Delhi District Court
State vs (1) Dharminder @ Billoo S/O Harbhajan ... on 28 January, 2011
IN THE COURTOF MS NISHA SAXENA: ADDL. SESSIONS
JUDGE05 (NE): KARKARDOOMA COURTS: DELHI
SC No.22/10
Unique ID NO.02402R0012442002
Date of institution:4.2.1997
Received on transfer: 20.2.2010
Reserved for order: 22.1.2011
Date of delivery of order: 28.01.2011
State vs (1) Dharminder @ Billoo s/o Harbhajan Singh,
R/o J228, Old Seemapuri, Delhi.
(2)Bimla @ Shama Praveen w/o Shahid,
R/o H.No.450, Diggi Bhatta, Police Statioin Medical,
Meerut.
(3) Kusum Pandey w/o K.C. Pandey,
R/o 19B, G Patil Road, Bombay. (dead)
(4)Jagjit Singh s/o Khazan Singh,
R/o Dilshad Colony, Seema Puri, Delhi.
(5)Daljeet Singh @ Mintoo s/o Jagjit Singh,
R/o Dilshad Colony, Delhi.
(6)Balvinder Singh @ Bobby s/o Jagjit Singh,
R/o Dilshad Colony, Delhi.
FIR no. 571/96 PS Seema Puri 1/102
(7)Narinder Singh @ Gulloo s/o Jagjit Singh,
R/o Dilshad Garden, Delhi.
(8)Neeraj s/o Gaje Singh,
R/o 450, Diggi Bhatta, PS Medical,
Distt. Meerut. (dead)
FIR NO.571/96
PS Seema Puri
U/s 363/366/368/372/376/506/34 IPC
JUDGMENT:
1. This case has a chequered history. On 23.9.1996, Swaran Singh, the complainant made a complaint to the police stating that he is a government servant. On 01.9.1996, he went for official duty to J & K. On 22.9.1996 when he came back, he was told by his wife Jaswinder Kaur that his both the daughters aged 17 years and 15 years (who shall be referred as to prosecutrix No.1 and prosecutrix No.2 respectively to maintain their privacy) were missing from the house since 2.00 A.M. on 21.9.1996 and he had suspicion that they had been enticed by Dharmender @ Billoo. On the basis of his complaint, FIR u/s 363 IPC was registered. The investigation was handed over to SI Ashok Kumar. During FIR no. 571/96 PS Seema Puri 2/102 investigation he tried to trace out both the prosecutrix and on enquiry he came to know that they were at Bombay. Efforts were made to trace them at Bombay also. Wireless message was sent all over India. On 24.10.1996, accused Dharmender @ Billoo and prosecutrix No.1 surrendered before the court of Sh. B.S. Chumbak, the then Ld. M.M. The accused Dharmender @ Billoo was sent to police remand till 1.11.1996 for tracing out the prosecutrix No.2 while the prosecutrix No.1, who was a co accused, was set at liberty. SI Ram Niwas alongwith accused Dharmender @ Billoo went to Bombay. On 28.10.1996, on the instructions of SHO, SI Anil Sharma alongwith the complainant went to trace out the prosecutrix No.2 at Meerut. After persistent efforts on 30.10.1996, SI Anil Sharma was able to trace out prosecutrix No.2 in the custody of one Bimla @ Shama Parveen at Hapur who was keeping the kidnapped girl in her custody. Accused Bimla was arrested. On 1.11.1996, prosecutrix No.2 was sent for her medical examination. Statement of prosecutrix No.2 was recorded u/s 164 Cr.P.C. on 4.11.1996 by Ld. M.M. and thereafter she was released on superdari. On 31.10.1996, accused Dharmender @ Billoo absconded from the police custody. On FIR no. 571/96 PS Seema Puri 3/102 14.11.1996, he surrendered before the court of Sh. B.S. Chumbak, the then Ld.M.M. He was rearrested and was sent to judicial custody. SI Anil Sharma got prosecutrix No.1 discharged from the case and on 27.11.1996 her statement u/s 164 Cr.P.C. was recorded. On 18.12.1996, medical examination of prosecutrix No.1 was got conducted while prosecutrix No.2 underwent xray for bone age. As per the report she was found between 16 to 18 years while prosecutrix No.1 was of 20 years.
2. It was observed by the SHO while filing charge sheet that the statements of both the prosecutrix are not corroborating each other and are different from the facts. It was observed that prosecutrix No.1 had stated that Jagjit Singh, Mintoo, Bobby, Gulloo and Billoo kidnapped her while Mintoo @ Daljeet and Gulloo raped her while prosecutrix No.2 had disclosed the date of incident as 17.9.1996 and she had not named Jagjit, Gulloo and Bobby. It was also stated that on enquiry it was revealed that Mintoo @ Daljeet was admitted in GTB Hospital at the relevant time and had undergone operation for 'hernia'. Accused Neeraj had kept prosecutrix No.2 in his custody at Meerut after taking her from Bombay. He married her and also had sexual intercourse with her.
FIR no. 571/96 PS Seema Puri 4/102 However, no proof of the marriage was found. Accused Neeraj also absconded. Accused Jagjit, Daljeet @ Mintoo, Balvinder @ Bobby, Narender @ Gullu, Neeraj and Kusum Pandey were put in khana prosecutrix No.2while accused Dharmender @ Billoo and Bimla were put in column No.4 and charge sheet was filed against them u/s 363/366A/368/372/376/506 IPC.
3. On 10.3.97, IO had moved an application for issuance of warrants against Kusum Pandey and Neeraj and accused Kusum Pandey was arrested. Supplementary chargesheet was filed against Kusum Pandey while accused Neeraj was absconded.
4. On 4.3.1998, Sh. R.K. Tiwari, the then Ld. ASJ, upon hearing the State passed an order vide which he summoned accused Jagjit, Daljeet, Balvinder, Narender and Neeraj. A review petition was filed by the accused persons which was allowed by the successor court vide order dated 25.2.1999 observing that Sessions Court was not having powers to summon any additional accused unless some evidence came against them during trial. Subsequently, a reference and revision petition was filed before Hon'ble High Court.
5. During the proceedings Kusum Pandey expired and proceedings against her were abated. Accused Neeraj was also FIR no. 571/96 PS Seema Puri 5/102 declared a proclaimed offender but he too died during the trial and a copy of his death certificate is placed on record.
6. Vide order dated 24.5.2004, the criminal revision petition filed before the Hon'ble High Court was disposed of by Hon'ble Mr. Justice R.S. Sodhi observing that 'it is not open to the Sessions Court to review its earlier orders but in the present case since the order dated 25.2.1999 itself recognizes that the court of Sessions cannot exercise its power to summon the accused except u/s 319 Cr.P.C. I feel that the order dated 25.2.1999 has reached a just conclusion'.
7. Reference sent to the High Court on 23.4.99 was answered in negative on 24.5.2004 and file was received back from the Hon'ble High Court on 13.7.2004 and charges were framed on 23.12.2004. After examination of 8 witnesses an application was moved on 20.3.2006 u/s 319 Cr.P.C. for summoning of additional accused. Vide order dated 29.4.2006, accused Jagjit Singh, Daljeet Singh @ Mintoo, Balvinder @ Bobby and Narender @ Gulloo were summoned as accused u/s 319 Cr.P.C. Amended charge was framed against accused Dharmender on 23.8.2006.
8. Accused Dharmender @ Billoo was charged for the offences FIR no. 571/96 PS Seema Puri 6/102 punishable u/s 363/366A/368/376(2)(g)/506/34 IPC. Accused Daljit SIngh @ Mintoo was charged for the offences punishable u/s 363/366A/368/506/376(2)(g)/34 IPC. Accused Balvinder @ Bobby was charged for the offences punishable u/s 363/366A/368/506/372/34 IPC. Accused Jagjit Singh was also charged for the offences punishable u/s 363/366A/506/34 IPC. Accused Narender @ Gulloo was charged for the offences punishable u/s 363/366A/368/376(2)(g)/506/34 IPC. Accused Bimla @ Shama Parveen was charged for the offence punishable u/s 368 IPC. To the charge, accused pleaded not guilty and claimed trial.
9. To substantiate its case prosecution examined the following witnesses prior to the summoning of the additional accused persons.
● PW1 is Swaran Singh, father of the prosecutrix No.1 and 2 who made report regarding missing of his daughters and has proved the report lodged by him on 23.9.1996 as Ex.PW1/A. He had accompanied the police for tracing out his daughter at Bombay. His daughter prosecutrix No.2 was recovered from Hapur from the possession of accused Bimla. The girl was FIR no. 571/96 PS Seema Puri 7/102 recovered vide recovery memo Ex.PW1/B. Accused Bimla was arrested after her personal search was conducted vide memo Ex.PW1/C. He had given photographs Ex.P1 to P3 to the police which were seized vide seizure memo Ex.PW1/D. ● PW2 Dr. Ashish Gupta from GTB Hospital was discharged. ● PW3 is Dr. Kiran Guleria from GTB Hospital who proved the MLC of prosecutrix No.1 prepared by Dr. Sangeeta Gupta as Ex.PW3/A. She stated that as per the report prepared by Dr. Sangeeta Gupta there was evidence that hymen of prosecutrix No.1 was torn and vaginal examination could be done with two fingers easily.
● PW4 is Dr. B. Behera, GTB Hospital. He prepared the xray requisition slip on 18.12.1996 in respect of prosecutrix No.2 for determination of her bony age vide Ex.PW4/A. ● PW5 is Dr. Raj Pal who examined xray plate of prosecutrix No.2 on 18.12.1996 and prepared report Ex.PW5/A. On examination of xray plate he opined the age of prosecutrix No.2 between 16 to 18 years.
● PW6 is the prosecutrix No.1. ● PW7 is Dr. Dimple Ahuja. On 01.11.1996 she examined FIR no. 571/96 PS Seema Puri 8/102
prosecutrix No.2. On local examination, hymen was found ruptured and there was no evidence of any injury mark anywhere on the body. As per her opinion, patient was habitual of sexual intercourse. She has proved her detailed report as Ex.PW7/A. ● PW8 is prosecutrix No.2.
10. In the meantime on an application u/s 319 Cr.P.C., the court summoned additional accused namely Jagjit Singh, Daljeet Singh @ Mintoo, Balvinder Singh @ Bobby and Narender Singh @ Gulloo on 28.9.2006 and thereafter prosecutrix No.1 was re examined as PW1. She proved her statement recorded by the Magistrate as Ex.PW1/A. Prosecutrix No.2 was examined as PW2 who proved her statement u/s 164 Cr.P.C. recorded before the Magistrate as Ex.PW2/A. ● Mr. Hussan Lal Sharma has been examined as PW7 (for the sake of clarity he shall be referred as PW7A). He stated that in the year 1996 he received a telephonic call from one Billoo on his land line phone who informed him that two daughters of Swaran Singh were with him and requested him to give the said information to their parents. He made a call to Swaran Singh and passed on the said information to his son whose name he did not recollect. In his FIR no. 571/96 PS Seema Puri 9/102 cross examination, he stated that said Billoo informed that both the girls were adamant to accompany him to Bombay and he should inform their parents that they should collect their daughters. ● PW8 is Inspector Ram Niwas. On 26.10.1996, he was posted as SI at Police Station Seema Puri. On that day, accused Dharmender who was in police custody was taken to Bombay by the police team for the recovery of the prosecutrix and arrest of one coaccused. Accused Dharmender escaped from the custody of the police party from New Delhi Railway Station. He lodged FIR in this regard vide FIR NO.799/06 u/s 224 IPC PS New Delhi Railway Station against accused Dharmender. ● PW9 is Const. Naveen Kumar. On 24.10.1996, he joined investigation of the case with SI Ram Niwas and in his presence IO recorded the disclosure statement of accused Dharmender. ● PW10 is SI Prabha Shanker. On 18.11.1996, he moved an application for recording the statement of the prosecutrix No.1 u/s 164 Cr.P.C. at Karkardooma Courts and statement of prosecutrix No.1 Ex.PW1/A was recorded. He proved the application moved by him as Ex.PW10/A. He also recorded the statement of the prosecutrix u/s 161 Cr.P.C. before producing her before the FIR no. 571/96 PS Seema Puri 10/102 Magistrate.
● PW11 is ASI Sanotsh. She stated that on 23.9.1996, Swaran Singh came to the police station and got his statement recorded on the basis of which she recorded the formal FIR No.571/96 u/s 363 IPC which is Ex.PW1/A. ● PW12 is Inspector Ashok Kumar. He recorded the statements of the witnesses u/s 161 Cr.P.C. On 10.10.1996, he went to Bombay alongwith H.C. Ram Niwas, Const. Sohan Dutt and complainant and searched for the accused and prosecutrix and during enquiry they came to know that one Neeraj was seen with the prosecutrix and accused Dharmender.
● PW13 is Rajender. On 31.10.1996, on receipt of secret information to the effect that prosecutrix No.2 had been secretly confined in Meerut, he alongwith SI Anil Sharma and complainant Swaran Singh i.e. father of the prosecutrix went to Meerut. Prosecutrix No.2 was recovered from the possession of one Bimla from the room of Irfan driver. Prosecutrix No.2 was identified by her father and was recovered vide seizure memo Ex.PW1/B. ● PW14 is Dr. Arun Gupta who proved the discharge summary of accused Daljeet Singh @ Mintoo prepared by Dr. Pawan as FIR no. 571/96 PS Seema Puri 11/102 Ex.PW14/A. In his cross examination, he admitted that Ex.PW14/DA is original of Ex.PW14/A. Ex.PW14/DB is day pass of GTB Hospital and documents Ex.PW14/DC , DD, DE and DG are of GTB Hospital.
● PW15 is Ms. Idris Begum who stated that on 31.10.1996, while working as SPO in the area of P.S. Seemapuri, she alongwith IO visited Meerut where accused Bimla was arrested by the IO and her personal search was conducted by her vide personal search memo Ex. PW1/C. She accompanied prosecutrix No.2 to the GTB hospital for her medical examination.
● PW16 is Sh. Ranvir Sehdev. On 24.10.1996, in his presence police interrogated accused Dharmender and recorded his disclosure statement vide Ex.PW16/A. ● PW17 is Inspector Anil Sharma who stated that on further investigation being entrusted to him, he made search for the missing girl i.e. prosecutrix No.2. On 31.10.1996, he alongwith Swaran Singh, father of the prosecutrix and H.C. Rajinder visited District Meerut and went to the house of Irfan driver and prosecutrix No.2 was recovered from the possession of accused Bimla. He brought them to Delhi. Accused Bimla was arrested in FIR no. 571/96 PS Seema Puri 12/102 the presence of Idris Begum. Seizure memo of prosecutrix No.2 was also prepared at Hapur. Prosecutrix No.2 was identified by her father Swaran Singh. Statement of the prosecutrix No.2 was recorded u/s 161 Cr.P.C. and thereafter prosecutrix was taken to GTB Hospital for medical examination. After her medical examination, duty constable of GTB Hospital handed over to him the vaginal smear of the prosecutrix alongwith the sample seal of the hospital which he seized vide memo Ex.PW17/A. On 4.11.1996, statement of the prosecutrix No.2 was got recorded u/s 164 Cr.P.C. On 27.11.96, statement of prosecutrix No.1 was got recorded u/s 164 Cr.P.C. During the statement of both the prosecutix u/s 164 Cr.P.C. the names of some other persons were also revealed as suspect and accordingly, he conducted enquiry from accused Jagjit Singh. After recording statement of the witnesses, investigation was completed, challan was prepared and filed in the court.
● PW18 is Shri L.S.Solanki, the then Ld. M.M. On 4.11.1996, an application for recording the statement of prosecutrix No.2 was marked to him vide Ex.PW18/A. He recorded the statement of the prosecutrix No.2 on the same day vide Ex.PW2/A. The prosecutrix FIR no. 571/96 PS Seema Puri 13/102 No.1 was initially produced before him on 18.11.1996 but she was remanded to Nari Niketan as she was appearing to be under influence and subsequently remanded to Nari Niketan on account of non availability of case file as the case file was pending before Sh. J.D. Kapoor, the then Ld.ASJ. Statement of prosecutrix No.1 was recorded on 27.11.96 vide Ex.PW1/A. Copy of the same was supplied to the IO on an application vide Ex.PW18/D. Father of the prosecutrix No.1 also moved an application for custody of prosecutrix No.1 vide Ex.PW18/E and the same was decided vide his order Ex.PW18/E.
11. Subsequently, prosecution moved an application for re summoning of all the witnesses already examined i.e. PW1 Swaran Singh, PW3 Dr. Kiran Guleria, PW4 Dr. B.Behera, PW5 Dr. Raj Pal and PW7 Dr. Dimple Ahuja. It was reported by the accused persons that PW1 Swaran Singh had already expired. Verification report was sought and it was confirmed that he expired on 13.8.2006. As regards, the doctors it was stated by the defence that they were not disputing the MLCs proved by the aforesaid doctors and they had no objection if the prosecution adopted the evidence already recorded. They admitted the MLCs Ex.PW3/A, Ex.PW4/A, FIR no. 571/96 PS Seema Puri 14/102 Ex.PW5/A and Ex.PW7/A.
12. Statements of accused persons were recorded u/s 313 Cr.P.C. in which they denied the prosecution case and pleaded false implication. It was stated by accused Jagjit Singh that he had been falsely implicated by both the prosecutix at the instance of their father Swaran Singh who was inimical towards him due to political rivalry of Gurudwara Prabhandak Committee as well as on the point of illegal encroachment and illegal construction of building over the shops which were in his possession.
13. In the defence, eight witnesses have been examined by the accused persons.
● DW1 is Advocate Mr. Akhtar Shamim who stated that on 22.10.1996, prosecutrix No.1 approached him for filing an application for recording her statement u/s 164 Cr.P.C. The prosecutrix No.1 was accompanied by accused Dharmender Singh on that date and both were in happy mood on that day and prosecutrix No.1 was wearing Chura.
● DW2 Sh. Singh Raj Singh. He stated that in the year 1996 he was posted at Govt. Boys Sr. Secondary School, J & K Block, Dilshad Garden, as Vice Principal. He issued the work order dated FIR no. 571/96 PS Seema Puri 15/102 18.9.1996 to M/s Good Will Electric Works which was run by accused Balwinder Singh @ Bobby for the repair of electric fans and other misc. work. Accused Balwinder Singh @ Bobby alongwith his brother Narender Singh @ Gulloo did the repair work from 20.9.1996 to 25.9.1996 in the school. However, accused Balwinder Singh @ Bobby and Narender Singh @ Gulloo left the job incomplete. On 30.1.1997, he again sent a reminder requesting accused Balwinder Singh @ Bobby to complete the job which was left incomplete. Thereafter, Balwinder Singh @ Bobby completed the job. He identified his signatures on the documents Ex.DW2/A and Ex.DW2/B. ● DW3 is Dr. Rajiv Rohtagi who stated that on 1.10.1996, he examined Narender Singh s/o Jagjit Singh and found him to be suffering from fever. As his condition required, he advised him rest for five days from 1.10.1996 to 5.10.1996. He also advised him to get his blood examined for malaria parasite. Since he was not responding to medications given, he further referred him to GTB Hospital for necessary further management. His medical certificate is Ex.DW3/A. The blood report is Ex.DW3/B and referring slip is Ex.DW3/C. FIR no. 571/96 PS Seema Puri 16/102 ● DW4 is Const. Rahul who admitted the stamp of police station Seema Puri at point A on Ex.DW1/DB dated 29.4.95 and another application Ex.DW1/DC made to Police Station Seema Puri by one Daljeet Singh dated 29.5.95.
● DW5 is Gokal Singh Principal, Govt. Boys Sr. Secondary School, J & K Block, Dilshad Garden. He produced original record pertaining to the payment made by Sh. Singh Raj Singh, the then Vice Principal to M/s Good Will Electricals for Rs.600/ vide cheque No.9396236 and the voucher number for the same is 113. The payment was made on 31.1.1997, when they received an application from Bobby @ Balwinder Singh dated 30.1.1997 regarding the completion of the electric work done on the spot which was left incomplete on 25.9.1996. The photo copy of the entry made in register is Ex.DW5/A. He also proved the original application by Balwinder Singh @ Bobby which is Ex. DW5/B. ● DW6 is ASI Permanand. He stated that the summoned recored had been destroyed as per the order of the ACP Vigilance. ● DW7 is Mr. Udaiveer Singh, Advocate. He stated that on 22.10.1996, he had attested an affidavit Ex.PW6/DC (in the capacity of Oath Commissioner) of prosecutrix No.1. The original FIR no. 571/96 PS Seema Puri 17/102 register was produced and the relevant entry was proved as Ex.DW7/DA. His stamp on affidavit Ex.DW7/DC is at point C and D and the signatures are at point E with his stamp. The said affidavit was signed by the deponent in his presence and she had also signed in the register maintained by him and her signatures are at point A on Ex.PW7/DA.
● DW8 is Shailender Singh Tomar, record clerk from GTB Hospital. He produced the casualty register of GTB Hospital pertaining to the year 1996. The entry regarding patient Narender is at serial No.56399. The photo copy of the relevant page is proved as Ex.DW8/A and the relevant entry is at point X. Original OPD Card of GTB Hospital is Ex.PW8/B and serial number is mentioned at point A.
14. I have heard detailed and exhaustive arguments addressed by Addl. PP for the state and Ld. Defence Counsel Sh. Sanjay Gupta, Shri J.G. Garg for all the accused except accused Balwinder Singh @ Bobby who has argued in person and gone through the entire record including the testimony of the witnesses, documents proved on record and plethora of rulings placed on record.
15. The chronological sequence of events as unfolded by the FIR no. 571/96 PS Seema Puri 18/102 testimony of the witnesses is as under:
(i) On the intervening night of 21/22.9.1996 at 1.30 A.M. both the prosecutrix - sisters were kidnapped from their residence.
(ii) On the intervening night of 21/22.9.1996 Mintoo, Billoo and Gulloo raped prosecutrix No.1.
(iii) Gulloo and Mintoo then took younger sister i.e. prosecutrix No.2 and raped her.
(iv) Thereafter they were taken to Gurudwara Shish Ganj in the TSR.
(v) On 22.9.1996, in the morning they were taken to Kalindi Kunj where they stayed for some hours.
(vi) Then they were taken to Nizamuddin Railway Station while Jagjit and Mintoo went away. Both the sisters were made to sit in the train with Billoo, Bobby and Gullu.
(vii) In the meantime, on 23.9.1996, Swaran Singh lodged a report regarding missing of his daughters and an FIR No.571/96 u/s 363 IPC was registered.
(viii) They got down at Bombay Central. Then they were taken to Khar by local train where 23 girls were called, one of whom was Lilly who took them to Kusum Pandey.
FIR no. 571/96 PS Seema Puri 19/102
(ix) Kusum Pandey forcibly sent both of them with those girls for 23 days to a beer bar.
(x) On 24.9.1996, Kusum Pandey asked both of them to go somewhere and do whatever told to them but they refused.
(xi) On 29.9.1996, they overheard Kusum Pandey talking to someone regarding their sale and fled away from her house during the night and reached at Bombay Railway Station and Billoo was present there.
(xii) Billoo and Neeraj brought them to Delhi. At railway station Jagjit and Mintoo were present. Mintoo got angry and slapped prosecutrix No.1.
(xiii) They were taken to Meerut at village Jei by all the accused. After keeping them for two days, they were brought to Jail Chungi, Meerut.
(xiv) On 3.10.1996, Jagjit, Mintoo and Billoo forcibly sent prosecutrix No.2 alongwith Neeraj and his mother at their residence Meerut, Azad Road and Bimla, mother of Neeraj called an advocate and forced her to sign documents and told her that she had been married to Neeraj and Neeraj used to make physical relations with her against her wishes.
FIR no. 571/96 PS Seema Puri 20/102 (xv) Prosecutrix No.1 was kept at a house at Jail Chungi where
Mintoo used to bring boys and committed rape upon her several times.
(xvi) On 21.10.1996, Mintoo alongwith some other boys whose name she did not know brought prosecutrix No.1 to Delhi at Kalindi Kunj. There Jagjit met her and told that he would arrange her marriage with Billoo but put a condition that she would have to give a statement in the court that she and her sister had willingly gone.
(xvii) On 22.10.1996, prosecutrix No.1 appeared in the court of Sh. B.S. Chumbak, the then Ld. M.M. and moved an application supported with an affidavit for recording of her statement which was fixed for 24.10.96.
(xviii) She was taken to the house of the clerk of Advocate Mr. Mongia where Mintoo committed rape upon her 23 times. (xix) On 24.10.96, Dharmender, @ Billoo surrendered before the court and prosecutrix No.1 was also produced. She was set at liberty and she joined her parents.
(xx) On 31.10.96, IO Inspector Anil Sharma alongwith complainant went to Hapur and recovered prosecutrix No.2 from the house of FIR no. 571/96 PS Seema Puri 21/102 one Irfan driver from the custody of Bimla while accused Neeraj fled.
(xxi) Prosecutrix No.2 was produced before the Ld. M.M. for recording of her statement which was recorded before the Magistrate u/s 164 Cr.P.C. on 4.11.1996.
(xxii) Prosecutrix No.1 was produced before the court on 18.11.1996 for recording of her statement but she was sent to Nirmal Chhaya. Subsequently, her statement u/s 164 Cr.P.C. was recorded on 27.11.1996.
(xxiii) On 18.12.96, ossification test of prosecutrix No.2 was conducted and prosecutrix No.1 was also medically examined.
16. The most significant witnesses of the prosecution are the prosecutrix No.1 & 2. Let us analyze and examine their testimony to see if the prosecution has been able to prove its case through them. PW1, the elder sister, prosecutrix No.1, stated that on 21.9.1996 she was studying in 10th class in Seemapuri. She did not know the name of the school. She is the eldest child of her parents. She knew accused Billoo since her school days as he used to study in her school in the 2nd shift. She failed in class 10th and as such she took admission in open school. There she came in contact with FIR no. 571/96 PS Seema Puri 22/102 Rita and Bobby. They started visiting her house. She also took admission with them in dress designing course. Thereafter their visit to her house became more frequent. One day mother of Bobby told her that Billoo is a nice boy and that she should develop friendship with him. Thereafter Bobby made her more friendly with Billoo and later her mother also told her that if her parents would be against her friendship with Billoo then she would help her in any manner in this regard.
17. In September 1996, her father had gone to Jammu & Kashmir in connection with election duty. One day Bobby came to her house and asked for her file and certificates. On her asking, she told her that certificates were called by her mother and she would take them along. On 20.9.1996, mother of Bobby called her on telephone and told her that she had to leave the home on that day itself for which she refused. On 21.9.1996, mother of Bobby, Mohini Devi again called her on telephone and told her that she would have to leave her home on that day itself and when she refused she said that she should talk to Mintoo and handed over the phone to him. Mintoo told her that she should leave home on that very night at about 1.30 A.M. and when she refused he threatened FIR no. 571/96 PS Seema Puri 23/102 that if she did not leave the house she would have to bear the consequences and that he would eliminate her entire family and he also told her that if she did not believe him she should check outside her house where he had already placed 4/5 boys. She put the receiver and went to terrace from where she saw 3/4 persons standing outside their gali and looking towards their house. When she again attended the phone, her younger sister prosecutrix No.2 came there and asked her as to with whom she was talking. Mintoo overheard her and asked her as to who was there. She told him that it was her younger sister and then he told her to give the phone to her. Her sister talked to him and then put down the phone. After the conversation, her sister started crying. She told that Mintoo told her to accompany her at 1.30 A.M. failing which he would kill their entire family. At that time her mother was not at home. When she came back, she was not feeling well and she took food and medicine and went to sleep. Both the sisters were too frightened and therefore, they did not tell anything to their mother. Her sister was crying and she was trying to console her. She heard a knock at the door and when she peeped outside through window she saw that Mintoo was standing with a pistol in his hand. He FIR no. 571/96 PS Seema Puri 24/102 asked her to open the door. When she refused, he threatened her that if she did not open the door, he would kill her entire family. She opened the door out of fear. Mintoo caught hold of her hand and pulled her outside. He also asked her younger sister to come out. When she refused, Mintoo threatened her and pulled her outside. Two TSRs were standing outside the gali. Jagjit was standing outside one of the TSR and 3/4 boys were sitting inside it. Billoo was sitting in the other TSR. Mintoo pushed both of them in the TSR in which Billoo was sitting. The said TSRs were driven and they reached bus stop Seema Puri. One boy was standing there. Mintoo called him by the name of Gulloo and he was also called inside the TSR. The TSRs were again driven and were stopped after some distance at an isolated place where Mintoo, Billoo and Gulloo pulled her out of the TSR and took her towards the bushes. There all three of them raped her. When she tried to raise a cry, Mintoo closed her mouth and put the pistol upon her. Thereafter they again made her sit in the TSR. Gulloo and Mintoo then took her younger sister out of the TSR and raped her as well. Thereafter both of them were taken to Gurudwara Shish Ganj in the TSRs. There Jagjit met them. He threatened them that in case FIR no. 571/96 PS Seema Puri 25/102 they told anything to anyone he would finish their entire family. After staying there for sometime, they took them to Kalindi Kunj and from there they were taken to Nizamuddin Railway Station. There they were made to sit and then Jagjit went away. Jagjit returned back and handed over the tickets and both sisters alongwith Billoo, Bobby and Gulloo were made to sit in the train. They were given some tea and thereafter they did not know what happened. When they woke up they saw that Bombay Central was written outside on the railway station. They deboarded the train and from there they were taken to Khar by a local train. There Bobby asked Gulloo and Billoo to make a call and they went away. They called 2/3 girls at the railway station out of which one was Lilly and she asked both the sisters to accompany them. When they refused, Bobby and Gulloo threatened them that they would kill their entire family. Hence, they were forced to accompany them. She asked those girls in the mid way as to where they were being taken to which they replied that they were being taken to the house of one Kusum Pandey. They reached the house of Kusum Pandey. Kusum Pandey forcibly sent both of them with those girls for 2/3 days to a beer bar. On 24.9.1996, Kusum Pandey asked FIR no. 571/96 PS Seema Puri 26/102 both of them to go somewhere and instructed them that they should do whatever would be told to them. She refused. On 29.9.1996, she overheard Kusum Pandey talking to someone regarding their sale. They both got disturbed on hearing the said conversation. They fled away from the house during the night and reached at Bombay Railway Station through a bus. There Billoo was already present. On seeing them he came near them. They told him that they should be taken back to their home. He refused saying that if he took them back, Jagjit would not only kill him but their family as well. But when they insisted, he made them sit in the waiting room, he went away to arrange for money. He returned after a long time accompanied by a boy whom he was calling by the name of Neeraj. Thereafter they both were brought to Delhi by train. When they came out of the railway station, they found Jagjit and Mintoo were already standing outside the station. On seeing them Mintoo got angry and slapped her saying that he had directed her not to return back and why she had come back. Then she came to know that all of them i.e. Gullu, Mintoo, Jagjit and Bobby were in connivance. They all took her and her sister to Meerut where they were kept at village JEI. After keeping them for two days there, FIR no. 571/96 PS Seema Puri 27/102 they were taken to Jail Chungi Meerut. On 30.10.1996, Mintoo forcibly sent her sister (prosecutrix No.2) alongwith Neeraj. She was kept at a house at Jail Chungi where Mintoo used to bring boys and committed rape upon on her several times. Whenever, she used to raise a voice, Mintoo used to put hand upon her mouth and used to say laughingly that he was doing all this to take revenge from her father. On 21.10.1996, Mintoo alongwith some other boys whose names she did not know (but could identify if brought before her) brought her to Delhi at Kalindi Kunj. There Jagjit met them and told her that he would arrange her marriage with Billoo but put a condition that she had to give a statement in the court that she and her sister had willingly gone with them and that she was marrying Billoo of her own will. Thereafter, she was again taken back to Meerut. Next day, she was again brought back to Delhi at Surajmal Park where she was taken to the house of Mr. Mongia, Advocate. Jagjit and Mintoo talked to the advocate separately. The said advocate told her that she had to make a statement in the court that she and her sister prosecutrix No.2 had gone with the said accused of their own will and she was willing to get married with Billoo without any pressure. When she refused, Mintoo FIR no. 571/96 PS Seema Puri 28/102 threatened to kill her entire family. Thereafter she was made to sign on some papers forcibly. She was then taken to the court where she was produced before the area Magistrate, who adjourned the matter for 23 days . She was then taken to the house of the clerk of the advocate Mr. Mongia where Mintoo committed rape upon her 23 times.
18. In her examination in chief she stated that she knew Dharmender @ Billoo since her school days, Since he used to study in her school in the 2nd shift. However, in her cross examination, she stated that she did not know him when she was studying in school. He used to sometimes come to her school but she never went along with him. However, she used to talk with him. She denied the suggestion that she knew accused Billoo since her childhood. She did not remember if she had stated before the Magistrate that after she was introduced to Billoo by Bobby (female friend), she used to go along with him to restaurant etc. She volunteered that she was under fear at that time. She admitted that she went along with her parents after she was asked by the Magistrate in this respect. She admitted that she joined the company of her parents on 25.10.96. She admitted that thereafter FIR no. 571/96 PS Seema Puri 29/102 she continued residing with her parents. She did not remember if she was produced before the Ld. MM by the police on 18.11.96 for recording of her statement. She admitted that on that day her statement was not recorded and she was sent to Nari Niketan. She also admitted that thereafter she was produced before the Court on many dates but her statement could not be recorded and she used to be sent to Nari Niketan. She admitted that her statement was recorded by the Magistrate. She admitted that it was recorded on 27.11.96 on the statement being shown. She admitted that she had stated to the Magistrate that she without any fear or pressure, willingly and voluntarily wanted to give the statement. She volunteered that she stated so because at that time also the accused used to stare at her in a threatening manner. She did not know if accused Dharmender was in Jail at that time. She stated that the police had recorded her statement. She volunteered that they themselves recorded the statement and obtained her signatures. She did not correctly remember but her statement was recorded on 24.10.1996 which was not read over to her by the police. Her signatures were obtained only after giving beatings to her. She admitted that on 25.10.96, she had moved an application before the FIR no. 571/96 PS Seema Puri 30/102 Ld. M.M. in her own hand writing seeking permission to go alongwith her parents. The said application is Ex.PW1/DA bearing her signatures at point A. She volunteered that the said application was got written by her by accused Billoo under threat of dire consequences. She had not told the Magistrate that she had written the said application under threat from accused Billoo. She had not made any complaint either to the Senior officials of the police or to the Magistrate. She had not made any complaint to the Magistrate that the police officials forcibly obtained her signatures after recording her statement on their own on 24.10.1996 but she orally told him this fact. She admitted that she had appeared in the court of Sh. B.S. Chumbak, the then M.M. on 22.10.1996. She admitted that the application dated 22.10.1996 running in two pages bears her signature at point X. The application is proved as Ex.PW1/DB. She also admitted that affidavit Ex.PW1/DC also bears her signature at point A. She volunteered that her signatures were obtained on the above said documents without disclosing the contents thereof and under threat and she could not identify her signature at point Z on the vakalatnama mark D1. She did not know whether the said application and the affidavit or vakalatnama FIR no. 571/96 PS Seema Puri 31/102 were also produced in court on 22.10.1996. She had not stated to the Magistrate on the basis of the said application that her statement be recorded by him but this fact was stated by Sh. Mongia, Advocate.
19. On 22.10.1996, after moving the said application, she remained in the house of the clerk of Mr. Mongia Advocate till 23.10.96. She volunteered that she was forcibly taken by the said clerk alongwith Mintoo and Dharmender and the name of the clerk was Love Kumar. She denied the suggestion that on 24.10.96 she gave a statement to the police that on 21.9.96 she left her home of her own will and no one was responsible for her missing from the home. She denied the suggestion that the application Ex.PW1/DB and the affidavit Ex.PW1/DC were drafted on her instructions and prepared at her behest and the contents thereof were correct.
20. It would be apposite to reproduce the document Ex.PW1/DB and Ex.PW1/DC . The contents of which are hereunder: "IN THE COURT OF SH. B.S.CHUMBAK, M.M., SHAHDARA, DELHI.
State Vs Dharmender Singh @ Billoo
U/s 363 IPC S/o Late Sh.Harbhajan Singh
FIR No.571/96 R/oJ288, Old SeemaPuri,
FIR no. 571/96 PS Seema Puri 32/102
Delhi.
APPLICATION ON BEHALF OF
PROSECUTRIX No.1 D/o S. SWARAN SINGH
CHAMBA R/O B371372, OLD SEEMA PURI,
DELHI, FOR ISSUING DIRECTIONS TO IO
FOR RECORDING HER STATEMENT U/s 164
Cr.P.C. IN THE COURT PREMISES.
Sir,
The applicant most respectfully submitted as under:
1. That the applicant is major and has (sic) date of birth according to school records is 5.6.1976. The photo stat copy of her I. Card issued by the Green Public School, Dilshad Garden, Delhi 110095, authorities containing the photograph her enrollment No. and other particulars i.e. date of birth etc. is attached herewith.
2. That the applicant left her parental home in between the night of 21/22.9.96 and joined the company of Mr. Dharminder Singh @ Billoo, of her own accord and since then she has married Dharminder Singh in a Gurudwara at Bombay and has been residing with him as his wife.
3. That the applicant's father, S. Swaran Singh s/o S. Bahadur Singh r/o 371372, B Block, Old Seema Puri, Delhi110095 lodged a report at FIR no. 571/96 PS Seema Puri 33/102 P.S. Seema Puri whereby a case u/s 363 IPC was registered against Dharminder Singh and since then the police has been haunting the applicant and her husband, Dharminder Singh, with whom she had gone to Bombay of her own accord and without any pressure or show or force and has since returned to Delhi to have the blessings of her parents but the applicant has learnt that her father is bent upon murdering the applicant as well as her husband, Dharminder Singh and therefore, she has not dared to visit her parental home.
4. That there is every apprehension that the police officials of Police Station Seema Puri, may at the instance of the parents of the applicant torture the applicant as well as her husband and may make out a false statement of the applicant to achieve their nefarious ends. In view of the circumstances explained above the statement of the applicant may kindly be recorded u/s 164 Cr.P.C. to avoid all future complications and apprehensions.
Applicant Delhi Dated: 22.10.1996 Through (AKHTAR SHAMIM) Advocate."
FIR no. 571/96 PS Seema Puri 34/102 The contents of the affidavit Ex.PW1/DC are as under: "IN THE COURT OF SH. B.S.CHUMBAK, M.M., SHAHDARA, DELHI.
State Vs Dharmender Singh @ Billoo FIR No.571/96 U/s 363 IPC A F F I D A V I T I, prosecutrix No.1 D/o S. Swaran Singh Chamba R/o B371372, Old Seema Puri, Delhi95, do hereby solemnly affirm and declare as under:
1. That I am major and have completed my High School examination and my date of birth according to my school records is 5.6.1976.
2. That I had left my parental home in between the night of 21/22.9.96 and joined the company of Mr. Dharminder Singh @ Billoo s/o late Sh.
Harbhajan Singh, of my own accord and got married him in a Gurudwara at Bombay and have been residing with him as his wife since then.
3. That my father S. Swaran Singh got a case registered against Mr. Dharminder Singh @ Billoo u/s 363 IPC at Police Station Seema Puri vide FIR No.571/96 stating therein that I was FIR no. 571/96 PS Seema Puri 35/102 only 17 years of age and therefore, the police has been haunting me and my husband Dharminder Singh @ Billoo thinking that I was minor which statement of my father is at all totally baseless and false.
4. That my sister prosecutrix No.2 is also major and had already completed 18 years of her age before 21.9.96 also left her parental home on the same night i.e. 21/22.9.96 and she joined the company of Mr. Neeraj Kumar of Old Seema Puri.
5. That I want to make my statement u/s 164 Cr.P.C. of my own free will and without any pressure from any corner.
DEPONENT Verification:
Verified at Delhi on this 22nd day of October, 1996, that the contents of the above affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therefrom.
DEPONENT."
21. She denied the suggestion that Mr. Akhtar Shamim Advocate had appeared alongwith her in court and not Mr. Mongia though Ex.PW1/DB reflects that it is signed by Advocate Mr. Akhtar Shamim and is also bearing his name. Similarly Ex.PW1/DC also FIR no. 571/96 PS Seema Puri 36/102 bears signature of Advocate Mr. Akhtar Shamim wherein he identified the prosecutrix. She denied the suggestion that she had given vakalatanama under her signatures to Mr. Akhtar Shamim Advocate. She denied the suggestion that Mr. Akhtar Shamim had identified her on the affidavit. She did not know if she was produced before Oath Commissioner for swearing the affidavit.
She had not appeared before Mr. Udaivir Singh Advocate, Oath Commissioner. She denied the suggestion that she had signed on the register of said Oath Commissioner vide entry No.954/96.
22. The defence has examined DW7 Mr. Udaivir Singh who categorically stated that he attested the affidavit Ex.PW1/DC in the capacity of Oath Commissioner of prosecutrix No.1 d/o Swaran Singh. He produced the original register before the court. The relevant entry was proved as Ex.PW7/DA. He also proved his stamp on Ex.PW1/DC at point C and D. He categorically stated that the affidavit was signed by the deponent in his presence and she had also signed the register maintained by him. He identified her signatures at point A on Ex.PW7/DA. He specifically denied the suggestion put in the cross examination that signatures of prosecutrix No.1 as deponent were not identified by Advocate Mr. FIR no. 571/96 PS Seema Puri 37/102 Akhtar Shamim before him. Prosecurix No.1 also denied the suggestion that since she had stated to the police and also in application Ex.PW1/DB and affidavit Ex.PW1/DC that she had left her house on 21.9.96 of her own will, therefore, the police did not record her statement thereafter. She admitted that the photograph Ex.PW1/DD is hers and that of Dharmender. She volunteered that she was taken into Janta Flats, Delhi, in the house of Mohini Devi. She volunteered that it was taken under disguise. The photograph shows that it was clicked in a studio and was not taken under disguise as prosecutrix alongwith accused Dharmender @ Billoo posed for it. Otherwise also the witness has not explained the circumstances under which this photograph was taken. She also admitted that photograph Ex.PW1/DE is that of hers and Dharmender. She stated that the photograph was taken at Meerut but she could not tell the name of studio. She volunteered that it was taken forcibly. She admitted that the photograph was taken after her return from Bombay. She had not made any complaint either to police or to the Magistrate till today that her photograph was taken by force. She did not remember in which room the photograph Ex.PW1/DD was taken. She denied the FIR no. 571/96 PS Seema Puri 38/102 suggestion that the photograph Ex.PW1/DE was taken while she used to roam with Dharmender in or outside Delhi. She denied the suggestion that she had filed a photocopy of photograph Ex.PW1/DE alongwith application Ex.PW1/DB.
23. There are several improvements, inconsistencies and contradictions which need to be highlighted to arrive at the truth. In her cross examination PW1 prosecutrix No.1 has stated that she had stated to the police that on 21.9.1996 Mohini Devi again called her on telephone and told her that she had to leave her home on that day itself and she refused. She was confronted with the statement u/s 161 Cr.P.C. Ex.PW1/DA1 where it was not so recorded. She also denied the suggestion that she herself and Billoo married at Mumbai and also gave it in writing in the court of Shri B.S.Chumbak, the then Ld.M.M. on 22.10.96 vide Ex.PW1/DB bearing her signatures at point X. She volunteered that same was given in writing to Ld. M.M. under coercion and threat of Billoo and Mintoo. She admitted that she had given in writing in the court of Shri B.S. Chumbak that she had left her house voluntarily. She volunteered that she had written so because Mintoo and Billoo had threatened her that in case she did not give FIR no. 571/96 PS Seema Puri 39/102 in writing before the court they would get her family members killed and they would also shoot her in the court. Though the witness has time and again stated that she had been threatened by Mintoo, Billoo, Gulloo and Jagjit, however, there is no specific averments as to when and at which place such threatenings were given and were the threatening being repeated time and again which caused alarm to the prosecutrix. Even while appearing before the court she could not disclose the true facts . She also stated that she had not disclosed to the Ld.M.M. about any threatenings given by Mintoo and Billoo, since they both had threatened that in case she disclosed anything to Ld. M.M. they would get her family members killed. She also stated that she had not stated to her mother or younger brother on 21.9.96 that when she went up stairs on roof after receiving the phone call of Mohini Devi, 5/6 persons were found standing outside in the corner of the gali. She did not raise any hue and cry on seeing those 5/6 persons as Mintoo had threatened that in case she disclosed anything to her family members they would get her family members killed. Mohini Devi had given the phone to Mintoo when she was talking to her. Mintoo was not known to her before 21.9.96. She denied FIR no. 571/96 PS Seema Puri 40/102 that Mintoo never talked to her on phone. She admitted that it was not in her knowledge that Mintoo was admitted in GTB Hospital since 17.9.96 for his operation for Hernia and he was discharged from the hospital on 21.9.96 in the after noon after operation. She further stated that when the phone call of Mohini Devi was received her mother was not at home. When her mother came back at 9 P.M., she bolted the door from inside. When someone knocked from outside the door, she did not raise any alarm due to threatenings given by Mintoo who was holding pistol in his hand which she saw on peeping through the window as they were frightened at that time. She did not make any telephone call to 100 number or local police. She denied the suggestion that she herself and her sister prosecutrix No.2 opened the door and went outside and sat in the TSR. The testimony of the witness is totally beyond comprehension as any person in panic or alarmed would immediately try to reach out to the police. She was inside her home while Mintoo was standing outside with the pistol. The normal reaction of any person would be to immediately inform the police regarding such a situation. However, the prosecutrix did not inform the police but rather opened the door and went outside FIR no. 571/96 PS Seema Puri 41/102 alongwith her sister prosecutrix No.2 and sat in the TSR. She has further stated that it was Mintoo who had dragged her holding her hand and pushed her and her sister in TSR. The TSR was parked in the gali at a walking distance of less than one minute. The width of gali is such that two maruti cars can easily pass simultaneously. They did not raise any alarm while being taken to TSR due to threatening by Mintoo to liquidate their family members in case they raised any alarm. At bus stand, which was five minutes walking distance from their house, TSR was stopped and Mintoo called one person already standing there by the name of Gulloo. In her statement u/s 161 Cr.P.C. Ex.PW1/DA1 she had disclosed the name of Gulloo and not Billoo who was called by Mintoo at bus stand Seemapuri. She was confronted with statement Ex.PW1/DA1 where it is stated that when they reached Seema Puri bus stand, Billoo was standing there and Billoo also joined them and sat in the TSR. She volunteered that at that time Billoo was already sitting in the TSR. She denied the suggestion that Gulloo was not there at the bus stop nor he accompanied them in the TSR. She has further stated that in her statement Ex.PW1/DA1 to the police she stated that Mintoo, Billoo, Gulloo pulled her out of the FIR no. 571/96 PS Seema Puri 42/102 TSR and took her towards the bushes and then all the three raped her. She was confronted with statement Ex.PW1/DA1 wherein it is not so recorded. She has further stated that she had stated before the police in her statement Ex.PW1/DA1 that Billoo and Gulloo had taken her from the TSR and raped her and Billoo came back and sent Mintoo who then raped her. She was confronted with her statement Ex.PW1/DA1 wherein it was not so recorded. On being asked if she had stated to the police that Gulloo and Mintoo then took her younger sister out of the TSR and raped her as well, she stated that she had so stated but she had taken the name of Gulloo and Billoo and not of Mintoo. She was confronted with her statement Ex.PW1/DA1 wherein it was not so recorded.
24. A specific question was put to her that in her statement before the court she had stated that Gulloo and Billoo had raped her sister but in her statement u/s 164 Cr.P.C. before the Magistrate she stated that Mintoo and Gulloo had raped her sister, which of her two statement is correct? She replied that whatever she stated before the court naming Gulloo and Billoo as accused who raped her sister was correct. Even before Ld. M.M. she had taken the name of Gulloo and Billoo. She was not read over her statement FIR no. 571/96 PS Seema Puri 43/102 recorded by Ld. Magistrate before obtaining her signature thereon so there is no question of her reading the statement before putting her signature. She further stated that it was her sister who can categorically state that whether she was raped by Gulloo and Billoo or not, who had taken her from TSR. She further stated that her sister was not raped within her view as they were at some distance and were not visible to her. She further stated that she did not point to the police that place where TSR was stopped and rape was committed. She volunteered that she was not acquainted with that area.
25. In her cross examination prosecutrix No.1 admitted that she used to make notes as per instructions of stitching class teacher in her diary and files. She denied the suggestion that during those days she was being known by the name of Nisha. She denied the suggestion that in code words kept by Billoo she was being called as Nisha and Billoo was called as Bunty. The diary produced on behalf of the defence was shown to the witness and after seeing writing appearing on 19.2.1996 to 29.2.1996 witness identified her writing thereon. She stated that writing appearing on page of 1.3.1996 is of her brother Rajender Pal Singh. The writings in the FIR no. 571/96 PS Seema Puri 44/102 diary were collectively exhibited as Ex.PW1/DA2. She denied the suggestion that Nisha and Bunty written on first page of diary with year 1996 was written in her hand. She denied the suggestion that writing appearing on page of 21.9.1996 is in her hand. She denied the suggestion that she had mentioned on this page that on 21.9.1996 left home and on 24.9.1996 went to the house of Aunti and on 24.9.96 went to work. She denied the suggestion that when she went to Bombay she had taken all the certificates including age documents and photographs so that in case anyone inquired about her age, she could show the same to him.
26. Prosecutrix No.1 also stated that she and her sister had not gone to Gurudwara Shish Ganj prior to commission of rape but they were taken after commission of rape to Gurudwara Shish Ganj. They were made to sit at Nishan Sahib at Gurudwara Shish Ganj where other people were sleeping at a distance. No police gypsy was parked outside the gate of Gurudwara at that time. She was not aware whether there was kotwali just near the Gurudwara. She did not know whether any lunger was being held at that night. She denied the suggestion that she herself and her sister had lunger at Gurudwara. They did not raise any alarm at that time as accused FIR no. 571/96 PS Seema Puri 45/102 persons were with them and had threatened them not to raise alarm. She further stated that where they were sitting in gurudwara, there were very few people public persons. She denied the suggestion that Dharmender was already in the gurudwara or that both the sisters voluntarily went there on their own and met him upstairs in the main temple. She stated that no other person / devotees were sitting at that place where they were sitting. She further stated that from Gurudwara they were taken to Kalindi Kunj Park. She stated that she did not see any police booth near the main gate of Kalindi Kunj Park. She denied the suggestion that they had not gone to Kalindi Kunj Park in the morning at 78 A.M. as Kalindi Kunj Park is opened at 10 A.M. She had told the name of Billoo besides naming Mintoo, Gulloo and Jagjit as the persons who had gone with them to Kalindi Kunj in her statement before the Magistrate u/s 164 Cr.P.C. She was confronted with the same, where the name of Billoo is not mentioned. They stayed there till about noon but she did not remember the exact time whether it was upto 12 noon or 1 P.M. She was not aware whether public persons visited that park during the period when they stayed there since they were kept confined in a room in the park. It is totally unbelievable that they FIR no. 571/96 PS Seema Puri 46/102 did not come across any public person though the park is thronged by visitors. For the first time in her cross examination prosecutrix No.1 has stated that they were confined in a room. However, there is no site plan on record to support her version. There was no canteen in the park. She denied the suggestion that there was a canteen in the park or that there was no separate room in the park in which one can be kept. They did not raise any alarm at Kalindi Kunj to invite the attention of the public visiting there. She volunteered that since they were already under threatening of the accused persons and they were not left alone. Kalindi Kunj was at a considerable distance from Gurudwara Shish Ganj but she could not state how much time was taken by the TSR in reaching there. She stated that it was more than half an hour. The traffic was in motion when they were going to Kalindi Kunj. She did not remember whether the TSR stopped at any red light. They did not raise any alarm on the way in TSR either to invite the attention of public or traffic police. She volunteered that they were already afraid. She did not know if there was a telephone booth for making local calls at Kalindi Kunj. It has been contended by the defence counsel that from the statement of prosecutrix No.1 it is evident FIR no. 571/96 PS Seema Puri 47/102 that prosecutrix No.1 & 2 accompanied accused Dharmender out of their own volition. They came across several people while travelling but they never raised any shouts or alarm to tell the people that under duress or threat they were being taken by accused. She denied the suggestion that in her presence Billoo had made a telephone call to Hussan Lal Sharma and he also made a telephone call at her home which was attended by her younger sister. She denied the suggestion that in her presence Billoo had told Hussan Lal Sharma on telephone that the two sisters were at Kalindi Kunj Park with him and that Hussan Lal Sharma should inform her family members in this regard.
27. On behalf of the prosecution, Hussan Lal Sharma has been examined as PW7. He is a prosecution witness and he has categorically stated that he received a telephone call from Kalandi Kunj from one Billoo on his land line and he informed him that two daughters of Swaran Singh were with him and he requested him to give the said information to their parents and he passed on the information to the son of Swaran Singh. Therefore, the prosecution witnesses are contradicting one another.
28. Prosecutrix No.1 has further stated that they reached at FIR no. 571/96 PS Seema Puri 48/102 Bombay on 24.9.96. Gullu, Bobby and Billoo all accompanied them to Mumbai Station. She admitted that she had not raised any alarm till they reached Mumbai Station despite there being a lot of crowd at the railway station and in the train. She volunteered that at Nizamuddin Railway Station, accused persons threatened them, at the train they were not in their senses till night and only for the period they had meals they were in senses at which time they did not raise any alarm, thereafter they fell asleep again and they were woken up at the time of getting out of train and at Mumbai Railway Station they were still under the feeling of threat extended by accused Jagjit Singh earlier at Delhi and there being other accused persons present with them, so they did not raise any alarm.
29. She further stated in her cross examination that at the time of leaving the house of Kusum Pandey they had only 5/10 rupees with them. She did not remember after how much time whether after 1,2 or 4 hours Billoo came back to the railway station but he came after sufficient time. At the back of Billoo they were not alone as Billoo had made them sit in the waiting room leaving 2 3 boys as guard there. She did not disclose to those boys that Billoo had kidnapped them as Billoo had asked those boys to keep a check on FIR no. 571/96 PS Seema Puri 49/102 them and to report him on telephone if they made a move. She did not report regarding their plight to the railway officials or to the passenger sitting in the waiting room or to railway police at the railway station as boys kept by Billoo were there. She did not remember at what time the train started from the Bombay Railway Station for Delhi whether it was noon time or evening time or night time on 30.9.96. Neeraj and Billoo had accompanied them in the train from Bombay Railway Station. They did not go to Meerut and came to New Delhi Railway Station. She did not state in her statement u/s 161 Cr.P.C. to the police that from Bombay they had gone directly to Meerut. She was confronted with statement Ex.PW1/DA1 wherein it was recorded that Billoo and Neeraj took them to Meerut from Bombay. PW1 prosecutrix No.1 also stated that she had stated to the police in her statement recorded u/s 161 Cr.P.C. that when they came outside Delhi Railway Station, Mintoo slapped her and threatened why they had returned back to Delhi and later on Billoo, Neeraj, Mintoo and Gulloo they all took them to Meerut. She was confronted with her statement Ex.PW1/DA1 where it was not so recorded. She remained in Jail Chungi room from 3.10.96 to 21.10.96. Billoo used to remain FIR no. 571/96 PS Seema Puri 50/102 present outside the room alongwith 3 /4 boys and sometimes Mintoo used to visit and remain there. That room was attached with bath room and latrine. There was no bath room and latrine attached in room at village Jai. She used to go to attend natural call in the wash room outside that room. Her sister was sent with Neeraj at an unknown place. She had come to Delhi without her sister on 21.10.96. On 22.10.1996, again she had appeared in the court. She did not tell to the Magistrate that accused persons had sent her sister with Neeraj as she did not get an opportunity. Police had come to the court on 22.10.96, again said police had not come to the court on 22.10.1996 and Magistrate did not record her statement and she was sent out of the court. She was taken to the house of Munshi of Mr. Mongia Advocate and remained there upto 24.10.96. On 24.10.96, she was produced before the Magistrate. She had not stated to Magistrate that her sister had been sent with Neeraj. She volunteered that she did not state to Magistrate as Jagjit had threatened her to make a statement before the court that she and her sister had left the house of their own and she had to make a statement that she wanted to marry Billoo and she was not to make any other statement. She stated in her statement before the FIR no. 571/96 PS Seema Puri 51/102 police u/s 161 Cr.P.C. that she was threatened by Jagjit to make statement before the court that she and her sister had left the house of their own and she had made a statement that she wanted to marry Billoo and she was not to make any other statement. She was confronted with statement Ex.PW1/DA1 wherein it was not so recorded. She did not know if police booked her for an offence for selling her sister. She denied the suggestion that she was produced as an accused before the court on 25.10.96.
30. Prosecutrix No.1, denied the suggestion that she and her sister had left the house voluntarily of their own accord and had gone to Mumbai with Billoo and she married Billoo in a gurudwara in Mumbai. She denied the suggestion that Jagjit Singh, Gullu, Bobby and Mintoo had no connection with her. She admitted that Jagjit had two shops at the gurudwara where he was running a hotel. She did not know if those shops were on rent. She did not know that those shops belonged to gurudwara. She did not know any Preetam Singh friend of her father or that he was the president of the gurudwara. She did not know if her father was the secretary in the gurudwara but he used to participate in the gurudwara affairs. She did not know if her father was inimical to Jagjit Singh FIR no. 571/96 PS Seema Puri 52/102 as he wanted to get two shops of gurudwara vacated from him and on that account there were altercations, number of times. She volunteered that Jagjit Singh had told her that he was inimical to her father because of which he was taking the revenge. She had stated in her statement before the police that Jagjit Singh had told her that he was inimical to her father because of which he was taking the revenge. She was confronted with statement Ex.PW1/DA1 where it was not so recorded. She had no knowledge that there was some quarrel between both the parties and kalandara u/s 107/150 Cr.P.C. was filed against both the parties. She denied the suggestion that due to previous enmity between her father and accused persons, she falsely implicated the accused persons in this case. She negated the suggestion that she herself and her sister prosecutrix No.2 called Dharmender to go to Bombay alongwith them. She negated the suggestion that she married Dharmender at Bombay and thereafter she alongwith her sister prosecutrix No.2 started working in beer bars and earned money.
31. Another material witness who is as important as prosecutrix No.1 is her sister prosecutrix No.2, who has been examined as PW2 and it is crucial to analyze her testimony in detail to find out FIR no. 571/96 PS Seema Puri 53/102 if she is corroborating prosecutrix No.1 in material particulars. PW2 has stated that in the year 1996, her father namely Late Sh. Sardar Swaran Singh was the Chairman of Gurudwara Prabandhak Committee Seemapuri. At that time Jagjit, Preetam Singh, Mintoo, Gullu, Bobby, Mohini Devi, Rita and Bobby (girl) were from the opposite side. Whenever any of them used to meet them, when she used to go to school they used to ask her to tell her father to resign from the post of Chairman and used to threaten her otherwise they would kidnap her and kill all the members of her family. On 1.9.1996, her father went to Jammu and Kashmir on election duty. On 21.9.1996, a telephone call was received at their house which was attended by her sister prosecutrix No.1. She put the receiver on the table and went towards the balcony to see something and returned back but without talking to her again attended the phone and conversed for some time. She was nervous. After some time she handed over the receiver to her and when she asked as to who was calling, it was replied that he was Mintoo. He told her that he had explained everything to her sister and that she had to accompany her sister and in case she did not adhere to his advise, he would kill all the members of her family and also that he had FIR no. 571/96 PS Seema Puri 54/102 placed his persons outside her house. He further threatened to kidnap her and that she should not tell anything to anyone. At that time her mother was not at the house. She became nervous and her sister told her not to worry and not to raise a cry as the accused had threatened to eliminate the members of her family. After some time her mother returned back. She was not feeling well and therefore, she took the food and medicine and went to sleep. Out of fear they did not tell anything. They could not sleep. At about 1/1.15 A.M., they heard a knock at the door and when they saw from the balcony, they found accused Billoo and Mintoo standing down stairs and they asked them to come out. Mintoo was having a revolver. He again threatened that if they did not open the door, they would break the door and kidnap them and would kill the other members of her family. Her sister opened the door out of fear and as soon as she opened the door, she was pulled out by her hand by the accused. They also asked her to come out and on her refusal, pointed the revolver upon her and threatened. Then she was also dragged out of the house by her hand. They dragged both of them outside the street where two TSRs were standing. Jagjit was standing outside one of the TSR in which 23 other boys were FIR no. 571/96 PS Seema Puri 55/102 already sitting. They were forced to sit in other auto by Mintoo and Billoo and they also sat in the same auto. The auto was taken to bus stop Seemapuri where one boy was standing who was addressed as Gulloo by Mintoo. The auto was driven for about 15/20 minutes and was stopped at an isolated place. Billoo and Gulloo took her sister inside the jungle. After some time, Billoo came back and Mintoo handed over the pistol to him. He asked Mintoo to go where he had taken her sister. This is in contradiction to the statement of PW1 prosecutrix No.1 who stated that Mintoo, Billoo and Gulloo pulled her out of the TSR and took her towards the bushes. PW2 has further stated that after some time her sister was brought back by Mintoo and Gulloo and then she was taken inside the jungle by Billoo and Gullu. This is again in contradiction to the statement of PW1 prosecutrix No.1 who stated that Gulloo and Mintoo took her younger sister out of TSR and raped her as well. Though PW2 prosecutrix No.2 is naming Billoo as the other person besides Gulloo who took her inside the jungle. PW2 has further stated that when she raised a cry, Billoo gagged her mouth with his hand and threatened to kill her family members if she raised an alarm. Thereafter Gulloo committed rape FIR no. 571/96 PS Seema Puri 56/102 upon her. They stayed in the Gurudwara during the night and in the morning they both were taken to Kalindi Kunj by Mintoo, Billoo, Jagjit and Gulloo in an auto. From there they were taken to Nizamuddin Railway Station in the afternoon where one boy was already standing who was being addressed as Bobby. Jagjit and Mintoo brought tickets and asked them to accompany Bobby and Billoo to Bombay and threatened that in case they tried to return back or did not act on the directions their family members would be killed. PW1 stated that they were accompanied by Bobby, Billoo and Gulloo to Bombay whereas PW2 has stated that only Bobby and Billoo accompanied them to Bombay. Thereafter the above said persons forced them to sit in the train. She was hungry and she asked Billoo for food in the train and thereafter Bobby told her that she would not be given anything to eat and eatable items would be given at Mathura and Gwalior but after sometime he brought tea for them. Thereafter they fell asleep. After Gwalior station she was woken up and food was given to her and again she fell asleep. She was woken up by Bobby at Bombay Railway Station and both Bobby and Billoo took them to Khar Station in local train and Billoo telephoned some one from there and after FIR no. 571/96 PS Seema Puri 57/102 some time 23 girls reached there and one girl was called as Lilly by Billoo. They were asked to go alongwith above said girls but they refused. Bobby threatened them that if they did not accompany the above girls he would get her family members killed and both the sisters were forced to accompany above said girls. On the way, they asked Lilly as to where they were being taken and she told that they were being taken to one Kusum Pandey. They reached at the place where Kusum Pandey was found and other 10 / 12 girls were also present there. Kusum Pandey gave some clothes to change. In the evening time, they were taken to beer bar alongwith Lilly. For 23 days they were taken to beer bar. She has also stated that on 29.9.96 Kusum Pandey called 3 / 4 boys at her house and Kusum Pandey told them to have sex with those boys but they refused. Then Kusum Pandey told them that she had purchased both of them from Bobby and Billoo and they would have to do whatever she directed them to do and threatened them that she would complain about them to Jagjit to get their family members finished but again they refused to do sex with those boys. Again Kusum Pandey forced them to do the same. That night they could not sleep and waited for other persons to sleep and when all FIR no. 571/96 PS Seema Puri 58/102 persons slept she and her sister escaped from that place and reached at Bombay Railway Station. Though prosecutrix No.1 has stated that on 29.9.1996 she overheard Kusum Pandey talking to someone regarding their sale. She got disturbed on hearing the same and fled away from her house during the night.
32. PW2, prosecutrix No.2 has further stated that Billoo was already present there. He met them and told them why they had escaped from that place and in case they would go back to Delhi, Jagjit would get their whole family finished. They requested Billoo to take them to Delhi then Billoo told them that in case he took them back to Delhi Jagjit would kill them alongwith him. They again requested Billoo to take them to Delhi upon which he said that he was not having money to take them to Delhi and he told them that he had a friend namely Neeraj residing at Andheri and he would get money from him. Billoo then made them sit in waiting room and asked his companion to keep a watch upon them and that they should not talk to anyone and then he left. After a long time he came back alongwith a boy namely Neeraj. Thereafter Billoo and Neeraj brought them to Delhi by train and at New Delhi Railway Station, Jagjit and Mintoo were already standing. On FIR no. 571/96 PS Seema Puri 59/102 seeing them, Mintoo glared at them and threatened them and said that he had warned them not to return back to Delhi or else he would finish all the members of their family and slapped her sister. From there Jagjit, Mintoo, Billoo and Neeraj took them to Meerut by train and kept them in a village Gei. On 3.10.96, Jagjit, Mintoo and Billoo forcibly sent her alongwith Neeraj and his mother at their residence at Meerut Azad Road and kept her sister with Billoo. Bimla mother of Neeraj called an advocate and forced her to sign on some documents and she was then told that she had been married to Neeraj and Bimla threatened her that in case she talked to anyone and anything about the marriage and signature on documents she would get her family members finished by Jagjit. Bimla introduced her as her daughter in law in the locality and Neeraj used to make physical relationship with her against her wishes and when she protested, then he told her that he had purchased her from Mintoo and Billoo and he could do anything he wanted. Sometimes Mintoo and Gulloo also used to visit there and used to threaten her that in case she said anything to anyone then they would kill her family members. One day police from Police Station Meerut came to the house of Neeraj and took her and FIR no. 571/96 PS Seema Puri 60/102 Neeraj to police station and thereafter to Mahila Police Station. Bimla came there alongwith the above said Advocate and she told her that she should tell her age as 19 years and that she had voluntarily got married to Neeraj and threatened her that if she said anything against them she would complain to Jagjit and he would finish her family members. Thereafter they both were got released from the police station and taken to the house of Bimla. Thereafter Bimla took her and Neeraj to Hapur and police reached there alongwith her father. Police took her and Bimla to Delhi Police Station Seema Puri and Neeraj fled from there. At Police Station Seema Puri Bimla again threatened her that she should not tell to the police anything as to what had happened with her otherwise she would get all her family members finished through Jagjit. She was then produced before the court and then she was sent to Nirmal Chhaya. Police had not recorded her statement. From Nirmal Chhaya she was produced before the court and Mintoo and Jagjit threatened her by gestures and she was under
pressure and she could not depose the correct facts before the Magistrate who recorded her statement u/s 164 Cr.P.C. She was medically examined at GTB Hospital. She identified the accused FIR no. 571/96 PS Seema Puri 61/102 persons and stated that her date of birth was 15.12.1980.
33. It has been pointed out by the defence counsel that the statement of prosecutrix No.2 u/s 164 Cr.P.C. is very relevant as she has made many improvements and her testimony before the court is not, at all, consistent with her statement u/s 164 Cr.P.C. given before the Magistrate. The statement u/s 164 Cr.P.C. Ex.PW2/A is, accordingly, reproduced here under: "My father was elected Chairman of the local Gurudwara at Seema Puri and he was opposed in the Gurudwara Election by so many persons. Jagjit, Billoo, Chacha Pritam, Mintoo and Bobby and his mother and Km. Reeta used to threat us, that in case if they would not withdraw from the Gurudwara election, we would be kidnapped. After the elections, my father was sent to Kashmir for assembly elections. In the meantime, Billoo made a telephone call on 16/17.9.96 at about 10.30 P.M. and threatened them that in case myself and my sister (prosecutrix No.1) would not accompany him, our family members would be killed and fixed 1 A.M. at the outskirts of gali on 17.9.96. I was apprehensive at the order of a boy and in order to avoid any mishappening, I alongwith my sister (prosecutrix No.1) came out of our house, because of threats of Mintoo and found Mintoo and four other boys in two threewheelers there. He forced us to sit in the three wheeler and were taken to FIR no. 571/96 PS Seema Puri 62/102 Shish Ganj Gurudwara, Delhi. We stayed there in the night. In the morning, Billoo took me and my sister alongwith Mintoo to Kalindi Kunj Park. Thereafter, Mintoo bought tickets and we boarded the train and got down at Gwalior, while we had took got down at Mathura. From Gwalior, we boarded another train to Bombay. Myself, my sister and Billoo reached Bombay while Mintoo was left at Delhi.
Billoo took us to the house of one lady namely Kusum Pandey who used to supply girls and we were forcibly stayed at the house of Kusum at Tanda for about five days and one day we sneaked to the house of Neeraj at Andheri Bombay. In the meantime Billoo reached there and threatened Neeraj that if he would not help him, he would be killed. On that account, Neeraj took myself and my sister to Delhi by train and on reaching Delhi on 24.10.96, we went to Meerut and stayed at the house of Neeraj at village Gei. Billoo was with us. Neeraj had told the entire story to his mother who told him that they should not take the risk and one Shamshad, friend of Neeraj helped Neeraj to take a room on rent at Jail Chungi. Billoo kept my sister with him and turned me out of said room. I accompanied Neeraj at his residence at Azad Road where I married Neeraj at Azad Road temple and lived and cohabited with him as his wife. There was some quarrel with the landlord and FIR no. 571/96 PS Seema Puri 63/102 we vacated the room and took another room on rent at Diggi. We stayed there for 3 / 4 days and on 30.10.96, we visited Hapur to see the relative of father of Neeraj and from where we were arrested by Delhi Police and taken to Delhi on 30.10.96 at about 5.30 P.M. I want to stay with my parents, until I became major and thereafter, with Neeraj. Whatever, is done by accused, Neeraj was with my consent."
34. In her cross examination PW2, prosecutrix No.2 has stated that in her statement Ex.PW2/A she had stated that on 21.9.96 a telephone call was received at their house which was attended by her sister prosecutrix No.1 and that she put the receiver on the table and went towards balcony to see something and returned back but without talking to her again attended the phone and conversed for some time and that she was nervous and that after some time she handed over the receiver to her and when she asked who was calling it was replied that he was Mintoo. She was confronted with her statement Ex.PW2/A (statement u/s 164 Cr.P.C.) where it was not so recorded. She volunteered that she did not recollect whether it was mentioned by the court or not. She had stated above facts in her statement u/s 161 Cr.P.C. Ex.PW2/DA. She was confronted with statement Ex.PW2/DA where these facts were not mentioned.
FIR no. 571/96 PS Seema Puri 64/102 She also testified that she had stated to the Ld. M.M. in her statement Ex.PW2/A that after sometime her mother came back and that she was not feeling well and therefore, she took the food and medicine and went to sleep and that out of fear they did not tell anything and that they could not sleep and that at about 1 / 1.15 A.M. they heard a knock at the door and when they saw from the balcony they found accused Billoo and Mintoo standing down stairs. They asked them to come out and that Mintoo was having a revolver and he again threatened that if they did not open the door, they would break the door and kidnap them and would kill other members of the family, but she did not know whether these facts were recorded by the Ld. M.M. or not. She was confronted with statement Ex.PW2/A where it was not so recorded. Same was her reply regarding her statement Ex.PW2/DA as well where these facts were not mentioned. She has further testified that she had stated in her statement before police as well as in her statement before the Ld. M.M. that the auto was taken to bus stop Seema Puri where one boy was standing who was addressed as Gulloo by Mintoo and he was told that they had brought them and he also sat on the driver seat and auto was driven for about 1520 minutes and FIR no. 571/96 PS Seema Puri 65/102 was stopped at an isolated place. Billoo and Gulloo took her sister inside the jungle. After sometime Billoo came back and Mintoo handed over a pistol to him. He asked Mintoo to go where he had taken her sister. After her sister was brought back by Mintoo and Gulloo, then she was taken inside the jungle by Billoo and Gulloo. Thereafter Gulloo tried to commit rape upon her and when she raised cry Billoo gagged her mouth with his hand and threatened to kill her family members if she raised an alarm and thereafter Gulloo committed rape upon her and she had stated the above said facts to the police but she did not know whether the same were recorded by the police or not and she had also stated these facts to the Ld. M.M. and Ld. M.M. had recorded her statement in precise manner after hearing her in detail. She was confronted with statement Ex.PW2/A and Ex.PW2/DA wherein it was not so recorded. PW2 has further stated that then they went to Gurudwara Shish Ganj. Billoo, Mintoo and Jagjit had taken them to Gurudwara. She denied the suggestion that she had not told the name of Jagjit in her statement before the Ld. M.M. She was confronted with statement Ex.PW2/A where the name of Jagjit was not recorded as the person who had taken them to Gurudwara. She FIR no. 571/96 PS Seema Puri 66/102 had stated in her statement Ex.PW2/A and Ex.PW2/DA that they were threatened by Jagjit that if they tried to inform anyone about the incident they would kill the members of her family. She was confronted with statement Ex.PW2/A and Ex.PW2/DA wherein it was not so recorded. She volunteered that she did not know whether these threats were recorded by the police or Ld.M.M. or not but she had stated the same. She had stated to the police in Ex.PW2/DA that they stayed in the Gurudwara in the night and in the morning they both were taken to Kalindi Kunj by Mintoo, Billoo, Jagjit and Gulloo in an auto. From there they were taken to Nizamuddin Railway Station in the afternoon. She was confronted with statement Ex.PW2/DA wherein it was not so recorded. She had stated the names of Jagjit and Gulloo before the Ld. M.M. that they alongwith Mintoo and Billoo took them to Kalindi Kunj and thereafter to Nizamuddin Railway Station. She was confronted with statement Ex.PW2/A wherein the names of Jagjit and Gulloo were not recorded. She further testified that she had stated to the police that when they were taken to Nizamuddin Railway Station in the afternoon one boy was already standing there who was being addressed as Bobby and Jagjit and Mintoo went away and returned FIR no. 571/96 PS Seema Puri 67/102 back with the tickets and handed over to them and asked them to accompany Bobby and Billoo to Bombay and threatened that in case they tried to return back or did not act on the direction of both of them their family members would be killed. She was confronted with her statement Ex.PW2/A wherein it was not so recorded. She further testified that she had stated before the police as well as before the Ld. M.M. that at Bombay Railway Station she was woken up by Bobby and both Bobby and Billoo took them to Khar Station in local train and Billoo telephoned some one from there and after sometime 2 3 girls reached there and one girl was called as Lilly by Billoo and they both were asked to go with the above said girls but they refused but Bobby threatened them again that if they did not accompany the above girls he would get her family members killed and they both sisters were forced to accompany the above said girls and on the way they asked Lilly as to where they were being taken and she told them that they were being taken to one Kusum Pandey. She was confronted with statement Ex.PW2/A and Ex.PW2/DA wherein it was not so recorded. She had not stated in her statement before the police and also before the Ld.M.M. that on 29.9.96 Kusum Pandey called 23 boys at her FIR no. 571/96 PS Seema Puri 68/102 house and Kusum Pandey told them to have sex with those boys but she refused. She had stated in her statement before the police Kusum Pandey told them that she had purchased both of them from Bobby and Billoo and they had to do whatever she directed and she threatened them that they would complaint about them to Jagjit to get their family members finished but again they refused to do sex with those boys and again Kusum Pandey forced them to do the same. She was confronted with statement Ex.PW2/DA wherein it was not so recorded. PW2 further deposed that had stated before the police that Billoo and Neeraj brought them to Delhi by train and at New Delhi Railway Station Jagjit and Mintoo were already standing and on seeing them Mintoo glared them and threatened them and said that he had warned them not to return back to Delhi or that he would finish her family members and slapped her sister and from there Jagjit, Mintoo, Billoo and Neeraj took them to Meerut by train and kept them in village Gei. She was confronted with her statement Ex.PW2/DA wherein it was not so recorded. She had not stated before the police that when she was deserted in Bombay she was not having money with her to go back to her home, Neeraj stated that he would keep her with him after FIR no. 571/96 PS Seema Puri 69/102 marrying her and after that he alongwith prosecutrix No.1 and Billoo took her to Gei (Meerut). Confronted with statement Ex.PW2/DA wherein it was not so recorded. She had stated before the police that on 3.10.96 Jagjit, Mintoo and Billoo forcibly sent her alongwith Neeraj and his mother at their residence at Meerut, Azadpur and kept her sister with Billoo. She was confronted with her statement Ex.PW2/DA wherein it was not so recorded. She averred that she had stated in her statement before the Ld. M.M.that Bimla mother of Neeraj called an advocate and forced her to sign some documents and she was then told that she had been married with Neeraj. She was confronted with statement Ex.PW2/A wherein it was not so recorded. She also testified that she had stated to the police in her statement but did not state before the Ld. M.M. in her statement Ex.PW2/A that Bimla threatened her that in case she talked to anyone and anything about the marriage and signature on the documents, she would get her family members finished by Jagjit. She was confronted with statement Ex.PW2/DA wherein it was not so recorded. She had stated to the police that when she protested then Neeraj told her that he had purchased her from Mintoo and Billoo and he could do anything he wanted. She FIR no. 571/96 PS Seema Puri 70/102 was confronted with statement Ex.PW2/DA wherein it was not so mentioned. She deposed that she had not stated in her statement Ex.PW2/A that Neeraj used to make physical relations with her against her wishes. She volunteered that as she was threatened by Bimla that she should not speak against Neeraj otherwise she would get her family members eliminated through accused Jagjit, Mintoo, Gulloo and Bobby. She had stated to Ld M.M. in her statement Ex.PW2/A that she married with Neeraj at Azad Road Temple and lived and cohabited with him as his wife. She volunteered that as she was instructed by Bimla to depose in this manner and she was threatened by her. She denied the suggestion that she had made deliberate improvements in her statement before the court during her examination in chief then to her statement Ex.PW2/A and Ex.PW2/DA. She further denied the suggestion that she had made these improvements at the instance of her family members for satisfaction of their grudge against accused Jagjit Singh due to rivalry arising out of Gurudwara Prabhandak Committee politics. She did not know whether any advocate was engaged for this case. She volunteered that her father might have engaged some lawyer. She denied the suggestion that she was FIR no. 571/96 PS Seema Puri 71/102 tutored by their said advocate before appearing in the court in the witness box at the time of all her statements recorded during trial. She knew Paramjeet Singh Advocate. She admitted that he had been appearing with her in the present case. She did not know whether he was also one of the members of Gurudwara Prabhandak Committee of Gurudwara Singh Sabha. She further denied the suggestion that they had engaged Mr. Paramjeet Singh Advocate as their lawyer as he was also bearing grudge due to Gurudwara politics against accused Jagjit Singh. She further testified that she did not raise alarm during her visits to Bombay, during her train journey, at Seema Puri bus stand, at Shish Ganj Gurudwara, Kalindi Kunj, Nizamuddin Railway Station, different bus stands of Meerut etc. She volunteered that she could not raise alarm as she was always surrounded by the accused persons and there was no occasion to raise alarm against the accused persons. She admitted that only she and Neeraj were taken by police official of Meerut when she was sent to Mahila Police Station later. She could not tell the police officials of police station Meerut and Mahila Police Station about the atrocities suffered by her. She volunteered that she was threatened by Bimla not to disclose anything to the police.
FIR no. 571/96 PS Seema Puri 72/102 Bimla and they did not reach police station Meerut together. She volunteered that she had followed them. She reached immediately after their reaching at police station Meerut.
35. In her cross examination she denied the suggestion that she was aged about 19 years on the date of incident. She volunteered that she was about 15 15 1/2 years old. She denied the suggestion that she was not aged about 15 15 1/2 years at the time of incident. She further denied the suggestion that she did not and could not raise alarm at any point of time as she had gone with Neeraj and Dharmender voluntarily of her free will and wish. PW2 has also stated that she and her sister were alone when they ran away from the house of Kusum Pandey and reached railway station. They did not raise any alarm or told anybody about the atrocities suffered by them during the period they ran away from the house of Kusum Pandey till the time they reached at railway station. She also stated that she had stated to the Ld. M.M. in her statement Ex.PW2/A that she wanted to go with her parents at that time and after attaining majority she would join Neeraj.
36. It has been submitted by Ld. Defence Counsel that in the present case prosecutrix No.1 & 2 voluntarily left with accused FIR no. 571/96 PS Seema Puri 73/102 Dharmender without there being any inducement etc. As a matter of fact prosecutrix No.1 left with Dharmender while prosecutrix No.2 herself accompanied them as she was keen to see her boy friend Neeraj. In response to the above act, later on prosecutrix No.1 filed an application alongwith an affidavit through her counsel Mr. Shamim Akhtar attested by Mr. Udaivir Singh, Oath Commissioner. Police was directed by the then Ld. M.M. to record the statements. On 24.10.96, the police moved an application seeking formal arrest of accused Dharmender and prosecutrix No.1 for recovery of prosecutrix No.2. Later on prosecutrix No.1 who was a coaccused was got discharged by the police. The conduct of prosecutrix No.1 & 2 of not raising alarm at any of the places which were allegedly visited by them, goes to show that they had gone to all the places voluntarily. Moreover, before recording of statement of prosecutrix No.1, she had remained with her parents and as such, her tutoring cannot be ruled out. Prosecution has miserably failed to prove its case beyond all reasonable doubts.
37. Per contra, on behalf of the prosecution it has been submitted that the prosecution has proved the commission of offence by the accused persons beyond any shadow of doubt. The accused persons FIR no. 571/96 PS Seema Puri 74/102 committed heinous offence with common intention and chain of events clearly shows that all of them were involved in the commission of offences at one stage or the other. The offences start from kidnapping of prosecutrix No.1& 2 during the intervening night of 21/22.9.96. From the testimony of prosecutrix No.1 & 2, it is crystal clear that both the witnesses were kidnapped by accused Mintoo, Billoo and Jagjit from their house during the midnight intervening 21/22.9.96 by putting them under immediate threat of being killed and elimination of their entire family and Gulloo joined joined them from Seema Puri bus stand. It is also stated that prosecutrix No.2 was less than 16 years of age on the date of incident and her date of birth is 15.12.1980 which is proved through Ex.PW17/D. Accused persons in their defence, have failed to bring anything on record disproving her date of birth. Bony age xray of prosecutrix No.2 was also done on 18.12.96 which shows that she was between 16 to 18 years. That she was a minor on 21/22.9.96 and was less than 16 years on the date of incident. It has also been submitted that in their cross examination PW1 and PW2 have given clarifications regarding not raising hue and cry which are natural and confirm involvement of the accused persons FIR no. 571/96 PS Seema Puri 75/102 in offence of kidnapping as they were under continuous threat from the accused persons. Regarding not giving detailed statements u/s 161 and 164 Cr.P.C., the said witnesses have explained that they were asked to state briefly and they were under threat and could not tell the full details. It is also stated that the plea of alibi has been taken by accused Mintoo @ Daljeet stating that he was admitted in the hospital on the date of incident i.e. on 21.9.96 and was not present ot the spot placing reliance on his discharge summary Ex.PW14/DA, gate pass Ex.PW14/DB and other documents Ex.PW14/DC to Ex.PW14/DF, however, the same is not available to him as Mintoo was discharged from the hospital on 21.9.96 during day time and in general practice the patients are discharged from the hospital before 12 O'Clock noon. In the present case the time of incident is night time of 21.9.96 and morning hours of 22.9.96 and all the documents relied by the accused are of no help to him as he was not admitted in the hospital at the time of incident. He was discharged from the hospital about 1012 hours prior to the incident. It has also not been proved on record that the accused was unable to walk or perform sexual intercourse after his discharge and so plea of alibi FIR no. 571/96 PS Seema Puri 76/102 is of no use to him.
38. It has further been submitted by Ld. Prosecutor that minor contradictions are bound to happen after lapse of reasonable time. In the present case deposition was recorded after about 10 years of the incident. Both the witnesses have adhered to the story of prosecution and have given rather more explanations which cannot be termed as improvements. It is established law that the statement made and recorded u/s 161 and 164 of Cr.P.C. are not substantive pieces of evidence, but can be used to contradict the witnesses. Real testimony is deposition before trial court, which is substantive evidence. From the testimony of PW1 and PW2 it is clear that both of them were kidnapped by accused persons namely Mintoo, Billoo, Jagjit and Gulloo and the offence u/s 363 IPC stands proved against the accused persons. It is also proved that the prosecutrix No.2 was 15 years and 9 months old and was a minor being less than 18 years of age. Prosecutrix No.2 has categorically deposed that she was forced to go from one place to another by the accused persons and she was raped and forced into illicit intercourse and her version has been endorsed by prosecutrix No.1. From the testimony of PW2 and PW1 it is FIR no. 571/96 PS Seema Puri 77/102 crystal clear that prosecutrix No.2 was a minor on the date of incident and was forced into illicit intercourse by the accused persons namely Mintoo, Jagjit, Billoo and Gulloo and Neeraj (now dead) and the offence u/s 366 A IPC stands proved against the accused persons.
39. Ld. Addl. PP has also contended that PW2 in her testimony has stated that accused forcibly took her and her sister to Meerut and kept them in village Gei; that on 3.10.1996, Jagjit, Billoo and Mintoo forcibly sent her with Neeraj (now dead) and his mother kept her confined at her house where Neeraj had sexual intercourse with her several times saying that he had purchased her from Mintoo and Billoo. Accused Bimla @ Shama Praveen used to introduce her to her neighbours as her daughter in law and also used to threaten her that in case she disclosed to anyone, then her family members may be killed. PW2 prosecutrix No.2 was rescued from custody of accused Bimla @ Shama Praveen by the police and therefore, offences u/s 368/372 IPC stands proved against the accused Bimla @ Shama Praveen, Mintoo, Billoo and Neeraj (now deceased).
40. It is further contented by Ld. Prosecutor that there are three FIR no. 571/96 PS Seema Puri 78/102 episodes of rape on PW1. Firstly gang raped immediately after kidnapping by Mintoo, Billoo and Gullu. Secondly at a house near Jail Chungi, Meerut by accused Mintoo and thirdly at the house of clerk of Advocate Mongia again by accused Mintoo. This witness has not stated anywhere that she had been a consenting party. In her statements u/s 161 and 164 Cr.P.C., the prosecutrix No.1 has supported the prosecution version and deposed as PW1 on the same lines. She explained that police did not record her statement u/s 161 Cr.P.C. as stated but was beaten and has stated that she has given true facts before the court. She has also given the explanation regarding application, affidavits etc. for recording her statement before Ld. M.M. The said application and affidavit were never written with her free will and consent but were got signed and written under threat from the accused persons. Prosecutrix No.2 has stated in her statement u/s 164 Cr.P.C. that whatever accused Neeraj did with her was with her consent but she had not given consent to accused Gulloo to rape her and prosecutrix No.2 was less than 16 years of age at the time of incident and her consent amounts to no consent in the eyes of law. Their testimony is supported by medical evidence on record.That in view of Section FIR no. 571/96 PS Seema Puri 79/102 114A of Indian Evidence Act, it can be presumed that prosecutrix have not consented for sexual intercourse and prosecution has, thus, proved the evidence of gang rape by accused Mintoo, Gulloo and Billoo and therefore, the accused persons deserves to be convicted.
41. It is also contented that plea of alibi has been taken by accused Balwinder Singh @ Bobby and Narender Singh @ Gulloo that they were not present at the time of incident as they worked in school doing repair work for fans. It is submitted that school is at a distance of less than 500 yards from the place of incident and that incident took place during night. It is also stated that accused Gulloo @ Narender Singh has examined DW3 showing that he was down with fever from 1.10.1996 to 5.10.1996 and the incident took place in night of 21/22.9.96, so plea of the accused Narender Singh @ Gulloo holds no ground.
42. Ld. Prosecutor has relied upon State of Punjab vs Gurmeet Singh, 1996 (1) RCR Cri. 533, wherein the court observed that minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature do not go to the root of the matter. The court not to get swayed away. If the FIR no. 571/96 PS Seema Puri 80/102 evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The evidence of the prosecutrix who complains of a rape or sexual molestation should not be viewed with doubt, disbelief or suspicion. Evidence of victim of sexual assault stands almost at par, with evidence of an injured witness and to an extent even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be good witness in the sense that she is least likely to shield the real culprit, evidence of victim of sexual offence is entitled to great weight. It was further held that even if investigating officer did not conduct the investigation properly or was negligent that cannot become a ground to discredit the testimony. Prosecutrix had no control over the Investigating Agency and negligence of Investigating Officer could not affect the credibility of the statement of prosecutrix. In the instant case the defence is taking the plea that due to Gurudwara politics the accused persons have been falsely implicated by the prosecutrix No.1 & 2 at the instance of their father. In the judgment above referred to, the court held that the defence version that father of FIR no. 571/96 PS Seema Puri 81/102 prosecutrix had lodged a false complaint due to enmity is not tenable. Even if there was some litigation, a father will not put forth his daughter to make wild allegations with a view to take revenge. It defies human probability. No father could stoop up so low as to bring forth a false charge of rape on his unmarried daughter with a view to take revenge.
43. It has been contended on behalf of the defence that the statement of PW1 Swaran Singh who died during the trial and was not produced subsequent to the summoning of additional accused cannot be read in evidence being incomplete. Ld. Addl. P.P. has conceded to this and has stated that it may be read only against accused Dharmender and Bimla who were facing trial when PW1 Swaran Singh was examined. He has also contended that kidnapping is an offence against guardianship; that there is sufficient evidence on record to suggest that prosecutrix No.2 was kidnapped from her lawful guardianship. He has relied upon the statement of PW1 Swaran Singh in respect of the same wherein PW1 Swaran Singh stated in his testimony that his daughter prosecutrix No.1 is aged about 17 years and other daughter prosecutrix No.2 is aged about 15 years. In his cross examination FIR no. 571/96 PS Seema Puri 82/102 he gave the date of birth of his daughter prosecutrix No.1 as 5.6.1976 and the other daughter prosecutrix No.2 was born in December, 1981, though he did not remember the exact date. It has been contended by him that since the defence has not put any suggestion to the witness that she was born prior to date given, no adverse inference can be drawn that she was a major. He has also pointed out that the testimony of DW1 Mr. Akhtar Shamim, Advocate who stated that on 22.10.96, prosecutrix No.1 approached him for filing an application for recording her statement u/s 164 Cr.P.C. and the testimony of DW7 Mr. Udaibir Singh (Oath Commissioner) who attested the affidavit, cannot be read in evidence as it was a privileged communication which could not have been disclosed. That the notary is also an advocate and it equally applied to him. As regards the fact that both the prosecutrix PW1 and PW2 were examined and cross examined prior to summoning of the additional accused and the same have been used for the purpose of contradicting/ confronting them. It has been contended by the prosecutor that it was a former statement under law as per section 157 of Evidence Act and could have been used only for the corroboration and not for FIR no. 571/96 PS Seema Puri 83/102 contradiction. He has also relied upon 2010(4) JCC 2581, Satpal Singh Vs State of Haryana, wherein the Apex Court of the country held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. An act of helplessness on the face of inevitable compulsion is not consent in law. It is not necessary that there should be actual use of force. A threat or use of force is sufficient. He has also relied upon 2010(3) JCC 1605, Ram Lal Bhargav @ Vasudev @ Gupta, wherein the court held that if a woman yields to violence and threat on the part of the accused and therefore being under fear of death or injury does not physically resist him. She cannot be said to be a consenting party to the act of the accused.
44. On behalf of the defence, it has been contended that the prosecution has not examined Mohd. Ishtia, Ram Avtar and Jaswinder Kaur, mother of the prosecutrix for the reason best known to the prosecution and presumption goes against the prosecution that the witnesses were not examined as they were not ready to support the false case of the prosecution.
FIR no. 571/96 PS Seema Puri 84/102
45. It is further contended on behalf of the defence that no site plan of any place of occurrence has been prepared by the prosecution which creates doubt about the prosecution case whether the alleged offences were committed at the various places including Delhi, Bombay, Meerut and Hapur. It is stated that it is well settled that site plan is an important piece of evidence and is not a mere formality in a criminal case rather site plan is branded as back bone of every criminal case. This is a document which identifies and proves the place of occurrence. I find force in the contention of the defence that preparation of site plan is not a mere formality but this is an essential feature in order to reach a firm conclusion by the court as to whether the offence was committed by accused. The fact that the site plan was not prepared is a serious infirmity in the prosecution case. I am supported in my view by 2005 Cr.L.J. 299, Vijay Singh vs State of M.P.
46. It is also contended that Delhi Police is also governed by Punjab Police Rules. The arrival and departure entry are mandatory as per the rules. Chapter XXII rule 22.49 deals with the matters to be entered in register No.II. Clause (c) of the same clearly specifies 'that the arrival and departure on duty at or from a FIR no. 571/96 PS Seema Puri 85/102 police station of all enrolled police officers or whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. In this case no departure or arrival entry has been proved. It is urged that it gives a severe dent to the prosecution case as there is no proof of movement of the police at various places and the entire investigation seems to be botched up.
47. Ld. Counel for the accused Dharmender has also contended that the prosecution has put forward a false story of escaping of accused Dharmender from police custody of Inspector Ram Niwas (PW8) on his way to Bombay. The accused Dharmender was acquitted in the escaping case by the court of Sh.S.K. Gautam, the then Ld M.M., Delhi, vide order dated 6.12.2007.
48. It is also contended that the defence witnesses are entitled to equal treatment like that of prosecution witnesses. The defence witnesses Mr. Akhtar Shamim Adv. has proved affidavit and the application of PW1 filed through him. DW2 Mr. Singh Raj Singh has proved the alibi of accused Balwinder Singh @ Bobby and FIR no. 571/96 PS Seema Puri 86/102 Narender Singh @ Bobby proving that some civil work was given to both of them. DW5 is the official of government school who proved payment of work to Balvinder Singh and Narender Singh by the school and his testimony is unchallenged. It is also stated that DW3 Dr. Rajeev Rohtagi has proved the medical certificate, blood test report and reference endorsement of Narender Singh which proved his alibi. DW7 Mr. Udaibir Singh, was Oath Commissioner who proved his attestation through the entry in the register and DW8 is the record clerk of GTB Hospital who has proved the admission of Narender Singh in the hospital on the intervening of 1.10.96 and 2.10.96 vide entry Ex.DW8/A and the OPD Card Ex.DW8/B. This witness has proved that on being referred by DW3 to GTB Hospital, Narender got himself admitted in GTB Hospital for continuation of treatment. I am fully in agreement with the contentions raised that prosecution and defence witnesses are to be put on the same pedestal and are to be given equal weightage. First it is the duty of the prosecution to prove its case beyond reasonable doubt.
49. However, the testimony of the police witnesses is quite shaky and is briddled with inconsistencies. PW13 H.C. Rajender Dhama, FIR no. 571/96 PS Seema Puri 87/102 PW15 Ms. Idris Begum and PW17 Inspector Anil Sharma have given contradictory statements. As per PW13 H.C . Rajender he was not a witness to the preparation of personal search memo of accused Bimla. He also stated that private vehicle was arranged by the I.O. and no lady police was taken. PW15 Ms. Idris Begum has destroyed the story of PW13 H.C. Rajender and has stated that signature of accused Bimla was taken on her personal search memo. Only she and IO had gone to Meerut in Government vehicle which is contradictory to the statement of PW13 H.C. Rajender. They left Delhi at 7.00 A.M. She was SPO of the area and she was duly informed a day in advance about the next day for going to Meerut. However, PW17 IO has contradicted the statement of PW13 and PW15. As per IO, PW17 Inspector Anil Sharma, PW15 Ms. Idris Begum did not accompany the police party to Meerut. She is not SPO. Statements of SI Ashok and SI Ram Niwas were not recorded by him. Secret information was received on the same day. Though PW15 Ms. Idris Begum stated that she was informed by one of the police official on the previous day in the evening for joining the police party next date in the morning. If the secret information was received on the same day, FIR no. 571/96 PS Seema Puri 88/102 there was no occasion to inform Ms. Idris Begum one day in advance. PW17 IO further stated that no arrival or departure entry at Police Station Meerut or Hapur was made. Nobody from Meerut / Hapur made witness to any document. No local police assistance was taken. No documents were collected from Mahila Police Station, SI Sapna Ghosh was not examined. No proof of ownership of Meerut house of Adesh Kumar was taken. No identity proof of Irfan's house was taken. Private vehicle was brought by his subordinate. Though PW15 Ms. Idris Begum stated that it was a government vehicle. He stated that accused Bimla was arrested at Hapur. Though PW13 stated that Bimla was formally arrested at Police Station Seemapuri. Therefore, there are several discrepancies regarding the manner in which the investigation was conducted and the police witnesses have given different versions and are not corroborating each other.
50. There are several inconsistencies in the statements of PW1 and PW2. In her statement PW1 stated that she peeped through the window and saw that Mintoo was standing with a pistol in his hand. Mintoo caught her hand and pulled her outside and he then asked her sister to come out and when she refused, he threatened FIR no. 571/96 PS Seema Puri 89/102 her and pulled her outside the house. Two TSRs were standing outside the gali. Jagjit was standing outside one of the TSR and Billoo was sitting in the other TSR. Mintoo pushed both of them in the TSR in which Billoo was sitting. The statement of PW2 is in contradiction to the statement of PW1 wherein she states that both of them saw from the balcony and found Billoo and Mintoo were standing downstairs though PW1 has categorically stated that Billoo was sitting in the TSR. PW2 has stated that both Billoo and Mintoo asked her to come out and on her refusal, pointed out the revolver upon her and threatened. They dragged both of them outside the streets where two TSRs were standing. They were forced to sit in other auto by Mintoo and Billoo and they also sat in the same auto. While PW2 has stated that Mintoo and Billoo both came to remove them from their parental home according to PW1 it was only Mintoo and Billoo kept sitting in the TSR.
51. PW1 has further stated that Mintoo , Billoo and Gulloo pulled her out of the TSR and took her towards the bushes and all three of them raped her. When she tried to raise a cry, Mintoo closed her mouth and put the pistol upon her. Thereafter they again made her to sit in the TSR. Gulloo and Mintoo then took her younger sister FIR no. 571/96 PS Seema Puri 90/102 out of the TSR and raped her as well. PW2, prosecutrix No.2 states that Billoo and Gulloo took her sister inside the jungle. She has not named Mintoo. Billoo came back and Mintoo handed over the pistol to him and Billoo asked Mintoo to go where he had taken her sister. After sometime her sister was brought back by Mintoo and Gulloo which means that pistol was not taken to the place where prosecutrix No.1 was raped. It was in possession of the person sitting in the TSR. First Mintoo was having pistol and then he handed it over to Billoo, therefore, the story put forward by prosecutrix No.1 that when she raised a cry, Mintoo closed her mouth and put the pistol her is falsified. PW2 has further stated that then she was taken inside the jungle by Billoo and Gulloo. Though PW1 stated that it was Gulloo and Mintoo who took her younger sister but PW2 stated that she was taken inside the jungle by Billoo and Gulloo. She has not named Mintoo. Then Gulloo tried to commit rape upon her and when she raised a cry Billoo gagged her mouth with his hand and threatened to kill her family members if she raised an alarm. Thereafter Gulloo committed rape upon her. She has not made any allegation against accused Mintoo. Though PW1 has categorically stated that her younger FIR no. 571/96 PS Seema Puri 91/102 sister was raped by Mintoo as well.
52. PW1 has stated that they were taken in the TSR to Nizamuddin Railway Station. There they were made to sit and then Jagjit went away. He returned back and handed over the tickets and they both sisters alongwith Billoo, Bobby and Gulloo were made to sit in the train. PW2 has introduced Bobby stating that one boy was also standing at the station which was being addressed as Bobby. Jagjit and Mintoo went away and returned back with the tickets and handed over to them and asked them to accompany Bobby and Billoo. However, PW1 has stated that Gulloo was also made to sit with them in the train. PW1 has stated that they were given only tea in the train and thereafter they did not know what happened. When they woke up they saw Bombay Central was written outside on the railway station while PW2 has stated that after Gwalior station, she was woken up and food was given to her and again she fell asleep.
53. PW1 has stated that on 24.9.1996, Kusum Pandey asked them to go somewhere and instructed them to do whatever they would be told to do but they refused. While PW2 has stated that in the evening they were taken to beer bar alongwith Lilly and for 23 FIR no. 571/96 PS Seema Puri 92/102 days they were taken to beer bar. PW1 has further stated that on 29.9.1996, she overheard Kusum Pandey talking to someone regarding their sale while PW2 has introduced a different story stating that Kusum Pandey called 34 boys at her house and asked them to have sex with those boys. When they refused to do so, then Kusum Pandey told them that she had purchased both of them from Bobby and Billoo and they would have to do whatever was directed and they were threatened that she would complain about them to Jagjit to get their family members finished but they again refused to do sex with those boys and again Kusum Pandey forced them to do the same.
54. PW1 has stated that when they reached station after having left the house of Kusum Pandey, Billoo was standing. They asked him to take them back but he refused saying that if he took them back, Jagjit would not only kill him but their family members as well. But when they insisted he made them sit in the waiting room and went away to arrange for money. While PW2 deposed that when they requested Billoo to take them to Delhi, he stated that he was not having money. Billoo went to arrange money and he asked his companions to keep a watch upon them and that they should not FIR no. 571/96 PS Seema Puri 93/102 talk to anyone. Though PW1 has not stated about any companions who were left to keep a watch upon them. PW1 has stated that Gulloo, Mintoo, Jagjit and Bobby all were mixed up (sic) and they all took her and her sister to Meerut whereas PW2 has not named Gulloo. She stated that Jagjit, Mintoo, Billoo and Neeraj took them to Meerut by train and kept them in a village Jei. The evidence of both the prosecutrix when read as a whole is full of discrepancies and does not inspire confidence.
55. It has been submitted by the defence counsel that only because of enmity between the family of the prosecutrix and that of the accused persons they have been falsely implicated. Though it is rare that dignity of the daughters is put at stake by any parents for taking revenge. However, there are some rare instances. Reliance has been placed upon (2007) 12 SCC 57 wherein it was observed by the Lordships that courts should at the same time bear in mind that false charges of rape are not uncommon and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend on the facts and circumstances of each FIR no. 571/96 PS Seema Puri 94/102 case.
56. No doubt, it is well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted even if it is uncorroborated unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. However, false charges of rape are also not uncommon. There have been rare cases where the parents have persuaded their daughters to make false charges just to take revenge. From the material on record it is proved that prosecutrix No.1 & 2 left their parental home of their own volition and they were not kidnapped and raped. Prosecutrix FIR no. 571/96 PS Seema Puri 95/102 No.2 was a consenting party but now the question arises whether prosecutrix No.2 was a major capable of giving her consent.
57. It is an admitted case of the prosecution that prosecutrix No.1 was 20 years and prosecutrix No.2 is claimed to be a minor. Statement of PW5 Dr. Rajpal coupled with the report Ex.PW5/A goes to show that age of the prosecutrix No.2 was between 16 to 18 years as per ossification test. This report is binding on the prosecution because no other age proof has been collected or produced by the prosecution. Ex.PW17/D admission form issued by CBSE, Delhi, where the date of birth of the prosecutrix No.2 is indicated as 15.12.1980 and certificate issued by Principal of Girls Compt. (Model) Sr. Secondary School, Seemapuri, cannot be read in evidence as it has not been legally proved. Law is well settled that mere marking of exhibit on a document does not dispense with its proof. The right course for the prosecution would have been to call the relevant witness to prove the document. However, the prosecution has just placed photo copy of same, seizure of which has been proved through IO. Ex.PW17/D produced by the prosecution to prove the age of the prosecutrix, is not admissible in evidence being a photo copy. While the authority issuing FIR no. 571/96 PS Seema Puri 96/102 Ex.PW17/E has not been examined without testimony of the authority issuing the certificate the document cannot be read in evidence.
58. The admission card, certificate and oral evidence brought on record by the prosecution are doubtful. I place upon Sachindra Nath Mazumder Vs Bistupada Das, 1978 Cri. L. J 1494 wherein it has been held that "the best evidence as to the age of the prosecutrix is her date of birth as per school admission register and in absence of birth certificate the ossification test has to be taken into consideration. It was further observed that the ossification test is not a sure test although it is generally accepted as the best available test for determination of the age of human beings". The defence counsel has stated that there is doubtful oral evidence and suspicious evidence in the shape of Admission Card. The court should give all importance to the opinion of radiologist regarding the bony age of the prosecutrix No.2. He has also relied upon Brij Mohan Vs State, 38 (1989) DLT 15, wherein somewhat similar facts the Court preferred the assessment of age given on the basis of ossification test.
59. I find substance in the contentions of the defence. Ossification FIR no. 571/96 PS Seema Puri 97/102 test is one of the tests to find out the age. It is well known that the determination of age by ossification test is neither absolute nor exact. Variation of age in the ossification test can be up to 3 years in either way. The High Court of Bombay in the case of Balasaheb Vs The State of Maharashtra, 1994 Cri. L. J 3044, after referring to Modi's Medical Jurisprudence and Toxicology (First Edition) expressed thus: "It is observed that the error in the case of age based on ossification test may be three years."
60. The defence has submitted that the school certificate and admission card cannot form the basis to determine the age, as the guardians have a tendency to understate the age of their children at the time of admission in the school; that as per the report the prosecutrix No.1 was between 16 to 18 years of age. No doubt there can be an error in the periphery of three years. But the benefit of the error has to go in favour of the accused in view of the obtaining circumstances.
61. On the facts and circumstances, there arises a lingering doubt regarding the case of the prosecution that the prosecutrix No.2 was a minor at the time of the occurrence and the benefit of doubt FIR no. 571/96 PS Seema Puri 98/102 should be given to the accused. Therefore, I hold that prosecution has been unable to prove that prosecutrix No.2 was a minor.
62. The purported theory of threat or existence of fear is also not accepted. As per the prosecution case, Mintoo was carrying a revolver at the time prosecutrix No.1 and 2 were kidnapped. However, thereafter there was no mention that any weapon was shown to them for threatening them. Prosecutrix No.1 & 2 travelled with the accused from Delhi to Bombay and then from Bombay to Delhi and Meerut. They had many occasions to raise hue and cry, had they been kidnapped / abducted, by the accused persons and rape had been committed on them but they chose to keep mum. They were taken in crowded places by trains and buses but they never raised alarm. They did not inform the police after escaping from the house of Kusum Pandey. They did not disclose to any passenger. Both the prosecutrix were kept in residential areas in Meerut where other persons were also residing nearby. PW2 was even taken to Mahila Police Station, however, she did not deem it fit to tell the police. From the statement of both the prosecutrix, it is evident that they were not under threat of the accused persons.
FIR no. 571/96 PS Seema Puri 99/102
63. There was no mark of external injury on the person of the prosecutrix No.1 & 2 and no mark of injury was found on their private parts. Absence of injuries on both the prosecutrix is also indicative of the fact that they were consenting party. It appears that both the prosecutrix accompanied the accused persons of their own accord without any threat, inducement or allurement having been made to them. The circumstances prove that there was a pre planning by them to elope with accused Dharmender because of which they left home at midnight. Circumstances also clearly show that both the prosecutrix were a consenting party and the accused persons did not commit any offence punishable u/s 376 IPC. The prosecution has miserably failed to prove that the girls were enticed or threatened by the accused persons to leave the parental home or raped by them.
64. It is settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. The testimony of the witnesses specially that of PW1 and PW2 are not credit worthy and hence it would not be safe to place reliance thereupon. The circumstances relied on by the prosecution are FIR no. 571/96 PS Seema Puri 100/102 neither fully established nor are consistent with the hypothesis of guilt of the accused. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. Both the prosecutrix have failed to prove their own case and they do not appear to be consistent and firm on their own statement. There was a long standing enmity between both the families and their acts of lodging reports against each other before the police have been duly proved. Examining acts of the prosecutrix from all angles the possibility cannot be ruled out that because of long standing enmity false charge of rape have been levelled against the accused with the consent of the family members.
65. In view of the blatant infirmities present in the testimony of both the prosecutrix, I am satisfied that the testimony of the prosecution witnesses are not the gospel truth on which implicit reliance can be blindly placed. I, accordingly, acquit all the accused persons of the charges levelled. Their bail bond cancelled. Sureties discharged. Accused persons to furnish bail bond in terms of Section 437A Cr.P.C.
FIR no. 571/96 PS Seema Puri 101/102
File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated: 28.1.2011 Addl.Sessions Judge05(NE);
Karkardooma Courts, Delhi.
FIR no. 571/96 PS Seema Puri 102/102