Delhi District Court
State vs . Kuljeet Singh, on 21 January, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 113/13.
Unique Case ID No. 02405R0039292013.
State Vs. Kuljeet Singh,
S/o Sh. Bhagat Singh Gahalot,
R/o B-127A, Patel Garden,
Main Dwarka Road,
New Delhi.
Date of Institution : 18.2.2013.
FIR No. 302 dated 06.9.2011.
U/s. 376/367/506 IPC.
P.S. Najafgarh.
Date of reserving judgment/Order : 13.1.2015.
Date of pronouncement : 21.1.2015.
JUDGMENT
1. The prosecution had chargesheeted the abovenamed accused Kuljeet for the offences u/s.376/367/506/34 IPC.
2. In this case, the police machinery was set into motion on receipt of a call in the Police Control Room on 05.9.2011 at 11.02 p.m. from the prosecutrix namely 'S' (real name withheld in order to conceal her identity) saying that she has been raped. She had made a call from a gali near Nangli Dairy Bus Stand, Jai Vihar, near Najafgarh drain. The call was transmitted to P.S. Najafgarh where it was recorded as DD No.32A and was marked to SI Ramdhan for inquiry. Accordingly, SI Ramdhan alongwith PSI SC No.113/13. Page 1 of 27 Vikramjeet reached the said spot where they met the prosecutrix, who told them that she has been raped. SHO as well as PCR officials had already reached the spot. The prosecutrix showed them a vacant piece of land belonging to Gram Sabha on the road leading to Jai Vihar where she had been raped. Upon inspection of the spot, a broken bracelet having an artificial stone was found in the grass which the prosecutrix identified to be belonging to her. Two pieces of a pink colour condom wrapper having words 'Man Force 3 in 1' printed upon the same were also found at the spot. SI Ramdhan called a photographer as well as Crime Team to the spot and got the spot photographed. He seized the bracelet as well as condom wrapper. He recorded the statement of the prosecutrix wherein she stated that she was in search of a suitable job as her husband was not doing anything for the last six months and about one and a half months ago, she was dialling various telephone numbers from her mobile for the said purpose and by mistake, she dialled the mobile number of accused Kuljeet. When she told the accused to help her in getting a job, he told her that he can get her a job through his co-brother in law (Sadu). Accused told her that he is running a shop by the name M/s. Nocx Cosmetics at Dwarka. About 15 to 20 days before the date of incident, she had gone to the shop of accused where accused told her that his co- brother in law is out of Delhi and he would inform her as soon as he returns. She further stated that on 05.9.2011 at about 5 p.m. she received a call on her mobile nos.7838852638 or 7838852637 from Kuljeet's mobile no.9871820609 asking her to reach his shop before 8 p.m. so that he would introduce her to his co-brother-in- law. Accordingly, she reached Dwarka More Metro Station by Metro Train at about 8 p.m. and made a call to the accused, who told her SC No.113/13. Page 2 of 27 that he will be coming there in his car. When she came down from the Metro Station, she found that the accused was sitting on the driver seat of Wagon-R car and his co-brother in law was sitting on the rear seat. She sat on the rear seat of the car with accused's co-brother in law. The accused then stopped the car in front of his shop and went out to close his shop. Accused's co-brother in law told her that they would provide her a job. On leaving from there in the car, the accused drove towards an isolated place in Jai Vihar, Najafgarh. When she asked them as to whether they are taking her, accused's co-brother in law showed her country made revolver and threatened her to keep quiet. Accused stopped the car at a vacant piece of land in the darkness and came down from the car. He pulled her also fromthe car, took her towards the bushes at a distance from the car whereas his co-brother in law remained near the car. The accused laid her on the ground and raped her. It was about 10.30 p.m. at that time. Thereafter, they threatened her that she would be killed if she disclosed the incident to anybody and left in the car leaving her at that place. She came up to the main road somehow and saw a person coming towards that place on a motorcycle. She stopped that person and told her that she has been raped. That person brought her upto the main road, Najafgarh, wherefrom she made a call at telephone no.100.
3. After recording the aforesaid statement of the prosecutrix, SI Ramdhan alongwith Lady Const. Rajbai took her to RTRM Hospital for medical examination. He seized the exhibits given by the doctor after her medical examination. He prepared rukka and got the FIR registered. Further investigation was SC No.113/13. Page 3 of 27 entrusted to WSI Asha. She arrested accused Kuljeet from his residence at the instance of the prosecutrix and recorded his disclosure statement. She seized the mobile phone of the accused of make Samsung bearing IMEI No.356361042462784 and having mobile no. 9871820609. She got him medically examined in RTRM Hospital and seized the exhibits given to her by the doctor. The accused was taken on one day's police remand in order to trace the co-accused but he could not be found. The IO seized the Wagon-R car bearing registration no.DL-5CD-6522 which was used in the commission of offence. Thereafter, the IO was not able to contact the prosecutrix for recording her statement u/s.164 Cr.PC as both the mobile phones of the prosecutrix were switched off.
4. Thereafter, further investigation of the case was transferred to DIU, South West District, and was entrusted to Inspector Sudhir Sharma. He also found both the mobile phones of the prosecutrix switched off. He visited the address of the prosecutrix i.e. C-13, Abul Fazal Enclave, Jamia Nagar, as mentioned by the prosecutrix in her statement and found one Sh. Shahnawaz s/o Sh. Irfan Khan residing there, who told him that he alongwith his eight siblings have been residing in that house for the last 14 to 15 years and no lady by name 'S' had been residing there. The IO then obtained the call details record of both the mobile numbers of the prosecutrix and the mobile number of the accused from 01.8.2011 to 09.9.2011 and found that mobile no. 9871820609 was allotted in the name of accused's servant Munish Sharma but it was being used by accused also. He seized the DVR from accused's shop to view the CCTV footage of the shop. He sent all the exhibits of the case collected by the previous IO as SC No.113/13. Page 4 of 27 well as DVR to the FSL. He made the inquiries from accused's co- brother in law Jaideep, who told him that he was in Thailand on 05.9.2011 regarding his business. Jaideep produced his passport before the IO, which showed that he left India on 25.8.2011 and returned on 08.9.2011. The IO made inquiries from another co- brother in law of the accused namely Sri Om who told him that he was present in his house throughout the day on 05.9.2011 and from office, he had straightaway gone to his residence at Gurgaon, Haryana. His statement was found to be true and correct on analysis of the call details record of his mobile phone.
5. Thereafter further investigation was entrusted to ASI Veena Sharma by the order of ACP, DIU. She made efforts to trace the prosecutrix but could not find her. She collected the FSL results. She analysed the call details record of the mobile of the prosecutrix and found that the prosecutrix was in contact with Mr. Sanawar Ali, Advocate, on his mobile no. 9891337341. She contacted Mr. Sanawar Ali, Advocate, who told her that the real name of the prosecutrix is Nuzhat w/o Sh. Sajid, r/o 137, Gali No.7, Jafrabad, Delhi, and is involved in case FIR no.100/11, u/s.395/307 IPC, P.S. Jafrabad. The IO verified the record from P.S. Jafrabad and found that Nuzhat w/o Sh. Sajid, r/o 137, Gali No.7, Jafrabad, Delhi, has been arrested in the aforesaid FIR No.100/11 on 19.9.2012. She obtained the photograph of the prosecutrix from the Dossier prepared in P.S. Jafrabad and showed the same to the previous IOs of this case SI Ramdhan as well as WSI Asha, who told her that it is the photograph of prosecutrix 'S' in this case. The IO served a notice upon the prosecutrix and got her statement recorded u/s. 164 Cr.PC. In that statement, she stated that she does not know SC No.113/13. Page 5 of 27 whom the police have arrested in this case. She further stated that as it was dark at the time of incident and a long time has elapsed thereafter, she cannot identify Kuljeet and his co-brother in law.
6. After completion of the investigation, Charge Sheet was prepared by the IO and submitted to the concerned Ilaqa Magistrate.
7. Upon committal of the case to the court of Sessions, Charge u/s.367/34 IPC, u/s.376 IPC and u/s.506/34 IPC was framed against the accused on 08.5.2013. The accused denied the charge and accordingly trial was held.
8. The prosecution has examined 22 witnesses to bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 30.10.2014 wherein he denied the prosecution case and claimed false implication. He further stated that he has been falsely implicated in this case by father in law of his brother in law (Sala) as his brother in law is involved in a matrimonial litigation with his wife and he used to accompany his brother in law to court on the dates of hearing. He stated that in-laws of his brother in law resided in his neighbourhood and knew prosecutrix through their lawyer Sh. Sanawar Ali, Advocate, and hence got a false complaint filed by the prosecutrix. The accused examined ASI Veena, who was once the investigating officer in this case as a witness in his defence.
9. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
SC No.113/13. Page 6 of 2710. The prosecutrix has been examined as PW3. She mentioned herself as Ms. 'S' w/o Sh. Rehan Ali, r/o house no.137, Gali No.7, Jafrabad, Delhi. The relevant portion of her examination in chief is reproduced herein-below :
"The incident took place in the month of September, 2011. During that period my husband was not feeling well as one of his kidneys had got damaged. He was not going for his work for the last six months. I am 12th pass and therefore I decided to do some job so as to better the financial position of our family. I was in search of a job and was making regular phone calls. Some time before the month of September, 2011, when I was dialling a number from my mobile phone, which I do not recollect at present, by mistake call went to the mobile phone of accused Kuljeet, who is present in court today. I told Kuljeet that I am in need of a job and he told me that his co- brother in law (Saadu) can get a job for me. He further told me that his co-brother in law has gone of Delhi and whenever he would return, he would arrange a job for me.
About 15 to 20 days thereafter, accused Kuljeet made a call to me saying that his co-brother in law has returned to Delhi and I should come to meet him. Accordingly I left my house and went to meet the accused and his co-brother in law. I got down from Metro Train at Dwarka Metro Station. When I came out of the station, I found that accused Kuljeet was sitting on the driver seat of a Wagon-R or like car. A person was sitting on the rear seat of the car whom he introduced to me as his co-brother in law. I do not recollect the exact time but it was already dark. They asked me to sit in the car and accordingly I boarded the car and sat on the rear seat. Accused started driving the car. I asked them where they are taking me and they replied that they are going to provide job to me. After driving the car for about 10 or 15 minutes, the accused stopped the car. He got down from the car SC No.113/13. Page 7 of 27 saying that he would return after closing his shop and asked me to have a chat with his co-brother in law.
The accused returned after about ten minutes and again started driving the car. They took me to an isolated place. At that place, accused Kuljeet got down from the car and he forcibly took me out of the car. His co-brother in law was having a Katta or something like that in his hand and threatened me that if I raise alarm, I would be killed. Accused Kuljeet then took me to the bushes. He did not allow me to cry as he had gagged my mouth with his hand. Then he committed rape upon me amongst the bushes. Thereafter he boarded the car and drove away alongwith his co- brother in law. I somehow managed to stand up and walked on the road for sometime. Then I saw a person on motorcycle passing by that place. I asked him about the road where it leads to. He asked me to continue walking straight and I will come on the main road. Then I made a call on telephone no.100 from my mobile phone. I also made a call to my husband. PCR personnels reached that place. SHO of nearby police station also reached there. They took me to the police station. My husband also reached the police station. In the police station, my statement was recorded which is Ex.PW3/A bearing my signature at point A. From the police station, I was taken to a hospital where I was medically examined. The doctor had taken into possession my brown colour Salwar which I was wearing. From the hospital, I alongwith my husband returned home."
11. She further deposed that after about one and a half years, she was produced by a police official before a lady Magistrate in the court, who recorded her statement which she proved as Ex.PW3/B. She further explained that the delay of one and a half years in recording her statement before the Ld. M.M. occasioned for the reason that her in-laws were not allowing her to pursue the case saying that they have got humiliated and disgraced already. She identified a maroon colour Salwar Ex.P1 SC No.113/13. Page 8 of 27 which she was wearing at the time of incident. She also identified her silver colour bracelet Ex.P2 which had got broken on the spot of incident at the time of incident and also the condom wrapper Ex.P3 which was lifted by the police official from the spot. She also identified a white coloured brasserie Ex.P4 which she was wearing at the time of incident. However, she could not identify the Wagon-R car bearing registration no. DL-5CD-6522 in which she is stated to have been abducted by the accused.
12. She was declared hostile by the Ld. APP on certain points and in the cross examination conducted by Ld. APP, she admitted that the incident of rape took place at about 10.15 p.m. and after she had been raped, the accused threatened her that if she narrated the incident to anybody, they would kill her. She stated that she signed the seizure memo of the Salwar, bracelet and condom wrapper in the police station at the instance of the police official. She admitted that her Salwar was not taken into possession by the doctor at the time of medical examination as she was not having any spare Salwar to wear and it is when her husband came from home alongwith another Salwar that she handed over the Salwar worn by her at the time of incident to the police official in the police station. She stated that the accused was not apprehended in her presence and she did not know whom the police officials apprehended. She could not say whether she had seen the accused in the police station on 06.9.2011 when he was being interrogated by the police officials. She specifically stated that accused Kuljeet was not arrested by the police officials in his presence and she was informed by her husband that the accused has been apprehended.
SC No.113/13. Page 9 of 2713. In the cross examination conducted on behalf of the accused, she deposed that she does not know any person by the name Mohd. Tasleem. She deposed that the mobile nos. 7838852637 and 7838852638 were got issued by her husband. She did not recollect since when she has been using these two mobile numbers. She stated that she was carrying one of these mobile numbers with her on 05.9.2011 when she left home upon receiving the call of the accused at about 5 p.m. but could not tell which mobile number was with her. She could not tell who else was present in her house at that time and whether or not had she locked the house while leaving. The accused had told her that he would get her a job of Receptionist at a monthly salary of Rs. 5,000/- to Rs.6,000/- but did not tell her the name of the office or the organization where she will have to work. He did not inform her about any other term of the employment. She did not ask her to submit any application for the job. She did not recollect the time when she left her house on the date of incident and stated that she did so in the evening hours before darkness. She did not recollect for what purpose had she gone to Tis Hazari Court on that day and for how much time did she remain in Tis Hazari on that day. She did not know where and with whom was the second mobile phone on the date of incident as the same was being used by her husband as well as by her brother. She did not know whether her husband or any other family members had accompanied her to Tis Hazari Court on that day. She did not know on which mobile number did she make the call to her husband after the incident of rape.
SC No.113/13. Page 10 of 2714. She admitted that she had not seen accused Kuljeet before the date of incident till she reached Dwarka More Metro Station. She used to talk to accused Kuljeet only on one mobile number i.e. 9871820609 as mentioned by her in the statement Ex.PW3/A. She was not aware about the colour, make and registration number of the accused's car till she reached Dwarka More Metro Station. She also did not know whether in fact, she had been talking to the accused only on the aforesaid mobile no. 9871820609. She stated that she had been residing in house no. C-13, Abul Fazal Enclave, Jamia Nagar, Delhi, for about four months before the date of incident and prior to that she was residing at Jafrabad. They were occupying a two room set on the ground floor in house no.C-13 but did not know the name of the landlord. They vacated the said house after about 1 or 1½ months of the registration of the FIR in this case. She admitted that she is an accused in FIR No.100/2011, u/s. 307/34 IPC, P.S. Jafrabad. Mr. Saqib Qureshi, Advocate, was defending her in that case initially. She stated that in the application for anticipatory bail filed by her in the High Court in that case, she has mentioned herself as Nuzhat w/o Sh. Sajid and perhaps had given the address of Jafrabad. She stated that she is not in possession of any document wherein her name is mentioned as 'S' w/o Rehan Ali, as described by her in the complaint in the present case. At the time of her medical examination also, she told the doctor her name as 'S' w/o Rehan Ali. She narrated her name similarly to the Ld. M.M. also who recorded her statement u/s.164 Cr.PC. She deposed that Mr. Sanawar Ali, Advocate, has been defending her in the aforesaid criminal case arising out of FIR No.100/11 and he had filed her bail application in the High Court in that case. She did not recollect SC No.113/13. Page 11 of 27 whether she alongwith her husband had visited the chamber of Mr. Sanawar Ali, Advocate, in Tis Hazari on 05.9.2011 and if so, at what time and for how long did they remain there. She stated that she has never met Bishan Singh, father of Reena, in the chamber of Mr. Sanawar Ali, Advocate. She stated that Mr. Sanawar Ali, Advocate, knew her real name and that of her husband. She denied that she has implicated the accused falsely in this case at the instance of her husband, Bishan Singh, his daughter Reena and Mr. Sanawar Ali, Advocate. She denied all other suggestions put to her.
15. PW5 is the Nodal Officer from M/s. Bharti Airtel Limited and proved the customer application form in respect of mobile no. 9871820609 which showed that it has been allotted in the name of Munish Kumar Sharma. He proved the call details record of this mobile phone number from 01.9.2011 to 07.9.2011 as Ex.PW5/C and the certificate u/s.65B of the Evidence Act as Ex.PW5/D. He also proved the printouts of the Cell ID Chart of their company as Ex.PW5/E.
16. PW7 is the Nodal Officer of M/s. Vodafone Mobile Services Limited and proved the customer details in respect of mobile nos. 9811434064, 7838852637 and 7838852638. As per the record produced by him, mobile no. 9811434064 was allotted in the name of Kuljeet, mobile no.7838852638 was alloted in the name of Mohd. Tasleem and mobile no. 7838852637 was also alloted in the name of Mohd. Tasleem. He proved the call details record of these three mobile phone numbers from 01.7.2011 to 23.9.2011 as Ex.PW7/C, Ex.PW7/G and Ex.PW7/K respectively and SC No.113/13. Page 12 of 27 the certificates u/s.65B of the Evidence Act as Ex.PW7/D, Ex.PW7/H and Ex.PW7/L respectively. He also proved the Cell ID Chart of his company as Ex.PW7/N.
17. PW8 is Munish Kumar Sharma, the employee of the accused, working at his shop. He deposed that he had got the mobile no. 9871820609 allotted in his name on his own identity documents and used to receive the calls from the customers usually on this phone. He stated that no specific person used to make calls on this phone to talk to accused Kuljeet. He had handed over the mobile phone containing this mobile number to the police official which was seized vide memo Ex.PW8/A. He identified the said mobile phone Ex.P5 when shown to him in the witness box. He was declared hostile by Ld. APP and in the cross examination conducted by Ld. APP, he denied that a lady named 'S' used to make calls on the said mobile number and used to talk to the accused. In the cross examination conducted on behalf of the accused, he stated that the said mobile phone used to remain in his custody and on 05.9.2011 also, it was in his custody. After leaving the shop of accused at about 8 p.m. on that day, he had taken the mobile phone alongwith him to his residence B-89, Sector-22, Noida, where he reached at about 9.30 p.m. He further deposed that upon the directions of ASI Veena, he had reached her house on 10.2.2013 to get his statement recorded and upon reaching there, he found Rehan present there. He had taken a recording device with him and recorded the statement of Rehan, who was telling ASI Veena that they had made mistake by falsely implicating the accused Kuljeet in this case.
SC No.113/13. Page 13 of 2718. PW11 is Dr. Vivek Ranjan, who had come to depose in place of Dr. Yasha, who had conducted gynecological examination of the prosecutrix in RTRM Hospital and proved his observations on the MLC as Ex.PW11/A.
19. PW12 is Sh. Rehan Ali Sajid, the husband of the prosecutrix. He was examined on 24.2.2014 and deposed that about 10 or 11 months ago, one day when he was present at his home, his wife had gone to search for a job. He received a call from his wife 'S' at about 9.30 p.m. on his mobile phone requesting him to reach P.S. Najafgarh immediately as she has been raped. Accordingly, he reached P.S. Najafgarh and met his wife 'S', who told him that one Kuljeet alongwith his co-brother in law took her to some secluded spot where Kuljeet committed rape upon her. He deposed that thereafter police officials took his wife 'S' to hospital for medical examination. He had also accompanied her to the hospital, from where they returned to the police station and then went home. He was declared hostile by Ld. APP on certain points and in the cross examination conducted by Ld. APP, he denied that at the time of medical examination of his wife, he had brought one Salwar from his home, which was put on by his wife and the Salwar, which she was wearing already was seized by the police. He deposed that his wife had changed her Salwar after they reached home on that day and the Salwar which she was wearing at the time of incident was handed over by him to the police on the next day.
20. In the cross examination, he deposed that he did not recollect whether he had got issued mobile nos. 7838852637 and SC No.113/13. Page 14 of 27 7838852638 in his name. He further deposed that in September, 2011, he alongwith his wife and daughter was staying in house no.B-13 or house no.C-13, Abul Fazal Enclave, Jamia Nagar, Okhla, New Delhi. He deposed that the police did not record his statement in connection with this case and had only taken his signatures on blank papers. He could not tell the time when his wife had left home on the date of incident. He admitted that he was not present at his home when his wife left on that day and stated voluntarily that he was at a distance of about 2 to 3 kms. from his house at that time and when he returned home, he found the same locked. He did not know whether his wife visited Tis Hazari Court on that day and remained in the chamber of an advocate for more than one year. When he found his house locked, he did not make any call to his wife as she had already told him in the morning that she would be going for a job. He further denied all the suggestions put to him.
21. The IO ASI Veena Sharma has been examined as PW20. She deposed that after transfer of investigation of this case to DIU South West, it was entrusted to her. Upon perusal of the case file, she came to know that the accused is on court bail and the prosecutrix 'S' could not be traced. She searched for the prosecutrix at the address mentioned in the complaint but could not find her. She found a complaint in the case file submitted by Manjeet, the brother of accused Kuljeet, stating that his brother Kuljeet has been falsely implicated in this case at the behest of Mr. Sanawar Ali, Advocate. She obtained the call details record of the mobile number of Mr. Sanawar Ali, Advocate, mentioned in the said complaint and found that numerous calls were exchanged SC No.113/13. Page 15 of 27 between this number and the mobile number of the prosecutrix 7838852637 and 7838852638. She contacted Mr. Sanawar Ali, Advocate, who told her that these two mobile numbers belong to his client Mrs. Nuzhat and he is defending her in case FIR no. 100/11, P.S. Jafrabad. She reached P.S. Jafrabad and met the IO of the aforesaid case SI Vivek, who told her that Nuzhat alongwith her husband Mohd. Sajid is involved in this case. She took the photographs of Nuzhat and Sajid by her mobile phone from a Dossier prepared in P.S. Jafrabad. She showed these photographs to previous investigating officer of this case in P.S. Najafgarh on 05.2.2013 and they identified Nuzhat as prosecutrix 'S' and Sajid as her husband Rehan Ali. She visited house no.S-137, Gali No.7, Jafrabad, which address was mentioned in FIR No.100/11 but did not find either the prosecutrix or her husband there. She met the prosecutrix's mother in law, who told her that Nuzhat had gone to Meerut and would return in two or three days. She told her that Nuzhat's statement u/s.164 Cr.PC is to be recorded, upon which Nuzhat's mother-in-law told her that she would come to her on 08.2.2013. Nuzhat met her in the court on 08.2.2013 and she got her statement u/s.164 Cr.PC recorded. She deposed that even in that statement also, the prosecutrix could not tell the name and address of the other assailants and hence he could not be traced.
22. In the cross examination, she deposed that she had tried to trace the prosecutrix at her address at C-13, Abul Fazal Enclave, Jamia Nagar, Okhla, as mentioned in the complaint but came to know that the prosecutrix had never resided at the said address. She stated that she has recorded the statement of Mr. Sanawar Ali, Advocate, but did not cite him as a witness in this SC No.113/13. Page 16 of 27 case. She deposed that she has not annexed the statement u/s. 161 Cr.PC of Mr. Sanawar Ali, Advocate, alongwith Charge Sheet. The statement u/s.161 Cr.PC of Mr. Sanawar Ali, Advocate, lying in the police file Mark-X was shown to her and she admitted that it was recorded by her. She stated that she had perused the call details record of the mobile numbers of the prosecutrix 7838852637 and 7838852638 and their location on the date of incident was at Dwarka More Metro Station between 8 p.m. and 11 p.m. The prosecutrix told her that both the mobile phones were with her on the date of incident. She did not come across any document during the course of investigation which showed that the name of the prosecutrix was 'S' or that the name of her husband was Rehan Ali.
23. Undoubtedly, in a case involving offence of rape, the conviction of the accused can be ordered on the sole basis of testimony of the prosecutrix, if the same appears to the court to be credible, trustworthy and inspiring confidence. The court must be satisfied that the testimony of the prosecutrix does not suffer from prevarications or embellishments and she qualifies as a sterling witness. In case the court does not feel inclined to place implicit reliance upon the deposition of the prosecutrix, it may look for corroboration from other evidence on record. However, it is to be kept in mind by the court that like in all other criminal cases, in rape case also, it is the duty of the prosecutrix to prove the guilt of the accused beyond reasonable doubt and it is not for the accused to explain why the witnesses have lied against him.
24. In the instant case, it is evident from the testimony of SC No.113/13. Page 17 of 27 the prosecutrix herself as well as from the deposition of PW20 IO ASI Veena that the prosecutrix has not mentioned her real name i.e. Nuzhat in her statement to the police Ex.PW3/A, in her statement u/s.164 Cr.PC Ex.PW3/B and also during their testimony before this court. Everywhere she has described herself as Soni w/o Rehan Ali, which seems to be a fictitious name. The husband's name mentioned by her as Rehan Ali is also a fictitious name. It is manifest that her real name is Nuzhat and her husband's real name is Sajid. She has not produced any document either during the course of investigation or before this court to show that her name is Soni and her husband's name is Rehan Ali. It is her lawyer Sh. Sanawar Ali, Advocate, who told the IO (PW20) that the mobile nos.7838852637 and 7838852638 belong to his client Ms. Nuzhat w/o Sajid Ali. It has also come on record that the prosecutrix is an accused in case FIR No.100/11, P.S. Jafrabad, where she has mentioned her name as Mrs. Nuzhat w/o Sajid Ali and in the bail application filed by her in the High Court in that FIR, she has described herself as Nuzhat w/o Sajid.
25. The prosecutrix has nowhere explained as to why did she describe her name incorrectly as Soni w/o Rehan Ali in the present case right since the beginning. Hence the very edifice of the case gets shaken and the whole prosecution case falls flat on this very score. It is very difficult to believe the testimony of a person, who gives her name and address incorrectly in the FIR and during the course of investigation and does not mention her real name at any point of time. The prosecutrix has even mentioned her residential address also incorrectly. In the FIR, she has mentioned her address as house no.C-13, Abul Fazal Enclave, SC No.113/13. Page 18 of 27 Jamia Nagar, New Delhi. However, it was found during the course of investigation by the IO that she had never resided at the said address. One Sh. Shahnawaz s/o Irfan Khan was found residing in the said address, who told the IO that no lady by the name Soni w/o Rehan Ali has ever been residing in the said house. It is for this reason that the IO could not contact her after the registration of the case. She has given a fake address and had switched off her two mobile phones mentioned in the FIR, after the registration of the FIR. It is thus evident that the prosecutrix had been telling lies right since the beginning which indicates that she has lodged a false complaint against the accused at the behest of somebody.
26. The prosecutrix has deposed that when she got down from the Metro Train at Dwarka Metro Station on the date of incident and came out of the station, she found accused Kuljeet sitting on the driving seat of the Wagon-R car and a person was sitting on the rear seat of the car, whom Kuljeet introduced as his co-brother in law. It was already dark by that time. She boarded the car and sat on the rear seat. At the same time, she has admitted in her cross examination that she had not seen accused Kuljeet before the date of incident and she saw him for the first time at Dwarka Metro Station on that day. She was also not aware about the colour, make and registration number of the car of the accused till she reached Dwarka More Metro Station. She has further deposed that she ony used to talk to accused Kuljeet on his mobile no. 9871820609 and she did not know whether in fact, she had been talking to Kuljeet or somebody else.
27. Thus it is manifest that the person, to whom she was SC No.113/13. Page 19 of 27 talking to on mobile no. 9871820609 had told his name as Kuljeet. She did not know Kuljeet and had not seen him before the date of incident. It thus is not understandable as to how did she recognise accused Kuljeet and his Wagon-R car when she came out of the Dwarka More Metro Station on the date of incident. There is no evidence to suggest that accused Kuljeet had described his bodily features to the prosecutrix on phone or had apprised her about the colour, make and registration number of his car. It is also not understandable why did the prosecutrix sit on the rear seat of the car alongwith the accused's co-brother in law and why she did not sit on the front passenger seat which was vacant. The testimony of the prosecutrix in this regard seems to be totally fabricated and far from being true or believable.
28. Further it is also evident from the evidence on record that after registration of the FIR, the prosecutrix went into oblivion. Nobody including the IO had any clue about her. The residential address given by her was found to be fake and the mobile numbers mentioned by her in the FIR were found to be switched off. She was out of contact for about one and a half years and it is only on account of efforts made by the IO (PW20) that her whereabouts could be known through her advocate Sh. Sanawar Ali. The prosecutrix has tried to explain her absence while deposing that her in-laws were not allowing her to pursue the case saying that they have already got humiliated and disgraced. However, this seems to be a concocted statement. Her husband appearing as PW12 has nowhere deposed that he and his family members had precluded the prosecutrix from pursuing this case after registration of the FIR. The conduct of the prosecutrix in SC No.113/13. Page 20 of 27 mentioning a fictitious name as well as fictitious address in the FIR and disappearing soon after the registration of the FIR and keeping her both mobile phones, switched off strongly indicates that she has lodged a false FIR against the accused at the behest of somebody else who wanted to settle the scores with the accused.
29. It also seems to be a mystery as to how the police identified the accused Kuljeet to be one of the assailants and how he came to be arrested. The prosecutrix did not mention in the FIR anything except the name of one of her assailants as Kuljeet. She has not given the facial description of her assailants or their residential address, which she did not know at all. Though the prosecution claims that the accused Kuljeet was arrested at the instance of the prosecutrix from his residence yet it does not appear to be so. The prosecutrix admittedly was not knowing the residential address of the accused Kuljeet. The arrest memo Ex.PW19/B does not bear the signature of the prosecutrix as a witness. Prosecutrix has mentioned in her statement u/s.164 Cr.PC Ex.PW3/B that she did not know whom the police had apprehended in this case. She has also stated that as it was very dark at the time of incident and on account of long passage of time therefrom, she cannot identify her assailant Kuljeet and his co-brother in law. In the cross examination conducted by Ld. APP also, she has deposed that the accused was not apprehended in her presence and she does not know whom the police officials had apprehended. Thus, even if it is assumed that the prosecutrix had been sexually assaulted on the date of incident, there is no evidence on record that one of the assailants was accused Kuljeet, SC No.113/13. Page 21 of 27 who has been chargesheeted in this case. It is seriously doubtful that accused Kuljeet was one of the assailants, as claimed by the prosecutrix. It again reinforces the doubt that somebody was having a grudge against accused Kuljeet and wanted him to be arrested in a false case by hook or by crook and he succeeded in his evil design by getting accused Kuljeet arrested in the instant false rape case.
30. it is the case of the prosecution itself that the prosecutrix was taken to RTRM Hospital for medical examination soon after the incident where she was examined by Dr. Yasha vide MLC Ex.PW11/A who had obtained the vaginal smear, urine sample, vaginal swab and vulvul swab of the prosecutrix. The Salwar (trouser) worn by the prosecutrix at the time of incident was seized by the IO vide seizure memo Ex.PW19/A. All these exhibits were sent to FSL for forensic examination. However, the FSL result Ex.PB shows that the semen was not detected on any of these exhibits. Hence the FSL result also trashes the theory of rape. It is highly unlikely that no semen would be found in the vaginal and vulvul swab of a rape victim and also on the trouser which she was wearing at that time when these were seized within a few hours after the sexual assault.
31. So far as the two mobile nos.7838852637 and 7838852638 are concerned, these too appear to have been got allotted by either the prosecutrix or her husband fictitiously. The prosecutrix has deposed that these two mobile numbers were got issued by her husband, whereas her husband PW12 has deposed that he does not recollect whether he got issued these two mobile SC No.113/13. Page 22 of 27 numbers in his name. However, he has not deposed that these two mobile numbers have been allotted in the name of some other person. As per the records produced by PW7, these two mobile numbers have been issued in the name of Mohd. Tasleem s/o Sh. Chuttan, r/o Narela. Both the prosecutrix and her husband have denied that they know any person by name Mohd. Tasleem. Though Mohd. Tasleem has not been interrogated in this case and has not been produced as a witness before this court, yet the IO ASI Veena appearing as DW1 has deposed that she had recorded the statement of Mohd. Tasleem during the course of inquiry conducted by her on the complaint Ex.DW1/A submitted by accused Kuljeet's brother Manjeet. She has filed a photocopy of the statement of the record, which is part of Ex.DW1/B (colly). In this statement Mohd. Tasleem has denied that he has ever got allotted or used mobile nos.7838852637 and 7838852638. He has stated that he does not know who has misused his identity documents to get allotted these two mobile numbers. He denied that he knows the prosecutrix or her husband. This clearly demonstrates the nefarious activities of the prosecutrix and her husband. They somehow got hold of the identity documents of Mohd. Tasleem and used the same to get fictitiously allotted the two mobile nos.7838852637 and 7838852638 in their name.
32. It is the case of the prosecution and also admitted by the prosecutrix herself that she was carrying one of these mobile numbers alongwith her on the date of incident. However, the call detail records of these two mobile numbers show that their location was nowhere near the place of incident in this case on the date of incident i.e. 05.9.2011. The location of both these mobile SC No.113/13. Page 23 of 27 numbers was at Dwarka More Metro Station between 8 p.m. and 11 p.m. on 05.9.2011 when the prosecutrix is stated to have been raped. The crime spot, as seen in site plan Ex.PW18/C, is very far from Dwarka More Metro Station, which has nowhere been shown in the same. Even otherwise also, when the prosecutrix was carrying only one of these mobile phones with her, how could the location of other mobile phone is also at Dwarka More Metro Station. This indicates that there is something fishy in the whole story of the prosecution and somebody carrying the other mobile phone was with the prosecutrix, assisting her in creating a false story of rape.
33. It is the case of the prosecution that the prosecutrix was in touch with accused Kuljeet on his mobile no.9871820609 and on the date of incident also, she had received a call from the accused from said mobile number. The location chart of this mobile number proved by PW5 shows that its location was in Sector-5, Dwarka, at 6.30 p.m. on 05.9.2011 and thereafter its location was in Sewa Park, New Delhi, between 7.14 p.m. to 7.45 p.m. Thereafter its location was at Gulab Bagh, Uttam Nagar, from 8.17 p.m. to 8.20 p.m. and then it travelled towards towards Ramesh Nagar, New Delhi, and ultimately its location was at Sector-22, Noida, from 9.58 p.m. onwards. Thus it was nowhere near the spot of incident between 6 p.m. to 11 p.m. on 05.9.2011. The witness of the prosecution itself i.e. PW8, in whose name this mobile number has been allotted and who is an employee at the shop of the accused, has deposed that this mobile phone used to remain in his custody and on 05.9.2011 also, it was in his custody. He deposed in the cross examination that he left office on that day SC No.113/13. Page 24 of 27 at about 8 p.m. and reached his house at Sector-22 Noida around 9.30 p.m. by Metro train. His deposition corresponds to the location of the said mobile phone demonstrated by the location chart, as mentioned herein-above.
34. From the aforesaid discussion, based upon the evidence led by the parties, it is manifest that the prosecutrix has lodged a false complaint of rape against the accused at the behest of somebody else, who wanted to settle scores with the accused and used the prosecutrix as a pawn. There appears to be no truth in the prosecution case or in the testimony of the prosecutrix. She has spoken lies right from the point of lodging the FIR. She gave her fictitious name and fictitious address in the FIR. She remained incommunicado after registration of the FIR. She had switched off both her mobile numbers and her whereabouts could not be traced for one and a half years. She did not try to contact the IO or any other police officials to know about the fate of her complaint. The location of none of the two mobile numbers being used by her was near the spot of incident on the date of incident and at the time when the incident is stated to have occurred. It remains a mystery how did she identify the accused or his car when she got down from the Metro Station Dwarka More. It also remains a mystery how the investigating officer came to know that the accused Kuljeet is one of the assailants. The location of mobile number stated to have been used by accused Kuljeet in communicating with the prosecutrix was nowhere near the spot of incident on 05.9.2011. The FSL result also trashes the prosecution case.
35. The accused is, therefore, liable to be acquitted and is SC No.113/13. Page 25 of 27 hereby acquitted as such.
36. This case is a classic example of how men are being falsely implicated in rape cases to settle personal scores with them. This is a perfect illustration of total misuse of rape laws. No doubt, act of rape causes intense emotional distress and immense humiliation to the victim but at the same time one cannot lose sight of the fact that false implication in a rape cases causes equal humiliation, disgrace and mental agony to the accused. Rape is the most hated crime in society. No sooner that the news of a person having been accused of rape spreads in society, he is looked down upon by all and sundry. He as well as his family is ostracised from the main stream. He is humiliated and ridiculed everywhere. Even his honourable acquittal by the court is not taken note of and does little to salvage his lost honour and dignity. He has to live with the trauma of having been a rape accused throughout his life. It is these false rape cases which make the crime graph shoot up, thus playing havoc with the actual crime statistics. These also tend to trivialize the offence of rape. Time has come when the courts should deal firmly with the women filing false complaints of rape. These women, who turn out to be tormentors and not the victims, should be punished under the appropriate provisions of law.
37. Since this court has come to conclusion that the prosecutrix had filed a false complaint of rape against the accused and has given false evidence before this court to ensure that the accused is convicted on false rape charges, she is liable to be proceeded against for having committed the offence punishable SC No.113/13. Page 26 of 27 u/s.193 IPC. This court would be failing in its duty if appropriate proceedings are not initiated against the prosecutrix for giving false evidence against the accused.
38. Therefore, the Reader of the court is directed to file an appropriate complaint against the prosecutrix in the court of Ld. C.M.M., Dwarka Courts, New Delhi.
Announced in open (VIRENDER BHAT)
Court on 21.1.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.113/13. Page 27 of 27