Delhi District Court
State vs 1. Farukh @ Chhotu S/O Mohd. Yameen, on 11 April, 2013
IN THE COURT OF MS. NISHA SAXENA: ADDL.SESSIONS
JUDGE03(NE): KARKARDOOMA COURTS: DELHI.
SC No.28/10
Unique ID No.02402R0131802007
Date of institution: 19.1.2007
Date of transfer:23.2.2010
Date on which reserved for order:9.4.2013
Date of delivery of order:11.4.2013
State vs 1. Farukh @ Chhotu s/o Mohd. Yameen,
R/o L315, Sector9, Vijay Nagar,
Ghaziabad, U.P.
2.Smt. Shabana w/o Farukh @ Chhotu,
R/o L315, Sector9, Vijay Nagar,
Ghaziabad, U.P.
3.Ram Kumar @ Adesh s/o Jai Pal Singh,
R/o Village Nawada, PS Dankaur,
Distt. Gautam Budh Nagar, U.P.
4.Nem Singh s/o Kirpal Singh,
R/o Shanti Nagar, Near Gyandip Public School,
Vijay Nagar Byepass, Ghaziabad, U.P.
5.Bijender s/o Raghubir Singh Yadav,
R/o Village Nagla Mallu, PS Mohammadabad,
FIR no. 369/06, PS New Usmanpur 1/40
Distt. Farukhabad, U.P.
FIR No. 369/06
PS New Usmanpur
U/s 120B/211/182/376 IPC
JUDGMENT:
1. The prosecution case is registered on the basis of ruqqa dated 17.10.2006 stating that on 18.03.2006 a case vide FIR NO.96/06 u/s 376(2)(g) IPC was registered at PS New Usmanpur on the statement of Shabana w/o Farukh @ Chhotu r/o L315, Sector 9, Vijay Nagar, Ghaziabad, U.P. in which she reported that on 17.3.2006, between 6 p.m. to 9.30 p.m., she was raped by Vinod, Brahm and Suresh at Jungle Yamuna Khadar, near Pantoon Pul, Usmanpur, Delhi. She also stated that Vinod came to her house for collection of Rs.900/ towards the milk supplied by him. She told him that she was in need of money. Vinod assured her that he would help her in borrowing money from his acquaintance at Delhi. She boarded a maruti car and proceeded alongwith Vinod. When they reached near Railway Crossing, Suresh and Brahm, who were present there, also boarded the car. The car was taken FIR no. 369/06, PS New Usmanpur 2/40 in different directions aimlessly. When she questioned Vinod in this regard, a pistol type object was put on her temple. She was taken to a deserted place where she was raped by Suresh and Brahm. She became unconscious. During the course of investigation, Shabana told that at the instance of one Ram Kumar @ Adesh she had lodged the above false report. She was raped by two known persons of Ram Kumar @ Adesh. She further told that she was paid money for lodging that report. Her statement u/s 164 Cr.P.C. was recorded by Ld. M.M. and accused Ram Kumar and Nem Singh were arrested in this case and were challaned u/s 376(2)(g) /109/120B IPC on 30.4.2006 which was pending before the court of Shri R.K.Yadav, Ld. ASJ, KKD Courts, Delhi. The accused persons Bijender and Farukh @ Chhotu could not be arrested till then and hence after getting them declard P.O., the supplementary chargesheet was filed. On 30.8.2006, Ld. ASJ granted permission for further investigation in that case. The sanction to prosecute Shabana u/s 182 IPC was also obtained from the court of Sh.Ajay Gupta, Ld. M.M., Karkardooma Courts, Delhi, on 3.6.2006. Shabana, the complainant in FIR NO.96/06 u/s 376(2)(g) IPC PS New Usmanpur had actively participated in FIR no. 369/06, PS New Usmanpur 3/40 criminal conspiracy and seemed to be an offender. In order to make the facts crystal clear, the FIR was registered for the offence u/s 120B/211/182/376(2)(g) IPC and the investigation was handed over to Inspector M.A. Khan. The case FIR No.96/2006 of PS New Usmanpur was registered on 18.3.2006 on the statement of accused Shabana in which she clearly alleged that she was raped by Suresh, Brahm and Vinod. During investigation of that case she disclosed that she got the case registered to falsely implicate above persons on the abetment of one Adesh @ Ram Kumar. She further told that accused Ram Kumar @ Adesh was having enmity with Vinod, Brahm and Suresh since Vinod got registered a case vide FIR No.179/05 u/s 307/504/506 IPC at PS Dankaur, Distt. Gautam Budh Nagar, U.P., against his brother Lokesh. Accused Ram Kumar @ Adesh was working in UP Police as a Constable. He wanted to take revenge of the enmity and also wanted to settle score with them. He hatched a criminal conspiracy to implicate Vinod, Brahm and Suresh in a false case. He contacted Shabana and promised to give her Rs.3000/. Shabana was also shown the face of Vinod by the accused Ram Kumar @ Adesh. Shabana agreed to participate FIR no. 369/06, PS New Usmanpur 4/40 in the conspiracy actively. On 17.3.2006, Ram Kumar @ Adesh arranged a meeting of two persons with Shabana. Ram Kumar brought a maruti van at the residence of Shabana. Besides accused Nem Singh (the maruti van driver) and accused Ram Kumar @ Adesh, two more persons with whom Shabana had met earlier were also present in the van. Shabana also boarded that van. All of them reached at Jungle, Yamuna Khadar, near Pantoon Pul, New Usmanpur at about 9.30 p.m. Accused Ram Kumar @ Adesh and Nem Singh went away leaving behind Shabana and those two persons. Both of them raped her and their names were disclosed by Shabana as Bijender and Chhotu in her statement recorded by IO ASI Anuradha on 18.3.2006. Her statement u/s 164 Cr.PC was also got recorded by the Ld. M.M., Shri Ravinder Singh on 18.3.2006 itself. Shabana also pointed out the place of occurrence. She also identified accused Ram Kumar @ Adesh after his arrest on 18.3.2006. She also identified accused Nem Singh. In her statement recorded u/s 164 Cr.P.C. she did not name Bijender and Chhotu but stated that she was raped by known person of Adesh and she claimed that she could identify the accused persons but was not aware of their name FIR no. 369/06, PS New Usmanpur 5/40 and addresses. Thereafter a chargesheet against accused Ram Kumar @ Adesh and Nem Singh was filed u/s 376 (2)(g)/ 109/120B IPC and the same was pending before the court of Sh. R.K.Yadav, Ld. ASJ. Accused Ram Kumar @ Adesh disclosed the name of the accused persons who actually committed rape upon Shabana as Bijender Singh s/o Raghubir Singh Yadav, r/o Village Khojipur, PS Chhibramau, Distt. Kanauj, U.P. and Chhotu r/o L315, Sector 9, Vijay Nagar, Ghaziabad, U.P. The efforts to trace them out were made but they could not be arrested by that time and hence a supplementary chargesheet against them was filed after getting them declared as P.O. Shabana, the complainant in that case could not be prosecuted in that case hence this present case was registered. The two different statements were given by Shabana, one to the police officials of PS New Usmanpur on 18.3.2006 on which FIR No.96/06, u/s 376 (2)(g) IPC was registered and other statement she gave before Ld. M.M., Shri Ravinder Singh, u/s 164 Cr.P.C. which revealed that she actively participated in the criminal conspiracy and there was sufficient evidence on the record to prove her guilt. Shabana had also not disclosed the name of accused Chhotu, whose real name FIR no. 369/06, PS New Usmanpur 6/40 was Farukh and was her husband. Accused Shabana was arrested in this case on 18.10.2006 and was released on bail. Accused Farukh @ Chhotu was P.O. Accused Ram Kumar @ Adesh, Bijender and Nem Singh were on bail in that case therefore they were not arrested in this case. Shabana alongwith Ram Kumar @ Adesh, Bijender, Farukh @Chhotu and Nem Singh actively participated in criminal conspiracy, fabricated false evidence with intent to procure conviction of Vinod, Brahm and Suresh for offence of gang rape and also tried to frame innocent persons for the false charge of gang rape made with intent to injure. Hence the chargesheet was filed against Shabana, Ram Kumar @ Adesh, Bijender, Farukh @ Chhotu and Nem Singh.
2. Charge was framed against accused Ram Kumar @ Adesh, Nem Singh, Bijender and Shabana u/s 120B r/w Section 182/211 IPC while accused Shabana was separately charged u/s 182 & 211 IPC. To the charge accused persons pleaded not guilty and claimed trial.
3. The prosecution has examined 16 witnesses in support of its case.
FIR no. 369/06, PS New Usmanpur 7/40 ● The material prosecution witnesses are PW1 Suresh Kumar,
PW2 Vinod Kumar Sharma and PW3 Brahm Pal Sharma. ● To prove the medical evidence, the prosecution has examined PW9 Dr. Sanjeeta who proved the MLC No. C950/06 of Nem Singh dated 20.3.2006 prepared by Dr. Shabd Prakash as Ex.PW9/A identifying his handwriting and signature and according to MLC the doctor had opined that there was nothing to suggest that the Nem Singh was not capable of performing sexual intercourse. She also proved the MLC No.A1222/06 of Shabana dated 17.3.2006 prepared by Dr. Ruchika Ex.PW9/B identifying her handwriting and signature. PW10 is Dr. Prabhakar Yadav who proved the MLC of Shabana as Ex.PW10/A wherein on examination he found the patient to be conscious and oriented and no fresh external injury was seen. PW11 Dr. Devender proved the MLC No.C946/06 of Ram Kumar dated 19.3.2006 as Ex.PW11/A. ● The other witnesses examined by the prosecution are police officials. PW4 is Const. Sunita. On 18.11.2006, she joined investigation when accused Shabana was arrested vide arrest and personal search memos Ex.PW4/A and Ex.PW4/B. PW5 SI FIR no. 369/06, PS New Usmanpur 8/40 Chand Singh registered the present FIR Ex.PW5/A bearing his signatures at point A. PW6 is H.C. Nepal Singh, on 18.3.2006, he recorded FIR No.96/06 Ex.PW6/A and made his endorsement on ruqqa vide Ex.PW6/B. He also proved the DD No.66 dated 17.3.2006 as Ex.PW6/C regarding lying of a lady in bushes near Pantoon Pul. PW7 is ASI Anuradha. She is IO of FIR No.96/06. PW8 SI Brahmpal was posted in PCR North east Zone, on the intervening night of 17/18.3.2006 at about 10.35 p.m. he received wireless information regarding a lady lying unconscious at Yamuna Khadar. He alongwith PCR van and the staff reached Pantoon Pull near Wazirabad Bridge where they met Shabana who dislcosed to them that Suresh, Vinod and Brahm Pal had done 'galat kaam' with her. They took Shabana in PCR van to GTB Hospital for her medical examination.
● PW12 Inspector Krishan Lal, SHO PS New Usmanpur, filed chargesheet in FIR No.96/06, PS New Usmanpur. He stated that vide order dated 30.8.2006 Ld. ASJ, Shri R.K. Yadav had granted permission for further investigation. He stated that during investigation of the allegations in FIR No.96/06, PS New Usmanpur, it was found that the victim Shabana had actively FIR no. 369/06, PS New Usmanpur 9/40 colluded with the accused persons for registering a false case vide FIR NO.96/06 on account of some personal enmity and the sanction to prosecute Shabana u/s 182 IPC was also obtained from the court of the then Ld. M.M., Shri Ajay Gupta on 3.6.2006. He proved ruqqa as Ex.PW12/A. ● PW13 SI Lal Sahab was IO in FIR no.96/06,PS New Usmanpur, from 27.3.2006 to 7.6.2006. PW14 Const. Ajay Pal Tyagi produced the summoned record comprising of FIR No.179/05, PS Dankor. PW15 Shri Ravinder Singh, Ld. M.M., proved the statement of the prosecutrix recorded u/s 164 Cr.P.C. vide Ex.PW15/A. PW16 Inspector M.A. Khan is IO of the present case.
4. Statement of accused persons were recorded u/s 313 Cr.P.C.
in which they pleaded innocence. Accused Ram Kumar @ Adesh stated that he had been falsely implicated in FIR NO.96/06 and Shabana did not mention his name in her statement u/s 164 Cr PC and there is no evidence on record of any kind that Adesh is Ram Kumar or Ramu Kumar. It was revealed to him during the trial that Shabana had lodged FIR against Vinod Kumar etc and she also mentioned their name in MLC but police involved him while FIR no. 369/06, PS New Usmanpur 10/40 they were released by the police without any proper investigation within two hours. He did not know Shabana prior to the case and had not hatched any conspiracy with the accused persons. Accused Nem Singh also stated that he was falsely implicated in FIR NO.96/06. He had no connection with any of the accused. He had bad relations with his maternal cousin Raghu Raj who had grudge against him on some family issues. He got him falsely arrested in this case without any rhyme or reason. Accused Bijender also stated that they were falsely implicated in FIR No.96/06 which resulted in their acquittal. He was falsely implicated for having raped Shabana who categorically denied his involvement in the previous case. In her deposition before the trial court she made allegations of rape against the accused persons whose names she first mentioned in the FIR. He is falsely implicated. In the previous case one Bijender s/o Raghubir Singh r/o village Khojipur, PO Behralpur, PS Chibra Mau District Kanauj was involved as an accused but police officials colluded with that person and let him off and got him falsely implicated in that case as he had also the same name, father's name but his address was different.
FIR no. 369/06, PS New Usmanpur 11/40 ● In their defence accused persons have examined two
witnesses. DW1 is Sohail Khan, Booth Level Officer, Khojipur, Distt. Kanauj. He produced the certified copy of voter list of Village & Post Khojipur, Dist. Kanauj, U.P. prepared by Assistant Election Registration Officer. He showed that as per record, name of Bijender s/o Raghubir r/o H.no. 221 aged 39 years appeared at serial No.1007. The same is proved as Ex.DW1/A bearing the signature and stamp of Assistant Electoral Registration Officer at point A. ● Accused Ram Kumar examined himself as DW2. He stated that in the year 1996 he purchased a house at Main Gali, Shanti Nagar, near Kamla House, PS Vijay Nagar, Ghaziabad, UP, vide sale deed Ex.DW2/A. The receipt of electricity connection dated 9.4.2004 is Ex.DW2/B and the electricity bills are Ex.DW2/C and Ex.DW2/D. He stated that he had no connection with his native place i.e. village Nawada PS Dhankor, District Gautam Budh Nagar, UP since 1996.
5. I have heard Addl. PP for the State and Mr. D.K.Tyagi, Counsel for accused Ram Kumar @ Adesh and Mr. Ram Kumar, Counsel for accused Bijender and Nem Singh. Accused Farukh FIR no. 369/06, PS New Usmanpur 12/40 @ Chhotu and accused Shabana were declared P.O.
6. In the instant case, accused Ram Kumar is alleged to be the master mind. Nem Singh is the maruti driver in which co accused Shabana was taken to jungle. The allegations of rape are against accused Bijender and Chhotu @ Farukh s/o Yasin who is the husband of co accused Shabana (the prosecutrix in FIR No.96/06). Initially when the complaint was made by the prosecutrix regarding gang rape she made allegations against PW2 Vinod, PW1 Suresh and PW3 Brahm. PW2 Vinod is the nephew of PW1 Suresh and the motive behind FIR NO.96/06 is stated to be enmity between Ram Kumar and Vinod as it is alleged that since family of Vinod had implicated Lokesh (brother of accused Ram Kumar) in FIR no. 179/05 PS Dankaur in a case u/s 307/506/504 IPC, to take a revenge. Ram Kumar conspired with Shabana (coaccused) to falsely implicate Vinod, Suresh and Brahm. The incident of rape allegedly took place on 17.03.06 between 6 to 9.30 pm. However, the information was received in the police station at about 1.45 a.m. on 18.03.06. Supplementary statement of the prosecutrix in FIR no. 96/06 Police Station New Usmanpur was also recorded on the same day and thereafter FIR no. 369/06, PS New Usmanpur 13/40 her statement u/s 164 Cr Pc was recorded on 18.03.2006 itself. In her statement u/s 164 Cr PC she stated that Vinod, Suresh and Brahm had not committed rape upon her but she was raped by associates of Adesh. The accused Ram Kumar, Nem Singh, Bijender and Farukh @ Chhotu s/o Yaseen were sent up for trial in FIR no. 96/06. All the accused viz Ram Kumar, Nem Singh and Bijender were charged u/s 120B r/w section 376 IPC while Nem Singh and Bijender were also separately charged u/s 376 IPC. However, in her testimony before the court the prosecutrix again took a somersault and made allegations against Vinod, Suresh and Brahm, as a result of which accused Ram Kumar, Nem Singh and Bijender were acquitted by Ld. ASJ Sh. Surender Kumar Sharma on 23.02.2010.
7. In the light of above background let us scan the testimony of material prosecution witnesses. PW1 Suresh Kumar stated in his deposition before the court that on 17/18.3.2006, Delhi Police came to his village alongwith one lady named Shabana. He made his statement before the police and he had stated all the incident to the police. Besides this, PW1 did not depose anything. As he was resiling from his previous statement, he was cross examined FIR no. 369/06, PS New Usmanpur 14/40 by the State wherein he admitted that on 6.1.2007 he had stated before the police in his statement that on 18.3.2006 he came to know that one lady named Shabana at the instance of Ram Kumar s/o Jai Pal, resident of their village had falsely got registered a case against him, Brahm and Vinod. In his cross examination by the defence, he denied the suggestion that on 18.3.2006 Shabana was brought by Vinod to Delhi at railway phatak and thereafter he and Brahm sat in maruti and they all moved in the car here and there and and when Shabana objected, Vinod slapped her. He denied the suggestion that thereafter they took the maruti car to the jungle and committed rape upon Shabana and left Shabana there and came back to their house.
8. PW2 Vinod Kumar Sharma stated that Ram Kumar s/o Jai Pal was his uncle who belonged to the same village. They were on inimical terms with each other. He did not know about the conspiracy hatched against them by Ram Kumar. On 18.3.2006 when they were present at their village, Delhi police apprehended him and Suresh. Police brought them to Delhi and he informed the police that he did not know any lady by the name of Shabana and after making inquiry, police let them off in the evening. Since FIR no. 369/06, PS New Usmanpur 15/40 this witness was also resiling from his previous statement, he was cross examined by Ld. Prosecutor. In his cross examination on being led by Ld. Prosecutor he admitted that he had stated in his statement before the police that Ram Kumar s/o Jai Pal who was resident of their village with the connivance of one lady named Shabana had got registered a false case against him, Brahm and Suresh on 18.3.2006. He also admitted that he had stated in his statement that from 12 noon on 17.3.2006 to 4.30 a.m. on 18.3.2006, he was present at his house. In his cross examination by the defence, he admitted that he was supplying milk in Ghaziabad. He, however, denied the suggestion that he used to supply milk to Shabana and brought her to Delhi from Ghaziabad in a maruti as she was in need of money and at railway phatak, Suresh and Brahm who were already present there, also boarded the maruti car and thereafter they all committed rape upon Shabana and when she became unconscious she was left there and they all came back to their house.
9. PW3 Brahm Pal Sharma stated that he was residing at Village Nawada, PS Dankaur, Distt. Gautam Budh Nagar, U.P.which was his permanent address. Since he was to take his FIR no. 369/06, PS New Usmanpur 16/40 examination for intermediate class in March, 2006, he was residing at Teacher Colony, Dankaur, at the house of his brother. On 18.3.2006, after taking his examination, when he came back to the house, he came to know that Vinod and Suresh were apprehended by the police. He did not know anythingelse except this. Since this witness was also resiling from his previous statement, he was cross examined by Ld. Prosecutor. In his cross examination by the State he admitted that he came to know that one Shabana had got registered a false case against him, Vinod Kumar and Suresh at the instance of one Ram Kumar s/o Jai Pal who was resident of their village. In his cross examination by the defence he denied the suggestion that they committed rape on Shabana and when she became unconscious she was left and they came back to their house. He denied the suggestion that Ram Kumar did not make any instigation to Shabana to make false statement against him, Vinod and Suresh. He denied the suggestion that on the night of 17/18.3.2006, when police came at his house, he ran away from his house. He stated that Vinod Kumar was son of his uncle (Tau) and Suresh was his uncle (chacha). He also stated that Vinod was doing the work of milk FIR no. 369/06, PS New Usmanpur 17/40 supply in Ghaziabad and Suresh was working as an agriculturist in village. He stated that Shabana was seen by him for the first time before the court and he had not seen her prior to the date. He also denied the suggestion that they all committed rape upon Shabana.
10. The genesis of the prosecution story starts from FIR No.96/06, PS New Usmanpur, which culminated into a chargesheet u/s 376 (2)(g)/ 120B/109 IPC. Accused Ram Kumar, Nem Singh and Bijender, Chhotu s/o Yamin (P.O.) were charged for the offence u/s 120B read with 376 IPC collectively and a separate charge for the offence u/s 376 IPC was framed against accused Nem Singh and Vijender. The FIR was registered on the complaint of prosecutrix Shabana wherein she made allegations of rape against Vinod, Suresh and Brahm. However, during investigation when her statement u/s 164 Cr.P.C. was got recorded before Ld. M.M., Shri Ravinder Singh on 18.3.2006, she stated that she had filed a false rape case against Vinod, Suresh and Brahm on the instigation of one Adesh for an amount of Rs.3000/.
FIR no. 369/06, PS New Usmanpur 18/40
11. Before her statement was recorded, Ld. M.M. put certain preliminary questions to her and one of the question was:
"Q. APKO KISI NE DARAYA YA DHAMKAYA YA KOI LALACH DIYA HO YAHAN BAYAN DENE KE LIYE?
ANS: JI NAHIN, BAS KAHA HAI KI MAIN CHHOOT JAUNGI.
(Q. If any one has threatened, pressurized or coerced you to give the statement.
Ans. No. But I was told that I would be set free.
Her statement u/s 164 Cr.P.C. recorded on 18.3.2006 is as under: MAIN ADESH NAAM KE LADKE KE BEHKANE MAIN AA GAI THI. USNE MUJHEY TEEN HAZAAR RUPEY KA LALACH DIYA AUR KAHA KI MAIN RAPE KI JHOOTHI GAWAHI DOON KI MERA RAPE VINOD, SURESH AUR BRAHM NE KIYA HAI AUR MAINE LALACH VASH POLICE SE IN TEENO KAA NAAM LIYA PAR VASTAV MAIN IN TEENO NE MERA RAPE NAHIN KIYA HAI. PAR MERA RAPE ADESH KE JAANKARON NE KIYA TAKI MERI DOCTORI THEEK PAI JAIY AUR TEENO JHOOTHE CASE MAIN BUND HO JAYE. JISNE MERA RAPE KIYA HAI MAIN USEY PAHCHAAN SAKTI HOON PAR MAIN USKA NAAM PATA FIR no. 369/06, PS New Usmanpur 19/40 NAHIN JAANTI HOON.
(I was given persuasion by one Adesh who told me that he would give me Rs.3000/ if I gave a false statement that I had been raped by Vinod, Suresh and Brahm. Due to the greed, I implicated them though the above named persons had not raped me. I had been raped by the known persons of Adesh, in order that my medical examination confirms rape and they are put in the jail. I could identify the person who had raped me. However, I did not know his name and address.)"
12. In MLC dated 17.3.2006 of Shabana conducted at about 11.30 p.m., Farukh was shown her husband and it shows the alleged history of sexual assault by three males (Vinod, Brahm and Suresh) at around 7 p.m. tonight (17.3.2006) in maruti car. However, no external injury was found. Testimony of the prosecutrix in FIR No.96/06 (accused in FIR No.369/06) was recorded on 19.12.2008 wherein she did not make any allegations against accused Ram Kumar, Nem Singh and Bijender. Rather she stated in her deposition before the court that about three years ago at about 6 a.m. she was present in her house. Vinod whom she knew as he used to supply milk at her house, came to her house for giving milk. He demanded Rs.900/ from her in respect of the milk delivered. She told him that she was not FIR no. 369/06, PS New Usmanpur 20/40 having money at that time. She told him that she was in need of Rs.3000/ to which Vinod stated that he could arrange the same from his known persons. Vinod asked her to accompany him to Delhi for the aforesaid purpose. In the evening time on the same day at about 7 p.m. he took her to railway phatak in a maruti van and took two other persons namely Brahm and Suresh in the maruti van and she was taken to a jungle at an unknown place. Vinod slapped her and threatened her to keep silence and struck her with something like a pistol on her head. Vinod torn her clothes and committed rape upon her. Thereafter two other persons i.e. Suresh and Brahm also committed rape upon her. After committing rape she was thrown near the bushes in a naked condition by all three accused persons and they went away leaving her alone. After ½ an hour someone informed the police. Police arrived there and she was taken to a police station but she did not remember name of the police station. She got her statement recorded and she was kept at the police station in the night and next day she was taken to court by the police officials. Her statement was also recorded by the Magistrate. Her statement u/s 164 Cr.P.C. was shown to her and she denied FIR no. 369/06, PS New Usmanpur 21/40 having made any statement to the Magistrate. She was cross examined by Ld. Prosecutor. She denied that statement u/s 164 Cr.P.C. mark X was given to the Magistrate and she put her thumb impression at point X1. She admitted that she gave statement to the police Ex.PW1/A bearing her thumb impression at point A1 in which she deposed against Suresh, Vinod and Brahm of committing rape upon her person. She denied the suggestion that she wrongly named Vinod, Brahm and Suresh as the persons who committed rape upon her. She denied that on 19.3.2006 she gave another statement to the police. She specifically denied that accused Bijender and Chhotu @ Farukh committed rape upon her. She stated that Chhotu @ Farukh was her husband. She denied the suggestion that Ram Kumar met her one day and told her that Vinod, Suresh and Brahm had implicated Lokesh in a false case u/s 307 IPC and she should implicate them in a false case and he would give her Rs.3000/ in lieu of implicating them falsely to which she agreed. She also denied that Ram Kumar introduced two persons to her and on 17.3.2006, Ram Kumar @ Adesh came to her house in a maruti van wherein those two persons were sitting with whom she was FIR no. 369/06, PS New Usmanpur 22/40 introduced by Ram Kumar. She also denied that she was taken to a jungle where Ram Kumar and driver went away and other two persons who were sitting in the van caught hold of her and committed rape on her person. She denied that accused Bijender and Chhotu committed rape upon her in the jungle. She further deposed that she had not stated the above said facts to the police in her third statement. She was confronted with the statement mark Z where it was so recorded. She denied that she gave her statement to the Magistrate mark X correctly and stated that her statement to the police Ex.PW1/A was correct one. She denied the suggestion that she had been won over by the accused persons namely Bijender, Ram Kumar and Nem Singh and compromised the matter with them and as such was not identifying them voluntarily.
13. Vide order dated 23.2.2010, Ld. ASJ, Shri Surender Kumar Sharma acquitted accused Ram Kumar, Nem Singh and Bijender of the charges u/s 376(g) /120B/109 IPC.
14. PW7 SI Anuradha was the IO of FIR NO.96/06. In her cross examination she stated that she did not know whether the victim had stated before the doctor that three persons namely Vinod, FIR no. 369/06, PS New Usmanpur 23/40 Brahm Pal and Suresh had raped her. She did not remember whether she had collected the MLC of victim. However, the MLC No.1222/06 of the Shabana in FIR No.96/06 Ex.PW4/A reflects that she named Vinod, Brahm and Suresh as the persons who had raped her. She also stated in her cross examination that there is no evidence in that case to show that Adesh was also known by the name of Ram Kumar. She denied the suggestion that she had added the alias on her own without there being any evidence to this effect. She denied the suggestion that accused Ram Kumar was falsely implicated in FIR No.96/06 and thereafter he was falsely in this case also. She also denied the suggestion that she had connived with those three persons named in the FIR alongwith victim Shabana and falsely implicated the accused persons in the present case.
15. PW8 SI Braham Pal was the first person to reach the spot where the prosecutrix was lying on the night of 17/18.3.2006. He has testified that on the intervening night of 17/18.3.2006 he received an information at about 10.35 p.m. on wireless that a lady was lying unconscious at Yamuna Khadar. He alongwith PCR van and the staff reached near Wazirabad Bridge. They FIR no. 369/06, PS New Usmanpur 24/40 reached near Pantoon Pul near bushes. There they met one lady who disclosed her name as Shabana w/o Farukh. She also disclosed that Suresh, Vinod and Brahm Pal had done 'galat kaam' with her, left her and gone away. She was taken in PCR van to GTB Hospital for her medical examination where her MLC was prepared. He also stated at the time when Shabana met them she was in a 'astvyast' (dishevelled) condition and was standing on the road.
16. PW12 Inspector Krishan Lal stated in his testimony before the court that during the trial of case No.96/06 Ld. Court of Sh.R.K.Yadav, the then ASJ, had passed verbal orders for further investigation in that case. He moved an application seeking permission of the court to further investigate in the matter. Vide orders dated 30.8.2006 the application was allowed for the purpose of further investigation. It was revealed during further investigation that the allegations levelled by the victim in FIR No.96/06, Police Station New Usmanpur, were false and it was further revealed that victim Shabana had actively colluded with the accused persons for registering a false case i.e. FIR No.96/06 on account of some personal enmity. The sanction to prosecute FIR no. 369/06, PS New Usmanpur 25/40 Shabana u/s 182 Cr.P.C. was also obtained from the court of Ld. M.M., Shri Ajay Gupta, on 3.6.2006. From the investigation carried out it was revealed that accused Shabana and other accused persons had hatched a criminal conspiracy to implicate innocent person to take revenge of enmity of accused Ram Kumar @ Adesh. He prepared a ruqqa Ex.PW12/A and the present case was got registered. In his cross examination he stated that statement u/s 164 Cr.P.C. was got recorded by ASI Anuradha. In the said statement name of Ram Kumar did not find mention but the name of Adesh was there. Only IO can comment whether Ram Kumar is also known as Adesh. He denied the suggestion that he left out the real culprits and implicated the accused persons in the present case. In his cross examination he stated that he could not say whether there was enmity between accused Nem Singh and Bijender with the prosecution witnesses namely Vinod, Suresh Kumar and Brahm Pal. He admitted that accused Nem Singh and Bijender were not having any terms with witnesses Vinod, Suresh and Brahm Pal. He volunteered that three witnesses were having enmity with accused Ram Kumar. He stated that when he visited the village of Ram Kumar, Brahm FIR no. 369/06, PS New Usmanpur 26/40 Pal, Suresh and Vinod, he came to know that Vinod, Suresh and Brahm Pal were prosecution witnesses in a criminal case registered against brother of the accused Ram Kumar. He had not collected any documentary evidence in this regard.
17. PW15 Shri Ravinder Kumar, Ld. M.M., who recorded the statement of Shabana u/s 164 Cr.P.C. was asked the following question: Q. Did you ask the witness in particular as to who said "KI TU CHHOOT JAYEGI"?
Ans. No I did not ask any other question except those shown in the proceedings in Ex.PW15/A. It is clear from the proceedings Ex.PW15/A that Ld. M.M. did not ask the prosecutrix in FIR No.96/06 any specific question as to who had told her "TU CHHOOT JAYEGI" and therefore, no specific allegation against any of the accused is there in the statement u/s 164 Cr.P.C.
18. PW16 Inspector M.A. Khan (IO of the present case) stated that during trial of the FIR NO.96/06 it came to their knowledge that accused Shabana got registered a false case of gang rape in collusion with her associates. The statement u/s 164 Cr.P.C.
FIR no. 369/06, PS New Usmanpur 27/40 Ex.PW15/A was got recorded in FIR No.96/06. In that statement victim Shabana had stated that she had filed a false case at the instance of her associates. On the basis of her statement u/s 164 Cr.P.C. accused Ram Kumar @ Adesh, Nem Singh and Bijender were arrested in case FIR No.96/06. Chargesheet in case FIR no.96/06 was filed against these three accused. During trial of case FIR no.96/06 it came to notice that no proceedings of false evidence and other provisions of law had been initiated against Shabana. Accordingly, permission was obtained from the concerned court of the then Ld. ASJ, Dr. R.K. Yadav, for further investigation and the present case was got registered. Accused Shabana was arrested in the present case. All the accused persons had entered into criminal conspiracy for falsely implicating Vinod, Suresh and Brahm in FIR No.96/06 and accordingly they were chargesheeted in the present case. He also stated that during course of investigation it was found that accused Farukh @ Chhotu was husband of accused Shabana. Permission was also obtained from the then court of Sh.Ajay Gupta, Ld. M.M., Delhi. Vide orders dated 3.6.2006 permission was granted by the court for prosecution of accused Shabana under the provisions of FIR no. 369/06, PS New Usmanpur 28/40 Section 182 IPC. In his cross examination, he stated that he could not comment on the statement given by Shabana in her ruqqa statement, the history before the doctor, statement u/s 164 Cr.P.C. in case FIR No.96/06. He admitted that Shabana had named Adesh in her statement u/s 164 Cr.P.C. He could not say how Adesh also came to be known as Ram Kumar in case FIR no.96/06. On the basis of charge sheet filed in 96/06 he had made Ram Kumar @ Adesh as an accused in this case. He had not collected any documentary evidence to show that accused Adesh was also known by the name of Ram Kumar. He denied the suggestion that Adesh was not having any alias as Ram Kumar and Ram Kumar was some other person. In his cross examination he stated that he did not remember from which place he arrested accused Bijender. However, he arrested accused Bijender on 15.10.2006 but he did not remember the exact time. He also denied the suggestion that one Vijender s/o Raghubir Singh, R/o Village Khojipur, PS Chhipra Mau, Distt. Kanauj, was having the same parentage and address as that of accused Bijender who was present in court and at the behest and in connivance with that Vijender, accused Bijender present in the court was falsely FIR no. 369/06, PS New Usmanpur 29/40 implicated. He denied the suggestion that accused Nem Singh had also been falsely implicated in the present case.
19. On 3.6.2006, Ld. M.M. Shri Ajay Gupta passed an order stating that prima facie it appeared that complainant Shabana had committed an offence u/s 182 Cr.P.C. and permission was granted to SHO Police Station New Usmanpur to investigate into the matter and file his report accordingly.
20. Accused Ram Kumar @ Adesh, Nem Singh and Bijender are alleged to have conspired together with Farukh @ Chhotu and Shabana (both P.O.) to falsely implicate Vinod, Suresh and Brahm for committing rape upon accused Shabana in pursuance of which Shabana gave information to the police for commission of offence of rape upon her by Vinod, Suresh and Brahm intending to cause such public servant to book them and thereby they are alleged to have committed an offence punishable u/s 120B r/w Section 182/211 of IPC.
21. The prosecution has not produced any evidence on record to show that the accused persons viz Ram Kumar @ Adesh, Nem Singh and Bijender alongwith Shabana and Farukh @ Chhotu (both P.O.) agreed to do an illegal act in pursuance of which FIR no. 369/06, PS New Usmanpur 30/40 Shabana did overt act and lodged a false report with police station New Usmanpur regarding Vinod, Suresh and Brahm of having raped her. Section 182 of IPC deals with false information with intent to cause public servant to use his lawful power to the injury or annoyance of another person. The offence u/s 182 IPC is a distinct offence from that described in Section 211, which relates to an attempt to put the criminal courts in motion against a person. The circumstances which are necessary to bring a case within section 182 IPC involve different considerations from those that arise under section 211. This section does not necessarily impose upon the person giving information to an officer criminal liability for mere want of caution before giving that information. There must be positive and conscious falsehood established. To constitute an offence under this section the information given to a public servant should not only be false in fact but it must be false to the knowledge or to the belief of the informant and it is not sufficient that the accused had reason to believe it to be false, whereas, under section 211 it is sufficient if the accused makes his complaint without any just grounds and when he acts without due care or caution. In order to secure FIR no. 369/06, PS New Usmanpur 31/40 conviction u/s 182 IPC, the prosecution has to prove that:
(i)that the person to whom information was given was a public servant;
(ii)that the accused gave the information in question to that public servant;
(iii)that such information was false;
(iv)that the accused knew or believed such information to be false when giving it.
(v)that the accused intended thereby to cause, or knew that it was likely that he would thereby cause, such public servant to do or omit anything which such public servant ought not to do or omit if the true facts were known to him; or that he intended thereby to cause or knew that it was likely that he would thereby cause such public servant to use his lawful powers to the injury or annoyance of any person. A complaint under this section should contain the ingredients of the offence, for it is essential that the information given by the accused must have been known or believed to be false by him at the time when he gave it.
22. As regards Section 211 IPC, under this section 'instituting a criminal proceeding' may be treated as an offence in itself apart FIR no. 369/06, PS New Usmanpur 32/40 from 'falsely charging' a person with having committed an offence. There are two modes in which a person aggrieved may seek to put the criminal law in motion (1) by giving information to the police and (2) by lodging a complaint before a Magistrate. A person who sets the criminal law in motion by making to the police a false charge in respect of a cognizable offence institutes criminal proceedings under the first part of this section; and it is not necessary that the complaint should be made to a Magistrate. To secure a conviction u/s 211 IPC, the prosecution must prove:
(i)that the accused instituted or caused to be instituted criminal proceedings; or
(ii)that there were no just or lawful grounds for such proceedings; or that such charge was false;
(iii)that the accused then knew such criminal proceedings, or charge to be without just or lawful grounds;
(iv)that he did as above with intent to cause injury to the person in question.
It is for the prosecution to make out a distinct case against the accused, not for the accused in the first instance to show that he had just or lawful grounds. If the prosecution fails to supply that proof FIR no. 369/06, PS New Usmanpur 33/40 which is required to secure the conviction of the accused, the failure on the part of the latter to examine any particular witness will not imply the guilt of the accused. The party accused should be allowed to show information on which he acted and the Judge ought not only to be satisfied that the facts alleged as the ground for making the charge are in themselves untrue and insufficient, but also that they were known to be such to the accused when the charge was made by him. Failure on the part of the complainant to establish the truth of his allegation does not by any means justify the inference that the complaint was false, and to secure a conviction in this class of cases it must further be established beyond reasonable doubt that the circumstances are not merely consistent with the guilt of the accused but entirely inconsistent with his innocence.
23. It has been contended by Ld. Defence Counsel that the prosecution case falls flat in the absence of a complaint u/s 195 Cr.P.C. Ld. Defence Counsel has relied upon 1969 Crl.L.J. 645, State of Punjab vs Brij Lal Palta, wherein it was held that once a complaint filed by the informant which is based on the same facts and allegations on which the first information was registered, is being proceeded with it is not open to a Magistrate FIR no. 369/06, PS New Usmanpur 34/40 to take cognizance of any offence alleged to have been committed under Section 211 IPC unless there has been proper compliance with the provisions of Section 195 (1)(b) Cr.P.C. It is true that the offence u/s 182, Penal Code is distinct from the one under S.211, Penal Code though the latter is more serious and may include the offence under the former section. The Magistrate can take cognizance of an offence under S. 182 on a complaint in writing of the police officer by virtue of the provisions contained in S. 195(1)(b) Cr.P.C. But it would virtually lead to the circumvention of the provisions of S. 195(1)(b) if the proceedings under S. 182 can continue where the offence disclosed is covered by S.211, Penal Code and a complaint is pending which has been filed by the informant on the same facts and allegations as were contained in his first information report. Similarly on a parity of reasoning with regard to an offence under S.211, no cognizance can be taken by the Magistrate for the alleged offence under S. 193 Penal Code which is one of the sections mentioned in S. 195 (1)(b) Cr.P.C. The object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient ground by person actuated by malice or illwill or FIR no. 369/06, PS New Usmanpur 35/40 frivolity of deposition at the instance of private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the Court has no jurisdiction to take cognizance to any of the offences mentioned therein unless there is a complaint in writing of the public servant concerned as required by the section without which the trial under Section 182 of the Indian Penal Code becomes void ab initio. In the case in hand there is no complaint by the court in writing which was originally in seisin of the matter in which the alleged offence u/s 182/211 IPC was alleged to have been committed by the accused herein and such complaint has to be signed by the Presiding Officer of that court. The case in hand lacks such complaint from the court.
24. In FIR No.96/06 there are many loose ends in the prosecution story which go unexplained and the court is baffled and bewildered in the absence of any explanation.
(i) It is not proved by the prosecution that Ram Kumar is the same person as Adesh. No efforts have been made to establish that Adesh named in the statement of the prosecutrix u/s 164 Cr.P.C. is same as Ram Kumar. The investigating agency has not bothered to FIR no. 369/06, PS New Usmanpur 36/40 find any documentary or oral other evidence to establish that Ram Kumar and Adesh are the same persons.
(ii) Chhotu @ Farukh is husband of the prosecutrix Shabana in FIR No.96/06. However, the prosecution is silent regarding the same. Accused Chhotu @ Farukh was booked for committing rape upon his wife Shabana though in her statement on 18.3.2006 the prosecutrix Shabana disclosed the name of her husband as Farukh.
(iii) Though incharge crime team Anil Kumar inspected the white coloured car No.DDD 1779 wherein he had reported that due to lot of dust the chance prints were not available. The photographs of the vehicle No.DDD 1779 are also on record, though the same were never exhibited. However, the vehicle that was seized in this case was maruti van bearing registration No.DL3CL7010. The vehicle which was released on superdari is also the same maruti van i.e. DL 3CL7010. In her statement on 18.3.2006, on the basis of which FIR No.96/06 was registered, the prosecutrix referred to a white coloured maruti car only.
(iv) In her statement u/s 164 Cr.P.C., the prosecutrix stated that 'ji nahin, bus yeh kaha main chhoot jaungi'. However, the prosecution has not been able to explain as to who stated that to the prosecutrix FIR no. 369/06, PS New Usmanpur 37/40 in FIR No.96/06 and in what context.
(v) It is not clear whether the initial complaint made by the prosecutrix on the basis of which FIR No.96/06 was registered was given under threat, pressure, coercion or whether her statement u/s 164 Cr.P.C. was recorded under influence, pressure or threat by the actual offenders or by the investigating agency in collusion with the actual offenders. The prosecutrix reverted back to the allegations made by her in FIR No.96/06 when she deposed before the court on 19.12.2008 that she was raped by Suresh, Vinod and Brahm Pal Sharma on the strength of which accused Ram Kumar, Nem Singh and Bijender were acquitted of the charge u/s 376(g)/120B/109 IPC.
(vi) There is no investigation on the point as to when Adesh persuaded Shabana to file a false case against Vinod, Suresh and Brahm for an amount of Rs.3000/, when and where he offered to pay money to her.
(vii) The investigation in the matter is shoddy, slipshod and completely botched up and the entire investigation seems to have been conducted in such a manner so as to benefit the persons against whom the allegations were made in the original complaint in FIR No.96/06 at PS New Usmanpur and to implicate the accused FIR no. 369/06, PS New Usmanpur 38/40 persons. The complaint Ex.PW12/A made by Inspector Krishan Lal shows that it is totally baseless and without any application of mind. There is no evidence, at all, to show that any conspiracy was hatched at any point of time between the accused persons. The prosecution witnesses have miserably failed to show any grudge, enmity or illwill to settle a personal score between Ram Kumar and the witnesses Suresh, Vinod Kumar Sharma and Brahm Pal Sharma before this court. The testimony of PW1, PW2 and PW3 are totally unconvincing and uncoroborative.
25. The lodging of present FIR and the criminal trial of accused Nem Singh, Bijender and Ram Kumar @ Adesh who have faced trial since the year 2006 has resulted in double jeopardy and double whammy to them. The present FIR No.369/06 is a result of shoddy, careless and unintelligible investigation conducted by the police officials which has resulted in undue hardships to the accused persons as (1) without any evidence they were implicated in FIR No.96/06 which resulted in their acquittal and (2) during the pendency of the previous case No.96/06 another FIR No.369/06 was lodged. I feel that the way and the manner in which the investigation was conducted in the instant case, in utter FIR no. 369/06, PS New Usmanpur 39/40 disregard of law, calls for enquiry into the actions of concerned police officials to ascertain if it was motivated or was due to complete lack of knowledge / competence. The DCP/NE is directed to inquire into the role of the IO / SHO for the botched up investigation specially that of ASI Anuradha Tyagi and Inspector Krishan Lal Sharma who was SHO PS New Usmanpur when charge sheet in FIR No.96/06 was filed.
26. In view of the above, all the accused persons viz Ram Kumar @ Adesh, Nem Singh and Bijender are acquitted for the offences punishable U/s 120B/182/211 IPC. Their bail bonds cancelled. Sureties discharged. The case be revived against accused Farukh @ Chhotu and Shabana who are P.O., as and when they are apprehended.
27. A copy of this order be sent to DCP/NE for inquiry and suitable action.
File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated: 11.4.2013 Addl. Sessions Judge03(NE)
Karkardooma Courts, Delhi.
FIR no. 369/06, PS New Usmanpur 40/40