Delhi District Court
State vs (1)Bobby S/O Banwari Lal ( A-1) on 10 October, 2007
1
IN THE COURT OF SHRI S.P. GARG ADDL SESSIONS JUDGE
NEW DELHI
Sessions Case No. 116/06
State Vs (1)Bobby s/o Banwari Lal ( A-1)
R/o Jhuggi Sonia Gandhi Camp
Samalka, Delhi
(2)Banwari Lal s/o Nawbet ( A-2)
R/o Jhuggi Sonia Gandhi Camp
Samalka, Delhi
(3)Ram Kumar s/o Surjan ( A-3)
R/o Harijan Basti, Samalka
Delhi
FIR No. 115/2006
P.S. Kapashera
U/s 363/376(G) IPC
JUDGMENT
1. Accused Bobby (A-1), Accused Banwari Lal (A-2) and Ram Kumar (A-3) were arrested by the police of PS Kapashera vide FIR No. 115/2006 and were challaned to the court for trial for the commission of the offences punishable U/s 363/376(G) IPC. In nut shell, the prosecution case is as under:
2. Present case was registered by the police on 06.04.06 on the statement of prosecutrix 'X' (assumed name). In her statement to the police, the prosecutrix disclosed that she was married with one Dhara and was residing with him and her mother in law for the last about two years at 12/0, Jhuggi Sonia Gandhi Camp, Samalka. She was married to Dhara about two years prior to the incident. 2 About 7-8 months prior to the occurrence, she came into contact with A-1 residing in the said jhuggies. A-1 also used to visit her at her jhuggi. On 29.03.06, she had gone near Ambedkar Colony Telephone Exchange Shiv Mandir at about 8 PM. There A-1 met her and asked her to accompany him. A-1 promised to keep her with him . She agreed to accompany him. A-1 took her in a bus at Aligarh. From there, he took her at the residence of her mausi at Bulandshahr. She was kept there till 31.03.06. On 01.04.06, A-1 brought her at the residence of his friend Bhanu at Najafgarh. On the next day, A-1 to A-3 committed rape on her person there. On 03.04.06 A-1 took her at the residence of her sister Lalita at Jahangir Puri. After staying there for some time, A-1 took her to the park for outing. Her silver pajeb and silver chain remained at the residence of Lalita.
3. The prosecutrix further disclosed that thereafter A-1 brought her to PS where her statement was recorded.
4. During investigation the police got the prosecutrix medically examined. Her statement U/s 164 CrPC was got recorded. The accused persons were arrested and they were got medically examined. IO got sent the exhibits to FSL and subsequently collected FSL report. IO recorded statements of the concerned witnesses at different stages of the investigation and after completion of the investigation filed challan against the accused persons for the commission of the aforesaid offences in the court of ld MM.
5. After complying with the provisions of section 207/208 CrPC, the ld MM 3 committed the case to the court of sessions.
6. After hearing ld. Addl PP for the state and ld. defence counsels for the accused persons charge U/s 376 (2) (g) IPC was ordered to be framed against all the accused persons. Separate charge u/s 363 IPC was ordered to be framed against A-1 to which accused persons pleaded not guilty and claimed trial.
7. To bring home its case prosecution examined PW1 HC Krishna, PW 2 Rekha, PW 3 Kela Devi, PW 4 Dhara, PW 5 Ct Naresh, PW 6 Ct Hari Kishen, PW 7 HC Suresh Chand, PW 8 Dr Madhuri Thakur, PW 9 Dr Gaurav Vinod Jain, PW 10 Dr Komal Singh, PW 11 Ms Ravinder Bedi, PW 12 SI Dominica and PW 13 Ct Sanjay Kumar.
8. Statements of the accused persons were recorded U/s 313 CrPC. Accused persons denied their involvement in the commission of the offences. Their pleas is that they have been falsely implicated in this case. No rape was committed on the person of the prosecutrix. She was a consenting party.
9. Accused persons however did not prefer any evidence in defence.
10. I have heard the ld. Addl PP for the state and ld. defence counsels for the accused persons and have gone through the file.
11. Contention of the ld. Addl PP for the state is that prosecution has established its case against all the accused persons beyond reasonable doubt and there is nothing to disbelieve the positive testimony of the prosecutrix.
12. Contrary to that plea of the ld. defence counsels for the accused persons 4 is that there is not an iota of evidence against any of the accused persons to convict them for commission of any offence. The prosecutrix has given different version at different stages of the investigation. She is not a reliable witness. She has not deposed anything against A-3 for commission of rape on her person. The prosecutrix has given false statement under pressure of her husband.
13. I have considered the arguments of the ld. Addl PP for the state and ld. defence counsels for the accused persons and have scrutinized the testimonies of the prosecution witnesses minutely.
14. At the outset it be mentioned here that prosecutrix 'X' was major on the day of incident. Admittedly she was 19 years of age on the day of occurrence. Again it is not disputed that prosecutrix 'X' was married to PW4 Dhara and was residing there with him for the last about two years.
15. On scrutinizing the testimony of the prosecutrix 'X' it reveals that she and A-1 had developed intimacy and were having visiting terms for the last about 7-8 months prior to the incident. At no stage the prosecutrix complained regarding conduct and behaviour of A-1 to any one including her husband and family members. PW4 Dhara husband of the prosecutrix was having no grievance whatsoever against A-1 prior to the incident. In the missing report got lodged by him vide DD no. 11A Ex PW7/A, PW4 Dhara did not suspect A-1 for the kidnapping of his wife.
16. It has further come on record that on 29.03.06 at about 7 or 8 PM, the 5 prosecutrix 'X' had voluntarily with her free consent accompanied A-1. She did not inform any of her family members of her intention to accompany A-1. She left her matrimonial home at that time even without informing her husband. In the missing report ExPW7/A, PW4 Dhara merely stated that his wife 'X' left the house at about 7 PM without informing any one. He did not state if the prosecutrix had gone to any temple or for any specific purpose at that time. In her deposition before the court as PW2 the prosecutrix fairly stated in her examination in chief that she was taken by A-1 to Aligarh. However, she gave a different version that A-2 had also taken her along with A-1 to Aligarh. In the cross examination by ld Addl PP for the state after she was got declared hostile, the prosecutrix admitted that she had gone to near Shiv Mandir, Ambedkar Nagar on 29.03.06 at about 8 PM where A-1 met him and induced her to accompany him. She further admitted that accused had told her that he would keep her as his wife and thereafter she agreed and accompanied A-1. This statement of the prosecutrix reveals that prosecutrix 'X' who was major and a married lady had accompanied A-1 with her free consent. A-1 was not armed with any deadly weapon to create apprehension in the mind of the prosecutrix to accompany him. A-1 had not extended threats to the prosecutrix at that time to force her to accompany him. The prosecutrix herself was a married lady and was not imagined to be induced by A-1 to stay with him as his wife. Prosecutrix did not bother to refuse A-1 to accompany him. She did not inform her family 6 members and rather voluntarily consented to go with him.
17. It has come on record that both A-1 and prosecutrix went to Aligarh in a bus. From there A-1 brought her at Bulandshahr at the residence of her Mausi and there they stayed till 31.03.06. Prosecutrix did not allege if during this period A-1 ever attempted to commit rape on her person. A-1 did not extend any threats to the prosecutrix during this period. Prosecutrix herself did not object her stay with A-1 at all these places at any time. She did not complain to any one about her forcible kidnapping/abduction. It has further come on record that thereafter the prosecutrix was brought to Delhi and there they stayed at the residence of Lalita, sister of A-1 at Jahangir Puri. Again at Jahangir Puri, the prosecutrix did not complain if A-1 had kidnapped or abducted her. A-1 himself produced the prosecutrix at the PS.
18. Consent of the prosecutrix is apparent during this period as at the PS she categorically refused to go with her husband PW4 Dhara. DD No. 3 A Ex PW7/B dt 04.04.06 is very material in this regard. The husband of the prosecutrix and her relations were all called at the PS. There the prosecutrix in her statement admitted that on 30.03.06 she had accompanied A-1 with her free consent. She further stated that she did not want to go and stay with her husband PW4 Dhara and wanted to go with A-1. On that, custody of the prosecutrix was not given to the husband and she was handed over to her bua Shanti. Refusal of the prosecutrix to accompany her husband in the presence of so many relatives 7 there, shows that she was adamant to remain with A-1 with whom she had developed intimacy. There was no question of the prosecutrix to be under fear and pressure at that time as number of her family members including her husband were present at the PS.
19. In the statement got recorded U/s 164 CrPC also the prosecutrix admitted her consent to accompany A-1 on the day of incident.
20. All these facts reveal that the prosecutrix 'X' was a consenting party throughout. She never raised alarm at any stage to complain her forcible kidnapping/abduction.
21. Regarding section 376 IPC, stand of the prosecutrix is wavering, uncertain and contrary which makes her deposition before the court highly unbelievable. As observed above, the prosecutrix was married and major on the day of incident and had voluntarily accompanied A-1 with her free consent. She had stayed along with A-1 at different places before she was brought at the PS by A-1. Even at the PS the prosecutrix categorically refused to go with her husband and ultimately custody of the prosecutrix was handed over to her bua. At no stage prior to getting her statement recorded on 06.04.06, the prosecutrix ever alleged commission of rape on her person. She was produced before the police by A-1 on 03.0406 itself. However, at that time the prosecutrix did not deem it proper to get any case registered against any of the accused persons for the alleged rape. DD No. 3A dt 04.04.06 was recorded which is Ex PW7/B in which the prosecutrix 8 categorically admitted that she had gone with A-1 with her free consent. At that time even in the presence of her husband and other close family members, the prosecutrix did not come up with that any plea of commission of rape on her person. Only on 06.04.06 vide statement Ex PW2/A, the prosecutrix alleged commission of rape on her person. Prosecutrix has failed to explain the delay in lodging the report with the police for alleged rape on her person. The delayed version given by the prosecutrix seems to be under pressure of her husband and other relatives.
22. In the statement Ex PW2/A the prosecutrix introduced new facts and stated that on 01.04.06, A-1 brought her at Najafgarh at the residence of his friend Bhanu and there all the three accused persons committed rape on her person on 02.04.06. Prosecution has not cited Bhanu as a witness in this case. He was not made as an accused. His statement was not recorded to show if on 02.04.06 the prosecutrix along with all the three accused persons had stayed at his house. The prosecutrix did not give house number of Bhanu where rape was committed. She did not explain the time when rape was committed on her person there. She did not give any detail as to how and under what circumstances the rape was committed on her person there. In her statement recorded U/s 164 CrPC the prosecutrix did not state if rape was committed on her person by all the accused persons at the residence of Bhanu. She stated that at the residence of Bhanu rape was committed by A-1 along with his two "friends" Banwari Lal and 9 Ram Kumar. She did not reveal in this statement Ex PW11/A if Banwari Lal was father of A-1. Admittedly A-2 was known to the prosecutrix being residing in their neighbourhood. Had A-2 committed rape on the person of the prosecutrix, she must have named her in her statement recorded U/s 164 CrPC and must have stated him to be father of A-1. Again in the statement U/s 164 CrPC the prosecutrix did not give graphic account in which she was raped.
23. In her testimony before the court, the prosecutrix changed her version and completely exnorated A-3 to have committed rape on her person. In her examination-in-chief, she gave entirely contradictory version that she was kidnapped by A-1 and A-2 and both of them took her to Alilgarh. This is not the case of the prosecution in the report 173 CrPC. Again this is not the case of the prosecution in the statement recorded U/s 164 CrPC. Again in her examination in chief, the prosecutrix introduced new allegations and alleged that both A-1 and A-2 committed rape on her person at Aligarh and Jahangir Puri. In the earlier version given to the police, there is no mention if A-1 and A-2 committed rape on her person at Aligarh or Jahangir Puri. In her examination in chief the prosecutrix did not state if she was taken to the residence of Bhanu, friend of A-1 and there all the three accused persons committed rape on her person. This witness was got declared hostile by the ld. Addl PP for the state and was cross examined. In the cross examination also, she did not support the prosecution regarding commission of rape by A-3. She also denied if she was taken to the residence of 10 Bhanu and rape was committed there on her person. In her cross examination by the ld. Addl PP for the state, the prosecutrix stated that A-3 was not known to her.
24. This changed version of the prosecutrix at different stages creates doubt about the story presented by her. A-1 and A-2 are son and father. A-2 being father, A-1 is not expected to gang rape the prosecutrix at the house of one Bhanu or that Bhanu would help all of them to commit rape on the person of the prosecutrix without he himself being involved in the incident. There is nothing on record to show if during alleged rape, the prosecutrix raised any alarm or she sustained injuries on her person or any wearing clothes were torn. There is nothing on record to show if any attempt was made by the prosecutrix to resist commission of alleged rape by the accused persons on her person. No injuries whatsoever were found on the private parts of the prosecutrix to infer rape on her person. Even after the alleged commission of rape, the prosecutrix continued to stay with A-1 and both of them remained present at the house of A-1 at Jahangirpuri. Again there is nothing on record to show if the prosecutrix informed about alleged rape on her person there to any one.
25. Mother of the prosecutrix PW3 Kela Devi did not support the prosecution and in her examination she stated that did not know anything about this case. This witness was got declared hostile by the ld. Addl PP for the state and was cross examined. In the cross examination she denied the contents of the 11 statement Ex PW3/A to have been made by her to the police. She did not state if the prosecutrix ever informed her about commission of rape on her person.
26. In the MLC of the prosecutrix Ex PW8/A in the alleged history, the prosecutrix alleged that she was raped for 5 days at Aligarh and thereafter was brought to home on 03.04.06. There is no mention if at the residence of Bhanu at Najafgarh any rape was committed on her person. No external mark of injury was found on the person of the prosecutrix.
27. No other independent public witness was joined at any stage of the investigation. Statement of the prosecutrix has not been corroborated by any cogent evidence on record. FSL report also does not connect the accused with the commission of offence.
28. In view of my above discussion, I am of this view that prosecution has failed to prove its case against any of the accused persons beyond reasonable doubt. Benefit of doubt is given to the accused persons and they are acquitted in this case.
29. File be consigned to record room.
Announced in the open
court on 10.10.07 Additional Sessions Judge
New Delhi