Delhi District Court
Rajan vs State Of Kerala Hon'Ble Supreme Court ... on 1 December, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 109/2014
State
Versus
1. Swaraj Singh
son of Sh Deen Dayal Singh
r/o E, Adhyapak Nagar
Nangloi, Delhi.
2. Imran
son of Sh Abdul Kalam
r/o A663, Camp No. 2, J J Colony
Nangloi, Delhi.
F.I R No. : 81 of 2014
Police Station : Nangloi
U/S: 376D/506/328/34 IPC
Date of receipt of file after committal in : 7.10.2014
the Sessions Court
Date of judgment : 01.12.2016
JUDGMENT
1. Accused persons Swaraj Singh and Imran have been
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charge sheeted by Police Station Nangoi, Delhi for the offences under sections 328, 376D and 506/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 09.02.2014, both accused persons took the prosecutrix (name mentioned in the file but withheld to protect her identity) in the factory and thereafter offered intoxicated cold drink to her & after she had consumed the same and was semiconscious, both accused persons had committed rape upon her and threatened her to kill her, if she disclosed the incident to anyone.
2. After hearing arguments, vide order dated 02/07/2015, both accused persons were charged for offence under sections 376D/506/328 r/w section 34 of the IPC. Accused Iamran was also charged for the offence u/s 174A IPC as he has absented himself to appear before the Ld Metropolitan Magistrate on 01/08/14.
3. In evidence prosecution has examined 14 witnesses to prove the guilt of the accused persons.
4. PW1 HC Rajinder Singh is the duty officer. He has deposed that on 09.02.2014, on the basis of rukka, he had recorded the FIR of the present case and proved the same as ExPW1/A.
5. PW2 is HC Naresh Kumar. He has stated on 23.05.2014 that process u/s 82 Cr.PC was pasted on the main door of the
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house of accused Imran by him. The other copy of the process was pasted on the notice board of the Court and his report in this regard is Ex.PW2/A.
6. PW3 HC Randhir Singh has deposed that on 29.07.2014, he had conducted the proceedings u/s 83 Cr.P.C against accused Imran and his report is Ex.PW3/D.
7. PW4 HC Dharambir Singh has deposed that on 10.02.2014, WSI Sushila had deposited two sealed parcels along with sample seal of SGMH, GNCT Delhi. The aforesaid pulandas were deposited in Malkhana and he had made entry in register no.19 at serial no. 4211. The photocopy of the relevant extract is Ex.PW4/A. On 11.03.2015 WSI Sushila had deposited one sealed parcel along with one sample seal of SGMH, Mangol Puri. The aforesaid pulandas were deposited in Malkhana and he made the entries of the same in register no.19 at serial no.3191. The photocopy of the relevant extract is Ex.PW4/B. Witness has further deposed that on 14.02.2014 two sealed parcels along with sample seal were sent through SI Sushila to the office of FSL Rohini vide RC No. 18/21/14. After depositing the same SI Sushila came back to Malkhana and handed over copy of the RC and the acknowledgment of FSL. The copy of RC is Ex.PW4/C and copy of acknowledgment is ExPW4/D. On 07.04.2014 one sealed parcel along with sample seal were sent through
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Ct. Balle Ram to the office of FSL Rohini vide RC No. 35/21/15. After depositing the same, Ct. Balle Ram came back to Malkhana and handed over copy of the RC and the acknowledgment from the office of FSL. The copy of RC is Ex.PW4/E and copy of acknowledgment is ExPW4/F.The FSL result along with three sealed envelops were received on 28.11.2014 through Ct. Sonu, which was deposited in the Malkhana and entry was made in register no.19. Copy of the relevant entry is Ex.PW4/G.
8. PW5 W.Ct Suman has deposed that on 09/02/14 she had taken the prosecutrix for medical examination to Sanjay Gandhi Memoral Hospital.
9. PW6 Ct Manish Kumar took the parcels from MHCM of concerned PS to FSL, Rohini and deposited the same at FSL.
10. PW7 is prosecutrix. (name mentioned in the file but withheld to protect her identity). She has deposed that earlier she was residing at Swaroop Nagar. She had met accused Swaraj for the first time in connection for getting a job in the year, 2014. She had met accused Imran also on the same day. She was called at Shastri Nagar for getting a job by accused Swaraj Singh. She reached at Shastri Nagar where both the accused persons met her. She was taken to their factory on their motor cycle. The factory was situated on the side of Nangloi Police station. One cold drink was obtained by accused Imran and Swaraj Singh had brought glass and cold
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drink was served to her. After consuming the cold drink, she sustained giddiness and became unconscious. When she regained consciousness, she found herself at the same place of Shastri Nagar from where she was taken. She felt that her clothes were wet and found some stains on it. She felt pain in her private parts. As her clothes were wet and torn and was having pain, she understood that physical relations had been established with her by both the accused persons. While she was unconscious, several public persons were found surrounding her . When she regained her consciousness, one uncle namely Mr. Kalu had taken her to the PS near Shastri Nagar, thereafter she was taken to PS Nangloi. The FIR was registered at PS Nangloi on her statement, which is Ex.PW7/A. She was taken to the Sanjay Gandhi Memorial Hospital, where she was medically examined. Her samples and clothes were taken by the doctor. The MLC is EX.PW7/B. She had shown the place of occurrence to the police and the site plan is Ex.PW7/C. Her statement u/s 164 Cr.P.C was recorded. She has further deposed that she was medically examined vide MLC Ex.PW7/B.
11. PW8 Ct Balle Ram has joined the investigation with the IO on 26/08/2014 & 11/03/15. In his presence, both accused ie Swaraj Singh & Imran were arrested.
12. PW9 Ct A Rajesekhar has joined the investigation with
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the IO on 27/08/14. In his presence, accused Swaraj Singh had pointed out the place of occurrence and IO had prepared the pointing out memo Ex.PW9/A.
13. PW10 Dr M. Das has medically examined the accused Swaraj vide MLC no. 16168 (Ex.PW10/A).
14. PW11 Dr Mahipal Singh has proved the prosecutrix vide MLC Ex.PW7/B.
15. PW12 Sh Israr Babu, Nodal Officer has proved the CDR of mobile phone no. 987384674 and 981194578.
16. PW13 Dr Anubha Verma has proved the MLC Ex.PW7/B of prosecutrix.
17. PW14 Inspector Sushila is the IO of the present case. She has deposed that on 09.02.2014, she had recorded statement of prosecutrix, which is Ex PW7/A. She made her endorsement on the same, which is Ex. PW14/A and got the present case registered.
18. Witness has further deposed that she along with complainant and lady Ct. Suman went to Sanjay Gandhi hospital and got the complainant medically examined . After the medical examination, concerned Doctor had given her two sealed pullanda and one sample seal, which was taken into possession vide seizure memo (Ex. PW5/A). After registration of the FIR, the present case was assigned to her for investigation. On 10.02.2014, she along with complainant went at the spot i.e. the factory Camp no.2,
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Nangloi and at the pointing out of complainant/Prosecutrix, she had prepared site plan (Ex. PW7/C). She had searched for accused persons but they could not be traced. On 12.02.2014, she had moved an application u/s 164 Cr.P.C. to record statement of prosecutrix vide Ex. PW14/B. On the same day, statement of prosecutrix was recorded by Ld. Metropolitan Magistrate .On 14.02.2014, she had collected two sealed parcels and one sample seal from MHC(M) and deposited the same at FSL rohini vide RC no. 18/21/14. After depositing the same, she had given the acknowledgment to the MHC(M) .
19. The witness has further deposed that on 29.03.2014, she had sent an application to DCP for collecting the CDR of accused persons and complainant. On 03.04.2014, she had obtained NBW against accused persons Imran and Swaraj Singh. Proceedings u/s 82 Cr.P.C. were also conducted against both accused persons by ASI Mahavir Singh. On 28.06.2014, she had obtained process u/s 83 Cr.P.C. against accused Imran. On 15.07.2014, she also obtained process u/s 83 Cr.P.C. against accused Swaraj Singh. On 01.08.2014, after getting recorded the statement of Process server namely HC Naresh Kr., accused Imran was declared P.O. On 26.08.2014, accused Swaraj surrendered himself before the concerned court. She had moved an application to interrogate accused and she had interrogated accused and
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recorded disclosure statement (Ex. PW14/C). Accused Swaraj Singh was arrested vide arrest memo ( Ex. PW8/A) and personal search of accused was conducted vide memo (Ex. PW8/B). She along with Ct. Balle Ram and accused Swaraj Singh went to Sanjay Gandhi Hospital for medical examination of the accused. After the medical examination, Dr. had given her one sealed parcel and one sample seal which was taken into possession vide memo Ex. PW8/H. On 27.08.2014, accused pointed the place of occurrence i.e. Camp no.2 and prepared pointing out memo vide Ex PW9/A. After completion of investigation against accused Swaraj, the challan was submitted in the court. During the course of investigation on 14.08.2014, she had recorded supplementary statement of complainant.
20. The witness has further deposed that on 11.03.2015, accused Imran had surrendered himself for the concerned court. She had moved an application to interrogate accused , she had interrogated accused and recorded disclosure statement Ex. PW8/E. Accused Imran was arrested vide arrest memo (Ex. PW8/C) and personal search of accused was conducted vide memo (Ex. PW8/D). On 11.03.2015 itself , accused pointed the place of occurrence i.e. Camp no.2 and she had prepared pointing out memo vide Ex PW8/F.
21. Sh Chander Maini, Ld defense counsel has admitted the evidence of Pws Ms Vandana, Ld MM, ASI Mahavir and Dr
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Rajesh, hence their statements were not recorded.
22. Thereafter prosecution evidence was closed.
23. Statement of accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations. They have submitted that they have been falsely implicated in the present case. Accused persons had stated that they do not want to lead evidence in defense.
24. I have heard arguments from Sh Chander Maini, Ld defense counsel for accused persons as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
25. It is submitted by Sh Chander Maini, Ld defense counsel for accused persons that in the MLC, name of the accused is mentioned as Shivraj whereas the name of accused is Swaraj Singh. It was also argued by Ld Amicus Curiae that prosecution has not been able to prove its case against accused persons as there are different statements given by the prosecutrix recorded u/s 164 Cr.P.C and the complaint made to the police. It has also been submitted by Ld defense counsel that in cross examination, prosecutrix had turned hostile and she had admitted that nothing had happened with her and accused had not committed any offence. With these
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submissions, it is prayed by Ld defense counsel that accused persons be acquitted, for the offences, they are charged with.
26. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had submitted that prosecutrix has specially stated in her complaint & in examination in chief, that, both accused persons ie Swaraj Singh and Imran had committed gang rape upon her after administering cold drink laced with intoxicating substance and thereafter threatened her of dire consequences. Because of threat prosecutrix could not inform about the incident to her employer or other persons.
Therefore, it is prayed by ld Additional P.P that accused persons be convicted for the offences, they are charged with.
27. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
28. In the present case, both accused persons Swaraj Singh and Imran have been charged for the offence u/s 328/376D and 506 r/w section 34 IPC on the allegation that both the accused persons had committed gang rape upon the prosecutrix after administering cold drink laced with intoxicating substance and threatened her with dire consequences. Charge u/s 174 A IPC has also been framed against accused Imran as he had absented himself to appear before the court of Ld Metropolitan Magistrate.
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29. In the present case, prosecution has examined 14 witnesses in all to prove the case against the accused. PW7, ie the prosecutrix, is the only material witness. PW12 Sh Israr Babu, Alternate Nodal Officer has proved the CDR of mobile no. 987384674 and 981194578. Rest of the prosecution witnesses are police officials who have taken part in investigation and doctors who have medically examined the prosecutrix and accused persons.
30. Since the prosecutrix is only witness to the alleged crime, testimony of prosecutrix attains the importance and as per the settled principle of law, conviction of accused can be based solely on the testimony of the prosecutrix, if it inspires confidence and there is no requirement of corroboration of the testimony of the prosecutrix. However, in the present case, testimony of prosecutrix does not inspire confidence as it is full of inconsistencies and lacunas
31. In the case (2013) 9 Supreme Court Cases113Kaini Rajan vs State of Kerala Hon'ble Supreme Court has held that "conviction can be based on the sole testimony of prosecutrix if her version does not arouse doubt in mind of court. When facts and circumstances cast a doubt on the veracity of the prosecution case. It would be unsafe to convict the accused relying on uncorroborated version of prosecutrix"
32. In the case of Sharad Birdhichand Sarda v. State of
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Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
33. From the perusal of the judgments mentioned above, it is clear that conviction can be based on the sole testimony of the prosecutrix but the requirement is that testimony of prosecutrix should point out clearly towards the accused for being the preparator of the crime. Thus, law requires the testimony of prosecutrix to be so strong, which proves the guilt of the accused beyond reasonable doubt and in such like cases, corroboration of testimony of prosecutrix is not
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required.
34. In the present case, testimony of the prosecutrix is full of contradictions. In the complaint, prosecutrix had stated that she was taken on motorcycle by both accused persons to the factory, where she was offered cold drink and after consuming cold drink, she lost consciousness and later on she came to know that she had been raped by accused persons. However, in the cross examination prosecutrix had admitted that nothing had happened with her. Rather she had stated in cross examination that it was only accused Swaraj Singh, who had taken her to the factory, there she met with owner of the factory and other employees working in the factory. She had not stated in the cross examination that she was offered any cold drink but had stated that she was offered food by the owner of the factory and all three of them ie owner of the factory, accused Swaraj Singh and prosecutrix had taken the food together and after that accused Swaraj Singh had dropped her to the metro station. In her cross examination conducted on 07/10/2015, prosecutrix had stated that since her clothes were wet, she came to conclusion that she had been raped. But in subsequent cross examination, conducted by Ld defense counsel, she had admitted that her clothes were not wet and she was not adminnistered any cold drink. On the date of incident itself, prosecutrix had been medically examined and in the FSL
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result, it was opined that "no semens were detected on the clothes of the prosecutrix or on the samples of prosecutrix".
35. In the cross examination by Ld defense counsel, prosecutrix had admitted that it may be possible that accused Swaraj Singh and Imran have not established physical relations with her. She had also admitted that when she had left the factory, her clothes were in order and they were neither wet nor dirty nor having stains.
36. In view of my above discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt that both accused persons ie Swaraj Singh and Imran had committed gang rape upon prosecutrix after administering her cold drink laced with intoxicating substance or that they had threatened her, version of the prosecutrix is unreliable and untrustworthy, even FSL result does not support the allegations levelled by PW7, benefit of which is to be given to the accused persons. Hence both accused persons ie Swaraj Singh and Imran are acquitted of the offence u/s 376D/328/506/34 IPC & accused Imran is acquitted of the offence u/s 174 A IPC, as there is no specific evidence led against the accused to prove the said offence. However, bail bonds of both accused persons are extended for further six months on the same terms and conditions as imposed earlier as per provision of section 437A Cr.P.C.
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37. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 1st December, 2016 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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