Delhi District Court
State vs . (I) Sonu S/O Sh. Jasbir on 24 May, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 78/12)
Unique ID case No. 02404R0260502012
State Vs. (i) Sonu s/o Sh. Jasbir
r/o Poliwala Pana, Vill. & P.O. Qutabgarh, Delhi.
(ii) Sudhir @ Monu s/o Sh. Jasbir
r/o Poliwala Pana, Vill. & P.O. Qutabgarh, Delhi.
FIR No. : 136/12
U/s : 328/376(2)(g)/506 IPC
P.S. : Kanjhawala
Date of institution of case 25.10.2012
Date on which, judgment has been reserved 24.05.2013
Date of pronouncement of judgment 24.05.2013
JUDGMENT:
1 Briefly stated the case of the prosecution is that on 19.06.2012 in a field situated near the house of prosecutrix, accused Sonu and Sudhir @ Monu committed rape upon prosecutrix, aged about 15 years and further criminally intimidated her by threatening to kill her parents if she disclosed about the incident to anyone. The case was registered on statement made by the prosecutrix. After completing investigations, chargesheet was prepared and filed in the court for trial.
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2 Upon committal of this case to the court of Sessions, charges for the offence
under Sections 376(2)(g)/506 IPC were framed against the accused Sonu and Sudhir @ Monu and separate charge for the offence under Section 376 IPC was also framed against the accused Sonu. However, both the accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 3 In order to prove its case, prosecution has examined 18 witnesses : 4 The PW1, SI Ashwani Kumar, is the Duty Officer. He proved computerized copy of FIR as Ex.PW1/A and endorsement made by him on rukka as Ex.PW1/B. 5 The PW2, Ct. Kuldeep Kumar, is the computer operator who had recorded case FIR Ex. PW1/A, on receipt of rukka from duty officer, and deposed regarding the same.
6 The PW3, W/Ct. Anita, had take the prosecutrix and her mother Channo to hospital for medical examination of prosecutrix, on instructions of Insp. Tarif Singh, and deposed regarding the same. She further deposed that after medical examination of prosecutrix, she obtained her MLC and one sealed sexual assault kit from the concerned doctor, brought them back to PS and handed them over to Inspr. Tarif Singh, who seized the same vide seizure memo Ex. PW3/A. 7 The PW4, HC Anoop Singh, was posted as MHC(M) at PS Kanjhawala at SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 2 of 13 3 the relevant time. He produced register no. 19 and proved the relevant entries regarding deposit of exhibits of case in malkhana and sending them to FSL as Ex. PW4/A to Ex. PW4/E. 8 The PW5, Anu, is the prosecutrix in the case. However, she completely denied the case as put forth by prosecution and exonerated the accused persons of all the allegations.
9 The PW6, Dr. Bina, and PW7, Dr. Brijesh, had examined accused Sonu and Sudhir @ Monu vide MLC Ex. PW6/A and MLC Ex. PW7/A respectively and given opinion regarding their sexual capability and deposed regarding the same. 10 The PW8, Sh. Rajeev Ranjan, is the Nodal Officer from TATA Tele Services Ltd. He produced relevant record i.e. Customer Application Form and Call ID Chart of mobile phone no. 9266318401, in the name of Channo w/o Gopal, and mobile phone no. 9213662574, in the name of Jasbir, and deposed qua the said record produced by him. 11 The PW9, Kuldeep, produced record from Government Sarvodaya Kanya Vidhyalaya wherein prosecutirx was admitted in 6th class. He proved the computerized admission form, without signatures of parent/guardian of child, as Ex. PW9/A ; copy of SLC issued by MC Primary School (on the basis of which prosecutrix was admitted in school of PW9) as Ex. PW9/B ; copy of relevant entry of admission register as Ex. PW9/C and certificate issued by Principal of School, wherein date of birth of prosecutrix was mentioned as 28.02.1997, as Ex. PW9/D. SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 3 of 13 4 12 The PW10, Smt. Anuradha, is member of NGO, Nav Srishti and had counselled prosecutrix, after the incident, and deposed regarding the same. 13 The PW11, Smt. Channo Devi, is the mother of prosecutrix. She too failed to support the prosecution case as regards the reporting of matter of rape of her daughter / prosecutrix to the police and about joining investigations with the police. 14 The PW12, Dr. Geeta Aggarwal, had examined the prosecutrix vide MLC Ex. PW5/B and deposed regarding the same. She also stated that patient did not hand over her clothes to her and that she had taken 13 samples from patient and sealed them with the seal of the hospital.
15 The PW13, Dr. Seema Nain, Sr. Scientific Officer Biology (DNA), FSL Rohini had examined the exhibits/biological samples of the present case. She proved her report of examination as Ex. PW13/A. 16 The PW14, Dr. P.C. Prabhakar, was posted as CMO at SGM Hospital on 24.06.2012 and had conducted general examination of prosecutrix vide MLC Ex. PW5/A and referred her to Gynae Deptt for further examination and deposed regarding the same.
17 The PW15, Gopal Sharma, is the father of the prosecutrix. He too failed to support the prosecution case and stated that his daughter/prosecutrix and wife had not SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 4 of 13 5 been residing with him and that he did not know anything about the present case. He was crossexamined at length by Ld. Addl. P.P, however, he denied having made any statement to the police or having stated therein that accused Sonu and Sudhir @ Monu used to visit his house in his absence or that on 23.06.2012 when he returned from work, he came to know that said accused persons had committed rape upon his daughter/ prosecutrix. He also claimed to have given up his habit of drinking liquor. He denied that prosecutrix used to administer sleeping pills to him and his wife. 18 The PW16, Insp. Tarif Singh, is the initial IO of the case. He deposed that on 23.06.2012 at about 8 p.m prosecutrix and her mother Channo Devi came to Police Station and prosecutrix gave him her complaint Ex. PW5/A in her own handwriting and made allegation of sexual assault against accused Sonu and Sudhir @ Monu and that he called Smt. Anuradha from NGO, Nav Shristi for counselling of prosecutrix. He further deposed that being satisfied with the correctness of complaint, he sent prosecutrix for medical examination through W/Ct. Anita, collected her MLC and seized the exhibits of examination contained in sexual assault kit vide memo Ex. PW3/A and returned to police station where he made endorsement Ex. PW1/A on complaint of prosecutrix and presented rukka before Duty Officer for registration of FIR and marked further investigations of the case to W/SI Rekha.
19 The PW17, Manoj, is a public witness who is stated to have seen accused Sonu and Sudhir @ Monu having tea in the house of tenant of Azad Patwari. However, he failed to support prosecution case and stated he had not seen accused persons in his village and that he remained away from home whole day due to nature of his work and SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 5 of 13 6 returned home late in evening.
20 The PW18, W/SI Rekha, is one of investigating officers of the case and had taken over investigation of the case after registration of FIR. She deposed about the investigations carried out by her and documents prepared by her during the course of investigations. She proved the site plan of place of incident as Ex. PW5/C; arrest and personal search memos of accused Sonu as Ex. PZ and PZ1 (admitted by Ld. Counsel for accused on 06.05.2013); disclosure statement of accused Sonu as Ex. PW18/A; seizure memo of samples/exhibits taken by examining doctor from accused Sonu as Ex. PW18/B; arrest and personal search memos of accused Sudhir @ Monu as Ex. PY and PY1 (admitted by Ld. Counsel for accused on 06.05.2013); disclosure statement of accused Sudhir @ Monu as Ex. PW18/C; seizure memo of samples/exhibits taken by examining doctor from accused Sonu as Ex. PW18/F. The pointing out memo prepared at instance of accused persons were proved as Ex. PW18/D (of accused Sudhir @ Monu) and Ex. PW18/E (of accused Sonu) respectively.
21 The PW18 further deposed about collecting school certificate Ex. PW9/D of prosecutrix. She also proved proceedings under Sec. 164 CrPC i.e. her application for recording of statement of prosecutrix as Ex. PW18/G ; application for supply of copy of statement under Sec. 164 CrPC as Ex. PW18/H and copy of statement u/s.164 CrPC as Ex. PW5/D. She then deposed about producing prosecutrix before CWC on 26.06.2012 and proved report of CWC as Ex. PW18/J. The seizure memo of clothes of prosecutrix, seized on 27.06.2012, was proved as Ex. PW18/K. The PW18 further deposed that on 28.06.2012 she handed over file to MHC (R) as she was proceeding on EL for 30 days SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 6 of 13 7 and that she mentioned in roznamcha that the exhibits and clothes were to be sent to FSL for examination but the same were not sent for examination and were not examined. The PW18 also deposed about collecting CDRs of mobile phone of prosecutrix and accused Sonu.
22 Since the proceedings under Sec. 164 CrPC were admitted by Ld. Counsel for accused persons, the same were exhibited as PX (colly) and Ld. MM who conducted the said proceedings was not examined.
23 After closing of prosecution evidence, statement of accused Sonu and Sudhir @ Monu were recorded u/s 313 Cr.P.C. Accused persons stated that they are innocent and had been falsely implicated in the case. The accused persons declined to lead evidence in their defence.
24 Arguments have been addressed by learned Counsel for accused persons as well as learned Additional PP for the State.
25 I have heard arguments and also perused the record carefully. 26 The present case pertains to gang rape of a minor 15 years old child by accused person and hence, "age" of prosecutrix becomes a very relevant issue for consideration. In order to prove that prosecutrix was 15 years old at the time of incident prosecution has examined PW9 Sh. Kuldeep Singh who produced record from Government Sarvodya Kanya Vidyalya wherein prosecutrix was admitted in 6th class on SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 7 of 13 8 basis of an admission form i.e. Ex.PW9/A and SLC issued by MC Primary School i.e. Ex.PW9/B. However, perusal of Ex.PW9/A, the admission form shows that it is only a computerized admission form without signatures of either parents and / or guardian of prosecutrix. As regards SLC Ex.PW9/B, issued by previous school is concerned, nothing has been placed on record by prosecution to show that said document was ever verified by IO to ascertain its genuineness and the basis on which date of birth of prosecutrix was mentioned in record of said school. It is noteworthy that prosecutrix in her examination as PW5 does not state anything about her date of birth though she mentioned her age as 16 years in her statement. Even her parents i.e. PW11 Smt. Channo and PW15 Sh. Gopal Sharma do not mention about the date of birth of prosecutrix. The PW11 Smt. Channo has merely stated that present age of prosecutrix is 17 years. There is difference of 1 year in age of prosecutrix as stated by her mother and prosecutrix herself. Thus considerable doubt is created regarding age of prosecutrix and possibility of her being above 16 years as on the date of alleged incident (s) cannot be ruled out.
27 In the present case, as per case put forth by prosecutrix, the prosecutrix went to police station on 23.06.2012 and gave complaint Ex. PW5/A wherein she stated that both her parents were labourers while she was a student. About 4/5 months prior to filing of complaint, house neighbouring house of prosecutrix was under construction. Accused Sonu used to come to the said house to deliver mud and he used to talk to prosecutrix and also asked her for drinking water, sometimes. One day when parents of prosecutrix were away for work accused Sonu raped her and when she resisted, he promised to marry her and thereafter he continued to rape her for 4/5 months on this SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 8 of 13 9 pretext. He also gave her sleeping tablets for her parents. When prosecutrix asked accused Sonu to marry her, he threatened to kill her parents and thus, out of fear, prosecutrix did not disclose about it to anyone. On 19.06.2012 when prosecutrix was alone in her house, accused Sonu and his brother Monu came there and took prosecutrix forcibly to fields and there they both committed rape upon her in fields itself. While going they again threatened to kill her parents in case she disclosed about the incident to anyone. On the day of incident i.e. 23.06.2012, mother of prosecutrix was unwell and she did not go for work and instead went to market to purchase some articles. Both the accused persons came to home of prosecutrix and started to force themselves upon prosecutrix. In the meantime, mother of prosecutrix came and saw them. On this accused Sonu and Sudhir @ Monu pushed away the mother of the prosecutrix and ran away from there.
28 On the basis of abovesaid complaint, case FIR Ex. PW1/A was registered against both the accused persons under Sec. 328/376(2)(g) IPC at PS Kanjhawala. 29 The statement of prosecutrix under Sec. 164 CrPC, Ex. PW5/D, was recorded on 25.06.2012. In the said statement, prosecutrix gave a different sequence of events/episodes of alleged rape. She deposed that first episode happened when she gave call to accused Sonu and he called her and when she went to meet him, he committed rape upon her. He continued to rape her for 34 months on false promise of marriage. On 19.06.2012 accused Sonu and his brother Monu raped her at her house. She again said that accused Monu committed rape upon her and accused Sonu was also present there and at that time, she had given sleeping pills to her mother. On SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 9 of 13 10 23.06.2012 both accused again came to her house to rape her but her mother came all of sudden and the accused persons ran away from there threatening prosecutrix not to disclose about the incident to anyone or they would kill her parents. 30 The prosecutrix was examined as PW5 before the Court and she completely failed to support the prosecution case. She stated that in month of September 2012, they had quarrel with their neighbour. Someone called police and prosecutrix and her mother were taken to police station and that since father of prosecutrix was alcoholic, he was not taken there. Prosecutrix was taken to a separate room. She had gone to police station for the first time and several police officials were present there. Prosecutrix wrote on a paper whatever was dictated to her and her signatures were further taken on 34 blank papers. Mother of prosecutrix was called in the room separately.
31 The prosecutrix further deposed that after 34 days, some police officials again came to their house and gave her a piece of paper and told her to speak whatever was written on it before Judge and when prosecutrix stated that contents of paper were incorrect, they threatened her that she would have to speak whatever was written on the paper as she would be implicated for giving a false statement. The prosecutrix also deposed that on next day, police came to her house again and took one set of her clothes telling her that they were required for the case and again told her to speak, as directed, before the Judge.
32 Since, prosecutrix completely resiled from statements given by her to
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police, she was crossexamined at length by Ld. Addl. P.P. During her cross
examination, prosecutrix admitted going to hospital with the police but stated that she was taken inside a room where nurse checked her temperature by touching her hand. She denied that the gynaecologist had examined her or that she had disclosed about sexual assault by accused Sonu to doctor who examined her vide MLC Ex. PW5/B. She denied that any samples were taken from her. The PW5 also denied the incriminating portions of her complaint Ex. PW5/A and her statement under Sec. 164 CrPC Ex. PW5/D. The PW5 stated that she had made statement under Sec. 164 Ex. PW5/D and other statement under Sec. 161 CrPC out of fear of police. 33 From the above mentioned testimony of prosecutrix considerable doubt is created regarding the prosecution case. Further the improvements and contradictions in her complaint Ex. PW5/A, statement under Sec. 164 CrPC Ex. PW5/D and her testimony as PW5 make her totally unreliable and untrustworthy witness. The other material witnesses examined by prosecution including PW11 Channo Devi, mother of prosecutrix, also failed to support the prosecution case. The PW11 Channo Devi also resiled from her statement mark 11/A recorded by police under Sec. 161 CrPC. She deposed that on the day of incident, some neighbours quarreled and called the police and that PW11 and prosecutrix were taken to police station and their signatures were taken on blank papers and they were also sent to hospital where doctor gave injection to prosecutrix and sent them home and as PW11 was standing outside, she could not ask doctor anything. After 2 days, police officials again came to their house and took clothes of prosecutrix for jhagra case. This witness was crossexamined at length by learned Additional PP but nothing incriminating could be brought out from the said cross SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 11 of 13 12 examination of witnesses.
34 As already observed herein above, PW15 Gopal Sharma, father of prosecutrix and PW17 Manoj, public witness, too failed to support the prosecution case and denied having made any statement(s) to the police in connection with present case. Since, none of the material witnesses including prosecutrix have supported the case of the prosecution, the prosecution has clearly failed to prove its case against accused Sonu and Sudhir @ Monu.
35 Ld. Addl. P.P has contended that Ex. PW13/A, FSL result, supports the case of prosecution as human semen was detected on exhibits 1c, 1d, 1e, 1f, i.e vaginal swabs taken from prosecutrix. However, FSL result cannot be held to be in favour of prosecution. Firstly, perusal of Ex. PW13/A shows that DNA profile of exhibits 1c, 1d, 1e and 1f could not be matched with that of accused persons as samples taken from them were degraded and did not generate DNA profile. Secondly, in absence of supporting testimony from prosecutrix, her parents and other public witness, the FSL result which is only a corroborative piece of evidence, cannot be made basis for conviction of the accused persons.
36 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused Sonu and Sudhir @ Monu had committed rape upon the prosecutrix, a minor girl, aged about 15 years, and has further failed to prove that they both criminally intimidated prosecutrix by threatening to kill her parents, if she disclosed, about this fact SC No. 78/12 State Vs. Sudhir @ Monu Page Nos. 12 of 13 13 to anyone. Accordingly, both the accused are acquitted of charges under Sec. 376(2)(g) IPC and Sec. 506 IPC by giving benefit of doubt.
File be consigned to record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 24.05.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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FIR No. : 136/12
U/s : 328/376(2)(g)/506 IPC
P.S. : Kanjhawala
24.05.2013
Present : Ld. Addl. P.P for State
Both accused produced from JC with counsel Sh. Pradeep Rana Statement of accused recorded separately under Sec. 313 CrPC. Accused do not want to lead any evidence in defence.
Final arguments heard.
Vide separate judgment announced in the open court today, both accused acquitted of offence under Sec. 376(2)(g) IPC and Sec. 506 IPC. Both accused persons are in JC. They be released forthwith if not wanted in any other case.
File be consigned to record room.
(Illa Rawat)
Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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