Delhi District Court
State vs Harpreet Singh -:: Page 1 Of 42 ::- on 28 July, 2015
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
State
Versus
Mr.Harpreet Singh @ Sonu
Son of Mr.Pyara Singh,
Resident of Village Ladda Munda, PS Ghumman,
Tehsil Batala, District Gurdaspur, Punjab.
First Information Report Number : 181/08.
Police Station Tilak Nagar,
Under sections 365, 366, 376,342, 493,496,174A, and 34
of the Indian Penal Code.
Date of filing of the supplementary charge sheet : 03.11.2012.
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 05.02.2013.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 27.07.2015.
Date of judgment : 27.07.2015.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. Bhupinder Singh.
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Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar,
Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 1 of 42 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self- sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1.This case falls in the category of 20 oldest cases and is listed at serial number 14 in the list of 20 oldest cases. A sincere endevour has been made to dispose off this case expeditiously.
PROSECUTION CASE
2.Mr. Harpreet Singh, the accused, has been charge sheeted by Police Station Tilak Nagar, Delhi for the offence under sections 365/366/376/342/493/496 and 174 A of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 24.02.2008 at about 6.00 am at Chaukhandi, Mother Dairy within the jurisdiction of Police Station Tilak Nagar, he along with co-accused Harjeet Singh (already acquitted vide judgment dated 06.04.2009 of the Court of learned Additional Sessions Judge-03, West, Delhi) abducted the complainant /prosecutrix (name withheld to protect her identity) with intent to cause her to be secretly and wrongfully confined; on the aforesaid place, date and time he along with co-accused Harjeet Singh (already acquitted) abducted the complainant/prosecutrix with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry him against her will, or in order that she may be forced or seduced to illicit intercourse or Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 2 of 42 ::-
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knowing it to be likely that she will be forced or seduced to illicit intercourse; during the period 24.02.2008 to 08.05.2008 accused Harpreet Singh wrongfully confined prosecutrix at different places as mentioned by her in her statement to the police and during that period he committed rape upon prosecutrix on the pretext of marriage; and during trial accused Harpreet Singh failed to appear in the Court to face trial in the present case and he was declared proclaimed offender by the Court vide order dated 06.11.2009.
CHARGE SHEET AND COMMITTAL
3.After completion of the investigation, the supplementary challan was filed before the Court of the learned Metropolitan Magistrate on 03.11.2012 and after its committal, the case was assigned to this Special Fast Track -01, West Tis Hazari Courts Delhi vide order dated 05.02.2013.
4.Initially, the main charge sheet was filed against accused Mr.Harjeet Singh and accused Mr. Harpreet Singh @ Sonu with accused Mr. Harpreet Singh @ Sonu as Proclaimed Offender. Accused Mr.Harjeet Singh was acquitted vide judgment dated 06.04.2014 of the Court of learned Additional Sessions Judge-03, West, Delhi.
5.Subsequently, accused Mr. Harpreet Singh @ Sonu was arrested and produced on 03.11.2014 vide kalandra under section 41.1.(c) of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) and the supplementary chargesheet was filed against him on 17.01.2013 which was committed vide order dated 24.01.2013 and assigned to this Court vide order dated 05.02.2013 of the learned Sessions Judge, Delhi for 05.02.2013. Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 3 of 42 ::-
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CHARGE
6.After hearing arguments, charge for offence under sections
365/366/342/376/34 and 174 A of the IPC was framed against the accused Harpreet Singh vide order dated 20.12.2013 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7.In order to prove its case, the prosecution has examined as many as 25 witnesses i.e. ASI Nand Kishore, the Duty Officer who had recorded the formal FIR of the case, as PW1; the Prosecutrix as PW2; Ct.Vijay Lakshmi, who had taken the prosecutrix to DDU Hospital for medical examination, as PW3; Dr. Archana, who had been deputed to depose in place of Dr. Arif Jafari, who had medically examined the accused under her supervision, as PW4; HC Himmat Singh, witness of the investigation, as PW5; Dr. V.K.Soni, who had medically examined the prosecutrix, as PW6; Mr. Prashant Kumar Secretary DLSA, who had recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the prosecutrix, as PW7; Ct. Karan Singh, who had deposited the exhibits of the case at FSL Rohini, as PW8; Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL, as PW9; Dr. Devinder Singh Mahajan, who had produced the documents that prosecutrix had been admitted in the private hospital at Amritsar, as PW10; Mr. Hemant, MCD, who had produced the document i.e. birth register regarding the age proof of prosecutrix, as PW11; Ms. Sandeep Kaur, wife of the accused, as PW12; HC Ravinder Singh, who handed over the copy of FIR and rukka to the IO SI Rajani, as PW13; Ct. Suresh, who had Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 4 of 42 ::-
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taken the request letter for preparation of DNA profile (result), as PW14; Insp. Kamal Singh, who had obtained the NBWs against accused and also obtained process under section 82 and 83 Cr.P.C against him, as PW15; HC Anil Kumar, who had arrested the accused, after he had been declared P.O as per order of Ld. MM, as PW16; HC Mahabir Singh, the witness of investigation, as PW17; Dr. Manju Marwaha, who had examined the prosecutrix in Punjab, as PW18; Ct. Sunil Kumar, who had apprehended the accused, as PW19; Retd. SI Jassa Singh, as PW20; SI Basant Kumar, the first investigation officer of the case, as PW21; HC Janak Raj, MHCM of the case, as PW22; Dr. Sunita Seth, who had been deputed to depose in place of Dr. Nirmal, who had medically examined the prosecutrix, as PW23; the father of the prosecutrix, as PW24; SI Rajni Chopra, the second investigation officer of the case, as PW25.
8.The accused and his counsel have preferred not to cross examine PWs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 22, 23 and 25 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
9.The prosecution preferred not to examine Mr.Satinderpal Singh, Mr. Gurudayal Singh Dhillon, Mr.Bhupesh Kumar, Ahlmad in the Court of Mr. Devender Nayan, learned Metropolitan Magistrate, PS Tilak Nagar and Mr.Harvinder Singh submitting that their evidence are not relevant and the evidence of Mr. Harvinder Singh is repetitive in nature, as elaborated in the statements dated 16.07.2013, 06.08.2013 and 12.03.2014 of the Additional Public Prosecutor.
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
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STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE
CR.P.C.
10.In his statement under section 313 of the Cr.P.C., recorded on 07.04.2014 and thereafter on 25.07.2014, accused Harpreet Singh @ Sonu has controverted and rebutted the entire evidence against him submitting that he is innocent and he has not committed any offence. He has preferred not to lead defence evidence.
ARGUMENTS
11.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
12.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 365, 366, 342, 376, 34 and 174-A of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable. The accused has practically not cross examined the prosecutrix due to which her evidence is uncontroverted.
13.The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which otherwise is also without the details. There are several contradictions in the different statements of the prosecutrix. It is clear from the evidence of the prosecutrix that the accused is not the culprit as she has not identified him. Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
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DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
14.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
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search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
15.Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
16.The prosecution case unveils on 08.05.2008 when the prosecutrix (PW2) along with her father (PW24) came to PS Tilak Nagar and got her statement (Ex.PW2/A) recorded by IO/SI Rajni Chopra (PW25) who prepared rukka (Ex.PW25/A) and handed over this rukka to duty officer for registration of case. IO/SI Rajni (PW25) along with W/Ct. Vijay Lakshmi (PW3) and Ct. Himmat Singh (PW5) took the prosecutrix (PW2) to DDU hospital for her medical examination and the father of the prosecutrix had also accompanied them to the hospital and after the medical examination of the prosecutrix, the doctor had handed over the exhibits pertaining to the prosecutrix (PW2) to Ct. Vijay Lakshmi (PW3) which were produced before her and seized the same vide seizure (Ex.PW3/A) and in the meantime Ct. Ravinder (PW13) came to the PS with rukka and copy of FIR and handed over the same to her as the case was marked to her for conducting investigation. She put the FIR number on the seizure memo (Ex.PW3/A) and recorded the statement of Ct. Ravinder in the hospital. The doctor in the hospital informed IO/SI Rajni Chopra (PW25) that the prosecutrix (PW2) had been admitted in the hospital as she was having some gynecological problem. She instructed father of the prosecutrix to call the mother of the prosecutrix in the hospital and when mother of the prosecutrix reached the hospital, IO/SI Rajni Chopra (PW25) along with father of the prosecutrix, Ct. Vijay Lakshmi (PW3) and Ct. Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 8 of 42 ::-
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Himmat Singh(PW5) went to the spot i.e Chokhandi, Khyala near Mother Diary within the jurisdiction of PS Tilak Nagar and conducted inquiries at the spot from the persons passing from there regarding this case but no eye witness was found available. IO/SI Rajni Chopra (PW25) recorded the statement of father of the prosecutrix (PW24) under section 161 Cr.P.C. and she along with Ct. Vijay Lakshmi (PW3) and Ct. Himmat Singh(PW5) came back to PS Tilak Nagar. In the PS, she recorded the statement of Ct. Vijay Lakshmi and Ct. Himmat Singh under section 161 Cr.P.C. and deposited the case property in malkhana. On 14.05.2008, the father of the prosecutrix came to PS and produced the date of birth certificate of the prosecutrix showing her date of birth and same was seized by vide seizure memo (Ex. PW3/B) and the copy of birth certificate is marked as Mark B1. Thereafter, IO/SI Rajni Chopra (PW25) got recorded the statement of prosecutrix under section 164 Cr.P.C. on her application requesting the Court for recording the statement (Ex. PW25/B) and obtained a copy on her application requesting the Court for providing the statement of victim (Ex. PW25/C). IO/SI Rajni Chopra (PW25) had made efforts to search for the accused and co-accused Harjeet Singh (already aquitted). Despite her efforts, the accused could not be located and she formally arrested accused Harjeet Singh (who has been acquitted by the Court) on 06.08.2008 as the accused Harjeet Singh had obtained anticipatory bail from the Court. During investigation the prosecutrix had given her two photographs (Mark X and X1.) showing the identity of accused Harjeet Singh. Since the investigation of the present case remained with IO/SI Rajni Chopra (PW25), SHO had twice sent the male police officials to the native place of the accused in District Gurdaspur, Punjab for his arrest but he could not be found as he was absconding from there. On Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
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08.05.2008, SI Rajni (PW25) handed over the rukka to ASI Nand Kishore (PW1) for registration of FIR. On the basis of the same ASI Nand Kishore (PW1) registered the FIR (Ex.PW1/A). On 08.05.2008, duty officer ASI Nand Kishore (PW1) had handed over the original rukka and copy of FIR to HC Ravinder Singh (PW13) with directions to hand over the same to SI Rajni Chopra (PW25) for investigation and he came to DDU hospital along with copy of FIR and rukka and handed over the same to SI Rajni (PW25). On 20.05.2008, the statement of the prosecutrix under section 164 Cr.P.C. (Ex.PW2/B) was recorded by Mr. Prashant Kumar, learned Metropolitan Magistrate (PW7). On 30.11.2008, Inspector Kamal Singh (PW15) received the present file from the MHC (R) Tilak Nagar and on that day he moved an application before learned concerned Metropolitan Magistrate of PS Tilak Nagar on 11.12.2008 for obtaining the NBWs against the accused and the same was allowed and the raid was conducted several time at Punjab for apprehending him but you were not found at the given address and accordingly he also obtained the process under section 82 and 83 Cr.PC against him. On 23.08.2009, retired SI Jassa Singh (PW20) had joined the investigation of this case and process under section 82 and 83 Cr.PC had already been issued against the accused by the Court of learned Metropolitan Magistrate and he searched for the accused but he was not traceable and on 06.11.2009, the accused Mr.Harpreet Singh @ Sonu was declared Proclaimed Offender by the Court of learned area Metropolitan Magistrate. After the completion of the investigation, he prepared the chargesheet against accused Harjeet Singh (who was on bail) and you (accused Harpreet Singh was P.O) and filed the same on 10.12.2009. On 02.11.2012, at the instance of secret informer, accused Mr.Harpreet Singh @ Sonu was apprehended. Accused Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 10 of 42 ::-
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Mr.Harpreet Singh @ Sonu had been declared P.O on 06.11.2009 as per order of Mr. Mahinder Virat, learned MM, THC, Delhi and he was arrested vide arrest memo (Ex.PW16/A) and his personal search was taken vide personal search memo (Ex.PW16/B). On 03.11.2012, HC Anil Kumar (PW16) had prepared Kalandara under section 41.1 (c) Cr.P.C. (Ex. PW16/C) and the remaining documents of the Kalandara (Ex.PW21/Z1 to Ex. PW21/Z3) and information in this regard was recorded vide DD no. 22 B (Ex.PW21/X) and photocopy of all the relevant documents (Ex.PW21/Z1 to Ex.PW21/Z3 and Ex.PW16/A to Ex.PW16/C) pertaining to accused Mr.Harpreet Singh @ Sonu. On 16.07.2013, HC Mahabir Singh (PW17) joined the investigation of this case along with SI Basant Kumar (PW21) and accused Mr.Harpreet Singh @ Sonu was produced before the learned Metropolitan Magistrate by the P.O staff of PS Greater Kailash with the permission of the learned Metropolitan Magistrate and IO/SI Basant Kumar (PW21) made inquiries from the accused and arrested him vide arrest memo (Ex.PW17/A) and he confessed his crime vide disclosure statement (Ex.PW17/B). As per the order of the learned Metropolitan Magistrate, the accused were sent for four days police remand. The accused led the police team to Chowkhandi near Mother Diary, Tilak Nagar and pointed out the place from where he had kidnapped the prosecutrix and taken her to Punjab. The accused was sent to DDU hospital for his medical examination where he was medically examined by Dr. Arif Jafri under the supervision Dr. Archana (PW4) vide MLC (Ex. PW4/A) and after his medical examination, the doctor hand handed over one sealed pullanda along with sample seal to SI Basant Kumar (PW21) and were seized by IO vide seizure memo (Ex.PW17/C). The accused also led them to the house and pointed out the place vide pointing out memo (ExPW17/D) Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
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where the prosecutrix (PW2) was kept locked and raped. On 08.05.2008, Ct. Vijay Lakhsmi (PW3) along with Ct. Himmat Singh (PW5) had taken the prosecutrix (PW2) to DDU hospital for her medical examination where she was medically examined by Dr. V.K Soni (PW6) vide MLC no. (Ex.PW6/A) and after her medical examination, the doctor had handed over three sealed pullandas along with one sample seal pertaining to the prosecutrix (PW2) which were seized vide seizure memo (Ex.PW3/A). On 14.05.2008, the father of the prosecutrix had submitted the date of birth certificate of prosecutrix to IO and was seized vide seizure memo (Ex.PW3/B). Dr. Sunita Seth (PW23) has been deputed in place of Dr. Nirmal who has prepared MLC already (Ex.PW6/A) of the prosecutrix. On 08.05.2008, IO/SI Rajni Chopra (PW25) had deposited three sealed pullandas and one sample seals in the malkhana and the entry to this effect was made in register no. 19 at Sl. no. 4833 (Ex.PW22/A) and on 22.11.2012 case property along with one sample seal from malkhana were deposited by Ct. Karan Singh (PW8) and deposited the same in the office of FSL, Rohini vide RC no. 185/21/12 and entry to this effect was made (Ex.PW22/A). On 31.05.2013 Ct. Rajesh collected the case property along with its result from FSL and deposited the same in Malkhana vide entry (Ex.PW22/A). On 09.11.2012, while HC Janak Raj (PW22) was posted as MHCM, SI Basant Kumar (PW21) had deposited one sealed pullanda along with one sample seal and aforesaid pullanda was deposited in register no. 19 vide serial no. 6377 (Ex.PW22/B). On 22.11.2012, Ct. Karan Singh (PW 8) received the case property along with same seal from malkhana and deposited with the office of FSL Rohini vide RC no. 185/21/12 vide entry of the same (Ex.PW22/B). On 23.07.2013, Ct. Ramesh Kumar collected the case property along with its result from FSL and Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 12 of 42 ::-
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deposited the same in malkhana vide entry of the same (Ex.PW22/B). On 18.03.2008, the prosecutrix (PW2) had visited Marwaha Hospital, Punjab as she was suffering from common cold and fever and got a prescription (Ex.PW18/A). On 30.03.2008, the prosecutrix (PW2) came in the O.PD and was again examined vide (Ex.PW18/B) and her blood test was conducted vide blood test report (Ex.PW18/C). On 21.04.2008 prosecutrix (PW2) was admitted to Guru Nanak Medical College, Amritsar on complaint of fever and burning micturation for five days for which she was found to be having urinary tract infection and her treatment medical documents (Ex.PW10/A) were prepared. Mr. Hemant (PW11) had proved the date of birth of the prosecutrix and entry to the same effect was made at serial no.1081 (Ex.PW11/A). On 23.11.2012, Ct. Suresh (PW14) had submitted letter for preparation of DNA profile along with exhibits of to FSL, Rohini, Delhi. Ms.Sandeep Kaur (PW12), wife of the accused, had proved her marriage with him along with marriage certificate (Ex.PW12/A) and had also handed over the birth certificate of her daughters (Ex.PW12/B and Ex.PW12/C). On 22.11.2012, Ms. Sunita Gupta, Senior Scientific Officer (Biology) (PW-9) examined the exhibits of the case and gave her detailed report (Ex.PW9/A) and serological report (Ex.PW9/B).
17.The allegations of the prosecution against accused Mr.Harpreet Singh @ Sonu are that on 24.02.2008 at about 6.00 am at Chaukhandi, Mother Dairy within the jurisdiction of Police Station Tilak Nagar, he along with co-accused Harjeet Singh (already aquitted vide judgment dated 06.04.2009 of the Court of learned Additional Sessions Judge-03, West, Delhi) abducted the complainant /prosecutrix (name withheld to protect her identity) with intent to Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 13 of 42 ::-
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cause her to be secretly and wrongfully confined; on the aforesaid place, date and time he along with co-accused Harjeet Singh (already acquitted) abducted the complainant/prosecutrix with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry him against her will, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse; during the period 24.02.2008 to 08.05.2008 accused Harpreet Singh wrongfully confined prosecutrix at different places as mentioned by her in her statement to the police and during that period he committed rape upon prosecutrix on the pretext of marriage; and during trial accused Harpreet Singh failed to appear in the Court to face trial in the present case and he was declared proclaimed offender by the Court vide order dated 06.11.2009.
ALLEGATIONS OF SECTIONS 365/34, 366/34, 342 AND 376 OF THE IPC.
18.It is necessary to elaborate and discuss the statements of the prosecutrix.
19.PW2, the prosecutrix, has deposed that her date of birth is 07.08.1989. She knows accused Harpreet Singh @ Sonu, about 5 months prior to the date of occurrence. She has identified him. The marriage proposal of accused for her was initiated through some Mediator. Accused Harpreet Singh along with his brother in law namely Harjeet Singh visited their residence for marriage proposal in the year 2007. Accused took her mobile number as well as mobile number of her father for having talk regarding marriage proposal. Thereafter, accused started making phone calls on her mobile phone. Most of the times, accused used to call her on her mobile phone. She also used to call him on Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
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some occasions. She also liked the accused. The phone talks between them continued for about 5-6 months. On 23.02.2008, in the morning at around 06:00 am, she received a telephonic call from the accused. Accused informed her that he is standing near Mother Dairy, Choukhandi, Tilak Nagar. Accused called her at the aforesaid place. She reached there without telling anyone at home. Accused was standing at the said place along with his Bua - Sukhvinder Kaur @ Sukhi (Paternal Aunt), one of his friend namely Rinku and his brother in law Harjeet Singh. One Santro car of black colour was also parked there. Brother in law of the accused had a talk with her and he asked her to accompany them to Punjab where they would get her married to the accused. She refused saying that her family was not aware about her coming out of the house. They forcibly took her in the Santro Car to village Ladda Munda near Mehta Chowk in Punjab. Harjeet Singh, brother in law of accused got down from the car at Beas. Rest of the occupants as mentioned above reached the village in the morning on the next day. Then she did not see anyone except for the accused. The accused forcibly had physical relations with her despite her resistance and accused told her that he would be getting married. He also threatened to kill her family including her father and her siblings. Accused tortured her. He forcibly had physical relations with her 4-5 times on the same day. Next morning, his Bua Ms. Sukhvinder Kaur @ Sukhi came there. The accused with his Bua took her to his Bua's village i.e. Dhulka. He kept her there for 8-10 days and forcibly had physical relation with her. Then the accused shifted her to the house of his Bua's friend in village Timbowal. She did not know the name of his Bua's friend. There also she was kept confined and tortured. She was not given any food. Accused had physical relations forcibly with her there also. One aunty whose name she Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 15 of 42 ::-
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do not know and her daughter namely Ms.Sharan used to give her food sometimes. In between, when the accused was away for some marriage, she was kept without food for two days. She kept shouting for help but nobody came. On 04.05.2008, the accused came to meet her when she overheard Aunty and her daughter that accused had gone for some marriage. The accused fought with her and he had also beaten her and again forcibly had physical relations with her. In the fight, his phone had fallen down which the accused had not noticed. Thereafter, he left and she went to sleep. She woke up on hearing the bell of the phone. She disconnected the line as it would have been someone known to the accused and then telephoned her father. She told about everything to her father. He reached there on the morning of 05.05.2008. Aunty and her daughter did not permit her father to take her back to Delhi and then her father forcibly brought her from there against their wishes. They reached Delhi on the morning of 06.05.2008 and her father brought her to Police Station Tilak Nagar where her statement (Ex.PW2/A) was recorded by the police. The police took her to DDU Hospital where she was medically examined where her clothes and samples were taken. She was admitted in the hospital where she remained for 5-6 days. On 08-09.05.2008, her father had gone with the police to the house of the accused two or three times but he was not there. The police had taken her to the Court of learned Metropolitan Magistrate, where her statement under section 164 Cr.P.C. (Ex- PW2/B) was recorded. She has prayed that the accused may be punished for the offence he has committed against her. She can identify her clothes. However, when the innerwear i.e. a blue coloured underwear was shown to her, the prosecutrix stated that the same does not belong to her. She has further stated that her underwear which was the lady's panty was of the Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 16 of 42 ::-
-:: 17 ::-
turquoise colour while the underwear which has been produced today is of blue colour and is of very large size. In village Timbowal where she was kept confined in the house of friend of Bua of accused Harpreet Singh, she was not provided any food. One day, Aunty whose name she did not know but she was friend of Bua of accused, told her that accused Harpreet had already got married and she was not in position to do anything against him (Iski shadi ho choki hai, tu iska kuch nahin kar sakti). She has prayed that accused may be punished for the offence he has committed against her.
20.As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
21.In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that at the time of her medical examination, she was asked by the doctor to hand over her underwear which she was wearing at that time. She removed her underwear and kept the same on the table in the room where doctor was present. She denied the suggestion that the underwear shown to her on 31.08.2013 in this Court which had been produced by MHCM, PS Tilak Nagar was the same underwear which was taken by doctor from her. She denied the suggestion that she had not identified the underwear shown to her as long time had passed.
22.She has been cross examined on behalf of the accused. In her cross examination she has admitted that accused Harpreet Singh is not the same person who had committed the offence against her. The culprit was Mona and having hair upto shoulder and small beard without mustaches. She had seen Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 17 of 42 ::-
-:: 18 ::-
accused Harpreet Singh for the first time in the Court room during the Court proceedings and had never seen him earlier. Accused Harpreet Singh has not abducted her, wrongfully confined her, nor raped her nor committed any other offence against her. Accused Harpreet Singh is innocent and has been falsely implicated in this case. No body had asked her anything earlier. She had not been shown accused Harpreet Singh earlier during her evidence.
23.She has been re-examined by Additional Public Prosecutor for the State. In her re-examination, the prosecutrix has admitted that her statement on oath was recorded before this Hon'ble Court on 12.04.2013. She has admitted that she had stated truth before this Hon'ble Court on that day after taking the oath. She has admitted that she had stated everything truthfully and correctly to the police in her statement (Ex. PW2/A) and to the learned Metropolitan Magistrate in her statement (Ex. PW2/B). She had also deposed truthfully and correctly before the Court of Ms. Aditi Choudhary, learned Additional Sessions Judge in her evidence on 18.03.2010. She has denied the suggestion that she had correctly identified the accused in this Court on 12.04.2013 and today she is intentionally changing her statement with regard to his identification as she has been won over by the accused.
24.The accused preferred not to cross examine her again.
25.In her complaint/statement to the police (Ex.PW2/A), the prosecutrix has stated that her elder sister (name mentioned in file and withheld to protect the identity of the prosecutrix) is married with Mr.Harjeet Singh. She had met accused Harpreet Singh @ Sonu through her brother in law Mr.Harjeet Singh. Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 18 of 42 ::-
-:: 19 ::-
She and Sonu became friendly and fell in love. They used to talk on phone. Accused Harpreet Singh @ Sonu had proposed marriage to her which was acceptable to her but her parents did not want her to marry. On 23.02.2008, accused Harpreet Singh @ Sonu has phoned her to come on next morning at 6.00 a.m at Chowkhandi, mother diary. When she reached there, accused Harpreet Singh @ Sonu with her brother in law Harjeet Singh was there. A car was also there. Her brother in law told her as she wanted to marry accused Harpreet Singh @ Sonu, he would get her married and they should sit in car. When she refused her brother in law, he told her not worry and he would talk to his father on which she sat in the car. Ms. Sukhwinder @ Sukhi, paternal aunt (bua) of accused Harpreet Singh @ Sonu and Rinkoo friend of accused were also sitting in the car. They took her to Punjab. Her brother in law got down at Beas. Accused Harpreet Singh @ Sonu took her to his house and at night he forcibly had physically relations with her despite her refusal. He told her that now she would become his wife after marriage. She told him that first the marriage should be done and then other things should be done but he said that if she did not do these things, he would not marry her and he would destroy her and her family. Then, accused Harpreet Singh @ Sonu forcibly had physical relations with her against her consent then he left in village Dhoolka with his paternal aunt where he used to come and have physical relations with her. Whenever, she used to ask her about marriage, he used to avoid her. Then he took her to village Timowal where on 02.05.2008, she came to know from his relative that he has got married to another girl. She contacted her parents and talked to her father on 04.05.2008 and told him everything. Her father came in car and brought her to Delhi. Accused Harpreet Singh @ Sonu had forcibly physical relations with her on the false Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 19 of 42 ::-
-:: 20 ::-
pretext of marriage.
26.In her statement under section 164 Cr.P.C. (Ex.PW2/B) she has stated before Ld. MM on the lines of the complaint.
27.The Additional Public Prosecutor has submitted that the accused has not cross examined the prosecutrix regarding all the allegations of his abducting her, knowing that she would be compelled to marry her, or she would be forced or seduced to illicit intercourse or knowing it to be likely that she would be forced or seduced to illicit intercourse, wrongfully confined and raped her and also he was declared P.O vide order dated 06.11.2009 as he was evading his arrest. The Additional Public Prosecutror has further submitted that athere was a gap between the examination in chief and cross examination of the prosecutrix by the accused, the prosecutrix has given evidence in favour of the accused in her cross examination, despite deposing against the accused and identifying him in her examination in chief. The Additional Public Prosecutor has referred the judgment reported as :
a.Gurcharan Singh Vs State Crl. Appeal no. 647/1999 (HC), decided on 16.12.2010.
b.Khujji alias Surendra Tiwari Vs State of M.P, AIR 1991 SC 1853 c.Kaushal Kishore Singh and anr. Vs State of U.P, AIR 2006, SC 951
28.It has been argued on behalf of the accused that the prosecutrix in her cross examination has categorically deposed that the accused is not the same person who has committed the offence and therefore there is nothing incriminating against him. It has been submitted on behalf of the accused that there were no gap between examination in chief and cross examination as the same were Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 20 of 42 ::-
-:: 21 ::-
conducted on the same date i.e 26.10.2013, therefore, there was no possibility of tampering with the evidence of the prosecutrix.
29.It is clear on perusal of the file especially the evidence of the prosecutrix that in her examination in chief was partly recorded on 12.04.2013, she has identified the accused. Her examination in chief was deferred as the case property had not been produced in the Court. She was further examined in chief partly on 31.08.2013 and her examination in chief was again deferred as Additional Public Prosecutor wanted a clarification from the Investigation Officer regarding the underwear of the prosecutrix. She was further examined in chief on 26.10.2013. She was declared hostile by the prosecution since she had not identified her underwear and was cross examined by Additional Public Prosecutor for the State. She was subsequently cross examined by the counsel for the accused on 26.10.2013, re-examined by Additional Public Prosecutor and then the accused preferred not to cross examine her.
30.It is clear from the record that the prosecutrix is changing her stand regarding identifying of the accused as in her examination in chief on 12.04.2013, she has identified him. Thereafter, in her cross examination by the accused, she has not identified him as a culprit saying that he is not the person who is the culprit and who had committed the offence against her. She had seen accused Mr.Harpreet Singh @ Sonu for the first time in the Court room during Court proceedings. The culprit was a Mona and having hair upto shoulder and small beard without moustache. In her re-examination by the State, she has deposed that she has stated truth on 12.04.2103 after taking oath. However, she has denied the suggestion that she has correctly identified Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 21 of 42 ::-
-:: 22 ::-
the accused in the Court on 12.04.2013. It is clear that the prosecutrix is changing her stand regarding the identification of the accused Mr.Harpreet Singh @ Sonu in her examination in chief, cross examination by the State, cross examination by the accused and re examination by the State.
31.Here, it would be very relevant to go through the main charge sheet when accused Mr.Harjeet Singh was sent for trial and accused Harpreet Singh @ Sonu was a Proclaimed Offended. Accused Harjeet Singh had been acquitted vide judgment dated 06.04.2010 of the learned Additional Session Judge -03, West, Delhi. The file of accused Harjeet Singh is annexed with the case file of accused Harpreet Singh @ Sonu. In her evidence recorded on 18.03.2010, the prosecutrix had deposed on the lines of the complaint but has not assigned criminal role to Harjeet Singh. In her statement under section 164 Cr.P.C., she has stated before the learned Metropolitan Magistrate on the lines of the complaint. She was cross examined by Additional Public Prosecutor in which she has denied that on 23.02.2008, her jija asked her to come to Chaukhandi Mother diary on 24.02.2008 at 6.00 a.m and her jija and accused Harpreet Singh @ Sonu were present. She has also denied the suggestion that her Jija Harjeet Singh had introduced accused Harpreet Singh @ Sonu and it was her jija who had asked her to sit in Santro car and would make her father to understand for getting them to married. She has denied the suggestion that she was taken to Punjab, her jija Harjeet Singh got down at Beas.
32.In the case against accused Harjeet Singh, in evidence the prosecutrix has not assigned any criminal role to him. He is her brother in law. She has absolved him completely by denying that he had introduced accused Harpreet Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 22 of 42 ::-
-:: 23 ::-
Singh @ Sonu to her; he had come to the decided spot with accused Harpreet Singh @ Sonu and made her sit in the car and convinced her to go with him as he would make her family understand; he had go down at Beas. However, in the present case, she has narrated the role of Mr.Harjeet Singh saying that he is the brother in law of accused Harpreet Singh @ Sonu.
33.It is clear from the evidence of the prosecutrix that she is changing her stand regarding the identity of accused. She has given a different description of the culprit which does not match accused Harpreet Singh @ Sonu. In her re-examination by the Additional Public Prosecutor, the prosecutrix has denied the suggestion that she had correctly identified the accused on 12.04.2013 and she is intentionally changing her statement regarding his identification as she has been won over by him.
34.The State has not questioned which of her evidence is correct, the one recorded on 12.04.2013 or one recorded on 26.10.2013. In such situation, it cannot be said that the prosecutrix is deliberately helping the accused by not identifying her since the truthfulness of her evidence regarding the identification of the accused recorded on 12.04.2013 has not been clarified in her re-examination.
35.Also, her evidence regarding accused Harjeet Singh has also changed, as elaborated above especially regarding his role in helping accused Harpreet Singh @ Sonu abducting her; relationship of accused Harjeet Singh-as jija of prosecutrix or jija of accused.
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 23 of 42 ::-
-:: 24 ::-
36.It is also clear that the prosecutrix has changed the very initial part of her version in the prosecution story regarding accused Mr.Harjeet Singh- her brother in law who introduced her to the accused Harpreet Singh @ Sonu and his being there at Chowkhandi Mother Dairy and making her go with accused Harpreet Singh @ Sonu and others to Punjab and his getting down at Beas.
37.In her evidence, in the case of accused Harjeet Singh, she has categorically not deposed anything regarding Harjeet Singh being the person who had introduced accused Sonu to her and his role in the case regarding his going along with them in a car at 6.00 a.m at Chowkhandi mother diary. However, in her evidence before the Court in the present case of accused Harpreet Singh @ Sonu, she has deposed that Harjeet Singh had gone with Harpreet Singh @ Sonu, her version regarding role of Harjeet Singh is also changing in different statements.
38.When the prosecutrix has changed a very integral part of the complaint regarding accused Harpreet Singh, in the evidence dated 18.03.2010 in the case against accused Harjeet Singh when accused Harpreet Singh @ Sonu was PO, and in her evidence dated 12.04.2013, after the arrest of accused Harpreet Singh @ Sonu. When one part of her complaint is changed then the second part can not be said to reliable. When the beginning part of the prosecution story regarding the role of accused Harjit Singh is not supported by the prosecutrix, then later part of her complaint cannot be believed. In fact, in the evidence dated 18.03.2010 in the case against accused Harjeet Singh when accused Harpreet Singh @ Sonu was PO, the prosecutrix has not assigned any criminal role to accused Harjeet Singh. She has only deposed that he is Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 24 of 42 ::-
-:: 25 ::-
married to her sister and she does not any of his friends. The prosecution cannot take advantage of one part of her evidence and ignore the other. The evidence of the prosecutrix in totality has to be taken into consideration. When she says on 18.03.2010 that accused Harjeet Singh, her brother in law, has not done anything then her evidence on 12.04.2013 also has to indicate that accused Harjeet Singh, brother in law of the accused, also has not done anything.
39.Further, her evidence regarding identification of accused Harpreet Singh @ Sonu has also changed. The prosecution has not been able to show that one of the depositions of the prosecutrix regarding her identifying accused Harpreet Singh @ Sonu is correct.
40.Further, it can be seen that the version which the prosecutrix has given in her examination in chief on 12.04.2013, 31.08.2013 and 26.10.2013 is too far fetched and cannot be believable. She leaves her house without telling anyone on 24.02.2008 and meets accused Harpreet Singh @ Sonu at 06:00 am at Chaukhandi Mother Dairy who has come in a Santro car with His Bua Ms.Sukhvinder Kaur @ Sukhi and friend Mr.Rinku and she goes with them without any resistance. She did not shout for help or raise alarm during her travel to Punjab. Even when accused Harpreet Singh @ Sonu committed rape upon her saying that he will marry her or when he threatened to destroy her family or when he got married to another girl, she still did not shout for help or raise alarm. She suddenly managed to have access to the mobile phone of the accused and contacted her father who came to Punjab and picked her up from ATM. This would indicate that the prosecutrix was free to move about Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 25 of 42 ::-
-:: 26 ::-
in Punjab otherwise she could not have gone to the ATM. She has also not identified the underwear produced in the Court. All these facts throw a doubt on the version projected in the complaint (Ex.PW2/A) and her evidence. Her evidence does not appear to be believable and reliable.
41.The judgments relied upon by the prosecution are not applicable to the given facts. The same elucidate the principle that evidence of a hostile witness can be relied upon when there is a gap between the examination in chief and the cross examination as the witness is won over in the meanwhile. In the present case, although there is a gap between the examination in chief recorded on 12.04.2013 and the cross examination on 26.10.2013 but the judgments do not help as the evidence of the prosecutrix, itself is not believable, reliable and trust worthy, as discussed above. It is not worthy of credence and does not inspire confidence.
42.The Additional Public Prosecutor has referred to the application for bail of the accused which was filed on 26.08.2013, para 6 to 8 submitting that accused Harpreet Singh @ Sonu has admitted having physical relations with the prosecutrix and therefore, it cannot be said that he is not a man who is the culprit, although the prosecutrix in his examination has said that accused present in the Court is not the culprit and has not committed offence against her.
43.However, the submission of Additional Public Prosecutor regarding the contents of the bail application filed on 26.08.2013 do not effect the merits of the case and the same is only in the bail application and it is the evidence Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 26 of 42 ::-
-:: 27 ::-
which is the material and which is to be considered. Even otherwise, the case of the prosecution has to stand on its own legs and cannot take advantage of his weakness in the defence.
44.It is clear from the evidence of the prosecutrix that she is changing her stand regarding the identity of accused Harpreet Singh @ Sonu and the role of accused Harjeet Singh as well as her relationship with him. In such situation, it cannot be said that the prosecutrix is deliberately helping the accused Harpreet Singh @ Sonu by not identifying him since the truthfulness of her evidence recorded on 12.04.2013 have not been clarified.
45.The father of the prosecutrix has deposed that the prosecutrix was having affair with boy named Sonu and he suspected that she may have gone with him. He had overheard her talking on the phone with the boy. After 2 ½ months of his daughter missing from house he had received missed call on mobile phone of unknown number. After sometime, he made call from his mobile phone and it was picked up by his daughter. She told him that she was somewhere in Punjab near Amritsar and asked him to take her back. Next day, he alongwith his nephew Mr. Amarjeet went to Amritsar (Punjab) where his daughter was present near ATM in a village at a distance of about 20-25 Km from Amritsar and he brought her back. As she was not well and was admitted in DDU hospital. He also informed the police regarding the admission of his daughter. He was declared hostile by the prosecution and in his cross examination by the Additional Public Prosecutor, he has admitted that the complaint dated 24.02.2008 Mark X and has also admitted the facts in the said complaint. He has also admitted that his daughter was insisting them Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 27 of 42 ::-
-:: 28 ::-
that they should marry her with one Mr. Sonu who is resident of Punjab and with whom she was in love. The police had recorded his statement but his statement in writing was not recorded by the police in his presence. He has denied the contents of his statement (Ex. PW7/B).
46.Here it may also be mentioned that father of the prosecutrix was examined as PW7 in trial of accused Harjeet Singh and father of the prosecutrix was declared hostile in his cross examination by the State. He has deposed that the police had recorded his statement but he has denied the contents of his statement.
47.Here it may also be mentioned that there is no medical or forensic evidence to connect accused Harpreet Singh @ Sonu to the crime. The evidence of the other witnesses including the doctors, official and formal witnesses is not required to be discussed as the evidence of the prosecutrix itself is neither reliable nor trustworthy not believable.
48.The veracity of the testimony of the prosecutrix, as mentioned in her examination in chief, is shattered in her cross examination, which makes it highly improbable that such incidents, as alleged by her, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 28 of 42 ::-
-:: 29 ::-
The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the prosecution case against the accused is false.
49.The prosecutrix has changed the very foundation of the prosecution version, as elaborated in her complaint / statement (Ex.PW2/A) regarding the role of accused Harjeet Singh and his relationship with her. When a fatal blow is given to the inherent story, then the remaining part also becomes unbelievable. When the evidence of the prosecutrix is not trustworthy regarding accused Harjeet Singh, it cannot be trustworthy regarding accused Harpreet Singh @ Sonu. She has also given different versions in her complaint, evidence on 18.03.2010 and evidence of 12.04.2013, 31.08.2013 and 26.10.2013. She has not identified the underwear produced in the Court. She has also given different versions regarding the identification of accused Harpreet Singh @ Sonu.
50.The testimony of the prosecutrix is full of contradictions and it is not corroborated by other evidence on record. In such a situation, the accused becomes entitled to be acquitted. Reliance can be placed upon the judgment reported as Om Prakash alias Kalia v. State, 2011 (1) JCC 391.
51.Therefore, it cannot be said that the accused Harpreet Singh @ Sonu had abducted the prosecutrix, confined her, raped her or threatened her. On careful perusal of the evidence of the prosecutrix it transpires that there are several overwhelming contradictions and inconsistencies are revealed in her different statements which give a shattering blow to the case.
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 29 of 42 ::-
-:: 30 ::-
52.The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of threat, rape and blackmail against the accused.
53.In the light of the aforesaid nature of deposition of the prosecutrix (PW2) who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
54.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 30 of 42 ::-
-:: 31 ::-
55.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
56.In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
57.In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
58.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
59.Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material and there being no forensic Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 31 of 42 ::-
-:: 32 ::-
or medical evidence, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
60.If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
61.Consequently, no inference can be drawn that the accused is guilty of the charged offences that he had abducted, confined, threatened and raped the prosecutrix as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the accused committed any offence against the Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 32 of 42 ::-
-:: 33 ::-
prosecutrix.
62.Consequently, accused Mr.Harpreet Singh @ Sonu merits to be acquitted of the offences under sections 365/34, 366/34, 342 and 376 of the IPC as the prosecution has failed to bring home the charge for the said offences.
SECTION 174 A OF THE IPC
63.The prosecution case is that accused Harpreet Singh @ Sonu was absconding and evading his arrest and not making himself for investigation due to which he was declared a Proclaimed Offender vide order dated 06.11.2009 of the Court of Mr. Mahinder Virat, learned Metropolitan Magistrate, THC, Delhi. Subsequently, accused Mr. Harpreet Singh @ Sonu was arrested and produced on 03.11.2014 vide kalandra under section 41.1.(c) of the Cr.P.C. and the supplementary chargesheet was filed against him on 17.01.2013.
64.In order to prove this charge, the prosecution has examined PW15- Insp.Kamal Singh, PW16-HC Anil Kumar, PW17-HC Mahabir Singh, PW19- Ct.Sunnil Kumar, PW20-Retired SI Jassa Singh and PW21-SI Basant Kumar. The accused and his counsel have preferred not to cross examine PWs 16 and 19 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
65.Insp Kamal Singh has proved that he moved an application before the Ld. Concerned MM of PS Tilak Nagar on 11.12.2008 for obtaining the NBWs Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 33 of 42 ::-
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against accused Harpreet Singh @ Sonu. The same was allowed and the raid was conducted several times at Punjab for apprehending accused Harpreet Singh but he was not found at the given address. He accordingly also obtained the process under section 82 and 83 Cr. P.C against the accused Harpreet Singh @ Sonu. SI Jassa Singh has proved that accused Harpreet Singh @ Sonu was declared a Proclaimed Offender on 06.11.2009. Thereafter, he was arrested by the PO staff by PWs 16 and 19 from his native village vide arrest memo (Ex.PW16/A) and his personal search was taken vide personal search memo (Ex.PW16/B). He was brought to Delhi, got medically examined and kalandra (Ex.PW16/C) was presented.
66.Thereafter, PWs 17 and 21 arrested accused Harpreet Singh @ Sonu in the Court vide arrest memo (Ex.PW17/A) and he made a disclosure (Ex.PW17/B).
67.Although PW20, in his cross examination has admitted that the family members of the accused informed him that accused was not available as he had gone out of country but this deposition does not help the accused as he still did not make himself available for investigation even after his family members were aware about the present case.
68.It is clear on perusal of the record that accused Mr. Harpreet Singh @ Sonu was declared Proclaimed Offender vide order dated 06.11.2009, subsequently arrested on 03.11.2012, kalandra presented and he has been chargesheeted for offences including under section 174 (A) of the Indian Penal Code.
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 34 of 42 ::-
-:: 35 ::-
69.The prosecution has successfully proved that the accused Harpreet Singh @ Sonu was evading his arrest and absconding. Even despite issuance of NBWs and process under sections 82 and 83 Cr.P.C., he did not make himself available due to which he was Proclaimed Offender. The accused has not led any evidence in his defence to counter his being declared P.O.
70.Therefore, it is clear that prosecution has been able to successfully prove that accused Mr. Harpreet Singh @ Sonu was declared Proclaimed Offender as he was evading his arrest and he is guilty under section 174 A of the IPC.
CONCLUSION
71.Since the prosecutrix as PW2 is neither reliable nor believable as there are overwhelming contradictions in her different statements, and the above discussion, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused for the offences under sections 365/34, 366/34, 342 and 376 of the IPC. The prosecution story does not inspire confidence and is not worthy of credence regarding the offences under sections 365/34, 366/34, 342 and 376 of the IPC.
72.From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish abduction, confinement, rape and threat by the accused Harpreet Singh @ Sonu. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 35 of 42 ::-
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place.
73.However, the prosecution has been able to successfully prove its case under section 174 A of the IPC against Harpreet Singh @ Sonu.
74.In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
i.The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
ii.The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii.The circumstances should be of conclusive nature and tendency; iv.They should exclude every possible hypothesis except the one to be proved; and v.There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
75.Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Harapreet Singh @ Sonu is not established as of the culprit. It also stands established that the accused had not abducted, confined and raped the prosecutrix. There is no medical or forensic or circumstantial evidence to show that such an offence has ever been committed. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 36 of 42 ::-
-:: 37 ::-
76.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Harpreet Singh @ Sonu for the offences under sections 365/34, 366/34, 342 and 376 of the IPC. The prosecution has been able to prove the charge under section 174 A of the IPC against accused Harpreet Singh @ Sonu.
77.Accordingly, Mr.Harpreet Singh @ Sonu, the accused, is hereby acquitted of the charge for the offence punishable under sections 365/34, 366/34, 342 and 376 of the IPC and he is convicted for the offence punishable under section 174 A of the IPC.
78.Let him be heard on the point of sentence.
79.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 27th day of July, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 37 of 42 ::-
-:: 38 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
State
Versus
Mr. Harpreet Singh @ Sonu
Son of Mr.Pyara Singh,
Resident of Village Ladda Munda, PS Ghumman
Tehsil Batala, District Gurdaspur, Punjab.
First Information Report Number : 181/2008
Police Station Tilak Nagar,
Under sections 365, 366, 376, 342,493,496,174A and 34 of the Indian Penal Code.
Date of filing of the supplementary charge sheet before the Court of the Metropolitan Magistrate : 03.11.2012. Date of transfer of the file to this Court : 05.02.2013. ASJ (SFTC)-01, West, THC, Delhi.
Date of judgment : 27.07.2015. Arguments on sentence concluded on : 28.07.2015. Date of order on sentence : 28.07.2015.
Appearances: Ms.Promila Singh, Additional Public Prosecutor is on leave today.
Mr.Ateeq Ahmed, Substitute Additional Public Prosecutor for State.
Convict on bail with counsel Mr. Bhupinder Singh.
*************************************************************** Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 38 of 42 ::-
-:: 39 ::-
ORDER ON SENTENCE
1. In pursuance of judgment dated 27.07.2015 of by this Court acquitting the accused Mr. Harpreet Singh @ Sonu under sections 365/34, 366/34, 342 and 376 of the Indian Penal Code(hereinafter referred to as the IPC) and convicting the accused namely Mr. Harpreet Singh @ Sonu for offences punishable under sections 174 A of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the Substitute Additional Public Prosecutor for the State and the counsel for the convict as well as the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
2. The Additional Public Prosecutor for the State has requested, on 27.07.2015, and the Substitute Additional Public Prosecutor has requested today i.e. on 28.07.2015, for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him as he had absconded and was evading his arrest due to which he was declared Proclaimed Offender.
3. The convict, on the other hand, has requested for a lenient view to be taken against him and for his release on probation as the convict hails from a modest family. The convict has submitted that he is aged about 27 years and is married with two children and his aged parents are also living with him. He is presently not working although he was earlier Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 39 of 42 ::-
-:: 40 ::-
selling fertilizers, seeds etc. He was in custody w.e.f. 03.11.2012 to 25.11.2013. He is a first offender and has never committed any offence earlier. It is also submitted that he shall not commit any offence in future.
4. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict as he had absconded during investigation due to which he was declared a Proclaimed Offender.
5. Keeping in view the offence committed by the convict, I am inclined to take a lenient view against him and release him by giving him simple imprisonment for the period he has already remained in custody i.e. w.e.f 03.11.2012 to 25.11.2013 and the benefit of section 428 Cr. PC is granted to him.
6. Therefore, considering the facts and circumstances, I hereby sentence Mr. Harpreet Singh @ Sonu, the convict for offence under section 174 (A) of the IPC to simple imprisonment for the period he has already remained in custody i.e. w.e.f 03.11.2012 to 25.11.2013 and the benefit of section 428 Cr. PC is granted to him
7. Benefit of section 428 of the Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict has been acquitted for the offences under Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 40 of 42 ::-
-:: 41 ::-
sections 365/34, 366/34, 342 and 376 of the Indian Penal Code and the compliance of section 437 (A) Cr.PC is made, which is elaborated in the order sheet.
8. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
9. A copy of the judgment dated 27.07.2015 and a copy of the order on sentence dated 28.07.2015, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, namely, Mr.Harpreet Singh @ Sonu, free of cost immediately.
10. A copy of the judgment dated 27.07.2015 and a copy of the order on sentence dated 28.07.2015 also be given to the Substitute Additional Public Prosecutor, as requested.
11. After completion of the formalities and expiry of the period of limitation, the Ahlmad is directed to consign the file to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 41 of 42 ::-
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on this 28th day of July, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*************************************************************** Sessions Case Number : 78 of 2013.
Unique Case ID Number : 02401R0055622013.
FIR No.181/2008, Police Station Tilak Nagar, Under sections 365, 366, 376, 342, 493, 496,174A and 34 of the Indian Penal Code.
State versus Harpreet Singh -:: Page 42 of 42 ::-