Delhi District Court
State vs Accused on 4 February, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL
SESSIONS JUDGE-02, KARKARDOOMA COURTS, EAST
DISTRICT, SHAHDARA, DELHI
SC NO. 94/10 Date of Institution :03.03.2009
FIR No. 504/08 Date of Argument :01.02.2012
PS Anand Vihar Date of Order :04.02.2012
U/S 343/363/368/376G/506/34 IPC
State Versus Accused
1 Hira Singh
S/o Late Sh. Soran Singh
R/o A-358, Loyal Pur,
Krishna Nagar,
Delhi.
2 Badal @ Babby @ Raj Singh
S/o Sh. Satpal
R/o 157, Ram Nagar,
Krishna Nagar,
Delhi.
3 Rani Sharma
W/o Sh. Sanjay Sharma
R/o B-561, N.S.A. Colony,
Delhi.
JUDGMENT
The facts in brief of the prosecution case are that on 08.10.2008 prosecutrix Babita lodged a report to the SHO, PS Anand Vihar alleging that she was resident of SC No. 94/10 State Vs. Hira Singh & Ors. Page 1 of 15 C-166, NSA Colony, Delhi, her age was 15 years and she was working as maid servant in different houses. On 02.10.2008 at about 6 p.m., she had gone in Vir Bazar, Bhikam Singh Colony for shopping where her neighbour Asha met her. At her request she accompanied Asha for shopping at Lal Quarter Market, Krishna Nagar. When they arrived at Jagat Puri red light, two boys on motor cycle were already present there. Asha introduced them as her friends and asked her to sit on motor cycle as they will drop them at Lal Quarter. Instead of taking her to Lal Quarter Market, they took her in a guest house at Shakarpur where Asha proposed to eat something before shopping. All of them went in a room. Those boys closed the room from inside and started drinking liquor. When they were talking with each other, she came to know their name as Hira & Badal. She requested to leave for her houses but none of them heard her and stopped her and made physical relation one by one with her. She continued to weep all the night. All three accused threatened her that they would deface her face in case she reports the matter to police. Both the boys dropped her and Asha near Hedgewar Hospital in the morning about 6 a.m. Asha did not permit her to go to her house and instead took her in the house of a neighbour named Rani. Rani did not allow her to go to her house. She always accompanied her. On SC No. 94/10 State Vs. Hira Singh & Ors. Page 2 of 15 07.10.2008 at about 4:30 p.m. her mother and sister Poonam forcibly got her freed from her house. They and her brother in law Pawan Kumar and sister Sunita took her to PS Anand Vihar where she narrated all the incident to the police. Police after recording her statement got FIR of this case registered against the accused persons. Prosecutrix was taken to SDN Hospital where her medical examination was conducted. Her internal examination was also got conducted. Police seized clothes of the prosecutrix vide seizure memo. Police also seized those exhibits which were handed over to the police by doctor. Accused Rani was arrested on 09.10.2008. Her arrest memo and personal search memo were prepared. She made disclosure statement which was recorded. On 22.10.2008, accused Hira was arrested. His arrest memo and personal search memo were prepared. His disclosure statement was also recorded. Accused Hira was got medically examined in SDN hospital. On 14.11.2008 accused Badal was arrested. His arrest memo was prepared. He was also got medically examined in SDN Hospital. IO also prepared the site plan, sent the exhibits to FSL for testing and report from the Malkhana where the exhibits were deposited after seizure. After recording of statement of witnesses, collecting evidence and completion of charge sheet, police filed charge sheet against the accused persons for their SC No. 94/10 State Vs. Hira Singh & Ors. Page 3 of 15 trial for the offences punishable u/s 343/363/368/376G/506/34 IPC.
2. Ld. Metropolitan Magistrate after supplying copies of charge sheet and documents committed this case to the court of sessions and the case was assigned to this court.
3. My Ld. Predecessor vide his order dated 07.03.2009 was of the opinion that there was a prima facie case for framing charge against accused Hira & Badal for the offences punishable under section 363/366/368/376 (2)
(g)/506/34 IPC and against accused Rani Sharma for the offences punishable under section 368/506 IPC. Accordingly, charges against accused persons for said offences were framed and read over to all of them. All the accused persons pleaded not guilty and claimed trial.
4. In support of its case prosecution examined Smt. Sunita sister of prosecutrix as PW1; Smt. Phoolwati mother of prosecutrix as PW2; Prosecutrix Babita as PW3; Ms. Poonam sister of prosecutrix as PW4; Sh. Pawan Kumar, brother in law (Jija) of prosecutrix as PW-5; Dr. V.K. Yadav as PW-6; Sh. Ajay Kumar Tiwari Security Guard of the Guest House as PW-7; Sh. Rakesh Kumar, Ld. M.M. as PW-8;
SC No. 94/10 State Vs. Hira Singh & Ors. Page 4 of 15Dr. B. Nayak CMO as PW-9; Ct. Harish Kumar as PW-10; Ct. Damodar Singh as PW-11; SI M.P. Singh as PW-12; Ct. Ravinder as PW-13; HC Lalit Kumar as PW-14; Dr. A.K. Kulshresth, Casualty Incharge as PW-15; HC Akhilesh Kumar as PW-16; Lady ASI Veena as PW-17 and Ct. Om Prakash as PW-18.
5. After closing of prosecution evidence statements of all the three accused persons u/s 313 Cr.P.C. were recorded. All the three accused persons either denied the prosecution evidence or expressed their ignorance about the occurrence. Accused Badal @ Babby pleaded that his correct name was Raj Singh. He was innocent and police falsely implicated him in this case. Accused Rani also pleaded that she was innocent. Accused Hira also stated that he was innocent and police implicated him falsely as he made complaint against the police official. All the three accused opted not to produce any defence witness.
6. After closing of evidence, I have heard arguments addressed by Ld. Defence Counsel and arguments addressed by Ld. Addl. Public Prosecutor and perused file.
SC No. 94/10 State Vs. Hira Singh & Ors. Page 5 of 157. It would be appropriate to reproduce sections 363/366/368/376 (2) (g)/506/34 IPC. It runs as under:
"363. Punishment for kidnapping.--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.-- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
376. Punishment for rape.--(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which SC No. 94/10 State Vs. Hira Singh & Ors. Page 6 of 15 case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:*** (2) Whoever,***
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:***
506. Punishment for criminal intimidation.--Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34. Acts done by several persons in furtherance of common intention. [34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]
8. It has been argued on behalf of Ld. Defence Counsel that prosecution has failed to establish its case against accused persons as material witnesses did not support prosecution case and they were declared hostile. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor that portions of the testimonies which have supported the prosecution case SC No. 94/10 State Vs. Hira Singh & Ors. Page 7 of 15 may be taken into consideration.
9. I have analyzed the evidence on record and come to the conclusion that prosecution has failed to prove its case against any of the accused persons for any of the offence. The reasons which support my decision are firstly that material witnesses did not support the prosecution case.
10. The testimony of PW1 is of hearsay in nature in respect of accused Badal and Hira. Besides, she stated that she was not able to identify the accused persons. She admitted that police took Babita to identify the culprit at PS. In cross examination conducted by counsel for accused Hira and Rani she deposed that her daughter Babita had informed her that boys who were locked up in the police did not commit the offence with her. In cross examination conducted for accused Badal she stated that her signatures on two blank papers were obtained.
11. The testimony of PW2 Smt. Phoolwati mother of the prosecutrix is also of hearsay in nature except in respect of accused Rani. She deposed that while they were tracing Babita they learnt their daughter Babita was confined by Rani. She alongwith her daughter had gone to SC No. 94/10 State Vs. Hira Singh & Ors. Page 8 of 15 house of Rani and her daughter was found inside her house. They requested Rani to return her daughter but she refused. However, they forcibly took their daughter Babita from her house. In cross examination she admitted that her daughter Babita was frequent visitor at the house of Asha and Rani.
12. PW3 Babita supported her case in respect of taking her to the hotel and commission of rape on her by two boys named Hira Singh and Badal @ Babby but she also stated that accused Hira and Badal @ Babby accused present in the court were not those boys who committed rape on her. In cross examination she stated that these boys have been falsely implicated in the present case and these were not the boys who committed rape on her. She denied the suggestion of Ld. Additional Public Prosecutor that she was not identifying the accused Hira and Badal as she had compromised the matter with them. In cross examination conducted for and on behalf of accused Rani, she stated that Rani did not confine her in her house against her wish.
13. The testimony of PW4 is also of hearsay in nature except recovery of prosecutrix from the house of Rani. She stated that they got recovered her sister from SC No. 94/10 State Vs. Hira Singh & Ors. Page 9 of 15 the house of Rani and took her to their house. In cross examination she stated that she never saw Rani prior to the above referred occurrence and she did not remember the date, month and year when her sister was got recovered from her house.
14. PW5 Pawan Kumar is not an eye witness either of the occurrence or of the recovery of Babita from the house of Rani. He, inter alia, deposed that he had taken Babita, his wife Sunita and his mother in law to the PS where Babita was taken to SDN Hospital for her medical examination. She wrote an application on the dictation of Babita and it was given to the police on the basis of which present case was registered and Babita told him that she was taken by Asha to Guest House where Hira & Badal committed rape upon her and thereafter she was left by Asha at the house of Rani. In cross examination he stated that he did not know either Rani or Asha and he was not aware whether Babita was beaten by her family members and thereupon she went to the residence of Rani of her own.
15. Another material witness PW7 Ajay Kumar Tiwari, Security Guard of the guest house also failed to identify the accused. He was declared hostile. In cross SC No. 94/10 State Vs. Hira Singh & Ors. Page 10 of 15 examination conducted by Ld. Additional Public Prosecutor nothing could come out which could connect the accused persons to the alleged crime. He denied all the suggestions put to him by Ld. Additional Public Prosecutor in his cross examination.
16. Secondly, the testimonies of PW6 Dr. V.K. Yadav, PW8 Sh. Rakesh Kumar Ld. M.M., PW9 Dr. B. Nayak, PW10 Ct. Harish Kumar, PW11 Ct. Damodar Singh, PW12 SI M.P. Singh, PW14 HC Lalit Kumar, PW16 HC Akhlesh Kumar, PW17 Lady ASI Veena who were the IOs of the case & PW18 HC Akhlesh Kumar were of formal in nature and will not provide benefit to the prosecution in the absence of reliable and trustworthy testimonies of eye witnesses referred to here in above.
17. Thirdly, the prosecution evidence on record could not satisfied the ingredients for proving the offences punishable under sections 368/506 IPC against accused Rani Sharma. It is one of the requirements for the offence punishable u/s 368 IPC that the accused i.e. Rani Sharma was knowing that any person i.e. prosecutrix Babita has been kidnapped or has been abducted, and he wrongfully concealed or confined such person i.e. prosecutrix. There is no evidence of prosecution on this aspect. Besides, in the SC No. 94/10 State Vs. Hira Singh & Ors. Page 11 of 15 present case prosecutrix Babita deposed that Rani did not confine her in her house against her wishes. Her mother PW2 Smt. Phoolwati stated that her daughter was frequent visitor at the house of Asha & Rani. The prosecution witnesses have also failed to support the prosecution case for the offence of criminal intimidation against accused Rani Sharma.
18. Fourthly, the prosecution evidence on record could not satisfied the ingredients for proving the offences under section 363/366/376(g)/506/34 IPC against accused Hira Singh and Badal @ Babby @ Raj Singh because none of the prosecution witness could connect the accused persons with the alleged crime i.e. kidnapping, abducting or inducing woman to compel her marriage, etc., wrongfully concealing or keeping in confinement, kidnapped or abducted person and criminal intimidation. Prosecutrix Babita stated clearly and unambiguously that Hira & Badal @ Babby accused present in the court were not those boys who committed rape on her. PW7 Security Guard of the Guest House also failed to identify them as the boys who occupied the hotel on the alleged date when the offence of gang rape on prosecutrix Babita was committed on her.
SC No. 94/10 State Vs. Hira Singh & Ors. Page 12 of 1519. Fifthly, in a case Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
20. Lastly, relying on the principle that let hundred criminals may go unpunished but one innocent should not be punished, it would be just fair and appropriate if accused persons are given benefit of doubt as the prosecution has failed to prove its case against them beyond any reasonable shadow of doubt and as per principles of law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (supra), the accused persons are entitled to get benefit of doubt.
CONCLUSION
21. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove its case against the accused Hira Singh and accused Badal @ Babby @ Raj Singh, that they in furtherance of their common intention either committed offence of kidnapping SC No. 94/10 State Vs. Hira Singh & Ors. Page 13 of 15 punishable u/s 363 IPC or offence of kidnapping, abducting or inducing women to compel her marriage etc., punishable u/s 366 IPC, or offence of wrongfully concealing or keeping in confinement, kidnapped or abducted person, punishable u/s 368 IPC or offence of gang rape punishable u/s 376 (2) (g) IPC or offence of criminal intimidation punishable u/s 506 IPC read with section 34 IPC, beyond any shadow of doubt. The prosecution has further failed to prove its case against accused Rani Sharma that she either committed offence of wrongfully concealing or keeping in confinement, kidnapped or abducted person, punishable u/s 368 IPC or offence of criminal intimidation punishable u/s 506 IPC read with section 34 IPC, beyond any shadow of doubt.
22. Consequently, by giving benefit of doubt, the accused Hira Singh and accused Badal @ Babby @ Raj Singh are acquitted for the offences punishable u/s 363/368/376(2)(g)/506/34 IPC and accused Rani Sharma is acquitted for the offences punishable u/s 368/506 IPC.
23. However, accused persons are directed to furnish their personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of Section 437A Cr.P.C. for a period of six months.
SC No. 94/10 State Vs. Hira Singh & Ors. Page 14 of 1524. Previous bail bonds/surety bonds of accused persons stand cancelled and sureties stand discharged.
25. After furnishing of personal bond/surety bond, file be consigned to record room.
Announced in the open court on 04.02.2012 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No. 94/10 State Vs. Hira Singh & Ors. Page 15 of 15