Delhi District Court
Bharwada Bhoginbhai Hirjibhai vs State Of Gujrat on 3 November, 2017
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
SC NO. : 97/15
STATE
versus
1.Chota Lal son of Sh Dalpat Singh r/o H No C60, Vikas Nagar, Delhi.
2. Kailash Chand @ Man Singh son of Ram Pal r/o R34, Gali No 1, Vikas Nagar Delhi.
FIR No. : 598/15 Offence U/S : 376D/506/354/34 IPC Police Station : Ranhola DATE OF RECEIPT OF FILE AFTER COMMITTAL: 26/09/2015 DATE OF JUDGMENT:03/11/2017 JUDGMENT
1. Present FIR no. 598/15 was filed in PS Ranhola on the complaint of prosecutrix (name mentioned in the file but withheld to protect her identity) against two accused persons namely Chota Lal and Kailash Chand @ Man Singh.
2. The allegation levelled by the prosecutrix against these
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two accused persons are that on 05/08/2015 at about 9 p.m, both accused persons have entered the house of the prosecutrix in friendly manner and while prosecutrix was preparing tea, accused Kailash Chand @ Man Singh had outraged the modesty of the prosecutrix by touching her breast and later both accused persons have committed rape upon the prosecutrix by putting her children under the threat of death. Hence FIR was lodged against accused persons for the offence u/s 354/376D/506 IPC. After lodging the FIR, investigation was marked to WSI Savita, who had investigated the matter, recorded the statement of the witnesses, prosecutrix was medically examined and her statement u/s 164 Cr.P.C was recorded. After completion of the investigation, charge sheet was filed before the concerned court. After completing the committal proceedings, case was committed to this court on 26/09/2015.
3. Arguments were heard from Ld counsels for the parties on the point of charge and after hearing arguments, prima facie case was found to have been made out against accused Kailash Chand @ Man Singh u/s 354/376D/506 IPC whereas prima facie case was found to be made out against accused Chota Lal for the offence u/s 376D IPC. However, single charge was framed by Ld Predecessor against both accused persons.
4. In order to prove the case , prosecution has examined
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seven witnesses in all. Out of these seven witnesses , PW1 is the prosecutrix , who has narrated in detail the incident. She was thoroughly cross examined by the Ld. Counsel for accused persons. PW2 is Ms. Preeti who has provided her Aadhar Card for purchasing the SIM by prosecutrix, which was being used by the prosecutrix. PW3 , Retired SI Rambir was the duty officer. He has registered the FIR, which is Ex.PW3/A, endorsement made by the duty officer on the original tehrir is Ex. PW3/B and the certificate u/s 65B of Indian Evidence Act by duty officer is Ex. PW3/C. He has also proved on record the DD no.4A, which was recorded by him at 12.25AM, copy of the same is Ex. PW3/D. PW4 Rahis is husband of prosecutrix. Although he is not an eye witness nor he was present at the spot of incident but he has narrated the incident as stated to him by his wife. PW5 is Sh. Surender Kumar , Nodal officer from Bharti Airtel . He has proved the CDR and CAF of the accused Kailash Chand and same is collectively Exhibited as Ex. PW5/A. PW6 Ct. Vijay deposited the samples to the FSL on 13.08.2015. PW7 Insp. Savita is the IO of the case. She has narrated in detail the investigation carried out by her and she was cross examined in detail by the Ld. Defence counsel.
5. Sh. R K Giri, Ld. Counsel for accused persons had admitted the statements of Pws SI Kalyan Singh , HC Narender, Ct. Naresh, Ct. Suman, Ct. Sushil, HC Bijender, Dr.
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Rohini Khera, Dr. Rohit Kumar, Dr. Manoj Dhingra and Ms. Akansha Vyas, Ld. MM, hence, their statements were not recorded.
6. Thereafter, prosecution evidence was closed.
7. Statement of accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations. They have submitted that they have been falsely implicated in the present case. Accused persons had stated that they do not want to lead evidence in defense.
8. I have heard arguments from Sh R.K. Giri, Ld counsel for accused persons as well as from Ms. Neeta Gupta , Ld Additional P.P for the State.
9. It is submitted by Sh R. K. Giri, Ld counsel for accused persons that the present case is a false case filed by the prosecutrix against accused persons, as there was financial dispute between the parties. It was contended by Ld. Defence counsel that husband of prosecutrix had taken some money from both accused persons and when they demanded money , prosecutrix had filed the present false case against both accused persons. It was specifically pointed out by Ld. Counsel for accused persons that as per complaint Ex. PW1/A the incident had taken place at 9PM whereas the statement of PW4, husband of prosecutrix clearly shows that he got telephone from his wife at 7PM that accused Kailash Chand @ Maan Singh had committed rape upon her . Thus, it was
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submitted by Ld. Defence counsel that if the husband of prosecutrix had received the information at 7PM about the incident, which had taken place at 9PM, it clearly shows that it is a false and fabricated case made out by the prosecutrix to falsely implicate the accused persons. Further, it was submitted by Ld. Defence counsel that in the present case, samples of the prosecutrix were taken on the same date and were sent to FSL, but as per the result of FSL, Ex. P1, no semen was found on the entire sample of the prosecutrix, which could not have been possible if she was subjected to rape. It was also pointed out by Ld. Defence counsel that in order to circumvent the FSL Result the prosecutrix for the first time in examination in chief had stated that while she was being raped by accused Kailash Chand , he had used condom , therefore, the prosecution has tried to explain the absence of semen in the sample of the prosecutrix. But it was also submitted by Ld. Defence counsel that this explains the absence of semen of Kailash Chand and no such explanation has been tendered by the prosecution in respect to accused Chhote Lal, who also alleged to have committed rape upon the prosecutrix. It was pointed out by Ld. Defence counsel that on the relevant date i.e. 05.08.2015 prosecutrix had called accused Chota Lal for 19 times and she has called accused Maan Singh for 14 times and she had called her husband multiple times, which also clearly proves that
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complaint has been fabricated and has been filed against the accused persons with malafide intention. So much so, that even at, the time of alleged incident prosecutrix was having continuous communication with accused Kailash Chand. Ld. Defence counsel has placed on record the CDR of the phone of prosecutrix, which shows that she had called multiple times accused persons as well as her husband.
10. On the other hand, Ms. Neeta Gupta, Ld Additional P.P had submitted that accused persons have been specifically named in the FIR. Prosecutrix has clearly stated in the FIR that both accused persons had come to her house and had forcibly committed gang rape upon her by putting knife on the neck of her son. It was also submitted by Ld. Addl P. P that prosecutrix had supported the case in her statement u/s 164 Cr.P.C. as well as in the evidence. Nothing has been brought on record by Ld. Defence counsel to disprove the testimony of the prosecutrix, therefore, it was prayed by ld Additional P.P that accused persons be convicted for the offences, they are charged with.
11. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
12. In the present case, there are two accused persons against whom offence of gang rape has been alleged by the prosecutrix. Along with the offence of gang rape, prosecutrix had also alleged that accused Kailash Chand @ Man Singh
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who was being treated by her as "Dharambhai" had also outraged her modesty while she was preparing tea in the kitchen and had threatened her with dire consequences with respect to the life of her children. I will discuss the testimonies of material witnesses i.e. PW1/prosecutrix, PW4 husband of prosecutrix and PW7/IO of the case, while discussing the case of prosecutrix.
13. 'Rape" is one such dark reality in the Indian Society that devastates a women's soul , shatters her self respect and for a few, purges their hope to live. It shakes the insight of a woman who once was a 'happy person', and had no clue of being a victim of the said horrifying and nightmarish encounters.
14. Hon'ble Supreme Court and Hon'ble High Courts have been of the opinion that testimony of rape victim should not be considered 'at par' as 'accomplice' as she is only victim of the offence and, therefore, since 1983 in the case of Bharwada Bhoginbhai Hirjibhai vs State of Gujrat reported in AIR 1983 SC 753 dealing with the uncorroborated testimony of a victim of sexual assault, Hon'ble the Apex Court held as under:
"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of girl or the woman
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who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelieve of suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly, planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offfence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitude, mores, responses of the Indian Society, and its profile. The
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identities of the two worlds are different. The solution of problem cannot therefore be identical.
15. From 1983 till recently in various judgments, Hon'ble Supreme Court has considered that sole testimony of of the prosecutrix should not be equated with the statement of the accomplice and due weightage should be given to the testimony of the prosecutrix and the courts while appreciating the testimony of the prosecutrix should be sensitive. The only thing required is to see that the testimony of the prosecutrix is cogent, clear and confident. Similarly, it was believed that in the Indian society which is different from the western world , a girl in traditional, non permissive society of India, would be extremely reluctant to admit that any such incident had taken place, which is likely to reflect on her chestity on every occasion. As while reporting the matter she would have to brave the whole world and would risk the loss of love and respect from her own family, relatives and society. Later on the trend has shifted towards the possibility of even rape victim giving a false deposition or falsely implicating accused persons due to personal motives/personal gains.
16. In the Cr. Writ Petition No 1787 of 2016 Sh Kunal Mandaliya vs The State of Maharashtra, Hon'ble High Court of Judicature at Bombay has held that:
"It is a fact that there was a promise by the petitioner to marry the complainant.
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However, it cannot be said in any manner that the promise to marry was a condition precedent for giving a free consent for sex before marriage. The prosecutrix at the time of filing the complaint was 30 years old and was nearly 25 to 26 years old when the first incident of sexual intercourse took place. Thus, she was aware of the consequences of keeping sexual relations with a man and she was also aware that there may be differences between two persons and they may find each other not compatible. The girl was highly educated and also 25 years old.
Therefore, the consent cannot be said to have been obtained by fraud. It is a conscious decision to keep sexual relations with a man and thus, to have physical relationship is a matter of choice of both and adult persons, it can hardly be said that the consent was obtained fraudulently."
17. In the background of the present legal position , I will now discuss the testimony of prosecutrix and other material
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witnesses. In the present case allegations levelled against the accused person is that on 05.08.2015 at 9PM accused Kailash Chand had outraged the modesty of the prosecutrix . Thus, the important fact to be considered herein is that accused Kailash Chand @ Maan Singh had come to the house of the prosecutrix at 9PM and the offence of outraging the modesty was committed by him at 9PM. Whereas as per the cross examination of the prosecutrix conducted by Ld. Defence counsel on 10.01.2017, she had stated that on 05.08.2015 she had gone for bringing milk from mother dairy at 5 5.30PM. Before that time her husband had already left for Alwar and her children had gone for tuition. Prosecutrix had further stated in her cross examination that children's tuition ends at 6PM. Therefore, she took her children from tuition and came back home directly. The distance between her house and place of tuition is stated to be walking distance of 1015 minutes on foot. She has admitted in the cross examination that when she came back after taking milk along with her children, accused Maan Singh was sitting outside her house but she has denied that it was 6.30PM. Considering the time frame stated by the prosecutrix, if she had gone for bringing milk at 55.30PM and she had taken her children from tuition at 6PM, she has covered the distance from tuition center to her house within 15 minutes, it can be presumed that the maximum time, when she reached the
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home would be about 6.206.30PM. It is admitted by the prosecutrix that at that time accused Maan Singh @ Kailash Chand was already waiting outside her house. Therefore, it is proved by the testimony of the prosecutrix that accused Kailash Chand had come to her house at 6.30PM, as it is not the case of the prosecution that accused had gone from the house at the first time or that he had come back again to her house in the night.
18. Further, it is clear from the cross examination of the prosecutrix that when she saw accused Maan Singh present at the house, she called her husband and her husband asked her to serve tea to accused Kailash Chand. Therefore, she took him inside and started preparing tea, when allegedly accused had entered the kitchen and had tried to outrage her modesty by putting his hands on her breast. It is strange to note that children of the prosecutrix were present in the house but when accused Maan singh had tried to do indecent act with her, she had not raised alarm, she did not even ask accused Maan Singh to leave her house, which is admitted by her in her crossexamination. The whole incident in respect to the alleged offence becomes doubtful when there is difference of time as per the allegations levelled by the complainant and as per the statement given by her in evidence. It is also the case of the prosecutrix after that Maan Singh had reached at her house within five minutes, accused Chota Lal had also
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reached the house but in the entire crossexamination conducted by Ld. Defence counsel, prosecutrix has nowhere stated as to how accused Chhote Lal entered her house. She had stated in her cross examination conducted on 10.01.2017 that when she had talked with her husband, her husband had asked her to serve tea to accused Maan Singh. Thereafter she had opened the lock of the room and went inside the room, changed her clothes and then she has gone to make tea. That means minimum five minutes would have passed in opening the lock , changing the clothes and in going for making the tea. Thus, by that time, as per the case of the prosecution, accused Chhota Lal would have arrived there but prosecution is silent in this aspect. It has not been explained by the prosecutrix, as to who had opened the door for accused Chota Lal and if prosecutrix was aware of presence of accused Chhota Lal in her house, why she had not shouted for help from accused Chhota Lal. All these questions have been left unanswered by the prosecution, which makes the case of the prosecutrix unreliable and untrustworthy.
19. Further, it has been alleged by the prosecutrix that she prepared tea for the accused persons, they had tea in the room of the prosecutrix and only thereafter accused Maan Singh had committed rape upon her and later accused Chhota Lal had committed rape upon her. It is interesting to note that in the complaint Ex. PW1/A, MLC Ex. PW1/B and statement
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u/s 164 Cr.P.C. of the prosecutrix Ex. PW1/G, does not mention that accused Maan Singh had committed rape upon him while wearing condom but for the first time prosecutrix had stated in her evidence recorded on 13.05.2016 that accused Kailash Singh @ Maan Singh was wearing condom, when he committed rape upon her. It is unbelievable that sexual offender would take time to use condom before committing the offence of rape upon the prosecutrix. It is also important to note that result of FSL was given by the FSL on 22.12.2015 and the statement of the prosecutrix was recorded on 13.05.2016, thus by that time the FSL Result was already known to the prosecution and it appears that in order to circumvent & dilute the result of FSL, for the first time, prosecutrix has alleged that accused Maan Singh had used condom while committing rape upon her. But, again another interesting point at this stage is that no such allegation of using condom has been raised against the accused Chota Lal, who also had allegedly committed rape upon the prosecutrix and as per FSL Result Ex. P1 his semen was also not recovered from the slide and samples of the prosecutrix. Thus, it appears that motivated improvement has been made by the prosecutrix to falsely implicate the accused persons in the present case. Further the inconsistency in the testimony of PW1 and PW4 can be seen from the fact that it was admitted by PW4/husband of the prosecutrix that he
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received a call from his wife at about 77.30PM whereby he was informed by his wife that she had been raped by accused Maan Singh and accused Chhota Lal . The statement of PW4 clearly contradicts the case of the prosecution that rape has been committed upon the prosecutrix by accused persons at 9PM.
20. The prosecution has placed on record two tickets which are collectively marked as mark A , in order to prove that husband of the prosecutrix was going to Alwar on the date of incident and it was known to accused persons that husband of the prosecutrix would not be available at home. This fact has been incorporated by the prosecution in order to prove the motive against the accused persons. Perusal of tickets which have been placed on record by the prosecutrix clearly shows that there are two tickets . One ticket is from Delhi Cantt to Alwar from train and this ticket has been purchased on 05.08.2015 at about 17.12PM i.e. 5.12 PM. The other ticket is of Gurgaon to Delhi Cantt, which has been purchased at 19.05 that mean 7.05PM. As per the testimony of PW4 immediately after he had boarded the train, he had received a call from his wife, informing him about the incident of rape. Therefore, it can be calculated that after 7.05PM , prosecutrix had called her husband for informing about the incident. This also proves that by 7.15PM the incident of rape had already taken place upon the prosecutrix. At this stage, it
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is also important to consider that mobile phone number of the prosecutrix has been stated by PW4 to be the number as is mentioned in the file and is ending with digits 323. He has also stated that he was using mobile number 9999634357. As per CDR record of the prosecutrix placed on record, it can be seen that prosecutrix had called her husband at 19.19 i.e. 7.19PM and prior to that she has continuously been in touch with him at 6.05PM , 6.48PM, 6.52PM, 6.56PM etc.
21. Thus, taking the testimony of PW1, PW4 and CDR record of the prosecutrix collectively, it is clear that accused persons and prosecutrix had reached the house of prosecutrix at about 6.30PM and by 7.19PM prosecutrix had already informed her husband about the alleged commission of rape. Therefore, it can be presumed that the entire incident of outraging the modesty , serving the tea to accused persons, taking tea with them and then the alleged commission of gang rape upon the prosecutrix and the threats would have taken place within a gap of 45 minutes in total, which is hardly believable or possible considering the fact that from 6PM till 7.19PM prosecutrix has continuously been in touch with her husband through the mobile phone. If any such incident of outraging the modesty or misbehaviour by accused persons or alleged rape would have taken place with the prosecutrix , prosecutrix would have informed her husband immediately in her prior communication with him.
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22. Ld. Counsel for accused persons had stated that prosecutrix had made 19 calls to accused Chota Lal, 16 calls to accused Maan Singh in one day i.e. on the date of incident i.e. 05.08.2015. However, as per CDR of the prosecutrix available on record, number of accused Maan Singh, which has been proved by PW5 are not found in the CDR , hence, this argument cannot be accepted but it is clear from the CDR of the prosecutrix that from 6 p.m till 7.19PM she was in continuous communication with her husband and it was not possible that during this time, while she was communicating with her husband accused persons would have committed offence of gang rape upon prosecutrix. Therefore, I am of the opinion that testimony of prosecutrix does not inspire confidence as there are material contradictions in the time of alleged incident, presence of accused persons in the house as well as the communication between the prosecutrix and husband of prosecutrix on 05.08.2015 . There is delay in lodging the FIR as husband of prosecutrix had stated that his wife had informed him that she had made call at 100 number, however, as per the CDR of the prosecutrix the call at 100 number was made by her in the midnight after 12AM. From the CDR it is clear that the prosecutrix was having conversation on mobile phone with her husband till 10.28PM. This also disproves the case of the prosecution . If the husband of the prosecutrix had received information of
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commission of gang rape against his wife at 7.19PM and he had deboarded the train immediately, then, from Gurgaon he would have reached Delhi within maximum 1 1½ hours to 2 hours, and he would not have been present at the same location at 10.30 PM, as per the CDR. Thus it proves that the husband of the prosecutrix has not come to the house immediately and after consultation, present FIR has been lodged against the accused persons by the prosecutrix.
23. Once the entire incident of gang rape and the presence of the accused persons at the relevant time has not been proved by the testimony of PW1 and PW4, therefore, it can be considered that no threat was extended to the prosecutrix by putting knife on the neck of son of the prosecutrix. Even as per the testimony of PW7 Insp. Savita, no such knife was sent to FSL for getting the finger print from the said knife and the knife which was seized vide memo Ex. PW1/E was a normal knife present in the house of prosecutrix, therefore, it was essential for the prosecution to send knife to FSL in order to prove that knife was used by accused Maan Singh for threatening the complainant. No sketch of knife was prepared by the IO. This is a material lacuna in the investigation of the present case.
24. In view of my above discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused persons. Hence accused persons
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namely Chota Lal and accused Kailash Chand @ Maan Singh are acquitted of the offence u/s 354/376D/506 IPC. As per provisions of 437A Cr.P.C, bail bonds of the accused are extended for further six months on the same terms and conditions.
25. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 3rd November, 2017. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi
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