Delhi District Court
State vs .(1) Kuldeep S/O Rajinder Prasad on 20 November, 2010
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE
05 (NE): KARKARDOOMA COURTS: DELHI.
SC No. 219/10
Date of institution: 17.8.2004
Received on transfer19.4.2010
Reserved for order: 16.11.2010
Date of delivery of order: 20.11.2010
State Vs.(1) Kuldeep s/o Rajinder Prasad
R/o C129/12, Gali no.12, Khajuri Khas, Delhi. (Since dead)
(2) Devender s/o Bhagwan,
R/o C129/12, Gali no. 12, Khajuri Khas, Delhi.
(3) Shiksha w/o Devender,
R/o C129/12, Gali no. 12, Khajuri Khas, Delhi.
(4) Sudhir S/o Rajindra Prasad,
R/o H.no.C14/1035, Khajuri Khas, Delhi.
(5) Smt. Mamta Tyagi w/o Neeraj Tyagi,
R/o H.no.WZ64, Basai Dara Pur, Police Station
Moti Nagar, Delhi.
FIR NO. 374/03
PS Khajuri Khas
U/s 376/376(G)/323/354/452/506/34 IPC
JUDGMENT:
1. In the instant case, charge sheet was filed against accused FIR no. 374/03 PS Khajuri Khas page 1/65 Kuldeep, Shiksha and Devender on 17.8.2004 and supplementary charge sheet in respect of accused Sudhir and Mamta was filed on 6.1.2005. Accused Mamta Tyagi was declared a proclaimed offender and she surrendered before the court on 9.9.2005. An order was passed by the then Ld.ASJ, Shri J.M.Malik, for clubbing of both the charge sheets on 23.3.2005. An order was also passed for consolidation/ tagging of both the files and on 17.7.2006 it was ordered that both the cases be clubbed and evidence be recorded in one case.
2. As per the prosecution case, pursuant to the receipt of DD No.28B on 18.11.2003, SI Sripal alongwith Const. Anil Kumar reached at GTB Hospital. Since the complainant was female, SHO was requested to send a female officer. SI Shashi came to GTB Hospital and SI Sripal handed over MLC No.C3269/03 of prosecutrix to her. SI Shashi took statement of the prosecutrix who stated that she was living with her parents and two younger brothers. That presently she was doing stitching work and left her studies about 5/6 months back. She used to study in a small school in front of Police Station Khajuri Khas. Kuldeep, Mamta and Shiksha used to live in her neighbourhood and sometimes when she was alone, they would FIR no. 374/03 PS Khajuri Khas page 2/65 come at her house. Kuldeep used to gag her mouth and Mamta and Shiksha used to take his side. Every time whenever they came, Kuldeep used to do 'galat kaam' with her. When they used to come to her house, nobody used to be there in her house and the door of the house was not closed. They did not come to her house after 30.10.2003. On 6.10.2003, his brothers Narender and Vikas had seen accused Kuldeep doing 'galat kaam' with her. At that time, Kuldeep was accompanied by Devender, Mamta and Shiksha and it was about 9.30 p.m. She has further stated that now she has recalled that whenever Kuldeep, Shiksha and Mamta came, they used to knock on the door and then she used to open the door. On the basis of the statement, case was registered. Statements of witnesses were recorded and the prosecutrix was got medically examined at GTB Hospital. Doctor handed over slide and sample seal pullanda which were seized by the police and deposited in malkhana. Thereafter, the investigation was handed over to SI Vineeta Tyagi who conducted investigation and got the bony age xray of the prosecutrix. Thereafter investigation was handed over to SI Satender Mohan who also conducted some enquiries locally and thereafter investigation was conducted by Inspector Shanti CAW Cell. Inspector Shanti got FIR no. 374/03 PS Khajuri Khas page 3/65 accused Kuldeep medically examined from GTB Hospital and seized MLC No.C734/04 and seized pullandas containing blood and sample seal of the accused and deposited them in the malkhana. The report regarding bony age xray of the prosecutrix was also obtained on which doctor declared the age of the prosecutrix to be 17/18 years. Blood sample and seal were sent to CFSL for opinion. Statement of prosecutrix u/s 164 Cr.P.C. was also got recorded on 25.5.2004 in which she stated that on 16.7.2003, her younger brother had gone for tuition and the elder one had gone to school. Her mother had gone to Sadar for purchasing rubber bands alongwith her father. Somebody knocked the door at about 2 p.m. When she opened the door, she found Kuldeep, Mamta and Shiksha standing. She wanted to close the door, but forcibly they entered the house. Kuldeep gagged her mouth with his hands and Shiksha bolted the door from outside. Mamta raised the volume of T.V. and Kuldeep started fondling with her. He started kissing all over her face and body and when she started shouting, Mamta gave her slaps on her face and Kuldeep gave her fist blows on her face and stomach. Mamta also dragged her down by pulling her hair and Shiksha held her feet. Shiksha told Kuldeep to do 'galat kaam' with her so that she would FIR no. 374/03 PS Khajuri Khas page 4/65 work with them. When the prosecutrix gave a leg blow to Kuldeep, Kuldeep pricked a sharp thing in her feet. He removed her salwar and torn her shirt. He also took off his pants and forcefully put his penis in her private parts. Due to severe pain she lost consciousness. When she regained consciousness, she found herself to be in hospital and the doctor was examining her. After providing her some treatment, she was brought to the Police Station Next day, Devender, Kuldeep, Sudhir and Neeraj Tyagi forcibly entered her house. Kuldeep was brandishing a knife and was asking her to compromise the matter. Her mother called the PCR. Police took them to Police Station and let them free. On 06.10.2003, Devender, Kuldeep, Sudhir and Neeraj Tyagi again entered her house forcefully. When her brother Narender came down stairs, they fled away from there. On 30.10.2003 Kuldeep, Shiksha and Mamta entered her house. Devender Tyagi was also accompanying them. Devender Tyagi gave her severe beatings and he stood at the gate. Kuldeep again did 'Galat kaam' with her. Shiksha was holding her hands and Mamta had th pressed her neck. Kuldeep did the same thing on 30 October which th he did on 16 July. She started bleeding from her vagina. She has th also narrated that on 14 October police took her to the police FIR no. 374/03 PS Khajuri Khas page 5/65 station where she was confined in the room of Vinita Tyagi whole night. On 15.1.2004, police people left her at the house of Mamta and Shiksha. They gave her beatings. Kuldeep's brother Sudhir was also present there and they wanted him to do 'galat kaam' with her. Sudhir moved his hand over her chest but did not do 'galat kaam'. Leaving her, they went in the inner room and she fled from there. On the basis of her statement, Inspector Shanti Devi arrested accused Kuldeep, Devender Tyagi and Shiksha. Pointing out memo was prepared on the basis of their disclosure. Their disclosure statements were recorded. At the pointing out of the prosecutrix, site plan was prepared and statements of witnesses were recorded. Accused Mamta Tyagi could not be traced despite several efforts. Thereafter investigation was handed over to SI Radha Pandey and on the basis of investigation, a case u/s 376/376(2)(g)/354/506/452 IPC was filed against the accused persons. Supplementary charge sheet was filed u/s 376/376(G)/323/452/354/506/34 IPC was filed against accused Sudhir. Accused Mamta Tyagi was declared a proclaimed offender. Ater her arrest, supplementary charge sheet was filed in respect of accused Mamta Tyagi for the offence punishable u/s 376/376G/341/452/506/34 IPC.
FIR no. 374/03 PS Khajuri Khas page 6/65
3. On the accusations, charges were framed against the accused persons to which they pleaded not guilty and claimed trial. During pendency of proceedings, accused Kuldeep expired. Subsequently charges were amended. Accused Mamta, Shiksha and Devender Tyagi were charged u/s 376/109 IPC read with Section u/s 452/323/34 IPC while accused Sudhir was charged for the offence punishable u/s 354 IPC. To the charges, all the accused persons pleaded not guilty and claimed trial.
4. Prosecution has examined 16 witnesses.
● PW1 is the prosecutrix (her name has not been disclosed to maintain her dignity). She is a very material prosecution witness who has narrated the entire incident. However, she stated that the police did not write her complaint and obtained her signatures on blank papers. She identified her signatures at point 'A' on statement Ex.PW1/A. She admitted her signatures on her statement u/s 164 Cr.P.C. which has been proved as Ex.PW1/B. ● PW2 is Const. Sanjeev. He had gone to CFSL, Calcutta, alongwith the exhibits. He deposited the exhibits in CFSL and as long the exhibits remained in his custody, nobody tampered with.
● PW3 is Const. Anil Kumar, who stated that on receipt of DD
FIR no. 374/03 PS Khajuri Khas page 7/65
No.28B, he alongwith SI Sripal reached GTB Hospital. In his
presence, SI Sripal informed the SHO to send a lady officer as the victim was a girl. Statement of prosecutrix was recorded by SI Shashi and ruqqa was sent through him for registration of the FIR. After registration of the case, he handed over the copy of the FIR and original ruqqa to SI Shashi.
● PW4 is Ram Wati, mother of the prosecutrix. ● PW5 is SI Sripal who stated that on 18.11.2003, on receipt of DD
NO.28B, copy of which is Ex.PW5/A, he went to GTB Hospital alongwith Const. Anil Kumar. Since the prosecutrix was a female, a woman official was called. MLC was handed over to IO who recorded the statement of prosecutrix and prepared ruqqa and handed over the same to Const. Anil Kumar who took the same to Police Station and got the case registered. On 19.11.2003, at GTB Hospital, the doctor had handed over one sealed pullanda containing slide of prosecutrix alongwith sample seal which was taken into possession vide memo Ex.PW5/B bearing his signatures at point B1.
● PW6 is Dr. Arifa, who stated that the MLC Ex.PW6/A of the prosecutrix was prepared by Dr. Ruchi and stated that Dr. Ruchi had left the hospital.
FIR no. 374/03 PS Khajuri Khas page 8/65 ● PW7 is Dr. Suchi Bhat, Radiologist, who proved ossification test
report of the prosecutrix as Ex.PW7/A bearing her signatures at point A1. As per xray report, the prosecutrix was found to be 17 to 18 years and the xray plates are Ex.PW7/B. ● PW8 is Dr. S.Kohli, who stated that MLC Ex.PW8/A of the prosecutrix was brought by H.C. Ravinder with the alleged history of assault and the MLC was prepared by Dr. Rajesh Kumar who had also left the hospital. He identified his signatures and handwriting and proved the same as mark A1.
● PW9 is SI Manohar, who stated that on 18.11.2003, he recorded the FIR of this case and handed over the copy of FIR and original ruqqa to Const. Anil Kumar. Copy of FIR is Ex.PW9/A and the endorsement on the ruqqa encircled in red is Ex.PW9/B. ● PW10 is Inspector Shashi, who stated that on 18.11.2003, she went to GTB Hospital and recorded the statement of prosecutrix vide Ex.PW1/A and prepared ruqqa vide Ex.PW10/A .
● PW11 is H.C. Yash Pal who brought the MHC(M) register and proved the relevant entries as Ex.PW11/A (collectively).
● PW12 is Dr. Prashant Kumar, to whom accused Kuldeep was
taken for medical examination. He prepared MLC of accused
FIR no. 374/03 PS Khajuri Khas page 9/65
Kuldeep vide Ex.PW12/A.
● PW13 is ACP Shanti Devi who stated that accused Kuldeep was
sent to GTB Hospital through Const. Yogender for medical examination. Blood sample was taken by the doctor and handed over to Const. Yoginder which was produced before her and same was taken into possession vide memo Ex.PW13/X. Arrest memos of accused persons have been proved as Ex.PW13/A1 to Ex.PW13/A3. They were personally searched and their personal search memos have been proved as Ex.PW13/B1 to Ex.PW13/B3.
● PW14 is Const. Yoginder Kumar who stated that on 15.3.2004, Kuldeep appeared before ACP Shanti Devi and he took the accused Kuldeep to GTB Hospital for medical examination. His MLC Ex.PW12/A was prepared. Blood sample sealed with the seal of hospital and sample seal were taken into possession vide memo Ex.PW13/X. ● PW15 is H.C. Satender Kumar who had joined the investigation and is a witness to arrest of the accused persons. ● PW16 is Const. Ombir Singh who also participated in the investigation.
5. Statements of accused persons were recorded u/s 313 Cr PC in FIR no. 374/03 PS Khajuri Khas page 10/65 which they denied the prosecution case and pleaded innocence. It is stated that there used to be frequent quarrels between them and the complainant. Many a times, police made kalandras under Section 107/150 Cr.P.C. against both the parties. Complainant lodged false complaints against them.
6. On behalf of the defence, 25 defence witnesses have been examined.
● DW1 is ASI Trilomani who stated that on 9.9.2007, a call regarding quarrel was received from the prosecutrix. He alongwith Const. Sitaram went to the spot. However, there was no sign of quarrel. He recorded DD No19A, copy of which is Ex.DW1/A. ● DW2 is H.C. Harsh Swaroop, who stated that he was in the security of the prosecutrix in the year 2007. On 9.9.2007, at about 5.58 p.m., she made a call to PCR in his presence. No one threatened her in his presence nor any quarrel took place. ASI Trilomani Bhatt telephonically asked him regarding the occurrence and he told him that no such occurrence had taken place. Presecutrix might have called PCR about 2030 times during his tenure. On 9.9.2007, he made DD entry No. 31B, photo copy of which is Ex.DW2/A. FIR no. 374/03 PS Khajuri Khas page 11/65 ● DW3 is Const. Hari Shanker who stated that he remained in the th security of prosecutrix from December, 2005 to 17 of April, 2008. She made 100150 calls to the PCR during this period. On enquiry, all these calls were found to be false. That prosecutrix used to threaten him to make call to Commissioner of Police or the higher authorities and get him involved in some false cases. He has further stated that the prosecutrix used to threaten the SHO and other staff to take action against the accused persons otherwise she would falsely implicate the police officials. She even threatened to commit suicide in river Yamuna. She used to dance with PSO after consuming liquor. Other public persons made calls to PCR regarding the same. He was cross examined on behalf of the State. In his cross examination, he stated that the prosecutrix had even danced with him after consuming liquor. However, he did not make any complaint or report to the police.
● DW4 is Shri N.K. Sharma, Ahalmad in the court of Sh. Sonu Agnihotri, Ld. M.M. He produced the record of case file No.458/07, u/s 309 IPC, Police Station Khajuri Khas, Delhi. Challan was filed in the court on 2.5.2008 in case titled as State vs Sonia daughter of Chander Pal R/o C127, Gali No.12, Khajuri Khas, Delhi. The case FIR no. 374/03 PS Khajuri Khas page 12/65 was to the effect that prosecutrix had consumed poison and regarding the threats advanced by her to implicate Shiksha Tyagi, Devender Singh Tyagi and Kuldeep. Since Inspector Ramesh Dhaiya has also been examined as DW4, Sh. N. K. Sharma would be referred as DW4A.
● DW4 Inspector Ramesh Dhaiya stated that on 11.9.2007. he was posted at Police Station Khajuri Khas as Addl. SHO. On that date, he sent a report to ACP, Gokal Puri, regarding the conduct of prosecutrix vide office letter No.3464RSHO/KK dated 12.9.2007. The report has been proved as mark A. On 11.9.2007, DD No.14B to the same purpose was recorded, true copy of which is mark B. He was Addl. SHO of Police Station Khajuri Khas from September, 2006 to May, 2008 and prosecutrix might have called the PCR 4/5 times to his knowledge.
● DW5 is Const. Kuldeep who was posted at Police Station Khajuri Khas from June, 2006 to April 2009. He was PSO of prosecutrix from June, 2006 to September, 2007. Prosecutrix made calls to the PCR during this period for more than 100 times. She was in the habit of making calls and sometime she used to say that she was committing suicide or sometime she used to go to Police Station and used to sit FIR no. 374/03 PS Khajuri Khas page 13/65 on the table top of the SHO in order to pressurize police officials. ● DW6 is H.C. Babu Lal, who stated that no copy of letter dated 26.7.2003 written by prosecutrix to Chief Justice, Supreme Court of India was received at P.S. Khajuri Khas.
● DW7 is H.C. Surender Kumar, who stated that complaint dated 27.10.2003 does not bear stamp of C.P. Office and it was not available in their record.
● DW8 is ASI Indu Bala who stated that one complaint made by prosecutrix was received on 13.10.2003 and same was sent to DCP North East District vide dispatch No.38580/HANDR dated 17.10.2003. Copy of the complaint has been marked as A. She also stated that complaint of one Kavita was also sent to DCP North East District vide letter No.F(i)/VIG/NE/39767 dated 01.12.2004, photo copy of which is mark A. ● DW9 is H.C. Pramod Kumar who stated that complaint of one Kavita was brought in the office and was entered at serial No.197 and the complaint was sent to SHO PS Khajuri Khas for necessary action. ● DW10 is H.C. Vikas. He has stated that he was asked to bring the record pertaining to complaint dated 8.10.2003, sent by the prosecutrix and complaint dated 6.11.2004 sent by Kavita. Both the FIR no. 374/03 PS Khajuri Khas page 14/65 complaints have been destroyed vide order dated 11.7.2007and 2.5.2008, as per the approval of DCP, North East District dated 11.7.2007 and 2.5.2008. Copy of the order are mark A and B. ● DW11 is H.C. Babu Lal who produced the complaint received from one Neetu Tyagi on 17.9.2004, which was marked to ASI Ram Kishore Tyagi for action in the matter. The application is still pending with ASI Ram Kishore.
● DW12 is Sabita Dass, record clerk from Delhi Commission for Women, who stated that no complaint was filed by prosecutrix on 26.7.2003, as per their record.
● DW13 is ASI Ashwani Kumar, record clerk, from DCP Office, who stated that the record pertaining to the period 1.1.2003 to 31.12.2003, have already been destroyed with the approval of Addl. DCP North East on 18.6.2007.
● DW14 is SI Krishan Kumar, who produced the complaint dated 8.10.2003, filed by prosecutrix as mark A which was received in the office of Joint C.P. on 27.10.2003.
● DW15 is ASI Ravi Karan, who stated that on 10.9.2007, he was posted at Police Station Khajuri Khas. On that day, on receipt of DD NO.28 A and 30, he found Ramwati and prosecutrix sitting in the FIR no. 374/03 PS Khajuri Khas page 15/65 office of SHO and other party namely Devender Tyagi, Shiksha, Mamta, Rajeshwari and Karan Singh. He recorded the statements of Ramwati and the prosecutrix and after recording their statements he proceeded against the other party by way of kalandra u/s 107/150 Cr.P.C. He produced kalandara before Executive Magistrate, Seelampur. He proved the kalandra bearing his signatures at point A as Ex.DW15/A. He initiated proceedings against one party and did not record statement of the other party. PSO of the prosecutrix was also inquired by him. He also stated that he made enquiries and came to know that there used to be altercation between prosecutrix and the other party. He also stated that it had come to his knowledge that prosecutrix was victim in a case and used to receive threats from other party. Prosecutrix might have made 1520 calls to the PCR during the two year period.
● DW16 is Kavita Tyagi who stated that on 19.7.2003, at about 8.30 or 9 p.m., one compromise was entered between Smt. Ramwati, mother of the prosecutrix and Devender Tyagi and others, regarding a quarrel which had taken place in the presence of Satpal Singh, Pradhan of Khajuri Khas, Colony Market Welfare Association. Kuldeep, Shiksha, Devender Kumar Tyagi, Ramwati, Nitu and Mamta FIR no. 374/03 PS Khajuri Khas page 16/65 and one Gajraj Singh (now expired) had signed on the compromise besides him. She admitted her signatures at point A at markA (carbon copy of the said compromise) and an amount of Rs.3000/ was given by them through Devender Tyagi to Smt. Ramwati. ● DW17 is Satpal Singh Tomar. He stated that document mark X bears his signature at point A. Gajraj Singh (now expired) in his whose premises he used to run his shop, got his signature on the document mark X. He did not know as to for what purposes this document was prepared. None was present when he put his signature on the document mark X. ● DW18 is Dr. Irfan from Khajuri Khas. He has stated that he has been running his clinic for the last 10 years. He used to give medicines for sneezing, flu etc. He did not remember if he had given medical treatment to prosecutrix. He did not give any treatment in the year 2003, when prosecutrix Sonia came to him with the history of bleeding. He also stated that the prosecutrix is resident of the same locality.
● DW19 is Dr. Virender Kumar Choudhary. He is also a doctor by profession who stated that his clinic is sitauted at B Block, Main Market, Khajuri Khas. He had been running this clinic for the last FIR no. 374/03 PS Khajuri Khas page 17/65 23/24 years. He used to provide medicines to the patient for general ailment, such as cough, fever, etc. He stated that in the year 2003, prosecutrix did not come at his clinic with the history of bleeding. He did not give her treatment. He knew the prosecutrix since her childhood.
● DW20 is Karan Singh who stated that Rameshwari Devi is his wife. He stated that no quarrel took place between Ramwati and Rameshwari Devi in the year 2007. He did not receive any summons from the office of ACP regarding quarrel. Once he went to ACP office at Seelampur alongwith his wife where Devender Tyagi, Shiksha and Mamata were also present. He did not see mother of the prosecutrix there.
● DW21 is Brij Nandan, a neighbour of the parties. ● DW22 is Radhey Shyam. He stated that the prosecutrix and her mother never threatened him not to depose before the court. ● DW23 is ACP Surender Singh. He stated that FIR No.374/03 was registered during his tenure. He stated that on 31.10.2003, he did not say to prosecutrix when she came at the Police Station that such types of things usually happen with girls. He also stated that prosecutrix never misbehaved with the police officials at the Police FIR no. 374/03 PS Khajuri Khas page 18/65 Station. He has not been cross examined on behalf of the prosecution.
● DW24 is Shri R.S.Roy, he also supported the prosecutrix stating that that the notice dated 27.7.2009 Ex.PW24/D bears his signature at point A and that of the prosecutrix at point B. Whatever he had written in his notice, same is at the version and direction of his clientess, prosecutrix. DW6 H.C. Babu Lal to DW13 ASI Ashwani Kumar and DW17 Satpal Singh Tomar to DW23 ACP Surender Singh have not been cross examined and therefore, their testimony goes unrebutted and uncontroverted.
7. I have heard Addl. PP for the state and the defence counsel Sh.R.K.Chaudhary at length and gone through the entire record meticulously and scrupulously.
8. PW1, the prosecutrix is the star witness of the prosecution case who identified all the accused persons and stated that accused Mamta and her mother Shiksha were residing in her neighbourhood and once Mamta told her that she should adopt the same profession which they were doing. She told her to work with them for about 2/3 times. She enquired from accused Mamta and Shiksha about nature of work and they told her that she had to sit with the people who FIR no. 374/03 PS Khajuri Khas page 19/65 would come to their house. They would touch her body and she should not object to this. They allured her for doing the said work by saying that she would be getting a lot of money for a small work. She refused to do the said work. She narrated the same to her mother. Her mother told accused Mamta and Shiksha not to teach bad things to her and also told them that they are having daughters in their family and they should not do such things. Thereafter an altercation took place between them. Her mother also warned them that in case they would ask her to do the said job, her mother would make a complaint to the police. Her mother also told her to remain in the house and not to talk with them.
9. On 16.7.2003, at about 2 p.m. her younger brother had gone to tuition and the elder brother had gone to school. Her mother had gone to Sadar Bazar and her father was away to Gandhi Nagar for delivery of some goods. Someone knocked at the door. After listening to the knock on the door, she opened the door and found accused Kuldeep, Mamta and Shiksha standing outside the gate. On seeing them, she tried to shut the door but they forcibly entered inside her house. The accused Kuldeep gagged her mouth. Accused Shiksha bolted the door from outside and accused Mamta increased the sound of T.V.
FIR no. 374/03 PS Khajuri Khas page 20/65 The accused Kuldeep started doing bad things with her. He started touching her breast and kissing the same. When she tried to shout, the accused Mamta gave slaps on her face and accused Kuldeep gave her fist blows on her stomach and thereafter accused Mamta made her lie on the ground by pulling her hair whereas accused Shiksha was holding her legs. Accused Shiksha told accused Kuldeep "to do galat kaam with her" so that she may agree to work with them. Accused Shiksha caught hold of her hands and accused Kuldeep removed her salwar forcibly and torn her kurti. She gave a leg blow to Kuldeep and he pricked some pointed object in her feet. Accused Kuldeep thereafter removed his pants and penetrated his male organ in her vagina due to which she felt pain. After this incident, she lost consciousness and when she opened her eyes she found herself in the hospital where the doctor was medically examining her and her mother and one police official Pramod Chauhan was also present there. That police official Pramod Chauhan asked her as to what had happened. She told him the facts. She was taken to the police station after she was medically examined by the doctor. In the police station accused Kuldeep, Shiksha, Mamta and Devender were sitting in the police station alongwith some FIR no. 374/03 PS Khajuri Khas page 21/65 Gujjars. Pramod Chauhan told her mother "Teri Ladki Ke Sath Kuch Nahi Hua and she is telling a lie". He also told her mother and father to compromise the matter by taking 20003000 rupees from the accused persons. Her parents did not agree to this and brought her to house.
10. The next relevant incident is that of 6.10.2003, in respect to which she stated that on 6.10.2003, accused Kuldeep, Devender Tyagi, Mamta and Shiksha entered her house. Her brother Narender was on the roof at that time. On seeing the accused persons she raised alarm and her brother Narender got down from the roof . The accused persons threatened her that if she did not take back the case, they would kidnap her brother and they went away from her house. Her parents came back about 9/9.30 p.m. and she told them about the threats of the accused persons and they informed the police at 100 number.
11. The next relevant incident is that of 30.10.2003, in respect to which she has stated that on 30.10.2003, at about 4 p.m., she was cleaning her house. The accused Kuldeep alongwith Devender Tyagi, Shiksha and Mamta entered her house. Accused Devender gave her severe beating and he told accused Kuldeep that he is standing on FIR no. 374/03 PS Khajuri Khas page 22/65 the gate and Kuldeep should be quick. On this accused Shiksha caught hold of her hands and accused Mamta pressed her neck and accused Kuldeep committed sexual intercourse with her against her will. In fact, accused Kuldeep did the same act with her on 30.10.2003, which he did with her on 16.7.2003. As a result, she started bleeding from her vagina. Thereafter accused persons went from there. She told these facts to her mother when she came back at about 6 p.m. When her father came back, they all went to SHO Surender Singh (DW23) of Police Station Khajuri Khas. She narrated the entire facts to SHO in presence of her mother. After hearing to her, SHO told her, "AISA TO LADKIYON KE SAATH HOTA HI REHTA HAI" and she should not disclose the same to anybody and he suggested that she should be treated by some private doctor as she was continuously bleeding from her vagina. Her mother got her treated by some private doctor of the locality. As there was no improvement in her condition, her mother took her to GTB Hospital on 17.11.2003. In the hospital, doctor told her mother that she should be taken to OPD as the bleeding was not stopping. On 18.11.2003, she was taken to OPD of GTB Hospital where documents were prepared and she was taken to a room whereas her mother remained outside.
FIR no. 374/03 PS Khajuri Khas page 23/65 The doctor after seeing her condition asked as to what had happened with her. She narrated the entire facts to the doctor. The doctor called her mother and rebuked her for hiding these facts and on this her mother told the doctor that SHO had directed her not to disclose this fact to anyone. The doctor informed the police at 100 number. One police official Sripal came there and she gave her statement to him. Three lady police officers from Women Cell also came there and she also told them about the incidents as happened with her. She was admitted in the hospital.
12. She has also stated that on 14.1.2004, three ladies in the police uniform came to her house and told her that she should accompany them to Police Station as her statement would be recorded. Her mother requested them that she should also be allowed to accompany her to Police Station but they assured her mother that they would send her back after recording her statement. She was taken to Police Station by those police officials at Police Station Khajuri Khas. She was confined in the room of SI Vineeta Tyagi throughout the night at Police Station Khajuri Khas.
13. On the next day i.e. 15.1.2004, early in the morning those police officials left her in the house of accused Mamta and Shiksha. Both FIR no. 374/03 PS Khajuri Khas page 24/65 the accused persons gave beatings to her. They called the accused Sudhir who is the elder brother of accused Kuldeep. The accused Sudhir touched her entire body and then he left but he did not commit rape on her. After the accused Sudhir left, all the accused persons told her to sign certain blank papers and then they left for the inner room leaving her in the outer room of the house. She immediately ran away from their house and reached near the gate of her house. In the meantime, accused Devender Tyagi and Mamta came there and dragged her in the gali and gave severe beatings to her. They wanted to drag her inside their house, but somebody informed the PCR. The police officials reached there and rescued her. The PCR officials told her that she should change her clothes, so that they could take her to the hospital. As she had injuries on her face, hands and legs, MLC was prepared after her medical examination and she was brought in the Police Station.
14. She has also stated that the police did not write her complaint when they reported the matter. Instead her signatures were obtained on blank papers. She identified the signatures at point A on Ex.PW1/A. However, she stated that SI was not recording exactly what she was stating. She also stated that the proceedings u/s 164 FIR no. 374/03 PS Khajuri Khas page 25/65 Cr.P.C. Ex.PW1/B is bearing her signatures at three places at point A.
15. Another material prosecution witness is PW4 Ram Wati, mother of the prosecutrix, who stated that on 16.7.2003, she had gone to the market and when she came back to her house, she found the main gate of her house in open condition and her daughter was lying on the bed in the room in unconscious condition and her salwar was lying separately and her kurti was torn. She was bleeding from the vagina and from her leg. She called her, but she did not respond. She put her salwar on and then went to the telephone shop and called the PCR. They took her to GTB hospital. Police officials from Police Station came to the hospital and one of them was Pramod Chauhan. He made enquries from her daughter and then took them to the Police Station Accused Kuldeep and Devender Tyagi were already present in Police Station with two or three other persons. The police officials told her to take Rs.2000/ or 3000/. The police officials told her that nothing had happened with her daughter and she was telling a lie. She did not agree to compromise the matter and came back to her house with her daughter.
16. On the next day i.e. 17.7.2003, when she opened the door of her house accused Kuldeep, Devender Tyagi and Sudhir alongwith one FIR no. 374/03 PS Khajuri Khas page 26/65 Neeraj were standing in front of her house. Accused Kuldeep was having a knife in his hand and they all threatened her to take back her case. She called the police.
17. On 6.10.2003, when she had gone to the market, accused Kuldeep, Devender Tyagi and Mamta came to her house and threatened her daughter. When she came back, her daughter told her about the same. She again made complaint to the police. They took her to the Police Station and after sometime they left them from the Police Station.
18. On 30.10.2003, when she had gone to the market, the accused came and did the same thing to her daughter. When she came back from the market, her daughter told her about the incident. She took her daughter to the SHO. The SHO told her that such things happen with the girls and she should not tell about this incident to anyone. He also told her to get some medicines for her daughter from the doctor. She got medicines from the doctor but her condition deteriorated. She then took her daughter to GTB Hospital on 17.11.2003, but they refused to see her on the plea that it was a police case. When the condition of her daughter became very bad, she told everything to the doctor on 18.11.2003. Her daughter was medically examined. Police FIR no. 374/03 PS Khajuri Khas page 27/65 came to the hospital and recorded statement of her daughter. Her daughter was admitted in the hospital.
19. On 14.1.2004, she had gone to see her father when she received a telephone call from her daughter that two ladies were harassing her and asked her to come home. When she came home, she found that her daughter had called the PCR. In the evening two ladies and two gents came to their house and told her that the SHO was calling her daughter to record her statement. She told them that she would also come with them, but they said that only her daughter had been called. Her daughter was kept in the Police Station throughout the night. She searched for her daughter. On the next morning, she was not allowed to go inside the Police Station. Then she went to meet her advocate. Her advocate filed a case in the High Court on the same day. When she came back in the evening on 15.1.2004, from the court she found her daughter at home. She was in a very bad condition and was vomiting. She took her to a nursing home, but they directed her to take her to a hospital because it was a police case. She then took her daughter to GTB Hospital. They remained in the hospital throughout the night. On the next day, she took her daughter and produced her before the High Court. The High Court called the DCP FIR no. 374/03 PS Khajuri Khas page 28/65 and the SHO. The High Court directed the police to register the case and transfer the investigation.
20. As regards the accusations relating to 16.7.2003, in her testimony before the Court the prosecutrix has stated: "on 16.7.2003 at about 2.00 pm my younger brothers had gone to tuition and the elder from him had gone to the school, my mother had gone to Sadar Bazar and someone knocked the door. My father was also away to Gandhi Nagar for delivery of some goods. After listening the knock on the door I opened the door. I found the accused Kuldeep, Mamta and Shiksha standing outside the gate. On seeing them, I tried to shut the door but they forcibly entered inside my house. The accused Kuldeep gagged my mouth. Accused Shiksha bolted the door from outside and the accused Mamta increased the sound of the TV. Accused Kuldeep started doing bad acts with me. He starting touching my breast and kissing the same. When I tried to shout the accused Mamta gave slaps on my face and accused Kuldeep gave me fist blows on my stomach and thereafter accused Mamta made me lie on the ground by pulling my hair whereas accused Shiksha was holding my legs. Accused Shiksha told accused Kuldeep to do 'galat kaam with me' so that I may agree to do work with them. Accused Shiksha caught hold FIR no. 374/03 PS Khajuri Khas page 29/65 of my hands and accused Kuldeep removed my salwar forcibly and torn my kurti, I gave leg blow to Kuldeep and he pricked some pointed object on my feet. Accused Kuldeep thereafter removed his pant and penetrated his male organ in my vagina due to which I felt pain. After this incident I lost consciousness and when I opened my eyes I found myself in the hospital where the doctor was medically examining me and my mother and one police official Pramod Chauhan was also present there".
21. In her cross examination she stated that she was medically examined after the incident of rape on 16.7.2003. She denied the suggestion that she did not tell the doctor about the rape by accused Kuldeep though in the MLC Ex.PW8/A there is no allegation of rape. She also denied the suggestion that in the Police Station her mother had compromised the matter u/s 107/150 Cr PC with the accused persons. In their defence accused persons examined DW16 Kavita Tyagi who identified her signature on the carbon copy of compromise deed mark A dated 19.7.2003 between Smt. Ramwati (mother of prosecutrix) and Devender Tyagi and also regarding a quarrel which had taken place between them. However, the original was not produced and it was stated that original compromise was given to FIR no. 374/03 PS Khajuri Khas page 30/65 Ramwati and her daughter. She also denied the suggestion that she had told the police that a dog had come to the spot and therefore no rape was committed upon her. She further stated that her statement was recorded by SI Vineeta Tyagi on 08.10.03. She negated the suggestion that she had not stated before SI Vineeta Tyagi about rape. She was confronted with her statement Ex PW1/DA where it was not so recorded. She also stated that the statement of her father was not recorded but signatures were obtained on blank papers by SI Vineeta Tyagi. She further negated the suggestion that on 19.7.2003 she had gone to the police station with her mother and compromised the matter with respect to the quarrel which took place on 16.7.03. On 16.7.03 at about 3.20 pm prosecutrix was taken to GTB hospital. The MLC prepared on 16.7.03 by Dr. Rajesh Kumar has been proved by PW8 Dr. S. Kohli CMO GTB hospital as Ex. PW8/A. He has stated that as per MLC Ex. PW8/A prosecutrix d/o Chanderpal 16 years female was brought by HC Ravinder with alleged history of assault. He has further stated that as per MLC on local examination there was abrasion over right forearm upper anterior side measuring 1 x 0.5 cm and 1.5 x 1 cm. There was also a lacerated wound over left leg measuring 1 x 1 cm an abrasion 0.5 x 0.5 cm. As per MLC nature of FIR no. 374/03 PS Khajuri Khas page 31/65 injury was opined as blunt. In his cross examination PW8 Dr. S. Kohli stated that he was working as CMO on the day when MLC was prepared and Dr. Rajesh was working under him. Therefore the medical evidence brought on record does not support the version of the prosecutrix that she was ravished by the accused Kuldeep (deceased) on 16.7.2003. She is also shown conscious and oriented whereas the prosecutrix stated in her testimony that she lost consciousness and when she opened her eyes she found herself in the hospital where the doctor was medically examining her. This version of the prosecutrix that she was raped and was bleeding from vagina is not supported by medical evidence on record. In her complaint made to the police on 18.11.2003 Ex. PW1/A complainant has not mentioned about the incident dated 16.7.2003 in which she has stated as under: 'That she has been living with her parents and two brothers on the above mentioned address and is doing stitching work. That she left studies about 56 month back. She used to study in a small school near PS Khajoori Khas. Kuldeep, Mamta and Shiksha are her neighbourers. Whenever she was alone at home they would come to her. Kuldeep would press her mouth and Mamta and Shiksha also used to help him FIR no. 374/03 PS Khajuri Khas page 32/65 and Kuldeep used to do 'galat kaam' with her. Whenever they used to come, nobody would be at home and the door of her house was also open. After 30.10.2003 they never came to her house. On 06.10.2003 her brothers Narender and Vikas had seen accused Kuldeep doing galat kaam with her. At that time Kuldeep was also accompanied by Devender, Mamta and Shiksha and it was 9.30 PM. She further stated that whenever accused Kuldeep, Shiksha and Mamta came they would knock at the door and then she would open it'.
22. In this complaint there is not even a whisper about the incident dated 16.7.2003. In her cross examination she has further stated that she had filed three writ petitions in the Hon'ble Delhi High Court. She stated that she did not know the contents of her writ petition Ex PW 1/DX which bears her thumb impression at point A. She further stated that in the writ petition she had made only allegations of 'chedkhani' with her on 06.10.2003 and she had not told any allegation of rape to her lawyer.
23. PW4 Ramwati, mother of the prosecutrix has also stated that on 16.7.03 she had gone to the market and when she came back to her house, she found the main gate of her house in open condition and her daughter was lying on the bed in the room in unconscious FIR no. 374/03 PS Khajuri Khas page 33/65 condition and her salwar was lying separately and her kurti was torn. She was bleeding from the vagina and from her leg. She called her but she did not respond. She put her salwar on and then went to the telephone shop and called the PCR. They took her to the GTB hospital. Police officials from police station came to the hospital and one of them was Pramod Chauhan. PW4 Ramwati has stated that her daughter was in an unconscious condition. PW1 the prosecutrix also stated that after the incident of 16.7.03 she lost consciousness and when she opened her eye she found herself in the hospital. Doctor was medically examining her and her mother and one police official Pramod Chauhan was also present there. However the prosecution has not examined a very material witness of the case i.e police official Pramod Chauhan. Otherwise also MLC Ex. PW8/A prepared on 16.7.03 shows that the prosecutrix was conscious and oriented when she was examined by the Doctor. In her cross examination PW4 Ramwati stated that she had told the police everything that she had stated in the Court. She had told the police that Mamta and Shiksha used to instigate her daughter to do immoral acts. Confronted with her statement Ex. PW4/DA where it was not so recorded. She had not told the police that on 16.7.03 when she had FIR no. 374/03 PS Khajuri Khas page 34/65 come back from the market, her daughter was lying unconscious and her salwar was lying separately and kurti was torn. She had told the police that her daughter was bleeding from the vagina and leg and when she called her she did not respond. She was confronted with her statement Ex. PW4/DA where it was not so recorded. She also stated to the police that she had called the police. They took them to police station and after sometime left them. She was confronted with her statement Ex. PW4/DA where it was not so recorded. She had not stated to the police that they were taken to the hospital and after that they were brought back to the police station. She had told the police that when they came to the police station, Kuldeep and Devender Tyagi were also present there. She was confronted with her statement Ex. PW4/DA where it was not so recorded. She also told the police that SHO told her to take her daughter home and that such things happen with the girls. She was confronted with her statement Ex. PW4/DA where it was not so recorded. She had told the police that she took her daughter to the nursing home who told her that it was a police case and then she took her daughter to GTB hospital. She was confronted with her statement Ex. PW4/DA where it was not so recorded. She had stated to the police that accused Mamta along FIR no. 374/03 PS Khajuri Khas page 35/65 with Vineeta Tyagi came to the hospital while her daughter was admitted there. She was confronted with her statement Ex. PW4/DA where it was not so recorded.
24. In her cross examination she has stated that she filed three writ petitions in the Hon'ble Delhi High Court in connection with the present case. One writ petition was filed by her in January 2004 when her daughter was detained in the police station. She had filed one writ petition prior to January 2004 when the accused persons were pressurizing them to compromise the matter. She had seen the writ petition dated 15.1.04 filed by her lawyer Sh. Surender Anand which is Ex. PW4/DX bearing her thumb impression at point A. She admitted that she had filed a writ petition on 07.1.04 in the Hon'ble Delhi High Court which is already Ex. PW1/DX.
25. Ex. PW1/DX is the writ petition filed in the Hon'ble Delhi High Court on 07.01.2004 through advocate Sh. Surender Anand by the prosecutrix through her mother and natural guardian Smt. Ramwati in which the list of dates and events had been given and it is mentioned against the date 16.7.2003 that "accused persons trespassed and made a forcible entry in the house of the petitioner and outraged her modesty and also made an attempt to rape her, so one call FIR no. 374/03 PS Khajuri Khas page 36/65 was made to the police control room at telephone no. 100. Officers of the patrol car sent by the police control room took the petitioner to GTB hospital where she was provided first aid treatment and one MLC bearing no. C1946/03 was prepared by the doctors who attended her and statement of the petitioner was recorded by SI Pramod Chauhan at the hospital". In these details there is no allegation of rape committed by the accused Kuldeep (deceased) on 16.7.03. In the body of the writ petition Ex. PW1/DX it is also mentioned that "on 16.7.03 petitioner was outraged and molested by her neighbours who are running brothels and flesh trade under the patronage of the local police and this matter was immediately reported to the police of police station Khajoori Khas but no action was taken by the police despite petitioner was admitted in GTB hospital for treatment and one MLC No.C1946/03 was prepared by the physician who attended her".
26. The defence Counsel has submitted that another criminal writ petition no. 48/04 dated 15.1.04 was filed by the Advocate Sh. Surinder Anand proved as Ex. PW4/DX pursuant to which a status report giving the sequence of events and brief facts of the case was FIR no. 374/03 PS Khajuri Khas page 37/65 filed by the police wherein it is stated "A PCR call was received about quarrel at C127, Gali No.12, Khajuri Khas, Delhi and same was registered vide DD NO.11A, dated 16.7.2003. On that prosecutrix d/o Chanderpal was medically examined at GTB Hospital, where the doctor opined her 'fit for statement' and result was 'simple blunt'. Prosecutrix as well as other witnesses did not mention the allegation of outraging her modesty, attempt to rape or rape in the statement recorded at P.S. Khajuri Khas on 16.7.2003. However, reliance cannot be placed on this document as it has not been duly proved. It has also been pointed out by Counsel for the accused Mr. R. K. Chaudhary that in the writ petition No.925/03 filed by the petitioner before the Hon'ble High Court dated 5.8.2003 she stated that on 16.7.03 when the accused Kuldeep was trying to ravish her then the dog who was on the first floor of the house came after breaking the chain and attacked on the culprits. While in her deposition before the court she has completely changed the story. It is contended by the defence Counsel that due to being on inimical terms with the neighbors a false case was got registered by the prosecutrix. He has also pointed out the fact that though the incident was committed on 16.7.2003, no report was lodged to the police prior to 18.11.2003 and FIR no. 374/03 PS Khajuri Khas page 38/65 even in the complaint to the police on 18.11.2003 the prosecutrix did not make any such allegations and this allegation was made for the first time by the prosecutrix when her statement was recorded by Ld. MM u/s 164 Cr PC on 25.05.04 i.e. after almost 10 months of the incident dated 16.7.03.
27. From the evidence on record oral as well as documentary it is not proved beyond reasonable doubt that accused Kuldeep (deceased) committed rape upon the prosecutrix on 16.7.03 and it was abetted by accused Mamta and Shiksha. Therefore, I hold that the prosecution has failed to prove that accused Mamta and Shiksha in furtherance of their common intention abetted the commission of rape by accused Kuldeep (deceased) on 16.7.2003.
28. The next incident is dated 06.10.2003 regarding which it has been stated by the prosecutrix PW1 that on 06.10.2003 accused Kuldeep, Devender Tyagi, Mamta and Shiksha entered inside their house. Her brother Narender was on the roof at that time. On seeing the accused persons she raised alarm and Narender got down from the roof. The accused persons threatened her that if she did not take back the case they would kidnap her brother and they went back from her house. Her parents came back at about 9.00/9.30 PM. She told them about FIR no. 374/03 PS Khajuri Khas page 39/65 the threats of the accused persons and they informed the police. On this one police officer Ram Kishore Tyagi came to their house. He took her, her parents as well as accused Kuldeep, Devender Tyagi, Mamta and Shiksha to police station and after sometime they were asked to go. However the prosecution has neither examined the brother of the prosecutrix Narender nor examined police official Ram Kishore Tyagi to substantiate the facts. In her cross examination she stated that on 06.10.2003 no rape was committed upon her. She volunteered that on 06.10.2003 some 'Chedkaani' was done with her. In the year 2004 her brother had filed a writ petition against the police officials and she did not know if any allegation of rape dated 06.10.2003 was made in the aforesaid petition. She further stated that on 13.01.2004 she had visited Hon'ble Delhi High Court. She did not know what were the contents of the writ petition Ex. PW1/DX. She further stated that in the said writ petition she had only made allegation of 'Chedkhaani' with her on 06.10.2003 and she had not told any allegation of rape to her lawyer. Though in her testimony before the Court PW1 has not mentioned anything about any 'chedkhaani' done with her on 06.10.2003. She simply stated that the accused persons trespassed into her house and threatened to kidnap FIR no. 374/03 PS Khajuri Khas page 40/65 her brother if she did not take back the case. Despite the fact that her brother Narender was at home he was not made a witness.
29. PW4 Ramwati, mother of the prosecutrix stated that on 06.10.2003 when she had gone to the market accused Kuldeep, Devender Tyagi and Mamta came to her house and threatened her daughter. When she came back her daughter told about the same. She then again made a complaint to the police. They took them to the police station and after sometime they left them from the police station. In her cross examination she admitted that she had filed a writ petition on 07.1.2004 in the Hon'ble Delhi High Court which is already Ex. PW1/DX. She had not got recorded in Ex. PW1/DX that on 06.10.2003 rape had taken place with her daughter Sonia. This is in contradiction to the contents of the writ petition Ex. PW1/DX wherein while giving the details of events against the date 06.10.2003, it is mentioned that "at about 9.00 PM all the accused persons again made forcible entry and trespassed in the house of the petitioner when she was alone in her house along with her two minor brothers, extended threats of life and raped her. She reported the incident to her mother when she returned back who reported the matter to Police Control Room at telephone no. 100. One van of the Police Control FIR no. 374/03 PS Khajuri Khas page 41/65 Room came to the house of petitioner. One Head Constable of the Delhi Police Sh. Ram Kishore enquired from the petitioner and handed over the matter to the local police of Police Station Khajuri Khas. No statement of either petitioner or her mother was ever recorded on the fateful night nor she was taken to the hospital for the purpose of MLC. This is in total contradiction to the statement given by the prosecutrix before the court. In her statement she has not made any allegation of rape and she stated that when the threats were being extended by the accused persons her brother Narender got down from the roof and witnessed the incident. However, in Ex.PW1/DX she stated that at about 9 P.M. accused persons made forcible entry and trespassed in the house and extended threats of life and raped her. Counsel for the accused Sh. R.K. Chaudhary has relied upon the status report filed on behalf of the Commissioner of Police before the Hon'ble High Court wherein it is mentioned that "a PCR call was received about quarrels at C Block, Gali NO.12, H.No.127, Khajuri Khas, Delhi and same was registered vide DD No.25A on 6.10.2003. H.C. Ram Kishore and SI Om Parkash reached the spot and on enquiry it was found that there was a quarrel between Chander Pal, father of Sonia and Devender, the neighbour, FIR no. 374/03 PS Khajuri Khas page 42/65 husband of Shiksha and father of Mamta. No one was injured. As no cognizable offence was made out, call was filed by SI Om Parkash on same day". Though the report being relied upon by the defence counsel cannot be considered as it has not been duly proved by the scribe of the document. However, the prosecution has to stand on its own legs. There are material contradictions in the statement of the prosecutrix. If the accused persons just trespassed into the house of the prosecutrix and threatened her or was she raped by the accused. In view of the material contradictions, I hold that the prosecution has not been able to establish that on 6.10.2003 accused Mamta, Kuldeep (deceased) and Shiksha in furtherance of their common intention committed trespass by entering into the house of the prosecutrix having made preparation for causing hurt and committing an offence of rape.
30. The next incident relates to 30.10.2003 in respect of which it has been stated by the prosecutrix that on 30.10.2003 at about 4 P.M. she was cleaning her house. Accused Kuldeep alongwith Devender Tyagi, Shiksha and Mamta entered her house. Accused Devender gave her severe beating and told accused Kuldeep that he is standing on the gate and accused Kuldeep should be quick. On this accused FIR no. 374/03 PS Khajuri Khas page 43/65 Shiksha caught hold of her hands and acused Mamta pressed her neck and accused Kuldeep committed sexual intercourse with her against her will. In fact, accused Kuldeep did the same act with her on 30.10.2003 which he did with her on 16.7.03. With the result, she started bleeding from her vagina and thereafter, the accused persons went from there. She told these facts to her mother when she came back at about 6 P.M. When her father came back, they all went to SHO Surender Singh of PS Khajuri Khas who enquired from her about the incident. After hearing the same SHO told her "AISA TO LADKIYAO KE SAATH HOTA HI REHTA HAI" and she should not disclose the same to anybody and he suggested that she should be treated by some private doctor, as she was continuously bleeding from her vagina. As there was no improvement in her condition, her mother took her to GTB Hospital on 17.11.2003. In the hospital the doctor told her mother that she should be taken to OPD as the bleeding had not stopped till then. On 18.11.2003, she was taken to the OPD of GTB Hospital where the documents were prepared and she was taken to a room whereas her mother remained outside. The doctor after seeing her condition asked her as to what had happened with her and she narrated the entire facts to the doctor. The doctor FIR no. 374/03 PS Khajuri Khas page 44/65 called her mother and rebuked her for hiding these facts and on this her mother told the doctor that SHO had directed her not to disclose this fact to anyone. The doctor informed the police at 100 number. One police officer Sripal came there and she gave her statement to him. Three lady police officers from Women Cell also came there and she also told them about the incidents as happened with her. She was admitted in the hospital.
31. In her cross examination, she stated that on 30.10.2003 when accused Kuldeep committed rape upon her, accused Mamta, Shiksha and Devender Tyagi had also come to her house alongwith him. However, Devender Tyagi had left the house earlier while Mamta and Shiksha remained there. Ex.PW1/B was recorded by Ld.M.M. on the basis of whatever she had stated to him. On 30.10.2003, she and her parents had gone to Police Station. for reporting the matter. However, SHO had turned out her father while she and her mother were allowed to remain in the Police Station. There SHO had told them not to report the matter to police and rather her mother should get her treated from the private hospital. Her mother had taken her to 4 / 5 doctors of the locality but none agreed to treat her. Left with no option, her mother took her to GTB Hospital for treatment. Those 4 /5 FIR no. 374/03 PS Khajuri Khas page 45/65 doctors did not refuse for treatment but they gave her medicine but her condition did not improve, as such, she was taken to GTB Hospital. She did not remember the name of all the doctors. She only remembered the names of two doctors of her locality, one was Dr. Chaudhary and other was Dr. Nopur. She volunteered that with their medicine her bleeding did not stop as such and she was taken to GTB Hospital and she could produce the prescription slip of those doctors. In her cross examination she stated that she did not remember if she made allegations with regard to the incident dated 30.10.2003 in all writ petitions filed by her before the Hon'ble Delhi High Court.
32. PW4 Ramwati, mother of the prosecutrix has also stated that on 30.10.2003, when she had gone to the market, the accused came and did the same thing to her daughter. When she came back from the market, her daughter told her about the incident. She took her daughter to the SHO. The SHO told her that such things happen with the girls and she should not tell about this incident to anyone. He also told her to get some medicines for her daughter from the doctor. She got medicines for her but her condition deteriorated. She then took her to the hospital on 17.11.2003, but they refused to see her on FIR no. 374/03 PS Khajuri Khas page 46/65 the plea that it was a police case. When the condition of her daughter became very bad, she told everything to the doctor on 18.11.2003. Her daughter was medically examined. Police came to the hospital and recorded statement of her daughter and her daughter was admitted in the hospital.
33. In her testimony the prosecutrix has stated that after her rape on 30.10.2003, she started bleeding from her vagina and thereafter the accused persons went from there. When her parents came back she narrated the incident to them. They all went to SHO Surender Singh of PS Khajuri Khas. However, SHO Surender Singh has not been examined as a prosecution witness. It is further stated by her that she narrated the incident in the presence of her mother to the SHO and he suggested that she should be treated by some private doctor as she was continuously bleeding from her vagina. He mother got her treated by some private doctor of the locality. However, ACP Surender Singh has been examined by the defence as DW23 wherein he stated that when he was performing duties as SHO PS Khajuri Khas from March, 2003 to January, 2004, case FIR NO.374/03 was registered during his tenure. On 30.10.2003 he did not say to prosecutrix when she came to the Police Station to get herself FIR no. 374/03 PS Khajuri Khas page 47/65 privately medically examined or he did not say that such types of things usually happen with girls. The witness has not been cross examined by the prosecution which shows that his testimony is not being disputed by the prosecution. His testimony goes unrebutted and uncontroverted.
34. In her cross examination, prosecutrix stated that she did not remember names of all the doctors. She remembered only names of two doctors of her locality one is Dr. Chaudhary and one is Dr. Nopur. She stated that she will produce the prescription slips of those doctors. However, she did not produce them. In the defence the accused have examined Dr. Virender Kumar Chaudhary as DW19 who stated that his clinic is situated at B Block, Main Market, Khajuri Khas. He has been running his clinic for the last 2324 years. He used to provide medicines to the patient for general ailment such as cough, fever, etc. He specifically stated that in the year 2003, prosecutrix did not come at his clinic with the history of bleeding and he did not give her any treatment. He knew the prosecutrix since her childhood. The witness has not been cross examined by the prosecution which means that prosecution is not contradicting the testimony given by DW19 Virender Kumar Chaudhary. The FIR no. 374/03 PS Khajuri Khas page 48/65 testimony of the defence witnesses deserves to be treated on the same footing as those of the prosecution witnesses and they cannot be treated as the witnesses on a lower pedestal and an equal weight has to be attached to the testimony of the defence witnesses as well.
35. It has been further contended by the defence counsel that though the incident dated 30.10.2003 is a very grave one. However, when the petitioner filed the criminal writ petition before the Hon'ble Delhi High Court she did not even mention the same which reflects the falsity of the stand taken by the prosecution. In her cross examination PW1, the prosecutrix, admitted that she had filed writ petitions in Hon'ble Delhi High Court. She did not remember if she had made allegations with regard to the incident 30.10.2003 in all the three writ petitions filed by her before the Hon'ble Delhi High Court. In Ex.PW1/DX, criminal writ petition filed before the Hon'ble Delhi High Court bearing NO.29/04 dated 7.1.2004 in the list of dates and events there is no mention of any incident having taken place on 30.10.2003 though the minor things like notice issued u/s 107/150 Cr.P.C. is mentioned but such a grave offence has not been mentioned which creates doubt about the happening of the incident on 30.10.2003. In para 5 and 6 of the body of the petition it is FIR no. 374/03 PS Khajuri Khas page 49/65 mentioned that: "5. That encouraged by the inaction on the part of officers of Police Station Khajuri Khas and their patronage and blessings to the accused persons their morals reached to new heights and they started to harass the petitioner and her family by all sort of means threatening of dire consequences in case the complaints against them are not withdrawn. The unwarranted hostile behaviour and inaction of the police of Police Station Khajuri Khas towards the petitioner, extended illegal and immoral support to the accused person which resulted in the mishap of 06.10.2003 when the petitioner was virtually raped by the accused persons in her house at about 9.30 P.M. in front of her younger brothers of very tender age when she was alone in the house in absence of her parents and the matter was forthwith reported to the Delhi Police which also proved a useless beat on the drums of deaf ears.
6. That the atrocities of police and accused persons gained new heights when on 18.11.2003 one FIR No.374/03 u/s 376/34 IPC was registered against the accused persons at Police Station Khajuri Khas unfortunately also proved good for nothing and the responsible and duty bound officers of Delhi Police did not proceed with the investigation into the allegations made by the petitioner which resulted in loss of every hope of justice to her by FIR no. 374/03 PS Khajuri Khas page 50/65 the police of Delhi specially the sleuths of Police Station. Khajuri Khas."
36. It shows that no incident happened on 30.10.2003 as the prosecutrix has not mentioned anything about the same. It is beyond human comprehension that the prosecutrix who mentioned very minor details in her writ petition forgot to mention about the incident of rape. It has been pointed out by defence counsel that in the status report filed on behalf of the Commissioner of Police before the Hon'ble High Court it has been stated that prosecutrix made a complaint addressed to C.P. Delhi and given at the office of Joint Commissioner of Police (Northern Range). However, in the complaint with regard to the incident dated 6.10.2003 made no allegations about rape and alleged that culprits outraged her modesty and accused Mamta exhausted (sic) Kuldeep to rape her. However, when she shouted they succeeded in running away. Similarly for 29.10.2003, it is stated that a PCR call was received at 9.18 P.M. that at C127, Gali No.12, Khajuri Khas, Delhi, Kuldeep, Mamta and Devender threatened to pick her if the case was not withdrawn. The same was registered vide DD NO.33 A dated 29.10.2003. SI Ombir Singh reached at the spot where prosecutrix met him and told that threat was given her at main FIR no. 374/03 PS Khajuri Khas page 51/65 gate but no witness was found on enquiry who saw the incident. Though the incident took place on 30.10.2003, the petitioner got herself admitted in the hospital on 18.11.2003. She was medically examined vide MLC NO. 3269/03 dated 18.11.2003. Petitioner told the doctor that she was raped by Kuldeep with the help of Mamta and Shiksha, several times on 16.7.2003, 6.10.2003 and 30.10.2003. Information from hospital was received at the Police Station Khajuri Khas and a case vide FIR NO.374/03 dated 18.11.2003 u/s 376/34 IPC was registered on the same day. However, on 30.10.2003, neither any PCR call nor any complaint was made and the fact is also not mentioned in the criminal writ petition bearing No.29/04. However, the report of the Commissioner of Police cannot be taken into consideration as it has not been duly proved.
37. However, this fact cannot be disputed that immediately on the occurrence of the incident no complaint was lodged to the police though several complaints had been lodged by the complainant at the Police Station in regard to the various incidents of quarrel whereas in respect of such a heinous and grave offence no complaint was made by the complainant immediately which gives a serious dent to the prosecution story with regard to the incident dated 30.10.2003. MLC FIR no. 374/03 PS Khajuri Khas page 52/65 Ex.PW6/B reflects the alleged history of rape by known person in neighbour named Kuldeep helped by ifineaeas (sic) Mamta, Shiksha. Patient was raped on 16.7.2003, 6.10.2003, 30.10.2003. Bleeding of the patient since 2.11.2003. Though in her testimony before the court the prosecutrix stated that when she was raped by accused Kuldeep on 30.10.2003 with the help of Mamta, Shiksha and Devender she started bleeding from her vagina. However in her statement recorded before the doctor recorded on 18.11.2003 at 2.30 P.M. she has given a different date. There is discrepancy regarding the date as she disclosed that she had been bleeding since 2.11.2003. As per the MLC hymen torn, old healed tear, admits 1 finger easily. Therefore, the prosecution case is also not supported by the medical report. There is no explanation on behalf of the prosecution as to why the complaint was not lodged immediately on the happening of the incident though the complainant / prosecutrix and her parents were quite habitual in making complaints even regarding quarrel. There is no plausible reason explaining the delay in reporting the incident to the police and non mentioning of the same even in the criminal writ petitions filed by the complainant and her family members regarding the non cooperation by the police personnel. Undoubtedly, the FIR no. 374/03 PS Khajuri Khas page 53/65 prosecution has to stand on its own legs, due to discrepancies in the prosecution story the prosecution has failed to prove beyond reasonable doubt that any rape was committed on the prosecutrix by the accused Kuldeep (deceased) with the help of Devender, Shiksha and Mamta abetting the commission of offence of rape on 30.10.2003.
38. The defence has examined 24 witnesses. However, many of the witnesses are the security officers provided to the prosecutrix and they have tried to project that prosecutrix as a girl of easy virtue and stated about the subsequent conduct of the prosecutrix which does not throw any light on the alleged incidents and would not help the defence. DW1 is ASI Trilomani has stated about the quarrel regarding 9.9.2007 and DW2 H.C. Harsh Swaroop was in security of the prosecutrix on 9.9.2007 and he stated that no such occurrence took place despite which the prosecutrix made complaint. He also stated that the prosecutrix might have called PCR about 20 /30 times during his tenure. DW3 Const. Hari Singh has also stated about the subsequent conduct of the prosecutrix regarding her having made 100 to 150 calls to PCR during the period from December 2005 to 17.4.2008. DW4 Inspector Ramesh Dhaiya, the then Addl. SHO of FIR no. 374/03 PS Khajuri Khas page 54/65 Police Station. Khajuri Khas has stated that on 11.9.2007, he sent a report to ACP, Gokul Puri, regarding the conduct of the prosecutrix. DW5 Const. Kuldeep also stated that prosecutrix was habitual in making calls to the police and when he was PSO from June 2006 to September 2007 and during that period she made about 100 PCR calls. DW16 is Kavita Tyagi who stated that on 19.7.2003 one compromise was entered into between Smt. Ram Wati, mother of the prosecutrix and Devender Tyagi and Ors. regarding the quarrel which had taken place in the presence of Satpal Singh, Pradhan of Khajuri Khas Colony Market Welfare Association. Kuldeep, Shiksha, Devender Tyagi, Ramwati, Nitu, Mamta and one Gajraj Singh (since expired) had signed on the compromise besides her. She admitted her signatures at point 'A' on carbon copy of the said compromise. An amount of Rs.3000/ was given by them through Devender Kumar Tyagi to Smt. Ram Wati (mother of prosecutrix). At that time prosecutrix was also present there. The photocopy of compromise is also placed on record. However, the original of the same has not been placed on record nor the permission of the court was taken for secondary evidence. Therefore, reliance cannot be placed on the compromise deed dated 19.7.2003. In her cross examination she has FIR no. 374/03 PS Khajuri Khas page 55/65 stated that they are not in possession of original compromise as the same was given to Ramwati and her daughter. However, the fact remains that the prosecution has to stand on its own legs and prove the case by way of unimpeachable credible evidence.
39. The last incident pertains to 15.1.2004 in regard to which the prosecutrix PW1 has stated that on 14.1.2004, three ladies in the police uniform had come to the house of the accused persons and they were misbehaving with her and they came near the gate of their house but she did not open it. She informed the police at 100 number. The PCR officials came there but they did not find anything in the house of accused persons. Her mother had gone to her maternal grand mother's house. When she came back at the house in the evening at about 6.00 PM and while she was busy with household work, the police officials came there and asked her to accompany them to the Police station as her statement was to be recorded. Her mother requested them that she would also go to the police station with her. But they assured her mother that they would send her back after recording her statement. She was taken to the police station by those police officials at Police Station Khajuri Khas. She was confined in the room of SI Vineeta Tyagi throughout the night at Police Station FIR no. 374/03 PS Khajuri Khas page 56/65 Khajuri Khas. On the next day i.e. 15.1.2004 early in the morning those police officials left her in the house of accused Mamta and Shiksha. In their house, both the accused persons gave beatings to her. There they also called the accused Sudhir who is elder brother of accused Kuldeep. Accused Sudhir touched her entire body and then he left but he did not commit rape on her. After the accused Sudhir left, all the accused persons told her to sign certain blank papers and then they left for the inner room leaving her in the outer room of the house. She immediately ran away from their house and reached near the gate of her house. In the meantime, accused Devender Tyagi and Mamta came there and dragged her in the gali and gave severe beatings to her. They wanted to drag her inside their house but somebody had informed the PCR. The police officials reached there and rescued her. In her cross examination she stated that she has stated before the Ld. M.M. in her statement Ex.PW1/B that on 14.1.2004, three ladies in the police uniform had come to the house of the accused persons and they were misbehaving with her and they came near gate of their house but she did not open it and instead she informed the police at 100 number and the PCR officials came there but they did not find anything in the house of accused FIR no. 374/03 PS Khajuri Khas page 57/65 persons and they went and her mother who had gone to her maternal grand mother's house came back in the evening at about 6 P.M. and while she was busy with household work, police officials came there and told her that she should accompany them to the police station as her statement was to be recorded. Her mother requested them that she would also go with them but they assured her mother that they would send her back after recording her statement and she was taken to the police station by those police officials at police station Khajuri Khas. She was confronted with statement Ex. PW1/A to the police and Ex. PW1/B to the Magistrate where it was not so recorded. She further stated that on 15.1.2004 accused Sudhir was already present there in the house of Mamta and Shiksha. She had stated before the Ld. Magistrate as well as to the police that after the accused Sudhir left all the accused persons told her to sign certain blank papers. She was confronted with statement Ex. PW1/A to the police and Ex. PW 1/B to the Magistrate where it was not so recorded. She had told the Ld. MM in her statement Ex.PW1/B and statement to the police Ex.PW1/A that accused Devender Tyagi and Mamta had dragged her in the gali and gave severe beatings to her. She was confronted with statement Ex. PW1/B to the Magistrate and Ex. PW1/A to the police FIR no. 374/03 PS Khajuri Khas page 58/65 and where it was not so recorded. She has also stated that she had also told Ld. M.M. in her statement Ex.PW1/B and in her statement Ex.PW1/A to the police that accused persons wanted to drag her inside the house but somebody had informed the PCR and police officials reached there and rescued her. She was confronted with statement Ex. PW1/A to the police and Ex. PW1/B to the Magistrate where it was not so recorded. In her statement Ex.PW1/B before the Ld. M.M. she stated that on 14.1.2004, some police officials came to her residence and asked her to accompany them to the police station. She was kept whole night in the room of SI Vinita Tyagi. Next day early morning when it was still dark she was left at the house of accused Mamta and Shiksha where she was given beatings and electrocuted and they wanted Sudhir brother of deceased Kuldeep to do bad acts with her. In her testimony before the Court she has not stated that she was electrocuted by the accused persons. She has also not stated anything about her being pressurized by the accused persons to sign blank papers. If the accused persons wanted to give her beatings and wrongfully confine her then why they left her alone in the outer room and why would they go to the inner room providing an opportunity to her to escape from their clutches. She has also FIR no. 374/03 PS Khajuri Khas page 59/65 stated that when the PCR vehicle came and they rescued her. She was taken to GTB Hospital. It is also stated that her MLC was got prepared. However, the prosecution has failed to prove MLC on record by which she was provided medical treatment. Her mother had filed a criminal writ petition bearing no. 48/04 before the Hon'ble High Court Ex. PW4/DX. It has been submitted by the defence Counsel that as per report furnished by the SHO PS Khajuri Khas before the Hon'ble High Court in regard to the incident dated 15.1.04, it is mentioned that a PCR call at 9.53 am was received about the quarrel at H. no. 129, gali no. 12, Khajuri Khas, Delhi and same was registered vide DD no. 6A dated 15.1.04 and ASI Jagannath along with Ct. Aruna reached at the spot and found prosecutrix, Mamta and Shiksha quarreling and making abusive language to each other. Both the parties were medically examined at GTB hospital and doctor opined the injury as simple blunt on all MLCs. Keeping in view of breach of peace as preventive action was taken u/s 107/150 Cr PC against both the parties vide DD no. 26A dated 15.1.04. However, this document cannot be considered as the same has not been proved by the prosecution. The prosecution has to prove its own case by leading cogent and convincing evidence. A criminal writ petition no. 48/04 Ex.
FIR no. 374/03 PS Khajuri Khas page 60/65 PW4/DX had been filed on behalf of the prosecutrix through her mother natural guardian Ram Wati for writ of Habeaus Corpus and release of petitioner from the illegal and unjustified custody of the respondents who had been kidnapped by the police of Police Station. Khajuri Khas and the said petition was disposed of by the Hon'ble High Court vide orders dated 16.1.2004 and 21.01.2004 wherein the Court observed that :
" 16.1.2004: Ld. Counsel for the petitioner submits that Km. Sonia was restored to her mother yesterday. Km. Sonia is also present in Court with her mother Smt. Ramwati. Both of them have been identified by Ld. Counsel for the petitioner. Though having regard to the fact that the girl has been restored to her mother no further orders are called for in this writ petition, but keeping in view certain allegations, which have been levelled by the girl in Court against some persons, we have requested Ms. Mukta Gupta, learned standing Counsel for the State, to look into the mater and have instructions. She will also ensure that Kumari Sonia and her family is provided adequate protection by the police.
List for directions on 21 January, 2004."
"21.1.2004: Having perused the list and dates of events filed by Mr. Maluk Singh, SHO, PS Khajuri Khas, Delhi and bearing FIR no. 374/03 PS Khajuri Khas page 61/65 in mind the fact that according to the petitioner Sonia has been restored to her mother, no further orders are called for in this writ petition.
Ms. Mukta Gupta, learned counsel for the State submits that adequate security shall be provided to the petitioner by the beat staff of Delhi police.
The writ petition stands disposed of".
40. The defence counsel has contended that before the Hon'ble High Court no such statement was made regarding the prosecutrix having been molested by the accused Sudhir and being confined and given beatings and electrocuted by the accused persons. Therefore the testimony of the complainant prosecutrix in this regard also cannot be given any credence. Keeping in view all the facts and circumstances, I hold that the prosecution has failed to prove that on 15.1.2004 prosecutrix was assaulted and criminal force was used upon her by accused Sudhir by putting his hands on her breast with intention to out rage her modesty. The prosecution has also been unsuccessful in proving beyond reasonable doubt that on 15.1.04 accused Mamta alongwith coaccused Shiksha and Devender in furtherance of their common intention voluntarily caused simple injuries to Km. Sonia by pulling her hair and giving her kicks.
FIR no. 374/03 PS Khajuri Khas page 62/65
41. The alleged incidents took place on 16.7.2003, 6.10.2003, 30.10.2003 and 15.1.04. However, the first complaint was made to police on the basis of which FIR was registered on 18.11.2003, which is sketchy. The detailed, deliberated statement was made u/s 164 Cr.P.C. to Ld. M.M. on 25.5.2004, after precisely 10 months and 9 days of the first incident. The evidence of the prosecutrix when read as a whole, is full of discrepancies and inconsistencies. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that the above incidents took place in the manner deposed. No doubt there is no prosecution case which is totally free of inconsistencies or contradictions, however, in the instant case there are contradictions on material particulars and the story is so inconsistent which leads the court to infer that the testimony of the prosecutrix is untrustworthy. Having considered the whole prosecution and defence evidence, it is found that both the parties had inimical relations with each other for one reason or the other. The manner in which the story has been picturized by the prosecutrix PW1 and her mother PW4 leads the court to hold that the prosecution case is manoeuvered, manipulated and far from truth. Though the corroboration of the prosecutrix FIR no. 374/03 PS Khajuri Khas page 63/65 statements are not required when her statements are trust worthy but if the statements of the prosecutrix are not found to be trust worthy, then the corroboration from the independent witnesses and circumstantial evidence is required to convict the accused persons. To bring home the guilt of the accused persons, the prosecution was required to prove beyond reasonable doubt that the accused persons abetted the commission of rape by the deceased upon the prosecutrix without her consent and against her will. The duty is cast upon the prosecution to prove the alleged offence. The testimony of the prosecution witnesses specifically that of the prosecutrix and PW4 are laden with contradictions on material particulars. The statements of the prosecutrix do not inspire confidence. In the light of the material contradictions and inconsistencies creeping in the statements of the prosecution witnesses, the defence version does not stand to be jettisoned so easily. The contradictions emerging on material particulars in the deposition of the prosecution witnesses and inconsistencies have influenced the substratum of the case adversely, which shatters the whole prosecution case. The prosecution has failed to fasten the guilt upon the accused persons beyond reasonable doubt.
FIR no. 374/03 PS Khajuri Khas page 64/65
42. All the accused persons are, accordingly, acquitted of the offence charged with. Their bail bonds cancelled. Sureties discharged. File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated: 20.11.2010 Addl. Sessions Judge05(NE);
Karkardooma Courts, Delhi.
FIR no. 374/03 PS Khajuri Khas page 65/65