of the patient in the MLC is encircled B bearing her signatures.
State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 22 of 49
(24) In her cross examination by Ld. defence counsel, witness has admitted that patient 'S' was produced before her she did not tell her the names of any of the assailants. According to her the prosecutrix appeared to be very comfortable when she examined her and she did not find her under any pressure, depression, etc. (25) PW13 Dr. Vipul has deposed that on 19.06.2011 patient 'S' D/o Vindo Muda was brought to the casualty by W/ Ct. Man Mohan Kaur with the alleged history of sexual assault and after examining he referred her to S.R. Gyanacology. The MLC Ex.PW12/A bearing his signatures at Point C. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (26) PW17 Dr. Indresh Kumar Mishra, has deposed that he has come to depose on behalf of Ms. L.Babyto Devi, SSO (Biology) who is on long maternity leave and he has been instructed by Deputy Director, FSL to depose on her behalf since he had identify the handwriting and signatures of Ms. L. Babyto Devi as he has seen her while writing and signing in official capacity being her colleague. According to him, the FSL Report (Biology) Ex.PW17/A bearing her signatures at various places MarkA. The serological report Ex.PW17/B bears her signatures at Point A which he has duly identified.
State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 23 of 49 (27) Witness has further deposed that on 07.09.2011 two parcels were received in their department and he conducted the biological and serological examination of the various Exhibits and his report of the Biological Examination is Ex.PW17/C bearing his signatures at various point and his signatures at MarkA. his report of serological Ex.PW17/D bearing his signatures at various point and his signatures at MarkA. This Court has also observed that the reports are admissible per se U/s 293 Cr.PC and are not disputed by the accused.
(28) The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
Police/ official witnesses:
(29) PW1 L/Ct. Ishwanti has tendered her examination in chief by way of affidavit which is Ex.PW1/1 according to which on 20.06.2011 she alongwith IO ASI Poonam Tyagi went for medical examination of complainant 'S' D/o Vinod Munda at Bhagwan Mahavir Hospital, Pitampura, Delhi and medical examination was conducted vide MLC No.802/11 and after medical examination sealed sexual assault evidence collection kit and sample seal of BMH, Pitam Pura Delhi GNCT of Delhi was given by the doctor to the IO which she seized vide memo is Ex.PW1/A. The witness has State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 24 of 49 not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(30) PW2 HC Paras Ram has tendered his examination in chief by way of affidavit which is Ex.PW2/1 according to which on 20.06.2011 he was posted as a duty officer at Police Station Rani Bagh and on that day he received rukka through SI Govind at about 1.40PM after which he made endorsement on the rukka and recorded Kayami vide DD No.5A vide Ex.PW5/B and lodged FIR 175/11 vide Ex.PW2/A and send the copy of FIR and rukka to IO ASI Poonam Tyagi. During his cross examination by Ld. defence counsel, witness has denied the suggestion that the endorsement made by him has been antidated and antitimed on the instructions of the Investigating Officer.
(31) PW3 HC Vinod Kumar has tendered his examination in chief by way of affidavit which is Ex.PW3/1 according to which on 20.06.2011 ASI Poonam Tyagi handover six sealed exhibits sealed with the seal of BMH Pitam Pura Delhi Govt. of NCT of Delhi and two Sample seals of BMH Pitam Pura Delhi. Govt. of NCT of Delhi through two seizure memos and the same were deposited vide entry in register no. 19 vide S.No. 390/11 Ex.PW3/A. On 30.08.2011 ASI Poonam Tyagi handover one sealed exhibit sealed with the seal of BMH Pitam Pura Delhi and one sample seal of BMH Pitam Pura State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 25 of 49 Delhi, Govt. of Delhi and the same were deposited vide S. No. 493/11 vide Ex.PW3/B. On 03.09.2011 ASI Poonam Tyagi handover one sealed exhibit sealed with the seal of BMH Pitam Pura Delhi and one sample seal of BMH Pitam Pura Delhi Govt. of NCT of Delhi vide S.No. 515/11 vide Ex.PW3/C. On 29.06.2011 on the instruction of IO ASI Poonam Tyagi, he handed over to Ct. Vinod Prakash, exhibits of this case i.e. six sealed pullandas sealed with the seal of BMH Pitam Pura Delhi. Govt. of NCT of Delhi and two sample seals BMH Pitam Pura Delhi. Govt. of NCT of Delhi vide RC No. 44/21/11 vide Ex.PW3/D. On 07.09.2011 on the instruction of IO ASI Poonam Tyagi, he handed over to Ct. Prakash Chand, exhibits of this case i.e. two sealed pullandas sealed with the seal of BMH Pitam Pura Delhi. Govt. of NCT of Delhi and two sample seals BMH Pitam Pura Delhi. Govt. of NCT of Delhi vide RC No. 602/21/11 Ex.PW3/E and acknowledgment receipts Ex.PW3/F and Ex.PW3/G were handed over by the above said constables and further deposed that so long as the exhibits were in his custody, the same remained intact.
(32) In his cross examination by Ld. defence counsel, witness has admitted that he has not mentioned the time of deposit in any of the column of the Register No19. Witness has admitted that the entries have been made in the register on the basis of the contents of the seizure memo. Witness has denied the suggestion that the entries State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 26 of 49 in the register No.19 have been antidated on the instructions of the Investigating officer.
(33) PW4 HC Charan Singh has tendered his examination in chief by way of affidavit which is Ex.PW4/1 according to which on 19.06.2011 she was working at Duty officer in PS Rani Bagh and on that day a PCR call was received in the police station and the same was recorded vide DD No. 24A which is Ex.PW4/A, in the Rojnamacha and the same was handed over to SI Govind through Ct. Sri Bhagwan alongwith L/Ct. Anita. In his cross examination by Ld. defence counsel, witness has deposed that he had received the PCR Call at 7:18 PM on 19.06.2011 via Intercom.
(34) PW5 HC Karan Singh has tendered his examination in chief by way of affidavit which is Ex.PW5/1 according to which on 19.06.2011 at about 19.07.17 Hrs (7.07PM) he received an incident information about rape at H.No. 3089 Mahindra Park, Rani Bagh Delhi and he recorded the information on the PCR form which is Ex.PW5/A. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(35) PW6 Ct. Jai Pal has tender his examination in chief by way of affidavit which is Ex.PW6/1 according to which on 03.09.2011 he alongwith IO ASI Poonam Tyagi went for medical State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 27 of 49 examination of accused Baldev Jaiswal at BM Hospital, Pitam Pura, Delhi and medical examination was held vide MLC No. 1169/11 and after medical examination one sealed pullanda and sample seal of BMH Pitam Pura Delhi GNCT of Delhi was given by the doctor to the IO which she seized vide seizure memo Ex.PW6/A. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (36) PW7 Ct. Vinod Prakash has tender his examination in chief by way of affidavit which is Ex.PW7/1 according to which on 29.06.2011 he took a forwarding letter and photocopies of seizure memos from IO ASI Poonam Tyagi and on the instructions of the IO he took exhibits i.e. six sealed pullanda sealed with the seal of BMH Pitam Pura Delhi. Govt. of NCT of Delhi and two sample seal BMH Pitam Pura Delhi. Govt. of NCT of Delhi vide RC No. 44/21/11 which is Ex.PW3/D and deposited the same at FSL Rohini, Delhi and handed over the acknowledgment and copy of RC to the MHC(M) and further stated that so long as the exhibits were in his custody, the same remained intact. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (37) PW8 Ct. Prakash Chand has tendered his examination in chief by way of affidavit which is Ex.PW8/1 according to which on 07.09.2011 he took forwarding letter and photocopies of seizure State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 28 of 49 memos from IO Asi Poonam Tyagi and on the instruction of IO, he took exhibits i.e. two sealed pulanda sealed with the seal of BMH Pitam Pura Delhi Govt. of NCT of Delhi vide RC No. 60/21/11 which is Ex.PW3/E and deposited the exhibits at FSL Rohini, Delhi and handed over the acknowledgment and copy of RC to MHC(M) and further states that so long as the exhibits were in his custody, the same remained intact. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(38) PW9 Ct. Jitender has tendered his examination in chief by way of affidavit which is Ex.PW9/1 according to which on 30.08.2011 he alongwith IO ASI Poonam Tyagi went for medical examination of Baba Bamdev at BM Hospital Pitam Pura and medical examination was conducted vide MLC 1247/11 and after medical examination sealed exhibits were given by the doctor to the IO which she seized vide memo Ex.PW9/A. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(39) PW14 W/Ct. Man Mohan Kaur has tendered her examination in chief by way of affidavit which is Ex.PW14/1 according to which on 19.06.2011 he reached at H.No. 3089, Mahendra Park, Rani Bagh, Delhi where SI Govind, Lady Ct. Anita State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 29 of 49 and complainant 'S' met him at the spot and SI Govind recorded the statement of complainant 'S'in her presence. Witness has further deposed that the medical examination of jcomplainant Ms.'S'was held at BMH Pitam Pura Delhi, GNCT of Delhi vide MLC 795/11 and after medical examination no exhibits was given by the doctor and thereafter SI Govind send a rukka thorugh Ct. Shri Bhagwan to police station for registration of case and IO ASI Poonam Tyagi had reached at BM Hospital Pitam Pura, Delhi and SI handed over DD No. 24A dated 19.06.2011, MLC No. 795/11 and complainant 'S' to the IO. In her cross examination by Ld. defence counsel, witness has deposed that she went to H. No.3089 alone but there she met other officers. She do not recollect the exact time she reached at the spot and she also cannot tell whether it was morning, afternoon, evening or night. According to her there was nobody from the family of the prosecutrix with her and there was also nobody from the neighbourhood of the prosecutrix with her. Witness has further deposed that there was no representative of the NGO with her and she does not recollect the time when they reached the hospital for the medical examination of the victim and she did not see Ct. Shri Bhagwan when he reached at the spot. She has voluntarily explained that she had gone with the rukka to the Police station on the instructions of the SI Govind as informed to her. Witness has denied the suggestion that she did not participate in any investigations and State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 30 of 49 for this reason she is unable to give details.
(40) PW19 SI Govind has deposed that on 19.06.2011 he was posted as sub Inspector at police station Rani Bagh and on that day at about 7:15 PM he received DD No 24A which is EX PW 4/A and on received the same he along with Ct. Shri Bhagwan and L/Ct. Anita went to the house No. 3089, Mahendera Park. According to him on reaching there he met complainant Sunita and another lady who was with her and he examined her and she informed him that rape had been committed on her on 02.06.2011. Witness has further deposed that in the meantime L/Ct. Man Mohan Kaur had also reached the spot, thereafter he along with Ct. Shri Bhagwan, L/Ct. Manmohan Kaur took the prosecutrix to Bhagwan Mahavir Hospital where her medical examination was got conducted. According to him thereafter he recorded her statement in the hospital itself which statement is EX PW 18/A and he made his endorsement on the said statement vide EX PW 19/A and handed over the same to Ct. Shri Bhagwan and directed him to take the same to police station for registration of the FIR. Witness has further deposed that after about 3045 minutes Ct. Shri Bhagwan returned to the hospital along with the copy of the FIR and original rukka along with ASI Poonam Tyagi and further investigations of the case were marked to ASI Poonam Tyagi who recorded his statement and relieved him from the hospital. State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 31 of 49 (41) In his cross examination by Ld. Defence counsel, witness has admitted that at the time of the incident the officiating SHO of the police station was Insp. Praveen Kumar and after receiving the DD he reached the spot on his private motorcycle within 15 minutes of receiving the call and remained there for 11 ½ hours and has voluntarily explained that Ct. Shri Bhagwan had also gone on his private motorcycle. According to him the lady who was present with the prosecutrix was around 2530 years of age and on inquiry from the prosecutrix he came to know that her name was Shalmi. Witness has further deposed that there were no public persons at the spot at that time and except that lady nobody else was with the prosecutrix and the prosecutrix had pointed out the room/house where the incident had allegedly taken place with her but he did not prepare any site plan or memo of the same. According to him he made inquiries from the neighbours with regard to the ownership of the house and came to know that it was belonging to one Panditji after which the said Panditji was called who opened the said room. Witness has admitted that the room of the house was vacant. Witness has further deposed that he was not sure but in so far as he recollects, there was a bed in the room but he did not mention about these facts in any proceedings nor he prepared any site plan of the room. Witness has denied the suggestion that he did not mentioned these details because he did not look inside the rooms and State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 32 of 49 also did not find anything. Witness has admitted that when he first met the prosecutrix she was not crying and has voluntarily explained that she just appeared slightly apprehensive. According to him he did not informed any NGO. Witness has admitted that this lady namely Shalmi had accompanied the prosecutrix to the hospital. Witness has further deposed that he reached the hospital at about 9 to 9:30 PM. Witness has denied the suggestion that he recorded statement of the prosecutrix on the tutoring of Shalmi. According to him he had asked the prosecutrix why she delayed in sending information to the police if the incident was of 02.06.2011 on which the prosecutrix had told him that she had become scared (ghabra gai thi). Witness has denied the suggestion that the prosecutrix could not give any valid explanation with regard to the delay. According to him he did not record the statement of Shalmi. Witness has admitted that he did not participate in any subsequent proceedings thereafter. Witness has further deposed that at the time of incident, he was fresh in the police station for the last one and a half months and has clarified that he joined the service in the year 2008. According to him he does not know any Munna Kaushik, Anil Jaiswal, Vinod Tyagi and Vikesh Chauhan who are residing in Shakur Basti and Moti Nagar. Witness has further deposed that he was not aware if Munna Kaushik is a local neta and is running an NGO in the area. According to him he relieved L/Ct. Anita when L/Ct. Manmohan State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 33 of 49 reached the spot and has clarified that there was no instruction from any senior officer. Witness has denied the suggestion that he carried out the entire proceedings while sitting in the police station on the directions of Insp. Parveen Kumar.
(42) PW20 ASI Poonam Tyagi has deposed that on 20.06.2011 she was posted as ASI at Police station Maurya Enclave, Delhi and on that day on receiving the message from Duty officer she reached at Police station Rani Bagh and from there she went to Bhagwan Mahavir Hospital where she met SI Govind Lady Ct. Manmohan Kaur and prosecutrix Sunita. According to her she was handed over the MLC of the prosecutrix and DD No. 24A dated 19.06.2011 by SI Govind and Ct. Shri Bhagwan handed over the computerized copy of the FIR and rukka to her. Witness has further deposed that she interrogated the prosecutrix and recorded the statement of SI Govind and Lady Ct. Man Mohan Kaur and SI Govind informed her that the prosecutrix had refused for her Gynae examination and thereafter she returned back to the Police Station. (43) Witness has further deposed that on the same day in the evening at about 7:00 - 7:15 PM she along with Ct. Ashok, Lady Ct. Ishwanti and prosecutrix Sunita left the police station and reached Bhagwan Mahavir Hospital where her medical examination was conducted again since earlier her Gyne examination had not been conducted and after examination the doctor handed over to Lady Ct. State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 34 of 49 Ishwanti one sealed box containing the exhibits of the prosecutrix and one sample seal which Lady Ct. Ishwanti handed over to her and she seized the same vide memo Ex.PW1/A. (44) According to the witness thereafter they all left Bhagwan Mahavir Hospital in search of the accused Shiv Ram and reached the NGO at Sewa Bharti Sangathan, Lal Quarter, Punjabi Bagh, Delhi and the accused Shiv Ram was found standing outside his office whom the prosecutrix had pointed out after which the accused Shiv Ram was apprehended. Witness has further deposed that the accused Shiv Ram was interrogated and thereafter he was arrested vide memo Ex.PW18/D and his personal search was conducted vide memo Ex.PW18/F. According to her the disclosure statement of the accused was also recorded by her which is Ex.PW20/A and the accused also pointed the place of incident vide memo Ex.PW20/B. Witness has further deposed that the prosecutrix and Lady Ct. Ishwanti were relieved and the accused Shiv Ram was taken to BJRM Hospital were his medical examination was conducted and five sealed pullandas and one sample seal were handed over to her by the doctor after his medical examination and she seized the same vide memo Ex.PW20/C. According to her she deposited the seized articles in the malkhana and the accused was sent to JC on the next day and the exhibits of this case were got deposited in the FSL. State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 35 of 49 (45) Witness has further deposed that on 25.6.2011 she produced the prosecutrix before the Ld. MM and her statement under Section 164 Cr.P.C. was got recorded on her application which is Ex.PX2 and she obtained the copy of the statement of the prosecutrix on his application Ex.PX4. According to her she tried to search for the other accused but they could not be traced.
(46) Witness has further deposed that on 21.7.2011 the prosecutrix moved an application for recording her another statement and on 26.7.2011 her statement was again recorded by the Ld. MM and she received the copy of the same on her application Ex.PX7. (47) According to the witness she formally arrested the accused Baldev Jaiswal and Baba Bamdev vide memo Ex.PW20/D and Ex.PW20/E respectively as they were granted anticipatory bail and both the accused were taken to Bhagwan Mahavir Hospital where their medical examination was got conducted. Witness has further deposed that after their medical examination one sealed pullanda was given in respect of the accused Baba Bamdev with sample seal and she seized the same vide memo Ex.PW20/F. Witness has further deposed that samples in respect of accused Baldev Jaiswal was also handed over to her in a sealed condition with sample seal which was seized by her vide Ex.PW6/A and she deposited the said pullandas in the Malkhana.
State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 36 of 49
(48) Witness has further deposed that during her investigations, she recorded the statements of the witnesses and sent the exhibits to FSL Rohini, Delhi and collected the FSL reports and after completion of investigations she submitted the charge sheet against the accused persons through the SHO. Witness has also correctly identified all the accused persons namely Shiv Ram, Baldev and Baba Bamdev (who were present in the Court).
(49) In her cross examination by Ld. Defence counsel, witness has deposed that the present case was handed over to her on 20.6.2011 at about 3:304 PM. Witness has admitted that the bail application No. 4875 of the accused Shiv Ram was listed before the Hon'ble Court of Sh. S.K. Sarvaria, Ld. District Judge, Rohini on 18.7.2011. Witness has further admitted that Ex.PW20/DX1 is the certified copy of the order dated 18.7.2011 passed by the Hon'ble Court in the above said bail application. Witness has admitted that the Hon'ble Court directed her to investigate the presence of all the accused persons namely Shiv Ram, Bamdev and Baldev before SI Vipnesh posted at Police Station Moti Nagar from 7:00 Pm to 10:00 PM on 2.6.2011 and also to inquire from the office of the ACP Punjabi Bagh Sh. Satish Yadav and DCP Rajouri Garden. According to her she investigated the said aspect and SI Vipnesh had reported that all the accused persons had gone to the Police Station between 7:00 to 10:00 PM. Witness has denied the suggestion that she had State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 37 of 49 also reported to the Court that ACP Satish Yadav also confirmed that the accused had come to his office and has voluntarily explained that there was no such confirmation from ACP Satish Yadav. Witness has further deposed that ACP Satish Yadav had himself given his statement in writing which is Ex.PW20/DX2 which she placed before the Court. According to her she did not go to the office of DCP West to make any such inquiry and she also did not prepare this report. She has also denied that her report was a part of this charge sheet. Further, according to the IO she did not record any statement of SI Vipnesh in connection with the present case and has voluntarily explained that SI Vipnesh had only given her statement in writing herself at the time of giving the report. Witness has further deposed that she did not make the statement of SI Vipnesh a part of the charge sheet and also did not conduct any investigations or make any inquiry at her own level to find out if the accused were there in police station between 7:00 to 10:00 PM or not. Witness has denied the suggestion that she had deliberately concealed material evidence from the Court which evidence had come in favour of the accused only to falsely implicate them and create material in their favour in the charge sheet. According to her she cannot tell if all the accused were present with the police officers in the Police Station between 7:00 to 10:00 PM on the date of incident i.e. 2.6.2011. Witness has admitted that SI Vipnesh in her statement Ex.PW20/DX3 (which State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 38 of 49 statement was present in the police file and permitted to be taken on judicial file) which she attached along with her report Ex.PW20/DX4 had stated that the accused persons had come to the police station in connection with some other case instituted at the instance of Munna Kaushik.
(50) According to her she cannot tell if an RTI had been filed by the accused and in the reply by the office of the DCP West it was reported that the accused were present in the DCP Office which reply is Ex.PW20/DX5.
(51) Witness has further deposed that at the time when the statement of the prosecutrix was recorded under Section 164 Cr.P.C. for the second time she was also present in the Court and she did not make any inquiry from her against Vikesh Chauhan, Munna Kaushik, Vinod Tyagi and Anil Jaiswal in respect of the allegations made by her in her second statement under Section 164 Cr.P.C. nor she recorded their statements. According to her she did not record the statement of Salmi and has voluntarily explained that she could not locate her despite efforts as she had vacated her premises. Witness has denied the suggestion that when she reached Bhagwan Mahavir Hospital, Salmi was present with the prosecutrix and has denied the suggestion that she had deliberately concealed material evidence and not investigated the important aspects regarding the involvement of the aforesaid persons in respect of the allegations made by the State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 39 of 49 prosecutrix.
(52) Witness has further deposed that for the first time she had reached the hospital on 20.6.2011 in the morning at 4:00 AM and has voluntarily explained that again on the same day she had gone to the hospital at 7:45 PM and she visited the hospital in the morning along with Ct. Shree Bhagwan. According to her she had visited house No. 3089 on 21.6.2011 and she did not record anybody's statement and has voluntarily explained that there was a lock on the door on that day. Witness has further deposed that on that day she only made inquiries from the landlord and from nobody else and she also did not prepare any site plan on that day nor she seized anything. According to her the call had been made by Sunita herself on 100 number and has voluntarily explained that she had made inquiries and she came to know that Sunita had taken somebody's phone and made a call. According to her she had tried to trace the owner of the mobile and came to know that it was somebody from Shakurpur. At this stage the witness has refreshed her memory after seeing the police file and states that the mobile phone belonged to one Sandeep Kumar R/o A440, Shakurpur, Delhi, and has voluntarily explained that she came to know that he was residing on rent in the said house and had vacated the premises on which she recorded the mobile number of the landlord who gave her this information. Witness has further deposed that she did not call back on the number mentioned in the State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 40 of 49 PCR Form from which the call was made and she cannot confirm if the number from which the call was made belonged to either Munna Kaushik, Vikesh Chauhan, Vinod Tyagi or Anil Jaiswal. (53) Witness has further deposed that the accused Shiv Ram was arrested at about 10:15 PM. Witness has denied the suggestion that the prosecutrix was not accompanying her at that time or that she was in the hospital at that time. Witness has denied the suggestion that the accused Shiv Ram was lifted from his house in the early morning and not at 10:15 PM as stated by her. Witness has denied the suggestion that she conducted the entire proceedings while sitting at the Police Station. Witness has also denied the suggestion that she had deliberately concealed material evidence and had not investigated the important aspects. Witness has denied the suggestion that the investigations conducted were not fair and independent or that they had been led/ influenced by Inspector Praveen Kumar in connivance with Munna Kaushik, Vinod Tyagi, Vikesh Chauhan and Anil Jaiswal.
Statement of Accused & Defence Evidence:
(54) After going through the evidence which came on record and having found nothing incriminating against the accused since the the main star witness is the prosecution i.e. prosecutrix 'S' (PW18) did not support the case of the prosecution and there being no other State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 41 of 49 evidence, either made, Scientific, forensic or circumstantial to connect the accused persons with the alleged offence the statement of accused under Section 313 Cr.PC was dispensed with.
FINDINGS:
(55) I have gone through the testimonies of various witnesses examined by the prosecution and other material placed on record. I have also considered the oral submissions made before me on behalf of the State as well as the accused. My findings are as under:
(56) Firstly, in so far as the identity of the accused persons i.e. Shiv Ram, Baldev jaiswal and Baba Bamdev is concerned, there is no dispute since they have been specifically named in the FIR and they themselves do not deny their identity.
(57) Secondly there is no dispute with regard to the age of the prosecutrix. She was a major aged about 23 years at the time of incident, which aspect has gone uncontroverted. (58) Thirdly the prosecutrix has turned totally hostile on the incident and has not supported the case of the prosecution at all. In fact in her second statement under Section 164 Cr.PC recorded on 26.7.2011 by the Ld. MM which statement is Ex.PW18/C, the prosecutrix had informed the Ld. MM that in her earlier statement under Section 164 Cr.PC recorded on 25.6.2011, she had given incorrect version as she was under pressure from some persons State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 42 of 49 namely Anil Jaiswal, Vikesh Chauhan and Munna Kaushik.
According to her, when she was staying at Moti Nagar, Vikesh Chauhan and Anil Jaiswal had taken her to some house at Shakurpur on the pretext of getting her a job where they met Munna Kaushik and Vinod Tyagi. There all these persons had shown her the photographs of three persons (the accused before this Court) and asked her to make allegations of rape against them but when she refused they threatened to kill her and her family at Jharkhand. She told the Ld. MM that it was under their pressure that she had made this false complaint. She also clarified to the Ld. MM that the accused persons namely Shiv Ram, Baldev Jaiswal and Baba Bamdev had not committed any rape upon her and further clarified to him that rather she had never met the accused persons at any point of time. She further told the Ld. MM that she had now shifted to Sarita Vihar from Moti Nagar and as soon as the pressure of these persons (Vikesh Chauhan and Anil Jaiswal) was removed from her, she came to the court at the first instance to inform the court about the correct position. In her testimony before the court also, she has not supported the allegations made in the complaint Ex.PW18/A but has rather confirmed her later statement made to the Ld. MM (Ex.PW18/C).
(59) Fourthly, the compliant was made after a delay of 18 days of the alleged incident and there is no explanation forthcoming for State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 43 of 49 the said delay, rather on the contrary the prosecutrix has conceded that she had made false complaint against the accused persons under pressure which facts she had clarified in her second statement recorded under Section 164 Cr.PC on 26.7.2011.
(60) Fifthly the medical examination of the prosecutrix had been conducted after 18 days of the alleged incident and does not assist the prosecution. Even the forensic evidence which has come on record does not support the prosecution case in any manner the same not being incriminating.
(61) Lastly the Investigating Officer in her testimony has conceded that during the hearing of the bail application of the accused before the Court of Ld. District Judge, Rohini the accused persons had taken a plea that on the date of the alleged incident i.e. 2.6.2011 they were present at Police Station Moti Nagar and had met SI Vipnesh in connection with inquiry in another case bearing FIR No. 138/11, under Section 376 IPC. This aspect has been admitted by the Department who have conceded that the accused had met SI Vipnesh of Police Station Moti Nagar. The Investigating Officer ASI Poonam Tyagi has also in her testimony before this Court admitted that she had placed the detail statement of SI Vipnesh before the Ld. District Judge confirming the presence of the accused in Police Station Moti Nagar in connection with inquiry of another case between 7:00 PM to 10:00 PM on 2.6.2011. Further, the State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 44 of 49 accused have also placed before this Court the reply sent by the office of the DCP West which confirms that as per the record of the Visitor Register at serial no. 8, the accused Baba Bamdev along with two persons had also visited the office of Addl. Commissioner of Police, West on 2.6.2011. Copy of this reply along with the copy of the visitor register has also been placed on record which record is Ex.PW20/DX5 and has not been controverted by the Investigating Officer. If at the time of the alleged incident the accused were present in the West District i.e. at Police Station Moti Nagar and had also met SI Vipnesh whose statement in this regard is Ex.PW20/DX3 then under no circumstances it is possible that the same accused Shiv Ram, Baldev Jaiswal and Baba Bamdev could have been present in the area of Rani Bagh at the time when the offence is alleged to have been committed (in respect of which the complainant herself has turned hostile).
(62) The long delay in filing of the complaint without any justification forthcoming for the same coupled with the fact that the complainant/ prosecutrix herself had appeared before the Ld. MM at the first instance and informed him about the pressure so exerted on her by Vikesh Chauhan, Anil Jaiswal, Munna Kaushik and Vinod Tyagi in order to compel her to file false charges/ complaint against the accused Shiv Ram, Baldev Jaiswal and Baba Bamdev and there being no independent evidence (medical, forensic or circumstantial) State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 45 of 49 against the accused Shiv Ram, Baldev Jaiswal and Baba Bamdev, this was a fit case where no charge sheet should have been filed against the accused.
(63) Having come to know about the falsity of the allegations (in view of the statement made by the prosecutrix under Section 164 Cr.P.C. on 26.7.2011) and also having come to know that the accused were present in Police Station Moti Nagar having met SI Vipnesh on the same day and also being aware of their presence in the office of the DCP West, the material questions which arise are firstly why did the the Investigating Officer conceal these material facts (regarding the presence of the accused in the Police Station Moti Nagar and in the office of DCP West at the time of the alleged incident) from this Court and proceeded to file the charge sheet against the accused? Secondly why is it that the Investigating Officer made no efforts to question any of the other persons so named by the prosecutrix in her statement under Section 164 Cr.P.C.(i.e. Vikesh Chauhan, Anil Jaiswal, Munna Kaushik and Vinod Tyagi)? Thirdly why no inquiries were made with regard to the credentials of the witness Ranjeeta who claims that she had met the prosecutrix in the Church and it was the prosecutrix who informed her about the incident after which she claimed that she went along with her (prosecutrix) to the spot of the incident (though the first Investigating Officer does not acknowledge her presence)? Lastly who is this lady Salmi who was State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 46 of 49 present with the prosecutrix throughout the period when her statement was recorded by the Police and when she was medically examined (whose presence is acknowledged by SI Govind) and why she (Salmi) has not been made a witness in the Court? These questions speak a lot about the conduct of the Investigating Officer and also with regard to the predisposed/ biased manner in which the investigations have been conducted.
(64) Incidents of gross misuse and abuse of the laws relating to rape and sexual abuse and exploitation of uneducated, ignorant and uninformed domestic workers by unscrupulous persons/ placement agencies etc. for their personal gains, is a matter of serious concern. Instances of trafficking of women and child by the placement agencies where these workers are separated from their family and subjected to all kind of illtreatment and exploitation in the hands of the placement agencies or by their employers are not rare. There is also a spurt in cases being registered on false allegations made by the migrant domestic workers regarding rape and sexual abuse either by the persons of the placement agency or by the employers and the victims in these cases are none else but the domestic workers who are young girls from backward tribal areas who are exploited by those running the placement agencies. These so called owner of the placement agencies and local muscleman use these domestic workers as pawns to settle their personal scores with their professional rivals, State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 47 of 49 as it appears to have happened in the present case. Under these circumstances, the task of both the investigating agency and the Courts becomes onerous so as to ensure on the one hand that the existing penal provisions are not abused so as to implicate innocent persons whereas on the other hand to ensure that no guilty is left scot free.
(65) This being the background the ACP concerned is directed to ensure that a detail inquiry/ investigation is got conducted through an officer not less than the rank of an Inspector in respect of the aspects highlighted herein above. It should be ensured that all persons found responsible for misusing/ abusing the process of law by getting instituted this false case against the accused by intimidating and pressurizing the prosecutrix, are booked under appropriate provisions and proceeded against in accordance with law. Needless to say, the said inquiry/ investigation should be concluded at the earliest and necessary action be initiated within a period of three months from the receipt of this order, under intimation to this Court.
(66) In view of the fact that the star witness of the prosecution i.e. the prosecutrix 'S' (PW18) having turned totally hostile; there being no medical, forensic or circumstantial evidence to substantiate the allegations made against the accused persons; rather the evidence on record establishing that at the time of the alleged incident the State Vs. Shiv Ram, FIR No. 175/2011, PS Rani Bagh Page 48 of 49 accused were present in Police Station Moti Nagar (in connection with investigations of another case), I hereby acquit the accused Shiv Ram, Baldev Jaiswal and Baba Bamdev of the charges under Section 328/376 (2) (g)/506 Indian Penal Code. Their sureties stand discharged, as per rules.
(67) Copy of this order is directed to be placed before the Deputy Commissioner of Police (NW) and before the ACP concerned for purposes of compliance under intimation to this Court.
(68) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 02.11.2012 ASJ (NW)II: ROHINI
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