Delhi District Court
State vs 1. Manoj S/O Ram Pal Singh on 25 August, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0206552012
SC No.82/13 Date of institution : 14.08.2012
FIR No. 127/12 Date on which case
was reserved for
judgment : 11.08.2014
PS: Karawal Nagar Date of judgment : 25.08.2014
U/S: 365/506/34 IPC
& 376/342 IPC
State versus 1. Manoj S/o Ram Pal Singh
H. No. 89-B, Gali No.9,
Prem Nagar, Karawal Nagar,
Delhi.
2. Vivek S/o Sohan Pal
R/o A-241, Gali No.5,
Prem Nagar, Karawal Nagar,
Delhi.
3. Sanjay S/o Ravi Shankar
R/o A-144, Gali No.9C,
Prem Nagar, Karawal Nagar,
Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 30.04.2012 the prosecutrix lodged a SC No. 82/13 State vs. Manoj etc. Page 1 of 35 complaint at police station Karawal Nagar against the accused persons wherein she alleged as follows:
(i) Prosecutrix is aged about 21 years. She was doing B.A. from Delhi University. Accused Sanjay was running a DJ shop in front of her house and he introduced the co-accused Manoj to the prosecutrix. Prosecutrix and accused Manoj became friends and they started talking on phone. Accused Manoj used to harass the prosecutrix on way to her tuition and used to say that he loves her and wants to marry her. Prosecutrix relying on the accused Manoj, started meeting him.
(ii) In December, 2011 at a park of Delhi University, accused Manoj made physical relations with the prosecutrix and took her indecent photographs by his mobile phone. Thereafter he started blackmailing the prosecutrix and threatened her that he will put the photographs on the internet. He also started pressuring the prosecutrix to meet him frequently. When the prosecutrix refused, he threatened her that he will disclose about their relationship to her family members.
(iii) On 24.04.2012 accused Manoj blackmailed the prosecutrix and took her to Shiv Vihar where he kept her for two days and made physical relations with her (prosecutrix) against her will and consent. When the prosecutrix started weeping, he left the prosecutrix at SC No. 82/13 State vs. Manoj etc. Page 2 of 35 about 10.30 pm at Shiv Vihar and from there she came to her house. Accused Manoj threatened the prosecutrix that if she will make any complaint to the police or disclose about the same to her family members, he will kill her brother and father. Thereafter the prosecutrix disclosed about the entire incident to her family members. On 30.04.2012 the prosecutrix visited the police station alongwith her advocate and family members. She made her statement/complaint in presence of a worker of NGO namely Neetu Joshi. She was got medically examined at GTB Hospital.
(iv) The prosecutrix also alleged that accused had also taken the jewellery of her mother from her by showing his problems.
(v) She also alleged that on 11/12.01.2012 accused Manoj took her to an advocate Sh. Kartar Singh for their marriage where he obtained her signatures on some papers but now he is refusing to marry her (prosecutrix).
2. On the basis of the complaint of prosecutrix, an FIR u/s 376/506 IPC was got registered against the accused Manoj. After dismissal of the anticipatory bail, accused Manoj surrendered before the court and he was arrested. He was got medically examined at GTB Hospital. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the SC No. 82/13 State vs. Manoj etc. Page 3 of 35 learned MM on 22.5.2012. Thereafter accused Sanjay was arrested on 22.05.2012 and accused Vivek was arrested on 23.05.2012 for the commission of offence punishable u/s 365/34 IPC. Chargesheet avers that co-accused Pintoo was not traced out during investigation as he had left his known address and no clue was available about his new address. After completion of investigation, the chargesheet was filed against the three accused persons for the commission of offences punishable u/s 376/365/506/34 IPC.
3. Since the major offence in this case is triable by the Court of Sessions, vide order dated 08.08.2012, Ld. M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 25.09.2012 of my learned predecessor, charge u/s 365/506/34 IPC was framed against all the accused persons. Additional charge 376/342 IPC was framed against accused Manoj. Accused persons pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined nineteen witnesses i.e. prosecutrix as PW1, Ms. Neetu Joshi, Counselor, Angaja Foundation as PW2, Dr. Ansul SC No. 82/13 State vs. Manoj etc. Page 4 of 35 Mudgal, CMO, GTB Hospital as PW3, brother of the prosecutrix as PW4, Ct. Mohan Kumar as PW5, Dr. Gurpreet, Sr. Resident Gyane, GTB Hospital also as PW5, HC Pramod Kumar as PW6, Dr. Om Prakash Jaiswal as PW7, father of the prosecutrix as PW8, Sh. Sanjeev Kumar, Metropolitan Magistrate, Karkardooma Courts, Delhi as PW9, HC Hoshiyar Singh as PW10, HC Pradeep Kumar as PW11, HC Vikram Singh as PW12, HC Rajeev Malik as PW13, HC Mahesh as PW14, SI Tejwati as PW15, SI Santosh as PW16, HC Inderpal Singh as PW17 and SI Beena Thakur as PW18.
6. PW1 prosecutrix deposed that accused Sanjay is residing in front of her house and he is running a shop of DJ. She deposed that accused Sanjay used to occasionally visit her house. Co-accused Manoj also used to visit the shop of Sanjay and whenever accused Sanjay visited her house he used to say that Manoj loves her (prosecutrix) and she should develop friendship with him. She further deposed that prior to this, accused Manoj also visited her house alongwith accused Sanjay. Thereafter, the prosecutrix started talking to Manoj and friendship developed between them. She further deposed that once she was going to attend her tuition at Shiv Vihar. On her way, accused Sanjay and Manoj met her and threatened SC No. 82/13 State vs. Manoj etc. Page 5 of 35 her that they will put her photographs on Internet. Prosecutrix deposed that she does not know as to when her photographs were taken by them. Accused Manoj told the prosecutrix that since she had handed over the jewellery of her mother to them, her father may file a complaint against her (prosecutrix). She deposed that accused Manoj also told that he will file a complaint against her father. This witness further deposed that she does not remember as to when the jewellery was handed over by her to them. The prosecutrix further deposed that after some days when she was going for tuition, both the accused persons again met her on the way and they told her (prosecutrix) that her father had also lodged a complaint against her and the police would arrest her. The accused persons asked the prosecutrix to accompany them. Accordingly she accompanied accused Manoj who took her to a market at South Delhi where she remained in the market till evening. In the evening, she told the accused to take her back to her home. Accused Sanjay was called. Sanjay brought the prosecutrix to her home. She also deposed that on reaching her house, she came to know that her father had filed a missing complaint regarding her. Thereafter, she alongwith her family went to police station Karawal Nagar where ASI Yudhvir Singh asked her father and brother to sign 4-5 blank papers but SC No. 82/13 State vs. Manoj etc. Page 6 of 35 her father said that he will sign on the fully written paper. She further deposed that after 10-15 days, in the morning when she was brooming the house in the morning, accused Manoj, Sanjay, Pintoo and Vivek came and took her (prosecutrix) to Shiv Vihar on the gun point in a van. They kept her at Shiv Vihar for about two days. During this period, accused Manoj committed rape on her in the night. Thereafter they called accused Sanjay through telephone and they brought the prosecutrix at T-point Shiv Vihar and left her. The prosecutrix was taken to the police station Karawal Nagar by her family members. She further deposed that on the morning of next day, accused Sanjay, Vivek and father of Vivek came to her home and they beat her family members i.e. her father and grand mother. The police was called by the brother of the prosecutrix and accused Sanjay and Vivek were apprehended but no case was registered against them. She further deposed that some police officials advised the family members of the prosecutrix to get herself medically examined and thus her family members took her to GTB Hospital where she was medically examined. In the hospital, media persons also gathered and she narrated the entire facts to them. She also deposed that on the next day, she alognwith her father and brother went to the police station Karawal Nagar and in the police station her statement was got SC No. 82/13 State vs. Manoj etc. Page 7 of 35 recorded by the SHO in her own hand writing. SHO told her that "jo mein kahunga wahi likhna, nahi to gardan todh dunga." Accordingly, the prosecutrix wrote whatever was dictated to her. She identified her complaint Ex.PW1/A. She further deposed that the case was registered only against accused Manoj and when she asked SHO to register the case against all the accused persons, he told "tum par case ulta par jaayega." She deposed that accused Manoj had administered a tablet to her and after consuming the said tablet, she felt giddy. She further deposed that the accused persons threatened to display her video clip. She also deposed that accused Manoj threatened that he will kill her father and brother and accused Vivek was also present with accused Manoj.
7. This witness was cross examined on behalf of learned Addl. PP for the State on certain points with the permission of the court. During her cross examination, she admitted that her statement u/s 164 Cr.P.C was recorded by the learned MM. She admitted that after some days of her friendship with accused Manoj, accused Manoj developed physical relations with her and during that period he got prepared her MMS. She also deposed that thereafter accused Manoj showed the said MMS to her which he had prepared at the time of making of physical SC No. 82/13 State vs. Manoj etc. Page 8 of 35 relations with her (prosecutrix) and asked the prosecutrix to hand over the jewellery of her mother to him but she refused. She also stated that the accused Manoj came in the marriage of her brother and told her to hand over the jewellery and when she refused, he threatened her that he will shoot her brother and on this she handed over the jewellery of her mother to accused Manoj.
8. This witness (PW1) further deposed that on 13.3.2012 accused Sanjay and Manoj told her that her father had lodged a complaint against her (prosecutrix) regarding the jewellery which she has handed over to them and told her that police would arrest her and asked her to accompany them. Accused Manoj took the prosecutrix to Begum Zaidi market while accused Sanjay went to his house. She deposed that in the evening she told Manoj that she wants to go to her house, on this he brought her to Khajuri, he called accused Sanjay through telephone and Sanjay dropped the prosecutrix to her home.
9. The prosecutrix further deposed that on 24.4.2012 when she was brooming her house, accused Sanjay, Manoj, Vivek and Pintoo came to her and one of them gagged her mouth and told her that if she would raise alarm they will kill her father and brother and they SC No. 82/13 State vs. Manoj etc. Page 9 of 35 took her to Shiv Vihar at the house of Pintoo. She further deposed that on 26.04.2012 accused Manoj and Sanjay dropped her at Shiv Vihar, T-point and threatened her that if she will disclose the incident to any person, they will kill her and her family members. She further deposed that on 27.04.2012, accused Sanjay, his brother namely Mahender, Vivek and father of Vivek came to house of prosecutrix and threatened her father to withdraw the case otherwise they would kill her. She further deposed that wife of accused Manoj told her uncle to produce the prosecutrix before her and she would cut her (prosecutrix). This witness PW1 (prosecutrix) was cross examined at length on behalf of accused persons.
10. PW4 brother of the prosecutrix deposed that on 13.3.2012 the prosecutrix did not return from her tuition and he informed about the prosecutrix to his father. They informed the police at 100 number about the prosecutrix. Police reached their house and made enquiries. He further deposed that thereafter they were called at the police station where ASI Yudhvir Singh met them and he took them before SHO. SHO made telephone call at 2-3 places and asked them to go back to their house. SHO advised to search the prosecutrix and assured them that police would try to trace out the prosecutrix and she may come till SC No. 82/13 State vs. Manoj etc. Page 10 of 35 evening. The person who was residing at a distance of 2-3 houses from their house, brought the prosecutrix to their house in the evening. He further deposed that the police asked them to sign on 4-5 blank papers. He further deposed that on 24.04.2012 in the morning, they wanted to perform pooja of Hanumanji and the prosecutrix was brooming outside the house. She went missing and they tried to trace her but she was not traced out. He deposed that the matter was reported to the police. On the intervening night of 25/26.4.2012 at about 3.30 am, three persons came from the adjacent roof of the house where construction was going on and they threatened her father and asked him to arrange Rs. 10 lacs and only then they will release the prosecutrix. He also deposed that Rs. 60,000/- which was kept in the house was taken by them and the matter was again reported to the police. He further deposed that they arranged Rs. 2.5 lacs from his uncle, and Rs. 6.5 lacs were given to Sanjay and Vivek at Shiv Vihar. He further deposed that after 10 minutes of going of the accused persons, prosecutrix reached there and she was under intoxication. They went to police station alongwith the prosecutrix but no complaint was lodged. On the next day in the morning, accused Sanjay, Vivek and parents of accused Vivek came to their house and told them to delete their names from the complaint. Police was SC No. 82/13 State vs. Manoj etc. Page 11 of 35 again informed at 100 number. Accused Sanjay was apprehended and was taken to police station. Accused Vivek was also taken by the police officials but no action was taken against them. He deposed that on 30.04.2012 SHO informed their parents that he has registered the FIR only accused Manoj. This witness was also cross examined at length on behalf of all the three accused persons.
11. PW8 father of the prosecutrix deposed that the prosecutrix was born on 02.02.1993. Accused Sanjay was running DJ shop in front of their house. He further deposed that the accused Manoj and Vivek used to visit at the shop of Sanjay. Accused Manoj used to show photographs of prosecutrix to her which he had prepared through a computer trick. Thereafter he started blackmailing his daughter on the basis of those photographs. Accused Manoj also threatened to kill the prosecutrix and asked her to obey his directions. He further deposed that accused asked his daughter (prosecutrix) to bring all the jewellery of her mother and money kept in her house. This witness further deposed that on the direction of accused Manoj, the prosecutrix took jewellery of Rs. 10 lacs and currency of Rs.2.5 lacs and two fixed deposits in the name of his son. Accused persons also forced the prosecutrix to follow their instructions. He further deposed that on 13.3.2012 the SC No. 82/13 State vs. Manoj etc. Page 12 of 35 prosecutrix went for tuition but she did not come back. Police was informed at 100 number. This witness called accused Sanjay at his house and asked about the prosecutrix. Accused Sanjay made a call to someone and he directed that person to bring the prosecutrix to her house. Accused Sanjay dropped his daughter in the house on the same evening. He deposed that on 24.4.2012 the prosecutrix was kidnapped on the gun point by accused persons Manoj, Sanjay and Vivek and was kept at the house of accused Pintoo where all the accused persons committed rape on her. On 25.04.2012 at about 4.10 pm, all the accused persons reached at his house when he was sleeping on the roof of the house and they took him inside the house on gun point and forced him to hand over Rs. 60,000/- to them which was kept in the almirah. He deposed that accused Sanjay threatened to deliver Rs. 10 lacs for releasing his daughter and the amount was to be delivered behind Hanuman Mandir, Shiv Vihar. Police was informed at 100 number. Matter was reported to the police but no action was taken. This witness arranged Rs. 6.5 lacs and some jewellery articles and reached at Hanuman Mandir, Shiv Vihar where accused Sanjay and Vivek received that amount and jewellery from him. He further deposed that on 26.04.2012, accused Manoj left his daughter behind Hanuman Mandir in a bad condition. The SC No. 82/13 State vs. Manoj etc. Page 13 of 35 prosecutrix was taken to the police station. On 29.4.2012, this witness took his daughter to GTB Hospital where media person also reached. He further deposed that on 30.4.2012 the prosecutrix was produced before the court of learned MM and outside the court, SHO, SI Santosh and Neetu Joshi from NGO were present where the SHO asked their advocate to produce the prosecutrix and her statement will be recorded. Accordingly, the prosecutrix was produced before the SHO. This witness called his advocate and the police report was lodged after reaching their advocate in the police station and the report was perused and okayed by their Advocate. He further deposed that on 02.05.2012 the prosecutrix was produced before DCP to whom she narrated the entire incident. On 03.05.2012, the case was transferred from PS Karawal Nagar to Khajoori Khas by the order of DCP Sh. Sanjay Jain. Thereafter the investigation was carried out and the accused Manoj was arrested. He further deposed that accused Manoj was already married with one Neetu Sharma and he also took the money and a plot measuring 50 square yards of Neetu and thereafter he divorced her who has a female child also. He further deposed that accused blackmailed his daughter and asked her to transfer all her properties in his name.
SC No. 82/13 State vs. Manoj etc. Page 14 of 3512. PW11 HC Pradeep Kumar deposed that on 27.04.2012 he was posted at police station Karawal Nagar and was working as a duty officer from 4.00 pm to 12.00 midnight. He deposed that at about 12.50 am, the prosecutrix and her father came to the police station and he stated that his daughter had come to his house safely regarding whom he had lodged a missing report on 25.04.2012 as she had gone for roaming at her own will and the above said fact was also confirmed by his daughter (prosecutrix). DD No.3B was recorded to this effect. He proved the true copy of the DD No.3B as Ex.PW11/A. He further deposed that the said DD was recorded by SI Sushil Tiwari in the Roznamcha vide DD No. 3B Ex. PW11/B on which the signatures of the prosecutrix and her father were obtained.
13. PW10 HC Hoshiyar Singh deposed that on 29.4.2012 he was working as a duty officer from 4.00 pm to 12.00 midnight. He further deposed that at about 8.35 pm, a call was received from North East Control Room which was passed to ASI Ashok who left the police station with Ct. Mukund Singh and lady constable Sangeeta. ASI Santosh was sent at the spot. He proved the DD no.23A as Ex.PW10/A. SC No. 82/13 State vs. Manoj etc. Page 15 of 35
14. PW5 Dr. Gurpreet Sr., Resident Gynae, GTB Hospital deposed that on 29.04.2012 she had examined the prosecutrix vide MLC no.G-31/12 who was brought to the hospital with alleged history of sexual assault on 25.04.2012 at 7.00 pm at Meerut by three boys at gun point. This witness deposed that on examination, general conditional of the patient was fare vitals stable. On local examination, urethra was normal, hymen was ruptured, no external signs of injuries were there.
15. PW16 SI Santosh deposed that on 29.04.2012 she was posted at police station Karawal Nagar as ASI. On that day on receipt of PCR call regarding rape of a girl, she went to GTB Hospital where medical examination of the prosecutrix was got conducted. After medical examination, the sealed exhibits were seized vide memo Ex. PW16/A. She further deposed that on 30.04.2012 the prosecutrix came to the police station alongwith her advocate, father and NGO and produced a written complaint Ex.PW1/A. She made endorsement on the same as Ex.PW16/B and got the present FIR registered.
16. PW17 HC Inderpal Singh deposed that on 29.4.2012 he was working as MHC(M) and on that day W/ASI Santosh Sharma deposited one sealed sexual assault SC No. 82/13 State vs. Manoj etc. Page 16 of 35 kit in police station malkhana and he made entry in register no.19 Ex.PW17/A in this regard. He also deposed that on 05.05.2012 ASI Tejwati also deposited three sealed parcels alongwith sample seal and he made entry in malkhana register no.19 as Ex.PW17/B. He sent the sealed parcels to FSL Rohini vide RC No.76/21 and the result of the same was obtained on 10.09.2012.
17. PW2 Ms. Neetu Joshi, Counselor, Angaja Foundation deposed that on 30.4.2012 she reached at police station Karawal Nagar where the prosecutrix alongwith her family members and their advocate was present. W/SI Santosh received the written complaint of the prosecutrix and on the basis of the statement of prosecutrix, present case was got registered.
18. PW14 HC Mahesh deposed that on 30.04.2012, he was working as duty officer from 4pm to 12 midnight, he recorded the present FIR no. 127/12 PS Karawal Nagar and proved the same as Ex. PW14/A.
19. PW5 Ct. Mohan Kumar is the witness of arrest of accused Manoj and proved his arrest memo Ex. PW5/A and personal search memo Ex.PW5/B. He deposed that accused was taken to GTB Hospital for his medical examination and SC No. 82/13 State vs. Manoj etc. Page 17 of 35 sealed exhibits received from the hospital were seized vide memo Ex. PW5/C.
20. PW15 SI Tejwati initial IO deposed that on 05.05.2012 she was posted at police station Khajoori Khas as ASI. On that day on the direction of ACP, she reached at police station Karawal Nagar for investigation of the present case. She further deposed that at about 6.45 pm, accused Manoj came to the police station with his Advocate and surrendered himself. The accused Manoj was arrested vide memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/B. Accused also made disclosure statement Ex. PW5/D. She deposed that accused was got medically examined at GTB Hospital and the sealed exhibits were received from the hospital were seized vide memo Ex.PW5/C which were deposited in the malkhana. She further deposed that on 06.05.2012 accused was produced before the court and one day police custody remand was taken. On the next day, accused was produced before the court and he was sent to J/C. Thereafter the case file was handed over to MHC(R).
21. PW3 Dr. Anshul Mudgal, CMO GTB Hospital, Delhi deposed that 05.05.2012, accused Manoj was examined by Dr. Om Prakash Jaiswal, Junior Resident who SC No. 82/13 State vs. Manoj etc. Page 18 of 35 has left the services of the hospital and his whereabouts are not known. This witness proved the MLC of accused Manoj as Ex. PW3/A.
22. PW13 HC Rajeev Malik deposed that on 18.5.2012 he was posted at police station Karawal Nagar and he received the sealed parcels from HC Inderpal and deposited them at FSL, Rohini.
23. PW6 HC Pramod Kumar deposed that on 22.5.2012 he was posted at police station Karawal Nagar. On that day he alongwith SI Beena Thakur. Brother of the prosecutrix reached at the house of accused Sanjay. On the identification of brother of the prosecutrix, accused Sanjay was arrested vide memo Ex.PW4/A and his personal search was conducted vide memo Ex. PW6/A. Accused also made disclosure statement Ex.PW6/B. He further deposed that on 23.05.2012 he again joined the investigation with SI Been Thakur and reached at the house of prosecutrix and father of the prosecutrix accompanied them and reached at the house of accused Vivek. On the identification of the father of the prosecutrix, accused Vivek was arrested vide arrest memo Ex.PW6/C and his personal search mark 6A was conducted. Accused made disclosure statement Ex. PW6/D. SC No. 82/13 State vs. Manoj etc. Page 19 of 35
24. PW9 Sh. Sanjeev Kumar, learned MM deposed that on 22.05.2012 he recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the same as Ex.PW9/D.
25. PW18 SI Beena Thakur subsequent (I.O.) deposed that on 18.5.2012, sealed parcels were sent to FSL, Rohini. The statement of prosecutrix u/s 164 Cr. P.C was got recorded. She further stated that on 22.05.2012 accused Sanjay was arrested vide memo Ex. PW4/A on the identification of the brother of the prosecutrix and his personal search was conducted vide memo Ex.PW6/B. Disclosure statement Ex.PW6/B-1 of this accused was recorded. She deposed that on the next dated 23.05.2012, accused Vivek was arrested from his house vide memo Ex.PW6/C and his personal search memo Ex.PW18/A was conducted. Disclosure statement of accused Ex.PW6/D was recorded. Both the accused persons were produced before the court from where they were sent to judicial custody. She recorded the statement of the witnesses and after completion of the investigation, chargesheet was filed in the court.
26. After the prosecution evidence was closed, SC No. 82/13 State vs. Manoj etc. Page 20 of 35 statements of all the accused persons u/s 313 Cr. P.C were recorded in which they denied the case of the prosecution and claimed themselves to be innocent. Accused persons did not prefer to lead defence evidence.
27. Accused Manoj stated that he was having friendship with the prosecutrix. Once her family members caught the prosecutrix when she was talking to this accused on mobile and thus her family members became against him (accused Manoj). He also stated that the prosecutrix took him to Mathura and got herself photographed with him under the pretext of breaking her marriage with some other boy which was arranged by her family members. Accused further stated that he had already told the prosecutrix that he is a married person. Thereafter her marriage with other boy was cancelled and the family members of the prosecutrix started pressurising this accused to marry her.
28. Accused Sanjay in his statement u/s 313 Cr. P.C states that he was running a DJ shop in front of the house of prosecutrix. He stated that the family members of the prosecutrix used to get disturbed due to loading and unloading of DJ instruments. He also stated that the family members of the prosecutrix asked him to depose against SC No. 82/13 State vs. Manoj etc. Page 21 of 35 Manoj to which he refused and thus he was falsely implicated in this case.
29. Accused Vivek in his statement u/s 313 Cr. P.C stated that his name was taken by the prosecutrix and her family members as he used to visit the shop of accused Sanjay.
30. I have heard arguments addressed by learned Addl.PP for the State, learned counsel for the complainant and learned defence counsels for all the accused persons and perused the record.
Accused Manoj
31. Accused Manoj is facing trial for the commission of offences punishable u/s 376/342 IPC and u/s 365/506/34 IPC alongwith other accused persons Sanjay and Vivek.
(i) Offence u/s 376 IPC
32. In order to show that the accused Manoj had committed rape on the prosecutrix, the prosecution has relied on the statement of the prosecutrix PW1, MLC Ex.PW5/A dated 29.4.2012 of the prosecutrix in which it is SC No. 82/13 State vs. Manoj etc. Page 22 of 35 recorded that hymen of the prosecutrix was found ruptured. The prosecution also relied on the surrounding circumstances such as missing report of the prosecutrix Ex.PW12/B dated 25.04.2012 and information regarding missing of the prosecutrix.
33. The deposition of prosecutrix has been noted above. In her deposition, she has deposed that on 24.04.2012 (in morning) when she was brooming outside her house, she was kidnapped by accused Manoj, Sanjay, Vivek and Pintoo on gun point and she was taken to the house of accused Pintoo in a van where in the night accused Manoj committed rape on her. She was cross examined by the learned Addl. PP for the State with the permission of the court on certain aspects. During her cross examination she admitted that she had told the police that after some days of their friendship with accused, accused Manoj developed physical relations with her and during that period accused Manoj prepared her MMS.
34. This accused Manoj in his statement u/s 313 Cr.P.C has denied the case of prosecution. However, he admitted that he was having friendship with the prosecutrix. He stated that he is already a married person SC No. 82/13 State vs. Manoj etc. Page 23 of 35 and he also told this fact to the prosecutrix.
35. The first issue that arises for consideration is whether the prosecutrix and the accused Manoj had sexual intercourse. The prosecutrix in her deposition has stated that the accused committed rape on her on the night when she was allegedly abducted. She also stated that even earlier they had physical relations and the accused had prepared some obscene video clip which was used by him to pressurise the prosecutrix to continue to maintain physical relations with him.
36. I am of the opinion that there is no reason to disbelieve the case of the prosecution to the extent that this accused and the prosecutrix had maintained physical relations. Moreover, during her cross examination dated 06.05.2013 it was suggested to the prosecutrix on behalf of accused Manoj itself that he made physical relations with her a number of times but with her free consent.
37. Date of birth of the prosecutrix is 02.02.1993. Thus, she was above 18 years of age at the relevant time i.e. between December, 2011 and April 2012.
38. The case of the prosecution is that the accused SC No. 82/13 State vs. Manoj etc. Page 24 of 35 made the prosecutrix to submit herself for physical relations by force and on the threat of making the alleged MMS public. During her cross examination, the prosecutrix was confronted with a document Ex.PW1/D2. This undated document records that the prosecutrix wants to solemnize love marriage with accused Manoj. Prosecutrix during her cross examination admitted that this document is in her handwriting and bears her signature. She also stated that this document was written by her at Delhi University Campus when she had gone there for getting admission in a college but she was unable to recollect the date when she had visited her college. She further deposed that she did not visit the college in the year 2012. She further deposed that this document was got written by her by force on the day when she reached the campus on the motorcycle of the accused Manoj. The prosecutrix was also confronted with photographs Ex.PW1/D1 to Ex.PW1/D32. The prosecutrix in her cross examination did not dispute the photographs but stated that she was made to pose for these photographs by force. She was unable to disclose the place where these photographs were taken but denied the suggestion that same photographs were taken at Mathura. In these photographs, the prosecutrix and accused Manoj are seen together or separately in joyful mood. In some of the photographs, the prosecutrix is also seen wearing SC No. 82/13 State vs. Manoj etc. Page 25 of 35 mangal sutra, chura, chutki and sindoor on her forehead which are usually worn by a married Hindu lady. The prosecutrix was also confronted with her statement Ex.PW1/D3 dated 26.04.2012 in which she states that she had gone to Yamuna Vihar of her own. She admitted her handwriting and signature on Ex.PW1/D3 dated 26.4.2012 but stated that the same was written at police station on the direction of SHO. She also admitted that earlier she was using a mobile phone which had been purchased on the identity proof of accused Manoj and this mobile phone number was known only to the accused Manoj. She admitted that during the relevant period, mobile phone remained with her and she used to make and receive calls of accused Manoj on that phone. There is also a document PW1/D-7 which is an attested affidavit dated 11.01.2012 bearing a passport size photograph of the prosecutrix on ten rupees non judicial stamp paper. In this document the prosecutrix states that she intends to marry Manoj. The prosecutrix admitted her signature on that affidavit but maintained that the document was obtained by force and under threat of making the alleged MMS/obscene photographs public by the accused persons. Prosecutrix also admitted that she met this accused about 10-11 times though she stated that it was on his blackmailing her. She deposed that every time she went on his motorcycle.
SC No. 82/13 State vs. Manoj etc. Page 26 of 3539. The above documents, photographs and facts to my mind show that the relationship between the prosecutrix and the accused Manoj had been continuing for some time. The same was not disclosed by her to her family members. No complaint was lodged to the police by the prosecutrix prior to alleged kidnapping on 24.04.2012 by the accused persons. Though the prosecutrix has tried to explain these documents by saying these were got executed either by the accused persons or by the police officials under threat but it needs to be noted that prior to 24.04.2012, the prosecutrix had not made any complaint to any police official in the matter. It is not the case of the prosecutrix that she was not aware that the accused Manoj is a married man. Even otherwise, this accused is a neighbour of the prosecutrix and she must have been aware of the fact of his marriage.
40. During her cross examination, the attention of the prosecutrix was drawn to her various previous statements. These statements are different from each other on material aspects. The MLC Ex.PW5/A of the prosecutrix was got prepared on 29.04.2012 at GTB Hospital. It is recorded in that MLC that the prosecutrix stated to the doctor that she was raped by three boys at SC No. 82/13 State vs. Manoj etc. Page 27 of 35 Meerut on gun point. Prosecutrix admitted during her cross examination that she was never taken to Meerut by the accused persons. In the complaint dated 28.04.2012 (Ex.PW1/D-6) to DCP, Seelampur which is a typed complaint and got prepared by the prosecutrix of her own, the prosecutrix has mentioned the name of Manoj as the only person who committed rape on her. After the accused Manoj surrendered on 05.05.2012, in her complaint dated 22.05.2012 Ex.PW1/6D the prosecutrix alleged that all the accused persons committed rape on her one by one. However, in her statement u/s 164 Cr.P.C dated 22.05.2012 (Ex.PW9/D), she stated that after kidnapping on 24.04.2012, accused Manoj raped her for two days. In her cross examination dated 06.05.2013 in this court, she stated that only accused Manoj had committed rape on her at Shiv Vihar and that she did not make any complaint to the police that Vivek, Pintoo and Sanjay had also committed rape on her alongwith accused Manoj. In her complaint dated 28.04.2012 (Ex. PW1/D6) and complaint dated 30.04.2012 (Ex.PW1/A), the prosecutrix did not make any allegation of payment of money and jewellery to the accused persons by her family members for her release. This allegation has been first time made in her complaint dated 22.05.2012 Ex.PW1/D4. There is no explanation as to why this allegation was not made in the earlier complaints.
SC No. 82/13 State vs. Manoj etc. Page 28 of 3541. In Ex. PW1/D3 dated 26.4.2012, the prosecutrix has stated that on 24.04.2012 she had gone to Yamuna Vihar of her own. She remained there and came back in the morning of 26.04.2012. In her statement she also stated that she is major and she had gone to Yamuna Vihar of her own. However in the typed complaint dated 28.04.2012 Ex.PW1/D6 addressed to DCP, Seelampur, the prosecutrix stated that she was kidnapped by accuseds Manoj, Sanjay and Vivek and thereafter accused Manoj committed rape on her. She also alleged that police officials had refused to register FIR when she went to the police station on 26.04.2012.
42. In her examination in chief recorded on 07.11.2012, the prosecutrix deposed that she wrote her complaint Ex. PW1/A dated 30.04.2012 on the dictation of SHO PS Karawal Nagar as the concerned SHO had told her "jo mein kahunga wahi likhna, nahi to gardan todh dunga." However this portion of deposition of the prosecutrix is not corroborated with her cross examination dated 22.02.2013 wherein she admitted that she made complaint Ex. PW1/A in her own hand writing of her own will. She also deposed that her family members were present outside the room and Ms. Neetu Joshi (PW2) a member of NGO was also SC No. 82/13 State vs. Manoj etc. Page 29 of 35 present at the time when she wrote her complaint Ex.PW1/A. She further deposed that police persons present there did not guide her to write the said complaint. The attention of the court has also been drawn to the criminal complaint dated 25.6.2012 (Ex.PW8/A) filed u/s 156(3) Cr.P.C by the father of the prosecutrix against the police officials of i.e. Inspector Lekh Raj (SHO) and ASI Yudhvir Singh of police station Karawal Nagar in this regard on which the status report was called by the learned MM. Ultimately that complaint was dismissed vide order dated 08.08.2013 passed by Ms. Ravinder Bedi, learned MM.
43. Apart from the oral testimony of the prosecutrix, there is nothing to show that the accused made her MMS/video clip. The prosecutrix did not mention of any such MMS in her own deposition but only admitted the existence of such MMS when the Addl. PP put a leading question in this regard to her in her examination. It is strange that prosecutrix did not remember the existence of MMS on her own. The case of the prosecutrix on this aspect has not been consistent. The prosecutrix in her deposition dated 07.11.2012 stated that accused Sanjay and Manoj threatened her that they will put her photographs on the internet and she does not know as to when and where her photographs were taken. However, during her cross SC No. 82/13 State vs. Manoj etc. Page 30 of 35 examination dated 04.12.2012 on behalf of accused Manoj, she took another stand by deposing that her photographs were taken by accused Manoj outside her house. She further deposed that in these photographs she is seen present at the gate and she was wearing pink coloured clothes but the accused persons threatened her that they will make the posters of these photographs after manipulating those photographs to make her look naked and will paste those posters. There was no reason for the prosecutrix not to inform this threat to her family members. In any event, this stand is contrary to the earlier version that the alleged MMS (video clip/photographs) was made at Delhi University Campus.
44. From the above discussion, it would appear that the prosecutrix has made inconsistent statements at different point of time. She has been improving upon her statements. Since the prosecutrix has been making inconsistent statements on material aspects at different points of time, her statement that the accused Manoj made physical relations by force and threat cannot be taken on its own face value. There is also evidence on record to show friendship and intimate relationship between the accused Manoj and the prosecutrix.
SC No. 82/13 State vs. Manoj etc. Page 31 of 3545. From the evidence that has come on record, a doubt remains that the parties made physical relations with the consent of the prosecutrix and she left her home but thereafter for some reason, the prosecutrix and accused Manoj developed differences and the prosecutrix made complaint against him. It is thus held that the prosecution has not been able to establish beyond reasonable doubt that the accused made physical relations with the prosecutrix under threat of making the alleged MMS/photographs public or by force and coercion and thus accused is liable to be acquitted of the offence punishable u/s 376 IPC after giving benefit of doubt.
(ii) Offence u/s 365/342/506 IPC
46. As far as offences punishable u/s 365/342/506 IPC against accused Manoj are concerned, the prosecutrix during her examination in chief stated that when she was brooming outside her home in the morning of 24.04.2012, accused Sanjay and Manoj came alongwith other accused persons Vivek and Pintoo and took her from her house on the gun point. She was taken in a van to Shiv Vihar at the room of Pintoo where she was kept for two days and there she was beaten by the accused persons. For the reasons discussed above, I am of the opinion that this accused is SC No. 82/13 State vs. Manoj etc. Page 32 of 35 entitled to benefit of doubt for charge under these sections also.
47. Considering the nature of evidence which has come on record, I am of the opinion that the prosecution has also not been able to establish beyond reasonable doubt that the accused Manoj kidnapped the prosecutrix or wrongfully confined her or threatened her to kill her family members. Thus accused Manoj is liable to be acquitted of the offences punishable u/s 365/342/506 IPC also.
Accused Sanjay and Vivek
48. These accused persons appear to be friends of accused Manoj. Sanjay is common acquaintance of accused Manoj and the prosecutrix. Allegation against accused Sanjay is that he is the neighbour of the prosecutrix and he had introduced the prosecutrix to accused Manoj. In addition, allegation against both these accused persons is that they kidnapped the prosecutrix on 24.04.2012 alongwith accused Manoj on gun point. The deposition of the prosecutrix against these accused persons has not been consistent. There was no allegation against these accused persons in her statement dated 26.04.2012 ( Ex. PW1/D3). In her statement to the doctor SC No. 82/13 State vs. Manoj etc. Page 33 of 35 on 29.4.2012 who prepared MLC Ex. PW5/A, the prosecutrix stated that three persons had taken her to Meerut and raped her while in her deposition in the court, the prosecutrix stated that she was never taken to Meerut. In her cross examination dated 06.05.2013, she stated that only accused Manoj committed rape on her. In her complaint dated 28.4.2012 (Ex.PW1/D6) which is a complaint addressed to DCP, Seelampur and got prepared by the prosecutrix on her own, there is no allegation of demand of ransom by any of the accused persons. In her complaint dated 30.04.2012 on the basis of which FIR was registered, she has not referred to the names of these accused persons. This FIR was admittedly got written by the prosecutrix with her own free will. The father of the prosecutrix in his statement dated 04.09.2013 deposed that the report was lodged at the police station by the prosecutrix after reaching their Advocate and the same was perused and okayed by him. In his statement recorded on 07.10.2013 he further deposed that his family members and his Advocate were present at the time of lodging the FIR by his daughter. In view of these facts and since no gun is shown to have been recovered from any of the accused persons, I am of the opinion that the prosecution has not been able to establish its case against these accused persons also beyond reasonable doubt and they are liable SC No. 82/13 State vs. Manoj etc. Page 34 of 35 to be acquitted for charged offences punishable u/s 365/506/34 IPC.
49. In view of above discussion, I am of the opinion that the prosecution has not been able to prove its case against all the three accused persons for the charged offences punishable u/s 365/506/34 IPC. The prosecution has also not been able to prove its case for the charged offences punishable u/s 376/342 IPC against the accused Manoj. Thus, all the three accused persons are acquitted of the said offences after giving benefit of doubt.
50. Accused Manoj is stated to be in judicial custody. He be released if not required in any other case.
51. File be consigned to record room after necessary compliance.
Announced in the open court on 25.08.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No. 82/13 State vs. Manoj etc. Page 35 of 35