Delhi District Court
State vs . Puneet Kumar And Others on 21 October, 2013
IN THE COURT OF SHRI YOGESH KHANNA,
ADDITIONAL SESSIONS JUDGE - SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique ID No. 02406R0256482013
SC No. : 231/2013
FIR No. : 293/2013
U/s. : 376-D/328 IPC
PS : Okhla Industrial Area, New Delhi.
State
(Govt. of NCT of Delhi)
........................ Complainant.
Versus
1. Puneet Kumar
S/o Shri Ram Kishor
R/o H. No. 56, Harkesh Nagar,
New Delhi
2. Shyam Prakash
S/o Bhairav Dutt
R/o H. No. 56, Harkesh Nagar,
New Delhi
.........................Accused person.
Date of Institution : 19-9-2013
Judgment reserved for orders on : 21-10-2013
Date of pronouncement : 21-10-2013
JUDGMENT
1. On 8-6-2013 a complaint was lodged by the prosecutrix stating, inter alia, that :
"I am residing at the address
State vs. Puneet Kumar and others
SC No. : 231/2013 Page No. 1 of 11
FIR No. : 293/2013
PS : Okhla Industrial Areai, New Delhi.
/home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt mentioned in the complaint with my sister-in-law, namely, Pooja wife of Tarun Kumar, for the last 6 months along with my husband, namely, Vir Bahadur Yadav. Though, I hail from Kolkata but as my husband had got injured his hand in Kolkata so I had came to Delhi for his treatment. My husband had returned to Kolkata in May, 2013 and I started working at Hero Moto Cop. However, I was not well for the last one week and had stopped going to my office. Shyam Prakash and Puneet Kumar were also residents in the same house as tenants where I and my sister-in-law were residing.
Today I was lying alone in my room and my sister-in-law had gone for work. Puneet came inside and started talking to me. I asked Puneet to go as there was no one in the house. In the meanwhile Shyam Prakash, also known as Pandit ji, came inside the room and was carrying a bottle of liquor with him.
They both caught hold of me and
made me drink liquor forcibly.
State vs. Puneet Kumar and others
SC No. : 231/2013 Page No. 2 of 11
FIR No. : 293/2013
PS : Okhla Industrial Areai, New Delhi.
/home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt Initially I vomited but later I felt intoxicated and fell unconscious.
When I came in senses I found that there was no clothes on my body.
So far as I remember Puneet had taken off my clothes and committed rape and then Shyam Prakash committed rape and after him Puneet again committed rape upon me. I could not resist them due to intoxication. Since I was feeling very weak so I kept on lying there naked and after sometime I got up and put on my clothes and in the meanwhile my sister-in-law Anjali came there and I told her the entire facts and she called the police.
2. On the basis of the above complaint, FIR no.
293/2013 was registered at P.S Okhla Industrial Area under section 376-D/328 IPC. During investigation both the accused person were arrested. Medical examination of the prosecutrix was got conducted and after completion of investigation the charge sheet was filed.
State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 3 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt
3. Since it was a Session's triable case, it was committed to this court. On 23-9-2013, a charge under 376(D) IPC and under section 328/34 IPC was framed against both the accused person. Both the accused pleaded not guilty and claim trial.
4. The prosecution examined as many as 8 witnesses.
Before proceeding further, let me state in brief the depositions made by the prosecution witnesses.
PW1 Ct. Suresh on 14-8-2013 had collected 8 pullandas from the MHC(M) of P.S OIA, New Delhi and had deposited those at FSL, Rohini vide Road Certificate No. 119/21/2013. The copy of the Road Certificate is proved as Ex.PW1/A and the receipt of FSL, Rohini is Ex.PW1/B. PW2 is the prosecutrix.
PW3 Dr. Sumita Agarwal had proved the MLC Ex.PW2/B of the prosecutrix which contains brief history given by the prosecutrix. She took two vaginal smears, one cervical smear, one perianal smear, nail clipping and hair sample ; sealed and seized the same and handed it over to the police State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 4 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt along with the sample seal. PW3 denied the suggestion that she had mentioned the history as per the directions of the police officials who had brought the prosecutrix.
PW4 Ct. Harender Singh, on 8-6-2013, was a witness to the arrest of accused person, namely, Shyam Prakash and Puneet Kumar. Both the accused were arrested vide memos Ex.PW4/A and Ex.PW4/B ; their personal searches were conducted vide memo Ex.PW4/C and Ex.PW4/D and then they were taken to AIIMS for medical examination. The exhibits and the sample seal given by the doctor were handed over to the Investigating Officer who seized it vide memo Ex.PW4/E. PW5 Dr. Deepak Prakash had examined the accused Shyam Prakash qua his sexual potency vide MLC Ex.PW5/A. He opined that there is nothing to suggest that accused was incapable of performing sexual intercourse in normal circumstances.
PW6 W/Ct. Suman, on 8-6-2013, had taken prosecutrix at AIIMS and got her medically examined. State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 5 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt The exhibits given by the doctor along with the sample seal were taken by her to the Investigating Officer and were seized vide memo Ex.PW6/A. In her presence, the prosecutrix produced three empty liquor bottles of Kingfisher brand and those were seized after sealing it with the seal of KG vide memo Ex.PW2/D. Even a bed sheet of green and black colour and the nighty of prosecutrix was seized vide memo Ex.PW2/E. PW7 Ms Namrata Aggarwal, the Ld. MM, had recorded the statement under section 164 Cr.P.C of the prosecutrix running into four pages and the same is Ex.PW7/B. PW7 has also passed an order on the application Ex.PW7/C to the supply the copy of the statement to the Investigating Officer.
PW8 W-SI Kamini Gupta, the Investigating Officer of the case, deposed that on 8-6-2012 she had recorded the statement Ex.PW1/A of the prosecutrix ; made endorsement Ex.PW8/A on it and got the FIR registered. She also got recorded the statement u/s 164 Cr.P.C Ex.PW7/B of the State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 6 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt prosecutrix recorded ; got the prosecutrix medically examined ; seized the exhibits and case property viz., bed sheet and three empty liquor bottle of kingfisher brand vide memo Ex.PW2/D ; arrested the accused person vide memos Ex.PW4/B and Ex.PW4/E ; conducted their personal searches vide memos Ex.PW4/C and Ex.PW4/D ; send the exhibits to the FSL for examination ; prepared charge sheet and filed it in the court.
5. Before recording the statement under section 313 Cr.P.C of the accused, it would be appropriate to find out if there is any incriminating evidence against the accused. For this reason let me consider the statement of the PW2, the prosecutrix, wherein she had deposed that she married in 2010. She came to Delhi in 2012 and was residing here with her husband, for his treatment. They both started residing in the house of her sister-in-law, namely Anjali and got a job in Hero Motor Corp as an Assistant. Her sister in law was residing in a rented room in a double story building where four more State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 7 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt tenants were residing. One Pandit ji and Puneet Kumar were also tenants on the same floor of the building. On the day of incident there was a party on the said floor and said two accused person offered her drink. She consumed the drink and fell unconscious and could not say if the said person committed anything wrong with her. PW2 however deposed that she found herself in good state of health with all her clothes intact on her body when she regained her consciousness. She further deposed that she made the present complaint at the instance of her family members as they had seen these two person in her room. She did not depose if the said two accused did anything wrong with her. The complaint Ex.PW2/A was proved by her but she deposed that she filed it under the pressure of her parents. She proved her MLC Ex.PW2/B and her statement u/s 164 Cr.P.C as Ex.PW2/C. She was declared hostile qua the fact that she was raped by the accused person or that she had made correct statements before the police or the Ld. MM, recorded u/s 164 Cr.P.C.
State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 8 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt Thus, considering the deposition of the prosecutrix wherein she had stated in her examination in chief that that though she had taken drinks with the accused person and became unconscious but she do not know what had happened with her, but then when she regained her consciousness she found herself in a good state of health and that her clothes were also intact on her body, do create a doubt in the story of the prosecution.
No doubt in her compliant Ex.PW2/A she deposed that when she came in her senses she found herself naked and that during her intoxication she felt that both the accused person had committed gang rape with her, however in her deposition before this court she had not supported the prosecution at all by saying that she do not know what happened with her. Rather she deposed that when she regained her consciousness she found her clothes on her body and she being in good state of health. She denied the suggestion of the ld. Addl. P.P that both the accused State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 9 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt person had committed rape upon her one by one.
The ld Addl. P.P though argued that the presumption may be raised against accused since it is a gang rape case but I fail to agree to the submissions of the ld. Addl. P.P as the presumption u/s 114 of Indian Evidence Act can only be raised if (a) the sexual assault is proved ; (b) if the prosecutrix says in her testimony that she did not consent to such sexual intercourse. However, in the present case the prosecutrix has not alleged any sexual assault and rather had denied the suggestion that she was ever raped by these accused and that she made this complaint under the pressure of her parents as admittedly had taken liquor with these accused.
Thus, considering the deposition of the prosecutrix, the statement of accused under section 313 Cr.P.C is also dispensed with. As the prosecutrix had never alleged that she was ever forcibly intoxicated so even offence under section 328 IPC is also not made out.
Hence, both the accused stands acquitted of State vs. Puneet Kumar and others SC No. : 231/2013 Page No. 10 of 11 FIR No. : 293/2013 PS : Okhla Industrial Areai, New Delhi. /home/reader/Praveen Singhania/304-Spl. FTC/2013/October, 2013/Jud, Oct, 13/Puneet 231-13 293-13 OIA.odt the charges under section 376(D) IPC and section 328/34 IPC framed against them. Their bail bonds stands cancelled ; sureties discharged. Accused person, namely, Puneet Kumar and Shyam Prakash are, thus, directed to furnish bail bonds in the sum of Rs.10,000/- each with one surety each in the like amount, in compliance of section 437-A Cr.P.C. File be consigned to record room.
Announced in the open court today i.e. 21-10-2013. ( Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi.
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