Delhi District Court
State vs Devender Singh on 10 February, 2017
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE/SPECIAL FAST TRACK COURT:ROHINI
DELHI
Sessions Case No : 57821/2016
State
Versus
1.Devender Singh S/o Vijender Singh R/o H. No. 691, Panna Udyan Near Shiv Mandir, Village Kanjhawal, Delhi.
2. Vikram @ Vicky S/o Suresh Yadav R/o H. No. 860, Panna Mojan, Village Bawana, Delhi.
3. Sunil Sehrawat S/o Ajit Singh R/o H. NO. 708, Kanjhawala Road, Panna Saktam Village, Bawana, Delhi.
4. Manoj S/o Ranbir Singh, R/o H. No. RZ96, Shiv Enclave, BlockC, Najafgarh, Delhi.
FIR No :318/12 Police Station :Bawana Under Sections : 376 (2) (g)/365/366/354/506 & Sections 212 IPC State Vs. Devender Singh & Ors. Page No. 1 Date of Committal to Sessions Court : 07.01.2013. Date on which Judgment reserved : 23.01.2017 & 08.02.2017. Date on which Judgment announced : 10.02.2017 J U D G M E N T
1. In the present case, the allegations against the accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh are that on 18.9.2012, at about 12.30pm, at Bawana Kanjahawla Road, before DC Office, Service Station Kanjhawala, they all in furtherance of their common intention abducted two prosecutrixes (herein after referred to as prosecutrix no. 1 and 2) with intent to cause them to be secretly and wrongfully confined and that they might be seduced to illicit intercourse and thereafter, they committed gang rape upon both prosecutrixes.
2. It was also alleged that all the accused in furtherance of their common intention also assaulted and used criminal force upon prosecutrix no. 2 with intend to outrage her modesty.
3. It was further alleged that they all in furtherance of their common intention criminal intimidated both prosecutrixes to kill their parents if they disclosed the incident to any one.
4. Accordingly, Charge in respect of offences under Section 365/366/376 (2) (g) IPC and under Section 354 and 506 read with 34 IPC was framed by Ld. Predecessor on 6.01.2014 against all the accused to which they pleaded not guilty and claimed trial.
5. A separate charge was also framed on same day under State Vs. Devender Singh & Ors. Page No. 2 Section 212 IPC against accused Manoj with the allegations that on or after 18.09.2012 at about 12.30pm, he harboured or concealed accused Sunil Sehrawat, to whom he knew or had reason to believe that he was offender, with intention of screening him from legal punishment, by providing him his car No. DL 8C Q 7000 and Flat no. 467, Pocket4, Sector11, Dwarka.
6. Accused Manoj also pleaded not guilty to the said charge and claimed trial.
7. To bring home the guilt of accused the prosecution has examined 19 witnesses in all.
8. Statement of all the four accused under Section 313 Cr. PC have been recorded separately, wherein accused Manoj has stated that he has been wrongly arrested in the case. The car was lifted from the gali. All the witnesses are interested ones. He was never medically examined.
9. Accused Vikram @ Vicky and Sunil Sehrawat have denied the allegations of prosecution. They have submitted that their signatures were forcibly obtained by the police on various printed/blank papers during their custody and the same were converted into various incriminating memos. The are innocent. They have been falsely implicated in the present case.
10. Accused Devender Singh has also denied the allegations of prosecution. He has submitted that he is innocent. He has been falsely implicated in the present case. He was not the owner of the service station at any point of time. He does not know, personally, the co State Vs. Devender Singh & Ors. Page No. 3 accused of the case.
11. All the four accused have preferred not to lead any evidence in their defence.
12. I have heard arguments from Ld. Counsels for accused and Ld. Addl. PP.
13. Ld. Counsel for the accused Devender Singh has prayed for acquittal of accused by submitting that there is no evidence on record to show that the service station, in question, belonged to accused Devender Singh. Both prosecutrixes have not identified the accused Devender Singh.
14. Ld. Counsel for the accused Vikram @ Vicky and Sunil Sehrawat has also prayed for acquittal of accused accused by submitting that the material witnesses have not supported the prosecution story. The FSL report is also in favour of the accused..
15. Ld. Counsel for the accused Manoj has also prayed for acquittal of accused by submitting that there is no evidence on record to connect the accused with the commission of offence. Prosecutrixes have not identified the accused.
16. On the other hand Ld. Addl. PP has submitted that the prosecutrix and other material witnesses have initially supported the prosecution story, but later on, they have been won over by the accused.
17. It is settled law that prosecution has to prove its case beyond reasonable doubt.
18. In Sri Sujit Biswas Vs. State of Assam, Criminal Appeal State Vs. Devender Singh & Ors. Page No. 4 No. 1323 of 2011, decieded on 28th May2013, it was held that:
"Suspicion, however, grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be proved, and something that 'will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be and 'must be is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be true and 'must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused condemned as a convict, and the basis and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be true and 'must be true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all State Vs. Devender Singh & Ors. Page No. 5 features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that the miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense ."
19. In the present case, the witnesses examined by the prosecution can be classified under various categories for the sake of convenience.
POLICE OFFICIALS
20. PW1 HC Dharam Pal. He was MHC (M) at the PS at the relevant time, with whom IO W/SI Ritu deposited some pulandas on 19.9.2012, 20.9.2012 and 21.9.2012 and he made relevant entries in this regard in Register no. 19. He has further deposed that on 23.9.2012, SI Randhir Singh has deposited one car bearing no. DL 8CQ 7000 and three sealed pulandas, documents recovered from the car and personal search of accused Sunil Sehrawat. He made relevant entries in that regard in Register no. 19.
21. He has further deposed that on 25.9.2012, W/SI Ritu deposited one mobile phone in Malkhana and he made relevant entry in Register No. 19. On 19.10.2012, W/SI Ritu deposited one sealed State Vs. Devender Singh & Ors. Page No. 6 pulanda in the Malkhana and he made entry in Register no. 19. The entries in Register no. 19 are collectively exhibits as PW 1/A.
22. PW1 has further deposed that on 23.10.2012, on the instructions of IO, he handed over 11 sealed pulandas to Ct. Yudhistir who deposited the same at FSL vide Road Certificate no. 271/21/12. He made relevant entry in Register no. 21, which is Ex. PW 1/B. After depositing the pulandas in FSL, Ct. Yudhistir deposited the acknowledgment receipt, Ex. PW 1/C.
23. An opportunity to crossexamine PW1 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
24. PW2 Ct. Devanand joined the investigation with IO W/SI Ritu on 19.9.2012. Both prosecutrixes were also with them. They went to service station Kanjhawala, near DC Office, where the prosecutrixes pointed towards Devender Singh and told them he was the same person who was standing outside the Alto car, at the time of incident. Devender Singh was interrogated and arrested. Thereafter, he went inside the room and at the instance of prosecutrixes one quilt (Rajai) was taken into possession. They came back to PS. IO recorded the disclosure statement of Devender Singh, which is Ex. PW 2/A. He (PW2) has identified the quilt Ex. P1.
25. In crossexamination by Ld. Counsel for accused Sunil Sehrawat he has denied that he did not join the investigation in the manner, he deposed. He has denied that prosecutrixes did not point out towards accused Devender Singh and he is deposing falsely.
State Vs. Devender Singh & Ors. Page No. 726. Ld. Counsel for the accused Vikram @ Vicky has adopted the crossexamination done on behalf of accused Sunil Sehrawat.
27. An opportunity to crossexamine PW2 was given to Ld. Counsel for the accused Manoj but he did not avail of that opportunity.
28. In crossexamination by Ld. Counsel for the accused Devender Singh, PW2 has deposed that accused Devender Singh was inside the main gate of the service station. He had not noticed as to whether there was electricity meter or not. He has denied that accused Devender Singh was not arrested from the service station. He cannot say as to whether the owner of service station is some other Devender Singh and accused Devender Singh is not the owner of the service station.
29. PW3 Ct. Yaad Ram Yadav had also joined the investigation on 20.9.2012 with SI Deepak Purohit and SI Ritu and had gone to search the accused Vikram @ Vicky, at village Bawana. IO had received the information that accused Vikram @ Vicky would come from Kanjhawla Nangal Road in his Alto Car no. HR 19A 5240 between 7.30 to 8.00pm. Thereafter, they started the checking of vehicles by putting barricades near Shani Mandir, Nangal Kanjhawala Road. At about 8.00pm, one Alto Car no. HR 19A 5240 came there from Kanjhawla side and the same was got stopped. Accused Vikram @ Vicky was apprehended from the car and his personal search was conducted vide memo, Ex. PW 3/B. The Alto car was seized vide memo, Ex. PW 3/C. Accused made disclosure statement, Ex. PW 3/D. Accused Vikram @ Vicky pointed out towards the place of occurrence and pointing out memo Ex. PW 3/E was State Vs. Devender Singh & Ors. Page No. 8 prepared. Thereafter, they came back to PS. Crime team was called, which inspected the car and took the photographs. PW3 has identified the car as Ex. P2. Accused Vikram @ Vicky is present in the Court.
30. He has further deposed that on 24.9.2012, he again joined the investigation of the case along with W/SI Ritu and Ct. Yudhister. Accused Sunil Sehrawat, who was in the custody of IO, was interrogated and one day PC remand of accused was taken. Accused Sunil Sehrawat led the police party to the place of incident and pointing out memo, Ex. PW 3/F was prepared at his instance. Medical examination of accused Sunil Sehrawat was also got done. Thereafter, they returned to PS. Accused was kept in the lockup. His statement was recorded by the IO.
31. On 25.9.2012, he again joined the investigation of the case along with IO. Accused Sunil Sehrawat led the police party to Flat no. 467, Pocket4, Sector11, Dwarka. One mobile phone make 'Hawai Tata Docomo' got recovered by accused Sunil Sehrawat from the house. The mobile phone was seized vide memo Ex. PW 3/G. Thereafter, Sunil Sehrawat was produced before the Court and was sent to JC.
32. On 19.10.2012, he took the Alto Car to FSL Rohini, where the examination of the car was done. The FSL team at Rohini obtained four pieces of seat cover, from the front seat, next to the driver seat. Those four those pieces were seized vide memo Ex. PW 3/H and the pulanda was kept by them.
33. In crossexamination by Ld. Counsel for accused Vikram @ Vicky he has denied that accused Vikram @ Vicky was not arrested in State Vs. Devender Singh & Ors. Page No. 9 the manner, as deposed by him. He has further denied that all the documents were signed by him in the PS, at the instance of IO.
34. In crossexamination by Ld. Counsel for accused Sunil Sehrawat, PW3 has deposed that, at that time, when accused was taken to hospital for medical examination IO/WSI Ritu was also there. He has denied that he did not join the investigation of the case. He does not remember as to who was the owner of the Flat no. 467, Pocket4, Sector 11, Dwarka. At the time of recovery of alleged mobile, one person was asked to join the investigation but he refused. No action was taken against him. He has denied that no mobile was recovered as alleged by him or that he never visited the flat at Dwarka and signed the seizure memo of mobile at the instance of IO.
35. An opportunity to crossexamine PW3 was given to Ld. Counsel for the accused Manoj and Devender Singh but they did not avail of that opportunity.
36. PW5 HC Kishan Kumar . He was the Duty Officer at PS Bawana on 19.9.12. On that day, W/SI Ritu handed over him a Tehrir, on the basis of which he got registered the FIR, Ex. PW 5/A.
37. An opportunity to crossexamine PW5 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
38. PW9 W/Ct. Jyoti has deposed that on 19.9.12, she and IO WSI Ritu took both proseuctrixes to MV Hospital for their medical examination. After their medical examination doctor handed over six sealed parcels, which were seized by the IO. Thereafter, the State Vs. Devender Singh & Ors. Page No. 10 proseuctrixes were brought to PS and case properties were deposited with MHC (M).
39. An opportunity to crossexamine PW9 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
40. PW10 SI Suman has deposed that on 15.12.2012, she received the case file from MHC (M) for further investigation Since the investigation of the case was complete, she filed the chargesheet in the Court on 16.12.2012.
41. In crossexamination by Ld. Counsel for accused Vikram @ Vicky she has denied that she has filed the charge sheet on the basis of incomplete and incorrect investigation.
42. PW12 HC Virender Singh has deposed that on 23.9.2012, he along with SI Randhir, Ct., Sanjeev and secret informer left the PS as secret informer had informed the police that Sunil Sehrawat could be apprehended near Shani Mandir, Kanjhawala, Nagal Road. At about 8.40 pm, they went to Shani Mandir and placed barricades for checking the vehicles. At about 9.15 pm, one vehicle Scorpio no. DL 8CQ 7000 came from the side of Kanjhawala. The vehicle was stopped. On the identification of secret informer, he along with Ct. Sanjeev apprehended the driver, who disclosed his name as Sunil Sehrawat. IO interrogated the accused Sunil Sehrawat and arrested him vide arrest memo Ex.PW 12/A. Personal search of accused Sunil Sehrawat was conducted vide memo Ex.PW 12/B. Accused Sunil Sehrawat made disclosure statement vide memo Ex. PW 12/C. The vehicle was searched and was taken into State Vs. Devender Singh & Ors. Page No. 11 possession vide seizure memo, Ex. PW 12/D. Accused was taken to hospital by Ct. Sanjeev for medical examination. IO deposited the case property with MHC (M).
43. In crossexamination by Ld. Counsel for accused Sunil Sehrawat, PW12 has deposed that departure entry was made by the IO at the time of leaving the PS but he does not remember the DD number. The registration numbers of the vehicles, which were signalled to be stopped, for checking, were not down by him. Secret informer did not disclose the registration number, make and colour of the vehicle, prior to their reaching to the spot. He cannot tell as to how much distance the gesture was given by the informer. He has denied that Sunil Sehrawat was not arrested in the manner, he deposed or that he (accused) was called in the PS on the pretext of some inquiry and thereafter, he was falsely implicated or that the signature of accused Sunil Sehrawat was obtained on the blank papers and later on, they were converted into incriminating documents.
44. An opportunity to crossexamine PW12 was given to Ld. Counsels for the accused Devender Singh, Vikram @ Vicky and Manoj but they did not avail of that opportunity.
45. PW15 Ct. Yudhister has deposed that on 24.9.2012, he joined the investigation with the IO SI Ritu and Ct. Yad Ram. Accused Sunil Sehrawat led the police party to the place of incident and IO prepared the pointing out memo Ex. PW 3/F. Thereafter, accused was taken to MV Hospital for medical examination. PW15 has further State Vs. Devender Singh & Ors. Page No. 12 deposed that on 23.10.12, on the instructions of IO, MHC (M) handed over sealed parcels to him for depositing the same at FSL Rohini and he deposited the parcels in FSL. After depositing the same, he obtained the receipt on RC certificate no. 271/21/12, which was handed over by him to MHC (M).
46. In crossexamination by Ld. Counsel for the accused Sunil Sehrawat, he has denied that no pointing out of the place of incident was made by accused Sunil Sehrawat or that the pointing out memo was made by the IO of his own at the PS. He has further denied that the sealed exhibits were not deposited in the FSL, in the manner, he deposed. MEDICAL EVIDENCE/DOCTORS.
47. PW4 is Dr. Amit Shokeen. He has medically examined the accused Vikram @ Vicky on 21.9.2012 vide MLC Ex. P{W 4/A.
48. An opportunity to crossexamine PW4 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
49. PW6 is Dr. Luxmi Dwivedi. She has medically examined the prosecutrix no. 2 from points X to X on MLC Ex. PW 6/A on 19.9.2012. Copy of the examination kit, which was retained by the hospital at the time of examination of prosecutrix, running into 18 pages is ex. PW 6/B1 to Ex.PW 6/B18. After examination of the patient nine exhibits and outer and inner cloths of the patient were also seized and handed over to IO.
50. An opportunity to crossexamine PW6 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
State Vs. Devender Singh & Ors. Page No. 1351. PW7 is Dr. Saurabh Kumar. He has identified the signatures and handwriting of Dr. Surender Vashist, SR (Surgery), who had examined the accused Sunil Sehrawat vide MLC Ex. PW 7/A.
52. An opportunity to crossexamine PW4 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
53. PW13 is Dr. Gitanjali. She has identified the signatures and handwriting of Dr. Neha SR, who has medically examined the prosecutrix no. 1 vide MLC Ex. PW 13/A.
54. In crossexamination by Ld. Counsel for accused Sunil Sehrawat, she has denied that Ex. PW 13/A is not in the handwriting of Dr. Neha.
55. An opportunity to crossexamine PW13 was also given to Ld. Counsels for other accused but they did not avail of that opportunity.
PUBLIC WITNESSES
56. PW8 is prosecutrix no. 1.
57. PW11 is proseuctrix no.2.
58. PW14 Rajeev Ranjan is the Nodal Officer 'Tata Tele Sale Services Ltd.' He has proved on record the CDR of mobile number 9213453368 which was in the name of one Gurpreet Singh and the call details record of the said mobile w.e.f. 16.9.2012 to 24.9.2012 is Ex. PW 14/B. He has also proved on record the CDR of mobile number 9210410651, which was in the name of Suresh Kumar Yadav Singh and the call details record of the said mobile w.e.f. 16.9.2012 to 22.9.2012 is Ex. PW 14/D State Vs. Devender Singh & Ors. Page No. 14
59. An opportunity to crossexamine PW14 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
60. PW16 Israr Babu is the Nodal Officer, Vodafone. He has proved on record the CDR of mobile number 9999484190, which was in the name of Jai Narain and the call details record of the said mobile w.e.f. 16.9.2012 to 21.9.2012 is Ex. PW 16/B.
61. An opportunity to crossexamine PW14 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
62. PW17 Chintamani is the mother of prosecutrix no. 2.
63. PW18 Sushma is the registered owner of car make Scorpio, number DL 8C Q 7000. She got released the said car on superdari.
64. An opportunity to crossexamined PW18 was given to Ld. Counsels for the accused but they did not avail of that opportunity.
65. PW19 Meera is the mother of prosecutrix no. 1.
66. First of all, I am taking up the case of accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh, against whom charge has been framed in respect of offences under Section 365/366/376 (2) (g) IPC and under Section 354 and 506 read with 34 IPC.
67. In the present case, out of 19 witnesses, PW8 is one of star witnesses of case, being prosecutrix no. 1. But, she has not supported the prosecution story either in examinationinchief or crossexamination by Ld. Addl. PP.
68. PW8 has deposed that on 18.9.2012, she was studying in Ist Year of BSW Course in Aditi College Bawana. On that day, she was not State Vs. Devender Singh & Ors. Page No. 15 having any class. She and her friend (prosecutrix no. 2) were standing in the college. Her friend (prosecutrix no. 2) asked her that since they were not having any class they should go to outing. She (Prosecutrix no. 2) gave phone call to Vikram @ Vicky, present in court and called him for outing. Accused Vikram @ Vicky came in a small greyish silver colour car and last digit of the registration of that car was 5240. He was driving the car. Her friend (prosecutrix no. 2) sat on the front seat and she (PW
8) sat in the rear seat of the car. Accused Vikram @ Vicky made a phone call to one of friends, Sunil Sehrawat and also called him. Accused Sunil Sehrawat, present in the Court, also reached there and sat on the rear seat of the car, with her. Thereafter, they went to Kanjhawala for outing. When they reached at Kanjhawala Road, the car stopped. Accused Vikram @ Vicky told them that the car had gone out of order and would go for repairs. Thereafter, she, her friend (proseuctrix no.2) and Sunil Sehrawat got down from the car of Vikram @ Vicky at Kanjhawala Road, near Service Station and Vicky took the car to service station for repair. They started waiting for Vikram @ Vicky. As the car of Vikram @ Vicky had gone out of order, they could not go for outing. After sometime, the car got repaired and Vikram @ Vicky dropped them to their college. Accused Vikram @ Vicky and Sunil Sehrawat went from there in the car.
69. PW8 has further deposed that on the next morning she and her friend (proseuctrix no.2) were standing outside the college. Accused Sunil Sehrawat passed from there and asked her to go for outing but she State Vs. Devender Singh & Ors. Page No. 16 refused to go with him. She had a little altercation with accused Sunil Sehrawat on some issues. One PCR van was stationed outside the college. The PCR officials noticed the quarrel. After seeing the PCR official, accused Sunil Sehrawat escaped from there. While escaping, accused Sunil Sehrawat had pushed her a little, due to which, she fell down on the road. She was told by the PCR officials that since she got injuries, she had to go for medical examination in the hospital. She was taken to MV Hospital, Pootkhurd by PCR, where she was medically examined. Her parents were also called in the police station. Her statement was recorded by the police. No one has committed any wrong (glat Kaam) with her. Thereafter, she never visited the police station. She has never made any other statement except her statement dated 19.9.12, to the police. She does not know accused Devender Singh and Manoj. She cannot identify them.
70. Since, the prosecutrix no. 1 has not supported the prosecution story, she has been crossexamined by Ld. Addl. PP, wherein she has denied the contents of the statement Ex. PW 8/A and has categorically denied of having made the statement to the police. She has volunteered that she told the police, whatever, she deposed in the Court. Police had not read over the said statement to her before she was made to sign the same. She was too much perplexed and stressed, so she signed the said statement.
71. PW8 has further deposed that she had not stated to the police in her statement that on 18.9.12, during the noon hours, when she State Vs. Devender Singh & Ors. Page No. 17 was not having any class in college and was with her friend, then at about 12.10 pm, accused Vikram @ Vicky, present in the court, made a phone call to her friend and asked her to reach NDPL wali gali. She had not stated to the police in her statement that thereafter, she and her friend (proseuctrix no. 2) went to NDPL Wali gali, where accused Vikram @ Vicky was sitting on the driver seat of his Alto car 5240 and that he (Vikram @ Vicky) asked her and her friend to sit in the car, as he wanted to have some important talks and requested them to sit, for two minutes, in his car. She had not stated to the police that proseuctrix no. 2 sat on the front seat of the car, next to Vicky and she sat on the rear seat of the car and that, as soon as, they sat in the car of Vicky, he locked his car and immediately moved towards Kanjhawala Road. She had not stated to the police in her statement that when she and proseuctrix no. 2 asked Vicky to stop the car, on that, Vicky told them that they both were residents of Bawana Village and if they raised the voice then they would be defamed in the village and then Vicky called one of his friends, who also reached in front of Syndicate Bank, Kanjhawala Road. She had not stated to the police in her statement that accused Sunil Sehrawat, present in Court, also sat on the rear seat of car with her and also snatched her mobile phone as well as of her friend (proseuctrix no. 2) and switched off their mobiles. She had not stated to the police that accused Sunil Sehrawat threatened her and proseuctrix no. 2 to kill them, if they raised the voice and that, thereafter, accused Vicky took his car to service station at Kanjhawala Road, ahead of Krishan Gaushala and stopped his State Vs. Devender Singh & Ors. Page No. 18 car and then accused Sunil Sehrawat alighted from the car and bolted the main door of the service station from inside.
72. She has further deposed that she had not stated to the police that one boy from the service station also sat in the rear seat of the car and accused Vicky and Sunil Sehrawat were calling him Devender Singh and that Devender Singh, present in the court, started teasing her friend (proseuctrix no. 2) and then accused Sunil Sehrawat dragged her out of the car and took her inside the room in the service station and threatened her and bolted the room from inside. She had not stated to the police that in the room of service station accused Sunil Sehrawat raped (Galat Kaam) her on the wooden bed (takhat), which was lying inside the room. She had not stated to the police in her statement that after sometime, door of room was knocked by someone from outside and accused Sunil Sehrawat opened the door of the room and thereafter, accused Devender Singh came and she went out of the room, immediately, in perplexed condition. She had not stated to the police in her statement that when she came out of the room, accused Sunil Sehrawat told accused Vicky that he had made her film and if she (PW
8) and her friend (proseuctrix no. 2) disclosed the incident to anyone, then they would show the film to all and even thereafter, they (PW8 and her friend) did not stop, then their mother and father would be killed. She had not stated to the police that her friend (proseuctrix no. 2) revealed her that she (her friend) was raped by accused Vikram @ Vicky in the Alto car and at that time accused Devender Singh was present outside the State Vs. Devender Singh & Ors. Page No. 19 Alto car. She has further deposed that she had not stated to the police in her statement that they both got afraid and then accused Vicky and Sunil Sehrawat dropped them, outside Aditi College and they both escaped from there in the Alto Car.
73. PW8 has denied that on 18.9.12 at 12.30pm at Bawana Kanjhawala Road, in front of DC Office, accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh , present in the court, in furtherance of their common intention adducted her and her friend (proseuctrix no. 2) with intent to wrongfully confine them and with intent to seduce them to illicit intercourse. She has further denied that accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh, in further of their common intention used criminal force upon her friend (proseuctrix no. 2) and accused Devender Singh outraged her modesty. She has denied that accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh in furtherance of their common intention criminally intimidated her and her friend (prosecutrix no. 2) to kill their parents, if the incident was disclosed by them to anyone. She has further denied that accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh in furtherance of their common intention committed gang rape upon her after abducting her and her friend.
74. The other statement Ex. PW 8/B was also read over by Ld. Addl. PP to PW8, but she has denied of having made the statement to the police. She has denied that on 19.9.12, she and (proseuctrix no. 2) joined the investigation of the case with IO and went to Service Station State Vs. Devender Singh & Ors. Page No. 20 Kanjhawala Bawana Road, where on their pointing out, the site plan was prepared by the IO. She has further denied that on 19.9.12, accused Devender Singh, present in the Court, was arrested from the service station, on their pointing out and identification. She has further denied that on 19.9.12 from the room of the service station, IO seized one quilt on her identification. PW8 has identified her signatures on the arrest memo and personal search memo of accused Devender Singh Ex. PW 8/C and Ex. PW 8/D respectively but she has volunteered that her signatures were obtained by the police on blank papers. Same was the reply of PW5 in respect of her signature on seizure memo of quilt Ex. PW 8/D. She has further deposed that she was knowing accused Vicky prior to the incident, being the friend of her friend (proseuctrix no. 2) and accused Sunil Sehrawat was friend of Vicky. She has denied that the complete registration of the Alto car is HR 19A 5240. She has denied that she has deliberately not identified the accused Devender Singh and Manoj. She has further denied that she has been raped by accused Sunil Sehrawat. She has further denied that she is deposing at the instance of accused persons. She has denied that she has been won over by the accused or that she has compromised the matter with the accused in order to save them. PW8 has not identified the quilt. She has identified her jeans pant and ladies top as Ex. P3 and P4 respectively and deposed that the clothes were worn by her on 18.9.12.
75. In crossexamination by Ld. Counsel for the accused Vikram @ Vicky she has denied that her friend (proseuctrix no. 2) did not make State Vs. Devender Singh & Ors. Page No. 21 a call to Vikram @ Vicky on 18.9.2012 or that they both had not gone in the small grayish silver colour car of accused Vikram @ Vicky. She has further denied that she did not ever meet accused Vikram @ Vicky or that accused Vkram did not make any call to accused Sunil Sehrawat, to call him there or that they all did not go to Kanjhawala for outing or that she had named accused Vikram @ Vicky at the instance of IO.
76. An opportunity to crossexamine PW8 was given to Ld. Counsels for other accused but they did not avail of that opportunity.
77. The other star witness of case is PW11. She is the friend of PW8 and is prosecutrix no. 2. She has also not supported the prosecution story and deposed that on 19.9.2012, she and her friend i.e. prosecutrix no. 1 were standing outside the gate of their college. At about 12.00 noon, one person to whom she (PW11) was not knowing came and started talking with prosecutrix no. 1, The conversation was not heard by her. After sometime, she saw that a hatapai was going on between prosecutrix no. 1 and that person. Near by, a PCR van was standing. From there, two policemen came and they tried to separate them. That person, after giving a push to prosecutrix no. 1 and after getting loose (hath choda kar) his hand, fled away. She lifted prosecutrix no. 1 from the ground. Thereafter, the police took her and prosecutrix no. 1 to Maharishi Balmiki Hospital. Medical examination of prosecutrix no. 1 was conducted. She (PW11) declined for her medical examination, as she had not sustained any injury. She (PW 11) also called her mother in the hospital. Police made her mother understood, State Vs. Devender Singh & Ors. Page No. 22 for her medical examined. Thereupon, she (PW11) agreed for her medical examination. Then she and her mother were taken to PS by PCR van, where police obtained her and her mother's signature on blank papers. From there, they came to her house. No one has done any 'galat kaam' with her (marai saath kisi ne koi 'galat kaam' nahi kiya hai). The person who was talking to prosecutrix no. 1, is not present in the court.
78. Since, PW11 (the prosecutrix no. 2) has also not supported the prosecution story, she has been crossexamined by Ld. Addl. PP wherein she has denied that the incident regarding which she has deposed, was of 18.09.2012. She has volunteered that the incident was of 19.09.2012. She was having a mobile phone on that day. She was not knowing any person by the name Vikram @ Vicky. She has denied that she was very well known to accused Vikram @ Vicky. She has denied that on 18.09.2012 a call of Vikram @ Vicky had come on her mobile, in which he had called her in NDPL wali gali. She has further denied that in pursuance of that call she alongwith Prosecutrix no. 1 had gone to NDPL wali gali on 18.09.2012 and there Vikram @ Vicky was standing with his Alto car bearing no. 5240. She has further denied that Vikram @ Vicky asked her and prosecutrix no. 1 to sit in the car, on the pretext that he had to talk something and in that process, he drove the car. She has denied that when she and prosecutrix no. 1 asked Vikram @ Vicky to stop the car, he threatened them as not to raise alarm, State Vs. Devender Singh & Ors. Page No. 23 because it would defame them as they were the residents of Bawana Village. She does not know Vikram @ Vicky and therefore, cannot say as to whether Vikram @ Vicky is present in Court. She has further deposed that she does not know, that the person sitting behind the wooden partition, is Vikram @ Vicky and she knows him very well. She does not know any Vikram @ Vicky. She has denied that she intentionally not identified accused Vikram @ Vicky or that she knows accused Vikram @ Vicky very well. She has denied that accused Vikram @ Vicky made a call from his mobile phone to a person and called him near Syndicate Bank, Kanjhawala Road. She has further denied that when they went to Kanjhawala Road, then one person boarded the car and Vikram @ Vicky was calling him Sunil Sehrawat. She has further denied that Sunil Sehrawat took away her mobile phone as well as of her friend (prosecutrix no. 1) after sitting in the car or that Sunil Sehrawat also threatened them not to raise alarm otherwise, they would be killed. She has also not identified accused Sunil Sehrawat by deposing that the person, present in court and sitting behind the wooden partition is Sunil Sehrawat. She does not know any Sunil Sehrawat. She has denied that accused Sunil Sehrawat stopped the Alto Car near Service Station, after crossing Krishan Gaushala. She had not stated to the police in her statement that Sunil Sehrawat deboarded the car and closed the door of service station from inside and one other person (who was being called with the name Devender Singh by Vikram State Vs. Devender Singh & Ors. Page No. 24 @ Vicky and Sunil Sehrawat), sat in that car. She had not stated to the police in her statement that Devender Singh started misbehaving with her by molesting her. She has volunteered that she does not know any person with the name Devender Singh , so she cannot identify him. She has further denied that she has deliberately not identified accused Devender Singh, present in the court, as matter has already been settled. She had not stated to the police in her statement that accused Sunil Sehrawat dragged her friend (prosecutrix no. 1) from the car and took her in a room of the service station. She had not stated to the police in her statement that accused Vikram @ Vicky committed rape upon her in the car and at that time accused Devender Singh was standing outside the car. She had not stated to the police in her statement that prosecutrix no. 1 came out from the room and informed her that accused Sunil Sehrawat had committed rape upon her. She has further denied that she had not stated to the police in her statement that accused Sunil Sehrawat told accused Vicky that he had made the obscene film of prosecutrix no. 1 and if she informed the incident to anyone, then he would show the film to her parents. She has further denied that she and prosecutrix no. 1 became frightened and all the accused dropped her and prosecutrix no. 1 near Aditi College.
79. PW11 has further denied of having given the statement Mark PW11/PX to the police. She has denied that she had given the statement Mark PW11/PX to the police or that I have deposed falsely State Vs. Devender Singh & Ors. Page No. 25 in that regard.
80. PW11 has further deposed that during investigation police took her to Maharishi Balmiki Hospital for her medical examination. She called her mother in the hospital after making telephonic call to her. She did not state to the doctor that one person, namely, Vicky, who was known to her, committed rape upon her, in a car. After her medical examination, her clothes were taken by the doctor. She has not identified her clothes i.e Kurti, Pajami, brasseer and panty Mark P1 (Colly) and deposed that the clothes do not belong to her. She has deposed that accused Devender Singh was not arrested by police in her presence. She has volunteered that police obtained her signatures on some blank papers.
81. She has identified her signatures on arrest memo and personal search memo of accused Devender Singh Ex. PW8/C & Ex. PW8/D respectively, but she has volunteered that both memos were blank, when police obtained her signatures on the same. She has denied that accused Devender Singh was arrested by police in her presence or that the arrest memo and personal search memo Ex. PW8/C & Ex. PW 8/D respectively of accused Devender Singh were prepared in her presence. She has denied that she is deposing falsely in that regard.
82. PW11 has further denied that the above four clothes belonged to her and those were the same clothes, which were taken by the doctor in hospital. She has denied that she is deliberately not identifying the clothes. She has further denied that she is knowing all the State Vs. Devender Singh & Ors. Page No. 26 three accused persons, present in the court, very well, or that she is deliberately not identifying them. She has further denied that she is deposing falsely, as she has been won over by the accused persons. She has denied that the matter has already been settled by her with all the three accused persons and she is deposing falsely.
83. In crossexamination by Ld. Counsel for the accused Vikram @ Vicky she has admitted that she refused for her medical examination as there was no necessity for the same, as she had not sustained any injury. She has volunteered that her medical examination was got conducted at the instance of the police, against her consent. She has further admitted that the doctor had not asked anything from her and her mother, regarding the incident.
84. An opportunity to crossexamine PW11 was given to Ld. Counsels for other accused but they did not avail of that opportunity.
85. The other material witness is PW17 Chintamani. She has the mother of prosecutrix no. 2. She has also not supported the prosecution story. She has deposed that on 19.9.12, she received a telephonic call from her daughter who stated that she along with her friend (prosecutrix no. 1) were at Maharishi Valmiki Hospital and asked her to come to the hospital. She went to the hospital, where her daughter told her that she along with her friend (prosecutrix no. 1) were standing outside the college. One person came and started conversing with prosecutrix no. 1. Since, she (the daughter of PW17) was not knowing that person, she (daughter of PW17) became aside and the conversation State Vs. Devender Singh & Ors. Page No. 27 went on between the prosecutrix no. 1 and that person. After sometime, she (the daughter of PW17) found that the prosecutrix no. 1 has lying on the ground. She went to her and lifted her. The PCR van was parked nearby. The Officials of PCR came there and brought both of them to Maharishi Valmiki Hospital. Prosecutrix no. 1 was taken to hospital for medical examination. Her daughter was also proposed by the police for her medical examination, but she refused. But, the police stated to her that it was a mere formality, on which she (PW17) did not say anything. Thereafter, they were brought to PS Bawana by the police officials, where her signatures were taken by the police on some papers and contents of the documents were not told to her. Thereafter, she along with her daughter (prosecutrix no. 2) came back to her house.
86. PW17 did not identify the clothes of her daughter (prosecutrix no. 2), when the same were shown to her.
87. Since, the mother of the prosecutrix no. 2 did not support the prosecution story, she has been crossexamined by Ld. Addl. PP, where in she has deposed that her statement was not recorded by the police on 20.9.12. She has volunteered that she had gone to PS on 19.9.12. She has denied that her statement was recorded by the police on 20.9.12. She has not stated to the police in her statement, Mark PW 17/PA that her daughter disclosed to her that accused Vikram @ Vicky had committed rape upon her in Alto Car or that Sunil Sehrawat after threatening the prosecutrix no. 1, got her alighted from the car and took her in a room and there accused Sunil Sehrawat committed rape upon her and that State Vs. Devender Singh & Ors. Page No. 28 accused Devender Singh also accompanied Vikram @ Vicky and Sunil Sehrawat, at that time. She was present at the time of medical examination of her daughter in the hospital. Her daughter did not disclose to the doctor at the time of her medical examination that sexual assault had been committed upon her. She does not recollect that after the preliminary medical examination of her daughter, her daughter was referred to Gyane and that she also allowed her gynecological examination and that the clothes i.e. Kurti, Pajami, brazzier and panty of her daughter were taken into possession by the doctor. She has denied that due to lapse of time, she has forgotten the said facts. She has denied that clothes i.e. Kurti, Pajami, brazzier and panty Mark P1 (Colly) are the same clothes, which were taken into possession by the doctor or that the same belonged to her daughter or that she is intentionally not identified the clothes. She has denied that she has been won over by the accused persons and deposed falsely.
88. In crossexamination by Ld. Counsel for accused Vikram @ Vicky, PW17 has admitted that her signatures were obtained by the police on blank papers.
89. An opportunity to crossexamine the witness was given to Ld. Counsel for other accused but they did not avail of that opportunity.
90. The other material witness is PW19 Meera. She is the mother of prosecutrix no. 1. This witness has also not supported the prosecution story and deposed that in the year 2012, the date and month she does not remember, her daughter went to her college at about 8/9 am.
State Vs. Devender Singh & Ors. Page No. 29In the noon time, she received telephonic call from PS Bawana, who informed her that a quarrel had taken place between her daughter and one boy and she was asked to reach the PS. She went to PS Bawana, where police officer told her that prosecutrix had to go to the hospital for the medical examination as she had sustained injuries. Her Daughter was taken to M. V. Hospital, where she was medically examined. Her statement was recorded by the IO. She does not know anything about the case.
91. In crossexamination by Ld. Addl. PP, PW19 has deposed that her statement was not recorded by the police on 20.9.12. She has volunteered that she had gone to the PS on 19.9.12. She has denied that her statement was recorded on 20.9.12. She has not stated to the police in her statement that on 20.9.12 her daughter disclosed to her that accused Vikram @ Vicky had committed rape upon prosecutrix no. 2 in Alto Car and that Sunil Sehrawat after threatening her daughter and after getting her alighted from the car took her in a room and there he committed rape upon her daughter and that Devender Singh was also accompanied Vikram @ Vicky and Sunil Sehrawat at that time. She was present at the time of medical examination of her daughter in the hospital. Her daughter had not disclosed to the doctor at the time of her medical examination that sexual assault had been committed upon her. She has denied that her daughter (prosecutrix no. 1) disclosed to the doctor in alleged history, at the time of medical examination, that sexual assault was committed. She does not recollect that after preliminary medial State Vs. Devender Singh & Ors. Page No. 30 examination of her daughter she was referred to Gyane. She has denied that due to lapse of time, she has forgotten the said facts. She has denied that she has been won over by the accused and is deposing falsely.
92. In crossexamination by Ld. Counsel for the accused Sunil Sehrawat, PW19 has admitted that her signature were obtained by the police on various blank papers.
93. An opportunity to crossexamine the witness was given to Ld. Counsel for other accused but they did not avail of that opportunity.
94. It is worth noting that the FSL result, which is per se admissible under section 293 Cr. PC and is lying on record is also in favour of the accused as no semen was deducted on the jeans, ladies top and panty, on Vaginal swab, vulval swab and pubic hair of prosecutrix no. 1. Moreover, semen was also not deducted on the kurti, pazami, panty and brassiere, vaginal swab, vulval swab, anal swab and pubic hair of prosecutrix no. 2 as well as on quilt. Further, the semens was also not deducted on the clothes pieces i.e. cuttings from the front left seat of alto car.
95. Since, the semen could not be deducted on the clothes and viginal swab of both the prosecutrixes, the DNA analysis of the exhibits could not be done, as per the FSL report.
96. It is significant to note that in the present matter, the proseuctrix no. 1 and prosecutrix no. 2 are both major and as they were studying in college. Both of them have not supported the prosecution story. PW8 ie. Proseuctrix no. 1 had categorically deposed that no State Vs. Devender Singh & Ors. Page No. 31 wrong act was committed upon her. In crossexamination by Ld. Addl. PP she has denied all the suggestions and contents of her statements Ex. PW 8/A and PW 8/B which were put her by Ld. Addl. PP. She has categorically denied that on 18.9.2012, at about 12.30pm, at Bawana Kanjahawla Road, before DC Office, Service Station Kanjhawala, accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh in furtherance of their common intention abducted the prosecutrix and her friend with intent to cause them to be secretly and wrongfully confine and to seduce them to illicit intercourse and thereafter, they committed gang rape upon her. She has further denied that all the accused namely Vikram @ Vicky, Sunil Sehrawat and Devender Singh in furtherance of their common intention also assaulted and used criminal force upon prosecutrix no. 2 with intend to outrage her modesty. She has further denied that all the accused, namely, Vikram @ Vicky, Sunil Sehrawat and Devender Singh criminal intimidated them (both prosecutrixes) to kill their parents if they disclosed the incident to any one.
97. Similarly, PW11, the other prosecutrix has also not supported the prosecution story and categorically deposed that no one has committed 'galat kaam' with her. She has not identified accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh. In cross examination by Ld. Addl. PP she has denied all the suggestions, which were put to her by Ld. Addl. PP. She has denied of having made statement Ex. PW 11/PX to the police.
98. It is significant to note that prosecutrix no. 1 and 2 have State Vs. Devender Singh & Ors. Page No. 32 categorically deposed that police obtained their signatures on blank papers in the PS. They have categorically denied that accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh had committed gang rape upon them.
99. Similarly, the mothers of both the proseuctrixes have also not supported the prosecution story and have denied of having made the statement to the police.
100. Since, the star witnesses of the case and other material witnesses have not supported the prosecution story and FSL is also in favour of the accused. I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against the accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh.
101. Accordingly, the accused Vikram @ Vicky, Sunil Sehrawat and Devender Singh are acquitted of the offences, they were charged with.
102. Now, I am taking the case of accused Manoj. He has been charged in respect of offence under Section 212 IPC.
103. However, after going through the testimony of prosecution witnesses, I am of the considered view that prosecution has also miserably failed to prove the said offence against the accused Manoj.
104. It is significant to note, as per prosecution case, accused Manoj concealed accused Sunil Sehrawat by proving his car No. DL 8C Q 7000 and Flat no. 467, Pocket4, Sector11, Dwarka. However, there is no material on record to show that the car No. DL 8C Q 7000 and Flat State Vs. Devender Singh & Ors. Page No. 33 no. 467, Pocket4, Sector11, Dwarka belonged to accused Manoj.
105. It is worth noting that PW18 Sushma has categorically deposed that she is the registered owner of Scorpio car no. DL 8C Q 7000. She got released the car on superdari. It is worth noting that PW 18 Sushma is the wife of one Surender Singh and not of accused Manoj. Prosecution has not examined any other witness to prove that accused Manoj is the relative of PW18 Sushma, who is owner of Scorpio Car no. DL 8C Q 7000 and she had given the said car to accused and Manoj had further provided the car to accused Sunil Sehrawat.
106. Further, the prosecution has miserably failed to prove on record that the flat no. 467, Pocket4, Sector11, Dwarka was owned by accused Moanj and he concealed accused Sunil Sehrawat in that flat. It is significant to note that the said flat was visited by IO W/SI Ritu during investigation along with PW3 Yad Ram. PW3 has deposed that on 25.9.2012, he joined the investigation of the case along with IO. Accused Sunil Sehrawat led the police party to Flat no. 467, Pocket4, Sector11, Dwarka, from where one mobile phone make 'Hawai Tata Docomo' got recovered by accused Sunil Sehrawat , which was taken into possession vide memo Ex. PW 3/G.
107. In crossexamination by Ld. Counsel for the accused Sunil Sehrawat, PW3 has deposed that he does not remember as to who was the owner of the Flat no. 467, Pocket4, Sector11, Dwarka. He cannot tell, who was in possession of said flat, when they went there. He does not remember as to who opened the door of the flat at that time. One State Vs. Devender Singh & Ors. Page No. 34 male person was present at that time but he cannot tell his name. He cannot tell as to how he was related to accused Sunil Sehrawat. At the time of recovery of alleged mobile that person was asked to join the investigation but he refused. No action was taken against him. His name and parentage were also not noted down by the IO. He has denied that he never visited the above mentioned flat.
108. Moreover, the mobile phone, which was recovered at the instance of accused Sunil from flat no. 467, Pocket4, Sector11, Dwarka does not belong to accused Sunil and the same belonged to one Gurdeep Singh as per the Customber Application Form (CAF) Ex. PW 14/A.
109. Since, there is no material on record to connect the accused Manoj with the alleged commission of offence under Section 212 IPC, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against accused Manoj.
110. Accordingly, the accused Manoj is also acquitted of the offence, he was charged with.
111. In the present case, accused Devender Singh and Manoj are on bail. There personal bonds and surety bonds are hereby cancelled. Their respective sureties are discharged. Accused Vikcy @ Vikram and Sunil Sehrawat are in JC. Theybe released immidately, if not required in any other case.
112. However, in term of Section 437 (A) Cr.PC, the accused persons have furnished fresh personal bond in the sum of Rs.10,000/ State Vs. Devender Singh & Ors. Page No. 35 each with one surety of the like amount which are accepted for a period of six months with the directions to appear before higher court, in the event, they receive any notice of appeal or petition against the judgment.
File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on this 10th February, 2017 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State Vs. Devender Singh & Ors. Page No. 36