Delhi District Court
State vs (1) Mukul Siriswal on 15 February, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 18/12
Unique ID No. : 02401R0115632012
State versus (1) Mukul Siriswal
S/o Sh.Ashok Sirswal
R/o 3439, Gali Keshru Walan,
Paharganj, Delhi.
(2) Kanhiya
S/o Sh.Sunil Mandal
H10, Govt. Staff Quarters,
Aram Bagh, Paharganj,
Delhi.
(3) Deepu
S/o Sh.Madan
R/o T227, General Market,
Paharganj,
Delhi.
(4) Rohit
S/o Late Sh.Prem Singh
R/o H.No.8338, Arya Nagar,
Nabi Karim, Paharganj,
Delhi.
Case arising out of:
FIR No. : 179/11
Police Station : Paharganj
Under Section : 363/376/368/506/109/120B IPC
Judgment reserved on : 31.01.2014
Judgment pronounced on : 15.02.2014
JUDGMENT
Case of the Prosecution:
The case of the Prosecution as per the chargesheet is that on 26.11.2011, complainant 'P.S.' [name withheld to protect her identity] came along with her husband to Police Post Sanghtrashan and got lodged her complaint wherein she stated that the date of birth of her elder daughter 'Y' (Prosecutrix) (name withheld to protect the identity) is 28.10.1995 who is studying in class 10th.
She alleged that on 25.11.2011 her daughter 'Y' had gone to Trade Fair at Pragati Maidan with her friends and had not returned till late night. They inquired regarding 'Y' from her friends but did not find her anywhere. The complainant raised suspicion on Mukul Siriswal and alleged that he had taken away her daughter 'Y' by enticing her. The complainant further gave brief description of her daughter 'Y' to the police.
On the basis of her complaint a case under Section 363 IPC was registered vide DD No.26.11.2011. During the course of investigation search was made for the daughter of the complainant and her daughter 'Y' herself came to the PS on 01.12.2011. The Prosecutrix was got medically examined at LHMC and thereafter handed over to her mother. During the course of further investigation the statement of the Prosecutrix 'Y' was got recorded before the ld. MM. Thereafter, accused Kanhiya was arrested on 10.12.2011 under Sections 368/363/34 IPC, whereas accused Mukul Siriswal was arrested on 15.12.2011 under Sections 376/368/363/506/34 IPC. Medical examination of both the accused was also got conducted.
During the course of further investigation, at the instance of the Prosecutrix site plan of Hotel Singh Place, Room No.103 Ist Floor was prepared. The exhibits collected from the hospital were sent to the FSL Rohini for expert opinion. Accused Rohit and Deepu who were named by the Prosecutrix in her statement were found missing from their respective houses.
After the completion of investigation, charge sheet was submitted before the court for trial qua accused Kanhiya and Mukul Siriswal. Both the accused pleaded not guilty and claimed trial.
Upon committal of the case and in the light of material on record accused Mukul was charged for the offence punishable under Sections 376/343/397 IPC whereas accused Kanhaiya was charged for the offence punishable under Sections 109 read with Sections 376/328 IPC. In addition to this, both accused Mukul and Kanhiya were also charged for the offences punishable under sections 363/366/392/34 IPC vide order dated 17.04.2012.
It is pertinent to mention that during the course of trial, supplementary charge sheet qua accused Deepu was filed consequent upon his arrest on 21.05.2012. The said supplementary charge sheet reveals that accused Deepu was arrested on the basis of statement of the Prosecutrix 'Y' recorded under Section 164 Cr.PC, wherein she has alleged that accused Deepu who was the friend of Mukul had shown her a pistol and had asked her to do what Mukul says and if Mukul asks for sex, she would have to do all this and if she refuses for that, he would kill his parents and brother with that pistol. On the basis of material on record, accused Deepu was charged for the offence punishable under Section 109 read with Sections 376 & 506 IPC vide order dated 16.07.2012. He pleaded not guilty and claimed trial.
Accused Rohit was arrested on 30.08.2013 and charge sheet qua him was also filed during the course of trial on the basis of allegations levelled against him by the Prosecutrix 'Y' in her statement recorded under Section 164 Cr.PC wherein she alleged that accused Rohit who was also the friend of accused Mukul had met him along with accused Mukul and Kanhiya in RPM Disco, Vasant Vihar and thereafter he had made Prosecutrix 'Y' and accused Mukul stay at Hotel Singh Place, Ajmere Gate, Delhi. She had further alleged in her statement that accused Rohit had also brought contraceptive pill for her and thereafter he had left both i.e., her and Mukul at Panipat by saying that she would have to obey Mukul. Accused Rohit was also charged accordingly on 12.11.2013 for the offences punishable under Sections 109 read with Section 376 IPC and Section 506 read with Section 341 IPC, to which he pleaded not guilty and claimed trial.
Prosecution Evidence :
In order to prove its case, the Prosecution examined as many as 18 witnesses. However, consequent upon arrest and filing of charge sheet qua accused Deepu and Rohit, some of the public witnesses had to be reexamined.
HC Hem Raj was examined as PW1, who deposed regarding registration of FIR on 26.11.2011 in the capacity of Duty Officer consequent upon receipt of rukka by him and proved the same as Ex.PW1/A and his endorsement on the same as Ex.PW1/B. Prosecutrix 'Y' was examined as PW2, who deposed that on 25.11.2011 she had gone to Trade Fair at Pragati Maidan along with her friends Akansha, Rajat, Akansha Verma, Akshay and Ritika and reached there at about 1.30 PM. When they were inside the Trade Fair, at about 22.30 PM, she received a phone call of Kanhaiya, who was a friend of Mukul. She further deposed that she know accused Mukul as he was her friend for the last 1½ years but she broke up with him in the month of MayJune, 2011.
PW2 further deposed that when she attended the said phone call, Kanhaiya told her that Mukul had sustained injuries on his hand near footover bridge at Pragati Maidan and asked her to reach there. She told him that as she had already broken her relation with Mukul, why she should come. Then he again asked her to reach there on humanitarian ground. Then Prosecutrix went at the aforesaid place and on reaching there, she found Kanhaiya and Mukul standing near footover bridge and Mukul was absolutely fine and was not having any injuries. Then she asked Mukul when he is absolutely fine, why he had called her. Mukul told her that he wanted to meet her for the last time, that is why he had called her. But she objected to the same and tried to leave from there for going home. However, accused Mukul stopped a TSR and she was forced to sit in the said TSR. Accused Kanhaiya also forced her to sit in the TSR. She further deposed that Accused Mukul was having a surgical blade and he threatened her that in case she refused to accompany him, he will attack her on her face with the said blade and due to the said threat, she accompanied both of them in the TSR.
PW1 Prosecutrix further deposed that she did not raise any alarm while sitting in the TSR as both the accused had threatened her. At that time, she was having three mobile phones. However, there was no SIM card in two mobile phones out of those three. Both the accused took her to Priya Market at Vasant Vihar where they got down from the TSR and on the asking of accused Mukul, accused Kanhaiya purchased three bottles of beer and both of them took her to nearby jungle like area. Thereafter, both of them forced her to drink beer. Accused Mukul was having the blade in his hand and due to the fear, she consumed the beer. She further deposed that both of them took her to RPM Pub at Vasant Vihar and on reaching there, she felt giddiness and vomiting like feeling. She went to washroom and vomited. However, accused Kanhaiya kept waiting outside the washroom and, therefore, she was unable to escape.
PW2 further deposed that thereafter, both of them forced her to consume Coke in which Vodka had been mixed. They also called one Rohit there. She also heard them talking to Rohit for booking a room in a hotel at Ajmeri Gate. Accused Mukul forced her by pulling her to accompany him to that hotel and she was forced to sit in a TSR along with Rohit, Mukul and Kanhaiya. She further deposed that they took her to one 'Singh Hotel' and they took her to a room in that hotel. Since she had been made to consume Vodka, she was unable to make any effort to escape as she was under the influence of liquor. After sometime, accused Rohit and Kanhaiya left from there and she was left alone in that room with accused Mukul.
PW2 further deposed that after sometime, one boy namely Deepu came there and showed her a pistol and also stated that she have to do what accused Mukul wants her to do and threatened her that in case she refused, he will kill her family members by that pistol. Thereafter, accused Deepu left and accused Mukul forced her to establish sexual relations with her. She tried to save herself but she could not do so and after accused Mukul established sexual relations with her forcibly and without her consent, she requested him to let her go back. However, he refused. PW1 further deposed that accused Mukul made a telephone call to his friends Kanhaiya and Rohit and asked them to come there. Both of them reached there and again threatened her by saying that she have to remain there so long as Mukul want to live with her. After sometime, Rohit left from there and she requested Kanhaiya to let her go home. At that time accused Mukul was in washroom. Accused Kanhaiya, however, asked her to talk to accused Mukul stating that all this is happening as per the wishes of Mukul.
PW2 further deposed that on the next day again, accused Mukul forcibly established sexual relations with her 34 times. In the evening, accused Rohit came there. She overheard the conversation between Rohit and Mukul in which Rohit was advising Mukul to use some protection otherwise he can be implicated. Accused Rohit also advised Mukul that since he had already established sexual relations with her, she should be made to consume some medicines to prevent pregnancy. Accused Mukul made her eat a pink colour tablet. Thereafter, accused Mukul started using contraceptive like 'Kohinoor' every time he established sexual relations forcibly with her.
Prosecutrix PW2 further deposed that on the next day, accused Rohit again came to hotel room and advised Mukul to leave the hotel as the room had been booked by him and he may get involved if any case is lodged. Accused Mukul asked him to give him sometime and he called someone whose name was probably Nakul. He informed him that there is a girl with him and he wants to come to his place at Chandigarh. He thereafter informed Rohit that he has been able to make necessary arrangements and asked him to help him in leaving. Accused Mukul through Rohit asked one Savi to provide his car. She was brought down from the hotel room by both Mukul and Rohit by making her walk in between both of them and was made to sit in the car which was waiting at the gate of the hotel.
She further deposed that Savi was driving the car and Accused Mukul and Rohit were present in the car with her. They stopped the car at 'Sukhdev Dhaba' on a highway. Savi and Rohit got down from the car and locked her and Mukul inside the car. When she tried to raise an alarm, accused Mukul took out a knife from inside his shoe and threatened her not to do so otherwise he will kill me. Thereafter, they proceeded from the said Sukhdev Dhaba in the car. Mukul and Prosecutrix were dropped near bus stop at Panipat where some boys known to accused Mukul met them and took them to one hotel at Panipat, where they stayed in that hotel for one night and Accused Mukul forcibly established sexual relations with her despite her refusal and without her consent.
PW2 also deposed that on the next morning, the aforesaid boys again came to the hotel on 45 motorcycles and took them to a house. Accused Mukul confined her in that house from 27.11.11 till 01.12.11 and during this period, he forcibly established physical relations with her on several occasions without her consent.
She further deposed that in the evening of 01.12.11, accused Mukul was planning to come to Delhi alone after leaving her with another boy, as he had run out of money. However, she threatened him that in case he does not take her along with him to Delhi, she will cause some harm to herself and due to her persistence, he agreed to bring her along with him to Delhi and they came to Delhi in a cab. When they reached in the area of Karol Bagh, he got down from the car to take money from some person. However, accused Mukul forgot to lock her inside the car and taking advantage of the same, she managed to escape and went to PS Pahar Ganj. She met SI Raj Kumar and narrated all the aforesaid facts to him.
PW2 further deposed regarding recording of her statement under Section 164 Cr.PC before the ld. MM and had correctly identified her signatures on the same when shown to her in the court and proved the same as Ex.PW2/A. She also correctly identified the accused Mukul, Kanhiya and Deepu in the court. She further deposed that she can identify accused Rohit also if shown to her.
PW2 Prosecutrix 'Y' was further examined in the court on 20.11.2013 consequent upon the arrest of accused Rohit and she again narrated the entire story before the court, while identifying the accused Rohit in the court. She also correctly identified her signatures on the her statement recorded before the ld. MM when shown to her in the court which is Ex.PW2/A. The complainant 'P.S.' i.e. the mother of the Prosecutrix was examined as PW3 who deposed that she is a house wife and have two children. She deposed that the date of birth of her daughter 'Y' is 28.10.95. She further deposed that on 25.11.11 her daughter had gone to Trade Fair at Pragati Maidan with her friends Rajat, Aakansha Verma and Akshay or Akshat. She received a call of Aakansha Verma at about 44.30 PM that her daughter 'Y' is not with them and is missing. PW3 asked them to wait for sometime. However, since it was getting late, PW3 told the friends of her daughter 'Y' to go home and tell 'Y' to come home in case they received any call from her. The other children returned without her daughter. She further deposed that when her daughter did not return, she suspected that accused Mukul Sirswal had taken away her daughter by enticing her. She suspected him as her daughter was earlier having friendly relations with him but he started following her and also used to threaten her on phone. She also deposed that accused Mukul also used to threaten her. Thereafter, she visited PS Pahar Ganj and made her complaint and gave the description of her daughter. This witness proved her complaint as Ex. PW3/A and further deposed that she had given the mobile numbers of friends of her daughter to police during the course of investigation as she had received their calls from those numbers.
PW3, who was also further examined on 21.11.2013 consequent upon arrest of accused of Rohit wherein she deposed that on 25.11.11, her daughter had gone to Trade Fair at Pragati Maidan with her friends Aakansha Verma, Rajat, and Akshay. At about 44.30 PM, she received a call of Aakansha Verma that her daughter 'Y' is not with them and is missing. She asked them to wait for sometime at the same place from where 'Y' went missing. After about 3040 minutes, Akansha again made a call to her and informed her that 'Y' was not available. Since it was getting late, PW3 told her friends to go home and tell 'Y' to come home in case they received any call from her.
PW3 also deposed that her daughter 'Y' did not return on that day. She tried to search her around her house but she could not be found. She suspected Mukul Sirswal as earlier he was friend of her daughter 'Y' and 'Y' broke up friendship with him and he used to threaten 'Y' as well her.
PW3 further deposed that on the next day, she went to PS Paharganj and made her complaint suspecting Mukul Sirswal and gave the description of her daughter. She proved her complaint which is Ex.PW3/A. She had given the mobile numbers of friends of her daughter to police during the course of investigation as she had received their calls from those numbers.
PW3 correctly identified accused Rohit in the court and deposed that on 30.8.13, she was informed by the police about the arrest of accused Rohit. She went near hotel Raj, Arya Nagar, Nabi Karim and saw accused Rohit in the custody of police and identified him. She also deposed that during earlier investigation, she came to know that accused Rohit was also involved in this case and that she knew accused Rohit as he used to come near her house and used to sit at Barber shop and at a mechanic shop situated near her house.
The friend of Prosecutrix 'Y' namely Rajat was examined as PW5, who deposed that he know 'Y' as she was his class mate from 6 th class to 9th class in Jain Happy School and she was his friend. PW5 further deposed that on 25.11.2011 he along with Proescutrix 'Y', Akshay, Ritika and Akanksha had gone to Pragati Maidan and they reached there at about 1111:30 AM. On reaching there, Prosecutrix 'Y' remained with them for about 1½ hour and thereafter she left their company by stating that she has to handover a mobile phone to his brother and she left. Thereafter 'Y' did not returned back to Pragati Maidan. PW4 also deposed that they kept waiting for 'Y' till 44:30 PM and thereafter they informed her mother. They tried to contact 'Y' on her mobile phone, but her phone was switched off. This witness further deposed that so far as he remember, Prosecutrix 'Y' was having three mobile phones on the said day.
Yet another friend of Prosecutrix 'Y' namely Akanksha stepped into the witness box as PW5. She deposed that she knows Prosecutrix 'Y' as she was her class mate from 6th class to 9th class in Jain Happy School and she was her friend. She further deposed that on 25.11.2011, she along with Akshay, Ritika and Rajat gathered at the house of Prosecutrix 'Y' from where they went to Trade Fair at Pragati Maidan along with Prosecutrix. On reaching there, we roamed around for some time and ate some thing. She also deposed that Prosecutrix 'Y' remained with them for about 1½ hour and thereafter she left their company by stating that she has to take or give a mobile phone to her brother and she left. They waited for her to return. However, Prosecutrix 'Y' did not returned back to Pragati Maidan. They kept waiting for 'Y' and after some time they informed her mother. They also tried to contact 'Y' on her mobile phone, but her phone was switched off. PW5 further deposed that mother of Prosecutrix 'Y' asked them to wait for her for some time. After waiting for some time they again called her mother, who told them to go home and also asked them to tell 'Y' to come home in case they receive her call. PW5 also deposed that so far as she remember, Prosecutrix 'Y' was having two mobile phones on the said day.
PW6 is Dr.Leena Das, who medically examined the Prosecutrix both internally and externally at LMHC hospital vide MLC No.969 on 01.12.2011 and proved the said MLC in this regard as Ex.PW6/A. Sh.Uday Prakash, Manager of the RPM Disco situated at Vasant Vihar was examined as PW7, who deposed that on 16.12.2011, police came to him and asked him about the footage dated 25.11.2011 and made enquiries from him about the video recording. He further deposed that he told the police that they usually store data for maximum 07 days and not more than that as it automatically get deleted.
Whereas Sh.Tarun Kumar was examined as PW8 who deposed that they have an ancestral house at Gali No.4, Pachranga Bazar, near Balmiki Mandir, back side of G.T.Road and this house remains locked and the keys remain with them. He further deposed that he do not know anything about this case as in the month of November, 2011, the son of his Mama had expired and he had gone for his last rites to Rohtak and that he returned after 20.11.2011. This witness was however declared hostile by the Prosecution.
Sh.Pawan Singh (Nodal Officer of Idea Cellular), Sh.Vishal Gaurav (Nodal Officer of Bhartiya Airtel Limited) and Sh.Israr Babu (Nodal Officer of Vodafone Mobile Service Limited) were examined as PW13, PW14 and PW15 respectively. All three of them deposed regarding providing of call details of the mobile numbers 9718588089, 9871507907 and 9711105632 respectively to ASI Sushila during the course of investigation of the case for the period 24.11.2011 to 03.12.2011. Further, all three nodal officers proved the CDRs of the aforesaid mobile numbers as Ex.PW13/A, Ex.PW14/A and Ex.PW15/A respectively. They also proved the certificate under Section 65 B of Evidence Act as Ex.PW13/B, Ex.PW14/B and Ex.PW15/C respectively. All the three nodal officers viz., PW13, PW14 and PW15 also brought the original customer application forms along with identity proof along with CAF by the customer pertaining to the aforesaid three mobile numbers and proved the photocopies of the same as Ex.PW13/C, Ex.PW13/D, Ex.PW14/C, Ex.PW14/D and Ex.PW15/C, Ex.PW15/D respectively.
PW16 is W/Ct. Nishu who deposed regarding taking of Prosecutrix 'Y' in the company of her mother 'P.S.' to LHMC Hospital for her medical examination and collection of the sealed exhibits thereon, which were seized by the IO SI Raj Kumar vide seizure memo Ex.PW16/A. Remaining witnesses pertain to the investigation which include Ct.Somveer who deposed regarding arrest of accused Kanhiya on 10.12.2011 vide arrest memo Ex.PW9/B. He further deposed regarding having conducted personal search of the accused Kanhiya vide memo Ex.PW9/B, recording of his disclosure statement Ex.PW9/C and getting him medically examined from LHMC. PW9 further deposed regarding receiving the sealed parcels from MHC(M) vide RC No.157/21 on 09.01.2012, depositing the same at FSL, Rohini and thereafter handing over the receipt of the same to the MHC(M).
Whereas HC Vijay was examined as PW10, who deposed regarding having accompanied IO, HC Udayveer and accused Mukul Siriswal to Panipat where the Prosecutrix was detained by the accused. He further deposed that accused Mukul led them to Pachranga Bazar, Gali No.4, House No.548A, near Balmiki Mandir and at that time the said house was locked. IO made inquiries from neighbours and came to know about the name of the landlord who was the resident of Rajiv Nagar. Thereafter, they went to Rajiv Nagar, where one person namely Tarun S/o Nand Kishore met them there. PW10 further deposed that IO interrogated him and he stated that he is the owner of the aforesaid house and thereafter he along with them came to House No.548A, near Balmiki Mandir and he opened the door of the house. IO inspected the place and accused had also identified the said house where he detained the Prosecutrix. PW10 also deposed that accused Mukul had also pointed out towards one Jeans Pant, black colour underwear, TShirt of black colour having strips which were hanging on a 'khunti', which were seized by the IO vide seizure memo Ex.PW8/A. One bed sheet was also seized by the IO. PW10 also correctly identified the accused Mukul and further deposed that IO also prepared pointing out memo of the said house which is Ex.PW10/A. This witness further deposed having visited the LHMC on 18.12.2011 and collection of one sealed parcel containing the blood sample, semen sample, nail clips and pubic hair along with one sample seal from the concerned doctor and handing over of the same to the IO, who seized the same vide seizure memo Ex.PW10/B. PW10 also correctly identified the case aforesaid case property upon being shown to him in the court.
PW11 is HC Udaiveer who deposed that on 11.12.2011, SI Raj Kumar took out accused Kanhiya from the lock up and interrogated him and accused Kanhiya disclosed that he could point out the hotel Singh Palace where the prosecutrix was kept by the accused Mukul. Accused Kanhiya led the police party there and pointed out room No.103 where the victim was kept in the same room by accused Mukul, which was arranged by accused Rohit. PW11 also deposed that the IO prepared the pointing out memo Ex.PW11/A and recorded the statement of hotel manager.
PW11 further deposed regarding joining of the investigation of this case again on 15.12.2011 along with IO SI Raj Kumar and Ct.Pramod, arrest of the accused Mukul from Jhandewalan Metro Station vide arrest memo Ex.PW11/B, conducting of his personal search vide memo Ex.PW11/C, recording of his disclosure statement vide memo Ex.PW11/D and conducting the medical examination of accused Mukul. PW11 further deposed regarding preparation of the pointing out memo Ex.PW11/E of RPM Disco at Vasant Vihar at the instance of accused Mukul where the Prosecutrix was taken by him during the period of his PC remand.
PW11 further deposed regarding joining of the investigation again on 17.12.2011 with IO and Ct.Vijay and their visit to H.No.548A, Ist Floor, Pachranga Bazar, Panipat at the instance of accused Mukul, where at the first floor, on his pointing out one underwear, one black colour jeans and one TShirt hanging on the peg of the wall of room were got recovered and was duly seized along with one bed sheet vide seizure memo Ex.PW8/A. This witness further correctly identified the aforesaid case property in the court when showed to him.
PW17 is Ct.Raj Kumar Talan, who deposed regarding arrest of accused Rohit on 30.08.2013 at Arya Nagar Chowk, Paharganj, Delhi on the basis of secret information received by SI Sushila. PW17 correctly identified accused Rohit in the court and further deposed that accused Rohit was wearing blue jeans and grey colour 'Checkdaar' shirt on the day of his arrest and that the complainant 'P.S', who was called at the spot also identified accused Rohit. PW17 also deposed regarding preparation arrest memo of the accused Rohit vide Ex.PW12, conducting of his personal search memo vide Ex.PW12/M, recording of his disclosure statement vide Ex.PW12/N, visit to hotel Singh Palace on the pointing of accused Rohit vide pointing out memo Ex.PW12/O and get him medically examined thereafter.
PW18 is SI Raj Kumar who had conducted the investigation of this case. He deposed that while he was posted at PS Paharganj on 26.11.2011 he recorded the statement of the complainant 'P.S' regarding kidnapping of her daughter 'Y' and made an endorsement vide Ex.PW18/A and got the FIR registered. He further deposed that on 28.11.2011, he recorded supplementary statement of the complainant wherein she stated about the friends of Prosecutrix namely Rajat and Aakansha who were with her at the time of her kidnapping and he recorded the statements of Rajat and Aakansha.
PW18 further deposed regarding taking of the Prosecutrix to LHMC along with Ct.Neeshu for her medical examination, collection of her MLC and seizure of the exhibits vide memo Ex.PW16/A which were deposited in the malkhana, getting the statement of prosecutrix recorded under Section 164 Cr.PC recorded before ld. MM and collection of the copy of the said statement thereafter. He further deposed that in her statement recorded under Section 164 Cr.PC, the Prosecutrix named Kanhaiya, Mukul, Rohit and Deepu, he made search for these persons.
PW18 further deposed regarding arrest of accused Kanhiya on 10.12.2011 vide memo Ex.PW9/A, conducting of his personal search memo vide Ex.PW9/B, getting the accused Kanhiya medically recorded through Ct.Sombir vide MLC Ex.PW18/B, recording of disclosure statement of accused Kanhiya and preparation of pointing out memo vide Ex.PW11/A wherein accused had pointed out room No.103 of Hotel Singh Palace stated to be the place of incident.
PW18 further deposed regarding arrest of accused Mukul Sirswal near Jhandewalan Metro Station on 15.12.2011 vide arrest memo Ex.PW11/B, conducting of his personal search memo vide memo Ex.PW11/C, recording of his personal search memo Ex.PW11/D, getting accused Mukul medically examined vide MLC Ex.PW18/C, preparation of pointing out memo of RPM Disc at Vasant Vihar at the instance of accused Mukul vide Ex.PW11/E, visiting at one room on the first floor of House No.548A, Gali No.4, Pachranga Bazar, Kambal Market, near Balmiki Mandir, Panipat, where Prosecutix was kept confined by him vide pointing out memo Ex.PW10/A and collection of one bed sheet, clothes of accused i.e. black colour jeans pant, underwear, full sleeve black TShirt and seizure of the same vide memo Ex.PW8/A. PW18 also deposed regarding deposit of exhibits in the malkhana and getting the potency test of accused Mukul conduced vide MLC Ex.PW18/D and collection of the same and seizure of the exhibits handed over by the doctor vide seizure memo Ex.PW10/B. This witness also deposed that 22.12.2011, this case was assigned to W/ASI Sushila for further investigation and deposited the case file with MHC(R).
SI Sushila stepped into the witness box as PW12, who deposed that on 26.12.2011, the investigation of this case was handed over to her and consequent thereupon she recorded the statement of the Prosecutrix under Section 161 Cr.PC recorded on 04.01.2012 and also prepared the site plan Ex.PW12/A. PW12 further deposed collection of school certificate from Chowgule Public School regarding the date of birth of the Prosecutrix 'Y' and proved the same as Ex.PW12/B. She further deposed that upon completion of the investigation qua accused Mukul Sirswal and Kanhiya, prepared the charge sheet against them.
PW12 correctly identified accused Deepu in the court and further deposed regarding arrest of accused Deepu on 21.05.2012 from Main Bazar, Ram Dwara Roadd, near Cheh Tooti Chowk, Delhi vide arrest memo Ex.PW12/D, conducting of his personal search vide memo Ex.PW12/E, recording of his disclosure statement Ex.PW12/F, preparation of pointing out memo Ex.PW12/G, collection of previous involvement record Ex.PW12/H of accused Deepu and completion of investigation and filing of supplementary charge sheet against Deepu in the court. She also deposed regarding collection of FSL result vide Ex.PW12/I and Ex.PW12/J and previous involvement record of accused Mukul Sirswal vide Ex.PW12/K. PW12 was further examined after the arrest of accused Rohit on 21.11.2013. Upon stepping into the witness box, she correctly identified the accused Rohit in court and deposed that accused Rohit was absconding in this case and she got issued process under Section 82 Cr.PC against him on 26.08.2013. PW12 further deposed regarding arrest of accused Rohit near Raj Hotel Chowk, Arya Nagar, Nabi Karim upon the identification of complainant 'P.S' vide arrest memo Ex.PW12/L, conducting of his personal search memo vide Ex.PW12/M, recording of his disclosure statement vide Ex.PW12/N, preparation of pointing out memo at the instance of accused Rohit vide memo Ex.PW12/O, getting him medically examined, recording of statements of the witnesses, preparation of supplementary charge sheet qua accused Rohit and filig the same in the court.
PW12 further deposed that after the registration of the FIR, the mother of the Prosecutrix gave her some mobile phone numbers for the purpose of tracing of Prosecutrx and she had collected the CDRs of mobile phone numbers 9871507907, 9711105632 & 987185809 during the investigation, but she did not conduct investigation to whom the said numbers belong or about the relevancy of the said phone numbers as the Prosecutrix was already recovered. Plea of the Accused:
The incriminating evidence was put to all the accused respectively in their statements recorded under Section 313 Cr.PC.
Accused Mukul pleaded innocence stating that he has been falsely implicated in this case due to enmity between father of Prosecutrix and his Tauji. She was not in touch with Prosecutrix since long. He further stated that the father of the Prosecutrix had also objected to his friendship with the Prosecutrix and he was having connections with the police officials of PS Paharganj, thus he got him implicated initially in cases of theft and thereafter, in this case.
Accused Kanhiya also pleaded innocence stating that he has been falsely implicated in this case. He also stated that on that day he had gone to the house of his Bua at Karol Bagh and returned to his house in the evening and that he did not go to Pragati Maidan at all on that day. He further stated that in fact, he was called to the PS by SI Raj Kumar in the evening on that day.
Accused Rohit also pleaded innocence and stated that he has been falsely implicated in this case and the Prosecutrix has deposed falsely against him as once father of the Prosecutrix had quarreled with his phufaji, who has since expired and the Prosecutrix and her family were enimical to him.
Whereas, accused Deepu while pleading innocence and his false implication in this case stated that he used to run a tea stall on a 'rehri' and one Chintu had a quarrel with him on the issue of place where he used to run tea stall. He further stated that Chintu is the friend of father of Prosecutrix and he was implicated in this case at the instance of Chintu in connivance of father of the Prosecutrix and police. Defence Evidence :
Accused Mukul examined three defence witnesses in his defence whereas accused Deepu and Kanhiya preferred to examine two defence witnesses in their defence.
Sh.V.Lakshmi Narasimhan Sr.Scientific Officer from FSL was examined as DW1 in order to prove the voice test examination of the Prosecutrix conducted by him during the course of trial consequent upon filing of an application by the accused Mukul Siriswal under Section 45(A) of Indian Evidence Act, wherein one CD containing the recording of conversation with the Prosecutrix was sought to be examined from FSL and the said application was allowed vide order dated 24.01.2013.
DW1 upon stepping into the witness box deposed regarding having received three parcels vide letter No.475/SHO/Paharganj dated 18.02.2013 in the instant case FIR, wherein parcel1 was found containing an audio cassette was found containing specimen voice sample which was marked as Ex.S1. Parcel No.2 was found containing one one mobile phone of make 'Spice' with micro SD card having 06 relevant audio files and speaker along with a battery, which was marked as Q1. Whereas, the Parcel No.3 was found containing CDR and was marked as Ex.3.
DW1 further deposed that on examination, he was of the opinion that the voice exhibit of speaker marked Ex.Q1 and Ex.S1 are voice of same person i.e. Prosecutrix 'Y' and proved his report as Ex.DW1/A. DW1 further identified the audio cassette, one mobile phone with micro SD Card and the CD in the court, to be the same which he examined and appended his signatures on them consequent upon receiving them for expert opinion.
Aman Sirswal brother of accused Mukul was examined as DW2 who deposed that on 23.09.2012, a request was received by him on Facebook from Prosecutrix 'Y' and she used her ID in the name of Mahi Sirswal. He further deposed that she had requested him on the Facebook to give his telephone number as she wanted to talk to his mother regarding his brother accused Mukul and he gave his mobile phone No.9873833525 on the Facebook itself to the Prosecutrix. He further deposed that on 28.09.2012 Prosecutrix 'Y' gave a call through her mobile number 8376911061 and she called him from the same mobile number 78 times on 78 different days. He also deposed that his phone had the recording facility and thus the said conversations were automatically recorded in the memory card of his phone and he got the same transferred into a CD Ex.PW2/DX1. He also got the said conversation written into transcript Mark PW2/DX1.
DW2 further deposed that he had handed over the mobile phone with micro SD Card make 'SPICE' and one CD to the IO of the case containing the recordings of the conversation between him and the prosecutrix and that no tampering was done with the recorded conversation. This witness also identified the aforesaid micro SD Card and the CD which he handed over to the police.
Father of accused Mukul Sh.Ashok Sirswal was examined as DW3 who deposed that accused Mukul was student of B.A.LL.B in an institute at Greater Noida and that he was got falsely implicated in three false theft cases by father of the Prosecutrix, in which accused Mukul has been acquitted. He further deposed that the father of the Prosecutrix is a man of criminal tendency and that accused Mukul was picked up from the house on 15.12.2011 and has been falsely implicated in this case.
DW4 Sh.Rajeev Sharma was examined in defence of accused Deepu, who deposed that he know accused Deepu for the last 10 years as his father used to have a tea stall in front of his shop. He further deposed that his father was not well and now Deepu is working on the tea stall daily from 6 AM to 10 PM. He also deposed that he had not seen accused Deepu quarreling with anyone and misbehaving with any person and that there is no complaint in the market against him.
Sh.Sunil Mandal, was examined as DW5 in defence of accused Kanhiya, who deposed that accused Kanhiya is his son and on 25.11.2011 Kanhiya had left the house at about 8 AM for the house of his Bua at Karol Bagh. He further deposed that he is working as Orderly at CPWD, Krishi Bhawan and he also left for his job at 8:30 AM and returned from his duty to his home at about 8 PM and at that time, Kanhaiya was present at home.
DW5 further deposed that on the next day i.e. on 26.11.2011 in the evening, one police official came to his house and told him that the IO has called accused Kanhaiya at PP Sangatrashan and he produced Kanhaiya at PP Sangatrashan before the police, where police made enquiries from him and relieved him thereafter and that accused Kanhaiya was called at PP Sangatrashan regularly till 08.12.2011. He also deposed that on 01.12.2011 when accused Kanhaiya was called at PP Sangatrashan, Prosecutrix was also present there and on their request, accused Kanhaiya was relieved.
Arguments, Analysis and Findings I have considered the detailed arguments, both verbal and written submitted by learned defence counsels and have also heard ld. Addl. PP for the State at length and considered the rival submissions in the light of the evidence on record.
The case of the Prosecution as aforesaid is that the Prosecutrix was kidnapped by the accused Mukul and Kanhiya from Pragati Maidan and they took her in a TSR and threatened her by showing surgical blade. It is also alleged that accused Mukul and Kanhiya took away her mobile phones in the TSR and both of them have further been charged for the offences under Sections 392/34 IPC. Besides this, accused Mukul is also facing trial for having used surgical blade while robbing the Prosecutrix of her three mobile phones in the said TSR on the date of incident i.e. 25.11.2011 and is also charged for the offence punishable under Section 397 IPC.
It is a matter of record that the date of birth of the Prosecutrix PW2 is 28.10.1995 and on the time of incident, she was just above 16 years of age. It was argued by learned APP that in view of the fact that PW2 was below 18 years of age, her consent, if any, is immaterial and the Prosecution is only required to prove that PW2 was taken out of her lawful guardianship by accused Mukul and Kanhiya.
It is the case of the Prosecution that the Prosecutrix had gone to Trade Fair, Pragati Maidan on 25.11.2011 along with her friends. She was called outside the venue of the Trade Fair by accused Kanhiya who made a call to her and falsely told her that accused Mukul had sustained some injuries and requested her to come out and see him. When went outside the Trade Fair, she found accused Mukul in uninjured condition. Both the aforesaid accused then forcibly made her sit in a TSR and also robbed her of her mobile phone on the way.
In her crossexamination however, the Prosecutrix PW2 stated that on the day of the incident i.e. 25.11.2011, she had left from her house at 11 AM for going to Pragati Maidan. She also deposed that she met her friends at R.K.Ashram Metro Station and from there they went to Pragati Maidan by Metro. Two of her friends with whom Prosecutrix PW2 went to Pragati Maidan on the day of incident were examined as PW4 and PW5. Though, PW4 Rajat did not disclose anything abut whether they had met for going to Pragati Maidan, PW5 Akanksha deposed that they had gathered at the house of the Prosecutrix, from where they went to Pragati Maidan along with her. The mother of the Prosecutrix PW3 'P.S.' (name withheld) also deposed that the friends of her daughter had gathered at her house and all of them went to Pragati Maidan together from there.
In her crossexamination, Prosecutrix PW2 also admitted that many public persons and police officials were present at the gate of Pragati Maidan. She also deposed that she had made a call to either Akanksha or Rajat to inform that she is going to her house as she has already come out from the Pragati Maidan. However, Rajat and Akanksha, examined as PWs 4 & 5 respectively deposed that the Prosecutrix left them from Pragati Maidan after about 1½ hour of reaching there by saying that she has to give a mobile phone to her brother. Both these witnesses did not depose anything to the effect that the Prosecutrix informed that she is going to home.
Learned defence counsels also drew my attention to the fact that in her statement recorded under Section 164 Cr.PC Ex.PW2/A the Prosecutrix claimed that her mobile phones had been snatched by accused Mukul and Kanhiya while they were in TSR. In her examinationinchief, however, the Prosecutrix remained totally silent in this regard. She made no mention of the fact that the mobile phones which she was carrying with her on that day were forcibly taken away from her by any of the accused.
It was further contended by learned defence counsels that though the Prosecutrix claimed that accused Mukul and Kanhiya took her to Vasant Vihar Market in a TSR and from there they took her to a jungle like area and forced her to drink the beer, yet no pointing out memo of such jungle like area was prepared during the entire course of investigation.
Further, the claim of the Prosecutrix that she was then taken to RPM Disco at Vasant Vihar under threat is also falsified from the testimony of PW7 Uday Prakash, Manager of RPM Disco, Vasant Vihar, New Delhi. In his crossexamination, this witness deposed that there is a common entry for everybody in the said disco. He also stated that no weapons were allowed inside the disco and there is a metal detector on the entry gate and no possibility for entry of any weapons i.e. blade/knife. PW7 further stated in his examination that there is separate checking ladies and gents. In view of testimony of PW7, it clearly emerges that the entry of the RPM Disco is secured, not only by a metal detector but also by way of separate system for checking of ladies and gents. The Prosecutrix, in these circumstances, must have been checked separately while entering at the RPM Disco. There is no explanation whatsoever as to why she could not have raised any alarm at that point of time when she necessarily had to be segregated from accused Mukul and Kanhiya atleast for the purpose of checking before entering the RPM Disco. Her claim in her crossexamination dated 06.12.2012 that no frisking was done on that day, does not inspire confidence.
It is also noteworthy that in her crossexamination she claimed that she remained that RPM Disco for about 11½ hour, but she did not ask for help during this period. In the same breath she also stated in her crossexamination that accused Mukul was not carrying the blade in his hand and he did not threatened her while they were inside the pub. She also claimed that there were about 1520 persons present in the pub at that time. She also deposed regarding presence of bouncers in the pub and also admitted having made no complaint against accused persons to the bouncers or to public persons. This is extremely surprising, particularly in view of her own admission that she had not been threatened by any accused while they were inside the pub.
Learned defence counsel appearing on behalf of accused Kanhiya also put forth the argument that the charge for offence under Section 328 IPC against accused Kanhiya also does not stands proved on record in the light of the crossexamination of the Prosecutrix PW2. It was pointed out that accused Kanhiya has been charged for the offence under Section 328 IPC for having administered a stupefying substance to the prosecutrix after mixing the same in her cold drink. It was contended by learned defence counsel that in her crossexamination dated 06.12.2012, the Prosecutrix deposed that accused Kanhiya had mixed Vodka in her Coke inside the pub in her presence. In the same breath, she deposed that the Vodka had been mixed by a steward and not by Kanhiya. It was contended that in the light of the aforesaid deposition of the Prosecutrix, the charge under Section 328 IPC cannot be said to have been proved against accused Kanhaiya.
On the careful reading of the deposition of the Prosecutrix and upon considering the submissions made by learned defence counsels, I find myself inclined to accept their submissions. From the material on record, particularly the testimony of the Prosecutrix, it is apparent that the charges under Section 392/34 IPC against accused Mukul and Kanhiya and for offence under Section 397 against accused Mukul do not stand substantiated on record. The Prosecutrix in her entire deposition failed to depose that her mobile phones were robbed by either of the accused persons by extending threats to her by showing her surgical blade, as claimed in the charge sheet.
In view of her aforesaid testimony, I find that the aforesaid charges do not stand proved on record. Similarly, in view of the cross examination of the Prosecutrix as discussed above, wherein she claimed that the Vodka had been mixed in her soft drink by the steward and not by accused Kanhiya, I am of the opinion that he cannot be held guilty of the offence under Section 328 IPC.
It is further the case of the Prosecution that from RPM pub, accused Mukul, Rohit and Kanhiya took the Prosecutrix to a Hotel at Ajmere Gate namely 'Singh Palace Hotel'. Prosecutrix deposed that she has heard accused Mukul and Kanhiya talking to Rohit for booking a room in a hotel at Ajmeri Gate. PW2 further deposed that she was forced to sit in a TSR and was taken to the said hotel. She was unable to make any effort to escape as she was under influence of Vodka, which she had been forced to consume. She also deposed that accused Deepu reached there and showed her a pistol and told her to do what Mukul wants her to do and threatened her that in case she refused, he would kill her family members. The Prosecutrix further deposed that thereafter accused Deepu left and accused Mukul forced her to establish sexual relations with him, without her consent. Thereafter, accused Mukul made a call to accused Kanhaiya and Rohit and both of them reached there and again threatened her by saying that she has to remain there so long as Mukul wants to live with her. PW2 further deposed that on the next day again accused Mukul established sexual relations with her 34 times and in the evening, accused Rohit came there and on his advise, accused Mukul made her a eat pink coloured tablet so as to prevent pregnancy. Thereafter, accused Mukul started using contraceptive like 'Kohinoor' every time he established sexual relations forcibly with her.
As per the Prosecutrix PW2, on the next day, accused Rohit again came to hotel room and advised Mukul to leave as the hotel had been booked by him. Accused Mukul called up another boy namely Nakul and all the accused persons again took the Prosecutrix in a car driven by one Savi and the car was stopped at 'Sukhdev Dhaba' on a highway. Savi and Rohit locked her and accused Mukul inside the car and when she tried to raise an alarm, accused Mukul took out a knife from inside his shoe and threatened to kill her.
It was argued by learned defence counsel that the aforesaid claim of the Prosecutrix is totally false and the testimony of the Prosecutrix PW2, being full of embellishments and improvements, is not worthy of reliance. It was pointed out that though the Prosecutrix claimed that she was raped by accused Mukul at Hotel 'Singh Place', Ajmeri Gate, admittedly the Prosecution has not cited any witness from the said hotel nor any register of the said hotel has been brought on record in support of its case. The absence of any documentary proof in form of guest entry register/booking register of the said hotel also assumes much significance particularly in the light of testimony of the Prosecutrix that the booking of the said room had been done in the name of accused Rohit.
As per the Prosecutrix PW2, they stayed in the said hotel at Ajmere Gate for two days and three nights and during this period no employee of the hotel came inside the room except on one occasion when one person from housekeeping came inside the room for cleaning. Though the Prosecutrix deposed in her crossexamination that she did not tell anything to the said employee of the hotel as she did not get any opportunity because when he came in the room, she had gone inside the washroom. However, the Prosecution in my opinion, failed to bring on record the necessary evidence by failing to examine even a single employee of the said hotel, where the accused and the Prosecutrix allegedly stayed for two days and three nights.
It is also noteworthy that in her crossexamination dated 21.11.2013, the Prosecutrix admitted that Ajmeri Gate area is a thickly populated area having congested roads. Despite this, she admittedly did not try to run away after getting down from TSR.
Though, in her crossexamination dated 05.01.2013 the Prosecutrix stated that there was no check post at the border of Delhi and Haryana. However, in the crossexamination dated 21.11.2013 she deposed that on the way to 'Sukhdev Dhabha', there were check posts and traffic signals where police officials were present. She however deposed that she did not try to draw their attention or ask for help as she was aware that accused Mukul was having surgical blade and knife with him and he could have harmed her.
As per the Prosecutrix 'Y', she was made to stay for one night in a hotel at Panipat. She deposed in her crossexamination dated 05.01.2013 that they left the hotel at about 9 AM and many public persons were present at the hotel while they were leaving. She did not raise any alarm out of fear as accused and his friends were accompanying him. However, she further added that at that time neither accused Mukul nor his friends threatened her by showing any weapon nor any weapon was visible to her at that time.
In view of her aforesaid crossexamination, it becomes difficult to accept as to why the Prosecutrix failed to raise any alarm, that too in presence of public persons at the hotel and also particularly when neither accused Mukul nor his friends had extended any kind of threat to her by showing her any weapon or otherwise. It may also be noteworthy that the Prosecution has failed to bring on record any evidence whatsoever in form of any register/record of the said hotel at Panipat, where the Prosecutrix was allegedly confined by the accused for one day.
Thereafter, the Prosecutrix was allegedly taken to a house at Panipat. Apparently, she made no effort to raise any alarm or to seek any help on the way to the said house. She claimed to have been kept in the said house at Panipat till 01.12.2011.
It is the case of the Prosecution that accused Mukul led the police to the said house at Panipat i.e. House No.548A, Gali No.4, Pachranga Bazar, Panipat and pointed out towards the room on the first floor of the said house, where the Prosecutrix was kept confined by him. The pointing out memo to this effect is Ex.PW10/A. It is also the case of the Prosecution that accused Mukul had also pointed out towards one pair of Jeans, black colour underwear, TShirt of Black Colour having stripes which were hanging on a 'Khunti' (peg) along with one bed sheet, which were seized from the said house at the instance of accused Mukul and the said recovery was made during the police custody remand of accused Mukul. This claim of the Prosecution is sought to be proved by way of deposition of PW18 SI Raj Kumar & PW10 HC Vijay.
However, the testimony of PW8 Sh.Tarun Kumar completely demolishes this case of the Prosecution. PW8 Sh.Tarun Kumar, owner of House No.548A, Gali No.4, Pachranga Bazar, Panipat completely failed to support the case of the Prosecution. He denied that the keys of the said house have been taken by one Nikku from his elder brother on the pretext that some guests have come there. Interestingly, the said elder brother of Tarun Kumar, who as per the Prosecution case gave the keys to one Nikku has neither been cited as a witness nor produced in the witness box. Similarly, the said boy Nikku was also nither cited nor examined as prosecution witness. Further, although PW8 admitted that the police visited his house on 17.12.2011, however, he denied that accused Mukul was in their custody at that time or that he opened the lock of the aforesaid house. He also denied having any knowledge regarding the seizure of any clothes from the said house, though, he admitted his signatures on the seizure memo Ex.PW8/A, but he claimed that his signatures were obtained by the police on certain papers on which something was already written. It is also noteworthy that the clothes allegedly recovered from the said house at Panipat were not put to the Prosecutrix during the entire length of trial and PW8 Tarun Kumar who is the only public independent witness to the said recovery, failed to support the case of the Prosecution upon stepping into the witness box.
What is also peculiar about the case of the Prosecution is that Prosecutrix 'Y' made no attempt whatsoever, to try to escape, prior to 01.12.2011. She deposed that on 01.12.2011, she threatened to cause harm to herself, if accused Mukul did not take her to Delhi with him. This testimony of Prosecutrix PW2 immediately raises a question that why PW2 did not take any such step prior to 01.12.2011? Noticeably, she raised no alarm while leaving the hotel at Panipat, even in presence of public persons, who as per her own crossexamination were very much present there. Also, as stated by PW2 in her crossexamination dated 05.01.2013, "at that time neither accused Mukul nor his friends threatened me by showing any weapon nor any weapon was visible to me at that time."
During the course of arguments, my attention was also drawn by learned defence counsels towards MLC of Prosecutrix Ex.PW6/A. The said MLC was proved on record by PW6. Dr.Leena Das, who had medically examined 'Y' on 01.12.2011 at LHMC hospital. Learned defence counsel contended that PW6 recorded the alleged history of patient 'Y' from point 'X' to 'X' in MLC Ex.PW6/A. As per the said alleged history given by Prosecutrix 'Y', she had met one friend namely Smita in Pragati Maidan on 25.11.2011 and from there, she went to the house of her friend Smita with her, where she remained till 01.12.2011. Further, at the time of her medical examination, PW2 gave no history of any sexual intercourse during this period i.e. from 25.11.2011 to 01.12.2011.
It is also noteworthy that PW2 in her crossexamination recorded on 05.01.2013 categorically deposed that "the history to the doctor was given by me myself without any pressure". She further admitted having told the examining doctor that she had gone to Pragati Maidan where she met one girl Smita and they became friends and went to her house and spent five days in her house. She also admitted that she did not give any history of sexual intercourse to the doctor.
In view of the said evidence, learned defence counsel vehemently argued that the claim of the Prosecutrix that she was kidnapped and raped by the accused stands totally demolished.
Learned APP, on the other hand, contested this argument by contending that a victim of rape cannot be expected to be in proper frame of mind after her recovery and the fact that she did not narrate the entire incident to the examining doctor cannot be said to be fatal to the case of the Prosecution. Learned APP further pointed out that PW2 clearly testified before the court that she initially refused to give any statement to the police as she was very disturbed. It was further submitted that during the course of investigation, the statement of the Prosecutrix was also recorded to this effect on 03.12.2011, wherein the Prosecutrix told the police that she is not in a fit state of mind and is therefore unable to give her statement at this stage. Learned APP contended that it is due to to this reason that the statement of the Prosecutrix ultimately could be got recorded under Section 164 Cr.PC only on 09.12.2011 and not prior thereto.
This argument of the Prosecution was strongly opposed by the defence. It was argued by learned defence counsels that there is no medical report whatsoever on record to substantiate the claim of the Prosecution that the Prosecutrix was not fit for statement prior to 09.12.2011. It was contended that there is no explanation on record whatsoever as to why the statement of the Prosecutrix was not recorded under Section 161 Cr.PC prior to recording of her statement under Section 164 Cr.PC on 09.12.2011. It was contended that but for her statement dated 03.12.2011, where she stated that she is not in a fit state of mind, her statement under Section 161 Cr.PC was recorded on 04.01.2012.
My attention was drawn to the crossexamination of IO PW18 SI Raj Kumar, who admitted in his crossexamination that he did not give any application to the doctor for recording whether the Prosecutrix was fit for making any statement or not. He also admitted in his crossexamination that he did not record the statement of the Prosecutrix on the day of her recovery regarding her refusal to get her statement recorded.
Learned defence counsels also argued that as per the cross examination of the Prosecutrix PW2 "I had not told the examining doctor that I was not in proper frame of mind". She also stated in her cross examination that she told the facts to her mother at about 1010:30 PM on 01.12.2012. She further added that after knowing the facts her mother did not take her to the PS nor she had called the police at night. However, IO visited their house on the next day. She further added in her cross examination that she told all the facts to the IO 24 days after her medical examination and the IO had recorded her statement on her dictation. She also deposed that she had narrated all the facts to the IO in her statement recorded by him on that day.
Learned defence counsel pointed that no such statement of the Prosecutrix stated to have been recorded 24 days after her medical examination forms part of the record, nor any such statement recorded by the IO has been brought before the court during the trial. It was thus contended that the entire case of the prosecution is false and manipulated and the statement of the Prosecutrix was got recorded only on 09.12.2011, after due deliberations and consultations and this fact is also fortified from the fact that after her medical examination, the Prosecutrix was permitted to go home along with her mother. Learned defence counsels argued that had it been the case of rape or sexual assault, the Prosecutrix would not have been sent home with her mother.
Moreover, there is no explanation on record as to why the statement of the Prosecutrix was got recorded under Section 161 Cr.PC only on 04.01.2012, which statement had also been recorded after recording of her statement under Section 164 Cr.PC. It was hence argued that the Prosecutrix made false statement under Section 164 Cr.PC Ex.PW2/A before the learned MM, which was a direct result of tutoring by her parents when she was permitted to go to her home after her medical examination on 01.12.2011. The statement under Section 164 Cr.PC was hence made by her under the influence of her parents and was totally in contrast to her statement given by her to the examining doctor immediately after her recovery on 01.12.2011. It was again pointed out that the Prosecutrix made no allegation of any sexual intercourse when she was medically examined on 01.12.2011 and the entire episode surfaced for the first time on 09.12.2011 at the time of recording of her statement under Section 164 Cr.PC. Noticeably, between 01.12.2011 to 09.12.2011 no statement of the Prosecutrix was recorded under Section 161 Cr.PC except her statement dated 03.12.2011, which is also not supported by any medical document or opinion of any doctor to the effect that Prosecutrix was not in a fit state of mind to make her statement during this period.
Learned defence counsels have therefore, argued that the case of the Prosecution has been manipulated to falsely implicate the accused persons in this case. While extending the said arguments further, learned defence counsels also pointed out that the FSL report Ex.PW12/I also does not support the case of the Prosecution as nothing incriminating was found on the undergarments of the Prosecutrix despite the fact that as per the Prosecutrix she kept wearing the same clothes throughout and the accused did not use any contraceptive on 25.11.2011 and 26.11.2011.
It was further contended that the Prosecution examined three Nodal Officers i.e. PW13, PW14 and PW15 to prove the CDRs and CAFs of the mobile Nos. 9718588089, 9871507907 and 9711105632 and as per the crossexaminations of PW13, PW14 and PW15, none of these mobile phones went into roaming mode during the period 24.11.2011 to 03.12.2011. Learned defence counsels contended that although the Prosecution has led no evidence to establish that the said mobile phones i.e. 9718588089, 9871507907 and 9711105632 belonged to either Prosecutrix or any of the accused, yet it can be presumed that one of these mobile numbers belonged to the Prosecutrix as the same had been provided by her mother as deposed by PW12 IO/SI Sushila.
It was further argued that PW12 IO/SI Sushila deposed that the aforesaid three mobile numbers were given to her by the mother of the Prosecutrix for the purpose of tracing the Prosecutrix after the registration of the FIR. However, she did not conduct any investigation to whom said mobile numbers belonged and about the relevancy of said mobile numbers, as the Prosecutrix had already been recovered. It was hence argued that even as per the Prosecution case, that the Investigation Agency did not deliberately prove on record the proof regarding the subscribers of those mobile numbers nor led any evidence to establish that any of those mobile numbers belonged to the Prosecutrix. Learned defence counsel also pointed out that none of the Prosecution witnesses including the Prosecutrix 'Y' (PW2), her mother 'P.S.' (PW3) and her friends Rajat (PW4) and Akanksha (PW5) deposed before the court regarding the mobile numbers which the Prosecutrix was using at the relevant time. It was contended that it was a deliberate attempt on the part of the Prosecution to hold back the mobile number of the Prosecutrix since the Prosecution was aware of the fact that the CDRs of the said mobile numbers would clearly bring out before the court that the said mobile numbers were not in the roaming mode during this period since the Prosecutrix was neither kidnapped nor raped by the accused during this period, as alleged.
Learned defence counsels also argued that the Prosecutrix and accused Mukul were very much in touch with each other and even had telephonic conversation on 25.11.2011 at about 4 PM. It was contended that the fact that allegedly accused Mukul came to Pragati Maidan where the Prosecutrix went with her friends on 25.11.2011 itself indicates that they were in touch with each other. The Prosecution has failed to lead any evidence to establish as how else the accused would come to know that the Prosecutrix was going to visit Pragati Maidan on 25.11.2011.
Apart from the aforesaid arguments, it was also argued by learned defence counsel for accused Rohit that though it is the case of the Prosecution that the Prosecutrix over heard accused Mukul and Kanhaiya talking to Rohit for booking a room at Hotel Singh Palace, yet there is no evidence on record to substantiate this claim that the room was booked by accused Rohit. Neither any employee of the said hotel nor any register of the said hotel has been brought before the court during the trial. The statement of the Prosecutrix is also not corroborative by the testimony of any independent public witness who could have seen the Prosecutrix along with the accused at the said hotel. It was further argued that no TIP was got conducted by the Investigating Agency for the identification of accused Rohit by the Prosecutrix since it is her own claim that Rohit was not known to her earlier and she met him for the first time in RPM Disco. Learned defence counsel also argued that there is no evidence on record but for the statement of the Prosecutrix to substantiate that accused Rohit accompanied them to Sukhdev Dhabha or that he facilitated accused Mukul to several other places.
Whereas, learned defence counsel for accused Deepu argued that the case against accused Deepu is totally false and fabricated. There is no evidence except the testimony of the Prosecutrix, which is full of improvements and embellishments to prove the case of the Prosecution that accused Deepu threatened the Prosecutrix not to oppose the wishes of the accused Mukul otherwise he would kill her family members. Further, there is no evidence to prove that accused Deepu was also present along with the Prosecutrix and other accused persons when she was allegedly taken to Singh Palace Hotel. Also, no independent witness has been examined to prove the factum of arrest of the accused on 21.05.2012, as alleged.
Learned defence counsel for the accused Kanhaiya also argued that the accused is falsely implicated by the Prosecutrix at the instance of her parents and argued at length, besides also filing written submissions.
Learned defence counsels also strongly relied upon the testimony of DW1 Sh.V.Lakshmi Narasimhan, Sr.Scientific Officer, FSL and DW2 Sh.Aman Siriswal. DW2, brother of the accused Mukul deposed before the court that the Prosecutrix gave a call to him on 28.09.2012 from her mobile No.8376911061 and again called him from the same mobile 78 times on 78 different days. The said conversation between him and the prosecutrix is stated to have been recorded by him in the memory card of the said phone produced by the witness, which was sent to FSL for analysis vide order dated 24.01.2013. The transcript of the said conversation is Mark PW2/DX1. The FSL expert i.e. DW1 proved the report Ex.DW1/A with respect to the analysis of the said recording. As per his report, the recording contained the voice of the Prosecutrix as it was found tallying with her sample voice, which was ordered to be sent to FSL in pursuance of order dated 24.01.2013. The CD containing the conversation between DW2 and the Prosecutrix is Ex.D3.
Learned defence counsels strongly argued that in view of the said recorded conversation, it is apparent that the Prosecutrix has falsely implicated all the accused persons in this case.
Learned APP opposed this argument of the defence stating that the said transcript of the conversation has not been duly proved on record. Moreover, the conversation contained in the CD Ex.D3 has not been tallied by the FSL expert with the transcript Mark PW2/DX1 and the said transcript cannot be read in evidence as the same has not been proved in accordance with law.
I have considered the aforesaid arguments and gone through the depositions of the defence witnesses. From the report of the FSL Expert Ex.DW1/A, it is apparent that the CD which was sent for analysis was found to contain the voice of the Prosecutrix. Though, the transcript of the said conversation cannot be said to have been proved strictly in accordance with law. However, the CD upon being analysed has been found by the FSL expert to contain the voice of the Prosecutrix. The conversation contained in the said CD clearly supports the claim of the defence.
I also find myself in complete agreement with the submissions of the learned defence counsels that the fact that no statement of the Prosecutrix was recorded under Section 161 Cr.PC till 04.01.2012, also raises a doubt upon the veracity of the claim of the Prosecutrix. The reason for not recording any such statement remained unexplained on record during the entire length of trial. Though, the Prosecutrix and the Investigating Agency have claimed that the Prosecutrix was not in a fit state of mind and that is why her statement under Section 164 Cr.PC could only be recorded on 09.12.2011, yet there is no medical evidence to support this claim of the Prosecution. The IO admittedly did not seek any medical opinion regarding the state of mind of the Prosecutrix or to substantiate its claim that the Prosecutrix was unable to give any statement to the IO prior to 04.01.20122. On the contrary, the Prosecutrix in her crossexamination claimed that she had narrated all the facts to the IO who recorded the same 24 days after she was medically examined. Apparently, no such statement of the Prosecutrix forms part of record. The Hon'ble Apex Court in its judgment titled as Krishan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130, while dealing with similar situation observed as under:
"Sections 161164 Cr.PC - Statements made under - Proper procedure of recording of - what is - Rape case
- Herein, Prosecution adopted a peculiar mode as first statement of prosecutrix was recoded under Section 164 Cr.PC before Judicial Magistrate and only thereafter her further statement under Section 161 Cr.PC was recorded - Held, procedure should have been otherwise
- This further shows that right from beginning, prosecution was doubtful of trustworthiness of prosecutrix herself - That was precisely the reason that she was first sought to be bound down by her statement under Section 164 Cr.PC."
Though it is not disputed that Prosecutrix 'Y' was below 18 years of age at the time of alleged incident, however I am not inclined inclined to accept the submissions of learned APP that the consent if any of the Prosecutrix being minor is immaterial and cannot be taken into consideration. It is a matter of record that the Prosecutrix is a resident of Delhi and has been studying in various schools and at the time of incident, was pursuing her class 10th studies. She was outgoing and independent enough to visit the Trade Fair at Pragati Maidan along with her friends and it cannot be presumed by any stretch of imagination that she was taken out of her legal guardianship by the accused on any kind of inducement in view of complete reading of her deposition before the court.
The claim of the Prosecutrix PW2 that she was called outside the Pragati Maidan by accused Kanhaiya on the false pretext that accused Mukul had sustained some injuries, cannot be accepted in view of the deposition of PW4 and PW5. Both these witnesses deposed before the court that before leaving the Pragati Maidan, the Prosecutrix told that she is going to give her mobile phone to her brother. There is no explanation as to why she gave this reason to her friends PW4 and PW5 before leaving Pragati Maidan. It is also noteworthy that though the Prosecutrix claimed that she was not talking with the accused for a considerable period of time prior to 25.11.2011, the question still remains is as to how the accused came to know that she has gone to Pragati Maidan on that very day.
The Prosecutrix 'Y' has further claimed that she was made to sit in a TSR by accused Mukul and Kanhaiya who threatened her with surgical blade and took her to RPM Disco at Vasant Vihar. However, apparently during the entire journey the Prosecutrix did not made any attempt whatsoever to escape nor she tried to raise any alarm despite the fact that there were several traffic intersections on the way. The presence of public persons on the route from Pragati Maidan and Vasant Vihar can also not disputed. Moreover, in her statement recorded under Section 164 Cr.PC the Prosecutrix claimed that the threats extended by the accused Mukul were not over heard by TSR driver, whereas in her cross examination she even failed to recollect whether the TSR driver was a Sardar or non Sardar.
Surprisingly, mother of the Prosecutrix made no attempt to make any call on the mobile phone of the Prosecutrix after she was informed by her friends that Prosecutrix 'Y' has left from Pragati Maidan.
As already discussed above, there is no evidence that the mobile phone of the Prosecutrix were taken away by any of the accused in the said TSR. The testimony of the Prosecutrix is completely silent to this effect. It is also her own deposition in the crossexamination that there were several bouncers and 1520 public persons inside the pub where she was taken by accused Mukul and Kanhaiya. The factum of separate checking for ladies and gents outside the pub has also been brought on record from the testimony of PW7 Sh.Uday Prakash, Manager of RPM Disco. The claim of the Prosecutrix that they were not frisked on that day cannot be accepted, particularly in view of the deposition of PW7 Sh.Uday Prakash, Manager of RPM Disco, who deposed that the checking is duly done and there is also a metal detector at the entry of the said pub.
Besides the aforesaid, I also find that the Prosecutrix made no attempt prior to 01.12.2011 to escape from the alleged custody of the accused persons, nor did she threaten to cause any harm to herself in case she was not let off. There was no explanation to say as to why she could not resort to this kind of act since 25.11.2011, more so, when she was allegedly being raped over and over again by accused Mukul. The conspicuous absence of evidence in form of registers/employees of Hotel Singh Palace as well as the Hotel at Panipat, where the Prosecutrix was allegedly confined for a day also, to my mind, is fatal to the case of the Prosecution.
It is well settled Principle of law that solitary evidence of a Prosecutrix is sufficient to prove the charge of rape, provided the same inspires confidence and appears to be completely trustworthy and of sterling quality. However, at the same time, 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. Reliance in this regard may be placed on the judgment titled as Rajoo & Ors. vs. State of M.P., AIR 2009 SC 858.
In the present case, however, I find myself unable to believe the testimony of the Prosecutrix. Her lengthy crossexamination has also clearly brought on record that her testimony is full of improvements and embellishments, thus making her an unreliable witness.
Thus, in the light of the above discussion and despite the fact that the Prosecutrix was below 18 years of age at the time of the incident, I am of the opinion that the offence under Section 363 IPC cannot be made out against the accused Mukul and Kanhaiya as it cannot be held that the Prosecutrix was taken out of her lawful guardianship of her parents or that she was kidnapped, as alleged. Rather, what appears from a comprehensive reading of the entire evidence on record is that the Prosecutrix left her house for going to Pragati Maidan on 25.11.2011 along with her friends. In her MLC Ex.PW6/A, the Prosecutrix claims to have met one girl namely Smita at Pragati Maidan with whom she became friend and had spent the next five days with her at her house. The Prosecution has offered no explanation whatsoever for the said statement of the Prosecutrix made to the examining doctor immediately after her recovery on 01.12.2011.
It is also a matter of record that the said statement of the Prosecutrix before the examining doctor was made by her in the presence of her mother, who in fact had also requested the doctor to verify whether the Prosecutrix has been sexually assaulted or not. Further, it also cannot be ruled out that the statement of the Prosecutrix recorded under Section 164 Cr.PC Ex.PW2/A on 09.12.2011 chould be the result of tutoring by her parents. It is an undisputed fact that she was permitted to go to her house along with her mother after her medical examination on 01.12.2011.
Also, there is no ground to believe the case of the Prosecution that the Prosecutrix was not in a fit state of mind to make any statement till 09.12.2011, particularly when the Prosecutrix has herself claimed in her deposition before the court that she disclosed all the facts to her mother on the night of 01.12.2011 and that she had told all the facts to the IO 24 days after her medical examination. Neither the mother of the Prosecutrix thought it appropriate to contact the police after hearing the version of her daughter on the night of 01.12.2011, nor did the IO record and prove on record any statement of the Prosecutrix recorded under Section 161 Cr.PC after 24 days of her medical examination. The case of the Prosecution thus becomes highly doubtful in these circumstances.
The accused persons, on the other hand, have been able to falsify the case of the Prosecution by examining DW1 Sh.V.Lakshmi Narasimhan Sr.Scientific Officer from FSL and DW2 Aman Sirswal and by way of the recorded conversations between the Prosecutrix and the DW2 as contained in CD Ex.D3. Upon going through the said conversations, it appears that the accused persons were falsely implicated in this case.
The conviction of the accused persons on the charges for which they were facing trial cannot be based on such unreliable evidence. The Prosecution, in my opinion, has failed to prove the allegations against the accused persons beyond the realm of reasonable doubt and in these circumstances all the accused persons deserve be acquitted on all counts on which they have been facing trial in this case.
Consequently, all the accused viz., Mukul Siriswal S/o Sh.Ashok Siriswal, Kanhiya S/o Sh.Sunil Mandal, Deepu S/o Sh.Madan and Rohit S/o late Sh.Prem Singh are hereby acquitted of the charges with which they were facing trial. Their bail bonds stand cancelled. Sureties discharged. File be consigned to record room. Announced in the Open Court on 15.02.2014 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.