Delhi District Court
State vs Ram Ashrey & Ors//Fir No.127/09.//S.C. ... on 13 September, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE:SPECIAL FAST TRACK
COURT:ROHINI :DELHI
Sessions Case No : 57420/16.
STATE
V/S
RAM ASHREY
S/O. SH. KAPIL DEV,
R/O. GALI NO.2, KUSHAK NO.2,
SWAROOP NAGAR,
DELHI.
FIR No : 127/09.
Police Station : SWAROOP NAGAR.
Under Section : 376/380/34 IPC.
Date of Committal to Sessions Court: 11.02.2016
Date on which Judgment reserved: 05.09.2019
Date on which Judgment announced: 13.09.2019
Present: Shri V.K. Negi, ld. Addl. PP for State.
Shri Amit Kumar, ld. Counsel for accused.
State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 1 of 10
JUDGMENT
1. Police had sent cancellation report against all accused persons with findings that the complainant and accused party were in the habit of registering false cases against each other to settle personal scores. The second ground was that the neighbours told that they had not heard / seen any incident happening with the prosecutrix. The 3 rd reason was that the daughter of one of the accused Ram Ashrey was to be married on 30.05.2009 and in order to derange the marriage, the prosecutrix had filed false case with the allegations that she was raped on 28.05.09. Next ground was that the prosecutrix had alleged that her mobile phone was also stolen by the accused persons but the phone was recovered from the possession of the complainant/victim herself. The next ground was that some of the accused had undergone polygraph test which was found in their favour. But the prosecutrix did not appear for that kind of test. The last ground was that the eyewitness Mala told police under Section 161 Cr.P.C. and under Section 164 Cr.P.C. that she had not seen anybody doing bad act with the prosecutrix.
2. After rejecting cancellation report, ld. MM sent notice to five accused. Ram Ashrey and his son Ravi appeared in the court whereas three accused persons namely Sonu, Rajender and Ajit were declared PO. On 28.02.2009, the case of accused Ravi was sent to Juvenile Justice Board. So, this judgment would decide case of accused Ram Ashrey only.
State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 2 of 10
3. The case FIR was registered on the statement of the prosecutrix to the effect that she was alone at home on 28.05.2009 at about 9:00 P.M., when someone knocked at the door. Her husband had gone out of the house for some work and so, she thought that it was he and hence, she opened the door and the persons namely Ram Ashrey, Rajender, Sonu, Ravi and Ajit and Ram Ashrey's brotherinlaw barged into the house. Ram Ashrey and Rajender pressed her neck and asked to show them the file of the case lodged by her. She got afraid and told them that she had not filed any case. Despite it, she was thrown on takhat. Sonu and Rajender caught her both hands and accused Ram Ashrey raped her and thereafter, she was raped by accused Rajender also. She got herself rescued from the accused and at that very moment, her neighbour Mala Devi came there and she also got scared after peeping in the house and hence, she ran away. When, she later checked her boxes, she found that Rs.15,000/, Nokia mobile phone, identity card and documents of the plot were found stolen. She herself went to the BJRM Hospital and gave intimation to police on 100 number.
4. Charge under Sections 376(2)(g)/380/34 IPC was framed against accused on 26.05.2016 to which he pleaded not guilty and claimed trial.
5. In order to prove the case, the prosecution examined four witnesses.
6. PW4 SI Om Prakash is the first IO. He deposed that on receipt of DD No.63B on 29.05.2009, he alongwith Ct. Karambir State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 3 of 10 reached BJRM Hospital where the victim met them. W/Ct. Sunita also came there and she got conducted the medical examination of the victim. He next deposed that he recorded statement Ex.PW4/A of the prosecutrix, prepared rukka Ex.PW4/B and handed over to Ct. Karambir who went to the police station and got case FIR registered. Next deposition is that doctor handed him over exhibits of the prosecutrix, which he took into possession. He alongwith prosecutrix and W/Ct. Sunita went to the spot and prepared rough site plan Ex.PW4/C. In the meantime, Ct. Karambir came to the spot and handed him over original rukka and computerized copy of FIR. He could not arrest any of the accused despite his best efforts.
PW3 W/Inspector Durga Kapri is the 2nd IO. She deposed that further investigation was assigned to her on 12.06.2009. She got sent exhibits to the FSL Rohini through Ct. Abhimanyu on 22.06.2009. On 10.08.2009, she alongwith Ct. Karambir went to the house of the prosecutrix and recovered a mobile phone from her, which was alleged by her to have been stolen. The mobile was seized vide seizure memo Ex.PW3/A. She got recorded statement under Section 164 Cr.P.C. of public witness Mala Devi. He interrogated the accused and moved an application for their polygraph test which was allowed. The polygraph test of the accused Ram Ashrey and Ravi was conducted in CFSL, CGO Complex, Lodhi Road, New Delhi on 15.09.2009 and that of accused Sonu was conducted on 16.09.2009. She next deposed that she moved an application on 17.09.2009 for the polygraph test of the prosecutrix which State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 4 of 10 was allowed on the same day. She was transferred and hence, handed over case file to MHC(R) on 28.09.2009.
PW2 W/Inspector Sushila Rana is the last IO. She deposed that further investigation was assigned to her on 18.11.2009 and after going through the file, she came to know that polygraph test of accused Ram Ashrey, Sonu and Ravi had already been conducted. She visited the house of the victim to ask her to accompany her to CFSL but she refused. She refused for her statement also under Section 164 Cr.P.C. She again visited her house on 20.11.2009, but found the door locked from outside. Then, she visited CFSL, CBI Office, Lodhi Colony, New Delhi and got fixed the date of polygraph test of the prosecutrix as 08.12.2009. Thereafter, she visited victim's house several times but she was not available. She next deposed that she visited the house of the prosecutrix several times on 08.12.2009 also but she was untraceable. Then, she discussed the matter with senior police officers and filed cancellation report. She tendered in evidence the FSL, Rohini reports as Ex.P10 and Ex.P11 and Lie Detection report as Ex.P12.
7. PW1 Mala could not recollect the date, month and year but stated that it was 10 years back in summer season when she heard a noise of knocking at her door at about 8:30/9:00 P.M. When she opened the door, she found 34 persons standing in the street. She bolted the door from inside and again started preparing meal. The prosecutrix came to her house after sometime and requested to accompany her to the hospital as she was not feeling well. She took her to BJRM Hospital where she State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 5 of 10 was treated. After seeing the accused Ram Ashrey in the court, she deposed that she had not seen him at any point of time.
8. The accused admitted following documents and statements under Section 294 Cr.P.C.: S. No Name of the Documents Admitted Denied Exhibited i. PW Dr. Seema, who examined the Yes Ex.PX1 prosecutrix vide MLC No. 2923/09 ii. MLC No. 2926/09 of accused Ram Yes Ex.PX2 Ashray prepared by Dr. Neerja, S.R. Surgery iii. Proceedings U/s 164 Cr.P.C. of PW Yes Ex.PX3 Smt. Mala recorded by Sh. Neeraj Gaur, Ld. MM.
iv. FIR No. 127/09 recorded by Duty Yes Ex.PX4 Officer HC Jai Singh v. Statement under Section 161 Cr.P.C. of Yes Ex.PX5 PW Ct. Sunita, who got conducted medical examination of the prosecutrix at BJRM Hospital vi. Statement under Section 161 Cr.P.C. of Yes Ex.PX6 PW Ct. Karambir, who accompanied SI Om Prakash to BJRM Hospital on receipt of DD No. 63B, where SI Om Prakash prepared rukka and he got the FIR registered vii. Statement dated 29.05.2009 U/s 161 Yes Ex.PX7 Cr.P.C. of PW Ct. Abhimanyu, who got conducted medical examination of accused Ram Ashrey at BJRM Hospital viii. Statement under Section 161 Cr.P.C. of Yes Ex.PX8 PW HC Sri Pal, who had deposited the sealed pullandas in Malkhana ix. Statement dated 22.06.2009 U/s 161 Yes Ex.PX9 Cr.P.C. of PW Ct. Abhimanyu, who had State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 6 of 10 deposited the exhibits in FSL Rohini
9. Under Section 313 Cr.P.C., accused denied all incriminating material put to him.
10. No witness has been examined in defence.
11. Ld. Defence counsel argued that the prosecutrix died and due to that reason, she could not be examined. Hence, prosecution has failed to prove the case. He next submitted that polygraph test of the accused was conducted and it was found in his favour. The prosecutrix, despite several visits by the IO, was not found at house. Hence, her polygraph test was not conducted. Next argument is that victim had alleged that her Nokia mobile phone was stolen by the accused persons but the same was recovered from her possession itself. He next submitted that FSL report Ex.P10 and Ex.P11 are also not proving the prosecution case.
On the other hand, ld. Addl. PP argued that as per FSL report Ex.P11, human semen was detected on the peticoat, public hair and samples collected from the internal organs of the victim. Underwear of the accused was also found stained with human semen. Presence of human semen on the belongings of the accused and victim show that accused had raped her.
12. It has been observed in the order sheet dated 28.03.2019 notice sent to the prosecutrix was received back with the report that she had died on 20.02.2019 as she was a heart patient. That report was supported by the statement of one Dalip, husband of the prosecutrix. It State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 7 of 10 has been observed in the order sheet dated 25.04.2019 that notice sent to the prosecutrix was received back with the report that she had expired. The report was supported by her death certificate in which it was mentioned that she expired on 20.02.2019 in Bhagwati Hospital, Sector 13, Rohini, Delhi and that her husband's name was Dalip. Report was further corroborated by the statement of her husband to the effect that he alongwith his wife used to live in Khasra No.791, Kushak No.2, Ashok Colony earlier. He sold that house. Lastly, he stated that his wife had expired on 20.02.2019 in Bhagwati Hospital.
In view of so many reports, the court came to the conclusion that prosecutrix had died. Her name was struck off from the list.
13. PW1 Mala deposed that someone had knocked at her door pursuant to which she opened the door and saw 34 persons standing in the street. But she deposed accused Ram Ashrey was not one of them.
14. It has been admitted by the accused that his underwear was seized by the police. He also admitted that doctor had seized some exhibits from the body of the prosecutrix. He also admitted that those exhibits were sent to the FSL Rohini. As per FSL report Ex.P11, the peticoat of the prosecutrix, her faint smears and pubic hair were found stained with human semen. It is further mentioned in the report that underwear of the accused was also found stained with human semen. But that report is not proving that the accused had established physical relations with the prosecutrix because accused as well as prosecutrix were married persons. It is very much possible that they might have had State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 8 of 10 physical intercourse with their spouses due to which their clothes and samples were found stained with human semen. It is not mentioned in FSL report Ex.P11 that human semen found in the smears of the victim and her peticoat was of the accused As per Biology Division Report Ex.P10, the blood sample of the accused had putrefied and hence, no opinion could be given. It is further mentioned in the report that it was unable to give report about the blood grouping on the semen stains found on the peticoat, pubic hair of the prosecutrix and on the underwear of the accused as either there was no reaction or the test was inconclusive.
15. The polygraph test is not admissible in evidence. But it can be read against the person by whom it has been relied upon. In the case in hand, the polygraph test report qua accused Ram Ashrey, Ravi and Sonu Kumar has been placed on record as Ex.P12 by prosecution. Hence, it can be read against it. As per that report, the accused Ram Ashrey was asked four following questions:
(i)Whether he knew who raped victim on 28.05.2009?
(ii) Whether he raped victim on 28.05.2009?
(iii) Whether he had stolen Nokia mobile
phone, Rs.15,000/ cash and property documents from the house of the victim?
(iv) Whether he raped victim alongwith his son Ravi, soninlaw Sonu, Rajender and Ajit on State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 9 of 10 28.05.2009?
The FSL opinion is as under: "The analysis and evaluation of polygrams do not reveal deceptive responses on the issues no.(i) to (iv) . According to polygrams examination and analysis of polygrams, Ram Ashrey is truthful in his answers to issues no.(i) to (iv).
16. As per prosecution case, the prosecutrix had alleged that her mobile phone was also stolen by the accused but the same was recovered from her own possession.
17. In view of above discussion, it is held that the prosecution has failed to prove the case. Hence, the accused Ram Ashrey is acquitted of the offence he was charged with.
18. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
File be consigned to record room.
Digitally signed by UMED UMED SINGH
SINGH GREWAL
Date: 2019.09.13
GREWAL 17:39:14 +0530
Announced in the open Court (Umed Singh Grewal)
on this 13th September, 2019 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State vs Ram Ashrey & Ors//FIR No.127/09.//S.C. NO.57420/16.//PS SWAROOP NAGAR page 10 of 10