Delhi District Court
State vs 1) Sonia @ Sheikh Sonu on 1 June, 2015
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 54/2014
Unique ID No. : 02401R0401272014
State versus 1) Sonia @ Sheikh Sonu
S/o Sh. Mohd. Isabeen
R/o H. No. L322, 3rd Floor,
Laxman Puri, Nabi Karim, Delhi
2) Rama
W/o Shri Chand
R/o H. No. : L292, 1st Floor, Gali
Telmil Wali, Laxman Puri,
Nabi Karim, Delhi
Case arising out of:
FIR No. : 314/2014
Police Station : Nabi Karim
Under Section : 376/343/109 IPC &
3/4/5/6 ITP Act
Judgment reserved on : 22.05.2015
Judgment pronounced on : 01.06.2015
JUDGMENT
Brief Facts:
1. Accused Sonia @ Sheikh Sonu is facing trial on the allegations that about 15 days before 11.07.2014, he abducted the Prosecutrix 'AT' [name withheld to protect the identity of Prosecutrix] at Delhi Railway Station and took her to his house at L322, Laxman Puri, Nabi Karim, Delhi where he wrongfully confined her. During the aforesaid 15 days before 11.07.2014 at L322, Laxman Puri, Nabi Karim, Delhi, he repeatedly committed rape upon the Prosecutrix and on 09.07.2014, he for the purpose of exploitation, transferred the above named Prosecutrix to coaccused Rama from the aforesaid house to her house at L292/A, Ist Floor, Gali Telmil, Laxman Puri, Nabi Karim, Delhi.
2. Further, Accused Rama is facing trial on the allegations that on 09.07.2014 she for the purpose of exploitation, received Prosecutrix 'AT' from Accused Sonia @ Sheikh Sonu and that she abetted two persons [since not arrested] to commit sexual intercourse against the wishes of the Prosecutrix at her house i.e. L292/A, Ist Floor, Gali Telmil, Laxman Puri, Nabi Karim, Delhi and knowingly lived wholly or in part on the earnings of prostitution of Prosecutrix.
Case as per Chargesheet:
3. The case in hand was registered on the basis of complaint made by the Complainant 'AT' wherein she stated that she is married and having a daughter aged about 08 years. About 02 years ago, her husband has expired and her daughter lives with her father in a village. She stated that they are 07 sisters and one brother and she has studied upto VIII standard. About 1718 days ago, she met one girl at Raurkela Railway Station who disclosed her name as Simran. She became friendly with her. The said Simran advised her to go to Delhi for work and she came to Delhi Railway Station along with Simran about 15 days back. She met one boy at Delhi Railway Station namely Sonia @ Sheikh Sonu, who offered her for help.
4. Complainant further stated that as she did not have any accommodation in Delhi, Sonia @ Sheikh Sonu took her to his house at L322, Laxman Puri, Delhi. She alleged that Accused Sonia @ Sheikh Sonu forcibly established physical relations with her. Accused Sonia @ Sheikh Sonu kept her at his house for about 1213 days and repeatedly established physical relations with her. On 09.07.2014 Accused Sonia @ Sheikh Sonu brought one Rama at his house and said Rama took her to her house at Nabi Karim where two persons came. She stated that Accused Rama told her that if she wants to earn money then she will have to establish physical relations with said two persons and on provocation of Accused Rama, two persons established physical relations with her without her consent. Accused Rama paid Rs. 650/ cash for the said work and left her at the house of Sonia @ Sheikh Sonu. She alleged that Accused Sonia @ Sheikh Sonu again established physical relations with her without her consent.
5. During investigation, Prosecutrix was got medically examined vide MLC No. 10874/2014 at LHMC. On 12.07.2014 Accused Sonia @ Sheikh Sonu and Rama were arrested. On 13.07.2014 Prosecutrix 'AT' was sent to Nari Niketan after obtaining orders from Court. On 15.07.2014 statement of Prosecutrix was got recorded by Ld. MM under Section 164 CrPC. Potency test of Accused Sonia @ Sheikh Sonu was got conducted at RML Hospital. Statements of witnesses were recorded. Two Accused persons could not be apprehended as their names and addresses are not known. Supplementary chargesheet would be filed as and when those two Accused persons would be apprehended.
6. On the basis of material on record, case under Section 376/343/109 IPC & 3/4/5 & 6 of ITP Act was registered against Accused Sonia @ Sheikh Sonu and Rama.
Charges:
7. After committal of the case, on the basis of material on record, Accused Sonia @ Sheikh Sonu was charged for offences punishable under Section 366/343/376[2] [n]/370 IPC while Accused Rama was charged for offences punishable under Section 370/109 IPC r/w Section 376 IPC & Section 4 and 5 of ITP Act.
Prosecution Evidence:
8. In order to prove the guilt of Accused, Prosecution examined eleven [11] witnesses on record.
9. The testimony of Prosecutrix/PW1 will be discussed later on in detail during the course of the judgment.
10. PW3 Devi Ram deposed that he is the owner of H. No. L292A Laxman Puri, Nabi Karim, Pahar Ganj, Delhi. He purchased the said house in the year 2002. There are three rooms on first floor and second floor each. He deposed that he had given one room to one Shree Chand on rent at first floor in the month of April, 2014 @ Rs. 1800/ per month. Shree Chand lived in the said room along with his wife Rama Devi. No rent agreement was executed between him and Shree Chand. PW3 correctly identified Accused Rama present in court.
11. PW3 further deposed that on 20.07.2014 police of PS Nabi Karim came to his house and made enquiries from him. He handed over photocopies of the documents of ownership of H. No. L292A, Laxman Puri, Nabi Karim, Pahar Ganj, Delhi. Police seized the same vide seizure memo Ex. PW3/A. The photocopy of the said documents are Mark PW3/X.
12. PW4 Sarwan Sachdeva deposed that he is the owner of H. No. L322/2, Laxman Puri, Nabi Karim, Pahar Ganj, Delhi. He purchased the said house in the year 2008. The said house is constructed upto third floor. He deposed that he had given one room to Accused Sonia @ Sheikh Sonu on rent at third floor on 10.06.2014 @ Rs. 1500/ per month. He lived in the said room till 11.07.2014. No rent agreement was executed between him and Accused Sonia @ Sheikh Sonu. PW4 deposed that Accused was arrested on 11.07.2014. Police met him and recorded his statement. PW4 correctly identified Accused Sonia @ Sheikh Sonu in court.
13. PW2 HC Dharamvir Singh was the Duty Officer who recorded FIR No. 314/14, computerized copy of which is Ex. PW2/A.
14. PW5 Dr. Pooja medically examined the Prosecutrix vide MLC Ex. PW5/A.
15. PW9 Dr. Raman Tanwar medically examined Accused Sonia @ Sheikh Sonu vide his report already Ex PW8/A.
16. PW6 SI Suman deposed that on 11.07.2014 while she was posted as SI at PS Nabi Karim, at about 6 PM, Complainant came to PS. Complainant narrated all the facts of the case to her and she recorded her statement already Ex. PW1/A. She informed one NGO about the facts of the case and the Complainant and the Complainant was given counselling at the PS. On the basis of aforesaid complaint, she prepared rukka Ex. PW6/A and the case was got registered. PW6 along with L/Ct. Swati and Ct. Vijay took the Prosecutrix to LHMC where she was got medically examined. She refused for her internal examination. Her blood sample was taken by examining doctor and handed over to L/Ct. Swati. The further investigation was conducted by SHO PS Nabi Karim Insp. Prem Singh. IO seized the blood sample of the victim which was duly sealed with the seal of hospital. The seizure memo is Ex. PW6/B.
17. PW6 further deposed that thereafter she alongwith IO and other police staff and Prosecutrix reached at the place of incident i.e. L322, 3rd Floor, Laxman Puri, Nabi Karim, Delhi. The victim pointed out towards Sonia @ Sheikh Sonu and stated that he had committed rape upon her in the said house and also stated about involvement of one more lady namely Rama. IO also prepared site plan already Ex. PW1/B at the place of incident at the instance of victim. Thereafter, the victim also handed over her undergarments from the place of incident. The said undergarment i.e. one purple colour panty and cream colour bra were seized by the IO Insp. Prem Singh after converting it into a cloth pullanda and sealed with the same with the seal of 'NBKRM I' vide seizure memo already Ex. PW1/C.
18. SI Suman further deposed that IO/Insp. Prem Singh also seized one bedsheet and one towel room the place of incident i.e. L322, 3rd Floor, Laxman Puri, Nabi Karim, Delhi and converted it into a cloth pullanda, sealed the same with the seal of 'NBKRM I' and seized the same vide seizure memo Ex. PW1/D. IO handed over the seal to her after use. Accused was interrogated and his disclosure statement was recorded by the IO vide Ex. PW6/B1. Accused Sonia @ Sheikh Sonu was arrested vide arrest memo already Ex. PW1/E. His personal search was conducted vide memo already Ex. PW1/F. Accused was taken to LHMC by Ct. Vijay for his medical examination. Thereafter, efforts were made to trace the other Accused namely Rama with the help of victim, but she could not be traced. Ct. Vijay returned to the place along with Accused and the exhibits handed over to him by doctor who examined the Accused. IO/Insp. Prem Singh seized the exhibits/samples of Accused brought by Ct. Vijay duly sealed with the seal of hospital vide seizure memo Ex. PW6/C. IO recorded her statement.
19. PW6 SI Suman further deposed that on 12.07.2014 she alongwith SHO Insp. Prem Singh, SI Rajiv Gulati and Ct. Poonam alongwith Accused Sonia @ Shiekh Sonu, who led them to H. No. L292/1, Gali Tel Mil Wali, Laxman Puri, Nabi Karim, Delhi. However, coaccused Rama was not found in that house. While they were searching for Accused Rama, she was seen coming from side of a chowk in Gali Tel Mil Wali. Accused Sonia @ Sheikh pointed towards her and identified her as Accused Rama, who had taken the victim with her to her house where she was raped by two persons. Accused Rama was interrogated vide Ex. PW6/D and her disclosure statement was recorded. Thereafter, she was arrested. Her personal search was conducted later on at the PS vide personal search memo Ex. PW6/E. Accused was taken for medical examination to LHMC by her and L/Ct. Poonam. Accused and IO/Insp. Prem Singh also accompanied them in official vehicle. Thereafter, both the Accused were produced before concerned court.
20. SI Suman also identified the case property seized from place of incident i.e. bedsheet and towel Ex. P1 and Ex. P2 respectively. She also identified one purple colour panty and cream colour bra which were recovered from the place of incident at the instance of victim. The same are Ex. P3 and Ex. P4 respectively.
21. PW7 Ct. Harish took two computerized copies of FIR and original rukka to Desu Picket, where Insp. Prem Singh, SHO PS Nabi Karim alongwith other staff met him. He handed over the copies of FIR and original rukka to the SHO. IO recorded his statement.
22. PW8 SI Rajiv Gulati deposed that on 16.07.2014 while he was posted at PS Nabi Karim, Accused Sonia @ Sheikh Sonu was produced by Jail Authority in RML Hospital where he got conducted his potency test vide MLC Ex. PW8/A. He handed over all the relevant documents to the IO/Insp. Prem Singh.
23. PW8 further deposed that on 20.09.2014, he went to DDU Hospital. There doctor handed over to him two exhibits of fetus of the victim in sealed condition which he seized vide seizure memo Ex. PW8/B. He deposited the exhibits in malkhana.
24. PW10 SI Giri Raj deposed that on 12.07.2014 he was posted as SI at PS Nabi Karim. On that day, he alongwith SHO Insp. Prem Singh, Ct. Ashok, Ct. Hemant and L/Ct. Poonam alongwith Accused Sonia @ Sheikh Sonu reached Gali Tel Mil Wali, Kuda Khatta in search of co accused Rama Devi. W. SI Suman met them there. Accused Sonia pointed out towards a lady coming from opposite side and identified her as Rama Devi. SI Giri Raj correctly identified both Accused Accused in court.
25. PW10 SI Giri Raj further deposed that Accused Rama Devi was apprehended by W. SI Suman and Ct. Poonam. Accused Rama Devi was interrogated by IO/Insp. Prem Singh and arrested vide arrest memo Ex. PW10/A. Accused Rama Devi was taken to her house i.e. H. No. 292/2, First Floor, Gali Tel Mil Wali, Nabi Karim, Delhi where her personal search was conducted by lady police officials. The house of Accused Rama Devi was searched, but nothing incriminating could be recovered. IO recorded the disclosure statement of Accused Rama Devi and also prepared pointing out memo at her instance vide Ex. PW10/B. Accused Rama was medically examined in LHMC. IO recorded his statement.
26. PW11 IO/Insp. Prem Singh deposed that on 11.07.2014 he was posted as SHO, PS Nabi Karim. On that day, he was patrolling in the area. At about 9.40 PM, he alongwith staff was present at DESU picket, Qutub Road. Ct. Harish came to him and handed over the original rukka and copy of FIR. SI Rajiv Gulati also came there. PW11 went through the rukka and FIR and he alongwith SI Rajiv Gulati, Ct. Harish and other staff reached at LNJP Hospital. W. SI Suman, W. Ct. Swati and Ct. Vijay met them there alongwith Prosecutrix Asrani Topo. Ct. Swati handed over to him sealed exhibits of Prosecutrix which were given to her by examining doctor. PW11 seized the same vide seizure memo already Ex. PW6/B. Prosecutrix led them to H. No. L322, 3rd Floor, Laxman Puri, Tel Mill Gali, Nabi Karim. Prosecutrix pointed out towards a person sitting in a room of the said house to be the person, who committed rape upon her and detained her there.
27. Insp. Prem Singh apprehended that person, whose name was revealed as Sonia @ Sheikh Sonu. Accused Sonia @ Sheikh Sonu present in the court. He also inspected the spot at the instance of the Prosecutrix and prepared the site plan which is already Ex. PW1/B. He interrogated the Accused Sonia @ Sheikh Sonu and recorded his disclosure statement Ex. PW6/B and arrested him vide arrest memo already Ex. PW1/E and conducted his personal search vide memo already Ex. PW1/F.
28. Prosecutrix handed over one panty and one brassier, which she took out from the clothes lying there. He put the same into a pullanda and sealed with my official seal 'NBKRMI' and seized vide seizure memo already Ex. PW1/C. Prosecutrix also produced one bed sheet and one towel, which were allegedly used by the Accused while committing rape upon her. He put the same into a pullanda and sealed with my official seal 'NBKRMI' and seized vide seizure memo already Ex. PW1/D. I searched for coaccused Rama Devi, but she could not be found. Accused Sonia @ Sheikh Sonu was sent to LHMC for her medical examination alongwith Ct. Vijay. He recorded supplementary statement of Prosecutrix and sent her to Nari Niketan alongwith Ct. Swati. They came back to PS. Ct. Vijay also came back to PS alongwith Accused Sheikh Sonu after getting him medically examined and he handed over four sealed pullandas alongwith sample seal of the hospital and the MLC of the Accused to him. PW11 seized the exhibits of Accused vide seizure memo already Ex. PW6/C. Exhibits were deposited in malkhana. He recorded the statement of witnesses. Prosecutrix was not taken by Nari Niketan officials without court order. So, she was brought back to PS and was kept in lady room in care of W. Ct. Swati.
29. PW11 Insp. Prem Singh further deposed that in the morning i.e 12.07.2014, he alongwith SI Giriraj, W. Ct. Poonam, Ct. Ashok and Ct. Hemant alongwith Accused Sheikh Sonu left PS in search of coaccused Rama Devi. SI Suman also met them at Tel Mill Gali. She was also joined in investigation. When they reached near 'Kuda Khatta', Tel Mill Gali, one lady was seen coming from opposite side, she was apprehended at the instance of Accused Sonia @ Sheikh Sonu with the help of W. SI Suman and Ct. Poonam. 34 passers by were asked to join the investigation, but none of them agreed and left the place without disclosing their names and addresses. Name of that lady was revealed as Rama Devi, present in court. Accused Rama Devi was interrogated and was arrested vide arrest memo already Ex. PW10/A. They all reached at the house of Rama Devi at L292/A, Ist Floor, Gali Tel Mill, Nabi Karim, Delhi where personal search of Accused Rama Devi was conducted by Ct. Poonam vide memo already Ex. PW6/E. PW11 also prepared the site plan of the house of Accused Rama Devi which is Ex. PW11/A on her pointing out. House of Accused Rama Devi was searched, but nothing incriminating could be recovered. He recorded the disclosure statement of Accused Rama Devi. They also searched for other coaccused persons wanted in this case, but no one could be traced as their complete whereabouts were not available. Accused persons were medically examined at LHMC. Accused persons were produced in court from where Accused Sonia @ Sheikh Sonu was sent to J/c, Prosecutrix was sent to Nari Niketan and 02 days PC remand of Accused Rama Devi was obtained. PW11 recorded the statement of witnesses. They searched for other coaccused persons at the instance of Rama Devi, but no one could be traced. On 15.07.2014 statement of Prosecutrix was got recorded under Section 164 CrPC. He collected the copy of the statement.
30. During investigation, potency test of Accused Sonia @ Sheikh Sonu was got conducted at RML Hospital through SI Rajiv Gulati. On 20.07.2014 he examined Devi Ram, the owner of the house where Accused Rama Devi was living as a tenant and he produced photocopies of some documents already marked as Mark PW3/X and seized the same vide seizure memo already Ex. PW3/A.
31. On 21.07.2014 exhibits were sent to FSL through Ct. Samay Singh. PW11 recorded the statement of Ct. Samay Singh and MHC[M]. He also examined the owner of the house namely Sarvan Sachdeva where Accused Sonia @ Sheikh Sonu was living as a tenant. Since pending FSL result, I completed the investigation, prepared the chargesheet and filed in court. After filing the chargesheet, Prosecutrix requested the Court to abort her pregnancy. Prosecutrix was produced before Ld. MM and with the permission of court, she was produced in DDU Hospital by the officials of Nari Niketan, where her pregnancy was terminated by the doctor. SI Rajiv Gulati collected the fetus and seized the same and deposited it in malkhana. The exhibits of fetus was also sent to FSL on 25.09.2014 for examination. Blood sample of Accused was also taken at LHMC and was also sent to FSL for comparison with the fetus.
32. On 14.11.2014 PW11 Insp. Prem Singh was transferred from PS Nabi Karim to DCP Office [Central] and the further investigation was carried out by the present SHO Insp. Dhirender Nath, who collected the FSL result and filed in court vide supplementary chargesheet. The FSL result/DNA examination report is Ex. PW11/B [Colly]. PW11 correctly identified the case property i.e. towel an bedsheet which were seized from the place of incident and exhibited as Ex. P1 and Ex. P2 respectively. He also identified one purple colour panty and cream colour bra recovered from the place of incident at the instance of victim. The same are Ex. P3 and Ex. P4 respectively.
Statement of Accused and Defence Evidence:
33. In their respective statements recorded under Section 313 CrPC, both Accused Sonia @ Sheikh Sonu and Rama pleaded innocence and false implication. Accused Sonia @ Sheikh Sonu stated that Prosecutrix stole one of the keys of his room and she used to visit his room in his absence and when he noticed that some of his money was missing, he enquired from her. Thereafter, she falsely implicated him in the present case.
34. Accused Rama stated that she had a quarrel with Accused Sonia @ Sheikh Sonu when he tried to dissuade him not to stay in the company of Prosecutrix. Earlier she used to help Accused Sonia @ Sheikh Sonu and also gave him food but when she tried to dissuade Accused Sonia @ Sheikh Sonu, she had a quarrel with him on the issue of company of Accused Sonia @ Sheikh Sonu and Prosecutrix, Prosecutrix falsely implicated her in this case.
35. Both Accused chose not to lead evidence in their Defence. Arguments, Analysis and Findings:
36. I have heard detailed arguments advanced by Ld. Legal Aid Counsel for both Accused i.e. Accused Sonia @ Sheikh Sonu and Accused Rama alongwith Ld. Counsel for Accused Rama and Ld. Addl. PP for the State and gone through the evidence on record.
37. It is stated by Ld. Addl. PP for the State that case of the Prosecution has been proved beyond reasonable doubt. Prosecution also laid much emphasis on the factum of recovery of clothes of Prosecutrix 'AT' from the house of Accused Sonia @ Sheikh Sonu. On the other hand, it is stated by Ld. Defence Counsel that Prosecution has failed to prove its case and the testimony of Prosecutrix/PW1 is not reliable.
38. It is apparent on going through the record of the case that most important witness of the Prosecution in the case is the Prosecutrix/Complainant 'AT'. It is testimony of 'AT' upon which entire case of the Prosecution hinges and in order to ascertain whether Prosecution has been able to prove its allegations against Accused persons, it is necessary to firstly scrutinized the testimony of Prosecutrix 'AT' in minute detail.
39. As aforesaid, Accused Sonia @ Sheikh Sonu has been facing charges for having committed offence under Section 366, besides other offences.
40. It is the case of the Prosecution that said Accused took her to his house at L322, Laxman Puri, Nabi Karim, Delhi from the railway station . In her statement under Section 164 CrPC Ex. PW1/G the Complainant stated that when she met Accused Sonia @ Sheikh Sonu, she thought he was a girl as he was wearing clothes of a girl and that she accompanied him to his house and on reaching her house, she came to know that in fact she is boy.
41. Accused Sonia @ Sheikh Sonu has not disputed the fact that he took Prosecutrix/Complainant to his house from the railway station where he met her and also the fact that at that time he was wearing saree and Prosecutrix thought that he was a girl. However, as per testimony of PW1 'AT', she asked Accused Sonia @ Sheikh Sonu for help and he told her to accompany him to his house an she went to his house with him. It is apparent on bare perusal of the statement of PW1 that Accused Sonia @ Sheikh Sonu neither induced her to accompany him to his house nor forced to accompany him to his house. Rather, it is Prosecutrix, who herself asked him for help and he told her to come to his house with him. It is noteworthy that even in his statement under Section 313 CrPC, it is claim of Accused Sonia @ Sheikh Sonu in response to question No. 3 that Prosecutrix herself came to his house to keep her belongings as she used to sleep at the railway station.
42. It is further the claim of the Prosecutrix that she was confined in his house by Accused Sonia @ Sheikh Sonu and he continued to rape her during the period when she remained there. A careful perusal of the testimony of Prosecutrix PW1, however, reveals otherwise. It is noticed on going through her crossexamination that Accused Sonia @ Sheikh Sonu used to take her for begging in train. She also deposed that she saw police officials in the train as well as on railway station, but did not tell any police officials that he had confined her or that he had raped her. It has also come in her crossexamination that though there were 25 other persons in the occupation of that building, she did not tell anybody that Accused Sonia @ Sheikh Sonu had either confined her or raped her. She further deposed that she never raised an alarm when Accused committed rape upon her and she only requested him not to do so. The explanation offered by PW1 that she did not tell any other person about being confined by the Accused and committed rape upon her as they were all males, does not appeal to reason in view of her own version that when she was taken to house of coaccused Rama, she made a complaint to an elderly person, who used to live in room near her room. It is difficult to accept as to why she would not raise an alarm upon being confined and raped in room by Accused Sonia @ Sheikh Sonu when she would make complaint against him to a neighbour when she was being taken to house of coaccused Rama, more particularly, when it is her own claim in her crossexamination that Accused Sonia @ Sheikh Sonu also accompanied her to the house of coaccused Rama.
43. In the light of above discussion and the testimony of PW1/Prosecutrix 'AT', I am of the view that charges under Section 343 and 376 [2] [n] IPC and Section 366 IPC do not stand prove against Accused Sonia @ Sheikh Sonu.
44. Now, coming to the case of the Prosecution that on 09.0.2014, Accused Sonia @ Sheikh Sonu handed over the Prosecutrix 'AT' to co accused Rama, who took her to her house at L292/A, First Floor, Gali Telmil, Laxman Puri, Nabi Karim, Delhi and thereby Accused Sonia @ Sheikh Sonu as well as Rama committed offence under Section 370 IPC. A close look at the statement of the Prosecutrix/PW1 reveals that initially she deposed that Accused Sonia @ Sheikh Sonu took her to the house of coaccused Rama. Later upon being crossexamined, she deposed that Accused Rama came to the house of Sonia @ Sheikh Sonu on 09.07.2014 and took her alongwith her to his house at Nabi Karim. It is also the case of the Prosecution that Prosecutrix 'AT' was taken by Rama to her house at Nabi Karim from the house of Sonia @ Sheikh Sonu. However, considering the varying versions given by Prosecutrix/PW1 'AT' in her testimony, a court question was put to her as to which of her two versions is correct and which of the two Accused i.e. Sonia @ Sheikh Sonu and Rama had taken her to the house of Accused Rama on 09.07.2014.
45. In response to the said court question, the Prosecutrix/PW1 deposed that Accused had also gone with Accused Rama to her house when she took him alongwith her. Apparently, this version of 'AT' is a clear improvement upon her earlier version and also the case of the Prosecution.
46. Even otherwise, it remained questionable as to why she would accompany Accused Sonia @ Sheikh Sonu and Rama to the house of Accused Rama when it is her claim that she was being raped by Accused Sonia @ Sheikh Sonu in his house during the period when she remained there. It cannot be believed that victim of rape would accompany the perpetrator of said crime to another place and not even make a bid to escape on the way. Noticeably, PW1 did not even whisper about any such attempt to escape while she was allegedly being taken to the house of Rama by Accused Sonia @ Sheikh Sonu and Rama both.
47. Moreover, the mere recovery of clothes of 'AT from house of Accused Sonia @ Sheikh Sonu does not establish the Prosecution case, since it is not disputed by Accused Sonia @ Sheikh Sonu that 'AT' used to keep her belongings in his house.
48. In the light of above discussion, I find that charge under Section 370 IPC against Accused Sonia @ Sheikh Sonu as well as Rama cannot be said to be proved.
49. Besides facing trial for offence under Section 370 IPC, which has been found to have not been proved by Prosecution against Accused Rama, she is also facing trial for charges under Section 109 r/w Section 376 IPC and Section 4 and 5 of ITP Act.
50. Though it is claim of the Prosecutrix/PW1 that Accused Rama abetted two unknown persons, who have not been arrested so far, to commit rape upon the Prosecutrix 'AT' at her house i.e. L292A, First Floor, Gali Telmil, Nabi Karim, Delhi, however, to my mind, the Prosecution has miserably failed to prove said charge against Accused Rama.
51. It is noteworthy that as per own case of the Prosecution, Accused Rama was arrested on the basis of disclosure statement of co accused Sonia @ Sheikh Sonu. In the entire chargesheet, there is not even a slightest whisper at any point of time that house of Accused Rama ie. L292A, First Floor, Gali Telmil, Nabi Karim, Delhi was ever pointed out or identified by the Prosecutrix during the entire course of investigation. Rather, it is borne out from the supplementary statement of Prosecutrix 'AT' recorded under Section 161 CrPC dated 12.07.2014 that she tried to find the house of Accused Rama, who was unable to point it out. It is thus apparent that Prosecution has failed to bring on record any evidence to establish that Prosecutrix was subjected to rape by two unknown persons at the instance of Accused Rama at her house at L292A, First Floor, Gali Telmil, Nabi Karim, Delhi. In other words, the alleged place of incident has not been proved on record by the Prosecution. Further, it is not the claim of Prosecutrix 'AT' that she ever made any effort whatsoever, to escape from the house of Accused Rama.
52. It is also pertinent to note that though there is a supplementary statement of 'AT' under Section 161 CrPC dated 12.07.2014 that she identified Accused Rama at PS Nabi Karim on 12.07.2014, however, in her entire testimony, Prosecutrix nowhere deposed that she identified Accused Rama in the PS on 12.07.2014 as is the case of Prosecution. Her only testimony to this effect is 'On the same day, I identified Accused Rama.' Admittedly, the Investigating Agency did not get conducted any TIP proceedings to get Accused Rama identified by Prosecutrix during the course of investigation. Prosecutrix failed to specify when and where she identified Accused Rama after her arrest. In these circumstances, the Prosecutrix, to my mind, has failed to prove the said allegations against Accused Rama.
53. Consequently, in view of the above, the charges under Section 4 and 5 ITP Act, on which Accused Rama is facing trial must also necessarily fail.
54. Besides the aforesaid, there is also the testimony of Prosecutrix/PW1 on record to the effect that she had stolen the keys of house of Accused Sonu. She stated that one day she had picked up the key of the house of Accused Sonu before Accused Sonia took her to the house of coaccuse Rama. She voluntarily added that she had taken the key as she had to take her bag from his house. My attention was also drawn to the statement of 'AT' recorded under Section 164 CrPC Ex. PW1/G wherein she has clearly stated before Ld. MM that she reported the matter to the police as Aunty [Accused Rama] was not giving her money and Accused Sonia @ Sheikh Sonu was not returning her bag to her.
55. Moreover, the DNA analysis of fetus of Prosecutrix does not connect it to Accused Sonia @ Sheikh Sonu. It is also noteworthy that as per MLC of Prosecutrix Ex. PW5/A, she was having pregnancy of about 04 weeks at the time of her medical examination i.e. on 11.07.2014. Hence, her claim that she conceived on account of having being raped, either by Accused Sonia @ Sheikh Sonu or by two unknown persons at house of Accused Rama, is obviously false.
56. It must also be kept in mind that though the settled legal position is that the conviction can be based on the sole testimony of Prosecutrix, however, the court must be of the view that said testimony of Prosecutrix is reliable and is of sterling quality. In the case of Abbas Ahmed Choudhury Vs State of Assam (2010) 12 SCC 115, it has been observed that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a Prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court held: "Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW1."
57. In another case titled as Raju Vs State of Madhya Pradesh (2008) 15 SCC 133, the Supreme Court stated that the testimony of a victim of rape has to be tested as if she is an injured witness but cannot be presumed to be a gospel truth.
"It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis of assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
58. In Rai Sandeep @ Deepu Vs State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which would be made basis to convict the accused. It held: "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness shouild be in a position to accept it for its face value without any hesitation."
59. In the light of above discussion, I am of the opinion that Prosecution has failed to establish that Accused Sonia @ Sheikh Sonu confined the Prosecutrix in his house after abducting her from railway station or that he repeatedly committed rape upon her in his house or transferred her to the coaccused Rama on 09.07.2014, as testimony of Prosecutrix does not inspire confidence. Further, in the light of above discussion, charges under Section 370 IPC must also fail against Accused Rama. Moreover, since Prosecutrix has failed to establish the place of incident i.e. house of Accused Rama, where Prosecutrix was allegedly raped by two unknown persons at her instance, the charges under Section 109 r/w Section 376 IPC and Section 4 and 5 ITP Act also do not stand proved against Accused Rama.
60. Consequently, both the above named Accused are hereby acquitted. They be released forthwith, if not wanted in any other case. Announced in the Open Court on 01.06.2015 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
State Vs. Sonia @ Sheikh Sonu
FIR No. 314/14
PS : Nabi Karim
SC No. : 54/14
01.06.2015
Present : Sh. Mohd. IqrarLd. APP for State.
Both Accused produced in J/c.
Ms Chitra MalLd. Legal Aid Counsel for both Accused alongwith Sh. Puneet VarshneyLd. Counsel for Accused Rama.
Vide judgment announced of even date on separate sheets, Accused Sonia @ Sheikh Sonu and Accused Rama are hereby acquitted of offences with which they have been charged. They be released forthwith, if not wanted in any other case.
At this stage, both the Accused are directed to furnish personal bond to the tune of Rs. 10,000/ with one surety in the like amount.
Bail bonds of both Accused are furnished and accepted till 03.06.2015 subject to verification of surety by SHO concerned.
(Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.
State Vs. Sonia @ Sheikh Sonu
FIR No. 314/14
PS : Nabi Karim
SC No. : 54/14
03.06.2015
Present : Sh. Mohd. IqrarLd. APP for State.
Both Accused in person.
Ms Chitra MalLd. Legal Aid Counsel for both Accused alongwith Sh. Puneet VarshneyLd. Counsel for Accused Rama.
Bail bond of accused Sonia @ Sheikh Sonu furnished and accepted in terms of order dated 01.06.2015. However, accused Rama further seeks time to furnish surety.
At request, adjourned to 05.06.2015.
(Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.
State Vs. Sonia @ Sheikh Sonu
FIR No. 314/14
PS : Nabi Karim
SC No. : 54/14
05.06.2015
Present : Sh. Mohd. IqrarLd. APP for State.
Accused Rama in person.
Sh. Puneet VarshneyLd. Counsel for Accused Rama. Bail bond of accused Rama furnished and accepted in terms of order dated 01.06.2015.
File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.