Delhi District Court
State vs Baba Bamdev Ram on 12 April, 2018
State Vs Baba Bamdev Ram
@ Ramji Mahraj (Judgment)
PS Sultanpuri
FIR no. 918/14
IN THE COURT OF SHRI SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)
NORTHWEST: ROHINI: DELHI
Registration/ID No. : 51837/16
FIR No : 918/14
Police Station : Sultanpuri
Under Section : 376D/344/506/344 IPC
State Vs. : Baba Bamdev Ram @ Ramji
Maharaj, S/o Sh. Rajendra
Prasad, R/o ITI Bazra, Gas
Godam Road, Ranchi ,
Jharkhand
Date of committal : 29.06.2015
Charge framed on : 25.08.2015
Arguments advanced on : 28.03.2018
Judgment Pronounced on : 12.04.2018
Decision : Convicted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. Ashish Dahiya,Legal Aid Counsel for the accused.
J U D G M E N T
1.Accused Baba Bamdev Ram @ Ramji Maharaj S/o Sh.Rajendra Prasad is facing prosecution for offence u/s 344, 376 (2) (n), 506 IPC.
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2. Factual background of the matter is that on 23.08.2014 upon receipt of information vide DD no. 42A, SI Vikas Pawar got the victim nameB (name withheld) counseled from NGO representatives and thereafter recorded her statement, wherein victim stated that she is permanent resident of Jharkhand and she belong to Schedule Tribe community. Complainant stated that on 01.02.2014 she had earlier got registered one case FIR no. 100/14 in PS Rajouri Garden against accused Baba Bamdev Ram, Ashok Badaik, Sandeep Baage and Ratiya Lora for offence of rape. Thereafter prosecutrix stated to have been kept in Nirmal Chhaya where she stayed for about 5 months. Prosecutrix says that upon application moved by her father, she was released from above Nirmal Chhaya. Thereafter she and her father were taken by three women namely Lalita, Leela and Lolo to the area of Budh Vihar in a room in front of Bharm Shakti hospital.
3. Prosecutrix further states in her complaint that when she reached to that room. She found that accused Baba Bamdev Ram was already present. She felt scared on seeing him. He thereafter sent her father out of that room with two women and thereafter stated to have given threats to her by saying that he has connection with naxalite and therefore she has to follow his instruction otherwise he will kill her family Page no............... 2 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 members. Prosecutrix states that accused Baba Bamdev under a conspiracy had called her father to get her release from Nari Niketan and thereafter forced her to file an application to DCP, Rajouri Garden to state that the FIR dated 01.12.2014 registered in PS Rajouri Garden against accused Baba Bamdev Ram, Ashok Badik, Sandeep Baage, Ratiya Lora was infact got registered on the pressure of Munna Kaushik and Vinod Tyagi. Prosecutrix states that she was also forced to mention in that application that all the allegations made in the said case FIR no. 100/14 were false. Prosecutrix states that infact she had never even met with any person by name Vinod Tyagi and Munna Kaushik.
4. Prosecutrix further alleges that Baba Bamdev thereafter kept her and her father detained from 4 th June to 14th June 2014 and thereafter he established physical relations with her against her consent and his accomplices namely Lalita, Leela and Lolo took photographs of that act. Prosecutrix further alleges that two other persons had also committed rape upon her whom she did not know, however can identify if shown to her. Prosecutrix further states that after about 10 days Baba Bamdev sent her and her father back to her village and threatened that in case she will disclose about the incident to anybody, he will get his family member killed by naxalite and Page no............... 3 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 will also show her obscene pictures to her villagers. Thereafter prosecutrix in village stated to have came to know from villagers that Baba Bamdev has been arrested, therefore she muster the courage to make the complaint and therefore came to Delhi and gave the present complaint. She alleges that accused Baba Bamdev had committed wrong act with her with the help of his accomplices.
5. On the above said complaint of the prosecutrix, present case was registered, thereafter prosecutrix was got medically examined and the statement of prosecutrix was recorded u/s 164 CrPC before Ld MM. During investigation accused was formally arrested in this case while he was in judicial custody in Jharkhand in case FIR no. 03/13 for offence u/s 363/367/370/376 IPC of PS Latahar, Jharkhand. It was mentioned that other coaccused could not be traced.
6. On the basis of evidence collected during investigation, Ld Predecessor of this court vide order dated 25.08.2015 framed the charge for the offence u/s 344/376 (2) (n) /506 IPC against accused Baba Bamdev Ram to which accused pleaded not guilty and claimed trial.
7. In order to substantiate the charge against the accused prosecution has examined as many as 12 witnesses: PWs Name of the Nature of Documents proved Witness the witness Page no............... 4 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 PW1 HC Vinod Kumar Police He has proved the entry no. 7217 witness Ex.PW1/A regarding deposit of [MHC(M)] sealed pullanda and entry no. 7217 regarding deposit of parcel in FSL, Rohini Ex. 1/B. PW2 Dr. Shilpi Gupta Doctor She has proved the MLC Ex. PW2/A of prosecutrix.
PW3 HC Krishan Kumar Police He has proved the FIR Ex.PW3/A and witness endorsement on rukka Ex.PW3/B. (Duty officer) PW4 ProsecutrixB Public She has deposed about the incident witness and proved her complaint given to the police Ex.PW4/A and statement u /s 164 CrPC Ex. PW4/B. PW5 Dr. Vipin Kumar Doctor He has proved the MLC of accused Jha Ex. PW5/A. PW6 Ct. Dharm Kaur Police She deposed about receipt of DD no.
witness 42, medical examination of prosecutrix conducted in SGM hospital and handing of exhibits of prosecutrix to WSI Neeraj and same were seized by IO in her presence vide seizure memo Ex. PW6/A. PW7 Ct. Karampal Police He has deposited the sealed pullanda witness in FSL, Rohini vide RC Ex. PW1/B. PW8 SI Vikas Pawar Police He was the initial IO of the case. He witness deposed that on 23.08.2014 at about 10.15pm duty officer handed over to him one complaint and also produced the victimB and he called the NGO official and after counseling he alongwith W/Ct Dharm Kaur took the Victim to SGM hospital for her medical examination and after medical examination further investigation was handed over to SI Neeraj.
PW9 SI Shravan Kumar Police On 30.03.2015 investigation of the witness present case was marked to him. On 04.03.2015 he arrested the accused from Mandal Karagar at Latehar Page no............... 5 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 Jharkhand vide arrest memo Ex.PW9/A and made disclosure statement Ex.PW9/B. PW10 WASI Sita Devi Police She deposed that on 19.05.2015 witness accused was in JC and concerned court had directed for conducting his potency test and accused was also involved in FIR no. 100/14 PS Rajouri Garden where his potency test was already got conducted by WSI Sumitra and she went to PS Rajouri Garden and collected the photocopy of the potency test Mark 5/A. She collected the involvement of the accused in different cases and placed it on the record.
PW11 SI Neeraj Police On 24.08.2014 further investigation witness of the case was handed over to her. (investigating She made endorsement on the officer) complaint Ex. PW11/A and also prepared the site plan of the spot at the instance of victim Ex. PW11/B and also recorded supplementary statement of victim.
PW12 SI Rakhi Police This witness partly conducted the Witness investigation and got the statement (investigating of prosecutrix recorded u/s 164 CrPC officer) as well as sent the exhibits to FSL, Rohini.
8. Upon completion of prosecution evidence all the incriminating evidence as come on record were put to the accused in which accused denied the entire evidence and has taken the plea that he do not know the prosecutrix and has no concern with her. Accused states that she has made false complaint against him under pressure from naxalite namely Prem Chand Gope and this fact has been admitted by the prosecutrix in her cross Page no............... 6 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 examine. Accused says that prosecutrix alongwith some other persons is running a extortion racket by implicating innocent persons in false rape cases. Prosecutrix had already lodged another case FIR no. 100/14 u/s 376D/506 IPC of PS Rajouri Garden. He states that this shows that the entire story regarding threats given to the prosecutrix were false and fabricated. Accused claimed himself to be innocent and has been falsely implicated.
9. No evidence was led on behalf of accused in defence, despite opportunity.
10. I have heard Sh. Himanshu Garg, Ld Addl. PP for the State and Sh. Ashish Dahiya Legal Aid counsel on behalf of accused.
Statement u/s 164 CrPC
11. Before I discuss the evidence as come on record it is appropriate to reproduce her the statement of prosecutrix u/s 164 CrPC given before Ld MM: "I was release from Nari Nikaten on 4th June; near the gate three girls of Baba Bamdev Ram were standing. Name of the one of them was Leela, second was Lalita and third Lolo. They told me that they have room in the area of Punjabi Bagh. However, they did not take me there, they took me and my father to room which was in front of Bharm Shakti hospital. In that room Baba was already sitting. I was feeling scared. Baba called two men and asked me do you identify them and I told I do not identify them and told me that they are naxalites. He told me that whatever work he will give I will have to do otherwise he will get my father kill. He told that I will have to speak against two men and Page no............... 7 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 also to state that these two men have committed offence of rape with her. I told him that once whom I do not know why should I gave application against them. Otherwise he will get my father kill. The name of those two men were Munna Kaushik and Vinod Tyagi. He told them that he had already saved himself by naming those two persons. He thereafter taken my signatures on a paper. Thereafter he got the receipt of that application from PS Rajouri Garden. He also forced me to send me to the court and told me that I have to give statement as he wants. However, I did not give evidence as he wanted. I stated true facts in my evidence. When I came out to the room of the court , he inquired why I have not given statement as he wanted. Thereafter He told that now he will commit rape upon him once, you have falsely implicated in rape case then he may commit rape once or 100 times, does not make any difference. Thereafter Leela, Lalita and Lolo started threatening me. Thereafter Baba committed rape upon me and those three girls made video. For 810 days I kept there and repeatedly raped by Baba. Two boys had also come and they have also committed rape upon me. I can identify those two boys if shown to me. My father was kept detained in a room after providing him liquor. Thereafter I was given threats that in case I will discuss about the above said facts then my video will shown to all. Thereafter Bab and Leela brought me to Jharkhand in my village there also threatening me that in case I will disclose about the incident to anybody, they will show video to entire village. Thereafter Baba used to keep on visiting my village alongwith Leela. Later I came to know from villagers that Baba has been arrested. Then I came to Delhi to take legal action against him. I wants him to be punished. "
Discussion of Evidence.
12. Star witness in this matter is the prosecutrix. Prosecutrix has appeared in the witness box as PW4. Prosecutrix when appeared in the witness box has given account of those facts which led to registration of FIR no. 100/14 in PS Rajouri Garden. PW4/prosecutrix testifies that she is from State of Page no............... 8 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 Jharkhand and belongs to Schedule Tribe. Prosecutrix says that she is unmarried having one younger brother and one elder sister. Prosecutrix says that one person by name Ratiya Lora brought her from her native place to Delhi for work. Said Ratiya Lora brought her to Subhash Nagar, Delhi to placement agency belong to one Nika Kumar. PW4 says that when she reached there accused Baba Bamdev was present alongwith Sandeep Baghiya, Ashok Baraik. Witness says that all of them were sitting in front room and PW4 says that after sometime Sandeep Baghiya and Ashok Baraik came to her room and Sandeep Baghiya removed her salwar and Sandeep Baghia told her that they would kill her in case she raises alarm. Prosecutrix says that both of them committed rape upon her. Then, Ashok Baraik called Baba Bamdev and then, Baba Bamdev also committed rape upon her.
13. Prosecutrix further testifies that when she inquired from those people as to why have they done so with her? Baba Bamdev told her that she deserve this. Prosecutrix stated to have told Baba Bamdev to leave her back to her native place but they did not leave her to her native place. Prosecutrix says that thereafter Baba Bamdev took her to his place at Khyala and on the second day she was sent for work at Shivaji Park and Baba Bamdev stated to have been threatened her not to disclose Page no............... 9 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 about the incident to anyone otherwise she will be killed. Prosecutrix says that she worked in the house at Shivaji Park for six months and thereafter, she left the work on her own.
14. Witness further testifies that she called her friend who was residing at Madipur and told her friend about the incident happened with her and asked for help. Her friend told her that since she was working she had no time to help her, however, she gave her money so that she could return to her native place. Prosecutrix further testifies that she took money from her friend and reached to Anand Vihar Railway Station where she met one girl by name Saraswati who was from her village. Prosecutrix stated to have been told Saraswati about the incident happened with her and asked her for help. Prosecutrix says that she stayed in the house of brother of Saraswati alongwith Saraswati and next day she lodged the complaint in PS Rajouri Garden. Prosecutrix says that in that case her statement u/s 164 CrPC was also recorded then she was sent to Nari Niketan.
15. Above discussed facts coming in the evidence of prosecutrix are pertaining to FIR no. 100/14. Prosecutrix then further deposed that when she stayed in Nari Niketan for about 5 months. One lady Leela who remains alongwith accused Baba Bamdev brought her father from the village. Prosecutrix says Page no............... 10 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 that her father told that said Leela had brought him from village by telling him that prosecutrix is suffering in jail, upon which her father had got scared and therefore got ready to do what Leela told him. Prosecutrix says that her father was crying by telling all these facts.
16. PW4 says that Leela told her that she should remove the name of Baba Bamdev, Sandeep Baghia, Ashok Baraik and Ratiya Lora in the complaint given to PS Rajouri Garden. Prosecutrix says that then she was taken to a court for her deposition. Prosecutrix says that she did not name Sandeep Baghia, Ashok Baraik and Ratiya Lora in her deposition given in Tis Hazari Court regarding her complaint registered in PS Rajouri Garden. However, she named Baba Bamdev in her deposition recorded in the court. After her deposition she was sent back to Nari Niketan as her clothes and articles were lying there. Prosecutrix says that she was released from Nari Niketan by the orders of the Court and she took her articles from Nari Niketan and thereafter abovesaid Leela took her and her father for Punjabi Bagh in an auto.
17. Prosecutrix says that Leela had called Lalita and Lolo by her mobile on the way and Lalita and Lolo took the auto to one accommodation in Budh Vihar in front of Bhram Shakti hospital instead of Punjabi Bagh. Prosecutrix says that when Page no............... 11 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 she reached in that room she found Baba Bamdev was present there and she got scared. Prosecutrix says that Baba Bamdev told her that she had not deposed in the court as instructed and now she had to do as he want, otherwise she and her father would be eliminated. Prosecutrix further deposed that thereafter her signatures were taken on blank papers and she was asked to give those papers to DCP, Rajouri Garden and to give the statement in that office to state that she got a false case registered against Baba Bamdev through Munna Kaushik and Vinod Tyagi. Prosecutrix says that Baba Bamdev told her that earlier also he got himself acquitted from the same case by taking such defence.
18. Prosecutrix went on testify that she alongwith her father and Leela had gone to the office of DCP and gave those papers. Prosecutrix says that she alongwith her father met with DCP madam and told her that she wanted to take back her complaint against Baba Bamdev but did not tell the reason for taking back the said complaint. DCP madam stated to have told her that FIR had already been registered and therefore complaint cannot be taken back. Prosecutrix further says that DCP madam told her that withdrawing of complaint would lead her in trouble. Upon inquiry from DCP prosecutrix stated to have told that she has come from her friend's place.
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19. Prosecutrix says that thereafter Leela took her back to Baba Bamdev and she told Baba Bamdev that complaint cannot be withdrawn as informed by DCP. Thereupon, accused Baba Bamdev told her that now she will have to give statement in the court, to which she refused to go to the court to give statement. Prosecutrix says that accused thereafter called two persons and sent her father with them. Accused told her that those two persons were naxalites. Prosecutrix says that Lalita who had accompanied her and her father in auto on the way to the place of Baba Bamdev, she took her to a different room of the some accommodation therefore Leela and Lalita as well as Lolo forcibly took off her clothes and gave her beatings. Prosecutrix says that Baba Bamdev came there and forcibly committed rape upon her. All the three Leela, Lalita and Lolo made a video recording and took photographs from the mobile of commission of rape by the accused upon her.
20. Prosecutrix further testifies that she was kept there for about 810 days and accused used to commit rape upon her regularly during those days. Her father was kept confined in another room of same accommodation where he was made to take liquor daily. Though her father was having very weak eye sight. Prosecutrix says that during this stay she sometimes interacting with her father after going to his room and narrated Page no............... 13 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 the entire ordeal. Prosecutrix says that her father told her that he has been kept confined in that room by locking it from outside. Prosecutrix says that two other persons have also committed rape upon her during the stay of those 810 days. She however do not know their names, but recognise them if she see them.
21. Prosecutrix then testifies that Leela thereafter took her and her father to her native village at Jharkhand and threatened not to disclose the incident to anyone otherwise her nude photographs which she had taken, will be circulated in the village. Prosecutrix says that accused Baba Bamdev also used to come to her village and threatened her. Prosecutrix says that one of the two persons who had committed rape upon her at the place of accused Baba Bamdev had also come to her native place and also threatened her to kill her if she disclosed about the incident to anyone. Prosecutrix says that later in the month of August 2010 she came to know that accused Baba Bamdev arrested in some case in Delhi therefore she came to Delhi and filed her complaint in police station Sultanpuri. In response to a court question, prosecutrix had clarified that all the allegations regarding threats given by accused Baba Bamdev, Leela and other person were pertaining to the period prior to the arrest of accused Baba Bamdev. Prosecutrix proves her Page no............... 14 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 complaint Ex.PW4/A. Her statement u/s 164 CrPC Ex.PW4/B.
22. Before I further discussed the evidence of prosecutrix, more particularly her cross examination. I find it appropriate to mention her that it is matter of record as well as has come in evidence of prosecutrix that on her complaint earlier FIR no. 100/14 was registered against accused Baba Bamdev and other persons with the allegations of gang rape. Prosecutrix in her examination in chief has given accounts of those facts which led to registration of FIR no. 100/14 in PS Rajouri Garden and thereafter she has given facts leading to the registration of present case. It is when prosecutrix was living in Nari Niketan, she was released from there on the application of her father and thereafter , she and her father was allegedly brought by accomplice of accused Baba Bamdev namely Lalita to a room in the area of Budh Vihar where accused met with the prosecutrix and kept her and her father there from 4 th June 2014 to 14th June 2014. Prosecutrix alleges that during this period she was subjected to sexual assault by the accused and two other persons whose names were not known to her. It is also important to note here that beside Fir no. 100/14 and this case, there are other cases also registered against the accused for offence of rape not only in Delhi but also in PS Latehar, Jharkhand.
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23. It is in this context let us now further consider the evidence of prosecutrix. Ld counsel for the accused has given emphasis on crossexamination of prosecutrix because prosecutrix in her crossexamination recorded on 05.07.2016 has given certain new facts. In her crossexamination prosecutrix stated that she wanted to say that her earlier statement given in the court was given under pressure from naxalite namely Prem Chand Gope as he had threatened her to kill her parents, in case she did not depose as desired by him. Prosecutrix says that now said Prem Chand Gope had expired and therefore she intends to depose true facts. In crossexamination prosecutrix admitted that she had filed the present case against the accused on the asking of Prem Chand Gope and allegations of rape by the accused at the house of Subhash Nagar was made by her under the pressure of Prem Chand Gope and no such incident had ever happened. Prosecutrix further says that allegations of rape at the accommodation in front of Bhram Shakti hospital Budh Vihar was also made by her against the accused under the pressure and instance of Prem Chand Gope. Prosecutrix says that no such incident had happened though she remained there. Prosecutrix says that there was no restriction on her movement while she stayed in said accommodation, in front of Bhram Shakti hospital.
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24. Since prosecutrix stated certain new facts in her cross examination, therefore she was allowed to be reexamined by Addl. PP for the State. In her reexamination prosecutrix says that she came to know about the death of Prem Chand Gope on 07.03.2016. Prosecutrix says that she met with Prem Chand Gope only on one or two times, however she do not remember when she met with said Prem Chand Gope last time. Prosecutrix further says that she do not know if said Prem Chand Gope knew accused Baba Bamdev or not. She says that she also do not know as to what rivalry and dispute he had with accused.
25. Thus, from the above discussion of entire evidence of prosecutrix, it is evident that in her examinationinchief recorded on 22.12.2015, she had deposed all the facts against the accused as per her complaint given to the police and her statement recorded before the Magistrate. However, when she again appeared in the witness box for crossexamination on 05.07.2016, she completely disowned all her allegations against the accused and stated that she had given her earlier evidence on the pressure of one Prem Chand Gope. The law is well settled that evidence of any witness is to be read and appreciated in totality. If witness in her entire evidence has given two different facts, court has a duty to appreciate the Page no............... 17 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 evidence in such a manner to disengage the truth from the falsehood and to separate the grain from the chaff. The ultimate object is to reach to the truth, so that justice can be done. In this case I have already noted above the factual background, prior to registration of present case. At the instance of prosecutrix herself earlier one case FIR no. 100/14 was registered against accused herein with other persons for offence of gang rape. It is thereafter when prosecutrix was released from Nari Niketan, as per her evidence she and her father was taken to a place , in front of Bhram Shakti hospital , Budh Vihar. From her evidence it is not disputed that she stayed there in that place . No doubt unfortunately evidence of prosecutrix could not be recorded in one go and there was a gap of about 7 months in recording of her remaining cross examination. No doubt in crossexamination prosecutrix testified that she had earlier given statement on the pressure of Prem Chand Gope but I find that her such deposition cannot be read in isolation. Such fact coming in the crossexamination of prosecutrix, to my mind does not completely wash out her entire evidence, firstly because prosecutrix simply stated that her earlier statement was given by her on the pressure of Prem Chand Gope but has failed to give any details of any such pressure upon her. It is for the first time name of Prem Chand Page no............... 18 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 Gope came in her evidence. Even prior thereto it was not even case of the accused that he had any enmity or rivalry any naxalite by name Prem Chand Gope. Secondly, prosecutrix as also failed to testify as to when any such pressure was given by person by name Prem Chand Gope. Prosecutrix says that it is only when said person had expired , she is now giving the true facts, whereas in her reexamination, she simply stated that she met with Prem Chand Gope one or two time without giving any details as to when she had met with any such person. Moreover, in her reexamination prosecutrix says that she do not know as to whether said Prem Chand Gope knew Baba Bamdav or not. Prosecutrix further says that she also do not know as to what was the rivalry between that person and accused herein. Such evidence of prosecutrix coming in her re examination, certainly create doubt as to whether her evidence given earlier on 22.12.2015 was under pressure from any person or whether her crossexamination recorded on 05.07.2016 was under pressure from some one.
26. Thirdly, if I take the facts as stated by the prosecutrix in her crossexamination, on the face of it, first and foremost question arises if at all there were contradictions in her evidence and she had stated certain facts against the accused only on the pressure of some one by name Prem Chand Gope, she was Page no............... 19 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 required to be confronted with those facts in her cross examination. However, no such confrontation was done in terms of section 145 of Evidence Act. Mere fact that prosecutrix stated that her earlier statement was given at the pressure of Prem Chand Gope, by itself was not sufficient to throw away the entire evidence when she was not specifically put those incriminating evidence coming in her examination in chief against the accused, to explain about those facts. Fourthly, important aspect to be noted here is that same prosecutrix has got registered FIR no. 100/14 in PS Rajouri Garden against accused and three other, in her evidence recorded in this case she has not deposed that even said FIR was also registered on the pressure of that person. Nor this fact was clarified from the prosecutrix in her crossexamination.
27. Fifthly, it is important to note that principle of law described in well known maxin 'falsus in uno falsus in omnibus' is not applicable in India. If a witness has stated two different and contradictory facts, no doubt render the testimony of the witness to be doubtful but is not that in every case or situation evidence is to be rejected in totality. Failure of witness to prove some part of complaint in FIR, does not entirely render the testimony to be unbelievable. Above said maxin is not applicable in India. Evidence is required to be examined in Page no............... 20 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 totality and even if witness has stated certain different and contradictory facts, if the testimony of the witness, read in toto, if inspire confidence and gives subjective satisfaction to the Court about truth of certain facts, evidence still can be relied upon in such situations. I find that this proposition applies in the facts of the present case.
28. Prosecutrix in her examination in chief has testified that one lady by name Leela, who generally remained alongwith accused, brought her father from the village by telling him that prosecutrix is in jail. Prosecutrix also says that her father told those facts to her, when he met with her. It is also clear from the evidence of prosecutrix that by moving an application in the Court, prosecutrix was released from Naari Niketan and thereafter prosecutrix and her father were brought by Leela to Budh Vihar Rohini, where accused Baba Bamdev met the prosecutrix and told her that she has to depose in the Court as per his instructions, otherwise she and her father would be eliminated. On these aspects, nothing has been asked in the crossexamination of the prosecutrix. Prosecutrix has not even been suggested that she was not given any facts or was not brought to Budh Vihar by the accomplices of accused Baba Bamdev.
29. It further came in the examination in chief of the prosecutrix Page no............... 21 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 that Baba Bamdev pressurised her to file certain papers before DCP to state that she wants to withdraw her complaint given in FIR No.100/14 of PS Rajouri Garden. Prosecutrix also testifies that she went to the office of DCP and DCP Madam told her that now she cannot withdraw her complaint as FIR has already been registered. Prosecutrix further says that accused had pressurised her to give statement in the Court that false case was registered against the accused at the instance of Munna Kaushik and Vinod Tyagi. Again nothing has been asked in crossexamination of prosecutrix on these facts also. If prosecutrix was being pressurised to depose against the accused at the instance of Prem Chand Gope, as she stated in her crossexamination, then why she would say in her examination in chief that accused told her to mention the name of Munna Kaushik and Vinod Tyagi, being responsible for filing false complaint against the accused. Even on these contradictory facts, nothing has been asked in the cross examination of the prosecutrix.
30. Prosecutrix then further testifies in her examinationinchief that accused told her that since he has already been proved wrong therefore, it does not make difference if he commits rape upon her one time or hundred times. Prosecutrix says that thereafter accused kept her confined in a room, where he Page no............... 22 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 repeatedly committed rape upon her and his accomplices namely Leela, Lalita and Lolo took her photographs from the mobile phone. Even on this material fact coming in the examination in chief of prosecutrix, nothing has been asked in crossexamination on behalf of the accused. Thus, I find that abovesaid material facts coming in the evidence of prosecutrix are rather proved as nothing came in the crossexamination to disbelieve those facts. Merely because prosecutrix had stated that she had earlier deposed at the instance of Prem Chand Gope against the accused, to my mind does not wash out the above discussed material aspects coming in the evidence of prosecutrix. These material aspects to my mind are well proved to the record against the accused.
31. The arguments of Ld. Counsel for the accused that evidence of prosecutrix is not believable because of change of version given by the prosecutrix in her crossexamination. I do not agree with such submissions for the reasons already discussed above. Evidence of the witness, more particularly a witness of sexual assault needs to be appreciated with realistic consideration and in this case, prosecutrix is an illiterate girl, belonging to scheduled tribes community, who had come from Jharkhand to Delhi for livelihood, but was certainly sexually assaulted by the accused.
Page no............... 23 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14
32. In State Represented by Inspector of Police v. Saravanan & Another, AIR 2009 SC 152 Hon'able Supreme Court, while considering evidence of rape victim has observed as:
". .... it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the Court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial Court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate Court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the Court to reject the evidence on minor variations and discrepancies."
33. In Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 Apex Court has referred to its observation given the authority in Inder Singh and Another v. State (Delhi Administration) (1978) 4 SCC 161 wherein it has been held thus:
"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect."
34. In Sunil Kumar Sambhudayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, Apex Court held:
"30. While appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions had been of Page no............... 24 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 such magnitude that they may materially affer the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons.
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence.
32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt."
"35. The Courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
35. It is important to note here also that accused has also failed to lead any evidence to show that there was any enmity against the accused from any person by name Prem Chand Gope or other person for falsely implicating him, either in case FIR No.100/14 of PS Rajouri Garden or this case. In terms of section 106 of Indian Evidence Act, in respect of those facts, exclusive knowledge of which was only to the accused, onus was also upon him to substantiate those facts by leading evidence. Merely asserting that he has been implicating in this Page no............... 25 State Vs Baba Bamdev Ram @ Ramji Mahraj (Judgment) PS Sultanpuri FIR no. 918/14 case at the instance of anyone, would in itself not be sufficient, unless something has come either by way of crossexamination in the evidence of prosecutrix, or by leading defence evidence. In this case, accused has not brought any such material on the record. Although, it may be noted here that there may be certain lapses in the investigation, but I find that benefit of any fault in the investigation by police does not in every situation affect the prosecution case. Therefore, for the reasons, as discussed above, I find that prosecutrix has been able to establish the charge against the accused for offence u/s.344, 376(2)(n) and 506 IPC and therefore I hold the accused guilty for the abovesaid offences.
36. Let accused be heard on the point of sentence.
Announced in the open Court
th
on 12 April,2018
(SHAILENDER MALIK)
ASJ(SPECIAL FAST TRACK COURT)
NORTHWEST, ROHINI COURTS,
DELHI.
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