Delhi District Court
State vs Lalita on 26 February, 2009
1
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - V,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
Sessions Case No.68/08
FIR No.254/02
Police Station : Bawana
U/section : 376/365/354/506/342/363/34 IPC
State
Through NCT of Delhi.
Versus
1. Lalita
W/o. Late Sh. Anil Prasad Kesari
B-986 Jhuggi Shahbad Dairy,
Delhi.
2. Chander Shekhar
S/o. Sawajeet Singh
R/o. B-19 Jhuggi, Near Paanch Mandir,
Shahbad Dairy,
Delhi.
Date of Institution : 11.02.03
Date of institution in this Court : 24.11.08
Arguments heard On : 13.02.09
Order Announced On : 26.02.09
Present:
Sh. Vipin Sanduja, Addl. PP for state.
Sh. Aseem Bharadwaj, Amicus Curiae for both accused.
Contin...pg. 2
2
JUDGMENT :
1. The factual matrix of the present case as mentioned in charge sheet as stated that on 01.10.02 DD no. 16 reported at Police Post Shahbad Diary on which SI R.S. Yadav, Chowki Incharge, ASI Ram Kumar and constable Narender Kumar reached at spot of crime H.No. C-20/8, Shahbad Dairy, Office Vishwa Shanti Prayas Committee. The police officials above named found crowd then prosecutrix "P", daughter of Mithai Lal met with police party. Her statement Ex.PW-2/A recorded. SI R.S. Yadav made ruqqa Ex.PW-14/B and sent it for registration of FIR through constable Narender. FIR under section 376/365/342/506/34 IPC was registered Ex.PW-3/A.
2. Investigation officer during investigation called WHC Sushila and got recovered three more girls Arti, Bitto, Sunita from Gali in front of C-20/8, Shahbad Dairy, Delhi. Site plan Ex.PW-14/C was prepared at the instance of prosecutrix "P". Prosecutrix "P" got recovered her clothes one light yellow colour sari, one light yellow colour blouse and red colour petticoat which was seized and sealed with the seal of RS vide Ex.12/B. Contin...pg. 3 3
3. Accused Lalita and Chander Shekhar were arrested. Prosecutrix "P" Sunita, Bitto and Arti were taken to Babu Jagjivan Ram Hospital for medical along with HC Sushila. Hair and swab of prosecutrix "P" was seized and sealed with the seal of BJRM on 02.10.02. Accused persons were also got medically examined. HC Rattan Lal got medical examination of accused Chander Shekhar and his underwear and blood samples were seized and sealed with the seal of BJRM.
4. Investigation officer on 17.10.02 got bonne-X-ray for determination of age of all four girls at BJRM Hospital. Statement of all the four girls were recorded under section 164 Cr.P.C. on 09.10.02, 10.10.02 and 14.10.02.
5. The sealed exhibits were sent to CFSL, Kolkota for opinion on 21.11.02. Investigation officer on the basis of all materials and statement under section 164 of all four girls filed the charge sheet under section 354/363/323/376/365/34 IPC. The result of CFSL filed during the trial.
6. The learned M.M. after compliance of section 207 Cr.P.C. committed the present case to the court of sessions.
Contin...pg. 4 4
7. My learned predecessor Ms. Bimla Makin, ASJ framed charge against accused Chander Shekhar under section 376 IPC and against accused Lalita under section 366/365/34 IPC. However, learned predecessor Sh. Neeraj Kumar Gupta, ASJ amended the charge on 25.09.04. The amended charge was framed under section 363/366/342/354/34 IPC against both the accused persons apart from charge under section 376 IPC against accused Chander Shekhar. Both accused pleaded not guilty and claimed trial.
8. The prosecution examined following witnesses by way of prosecution evidence :-
Medical Witnesses :
(i) PW-1 Dr. Shipra Rampal, Radiologist
(ii) PW-8 Dr. A.K. Kesari
Formal Public & Police Witnesses :
(i) PW-3 Constable Mahabir Singh
(ii) PW-4 Constable Bhim Singh
(iii) PW-10 Kishan Chand
(iv) PW-15 Sh. A.K. Garg, ld. MM.
(v) PW-7 Daya Nand
Contin...pg. 5
5
Police Investigation Witnesses :
(i) PW-10 HC Kishan Chand
(ii) PW-11 Constable Sushil
(iii) PW-12 Constable Narender
(iv) PW-13 HC Rattan Lal
(v) PW-14 SI Raghubir Singh
Eye Witnesses :
(i) PW-2 Prosecutrix "P"
(ii) PW-5 Bitto
(iii) PW-6 Arti
(v) PW-9 Sunita
9. Prosecution closed the evidence as per the statement of learned Addl. PP on 01.10.07.
10. Statement of both the accused recorded under section 313 Cr.P.C. They pleaded innocence and accused Chander Shekhar examined himself as DW-1.
11. I have heard learned Addl. PP Sh. Vipin Sanduja and counsel for accused persons Sh. Aseem Bharadwaj, Amicus Curiae and perused the record.
Contin...pg. 6 6
12. Learned Addl. PP submits that accused Lalita and Chander Shekhar committed the offence under section 376/363/365/366/342/354 IPC. Both the accused persons illegally confined four girls out of which three were minor and one was major prosecutrix "P", Bitto, Sunita and Arti on the pretext that Janaki D/o. Accused Lalita was found missing. He submits that according to the testimony of all the four girls accused Chander Shekhar committed rape on prosecutrix "P". The police witnesses further proved that they got recovered all the four girls from the site of crime. They also seized the clothes of prosecutrix "P" and they were sent for CFSL examination. PW-1 Dr. Shipra Rampal and PW-8 Dr. A.K. Kesari proved MLC and bonne-X-ray age report. Ld. MM Sh. A.K. Garg proved statement under section 164 Cr.P.C. Ld. APP further submits that all the 15 witnesses examined by prosecution proved the charges against both the accused persons and they may be convicted of the offences.
13. On the other hand ld. Counsel for the defence Sh. Aseem Bharadwaj submits that the prosecution case has no basis. The testimonies of prosecutrix PW-2 "P", PW-5 Bitto, PW-6 Arti and PW-9 Sunita are contradictory to each other on the material of committing rape by accused Chander Shekhar. He further submits Contin...pg. 7 7 that it is surprising that if minor girls are missing from their home, no complaint is filed by their parents or there is no search for the girls. He submits that the statement of all the four girls recorded under section 164 Cr.P.C. are totally contradictory to the deposition before the court. The testimony of all the four girls are contradictory to each other testimony. The police witness PW-11 WHC Sushila and PW-13 HC Rattan Lal is contradictory to each other and also contradictory to the testimonies of four girls PW-5, PW-6, PW-7 and PW-9. He submits that both the accused persons are falsely implicated in this case. Accused Chander Shekhar himself appeared in witness box as DW-1. He is the person running the NGO Vishwa Shanti Prayas Committee at C-20/8, Shahbad Dairy. He had written letters to Lt. Governor against the police officials of the area. The other co-accused Lalita's daughter Janaki was missing therefore, he took the help of accused Chander Shekhar. The police officials instead of helping accused Lalita, falsely implicated her along with the accused Chander Shekhar in this case. He submits that prosecution failed to prove the charges against both the accused persons therefore, liable to be acquitted.
14. I have considered the submissions of both the counsels and perused the record.
Contin...pg. 8 8
15. The prosecution case started with DD No. 16 dated 08.10.02 Ex.PW-14/A. It is material to reflect the contents of this DD No. 16 which is as under :-
"Time : 4.35 p.m. evening, OMEGA-50 gave wireless message that Chander Shekhar, Shahbad, E-20/8, some girls recovered with the help of police. SI Narender Yadav came for enquiry. All girls were taken by their parents. A case is registered. Police station Model Town from ASI Dheer Singh, PCR. It is entered into daily diary register. The copy handed over to constable Narender Singh and sent to ASI Ram Kumar and Chowki, Incharge, Police Post SI Raghubir Singh. All these police officials started for the place of crime."
16. It is pertinent to mention here that ASI Dheer Singh, PCR is cited witness by the prosecution at serial no. 18 in the list of witnesses. However, he is not examined or produced by prosecution. DD No. 16 is proved by investigation officer PW-14 SI Raghubir Singh who after receiving this started for the place of crime as cited in the DD entry i.e. Shahbad, E-20/8. According to this DD entry some girls were recovered with the help of police and SI Narender Yadav made the inquiries thereafter those girls Contin...pg. 9 9 were taken by their parents. It suggests that the DD entry is around 4.30 p.m. therefore, this must have happened prior to 4.35 p.m.
17. The ruqqa proved by PW-14 investigation officer Ex.PW-14/B. SI Raghubir Singh mentioned that DD No. 16 received at police post Shahbad Dairy then along with ASI Ram Kumar and constable Narender Kumar reached at place of crime C-20/8, Shahbad Dairy, Office Vishwa Shanti Prayas Committee. The ruqqa further states that crowd was gathered there and prosecutrix "P" daughter of Mithai Lal, w/o Badal R/o. Jhuggi A Block, Shahbad Dairy appeared and got recorded her statement. On the basis of her statement this ruqqa Ex.PW-14/B was prepared and sent for registration of FIR under section 376/365/342/506/34 IPC through constable Narender Kumar. It is pertinent to mention here that the investigation officer SI Raghubir Singh mentioned in the ruqqa two police officials ASI Ram Kumar and constable Narender Kumar. However, in the list of witness relied by prosecution along with the charge sheet, ASI Ram Kumar is not cited as witness. It is further very important to note that in the prosecution case four girls were involved as witness and one lady accused but ruqqa is silent regarding the calling of lady constable or head constable to join the Contin...pg. 10 10 proceedings. Further the DD No. 40-A stated one name "Chander Shekhar", Shahbad, E-20/8. However, investigation officer SI Raghubir Singh reached at H.No. C-20/8, Shahbad Dairy, Office Vishwa Shanti Prayas Committee. This fact requires further examination on the basis of testimony of PW-14 Investigation Officer SI Raghubir Singh.
18. PW-14 SI Raghubir Singh testified in the court that on 01.10.02, he was posted as SI, police station Bawana working as Incharge, PP : Shahbad Dairy. On receiving DD no. 16 Ex.PW-14/A, he along with ASI Ram Kumar and constable Narender Kumar reached at H.No. C-20/8, Shahbad Dairy. He is not stating the name of Chander Shekhar also mentioned in DD No. 16 Ex.PW- 14/A and place office Vishwa Shanti Prayas Committee. He is also silent what role played by ASI Ram Kumar in the whole investigation. ASI Ram Kumar is not cited as witness and no explanation given of his absence in the charge sheet.
19. PW-14 investigation officer SI Raghubir Singh prepared ruqqa on the statement of prosecutrix "P and prepared a site plan Ex.PW-14/C at the instance of prosecutrix "P". The site plan does not bear thumb impression of prosecutrix "P" or signature of ASI Ram Kumar who went along with him. The other Contin...pg. 11 11 fact is that in his testimony that he called WHC Sushila when constable Narender Kumar went for registration of FIR with ruqqa. WHC Sushila appeared in witness box as PW-11, she testified that on 01.10.02 in the evening she received a message at her home to reach at police post Shahdbad Dairy so reached at H.No.20/2 situated at Shahbad Dairy along with the SI R.S. Yadav. The testimony of PW-14 investigation officer and testimony of PW-11 HC Sushila on the aspect of calling and joining investigation by PW-11 is contradictory to each other. PW-14 investigation officer called PW-11 WHC Sushila to reach at H.No. C-20/8, Shahbad Dairy but PW-11 reached at H.No.20/2 along with investigation officer from her home. PW-12 constable Narender testified that on 01.10.02, he along with investigation officer SI Raghubir Singh, ASI Ram Kumar (who is not cited as witness) and HC Rattan Lal went to C Block, Shahbad Dairy. He is silent in his deposition regarding the presence of PW-11 WHC Sushila whether present at the spot when he came back after registration of FIR.
20. Let us examine the testimony of PW-13 HC Rattan Lal. He testified that on 10.02.02, he was posted at PS : Bawana, chowki police post Shahbad Dairy and on receiving DD No. 15, he along with constable Dhan Singh reached C Block, 20/8, Shahbad Dairy. In the way SI R.S. Yadav, ASI Ram Kumar and constable Contin...pg. 12 12 Narender met him then they all reached at C Block, 20/8, Shahbad Dairy, Delhi. He further testified that Narender came along with WHC Sushila at the spot.
21. Now analysing the testimony of PW-11 WHC Sushila, PW-12 constable Narender, PW-13 HC Rattan Lal and PW-14 SI Raghubir Singh, precipitated as that investigation officer PW-14 SI Raghubir Singh went to the spot on the basis of DD No. 16-A Ex.PW-14/A, after recording statement of prosecutrix "P" prepared ruqqa Ex.PW-14/B and sent for registration of FIR. Thereafter, he called PW-11 WHC Sushila. However, according to testimony of PW-11 WHC Sushila she got a message at her home to reach police post Shahbad Dairy thereafter she along with PW-14 investigation officer went to H.No.20/2, Shahbad Dairy. PW-12 constable Narender is silent whether PW-11 WHC Sushila accompanied him from Chowki to the spot. PW-13 HC Rattan Lal introduces a new dimension that on 10.02.02 on receiving DD No. 15 he along with constable Dhan Singh went to the spot. It is surprising that in the list of witnesses neither ASI Ram Kumar who accompanied PW-14 investigation officer Raghubir Singh nor constable Dhan Singh cited as witness nor Dhan Singh accompanied HC Rattan Lal cited as witness. There is no explanation for exclusion of these two witnesses who joined the Contin...pg. 13 13 investigation. The testimony of these four witnesses are contradictory to each other on all material aspects. Hence, the clouds of suspicion and doubt starting forming after analysing the prosecution witnesses mentioned hereinabove on the aspect of the information regarding the present case and the initial investigation conducted by the police officials. In this background, let us proceed to examine to the prosecution case in respect of serious offence under section 376 IPC against accused Chander Shekhar and both accused persons under section 363/366/342 and 354/34 IPC.
22. Now according to PW-14 SI Raghubir Singh, investigation officer, he prepared seizure memo of recovery of all four girls Ex.PW-11/B when WHC Sushila arrived at the spot. Hereinabove although it is discussed the arrival of WHC Sushila PW-11 is under clouds of suspicion. Be it as may be PW-13 HC Rattan Lal testified that PW-11 WHC Sushila came along with constable Narender for registration of FIR. It suggests that Ex.PW- 11/B must have been prepared after joining of investigation by PW-11 WHC Sushila. PW-12 constable Narender in his testimony while under cross-examination stated that he started from spot with ruqqa at about 6.45 p.m. and reached at about 7.45 p.m. in a bus as distance is 10-12 Km. So it must be around 8.00 or Contin...pg. 14 14 thereafter constable Narender and WHC Sushila reached at the spot. PW-11 stated that in cross-examination by ld. APP regarding memo Ex.PW-11/B. The house number stated as C-20/8, Shahbad Dairy. In Ex.PW-11/B address is mentioned as H.No. C-20/8, Shahbad Dairy and place of recovery is shown as infront of this house at a gali. PW-13 HC Rattan Lal is silent in respect of seizure memo Ex.PW-11/B. The testimony of PW-11 WHC Sushila and PW- 13 HC Rattan Lal are silent in respect of preparation of seizure memo and signature put by them. These testimonies are contradictory. Therefore, preparation of seizure memo and recovery of four girls is again under the cloud of doubt and suspicion.
23. PW-14 Investigation Officer further prepared seizure memo of clothes of prosecutrix "P" seized by him Ex.CW-2/B, it bears the thumb impression of prosecutrix "P" and witnessed by WHC PW-11 Sushila and PW-13 HC Rattan Lal. PW-2 prosecutrix "P" stated that her sari, petticoat and blouse taken in possession vide memo Ex.PW-2/B which she kept in one corner of the room. PW-11 WHC Sushila stated that at H.No. 20/2, Shahbad Dairy, she went along with investigation officer SI R.S. Yadav and there they recovered clothes of one girl prosecutrix "P" from her house which was produced by prosecutrix and taken into possession vide Contin...pg. 15 15 memo Ex.PW-2/B. In the cross-examination she states that prosecutrix first met at her house and produced three clothes. PW-13 HC Rattan Lal stated that prosecutrix produced her wearing clothes blouse, petticoat and sari from the bathroom of the room which was taken into possession vide memo Ex.PW-2/B. In the cross-examination stated that the clothes were taken outside from the bathroom by the prosecutrix which was situated opposite to the room near staircase. However, he remained outside the room when clothes were taken outside from the bathroom.
24. PW-2 stated that she kept her clothes sari, petticoat, blouse at the corner of the room. She is not stating about any bathroom. PW-13 and PW-14 stated that they recovered the clothes from the bathroom situated outside the room. The prosecutrix taken out clothes from the bathroom and handed over to the police. The essential witness to this recovery is PW-11 WHC Sushila who stated totally different version because she went to the house of prosecutrix no. 20/2, Shahbad Dairy. The prosecutrix produced the clothes. In the cross-examination she stated that prosecutrix produced her clothes from the bathroom at her house. The testimonies of PW-2 prosecutrix, PW-11 WHC Sushila, PW-13 HC Rattan Lal and PW-14 investigation officer Raghubir Singh in Contin...pg. 16 16 respect of Ex.PW-2/B seizure memo of clothes of prosecutrix are contradictory to each other. The testimonies of prosecution witnesses materially contradictory to each other and totally demolishes the prosecution story in respect of seizure of clothes of the prosecutrix.
25. Now, we proceed to analysise Ex.PW-11/A seizure memo of sealed samples at Babu Jagjivan Ram Hospital, Jahangir Puri. This seizure memo is prepared on 02.10.02 and witnessed by PW-11 WHC Sushila.
26. PW-11 WHC Sushila testified that on 01.10.02 prosecutrix was taken to BJRM Hospital for medical examination. Thereafter, one small bottle sealed with the seal of MS, BJMR Hospital one sealed parcel with the seal of the same and another sample seal were taken into possession vide memo Ex.PW-11/A. In examination she states that she reached the hospital at 8.00 or 9.00 p.m. by government police vehicle. PW-14 investigation officer SI Raghubir Singh stated that all four recovered girls were taken for medical examination along with PW-11 WHC Sushila at BJRM Hospital, Jahangir Puri. The MLCs were handed over and sealed parcels which were taken into possession vide memo Ex.PW-11/A. None of these witnesses stated the date on which Contin...pg. 17 17 medical examination of prosecutrix and other three girls were conducted. However, memo Ex.PW-11/A suggests that it was on 02.10.02. PW-11 WHC Sushila stated that she went to house stating some other number other than place of crime directly on receiving of message. The other witness PW-13 stated that he arrived with constable Narender at the spot. So, if presumed that PW-11 WHC Sushila arrived at the spot, the time must be after 8.00 p.m. Thereafter, investigation officer conducted proceedings at the spot of recovery of girls and clothes. Then according to the investigation officer PW-14 and PW-11 WHC constable Sushila all the four girls were taken for medical examination must be at 10.00 or 11.00 p.m. on 01.10.02.
27. Now let us examine MLCs of four girls Ex.PW-8/A to Ex.PW-8/B. The first is of prosecutrix "P". The date mentioned as 02.09.02 time : 12.45 a.m. However, there is cut but there is no explanation on change of date to 02.10.02 with different pen and ink. The MLC Ex.PW-8/B mentioned the date 2nd September, 2002 time 12.55 a.m. However, there is another examination of Dr. M.G. Kalyanpal. It is on 02.10.02 time : 2.10 a.m. No explanation regarding two dates. MLC of Arti Ex.PW-8/C mentioned the date 02nd September, 2002 time : 1.14 a.m. MLCs of Bitto Ex.PW-8/D at one column has not mentioned the date of examination but at Contin...pg. 18 18 other column D - 1st October, 2002 at 1.45 a.m. Other date of examination by Dr. M.G. Kalyan Pal mentioned the date 02nd October, 2002, 1.45 a.m. in the night. All MLCs contend contradictory to the testimony of PW-11 and PW-14. Three MLCs stating the date 2nd September, 2002. The half of the examination on 02nd September, 2002 and the remaining examination on 02nd October, 2002 at early hours of the morning. The initial handwriting has not mentioned the history which is different from the other handwriting. The 2nd September, 2002 date and examination suggests that it was for bonne-x-ray of all the four girls. Then how it is possible that on 02nd September, 2002, the same MLC has been prepared and how investigation officer seized the pulandas and medical samples on 02nd October, 2002 when four girls are under medical examination. The bonne-X-ray report of all four girls also mentioned the same date of 02nd September, 2002.
28. The medical examination of four girls, seizure memo Ex.PW-11/B and MLCs PW-8/A and PW-8/B completely demolishes the prosecution story. There is no explanation or believe how four girls examined on 02nd September, 2002 when they were brought after alleged recovery on 01.10.02.
Contin...pg. 19 19
29. Let us proceed to examine the testimony of eye witnesses PW-2 prosecutrix "P", PW-5 Bitto, PW-6 Arti and PW-9 Sunita. The background as discussed hereinabove in respect of investigation carried out by PW-14 investigation officer SI Raghubir Singh, the documents prepared by him and police witnesses who participated in the investigation. PW-11 WHC Sushila, PW-12 constable Narender, PW-13 HC Rattan Lal who also witnessed the memo of recovery of four girls PW-14/B, recovery of prosecutrix clothes PW-12/B and MLCs Ex.PW-8/A to PW-8/D. The investigation is already under the black smoke of doubt and suspicion. In this atmosphere the testimony of four girls are vital and important.
30. The analysis and appreciation of all the four girls witnesses requires starting from 164 Cr.P.C. statement and statement before the court with cross-examination.
31. First let us analyse the testimony of PW-2 prosecutrix "P". Her first statement is PW-2/A. According to this statement on which present case was registered by investigation officer PW- 14 SI Raghubir Singh. Prosecutrix "P" states as follows :-
"P" daughter of Mithai Lal R/o. Jhuggi No.31, A Block, Shahbad Dairy, Delhi aged 16.
Contin...pg. 20 20 Statement under section 164 states as follows:
"P" daughter of Mithai Lal aged 16 Jhuggi No.31, Shahbad Dairy, Delhi.
Statement before the court :-
"P" daughter of Mithai Lal aged 18 R/o. Peera Garhi, Nangloi, Rajdhani Park, Prem Nagar. Housewife. "As per exhibit PW-2/A, PW-2 "P" states that at present she is living with her mother and father, however, about one month ago married to Badal S/o. Bhai Lal R/o. Jhuggi Anna Nagar, ITO, Delhi. On 30.09.02, at about 3.00 p.m. Lalita who resides near the Jhuggi of father and mother and one person Chander Shekhar who is lame residing B-19 Jhuggi Shahbad Dairy and saw him many times at office Vishwa Shanti Prayas Committee. Both came to ITO Jhuggi enquiring about missing daughter Janaki of Lalita."
32. This piece of statement suggests that prosecutrix "P" is residing at Anna Nagar Jhuggi. She knows both accused Lalita and Chander Shekhar. Chander Shekhar is having office of Vishwa Shanti Prayas Committee at Shahbad Dairy. Both came to enquire about missing daughter Janaki at ITO Jhuggi, her in-laws place.
Contin...pg. 21 21
33. According to section 164 Cr.P.C. statement she states that :-
"In Anna Nagar Jhuggi where her in-laws lives. She got married with one Badal last to last Tuesday. She was called by Lalita aunti who lives at Shahbad Dairy from ITO, Anna Nagar Jhuggi to enquire about her missing daughter."
This piece of statement suggests that only Lalita enquired from prosecutrix at Anna Nagar Jhuggi about her missing daughter.
34. PW-2 appeared in witness box where she states that prior to her marriage she was residing at parents' house at Shahbad Dairy. Incident took place one and half year ago then when she was married one month prior to this incident to Badal and residing at ITO, Anna Nagar Jhuggis. She knows Lalita as she was residing in Shahbad Dairy and used to play with her daughter Janaki. Lalita and Chander Shekhar came to her Jhuggi at Anna Nagar. None was present there. Lalita told about her missing daughter Janaki. In cross-examination, she states that she knows that daughter of accused Lalita was missing since last two-three months whereas she was married last one month. Chander Contin...pg. 22 22 Shekhar was not known to her and saw first time at Jhuggi with Lalita. She further stated in cross-examination she never used to visit the house of accused Lalita or her daughter used to visit her hosue. But both used to meet her at water tap. Janaki also attended her marriage. This statement before the court suggests that when prosecutrix "P" appeared in witness box, she was married to some other person and was residing at Peera Garhi, Nangloi. She knows about that Janaki, daughter of Lalita was missing two three months prior to present incident. She also stated in cross-examination Janaki attended her marriage.
35. Hereinabove discussed portion of prosecutrix "P", PW- 2 since beginning is showing material contradiction in the statement PW-2/A recorded by PW-14 investigation officer and statement under section 164 Ex.PW-1/C. According to PW-2/A statement she knows accused Lalita and Chander Shekhar both. In addition to it she stated the office of Shekhar Chander and described him as Lame (Langra). In statement under section 164 Cr.P.C. Ex.PW-1/C she stated only about Lalita she visited the Jhuggi at Anna Nagar, ITO. However, when she appeared in witness box as PW-2 she stated the names of both the accused persons. However, she stated that she knows about the fact that Janaki, daughter of accused Lalita was missing since last two-
Contin...pg. 23 23 three months prior to incident. The analysis and appreciation so far shows that the seeds of untrustworthiness started germination in the dark clouds of suspicion of prosecution story as discussed hereinabove.
36. Now coming to the further portion statement Ex.PW- 2/A prosecutrix "P" further states that she expressed her sympathy and to help accused Lalita in searching her daughter Janaki. She along with Lalita and Chander Shekhar in three wheeler went to police station Model Town. Thereafter from police station Model Town to Shahbad Dairy at about 8.00 p.m. in the night at the office of Chander Shekhar C Block, First Floor.
37. In statement Ex.PW-1/C under section 164 Cr.P.C. she states that she was taken to police station Model Town by Lalita where police officers made inquires about missing daughter. She states that thereafter Lalita asked her to accompany Shahbad Dairy but she wanted to go to ITO at her in-laws house. Lalita took her to C Block office.
38. PW-2 prosecutrix "P" appeared in witness box testified that Lalita told her to accompany to Model Town police station for searching her daughter. Chander Shekhar and Lalita took her in Contin...pg. 24 24 auto to police station Model Town where police made inquiries. Thereafter came out from police station and asked to go back at mother-in-law house but Lalita accompanied her to Shahbad Dairy. At Shahbad Dairy she told to go to mother house at A Block Jhuggi. But at 8.00 p.m. Lalita took her to C Block Shahbad Dairy. In cross-examination, she stated scooter fare was paid Lalita. She was not knowing Chander Shekhar at that time.
The appreciation of this portion prosecutrix statement again reflects material contradiction. According to Ex.PW-2/A she went to Lalita and Chander Shekhar in a three wheeler at police station Model Town. As per statement under section 164 Cr.P.C. she was taken by Lalita only to police station Model Town. According to testimony in the court she remained at police station prior to 8.00 p.m. The investigation officer has not enquired from police station Model Town regarding this aspect although in the charge sheet one line is written. No effort is made by IO to join the police officials from police station Model Town to further explain and corroborate this fact. No documentary filed on record regarding any FIR is pending at police station Model Town and what inquiries conducted by police officials from prosecutrix "P" at police station Model Town. However, Ex.PW-14/A DD No.16 SI Narender Yadav made some inquires from girl which was taken by Contin...pg. 25 25 parents from police station Model Town. However, investigation officer did not make any effort to join SI Narender Yadav during investigation.
39. Statement of prosecutrix "P" Ex.PW-2/A further states that at about 8.00 p.m. in the night, Lalita and Chander Shekhar both forcibly took her to first floor, C Block office, there three girls namely PW-5 Bitto, PW-6 Arti and PW-9 Sunita were already sitting there. The door was shut. Thereafter both accused started slapping and giving fist blows on all the four girls and asking about missing Janaki. At about 2.00 a.m., Chander Shekhar after drinking liquor along with Lalita confined all the three girls in a latrine outside room at staircase. Then closed door of the office.
40. In statement 164 Cr.P.C. prosecutrix states that Lalita taken her C Block Office by dragging from the staircase. There she saw three more girls Arti, Sunita and Bitto already confined there. Both accused gave beating to three girls. Thereafter three girls were confined in bathroom. When prosecutrix as PW-2 she testified that Lalita took her dragging on first floor office of Chander Shekhar, she saw there three girls were already confined one or two days prior to her. Lalita again made inquiries about missing daughter Janaki. In cross-examination she states that she Contin...pg. 26 26 never went to office of accused Chander Shekhar. She also revealed before Magistrate that she said that Lalita threatened her to put on her chilly powder and tezab. Three girls were confined in a bathroom close to her. Latrine and bathroom were combined where she was confined.
41. Now analyse this portion with other three girls testimony and statement under section 164 Cr.P.C. PW-5 Bitto stated that under section 164 Cr.P.C. statement Ex.PW-15/A about 10-12 days back it was Sunday. She along with Arti, Sunita and "P" called by one Chander Shekhar. It was known later that daughter of Chander Shekhar was missing. He has confined all of them in the bathroom of his office except "P" and enquired about missing daughter. Chander Shekhar beaten them and they were confined in a bathroom except "P". He also threatened if whereabouts of his daughter are not known then he will throw Mirch in our eyes and acid. Lalita was also present and compelled prosecutrix "P" to take drink (sharab). PW-5 Bitto when appeared in witness box as PW-5 she testified that she was doing work of sweeping at vegetable shops at Subzi Mandi. On 29th September, both accused came at Subzi Mandi and enquired about missing daughter Janaki. Thereafter took herself and Arti in a two wheeler towards Bawana on pretext of locating her daughter Janaki but Contin...pg. 27 27 confined in a room for a week on the 2nd storey of the house. Accused persons gave beating to herself and Arti. Accused Chander Shekhar further threatened to put acid and Lal Mirch powder in their vagina. Both accused tied herself and Arti on a chair. In cross-examination she states that she was taken to police station Model Town by accused Chander Shekhar and Lalita. Police made inquiries and she remained there for about two hours. Police gave beating and asked about Janaki. Thereafter, she was taken to police station Adarsh Nagar. There police gave beating. Lastly she was taken to police station Jahangir Puri. From there to the room where she was confined.
42. PW-6 Arti in her statement under section 164 Cr.P.C. Ex.PW-15/C states that last to last Sunday Lalita had come to her house about missing daughter. She told her to cooperate in finding out her daughter. She states that she asked Lalita that she will not go unless and until her mother comes. Lalita taken her to Shahbad Dairy thereafter to the office of Chander Shekhar. Lalita asked Chander Shekhar to confine where already three girls were there. All the three girls were confined in the bathroom. Lalita thereafter brought prosecutrix "P". When she appeared in witness box testified that she is doing of separating different type of potatoes at Subzi Mandi. Bitto and Sunita also work in Subzi Contin...pg. 28 28 Mandi. About two years back accused Chander Shekhar and Lalita came at Suzbi Mandi to her in locating their missing daughter. On such pretext they took herself Arti and Sunita to Shahbad Dairy and confined in an office on first floor. Accused Chander Shekhar threatened that he will put Lal Mirchi Power in our vagina. Accused Chander Shekhar pressed breasts and pinched cheeks.
She further testified that about 4.00 p.m. in the evening next day, another girl prosecutrix "P" was brought and was confined and locked inside the room. Both accused persons misbehaved at night. At about 2.00 a.m., herself, Arti and Sunita confined in a latrine. In cross-examination she states that they were not taken to police station but straightaway taken to office at Shahbad Dairy in a three wheeler scooter. When prosecutrix taken to the room she was standing in the balcony.
43. PW-9 Sunita in her statement under section 164 Cr.P.C. Ex.PW-15/B stated that Lalita had come to Hyderpur. Her mother was not there then asked about missing daughter. Thereafter she had taken her to Shahbad Dairy at office of Chander Shekhar where she was confined. Lalita and Chander Shekhar brought prosecutrix "P" from her in-laws house. Thereafter she along with other two girls were kept in a bathroom.
Contin...pg. 29 29 In the night Chander Shekhar also done wrong thing with them. Lalita had brought Mirch and acid and threatened to throw Mirch and acid on their faces. Son of Lalita also beaten by consuming liquor.
44. PW-9 Sunita when appeared in witness box she testified that accused Lalita and Chander Shekhar took them to the office of Chander Shekhar on the pretext that their daughter Janak is missing. There all of them confined and locked in another room's bathroom and door was slightly open so that they could peep out from broken place of the door. Accused Chander Shekhar starting teasing and touching her cheeks and tried to undressed. Then she started weeping therefore released. She was cross-examined by ld. Addl. PP. In cross-examination she states that she knew daughter Janaki of Lalita for last two-three years. She kept in a room for two days where two males and three females in the room. The toilet was at the distance of five paces from the room where they were confined.
45. The statements of all the four witnesses PW-2 prosecutrix, PW-5 Bitto, PW-6 Arti and PW-9 Sunita on the aspect of their meeting with both accused persons and how they were brought to the office C Block, Shahbad Dairy are contradictory.
Contin...pg. 30 30 The conduct as alleged of accused Lalita and Chander Shekhar how mismatched. The story of confinement also differs from each witness. How new and new facts are introduced. Everything is happening in a small room but how they were depicted and then reproduced while under examination for statement under section 164 Cr.P.C. and finally before this court. PW-9 Sunita introduced son of Lalita who consumed liquor and gave beating to them. PW- 5 Bitto states that Lalita compelled prosecutrix "P" to take Sharab. PW-9 also introduced new facts regarding the teasing, touching and undressing her. PW-5 Bitto in cross-examination stated a story of visiting police station Model Town, Adarsh Nagar and Jahangir Puri. These are the material contradictions of all the four girls' testimony among themselves, among statements under section 164 Cr.P.C. and each other's statement under section 164. Similarly, the testimonies recorded all the four girls in the court are contradictory to each other on all material aspects. The analysis and appreciation of PW-2 prosecutrix, PW-5 Bitto, PW-6 Arti and PW-9 established that prosecution case now further grows but element of truthfulness is diminishing at a very fast speed in respect of wrongful confinement, threat and outraging modesty and kidnapping. It is pertinent to mention here that how it can be believed that four girls missing from their house but their parents or husband never approached to the police.
Contin...pg. 31 31
46. Now comes the graver area of allegation in respect of rape on the prosecutrix "P". In her statement Ex.PW-2/A she stated that at about 2.00 a.m. in the night after taking liquor along with Lalita confined remaining three girls, Sunita, Arti and Bitto in a latrine at outside office staircase and closed the door. Lalita caught hold of her hands and removed her sari. She was made nude. Thereafter, accused Chander Shekhar took out his pant. Accused Lalita put Chunni on her mouth then Chander Shekhar committed rape on her. After raping both accused threatened in case she disclosed this fact then she would be killed. After this she was made to sit in a corner of a room thereafter all three girls were called inside the room.
In the morning accused Lalita asked her to take bath then she taken out light yellow colour sari, red petticoat and light yellow colour blouse and kept in a bucket in the bathroom. Lalita brought one suit of her daughter Janaki which were wore by her.
47. Prosecutrix PW-2 when examined under section 164 Cr.P.C. she stated that Lalita confined other three girls in a bathroom. Thereafter Lalita had undressed her. Chander Shekhar became undressed. Lalita tied her hands and gave piece of Contin...pg. 32 32 clothes in her mouth. Thereafter Chander Shekhar committed rape on her with the assistance of Lalita. After committing rape both accused persons threatened her to throw acid on her face. Thereafter all three girls were taken out from bathroom. In the morning hours, servant came then Chander Shekhar came down.
When she appeared in witness box she testified that at about 2.00 a.m. Lalita undressed her after threatening to compel to have sex with Chander Shekhar. Lalita tied her mouth and her feet. Chander Shekhar forcibly committed rape on her. The other three girls confined in one bathroom and window of that bathroom was already broken. Those three girls were seeing Chander Shekhar committing rape on her. Thereafter, three girls were brought from the bathroom. Lalita asked her to take bath. Thereafter, she changed her clothes and new clothes suit of daughter of Lalita given to her. She kept her sari, petticoat and blouse in one corner of the room. At about 4.00 p.m. next day, some servant came to Lalita. In cross-examination she states that she did not receive any visible injury. Her mouth was tied with dupatta. Her hands were tied with dupatta by Lalita which was of her daughter brought from her house. Lalita brought two dupattas, one tied at mouth and another tied at hands and feet. One duppata was torn into two pieces. Both legs were loosely Contin...pg. 33 33 tied. Her blouse and petticoat was not torn by Lalita but sari was torn. Three girls heard her cries as they were confined in a bathroom very close. They did not raise any alarm. Servant was called by Lalita from down who was working in the office.
48. PW-5 in her statement under section 164 Bitto regarding the rape stated that first of all Chander Shekhar had beaten them and then torn clothes of prosecutrix. Thereafter raped. All of them confined in a bathroom. When she appeared in witness box she testified that accused Chander Shekhar after tying clothes at the mouth of prosecutrix committed rape upon her. When she started weeping Lalita gave kick blow to her. Accused did not commit further any wrong act with them. After committing rape none of them was permitted to leave. Elder daughter of the accused was sent to bring clothes. In cross- examination, she states that she had seen accused committing rape on her and she was crying. She was standing outside the room and not confined in the bathroom. She further testified that after committal rape on prosecutrix the door of the room was closed and only a chair was placed. Face of prosecutrix was tied so that she cannot raise alarm. Her feet and hands were not tied. After committal of rape, prosecutrix did not take bath.
Contin...pg. 34 34
49. PW-6 Arti in her statement under section 164 Cr.P.C. stated that all the three girls were confined in a bathroom. Accused Lalita brought prosecutrix thereafter undressed her. Chander Shekhar had committed rape. Chander Shekhar became undressed at his own and they all were seeing from bathroom. In the evening hours, one servant had came down after talking Chander Shekhar. When she appeared in witness box testified that at about 2.00 a.m. herself, Arti and Sunita were confined in a latrine. They heard cries of proseuctrix when her nipple were plunged. She could not see what happened with proseuctrix. After one hour they all were brought to the office from latrine. Then prosecutrix told that Lalita had tied her mouth with a sari and accused Chander Shekhar had committed rape on her. Prosecutrix was asked to take bath and given. After removing sari prosecutrix was made to wear salwar suit. In the cross- examination she stated that at the time prosecutrix was taken in room she was standing in the balcony. She did not see the act of committal of rape. The room was closed while committing rape. They all had taken bath. She was taken for bath at residence of Lalita from the office at a little distance. Lalita alone taken them from office to her residence. She had taken bath only once. No other employee was in the office.
Contin...pg. 35 35
50. PW-9 Sunita in her statement under section 164 Cr.P.C. stated that they all three girls kept in bathroom. Prosecutrix was wearing sari. Lalita had undressed her. Chander Shekhar also done wrong thing with prosecutrix. When she appeared in witness box she testified that accused Chander Shekhar kept prosecutrix with him separately as she was eldest among them. They were peeping out and saw Chander Shekhar put of and torn prosecutrix sari and blouse and committed rape. All three girls witnessed from the broken door. In cross- examination she states that the doors of the room and toilet were not facing each other. The door of the room where they were confined and locked was broken so they peeped out and saw prosecutrix was naked. After making prosecutrix she was laid on the cot. Her hands, legs and mouth were not tied. She further testified that they never visited the house of Lalita during said period. They also did not take bath.
51. The testimony of PW-2 prosecutrix, PW-5 Bitto, PW-6 Arti and PW-9 Sunita in respect of allegation of rape discussed hereinabove in detail establishes the untrustworthiness and material contradictions right from a minor fact to major fact. The role of accused Lalita and accused Chander Shekhar as witnessed by all four girls and how they depicted in the witness box. It is Contin...pg. 36 36 pertinent to mention here that apart from this it has already been discussed the MLCs Ex.PW-8/A to PW-8/D especially Ex.PW-8/A, according to this MLC on 02.09.02/02.10.02 which is in two handwritings and no explanation put forward by investigation office PW-14 SI Raghubir Singh. The report Ex.PW-14/X and PW- 14/Y further suggest that as per chemical analysis a test of human semen of Ex.1/C petticoat cutting, Ex.-4 underwear cutting and Ex.-5 blood sample are remained inconclusive tests. The ocular evidence, medical evidence and biological test as proved before the court are untrustworthy, unbelievable and bundle of suspicious circumstances squarely covered with black clouds.
52. Lastly now come to the story of escape. PW-2 prosecutrix in her statement Ex.PW-2/A states that in the evening about 4.00 p.m., girl Arti came out after getting a chance she raised alarm then crowd gathered. Accused Lalita and Chander Shekhar both ran away from office and police official PW-14 investigation officer came there and recorded her statement. Under section 164 statement she stated that in the morning hours servant came after talking with Chander Shekhar. He came down. The door was slightly open and Arti had escaped and made noise after getting down from the stairs. Number of people gathered there. Police officials also called. Police recorded her statement.
Contin...pg. 37 37 Both accused arrested and taken to police station. When she appeared in witness box she testified that at about 4.00 p.m. next day servant came to Lalita. The servant went down stairs to bring something. He left the door opened. Arti saw passage clear and she went downstairs and raised alarm. Many persons came there and police was called by public. Both accused ran away from the spot. Police reached upstairs and recorded her statement Ex.PW- 2/A. Thereafter, she and three girls were brought to Police Chowki. Her statement and other three girls' statement were recorded by police at Police Chowki. In the cross-examination, she states that servant was called by Lalita from downstairs. That boy was working in their office.
53. Now, let us examine PW-6 Arti on this aspect. In the statement under section 164, she stated that in the evening one came servant came down after talking to Chander Shekhar. The door was slightly open and she escaped and while coming down raised alarm. People were gathered and apprehended Chander Shekhar. When she appeared in witness box testified that at 4.00 p.m. she could manage to go out and cried as a result. Many persons gathered. Police arrived at the spot and recorded her statement. In the cross-examination she testified that there was no employee in the office.
Contin...pg. 38 38
54. PW-5 Bitto in her statement under section 164 stated that on the same day, Arti escaped from the bathroom. This incident had happened when the bathroom was open. Arti made noise and public had gathered. Public had taken them out. Chander Shekhar tried to escape but apprehended by public. When she appeared in witness box she stated that elder daughter of accused persons were sent by them to bring the clothes when Arti also came there as a result of which public gathered when Arti raised hue and cry. Police reached and retrieved the remaining girls.
55. PW-9 Sunita in her statement under section 164 stated that Arti has escaped and made noise then public persons gathered and then apprehended Lalita. When she appeared in witness box she testified that accused Lalita and Chander Shekhar bolted the door from inside and neighbourers opened the said door after forcible pushing the same. In the meantime from Shahbad Dairy some police officials came and all girls along with both accused were taken to police station. In cross-examination she states that they raised alarm near about 150 people came from locality and neighbourhood. Her statement was recorded at police station only.
Contin...pg. 39 39
56. The last part of the prosecution story regarding escape of PW-6 Arti is contradictory to each other of the witnesses PW-5, PW-6 and PW-9 and also to the statements under section 164 Cr.P.C. Each witness has given her own story of escape. The common fact is that public persons gathered there. They called police officials there. The investigation officer has not proved any DD entry which was registered on the information of any public person of the locality or the neighbourhood. No public person joined the investigation proceedings by the investigation officer. The story regarding arrest of accused as stated by four girls and police officials are also contradictory to each other. Some say they were escaped. Some say they were apprehended by public. However, according to PW-13 HC Rattan Lal they were arrested when they were sitting in front of their Jhuggi B-19. PW-14 investigation officer SI Raghubir Singh simply stated that they were arrested and proved their memos PW-13/A and PW-13/B and PW-11/C and PW-11/D. According to Ex.PW-13/A time of arrest is 11.10 p.m. on 01.10.02 and this is witnessed by HC Rattan Lal and prosecutrix PW-2. PW-2 has not proved this arrest memo. The memos of Lalita are Ex.PW-11/C and Ex.PW-11/D. According to these memos, accused Lalita was arrested at 11.40 p.m. half an hour of the accused. PW-2 is the witness but she failed to proved these memos. According to PW-13 both were present in front of Contin...pg. 40 40 B-19 but however, there is difference of half an hour. MLC of accused Chander Shekhar Ex.PW-8/E suggests that he was medically examined at 8.50 a.m. at same BJRM Hospital. There is a gap of nine hours from the arrest time to the medical examination. During this nine hours custody period investigation officer had no time to record disclosure statement of any of the accused. There is no explanation for not recording of disclosure statement by the investigation officer.
57. Now in the examination of MLC Ex.PW-8/A to PW-8/D of four girls and Ex.PW-8/E of Chander Shekhar, some important factors erupted. PW-8/A of prosecutrix is having number 15457. PW-8/B of Sunita is having number 15458, PW-8/C of Arti 15459. The Ex.PW-8/D of Bitto is number 07294 and Ex.PW-8/E of accused Chander Shekhar is 07295. All the four girls examined in the night intervening night of 1/2.10.02 then how MLC number of Bitto chased the serial from 15000 to 07295 when examined by the same doctor. It is pertinent to mentioned that this MLC number matches with the MLC number of accused Chander Shekhar i.e. 07295. This strange numbering of MLCs further establishes the untrustworthiness of medical evidence proved by prosecution.
Contin...pg. 41 41
58. On the basis of above detailed observations and discussion, the investigation officer and SHO, Bawana on the day of incident and on filing of challan, prepared a charge sheet supported with serious allegations. The truth has come out from their own pen especially the investigation officer who proved all the documents relied in the charge sheet and analysed by this court in detail and found to be untrustworthy, manipulative and contradictory to each other like a pack of complete falsehood. The truth has taken around seven years to see the day light although hidden in the clouds of suspicion and doubt.
59. Hence, prosecution on the basis of testimonies of eye- witnesses and prosecutrix, PW-5 Bitto, PW-6 Arti and PW-9 Sunita and supported with testimonies of PW-1 Shipra Rampal and PW-8 A.K. Kesari and police witnesses PW-10 HC Kishan Chand, PW-11 WHC Sushila, PW-10 constable Narender, PW-13 HC Rattan Lal and PW-14 SI Raghurbir Singh, last but not least hidden police witnesses ASI Ram Kumar and constable Dhan Singh, miserably failed to prove charges against both the accused persons for commission of offence under section 376 IPC and 363/366/342/354 r/w section 34 IPC. Hence both accused are acquitted. Accused Chander Shekhar shall be released forthwith. Bail bond and surety bond of accused Lalita discharged.
Contin...pg. 42 42
60. Before parting with the present case, it is necessary that directions shall be given to Commissioner of Police to institute departmental enquiry against Investigation Officer Sh. Raghubir Singh and SHO, PS : Bawana at the relevant time. If found guilty then they shall be punished as per law.
61. Copy of judgment shall be sent to Commissioner of Police for compliance. The report regarding status of enquiry or action taken against both the erring police officials shall be intimated to this court on monthly basis. File be consigned to record.
Announced in the open court today (SANJAY KUMAR) dated 26.02.09. Addl. Sessions Judge-V North-West, Rohini, Delhi.
Contin...pg.