Delhi District Court
Meera Giri vs Wahid Etc And Other Complaint Case ... on 19 December, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
SC No : 75/2013
CC No : 412/4/09
PS Uttam Nagar
U/S: 376(2) (g)/452/506/34 IPC
Complainant MG.
(Full name & particulars are mentioned
in file, but withheld to protect her
identity)
Versus
1. Wahid @ Wazid @ Sahil
son of Shrawan Noorj
2. Shrawan Noor son of not known
resident of First floor
A2/R3, Mohan Garden
Uttam Nagar, Delhi.
3. Iklakh son of not known
4. Vishal @ Vishaluddin (P.O)
son of not known
both resident of A2/R3, Ground Floor
Mohan Garden, Uttam Nagar
Delhi.
5. Naim son of not known
r/o 238, R/5/A, Gali No. 2, Mohan Garden
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near Noori Masjid, Uttam Nagar, Delhi.
6. Jaffar son of not known
r/o 174, R/5/A, Gali no. 3, Mohan Garden
Near Noori Masjid,
Uttam Nagar, Delhi.
7. Gujjar (P.O)
And
Sessions Case No. 111/14
Complainant MG.
(Full name & particulars are mentioned
in file, but withheld to protect her
identity)
Versus
Rashid son of Shrawan Noor
resident of First floor
A2/R3, Mohan Garden
Uttam Nagar, Delhi.
JUDGMENT
1. By this order, I shall dispose of two Session cases ie complaint case bearing Session case No. 75/2013 titled as Meera Giri vs Wahid etc and other complaint case bearing Session Case no. 111/14 titled as Meera Giri vs Rashid. Initially the complaint case no. 412/4/09 was filed against all accused persons. But during the pendency of the case,
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accused Rashid had absented himself to appear before the court, hence accused Rashid was declared P.O vide order dated 24/11/2012 and the case of accused Rashid was separated from the case of remaining accused persons vide order dated 25/10/2013. On 26/08/2013, one application was moved by Sh S.A. Rajpur stating that accused Rashid is in JC in case FIR No. 37/2011 PS Ranhola u/s 452/323/308/34 IPC. Then production warrants were issued against accused Rashid & trial against him started.
2. On 01/06/2015, the complainant had given statement that she does not want to examine fresh PWs in the Sessions Case No. 111/14 as against accused Rashid only and she had adopted all the evidence led by her in the Session case No. 75/13. Even the accused persons had adopted same cross examination conducted by them, in Sessions Case no. 75/13 to be read in Sessions Case No. 111/14.
3. Complaint case no. 412/4/09 (i.e. session case No. 75/13) was filed by the prosecutrix against respondents/accused persons on the ground that complainant has been residing as a tenant on the extreme right, ground floor of property bearing no. A2/R3, Mohan Garden, Uttam Nagar Delhi as tenant under the ownership of Smt Shail Devi. It has been alleged by complainant prosecutrix that FIR no 158/2009 was earlier registered on 18/05/2009 in PS Uttam Nagar u/s 452/323/506/120B IPC
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against some of the persons, accused in the present case, by the order of Ld Metropolitan Magistrate, on the complaint filed by the complainant, under section 156 (3) Cr.P.C, as no action was taken against these accused persons by police. In connivance of SHO PS Uttam Nagar, accused persons had again committed house trespass into the said house of complainant after breaking open the main gate of the boundary wall and gate of living room in the intervening night of 25/26.05.2009 along with one person called 'Gujjar'. They had threatened her to vacate the said house and withdraw the above stated FIR i.e FIR No. 158/09 Thereafter, all accused persons in furtherance of their common intention instigated accused 'Gujjar' to commit rape upon her. She had gone to the PS for lodging the complaint, but no action was taken by the police. The complainant has further stated that she herself had gone to DDU hospital for her medical examination. Since no action was taken by police on her complaint, she filed the present complaint case.
4. After hearing arguments, vide order dated 05/10/2011 accused Iklakh, Naeem and Jaffar were charged for offence under section 452/376(2)(g) & 506 IPC. Vide order dated 02/07/2015, accused Wahid was charged for the offence 452/376(2) (g) &506 IPC & Accused Wahid was also charged for the offence u/s 174A IPC. Vide order dated 12/12/2011, accused Sarwar Noor & Rashid were charged for the offence
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174A IPC. Vide order dated 12/12/2011, accused Sarwar & Rashid were also charged for the offence u/s 452/376 (2)
(g) and 506 IPC. Accused persons pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined 10 witnesses in all.
6. PW1 is the prosecutrix/complainant (name mentioned in the file but withheld to protect her identity & hereby referred as Prosecutrix). She has deposed that on the intervening night of 25.05/26.05.2009, she was sleeping along with her daughter Baby (name mentioned in the file but withheld to protect her identity) at her house at Uttam Nagar. On 25.05.2009 in the day time accused persons ie Jafar, Akhlakh, Sarwarnoor, Rashid, Wahid, Vishal, Naeem and Gujar had quarreled with her. All the aforesaid persons mentioned above were forcing her to vacate the kothi. She had filed a Civil Suit against Sh C P Sahoo, Sh S S Bashisht and Sh Prehlad Singh Saharawat as they were forcing her to vacate the premises and also used to beat her. On 14.12.2008, she had also filed a complaint case against the aforesaid 8 accused persons along with some ladies as they used to beat her. In the said complaint case, an order was passed on 18.05.2009 for registration of FIR. On the directions of the court, FIR No. 158/2009 was registered against the aforesaid 8 accused persons and some ladies. The
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accused persons used to threat her to withdraw the case bearing FIR No. 158/09 filed by her against them. She had sent her son Chandan to the house of her brother so that accused could not beat him. All the accused persons had forcibly entered her house on the intervening night of 25/26.05.09 after breaking door and they started terrorizing her and also forcing her to withdraw case FIR NO. 158/09 & compromise the matter with them. Accused Iklakh and Wajid @ Wahid caught hold of her both hands. Accused Rashid closed her mouth with his hands and Vishal caught her from her hair, who is brother in law of Iklakh. Accused Gujar removed her salwar and raped her . The other accused were standing outside the gate and supporting accused Gujar and were stopping the neighbors from helping her. She had hidden her daughter in the small space next to the fridge, which was kept in the other room. Then all the accused persons threatened her to leave the property but she refused. Thereafter, she made a call to the police at 100 Number. Accused persons while leaving the spot were saying that SHO, Rakesh Kumar Tyagi, of the area is known to them. On her call SHO R K Tyagi, SI Ved Parkash came at the spot but SHO did not enter the place of occurrence. SI Ved Parkash recorded her statement. No action was taken on her statement. SI Ved Parkash told her that there is no lady police official with them and they will get her medically
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examined after the availability of lady police official. Thereafter police team left the spot and she asked SI Ved Parkash to provide his mobile phone No. She gave another call at around 4 4:30 a.m. to SI Ved Parkash when police did not return. She had a talk with SI Ved Parkash and he told her that no lady police official is available with them. He asked her to come to the PS Uttam Nagar. She went to PS Uttam Nagar and SI Ved Parkash, told her that SHO is supervising her case and he will get her medically examined and he will obey the orders of SHO. Thereafter she met SHO R K Tyagi and he refused to get her medically examined and also told her to vacate the premises in question and also asked her to withdraw the case against the accused persons. Thereafter, she was advised by SI Ved Parkash to get herself medically examined at DDU hospital. She went to DDU hospital and got herself medically examined vide MLC No. 9918 dated 26.05.2009, which is PW1/A. Her samples were also collected by the doctor at the time of her medical examination. Doctor called the local police from police chowki in the hospital premises and handed over her exhibits to the police. Thereafter she approached the SHO, ACP, DCP and CP for registration of her case but no action was taken. She had also given different written complaints to the aforesaid police officials. The photocopy of said complaint dt. 29.05.2009 is mark X5. Thereafter, she had
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filed complaint case against the accused persons in the court of Ld.MM dated 14.07.2009, which is ExPW1/B. Her statement was recorded by the Ld.MM after registration of her complaint. The accused persons have been threatening her to withdraw the present case and not to depose against them.
7. Witness has further deposed that on 29.05.2011, her daughter Baby (name withheld to protect her identity) was kidnapped from outside her house, near Milk Booth by Ashfaq and Iqbal, brothers in law/relative of accused Jafar. Some friends of Jafar were also involved in the kidnapping of her daughter. She made call to the PS regarding the aforesaid incident but no action was taken by the police. After the incident of rape, all the accused persons ran away and went away to the room of Iklakh, which is in the same complex.
She had filed a civil suit bearing No. 678/07 titled as Smt. Meera v/s Chander Pal Sahu & others which is now pending in the court at Tis Hazari. Certified copies of the order dated 20.01.2009, rent receipt, her anticipatory bail application, order dated 08.12.2008 and site plan are ExPW1/C1 to Ex PW1/C5 respectively. All the accused persons wanted her to vacate the house in question and for this reason, they had committed the offence regarding which the present complaint case has been filed. When the incident pertaining to the present case occurred, there was a stay order in the civil suit.
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She had admitted the son of Mr. Ram Saran Yadav, MP, as the landlord due to which the accused persons developed animosity towards her.
8. PW2 Inspector Jagpal Singh has deposed that the complaint dt. 25.5.2009 of Mira Giri was sent in original to DCP West Distt. vide office memo 19492/HASR/VIG dated 10.06.2009 for necessary action at their end. The same is Ex PW2/A. A copy of the relevant extract of the Despatch Register is mark PW2/DA.
9. PW3 Ct Jagdish Prasad has deposed that complaint of complainant is entered at Sl no. 7336 dated 29/05/2009 and copy of the relevant extract is Ex.PW3/A.
10. PW4 Mr Desraj, Record Clerk of DDU hospital has proved the MLC of complainant as Ex.PW4/A.
11. PW5 SI Om Parkash has deposed that on 26/05/2009, he took the MLC no 9918 from the Duty Constable along with three sealed pulandas and one sample seal and handed over the same to SI Ved Parkash on the same day.
12. PW6 HC Anil has deposed that on 26.05.2009 three sealed pulandas and one sample seal were deposited in the Malkhana by SI O.P. Tanwar with the seal of CMO DDU Hospital vide serial no. 4360. Photocopy of the extract of the relevant entry of register no. 19 is Ex.PW6/A. On 18.09.2009 all the sealed pulandas and sample seal were sent to FSL Rohini through Ct.Mahesh Partap vide RC
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NO.70/21/09.Photocopy of RC register is Ex.PW6/B. Ct Mahesh handed over the acknowledgement receipt of the deposit of pulanda to him, photocopy of the receipt is Ex.PW6/C.
13. PW7 SI Ved Parkash has deposed that in the intervening night of 25/26.05.2009, he had received three calls made by the complainant, which were assigned to him.
DD No. 47A was received by him at 9.45pm. It was regarding a quarrel. He went to the spot of incident i.e. R3/A2, Mohan Garden, M.P ki Kothi, Uttam Nagar and reached there at about 10.00pm. On inquiry he did not find that any quarrel had occurred. Thereafter, he returned to the PS and had filed the DD as untraced. DD No. 5A and 6A were received by him at 2.35 am. Both of these calls were regarding 'quarrel'. He went to the spot of incident and reached there at about 2.40am. On inquiry he did not find that any quarrel had occurred. The PCR Van was already there. The Additional SHO namely Inspector Brahm Parkash and his staff were also there as they were on night emergency checking. SI Arun Kumar & SI Surat Singh were already there as he had received some call about the incident. He met the complainant/prosecutrix and her son Mr. Chandan at the spot. Complainant informed him that it was a property dispute and he had recorded her statement. She did not disclose anything about 'rape' being committed on her by
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anyone. DD NO.5 A and 6A were kept pending. On 26.05.2009, SI Om Parkash had handed over the seizure memo of samples and MLC of complainant/prosecutrix bearing no. 9918/9 to him and he was told that complainant had herself gone to the DDU hospital and had got herself medically examined. A priority letter was taken from DCP Crime Branch and the exhibits were deposited in the office of FSL through Ct. Mahesh Partap on 18.09.2009 vide RC No.70/21.
14. The copies of DD no 47 A dated 25.05.2009 , PS Uttam Nagar, DD no 5 A dated 26.05.2009 PS Uttam Nagar and DD no 6 A dated 26.05.2009, PS Uttam Nagar are Ex.PW7/A,Ex.PW7/B and Ex.PW7/C respectively. He had gone to the spot of incident three times on receipt of the abovesaid 3 DDs. DDs no. 5 A and 6 A were kept pending and DD no. 47 A was filed after inquiry. He was transferred from PS Uttam Nagar in September, 2009 to PS Ranhola and the inquiry of DD no. 5 A and 6 A must have been assigned to some other police official. Witness has further stated that SI Om Parkash had received call from DDU hospital regarding the prosecutrix going there and getting herself medically examined. SI Om Parkash had taken into possession the MLC of the prosecutrix and three sealed parcels on 26.05.2009, which he had handed over to him on 26.05.2009 and he had subsequently sent the same to FSL
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on 18.09.2009.
15. PW8 Baby (name mentioned in the file but withheld to protect her identity) is daughter of prosecutrix. She has deposed on the same lines as deposed by PW1/prosecutrix.
16. PW8 (it should be PW8A) Dr Rishi, DDU hospital has proved the MLC of the complainant as Ex.PW8/A.
17. PW9 Mr Bibhuti Kumar has deposed that his mother ie Ms. Shail Devi, is the owner of house no. A2/R3, Shail Sharan Kutir, Kothi of Ram Sharan Yadav, M.P, Mohan Garden, Uttam Nagar, Delhi. She had executed a GPA in respect of abovesaid house in his favour on 02.09.2008 . The abovesaid house comprises of six flats. One flat on the ground floor on the eastern side have been given to complainant on rent in the year 2007 at the monthly rent of Rs.5000/ . She had also been appointed as a care taker to look after the entire property but she was not paid any salary for the same.
There were three flats on the ground floor and three on the first floor. He had kept one flat on the first floor on the western side in his possession. On her instructions complainant had given other two flats on the ground floor and two other flats on the first floor to other persons. Complainant would know their names as she had given those flats on rent to the other persons. He had never met the other tenants. Complainant used to collect the rent from the other persons on his behalf and used to give the same to him
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when he used to go to the premises. The rent of each flat was Rs. 3000/ per month. Till date neither his mother nor he had sold the property to anyone. He does not remember the year but on 25th or 26th May at about 12.00 midnight or 12.30 a.m complainant/prosecutrix had telephoned him that she had been raped by someone, whose name she did not reveal. He had immediately telephoned SHO, PS Uttam Nagar, who assured him that he would look into the matter. After 2 to 5 days, he came to Delhi and met the complainant/prosecutrix as well as SHO, PS Uttam Nagar who told him that he was conducting the inquiry regarding the allegations made by prosecutrix. The original GPA executed in his favour by his mother is Ex.PW9/A.
18. Thereafter prosecution evidence was closed.
19. Statement of accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations levelled against them. They have submitted that they have been falsely implicated in the present case. Accused persons had stated that they wanted to lead evidence in defense.
20. DW1 HC Farook has stated that all types of complaints till 31/12/2009 have been destroyed.
21. DW2 SI Surat Singh has deposed that on receipt of DD No. 54A dated 25.05.2009, he had gone to MP Ki Kothi, R 3A2, Mohan Garden, Uttam Garden on the intervening night of 25/26.05.2009, where he had met the prosecutrix/
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complainant and some tenants residing in the said property. DD No. 54A was regarding a quarrel . He had remained at the spot till about 1.30 AM. Between 12.15 AM and 1.30 AM, SI Arun Kumar and Inspector Braham Prakash had reached the spot. One PCR van had also come there. No injured was found at the spot.
22. DW3 Ct Mohan has proved the DD no. 52 A dated 25/05/2009 as Ex.DW3/1.
23. DW4 Inspector Manoj Kumar has deposed that he had conducted the inquiry in the Vigilance Department of West District of Delhi Police. The cover note of the inquiry report is Ex.PW2/A. The complaint had been made by complainant of the present case against Wahid, Ikhlakh, Rashid, Jaffar, Naeem, Sarwar Noor and Vishal and all the accused of case FIR NO. 158/09, PS Uttam Nagar. The inquiry report comprising of 04 pages and page no.5 is seeking information from RTI is Ex.DW4/A.
24. I have heard arguments from Sh S.A. Rajput, Ld counsel for accused Rashid and Wahid @ Wazid. Sh Harpeet Singh, Ld Amicus Curiae for accused Sarvar Noor had accepted the arguments as advanced by Sh S.A. Rajput, Ld defense counsel. Sh Riaz Ahmed, Ld counsel has argued on behalf of accused Naim. On behalf of accused Iklakha & Jaffar, Sh C B Garg, Advocate had argued the matter. Sh A.P. Shukla Advocate has argued the matter on behalf of complainant.
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25. The bone of contention of present case is that as per complaint, all the accused persons wanted to throw the complainant out of the house, in which, she was residing and wanted to take illegal possession from her. It is also stated by Ld counsel for complainantprosecutrix that a civil suit was pending between C. P. Sahu, S S Bashisht and Prehld Singh Saharwat and complainantprosecutrix. However, none of the accused persons, herein were party in that case. As per the allegations of complainantprosecutrix, on the intervening night of 25/2605.09, all accused persons have entered into the house of the complainant after breaking open the doors of the house and putting the complainantprosecutrix under pressure and thereafter she was raped by accused Gujjar (P.O) at the instance of other accused persons. It was also submitted by Ld counsel for complainantprosecutrix that PCR call was made by complainantprosecutrix but no help was provided by the police on the pretext that no lady officer was available, therefore, on very next date ie 26/05/2009, complainantprosecutrix got herself medically examined at DDU hospital, where samples were collected by the doctors and were handed over to the police. It was also submitted by Ld counsel for complainantprosecutrix that accused Wahid and Gujjar are historysheeters and they are having many cases registered against them. It is also submitted that PW8 is minor daughter of the complainantprosecutrix, who was
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the eye witness to the incident, she has fully supported the case of the complainant. Therefore, it is prayed by Ld counsel for complainantprosecutrix that all accused persons be convicted for the offences, they are charged with.
26. On the other hand, Ld defense counsels had argued that there are material contradictions in the testimonies of complainantprosecutrix as deposed before the court at different stages. It is also submitted by Ld counsel for accused persons that many PCR calls were made by the prosecutrix on the intervening night, on which, allegedly incident had taken place but in all the PCR calls, complainant had no where mentioned about 'rape' having been committed by any of the accused persons against her, thus, it appears to be an after thought and the offence of rape had been added by the prosecutrix, in order to falsely implicate the accused persons.
It was further submitted by Ld defense counsels that medical evidence does not support the allegations of the prosecutrix, as no semen was detected on the towel provided by the complainant to the doctors of DDU hospital. It was also pointed out by Ld counsel for accused persons that although, it has been stated by PW7 SI Ved Parkash that when he reached the spot, son of the complainant was present at the house but he has not been made a witness in the present case. Nor complainant has called any of her relative ie her brothers, although they were residing in Delhi at the alleged time,
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when the incident had taken place. The only public witness examined by the prosecutrix is PW9 Sh Bibhuti Kumar, who is stated to be son of the landlord of the complainant. It is also argued by Ld defense counsels that there are material contradictions in the testimony of PW9 Sh Bibhuti Kumar & PW1 ie prosecutrix. Prosecutrix has no where stated in her complaint that accused persons had reached her house, armed with weapons, but during evidence, she had made improvements and had stated that they had used weapon and had used gas cutters to cut the doors. However, no such damaged or cut door was recovered by the police, when they also reached the spot. With these submissions it is prayed by Ld counsels for accused persons that all accused persons be acquitted as the complainant has filed false case against accused persons in order to grab the property of the accused persons.
27. I have considered the arguments advanced by Ld counsels for the parties and gone through the file.
28. In this case, case of the complainant is that on the intervening night of 25/26.05.09 when the complainant was present in her house, she was assaulted by accused persons and during this assault, at the instance of other accused persons, she was sexually assaulted by accused Gujjar (P.O).
It is also the case of the complainant that this incident was witnessed by her daughter ie PW8. Despite various calls
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made by the prosecutrix to the police, no action was taken by the police and finally Prosecutrix herself had gone to the hospital for getting herself medically examined and handed over her towel and samples were taken by the doctors, who had again handed over the same samples to the police. Recovered samples were sent to FSL and thereafter FSL result was obtained.
29. In this case, accused persons have been firstly charged for the offence u/s 452 IPC for committing house trespass in the house of the complainant with the intention to cause hurt to her. Second offence for which the accused persons have been charged is offence of rape ie u/s 376 (2) (g) IPC (as per old Act) and for the offence u/s 506 IPC as accused persons had threatened and intimidated the complainant.
30. As regards the offence u/s 452 IPC, for proving the offence of committing house trespass, the testimonies of PW 1, prosecutrix & PW8 (d/o Prosecutrix, herein after called as 'Baby') are relevant. They have stated that there were two gates in the house of Prosecutrix in order to reach the house of the Prosecutrix and out of those two doors, one door was sliding door having iron grill fitted there and other was iron door. In the cross examination, Prosecutrix had specifically stated that accused persons had used gas cutter, to cut the said doors. Accused Gujjar as per testimony of PW1 and PW 8 was having gas cutter. PW1 had stated in her cross
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examination, conducted on 11/04/13, in post lunch session, that it took about 1015 minutes for accused persons for breaking open the door and to come inside. But it is also admitted case of the complainant that in these 15 minutes, which allegedly, accused persons have taken to break open the door of the prosecutrix's house and to enter in her house, she did not make any call to the police nor she made any call to her brothers, who were residing in Delhi, at that time. This conduct of the Prosecutrix specially becomes relevant in the light of the fact that on the same date ie 25/05/09 at about 4 p.m allegedly quarrel had taken place between accused persons and the Prosecutrix, for which, police was called and she had sent her son to the residence of her brother as she wanted to ensure his safety. Despite knowingfully well that many cases were pending between the complainant and accused persons, also knowing fullywell that in the afternoon, quarrel had taken place between herself and the accused persons, due to which, she had sent her son to the house of her brother, she had not acted promptly by calling the police at the time, when accused persons were allegedly trying to break open the door of the prosecutrix's house. It is not the natural conduct of a person in distress, therefore, it cannot be said that any such incident had actually taken place. No broken door or damaged door by the gas cutter has been shown or proved on record by the
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complainant/prosecutrix to show that accused persons had entered her house forcibly. No such evidence has been led by the prosecutrix to prove that any door of her house was cut or damaged by accused persons and thereafter they have entered in the house of the prosecutrix. Hence I am of the opinion that prosecutrix has not been able to prove her case against accused persons with regard to the offence u/s 452 IPC.
31. As regards the allegation under section 376 (2) (g) IPC, it is settled preposition of law that for proving the case of rape against the accused personsthe requirements are that firstly presence of the accused and prosecutrix at the same place and at the same time is to be proved; secondly the occurrence of sexual relationship between the parties has to be proved and thirdly it has to be proved by the prosecution that prosecutrix has not given her consent for such act or that the consent of the prosecutrix was not voluntary.
32. A case to fall under section 376 , will have to meet the requirements of definition of "rape' given in section 375 IPC.
33. Though, it is settled preposition of law that on the sole testimony of the prosecutrix, accused can be convicted but caution given by Hon'ble Supreme Court and Hon'ble High Courts are that testimony of prosecutrix should be so cogent and trustworthy, which only point towards the guilt of the accused persons and does not leave any room for doubt or
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suspicion. In case, any doubt or suspicion arise in the testimony of the prosecutrix, benefit has to be given to accused persons.
34. In the light of these facts, I will discuss the evidence of prosecutrix led on the point of charge u/s 376 (2) (g) IPC.
35. In this case the prosecutrix had stated that all these accused persons, who have been named in the present case, have entered into the house of the prosecutrix and the incident had taken place at about 12.30 a.m, when accused persons had forcibly entered into the house of the complainant. At the instance of other accused persons , accused Gujjar (P.O) had committed rape upon the prosecutrix. It has also come in the evidence led by the prosecutrix that PW8 (daughter of prosecutrix) had been eye witness of the incident and she had tried to support the case of the complainant. But on one hand, there is testimony of the prosecutrix along with PW8 who tries to support the case of the complainant against accused persons but on the other hand, there is testimony of PW7 SI Ved Prakash, who had gone to the house of the complainant after receiving the DD entries ie DD no. 5A and DD no 6A(dt 25/05/09) and DD no 47A (dt 25/05/09), which contradicts the testimonies of PW1 and PW8 'Baby'.
36. The defense of the accused persons all through the case, has been that no such quarrel had taken place between the parties on the intervening night of 25/26.05.09 and no such
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incident of rape had taken place. Rather the case of the accused persons have been that since there was property dispute between the parties, the complainant wanted to grab the property from accused persons and wanted to throw them out, due to which, she had resorted in lodging false complaints against accused persons and one such complaint ie FIR no 868/03 for kidnapping the son of prosecutrix namely Chandan had earlier been lodged by the prosecutrix. It has been admitted by the prosecutrix in her cross examination that said FIR was cancelled by the police, as it was not found to be correct.
37. During the lengthy cross examination of the prosecutrix, prosecutrix had admitted that at the time of incident, she was having 45 mobiles phones with her. During cross examination conducted on 29/05/13 by Sh C B Garg, Ld counsel for accused Jaffar and Iklakh, prosecutrix had admitted that she made call to the police at about 11.45 p.m but admittedly that call was made by her in respect to the quarrel. Although, it was tried to be stated by the prosecutrix, during cross examination, that she made a call to the police, when accused tried to break open the iron door of her house. However, admittedly, this complaint made by the prosecutrix at 11.45 p.m is only in respect to the quarrel and no such incident of attempting to break open the lock or the door has been reported by the prosecutrix. Prosecutrix
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has also admitted that at that time, PCR van had come. She had also admitted that crowd had gathered there to inquire about what had happened. Thus, it again shows that even the call made by the prosecutrix at 11.45 p.m to the police, on which PCR had reached the spot, does not show that accused persons have ever tried to enter forcibly into the house of the prosecutrix or that there was any apprehension of commission of offence by the hands of the accused persons, at that time. The only matter, reported to the police, was regarding "quarrel", & since police did not find substantial material in the complaint, police had not taken any action. As per the statement of PW7 SI Ved Parkash call was received by him vide DD no 5A and DD no. 6A at about 2.30 a.m, on which he reached the house of the complainant at 2.35 a.m. Even at 2.30 a.m prosecutrix had not stated to PW7, SI Ved Parkash that any offence of 'rape' had been committed against her by the accused persons.
38. Testimony of PW7 is very important in this regard. PW7 SI Ved Parkash had categorically stated, in his examination in chief, that he had gone to the spot of incident three times on receipt of above said DDs. PW7 when appeared as PW4 in Sessions Case No. 111/14, in his cross examination by Ld counsel Sh S.A. Rajput, had specifically stated that when he reached the house of the prosecutrix on receipt of DD no 5A and DD no 6A, he met the prosecutrix and her son Chandan,
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Inspector Bhram Prakash Additional SHO and other beat staff were also present there. Also in the examination in chief PW 7 ( while appearing in the Sessions Case No. 75/13, where he was examined as complainant witness), had specifically stated that after receiving the DD no. 5A and 6A he had reached the spot of incident at about 2.40 a.m, there he met the prosecutrix and her son Chandan. At that time, complainant has informed him that it was a 'property dispute'. Witness SI Ved Parkash has specifically stated in his examination in chief that prosecutrix did not disclose about being raped by any person at that time. Despite categorical statement of PW7 SI Ved Parkash, in examination in chief, neither the witness was cross examined by the prosecutrix on these aspects nor any suggestion was given to the witness that he is deliberately trying to depose incorrectly or he has been won over by the accused persons. Since the testimony of PW7 SI Ved Parkash, who is police official, who has reached the spot after receiving the DD entries regarding the quarrel and had inquired from the complainant about the incident, is uncontroverted and unchallenged by the prosecutrix herself, it inspires confidence and proves that even till 2.40 a.m, on 26/05/2009, no incident of rape had taken place. Except there being some quarrel between the parties, no serious offence was committed by accused persons against the prosecutrix. Testimony of PW7 also proves that the son of
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prosecutrix was present in the house, although, the prosecutrix had tried to deny his presence at the spot of incident and has given the excuse that her son namely Chandan had already been sent by her to her brother's house. Despite taking this stand, PW7 had not been cross examined or suggested by the prosecutrix about speaking falsely before the court. Thus, I am of the opinion that testimony of PW7 is credible testimony, which proves the dent in the story of the complainant. Repeated calls were made by the complainant for reporting the matter and in all the matters, complainant has reported that it was quarrel, which had taken place between herself and the accused persons. She had not narrated the serious offence being committed by accused persons. Nor she had placed or proved on record any offence regarding breaking open of the door by accused persons. Presence of son of prosecutrix namely Chandan at the place of incident has been proved by PW7 SI Ved Parkash. Sh Chandan was material witness and since he has not been examined by prosecutrix, the only inference which could now be drawn is that his testimony must have been detrimental to the case of the complainant, hence he has not been examined by the complainant.
39. One more important aspect, required to be discussed is that in the cross examination, when the prosecutrix was asked about calling her brothers at the time when accused were
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trying to break open the door of her house before the alleged incident of rape or after the alleged incident, she had specifically stated that, "her brothers are not her chowkidars", therefore, she had not called them either prior to or after the incident. But as per the testimony of PW9, who is son of landlord, prosecutrixcomplainant had called him after the incident and told him about the occurrence of alleged rape. However, PW1, prosecutrix is silent towards this aspect. PW1, in her testimony, has no where stated that she had informed about the alleged incident to PW9. Thus, testimony of PW9 becomes suspicious. Even otherwise, it becomes highly improbable that a person after being victim of serious offence will not inform her own brothers but will inform the son of the landlord, who is not even residing in Delhi. Whereas her brothers are residing in Delhi, at the distance, which could be covered in 30 minutes on motorcycle. Therefore, I am of the opinion that there are material discrepancies between the testimony of PW1 & PW9 regarding being informed about the alleged incident. Even brother of prosecutrix namely Subhash and Anil have not been examined in this case. Admittedly Sh Anil is real brother of the prosecutrix. She had stated that she had gone to the hospital on 26/05/09 with her brother Sh Anil. Despite that, he has not been examined by the complainant. Even this fact of taking her brother to the hospital by prosecutrix, has
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been countered by PW8 Ms 'Baby'. She had stated that she does not know as to with whom, her mother had gone to the hospital. Hence, I am of the opinion that testimony of Sh Anil, with whom the prosecutrix had allegedly left her son and with whom prosecutrix had gone to the hospital allegedly would have been material witness in order to complete the chain of sequence. In the absence of testimony of Sh Anil, brother of the complainant, various lacunas have cropped up in the case of the complainant, which has not been explained by the complainant. Therefore, I am of the opinion that prosecutrix has not been able to prove her case beyond reasonable doubt that accused persons have committed house trespass or that they have committed rape upon the prosecutrix or that they have ever threatened her of dire consequences not to tell the incident to any one.
40. As regards the charge u/s 174A IPC as against accused Rashid is concerned, accused Rashid was in judicial custody, as per the application moved by Sh S A Rajput on 26/08/2013. It was mentioned in the application that accused Rashid was in Judicial custody in case FIR no 37/2011 PS Ranhola, hence production warrants were issued against the accused Rashid. No evidence has been led by the complainant to prove that accused Rashid had deliberately absented himself prior to his arrest in FIR No. 37/2011. As regards the charge u/s 174A IPC as against accused persons ie
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Wahid and Sarvar Noor, no evidence has been led by the prosecutrix. Hence, I am of the opinion that prosecutrix/complainant has not been able to prove the case as regards the offence u/s 174 A IPC as against accused Rashid, Wahid and Sarvar Noor.
41. In view of my above discussion, I am of the opinion that prosecutrix has not been able to prove its case against accused persons beyond reasonable doubt, benefit of which is to be given to the accused. Hence all accused persons ie Wahid, Rashid, Sarvar Noor, Iklakh, Naim and Jaffar except accused persons ie Vishal and Gujjar (P.O) are acquitted for the offence u/s 428/376 (2) (g)/506 IPC. Accused persons ie Rashid, Wahid and Sarvar Noor are also acquitted for the offence u/s 174 A IPC. As per provisions of section 437A IPC, bail bonds of all accused persons Wahid, Sarvar Noor, Iklakh, Naim and Jaffar are extended for further six months.
However, considering the acquittal of the accused Rashid, he be released from jail only after furnishing bail bond u/s 437A Cr.P.C. after furnishing personal bond in the sum of Rs.10,000/ with one surety of the like amount or till six months from today, whichever is earlier.
42. File be consigned to record room with the direction to revive and recall the main case, when accused Vishal (P.O) & accused Gujjar (P.O) are arrested or supplementary charge sheet against them is filed.
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43. Copy of the order be placed in Sessions Case No. 111/14 .
Announced in the open Court on (SHAIL JAIN) this 19th December, 2016. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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