Delhi District Court
State vs . 1. Balbir Singh on 17 September, 2013
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FIR No. 399/02
PS - Prashant Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 05/13
Unique ID No. : 02404R0508192002
State Vs. 1. Balbir Singh
S/o Swarn Singh
R/o G3/3738, Sector - 11,
Rohini, Delhi.
2. Jai Shree
W/o Balbir Singh
R/o G3/3738, Sector - 11,
Rohini, Delhi.
3. Sandeep
S/o Balbir Singh
R/o G3/3738, Sector - 11,
Rohini, Delhi.
FIR No. : 399/02
Police Station : Prashant Vihar
Under Sections : 406/498A/506/376/120B/34 IPC
Date of committal to session Court : 26/05/2003
Date on which judgment reserved : 31/08/2013
Date on which judgment announced : 17/09/2013
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FIR No. 399/02
PS - Prashant Vihar
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 5/08/2002, Smt. Shalini, D/o Sh. Ompal Singh Malik, R/o 157, Prashant Vihar, Delhi came to the Police Station Prashant Vihar and got recorded her statement to duty officer ASI Dharampal which is to the effect that, she resides with her family at the said address and is the student of B.A. IInd year and her date of birth is 27/01/1982. Her marriage took place on 09/05/2002 according to Hindu Rites and Customs with Sandeep S/o Balbir Singh r/o G3/3738, Sector11, Rohini, Delhi. In her marriage her father as per his capacity had given one Maruti ZEN LXI Car No. DL9CE2992 and other articles in dowry. The list of which she will supply later on. After few days of the marriage on 16/05/2002, she alongwith her husband Sandeep came to meet her family members at her parental house and in the evening she returned from there. In the night, her husband Sandeep, fatherinlaw Balbir, motherinlaw Jai Shree and brother in law (Dever) Sanjeev were taking food. Then her fatherinlaw told her to bring Rs. 5 lacs from her Page 2 of 152 3 FIR No. 399/02 PS - Prashant Vihar father's house for starting the business of Sandeep. On which she said that her father beyond his capacity has given Maruti Zen and others goods in dowry in the marriage now, her father cannot give Rs. 5 lacs cash on which her husband Sandeep started beating her and said that Rs. 5 lacs had to be brought by her, her motherinlaw told her that "she will see how you do not bring Rs. 5 lacs". On the next day on 17/05/2002 her husband Sandeep and her fatherinlaw Balbir Singh had gone to the factory, her motherinlaw Jai Shree and her brotherinlaw (Dever) beaten her and took her in room and her hands and legs were tied with the help of chunni with double bed and her motherinlaw went out of the room and closed the door from outside and her Dever Sanjeev put the TV on the full volume and her Dever took off her clothes and also took off his clothes and forcibly established physical relations with her. She screamed and cried too much but nobody heard and her motherinlaw told from outside nothing happens he is her Dever. Sanjeev after about an hour left leaving her tied and her motherinlaw came into the room and she (Shalini) told her to leave her and let her to go to her house on which her motherinlaw told where is the question to leave her now it is her (motherinlaw) turn and thereafter, her motherinlaw took off her Page 3 of 152 4 FIR No. 399/02 PS - Prashant Vihar clothes and lied down upon her (complainant Shalini) and started kissing her mouth and she licked her (Shalini) from front back up and from all the places and thereafter her motherinlaw untied her (complainant Shalini) hands and legs. She (complainant Shalini) put on her clothes and when her husband Sandeep came to the house and she told all the incident to him on which he (Sandeep) told "nothing happens (Kuch Nahi Hota) they are playing with you, the day you will bring Rs. 5 lacs you will not be harassed (Kuch Nahi Hota Tere Saath Khel Rai Hain Jis Din Tu Rs. 5 lacs Layegi Tere Ko Tang Nahi Karenge)" when she started weeping her husband severely beaten her. Thereafter, whenever her motherinlaw and Dever used to get an opportunity both of them used to establish illicit physical relations with her. When she told about this to her fatherinlaw, who told "let you get Rs. 5 lacs otherwise it will go like this". Her inlaws not used to allow her to telephone of and whenever telephone her mother and father used to come, her inlaws were not allowing her to talk and they used to say that she is sleeping or she has gone for strolling. One day her husband and her motherinlaw caught her feet and her fatherinlaw put a mice (Chuiya) in her salwar and her Dever put a lizard in her Kurta and these four had also put a few times Page 4 of 152 5 FIR No. 399/02 PS - Prashant Vihar the ice pieces in her salwar and Kurta. Her motherinlaw had also made her (complainant Shalini) to lick her a few times. On 30/06/2002, her in laws had gone somewhere and she was alone at her home and they had threatened her if she went out of the house, they will kill her. She after gathering courage reached at her parental house and told the harassment of her inlaws which had caused mental shock to her, to her family members. When her parents talked to her inlaws in this regard, then her inlaws threatened her parental family members that if it is not wound up here only then they will kill her (Agar is baat ko yahi khatam nahi karoge to ve mujhe jaan se maar denge). Her inlaws are continuously threatening her father that let get the matter be sorted out otherwise have to face dire consequences (Is mamle ko nipta lo varna bure anjaam bhugatne honge). Today evening after gathering courage she alongwith her father has come to lodge the report. She has heard her statement read it understood it and is correct. From the said statement dated 05/08/2002, on finding offences under sections 406/498A/506/376/120 B/34 IPC appeared to have been committed Duty Officer after registering the case vide FIR No. 399/02 sent a copy of the FIR for investigation to SI Vinod Kumar. On the receipt of the copy of FIR SI Page 5 of 152 6 FIR No. 399/02 PS - Prashant Vihar Vinod Kumar carried out the investigation. During the course of investigation SI Vinod Kumar recorded the statements of the witnesses. The marriage card, the school certificates, the photographs as were produced by the father of the complainant Shalini were taken into police possession. Medical examination of the complainant Shalini was got conducted from BSA Hospital vide MLC No. 1630/02. Site plan was prepared, photographs of the place of occurrence were got done, the sealed pullindas handed over by the Doctor after the medical examination of the complainant Shalini were taken into Police possession. On 06/08/2002 Sanjeev Kumar, Smt. Jai Shree and Sandeep Kumar were interrogated who confessed their crime and were arrested and their personal searches were conducted, they were got medically examined. Sealed pullindas of accused Sanjeev as were handed over by the Doctor were taken into police possession. The said three accused were got sent to the judicial custody. On 07/08/2002 the Police Custody Remand of accused Sandeep Kumar was obtained. On the identification of the complainant, the Istridhan of the complainant/Shalini was taken into police possession. Statement of the complainant Shalini under section 164 Cr.P.C was got recorded. The school certificate of accused Page 6 of 152 7 FIR No. 399/02 PS - Prashant Vihar Sanjeev Kumar was obtained as per which his date of birth was 11/8/1983 and had not attained the age of 18 years and was produced before the Juvenile Justice Board. Search of accused Balbir Singh was made but he could not be traced out. Sealed pullindas were sent to FSL Malviya Nagar, Delhi. On 17/10/2002, accused Balbir Singh joined the investigation, who confessed his crime and was arrested and was released on bail pursuant to the order of the Court. Statements of the witnesses were recorded. Photographs were obtained from the photographer. Sealed exhibits were sent to FSL.
Upon completion of the necessary further investigation challan for the offences under sections 406/498A/506/376/120B/34 IPC was prepared against accused Balbir Singh, Sandeep Kumar and Smt. Jai Shree and was sent to the Court for trial.
2. Since the offence u/s 376 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
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PS - Prashant Vihar
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 498A IPC against accused Balbir Singh, Sandeep, and Jai Shree and also a case u/s 376/109 IPC and u/s 355 IPC against accused Jai Shree was made out. Charges were framed accordingly which were read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 18 witnesses. PW1 - Shalini Malik PW2 - ASI Dharam Pal, PW3 - Dr. Sandhya Jain, CMO, BSA Hospital, Rohini, Delhi, PW4 - Sh. Om Pal Malik, PW5 - W/HC Darshana, PW6 - Smt. Kusum, PW7 - HC Surender Kumar, PW8 - Constable Satyawan, PW9 - Constable Amit Kumar, PW10 - Constable Karambir, PW11 - HC Pawan Kumar, PW12
- Sh. Rajender Kumar, Learned ADJ, Tis Hazari Courts, Delhi, PW13 - Devender Gupta, PW14 - Kishan Singh, PW15 - Surya Kant Sharma, PW16 - SI Vinod Kumar, PW17 - Dr. Dhruv Sharma, Asstt. Director (Biology), FSL, Rohini, Delhi and PW18 - Harish.
5. In brief the witnessography of the prosecution witnesses is Page 8 of 152 9 FIR No. 399/02 PS - Prashant Vihar as under : PW1 - Shalini Malik is the victim who deposed regarding the incident and proved the list of the dowry articles Ex. PW1/A, bearing her signature at point 'A', seizure memo of the marriage card Ex. PW1/B, bearing her signature at point 'A', marriage card Ex. P1, seizure memo of the photocopy of the mark sheet of the 10th class Ex. PW1/C, the photocopy copy of the mark sheet of 10th class is Ex. P2. Proved the arrest memo of accused Sandeep, Jai Shree Ex. PW1/D and Ex. PW1/E, their personal search memos Ex. PW1/F and Ex. PW1/G, all memos bearing her signatures at points 'A'. Seizure memo of the five photographs (Ex. P3/1 to Ex. P3/5) and the list of dowry articles (Ex. PW1/A) Ex. PW1/H bearing her signature at point 'A'. Recovery memo of the goods/part of istridhan from the house of accused Sandeep Ex. PW1/J, bearing her signature at point 'A', recovery memo of three dupattas/chunnis which were used for tying her while committing rape upon her, Ex. PW1/A, bearing her signature at point 'A', Chunnis Ex. P1 to Ex. P3, her statement recorded u/s 164 Cr.P.C. Ex. PW1/L, bearing her signature at point 'A', identified and proved the articles (seized vide seizure memo Ex. PW1/J) Ex. P5/1 to Ex. P5/44. The list containing the Page 9 of 152 10 FIR No. 399/02 PS - Prashant Vihar details of articles given to her at the time of her marriage but not recovered and still with the accused persons Ex. PW1/M and proved the copy of the FIR Ex. PW2/A, bearing her signature at point 'A' and further deposed that she was medically examined at BSA Hospital. The accused persons are her fatherinlaw, motherinlaw and her husband. Her brotherinlaw is facing trial before the Juvenile Court.
It is to be mentioned that on 22/10/2005, the day on which further examinationinchief was recorded and was completed and she was partly crossexamined at length and her further cross examination was deferred, in the night of 22/10/2005, PW1 - Shalini Malik committed suicide and therefore her further cross examination could not be recorded and concluded.
PW2 - ASI Dharam Pal is the Duty Officer who deposed that on 05/08/2002,he was posted at PS Prashant Vihar and was working as Duty Officer from 5:00 p.m. to 1:00 a.m. (night). At about 7:00 p.m., Ms. Shalini, D/o Sh. Ompal Malik came in his duty room and gave her statement to him, on the basis of which he recorded the FIR and proved the carbon copy of the FIR Ex. PW2/A which bears his signature at Page 10 of 152 11 FIR No. 399/02 PS - Prashant Vihar points 'X' and 'Y' and further deposed that he also recorded DD No. 16A regarding the registration of the FIR and further deposed that the investigation of the case was assigned to SI Vinod Kumar, Incharge, Police Post, Sector - 16, Rohini.
PW3 - Dr. Sandhya Jain, CMO, BSA Hospital, Rohini, Delhi who proved the medical examination of the Shalini, D/o Ompal Malik as was conducted by Dr. Shruti Bhatia vide MLC Ex. PW3/A, which bears the signature of Dr. Shruti Bhatia at point 'A'.
PW4 - Sh. Om Pal Malik is the father of PW1 Shalini Malik/complainant (since deceased) who deposed regarding the demands of dowry, beatings and the cruelties meted out to his daughter Shalini by the accused persons as were disclosed to him by his daughter Shalini and also deposed on the investigational aspects which he joined and also proved the documents which have been already been proved in the evidence of PW1 - Shalini Malik, seizure memos Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW1/E, Ex. PW1/H, PW1/J all bearing his signature at point 'B', Ex. P2, marriage photographs PW3/1 to Ex. Page 11 of 152 12 FIR No. 399/02
PS - Prashant Vihar PW3/5, seizure memo Ex. PW1/K bearing his signature at point 'A' and the signature of his daughter/Shalini at point 'B' and also identified the chunnis Ex. PX, PY and PZ (also marked as Ex. P1 to P3 in the evidence of PW1 - Shalini Malik).
PW5 - W/HC Darshana who on 06/08/2002 joined investigation with SI Vinod Kumar and deposed that on 06/08/2002 she alongwith HC Satyawan reached at House No. D157, Prashant Vihar, where HC Surender and SI Vinod Kumar were already present. From there, IO accompanied the complainant/Shalini and her mother Kusum to BSA Hospital alongwith them where Shalini was got medically examined. After the medical examination of Shalini, the sealed exhibits were handed over by the Doctor to her which were given by her to the IO, who took the same into possession vide memo Ex.PW5/A which bears her signature at point 'A'. From there they all went to the matrimonial home of the complainant at G3/3738, Sector - 11, Rohini, where on the pointing out and identification by the complainant, accused Sandeep, husband of the complainant, Jai Shree, motherinlaw of the complainant and Sanjeev (juvenile), brotherinlaw (Dewar) of the Page 12 of 152 13 FIR No. 399/02 PS - Prashant Vihar complainant were arrested vide their arrest memos Ex. PW1/D, Ex. PW1/E which bear her signatures at point 'B'. The arrest memo of accused Sanjeev is not in the Judicial file as the case is pending against him before the Juvenile Justice Board. The personal search of accused Jai Shree, Sandeep and Sanjeev was conducted vide personal search memos Ex. PW1/F and Ex. PW1/G which bear her signatures at point 'B'. In the personal search of accused Jai Shree, nothing was recovered. Thereafter they all came back to the Police Post. HC Surender and HC Satyawan were given the custody of accused Sandeep and Sanjeev. All the accused were got medically examined.
PW6 - Smt. Kusum is the mother of the PW1 Shalini Malik/complainant(since deceased) who deposed regarding the demands of dowry, beatings and the cruelties meted out to her daughter Shalini by the accused persons as were disclosed to her by her daughter Shalini and also proved the list of the dowry articles Ex. PW6/A signed by her daughter Shalini at point 'A'.
PW9 - HC Surender Kumar who joined investigation with Page 13 of 152 14 FIR No. 399/02 PS - Prashant Vihar IO SI Vinod Kumar and deposed on the investigational aspects on the same lines as has been deposed by PW5 - W/HC Darshana.
PW8 - Constable Satyawan who joined investigation with IO SI Vinod Kumar and deposed on the investigational aspects on the same lines as has been deposed by PW5 - W/HC Darshana.
PW9 - Constable Amit Kumar who joined investigation with SI Vinod Kumar and deposed that on 07/08/2002, he was posted at PP Sector - 16 of PS - Prashant Vihar. On that day, at about 12:00 noon, one Ompal Singh Malik came at the PP alongwith her daughter Shalini. At that time, Om Pal Singh handed over the photographs of the marriage of her daughter Shalini alongwith one list of istridhan articles, which were taken into possession by SI Vinod Kumar vide separate seizure memos. Photographs were taken into possession vide memo Ex. PW1/1, which bears his signatures at point 'C'. Photographs Ex. PW3/1 to 5, are the same which were taken into possession vide memo Ex. PW1/H which bears his signatures at point 'C'. On the next day i.e. 08/08/2002, he again joined the investigation of this case with Page 14 of 152 15 FIR No. 399/02 PS - Prashant Vihar Investigating Officer. On that day, he accompanied Investigating Officer alongwith Om Pal Singh, Shalini and Sandeep and reached at inlaws house of Shalini at G3/3738, in Sector - 11, Rohini. The house was found locked. One Krishan Kumar was called, who opened the lock of the house. Two public persons also joined the proceedings on the request of the Investigating Officer i.e. Devender and Surya Kant. On the pointing of Shalini, from the house, istridhan articles as per list were recovered. Shalini also got recovered three chunnis of green and blue, red and ferozi from the wall almiraha (almirah) of bedroom. Shalini also told that her hands and legs were tied with these chunnis by her mother inlaw and thereafter her brotherinlaw i.e. devar committed wrong acts with her. Those chunnis were sealed in a pullinda with the seal of 'VK' and taken into possession vide memo Ex. PW1/K which bears his signatures at point 'C'. Seal after use was handed over to Om Pal Singh. Istridhan articles were also taken into possession vide memo Ex. PW1/J which bears his signatures at point 'B'. Thereafter the house was locked with new locks and keys were handed over (to) one neihbour (neighbour) Kamla at the instance of Sandeep. This witness correctly identified the accused Sandeep in the Court. His supplementary statement was Page 15 of 152 16 FIR No. 399/02 PS - Prashant Vihar recorded by the Investigating Officer and also identified the chunnis Ex. P1 to P3 (also marked as Ex. PX, Ex. PY and Ex. PZ in the evidence of PW4 Om Pal Malik).
PW10 - Constable Karambir who deposited the sealed pullindas in the FSL and deposed that on 03/09/2002, as per the directions of SI Vinod Kumar, IO, he obtained the sealed pullindas alongwith sample seal from the MHC(M) Pawan Kumar and deposited the same in the FSL, Malviya Nagar vide RC No. 65/21/02 and after depositing the same, its receipts was deposited with the MHC(M) and further deposed that till the pullindas remained in his possession, no one tampered with the same.
PW11 - HC Pawan Kumar is the MHC(M) who proved the relevant entries of the register no. 19, Ex. PW11/A and Ex. PW11/B. PW12 - Sh. Rajender Kumar Learned ADJ, Tis Hazari Courts, Delhi who recorded the statement of PW1 - prosecutrix/Shalini u/s 164 Cr.P.C. and deposed that an application was put up before him Page 16 of 152 17 FIR No. 399/02 PS - Prashant Vihar for recording statement of prosecutrix u/s 164 of Cr.P.C. marked by Sh. Paramjeet Singh, the then Learned MM, on 07/08/2002. It was fixed for 08/08/2002 at 2:30 p.m. His endorsement on application Ex. PW12/A is at point 'X'. On 08/08/2002, prosecutrix (Shalini) appeared before him. She was identified by the IO. After satisfying himself, he recorded her statement Ex. PW12/B and also certified the same. The statements proceedings are bearing the signatures of IO at point 'X1' and of the prosecutrix at point 'X2', 'X3', 'X4', 'X5' and 'X6'. He also signed the statement and certificate at point 'X7' and 'X8'. One copy of the statement was also allowed to IO on his application Ex. PW12/C, which bears his endorsement at point 'X9'.
PW13 - Devender Gupta who is the witness to the recovery effected on 08/08/2002 of the dowry articles by the Police from house no. G3/3738, Sector - 11, Rohini in the presence of the complainant (Shalini) as per the list vide seizure memo Ex. PW1/J bearing his signature at point 'C', the seizure memo of three chunnis Ex. PW1/K which bears his signature at point 'D'. He further deposed that he can identify the case property, if shown to him (The identification of the case Page 17 of 152 18 FIR No. 399/02 PS - Prashant Vihar property Ex. P5/1 to Ex. P5/44 not been disputed by the Learned Defence Counsel) and identified the three chunnis Ex. P1 to P3 (also marked as Ex. PX, Ex. PY and Ex. PZ in the evidence of PW4 Om Pal Malik).
PW14 - Kishan Singh is the key maker who deposed that earlier he was residing at House No. 314/3, Samay Pur Badli, Delhi and was working as key maker at Sector - 15, Rohini. On 08/08/2002, on the call of Police, he reached at House No. G3/3738 in Sector - 11, Rohini, Delhi. On the asking of Police, he opened the lock of the main gate of the aforesaid house by making a duplicate key. After opening the lock, he came back. His statement was also recorded by the IO.
PW15 - Surya Kant Sharma who is the witness to the recovery effected on 08/08/2002 of the dowry articles by the Police from house no. G3/3738, Sector - 11, Rohini in the presence of the complainant Shalini as per the list and deposed on the same lines as has been deposed by PW13 - Devender Gupta and proved the seizure memo of the chunnis Ex. PW1/K bearing his signature at point 'C' and the Page 18 of 152 19 FIR No. 399/02 PS - Prashant Vihar seizure memo Ex. PW1/J bearing his signature at point 'D' and also identified the Ex. P1 to P3 (also marked as Ex. PX, Ex. PY and Ex. PZ in the evidence of PW4 Om Pal Malik).
PW16 - SI Vinod Kumar is the Investigating Officer (IO) of the case who deposed on the investigational aspects and besides proving the memos and the documents already proved in the evidence of PW1 - Shalini Malik and PW5 - HC Darshana he also proved the site plan of the place of occurrence prepared at the instance of Shalini Malik Ex. PW16/A, the application for recording the statement of the Shalini Malik u/s 164 Cr.P.C. Ex. PW16/B (also Ext. PW12/A) signed by him at point 'Y', the application Ex. PW16/C (also Ext. PW12/C) vide which the copy of the statement of the Shalini Malik u/s 164 Cr.P.C. (Ext PW12/B) was supplied to him bearing his signature at point 'Y', arrest memo of accused Balbir Singh Ex. PW16/D which bears his signature at point 'A' and also identified the chunnis Ex. P1 to P3 (also marked as Ex. PX, Ex. PY and Ex. PZ in the evidence of PW4 Om Pal Malik) and proved the istridhan articles Ex. P5/1 to Ex. 5/44 including Maruti Zen Car. Page 19 of 152 20 FIR No. 399/02
PS - Prashant Vihar PW17 - Dr. Dhruv Sharma, Asstt. Director (Biology), FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW17/A and Ex. PW17/B signed by him at points 'A' respectively and proved the exhibits (collectively) which were examined by him, Ex. P6 and P7.
PW18 - Harish is the photographer who deposed that on 08/08/2002, he was running a photography studio in the name and style Him Studio at E2/170, Sector - 11, Rohini, Delhi. He was having 23 photographers in the shop. On 08/08/2002, some Police officials came to his shop and he sent one of the boy to take photographs as per their request and it was told to me later on by his staff as he was not present at the shop at that time. He used to reach at his shop later because of illness of his mother. He does not know of which place photographs were to be taken. He had closed the photo studio in the year 2003. He cannot tell who was employed with him at that time and who had taken photographs on the request of the Police. He was also crossexamined by the Learned Addl. PP for the State.
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PS - Prashant Vihar The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that two Court witnesses were ordered to be summoned u/s 311 Cr.P.C. by the Learned Predecessor Court vide order dated 09/12/2011 pursuant to that two Court Witnesses have been examined namely CW1 - Sh. Madan Lal Sharma and CW2 - Sh. Smt. Sarika Kapoor.
CW1 - Sh. Madan Lal Sharma who deposed that in the year, 2002, he was residing at D158, Prashant Vihar, Delhi - 110085. Father of Shalini, Mr. O. P. Malik was residing adjacent to his house at D157, Prashant Vihar in the year, 2002. He has been shown a document dated 30/06/2002 Mark 'A' (marked as such during the examinationinchief recorded on 27/01/2005 of PW1 Shalini Malik). He had signed the said document at point 'A' in the house of Sh. O. P. Malik on 30/06/2002 after going through the same. The said document is now marked as Exhibit CW1/A. Page 21 of 152 22 FIR No. 399/02 PS - Prashant Vihar CW2 - Sh. Smt. Sarika Kapoor who deposed that in the year, 2002, she was residing at B42, Kasturba Niketan, Lajpat Nagar, Delhi - 24. She knew Sh. O. P. Malik, who was residing at Prashant Vihar, Delhi. She has been shown a document dated 30/06/2002 Mark 'A' (marked as such during the examinationinchief recorded on 27/01/2005 of PW1 Shalini Malik). She had signed the said document at point 'E' in the house of Sh. O. P. Malik on 30/06/2002 after going through the same. The said document is now marked as exhibit CW1/A. When she signed the said document the signatures at point 'B', 'C' and 'D' were already existing on Ex. CW1/A.
7. Statements of accused Balbir Singh, Jai Shree and Sandeep were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication and opted to lead defence evidence and in their defence examined two witnesses namely DW1 - Ramesh, Asstt. Ahlmad, Juvenile Justice Board - I, Kingsway Camp, Delhi and DW2 - Balbir Singh (accused himself).
DW1 - Ramesh, Asstt. Ahlmad, Juvenile Justice Board - I, Kingsway Camp, Delhi who deposed that he has brought the summoned Page 22 of 152 23 FIR No. 399/02 PS - Prashant Vihar record i.e. judgment dated 08/02/2011 passed by Ms. Anuradha Shukla, The Principal Judge, Juvenile Justice Board - I and proved the Certified copy of the judgment in respect of accused Sanjeev (juvenile) as Ex. DW1/A. DW2 - Balbir Singh (accused himself) who deposed that he tenders in defence evidence certified copy of the judgment dated 26/04/2010, passed in FIR No. 914/05 of PS - Prashant Vihar u/s 304B/306/34 of IPC vide which they all accused persons were discharged. He has come to know that original case file is lying in the Hon'ble High Court of Delhi wherein prosecutrix/complainant has preferred an appeal against this judgment. Certified copy of the same is Ex. DW2/A. His son Sandeep Solanki who is coaccused with him in case FIR No. 399/02, has also filed a complaint case u/s 302/201/120B/34 of IPC against the family members of deceased Shalini wherein father of the prosecutrix Shalini has been summoned u/s 304 of IPC vide order dated 05/07/2011 of Learned MM. Certified copy of the same is Ex. DW2/B. They had received a notice of the revision filed by Sh. Om Pal Singh Malik against this order which is pending in the Court Page 23 of 152 24 FIR No. 399/02 PS - Prashant Vihar of Sh. Umed Singh Garewal, Learned ASJ.
8. After the recording of the evidence of the two Court witnesses CW1 - Sh. Madan Lal Sharma and CW2 - Sh. Smt. Sarika Kapoor, additional statements of accused Balbir Singh, Jai Shree and Sandeep u/s 313 Cr.P.C. were also recorded on 30/04/2012 but they did not opt to lead any defence evidence confining to the evidence of CW1
- Sh. Madan Lal Sharma and CW2 - Sh. Smt. Sarika Kapoor.
9. Learned Counsel for accused submitted that PW1 Shalini Malik, the complainant was partly examinedinchief on 27/01/2005 and her examinationinchief was completed on 22/10/2005 and she was partly crossexamined on behalf of accused on 22/10/2005 and her further crossexamination was deferred for 06/12/2005 and as the said witness was found dead on the next morning of 22/10/2005, therefore, was not available for further crossexamination. The accused could not get the opportunity to further crossexamine this witness due to her death, therefore, had no opportunity to crossexamine PW1 Shalini Malik, deceased, who is the complainant in this case. Therefore, the Page 24 of 152 25 FIR No. 399/02 PS - Prashant Vihar statement of PW1 Shalini Malik cannot be read in evidence in view of Section 33 of Indian Evidence Act.
Learned Counsel for the accused further submitted that the evidence of PW4 Sh. Om Pal Malik and PW6 Smt. Kusum, the parents of the deceased complainant is a hearsay evidence. He further submitted that it is an admitted fact by the prosecution that none of the accused ever demanded any kind of dowry from the parents of the deceased Shalini nor the prosecutrix ever demanded any dowry from her parents at the instance of the accused persons in her life time. Admission made by O. P. Malik which is being reproduced (it is correct that I am not an eye witness of the incident of rape and dowry demand or subsequent harassment from 09/05/2002 to 30/06/2002. The entire facts have been told to me by my daughter on 30/06/2002 p.8 of cross on 26/07/2010 by O. P. Malik). He further submitted that the prosecutrix was never harassed for non fulfillment of dowry demand by any of the accused persons in his presence or in the presence of his wife at any point of time. The statement given by the witnesses is the effect that their daughter Shalini Malik told them that she was raped and was subjected to harassment by the accused persons for not bringing dowry. This Page 25 of 152 26 FIR No. 399/02 PS - Prashant Vihar evidence is completely a hearsay evidence and is hit by the provisions of section 32 (1) and Section 60 of Evidence Act and is not admissible in evidence and even the statement of the witnesses does not inspire confidence as the statement, though on oath, but is not admissible in evidence. He further submitted that whatever the prosecutrix had told them is also not admissible in evidence because "statement of a dead person is admissible in law if statement is as to cause of death or as to any of circumstance of transaction which resulted in her death, in a case in which cause of death comes into question." And "as such, evidence of PWs about statement attributed to deceased cannot be used as evidence for recording conviction under section 498A" as held by the Hon'ble Supreme Court while deciding a criminal appeal No. 1124 of 2009, Bhairon Singh Versus State of Madhya Pradesh 2009 (3) LRS 205 (SC).
Learned Counsel for the accused further submitted that there is an unexplained delay on the part of the prosecution. He submitted that as per the statement of Om Pal Malik and Kusum Malik, Shalini Malik left the house of the Inlaws on 30th June 2002 and told her mother about the alleged harassment and the rape committed upon her Page 26 of 152 27 FIR No. 399/02 PS - Prashant Vihar repeatedly by the Juvenile, Sanjeev Solanki. He further submitted that it is also the statement of the PW4 Om Pal Malik that on the same day i.e. half an hour of reaching of the prosecutrix the accused persons also reached to his house after Shalini reached. There is no admissible, cogent and reliable explanation as to why Om Pal Malik did not call the police at the spot when all the accused were present there or did not report the matter to the police till 5th of Aug. 2002. He further submitted that Om Pal Malik has tried to establish that he did not go to the police because he wanted to examine his daughter medically and treat her by the doctor. He further submitted that it is also unbelievable that PW Om Pal Malik took his daughter to the reputed doctors of Hiteshi Nursing Home and the Doctor from Apollo Hospital and told all about what has been alleged in the present FIR but none of the doctors either sent them to the Govt. Hospital nor called the police nor recorded MLC with the alleged history of rape, meaning thereby that Om Pal Malik and his daughter did not go to the doctors with the alleged history of rape. He further submitted that more than this is that despite the passage of 35 days, he did not provide the police/IO, with any kind of treatment papers of Shalini despite the fact that he met the IO several times nor he Page 27 of 152 28 FIR No. 399/02 PS - Prashant Vihar recorded his statement that his daughter was being treated by any such doctor as stated by him in the statement recorded before this Court.
Learned Counsel for the accused further submitted that the conduct of PW4 Om Pal Malik and PW6 Smt. Kusum is quite abnormal and unnatural. He submitted that Om Pal Malik, has been thoroughly crossexamined by the defence on various points but this witness has tried to misguide and has tried to put a new story apart from what has been recorded by him in his statement u/s 161 CrPC. He submitted that the witness is the Asstt. Engineer and has been residing in Delhi and is quiet acquainted with the system, rather in a position to control the system, but did not call the police when his daughter came to his residence and complained of a very serious offence i.e. rape. He further submitted that normally a father, after hearing the incident of rape with his own daughter would never sit with the rapist of his daughter and have dialogue with them but Om Pal Malik is not only talking with the rapist but allows them to go scot free and odes not lodge any complaint against them for more than 35 days. Thus the conduct of Om Pal Malik is quiet abnormal and unnatural conduct. (But when he Page 28 of 152 29 FIR No. 399/02 PS - Prashant Vihar lodges the complaint/FIR against the accused persons then the allegations are so filthy that a common man will read them hesitantly). He further submitted that the natural conduct of a common person in these circumstance is always will be to call the police at no. 100, call the neighbours, friends or relatives for apprehending the accused persons and to hand them over to the police but none of the above, which negatives the reality of the allegations. Secondly, when this witness has got his daughter medically examined, then what prevented him to hand over the medical examination documents to the IO. He further submitted that the most surprising fact is that this witness got medically examined his daughter from a reputed doctor after reference by another reputed doctor but does not know the names of any of the doctors nor the name of the clinic or the hospital and the place where the hospital is situated from where the treatment of his daughter was continued till years. He further submitted that this witness has met the IO and also handed over the 1. marriage card of Shalini, 2. photographs of marriage, 3. mark sheet of Shalini, 4. list of articles of istridhan which was prepared by Shalini, later on, and various other documents and supplementary statements to the IO between 6th Aug. 2002 to 8th Aug. 2002 (I met the IO Page 29 of 152 30 FIR No. 399/02 PS - Prashant Vihar for the purpose of giving the documents like marriage card, mark sheets etc. two times. At that time complete documents of treatment by all the doctors were in my possession and this fact I had told to the IO). He further submitted that not a single medical record relating to the medical examination of the prosecutrix has been given by this witness who is the father of the prosecutrix and has been fighting with tooth and nails against the accused persons since 5th Aug. 2002 but did not produce the medical records of the treatment of his own daughter since 30th June 2002 till 4th Aug 2002 before the IO on 5th Aug. 2002. The IO who is PW16 had made the statement in the cross "I had made inquiries as to why complaint was given late and they had told that they were under threat as had already explained the same in the complaint". (page 8 para 2 last 3 lines of the crossexamination). He further submitted that PW Om Pal Malik has admitted and stated on oath that his daughter was firstly taken to Hitaishi Nursing Home which is in his neighbourhood and this doctor referred his daughter to another Hospital which is in South Delhi and treated his daughter and on 4th of Aug 2002 declared his daughter as fit but Om Pal Malik as stated and explained above did not produce the vital and important documents. He further submitted that Page 30 of 152 31 FIR No. 399/02 PS - Prashant Vihar when asked as to why he i.e. Om Pal Malik did not lodge the report to the police then the witness stated "my daughter was frightened and was not willing to have a talk with anybody except me and my wife. She was continuously weeping. I was alright at that time. I had not lodged the complaint but it was my daughter who had to lodge the complaint."
He referred to the cases and are reported as Badam Singh Vs. State of M.P. (2003) 12 SCC 792; Tajinder Singh @ Kaka Vs. State of Punjab 2013 V AD (S.C.)1; Daya Shankar Vs. State of Delhi 2011 (2) JCC 1249 & Digamber Vs. State of Maharashtra 2013 (2) BomCR (Cri.)
450."
Learned Counsel for the accused further submitted that the conduct of PW4 Om Pal Malik is not natural but against human behaviour. He submitted that it is worth noticeable that PW Om Pal Malik has tried to show himself complete careless of his daughter who was just married and did not care her and even did not hear her since 9 th May 2002 to 30th June 2002 (51 days) despite she was living in his neighbourhood. He further submitted that deceased was the eldest daughter of Om Pal Malik and she went first time to the house of the accused persons in her life who were completely unknown for her and it Page 31 of 152 32 FIR No. 399/02 PS - Prashant Vihar was not certain whether she would adjust herself in the family of the accused persons or not. He further submitted that as per his statement Om Pal Malik never tried to know her whereabouts nor went to the house of the accused persons. In a way, if we admit the version of the prosecution correct, then Om Pal Malik forgot his daughter or he never wanted to see her face and despite a rape committed upon his elder daughter did not inform the police. This conduct is completely against the human behaviour in the circumstances when we are talking about a normal person from Indian Society where emotions and sentiments are the prime factors and where a father spends a major portion of his hard earned money in the marriage of his daughter and sometimes also takes money on loan from others on the basis of interest also and keeps on repaying the same throughout his life. He further submitted that here we are not talking about an American or about the European Society where family ties, emotions and sentiments are not so deep as compared to our society. On the other hand Om Pal Malik is very much caring and anxious about a car, given in dowry, its maintenance and service. He further submitted that it is pertinent to mention that the car which is shown to have been seized by the police from the house of the accused Page 32 of 152 33 FIR No. 399/02 PS - Prashant Vihar persons, the same was lying with Om Pal Malik till 28th June 2002 and Om Pal Malik was present at Haridwar along with this car. The vehicle Maruti Zen car remained with me up till 28/06/2002, page 3 dated 26/07/2010). He further submitted that what was the reason that when the accused persons did not allow his daughter to come out of the room, rather detained her in a closed room that Om Pal Malik never went to the house of the accused persons nor sent there anybody which is, admittedly at a distance of 1015 minutes walks from the house of Om Pal Malik. When this witness is crossexamined about the doctor, where he took his daughter for treatment not only one time but for about a year and this witness says "I cannot tell the name and details of the doctor as the document of her treatment have been destroyed due to fire at my residence on 20/06/2007. We used to go to the doctor at the interval of 1520 days initially..... I cannot tell the name of the doctor, medicine and the clinic of the doctor.... i can produce after searching at my home if any documentary proof of the treatment taken by my daughter at Hiteshi Nursing Home from where my daughter was referred to Apollo Hospital".
"I had cordial relations with the accused between the period Page 33 of 152 34 FIR No. 399/02 PS - Prashant Vihar 09/05/2002 to 30/06/2002. I had no reason for me and for any member of my family for not going to the house of my daughter Shalini and her Inlaws between 09/05/2002 to 30/06/2002.
"The vehicle Maruti Zen remained with me till 28/06/2002."
On 30/06/2002 I did not ask my daughter Shalini to lodge the complaint against the accused persons. My daughter was frightened and was not willing to have a talk with anybody except me and my wife. She was continuously weeping. I was all right at that time. I had not lodged the complaint but it was my daughter who had to lodge complaint." He further submitted that it is thus clear that the conduct of this witness is not natural. Though he is an A.E and is also have been the Incharge of various projects and as per PW Suryakant and Devender Gupta handles the contracts successfully and is well versed in the administration and therefore, this witness is a good manager and manages the situations very well.
Learned Counsel for the accused further submitted regarding the conduct of PW16 IO SI Vinod Kumar. He submitted that as per the admission of the IO, he is quite trained and has qualified all Page 34 of 152 35 FIR No. 399/02 PS - Prashant Vihar the trainings which are necessary for becoming SI. The first step he takes is that he arrests the accused persons in the night, as admitted by him "I reached at the house of the accused persons at about 3:00 a.m. and accused persons were arrested at 4:10 to 4:00 a.m. I did not verify the criminal history of the accused persons. It is correct that I was knowing that one of the accused was a lady. I did not take permission from the concerned MM to conduct raid at the house of the accused persons in the night and to arrest them in the night. Complainant party insisted me to take action and I was also apprehending that the accused persons might escape, so I conducted the raid in the night. The raid was conducted at the direction of the SHO, I did not give any application in writing to the SHO in this respect. I had not mentioned this fact in the case diary." "I had gone there to conduct investigation. Only accused persons were arrested during investigation." while on 08/08/2002 the same IO took only one hour in taking out all the household articles, preparing list of istridhan, seizure memo and the statement of the witnesses. Learned Counsel for the accused further submitted that the conduct of the IO reflexes when he gives logic in favour of getting the house photographed. "the house was found locked from outside and we Page 35 of 152 36 FIR No. 399/02 PS - Prashant Vihar had to effect recovery and in proof of the same I had prepared the photographs but when asked why he did not take photographs of the articles recovered and the car and the witnesses then the same IO reacts "I did not ask the photographer to take the photographs of the recovered articles No photographs were taken of the car. I cannot give any reason for it. Seizure memo was prepared of each article recovered from the house of the accused but not of the key of the car. "the key of the car was brought from drawing room. Sandeep had given me the key of the car. I did not prepare any seizure memo of the key of the car. I cannot explain any reason for it. "the key after locking the door was handed over to Kamla at the instance of accused Sandeep. I did not record the statement of Kamla. I cannot tell any reason about the same". I did not call public witness Devender Gupta and Surya Kant. They were already present in the crowd and joined investigation on my request. Regarding delay caused in lodging of FIR, the witness says " I received the investigation of this case after registration of the FIR. So I did not make any enquiry as to why the report was lodged at a belated stage. But Om Pal Malik gives another description when he says " I met the IO for the purpose of giving the documents like marriage card, mark sheets etc. two Page 36 of 152 37 FIR No. 399/02 PS - Prashant Vihar times. At that time complete treatment documents by all the doctors were in my possession and this fact I had told to the IO).
Learned Counsel for the accused further submitted that the falsity of rape reflected from the statement. He submitted that when a factum of rape is disclosed to a doctor, particularly to a doctor who was practicing in the Nursing Home and a Hospital like Apollo Hospital, it is presumed and required and expected from the doctor being a Medico Legal case that the doctor will call the police or will refer the patient to the Govt. Hospital for preparation of the MLC or will prepare MLC himself and thereafter will call the police but here in this case neither the father, mother nor doctor informs the police about such a heinous offence like a rape, despite the passage of 35 days of which a father is never expected to tolerate. He further submitted that a doctor will never suggest to a rape victim and her family members to keep quiet and keep their mouth shut. Had the factum of rape been disclosed before the doctor then the doctor must had called the police or at least must had prepared the MLC of the complainant/deceased.
Page 37 of 152 38 FIR No. 399/02
PS - Prashant Vihar Learned Counsel for the accused further submitted that two independent witnesses of the locality PW13 Devender Gupta and PW15 Surya Kant Sharma were joined during the house search. He submitted that one of the search witnesses Shri Devender Gupta said "I know Om Pal Malik since the year 198485, as at that time I was working with him, later on I left his office. I am on visiting terms with Om Pal Singh, presently also. I had visited the house of Om Pal Singh at the time of marriage of his daughter and at the time of death of his daughter.... Suryakant, another witness is also known to me since the year 2001. Suryakant was also working with Om Pal Singh", page 3 cross examination.
Learned Counsel for the accused further submitted that as per statement by Om Pal Malik, "the independent witnesses called by the IO at the time of recovery were not known to me nor I knew their names previously. It is incorrect to suggest that the names of the witnesses were Suryakant and Devender Gupta and both were contractor on MCD. It is incorrect to suggest that these two witnesses were awarded tenders supervised by me. It is incorrect to suggest that the said two witnesses were invited guests in the marriage of my daughter. It is incorrect to Page 38 of 152 39 FIR No. 399/02 PS - Prashant Vihar suggest that the said two witnesses were having family relation with us".
As per PW15 Suryakant "I know Om Pal Malik since 2002. I was not called either by Devender Gupta or by Om Pal Malik. While I was passing through there I was called by Devender Gupta. "I had not gone to the marriage of Shalini. Again said, I do not remember whether I had attended the marriage of Shalini or not".
Learned Counsel for the accused further submitted that it is thus admitted that these two witnesses were know to Om Pal Malik prior to the alleged recovery and were named as witness at the instance of Om Pal Malik by the IO and were not the independent witness rather both of the witnesses were the interested witnesses and therefore, their statements are neither reliable, nor admissible.
Learned Counsel for the accused further submitted that the factum of recovery on 08th Aug 2002 is false. He submitted that the recovery shown to have been effected on 08th Day of Aug 2002, in fact, was effected on 6th Day of Aug 2002 as is clear that the IO remained in the house of the Accused for three hours and what he claims is to arrest the accused only and on 08th Aug 2002 he claims that he remained at the Page 39 of 152 40 FIR No. 399/02 PS - Prashant Vihar spot only for one hour and recovered the complete household articles, made the list of recovered articles, recorded the statement of various search witnesses and the complainant and her father, sealed the articles, made various seizure memos, loaded them in the temp. Practically, it is quite adverse because it must have taken at least three hours and the arrest of the accused persons on 06th Aug 2002 could be effected within an hour only. So the recovery shown to have been effected on 08th Aug 2002 is completely false.
Learned Counsel for the accused further submitted regarding the admissions made by PW Om Pal Malik. He submitted that Om Pal Malik is the father of the prosecutrix (deceased). In his chief examination on oath before this Hon'ble Court and statement made to the police this witness has categorically stated that his daughter was never allowed to have a talk with her parents and also that neither he i.e.Om Pal Malik nor any member of his family ever contacted with the accused persons but surprisingly admitted that the car, which was given by him to his daughter in dowry on 09th day of May 2002, was handed over to him on 24th June 2002 and remained with him till 28th June 2002 and also Page 40 of 152 41 FIR No. 399/02 PS - Prashant Vihar admitted that he went to Haridwar on 24th June 2002 alongwith two males and 2 females and also admitted the various photographs of his daughter with the juvenile and other accused in a very happy and pleasant atmosphere alongwith various other relatives and the photographs related to the places outside of Delhi i.e of Pinjore and Mansa Devi, Rock Garden and other places.
Learned Counsel for the accused further submitted that man can tell a lie but the circumstances never. He submitted that the witness has admitted and recognized all the photographs of his daughter exhibited as Ex. PW1/DG to PW1/DP which relate to several places and on several and different occasions in which the prosecutrix is very much comfortable, rather happier than ever with the accused persons. The witness has also admitted that "the vehicle Maruti Zen remained with me up till 28/06/2002" and has even traveled up to Haridwar by the same car which he has alleged was lying with the family of the accused persons. The distance between the two houses also is 10 to 15 minutes walk and cordial relations between 09th May 2002 to 30th June 2002 (I had cordial relations with the accused between the period 09/05/2002 to Page 41 of 152 42 FIR No. 399/02 PS - Prashant Vihar 30/06/2002. there is no reason for me and my family for not going to the house of my daughter Shalini and her Inlaws between 09/05/2002 to 30/06/2002. page 3 of the cross by O.P. Malik dated 26th July 2010), shows that he was regularly in touch with the accused persons and the statement that he did not hear his daughter for about fifty days is completely false and he is making the false statement due to vested interest i.e. enmity towards the accused persons. Another glaring example of false statement by this witness is that the witness took the car to Haridwar and stayed there with his wife, daughter (deceased Shalini 21 years old), accused Sandeep (who was also Major) and there were four persons i.e. two males and two females. The document was got written at the instance and signed at point A by the witness is Exhibited PW1/DR (it is correct that in Ex. PW1/DR at point 'A' the address and all the information mentioned, were given by me to the author of the same. Two males and two females have been got written at my instance), but this witness gives a false explanation that he went to Haridwar with his wife, daughter Akanksha (who is admittedly was 8 years younger than his daughter (deceased Shalini) and was at that time thirteen years of rape of age), his son Nishant. Witness again admitted "I can understand Page 42 of 152 43 FIR No. 399/02 PS - Prashant Vihar the difference between the girl and the female and male and the boy. "my daughter Akanksha is 8 years younger than my daughter Shalini. Nishant is one and half year younger than Shalini".
Learned Counsel for the accused further submitted regarding the photographs taken by PW18 Harish. He submitted that the photographs allegedly taken at the instance of the IO have not been proved to the effect whether they relate to the house of the accused persons or not. He further submitted that in this regard the prosecution has examined PW18 Shri Harish s/o Sh. Motilal, who has completely denied of any knowledge of taking photographs by any of the employee of his shop while the IO has given statement to this effect that the house of accused was photographed. Thus the photographs allegedly of the house of accused persons have not been proved and therefore, are not admissible and cannot be read in evidence.
Learned Counsel for the accused further submitted regarding biological examination of the evidence. He submitted that there are several samples taken in the Hospital in order to ascertain the Page 43 of 152 44 FIR No. 399/02 PS - Prashant Vihar factum of rape and to prove the same the prosecution has examined Dr. Dhruv Sharma Asstt. Director (Biology) FSL Rohini, Delhi but as per the witness, all the samples were putrefied so there was no result.
Lastly, Learned Counsel for the accused further submitted regarding improvements made by PW4 Om Pal Malik. He submitted that major improvements and contradictions normally are fatal for the prosecution. Om Pal Malik has improved his statement to the tune of adding a new chapter that :
a) He was threatened by the accused persons.
b) Accused persons came to his house on the same day i.e. on 30th June 2002 within half an hour of reaching my daughter. They apologizes and gave in writing about their conduct towards my daughter which were handed over by me to the IO in the presence of Sarika Kapoor and Sh. M. L. Sharma my neighbour. They asked us to finish the matter there only and send back Shalini with them. On seeing the condition of my daughter I did not send my daughter back.
c) Documents of treatment were burnt in the fire and a police report was lodged to this effect with the police.
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PS - Prashant Vihar
d) The police did not receive the documents of treatment of Shalini Malik from him.
Learned Counsel for the accused further submitted that the prosecution has failed to prove its case beyond reasonable doubts against the accused and prayed that they be acquitted on the charges leveled against them.
10. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
11. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Virender Singh, Learned Counsel for the accused and have also carefully perused the entire record.
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12. The charge for the offence punishable u/s 498A IPC against accused Balbir, Jai Shree and Sandeep is that on 09/05/2002, marriage of Shalini Malik, D/o O. P. Malik was solemnized with accused Sandeep and he being husband of Shalini and accused Jai Shree, Balbir being motherinlaw and fatherinlaw respectively and accused Sanjeev facing trial before Juvenile Court being relatives of accused Sandeep have treated Shalini with cruelty on account of dowry.
The charge for the offence punishable u/s 376/109 IPC against accused Jai Shree is that on 17/05/2002 and thereafter many times, in House No. G3/3738, Sector - 11, Rohini, Delhi within the jurisdiction of PS - Prashant Vihar, Delhi, she abetted her coaccused Sanjeev (facing trial before Juvenile Court) to commit rape on the person of Shalini and in consequence of said abetment on 17/05/2002 and thereafter, her coaccused Sanjeev committed rape on the person of Shalini in the aforesaid house.
The charge for the offence punishable u/s 355 IPC against accused Jai Shree is that on 17/05/2002 and thereafter many times in House No. G3/3738, Sector - 11, Rohini, Delhi, within the jurisdiction of PS - Prashant Vihar, Delhi, she assaulted and used criminal force to Page 46 of 152 47 FIR No. 399/02 PS - Prashant Vihar the person of Shalini Malik, D/o O. P. Malik intending thereby to dishonour Shalini otherwise than on grave and sudden provocation.
13. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
14. PW1 Shalini Malik in her statement recorded u/s 164 Cr.P.C. on 08/08/2002 Ex. PW12/B (also Ex. PW1/L) has stated her age as 21 years. She has stated her date of birth as 27/01/1982 in her statement made to the police, on the basis of which, FIR Ex. PW2/A was recorded.
PW4 Ompal Malik, father of PW1 Shalini Malik (since deceased) during his crossexamination recorded on 26/07/2010 after lunch has deposed that "Shalini approximately had crossed 21 years of age at the time of her marriage".
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PS - Prashant Vihar PW6 Smt. Kusum, mother of PW1 Shalini Malik during her crossexamination has deposed that, at the time of marriage, Shalini was aged about 21 years.
PW16 SI Vinod Kumar, IO during his examinationinchief has deposed that he seized the school certificate in proof of date of birth of Shalini as was handed over by her father vide seizure memo Ex. PW1/C which bears his signature at point D. Certificate is Ex. P2.
On perusal of certificate Ex. P2, the same is found to be the marksheet of Secondary School Examination 1997 of PW1 Shalini showing her date of birth as 27/01/1982.
In the circumstances, it stands established on the record that the date of birth of PW1 - Shalini Malik (since deceased) was 27/01/1982.
The said factum that the age of PW1 Shalini was around 21 years as on the date of the alleged incident in May, 2002, has also not been disputed by the accused. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused.
In view of above and in the circumstances, it stands established on record that PW1 Shalini Malik (since deceased), was Page 48 of 152 49 FIR No. 399/02 PS - Prashant Vihar aged around 21 years as on the date of alleged incident in May, 2002. MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW3 - Dr. Sandhya Jain, CMO, BSA Hospital, Rohini, Delhi who proved the medical examination of Shalini, D/o Sh. Ompal Malik as was conducted by Dr. Shruti Bhatia vide MLC Ex. PW3/A, which bears the signature of Dr. Shruti Bhatia at point 'A'.
During her crossexamination, PW3 Dr. Sandhya Jain has deposed that : "I am working in the BSA Hospital since 1999. I do not remember, when Dr. Bhatia left the services of the hospital. Vol. All the S.Rs are available in the hospital for a tenure of three years. Dr. Bhatia was also working in gynae department, where I am working. It is correct that I am not personally aware about the contents mentioned in the MLC Ex. PW3/A."
There is nothing in the crossexamination of PW3 Dr. Sandhya Jain so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical and the gynaecological examination of PW1 Shalini Malik, as was conducted Page 49 of 152 50 FIR No. 399/02 PS - Prashant Vihar by Dr. Shruti Bhatia vide MLC Ex. PW3/A stands proved on the record. BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW17 - Dr. Dhruv Sharma, Asstt. Director (Biology), FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW17/A and Ex. PW17/B signed by him at points 'A' respectively and proved the exhibits (collectively) which were examined by him as Ex. P6 and Ex. P7.
As per biological report Ex. PW17/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SD" containing exhibits '1a', '1b1', '1b2', '1c', '1d1', '1d2', '1e', '1f1' and '1f2'.
Exhibit '1a' : Cotton wool swab on a small stick kept in a collection tube.
Exhibit '1b1' : Two microslides having faint smear. and '1b2' Exhibit '1c' : Cotton wool swab on a small stick kept in a collection tube.
Page 50 of 152 51 FIR No. 399/02 PS - Prashant Vihar Exhibit '1d1' and '1d2' : Two microslides having faint smear. Exhibit '1e' : Few small black hairs described as "pubic hairs". Exhibit '1f1' and '1f2' : Dark brown liquid described as "Blood sample" kept in two injection vials. Parcel '2' : One sealed cloth parcel sealed with the seal of
"SD" containing exhibits '2a', '2b', '2b' and '2d'. Exhibit '2a' : Dark brown liquid in a collection tube described as "Sample blood of accused".
Exhibit '2b' : One underwear.
Exhibit '2c' : One banian.
Exhibit '2d' : Bunch of black hairs described as "Pubic
hairs".
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1f1', 1f2' and '2a'.
2. Blood could not be detected on exhibits '1a', '1e', '2b', '2c' and '2d'.
3. Human semen was detected on exhibit '2b'.
4. Semen could not be detected on exhibits '1a', '1b1', '1b2', '1c', '1d1', '1d2', '1e', '2c' and '2d'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'DS FSL DELHI'.
The serological report Ex. 17/B reads as under: Page 51 of 152 52 FIR No. 399/02 PS - Prashant Vihar Exhibits Species of origin ABO Grouping/Remarks BLOOD STAINS '1f1' Sample blood Sample was putrefied hence no opinion '1f2' Sample blood Sample was putrefied hence no opinion '2a' Sample blood Sample was putrefied hence no opinion SEMEN STAINS No reaction '2b' Underwear On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibits '1f1', 1f2' (Blood sample of PW1 Shalini) and exhibit '2a' (Blood sample of accused Sanjeev (juvenile)); blood could not be detected on exhibit '1a' (Cotton wool swab of PW1 Shalini), exhibit '1e' (Pubic hairs of PW1 Shalini), exhibit '2b' (underwear of the accused Sanjeev (juvenile)), exhibit '2c' (banian of the accused Sanjeev (juvenile)) and exhibit '2d' (Pubic hairs of the accused Sanjeev (juvenile)); Human semen was detected on exhibit '2b' (underwear of the accused Sanjeev (juvenile)); and semen could not be detected on exhibit Page 52 of 152 53 FIR No. 399/02 PS - Prashant Vihar '1a' (Cotton wool swab of PW1 Shalini), exhibits '1b1' and '1b2' (Two microslides having faint smear of PW1 Shalini), exhibit '1c' (Cotton wool swab of PW1 Shalini), exhibits '1d1' and '1d2' (Two microslides having faint smear of PW1 Shalini), exhibit '1e' (Pubic hairs of PW1 Shalini), exhibit '2c' (banian of the accused Sanjeev (juvenile)) and exhibit '2d' (Pubic hairs of the accused Sanjeev (juvenile)).
As per the biological report Ex. PW17/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to PW1 Shalini which was seized vide seizure memo dated 06/08/2012 Ex. PW5/A, Parcel No. 2 belongs to accused Sanjeev (juvenile).
Although, prosecution has discharged its initial burden of proving the presence of human semen on exhibit '2b' (underwear of accused Sanjeev (juvenile). Since, the presence of the human semen was detected on exhibit '2b' (underwear of accused Sanjeev (juvenile)) whose case had already been separated and sent to the Juvenile Justice Board, therefore, no further discussion is made on this aspect.
Page 53 of 152 54 FIR No. 399/02
PS - Prashant Vihar
17. Learned Counsel for the accused submitted that there were several samples taken in the Hospital in order to ascertain the factum of rape and to prove the same the prosecution has examined Dr. Dhruv Sharma Asstt. Director (Biology) FSL Rohini, Delhi but as per the witness, all the samples were putrefied so there was no result.
As to what has been discussed and analysed hereinabove, no further discussion is called for on the said plea so raised by the learned counsel for the accused.
18. At the outset, before I take up the analysis of the evidence on the record, it is necessary to entertain the plea raised by the Learned Counsel for the accused regarding the admissibility of the testimony of PW1 - Shalini Malik, as she was not produced for the purpose of further crossexamination.
Learned Counsel for the accused submitted that PW1 Shalini Malik, the complainant was partly examinedinchief on 27/01/2005 and her examinationinchief was completed on 22/10/2005 and she was partly crossexamined on behalf of accused on 22/10/2005 Page 54 of 152 55 FIR No. 399/02 PS - Prashant Vihar and her further crossexamination was deferred for 06/12/2005 and as the said witness was found dead on the next morning of 22/10/2005, therefore, was not available for further crossexamination. The accused could not get the opportunity to further crossexamine this witness due to her death, therefore, had no opportunity to crossexamine PW1 Shalini Malik (since deceased), who is the complainant in this case. Therefore, the statement of PW1 Shalini Malik cannot be read in evidence in view of Section 33 of Indian Evidence Act.
While the Learned Addl. PP for the State submitted that PW1 - Shalini Malik, the complainant was partly examinedinchief on 27/01/2005 and her examinationinchief was completed on 22/10/2005 and she was substantially partly crossexamined on behalf of accused on 22/10/2005 and her further crossexamination was deferred for 06/12/2005 and the said witness was found dead on the next morning of 22/10/2005 and for this reason, she could not be produced for the purpose of further crossexamination. Therefore, it cannot be said that the prosecution has withheld this witness and not produced her for the purpose of further crossexamination but the presence of the witness could not be obtained because she was dead, hence her examination Page 55 of 152 56 FIR No. 399/02 PS - Prashant Vihar which is substantially complete is admissible and can be read in evidence.
I have carefully perused and analysed the evidence on record as well as the relevant provisions of the law.
Undisputably, PW1 - Shalini Malik/complainant was partly examinedinchief on 27/01/2005 and her examinationinchief was completed on 22/10/2005 and on the same day, she was partly cross examined, at length, on behalf of the accused and her further cross examination was deferred for 06/12/2005.
It is also not in dispute that on the next morning of 22/10/2005, she was found dead and for this reason, her presence could not be procured for the purpose of further crossexamination.
Perusal of the evidence of PW1 - Shalini Malik/ complainant (since deceased), as exists on the record, indicates that she was examinedinchief, which is running in 08 pages and was partly but substantially crossexamined on behalf of the accused and her cross examination is running in 08 pages.
Section 3 of the Indian Evidence Act, 1872, defines Page 56 of 152 57 FIR No. 399/02 PS - Prashant Vihar 'Evidence'.
It reads as under :
"Evidence" "Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) All documents including electronic records produced for the inspection of the Court, such documents are collect documentary evidence."
Section 33 of the Indian Evidence Act, 1872, provides for relevancy of certain evidence for proving, in subsequent proceedings, the truth of facts therein stated.
It reads as under :
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which is states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their Page 57 of 152 58 FIR No. 399/02 PS - Prashant Vihar representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. (underlined by me) From above, it is clearly indicated that evidence given by a witness in a judicial proceeding, is relevant for the purpose of proving in a later stage of the same judicial proceeding, the truth of the facts, which it states, when the witness is dead, provided that the proceeding was between the same parties; that the adverse party in the first proceeding had the right and opportunity to crossexamine; that the questions in issue were substantially the same in the first, as in the second proceeding.
In the instant case, the examinationinchief of PW1 Shalini Malik was recorded, her substantial crossexamination was recorded, but for further crossexamination, she could not appear in the Court, as she was dead. In the circumstances, the evidence given by PW1 Shalini Page 58 of 152 59 FIR No. 399/02 PS - Prashant Vihar Malik (since deceased) during the trial of instant case is relevant for the purpose of proving the truth of facts, which it states at the stage of final arguments in the instant case, a later stage of the same judicial proceeding. In other words, in terms of provisions of Section 33 of Indian Evidence Act, the evidence of PW1 Shalini Malik (since deceased) is admissible in evidence.
In view of above and in the circumstances, the testimony of PW1 Shalini Malik, complainant, is admissible in evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused that Section 33 of Indian Evidence Act has no applicability in the present case.
In this connection, reference may also be made to the well known treatise "Sarkar on Evidence" at page 2170, which reads as under :
"The evidence of a witness who could not be subjected to crossexamination due to his death before he could be crossexamined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of case. [Food Inspector v. James N.T., 1998 Cr.LJ 3494, 3497 (Ker)]. If the examination is substantially complete and the witness is prevented by death, sickness or other causes (mentioned in s.33) from furnishing his testimony, it ought not to be Page 59 of 152 60 FIR No. 399/02 PS - Prashant Vihar rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected [Diwan v. R, A 1933 L 561]. Deposition of a witness whose crossexamination became impossible can be treated as evidence and the court should carefully see whether there are indications that by a completed crossexamination the testimony was likely to be seriously shaken or his good faith to be successfully impeached [Horil v. Rajab, A 1936 P 34]. In a divorce case, the crossexamination of a witness for the wife who is the uncle of the husband was interrupted to enable the witness to effect a compromise. No compromise was effected. The witness did not turn up thereafter. The husband did not take steps to compel the witness to appear for further crossexamination. The reading of the evidence of this witness cannot be objected, on the ground that the crossexamination is not completed [R v. S. A 1984 (NOC) 145 AII]".
In the circumstances, there is no substance in the plea so raised regarding the nonadmissibility of the evidence of PW1 Shalini Malik, by the Learned Counsel for the accused.
19. Now let the testimony of PW1 Shalini Malik be perused and analysed.
PW1 Shalini Malik, in her examinationinchief has deposed which is reproduced and reads as under : "I was married to accused Sandeep Solanki on 09/05/2002. Page 60 of 152 61 FIR No. 399/02
PS - Prashant Vihar My father had given Maruti Zen, Freeze, T.V. and other articles in my dowry. I had given a list of articles given to me in the dowry to the Police. The other articles were A.C., Double Bed, Dressing Table, Jewellery consisting of two gold sets, gold ring and chain for accused Sandeep, ring for accused Jai Shree my motherinlaw, gold ring for accused Balbir my fatherinlaw, gold ring for Sanjiv my brotherinlaw, other items consisting of clothes, sofa set, central table and there were other articles which I do not remember. The list is Ex. PW1/A bearing my signature at points 'A'.
After marriage, I went to the house of my inlaws and thereafter, as customary I came to my house on 16/05/2002 along with accused Sandeep. In the evening, we both returned back to the matrimonial house. On reaching, the matrimonial house I found that my motherinlaw, fatherinlaw and my Devar were having food. My father inlaw asked me whether or not I had brought Rs. 5 lacs in cash from my house. I told him, that my father had already given enough dowry and he cannot pay such an amount in cash. On this my husband accused Sandeep started giving me beatings and my motherinlaw commented that she will see how I refused to bring the money.
On 17/05/2002, my husband and my fatherinlaw went to the factory. My motherinlaw Jai Shree and my brotherinlaw Sanjiv gave beatings to me who were only persons present at the house at that time. They both dragged me in the bed room. Thereafter, they tied my both hands together with the bed, with the help of chunni. They also tied each of my leg with the bed with the help of separate chunnis. My hands were placed above my head. After lying me, my motherinlaw went outside the room and closed the door from outside. Sanjiv enhanced the volume of TV lying in the room, since I wept and screamed a lot. Thereafter, Sanjiv removed his own clothes. Thereafter, accused Sanjiv Page 61 of 152 62 FIR No. 399/02 PS - Prashant Vihar removed my kurtha by moving upward and drew my salwar downwards and with the help of a scissor lying in the room cut off my panty and raped me. Sanjiv played with my body for one hour. Accused Sanjiv after wearing his clothes went out of the room. Thereafter, my mother inlaw came inside the room and I requested her to untie me and permit me to go to my house. My motherinlaw told me that she cannot leave me like that and now it is her turn. My motherinlaw started biting me at various parts of my body. After sometime, she left after untying me and locked the door from outside. I narrated the incident to my husband Sandeep who came to the house in the evening. Sandeep told me that I need not worry as his brother and mother had only indulged in playful activities and moment I bring Rs. 5 lacs the activities will come to an end.
Whenever Sanjiv and my motherinlaw got an opportunity they used to do the same acts as aforesaid with me after stating that they will continue to do so unless, I bring Rs. 5 lacs. I was not allowed to attend the phone calls made by my parents at my matrimonial house and at all the times they told that I was out of the house or was sleeping. They have never permitted me to make a phone call to my parents.
One day my husband caught hold of my hand and my motherinlaw at the same time caught hold of me by my leg and my fatherinlaw put an (and) released mouse under my salwar from my pouncha of salwar and did not leave me for two or three minutes despite my crying and screaming and they rather laughed at me.
Again on one day, I was caught hold of by my leg and hands by my husband and my motherinlaw and Sanjiv from the upper side of my kurtha put and released a Chipkali (house lizard). The such behaviour of the accused continued in similar manner and sometimes ice was also put.
Page 62 of 152 63 FIR No. 399/02
PS - Prashant Vihar On 30/06/2002, Sandeep, Sanjiv and my parentsinlaw have gone outside the house. After extending threats to me that in case, I venture to go outside the house they will kill me. While leaving they locked the main gate. After opening the gate of the back side I reached the house of my parents at Prashant Vihar and narrated the entire happenings to my parents. On coming to know that I have reached at my house, my motherinlaw, my husband and my brotherinlaw came to my parents house. When my parents asked them as aforesaid, they admitted that they had done so and also stated that same will not be repeated in future and they gave the undertaking in writing. The said writing is Mark 'A'. (The said writing has been introduced for the first time and do not found part of the challan. Learned Counsel for the accused has stated that the copy of the said writing had never been provided to him which fact Learned APP conceded and now has handed over the copy to the Counsel for the accused. Learned Counsel for the accused has objected that since the document has not been filed after seeking permission the same cannot be taken on record. The objection is not sustainable as the document has been introduced during the deposition and only its effect can be seen at the time of final arguments.) I tried to hand over the said copy to the IO but he advised that the same be filed before the Court at the time of evidence. My parents told my motherinlaw, Sanjiv and Sandeep Kumar that they will not send their daughter at present with then (them) and all three of them left. My inlaws thereafter started giving threatening calls at my parental house to me and my parents to kill me.
On 05/08/2002, I went to the Police Station alongwith my father and lodged a report and on my statement, FIR was recorded I signed the FIR. The witness has identified her signature on the carbon copy of the FIR.
Page 63 of 152 64 FIR No. 399/02
PS - Prashant Vihar On 06/08/2002, IO and Constable reached at my parents house. The marriage card and the copy of mark sheet of 10th class was handed over to the IO which was seized by the IO vide memo Ex. PW1/B bearing my signature at point 'A'. The original card is P1 and the photocopy of mark sheet is P2. The memo of mark sheet is Ex. PW1/C. On the same day, a lady Constable and one other Constable came to my parents house and I was taken to BSA Hospital, Rohini for medical examination. On 06/08/2002, I alongwith IO reached the house of accused Sandeep. At that time accused Sandeep, my motherinlaw accused Jai Shree and Sanjiv were present at the house. They were arrested vide memos Ex. PW1/D and E and their personal searches were conducted vide memos Ex. PW1/F and G. All bearing my signature at point 'A'. On 07/08/2002, my father Sh. O. P. Malik went to the PS and handed over to the IO 5 photographs Ex. P3/1 to Ex. P3/5 and list Ex. PW1/A which was taken into possession by the IO Ex. PW1/H and I, bearing my signatures at point 'A'.
On 08/08/2002, I alongwith IO and Police Constable and accused Sanjiv went to the house of accused Sandeep. The gate of the house was found locked. IO called key maker and got the lock opened and in the presence of Surya Kant and Davender Gupta and on my identification goods as mentioned in Ex. PW1/J were recovered bearing my signature at point 'A'. The goods recovered were not the entire goods comprising my istridhan and some were missing. From the almirah of my bed room, 3 dupattas/chunnies were recovered which were used for tying me as aforesaid while committing rape upon me vide memo Ex. PW1/K beating my signature at point 'A'. The chunnies were red, blue and greed, and firozi in colour. At this stage, a sealed parcel sealed with the seal of 'VK' is opened containing three chunnies which the witness has correctly identified. The same are Ex. P1 to P3. My statement was Page 64 of 152 65 FIR No. 399/02 PS - Prashant Vihar also recorded by the MM. At this stage, envelope containing statement under section 164 Cr.P.C. is opened. Witness admits statement Ex. PW1/L bearing her signature at point 'A'."
During her further examinationinchief dated 22/10/2005, PW1 - prosecutrix has deposed that : "I have all the articles seized vide memo Ex. PW1/J. (The Naib Court alongwith witness, Learned Defence Counsel and the Asstt. Ahlmad of this Court, Manoj, are sent downstairs to check the case property and the Asstt. Ahlmad is directed to record whatever observations Learned Defence Counsel may have in respect of the case property.) The case property has been verified and now stand Ex. P5/1 to 44. I am the registered owner of Maruti Zen No. DL9CE2992 and all the articles are on Superdari with me. The list Ex. PW1/M contains the details of the articles given to me at the time of my marriage but have not been recovered and they are still with the accused persons. I have seen the photographs on record. They are of the house of the accused and are marked 2, 3 and 4 for identification. The FIR is Ex. PW2/A bears my signature at point 'A'. I was medically examined at BSA Hospital. The accused present are my fatherinlaw, motherinlaw and my husband. My brotherinlaw is facing trial before Juvenile Court. "
From the aforesaid narration of PW1 - Shalini Malik, it is clear that she was married to accused Sandeep Solanki on 09/05/2002. Her father had given Maruti Zen, Freeze, T.V. and other articles in her Page 65 of 152 66 FIR No. 399/02 PS - Prashant Vihar dowry. She had given a list of articles given to her in the dowry to the Police. The other articles were A.C., Double Bed, Dressing Table, Jewellery consisting of two gold sets, gold ring and chain for accused Sandeep, ring for accused Jai Shree her motherinlaw, gold ring for accused Balbir her fatherinlaw, gold ring for Sanjiv her brotherinlaw, other items consisting of clothes, sofa set, central table and there were other articles which she does not remember. The list is Ex. PW1/A bearing her signature at points 'A'. After marriage, she went to the house of her inlaws and thereafter, as customary she came to her house on 16/05/2002 along with accused Sandeep. In the evening, they both returned back to the matrimonial house. On reaching, the matrimonial house she found that her motherinlaw, fatherinlaw and her Devar were having food. Her fatherinlaw asked her whether or not she had brought Rs. 5 lacs in cash from her house. She told him, that her father had already given enough dowry and he cannot pay such an amount in cash. On this her husband accused Sandeep started giving her beatings and her motherinlaw commented that she will see how she (PW1 Shalini Malik) refused to Page 66 of 152 67 FIR No. 399/02 PS - Prashant Vihar bring the money. On 17/05/2002, her husband and her fatherinlaw went to the factory. Her motherinlaw Jai Shree and her brotherin law Sanjiv gave beatings to her who were only persons present at the house at that time. They both dragged her in the bed room. Thereafter, they tied her both hands together with the bed, with the help of chunni. They also tied each of her leg with the bed with the help of separate chunnis. Her hands were placed above her head. After lying her, her motherinlaw went outside the room and closed the door from outside. Sanjiv enhanced the volume of TV lying in the room, since she (PW1 Shalini Malik) wept and screamed a lot. Thereafter, Sanjiv removed his own clothes. Thereafter, accused Sanjiv removed her (PW1) kurtha by moving upward and drew her salwar downwards and with the help of a scissor lying in the room cut off her panty and raped her. Sanjiv played with her body for one hour. Accused Sanjiv after wearing his clothes went out of the room. Thereafter, her motherinlaw came inside the room and she (PW1) requested her to untie her (PW1) and permit her to go to her house. Her motherinlaw told her that she cannot leave her like that and Page 67 of 152 68 FIR No. 399/02 PS - Prashant Vihar now it is her (accused Jai Shree) turn. Her (PW1) motherinlaw started biting her at various parts of her body. After sometime, she (accused Jai Shree) left after untying her and locked the door from outside. She narrated the incident to her husband Sandeep who came to the house in the evening. Sandeep told her that she need not worry as his brother and mother had only indulged in playful activities and moment she bring Rs. 5 lacs the activities will come to an end. Whenever Sanjiv and her motherinlaw got an opportunity they used to do the same acts as aforesaid with her after stating that they will continue to do so unless, she (PW1 Shalini Malik) bring Rs. 5 lacs. She was not allowed to attend the phone calls made by her parents at her matrimonial house and at all the times they (accused persons) told that she (PW1 Shalini Malik) was out of the house or was sleeping. They have never permitted her to make a phone call to her parents. One day her husband caught hold of her hand and her motherinlaw at the same time caught hold of her (PW1 - Shalini Malik) by her leg and her fatherinlaw put and released mouse under her salwar from her pouncha of salwar and did not leave her Page 68 of 152 69 FIR No. 399/02 PS - Prashant Vihar for two or three minutes despite her crying and screaming and they rather laughed at her. Again on one day, she was caught hold of by her leg and hands by her husband and her motherinlaw and Sanjiv from the upper side of her kurtha put and released a Chipkali (house lizard). The such behaviour of the accused continued in similar manner and sometimes ice was also put. On 30/06/2002, Sandeep, Sanjiv and her parentsinlaw have gone outside the house.
After extending threats to her that in case, she venture to go outside the house they will kill her. While leaving they locked the main gate. After opening the gate of the back side she reached the house of her parents at Prashant Vihar and narrated the entire happenings to her parents. On coming to know that she had reached at her house, her motherinlaw, her husband and her brotherinlaw came to her parents house. When her parents asked them as aforesaid, they admitted that they had done so and also stated that same will not be repeated in future and they gave the undertaking in writing. The said writing is Mark 'A'. She tried to hand over the said copy to the IO but he advised that the same be filed before the Court at the time of evidence. Her parents told Page 69 of 152 70 FIR No. 399/02 PS - Prashant Vihar her motherinlaw, Sanjiv and Sandeep Kumar that they will not send their daughter at present with them and all three of them left. Her in laws thereafter started giving threatening calls at her parental house to her and her parents to kill her. On 05/08/2002, she went to the Police Station alongwith her father and lodged a report and on her statement, FIR was recorded and she signed the FIR. The witness has identified her signature on the carbon copy of the FIR. On 06/08/2002, IO and Constable reached at her parents house. The marriage card and the copy of mark sheet of 10th class was handed over to the IO which was seized by the IO vide memo Ex. PW1/B bearing her signature at point 'A'. The original card is P1 and the photocopy of mark sheet is P2. The memo of mark sheet is Ex. PW1/C. On the same day, a lady Constable and one other Constable came to her parents house and she was taken to BSA Hospital, Rohini for medical examination. On 06/08/2002, she alongwith IO reached the house of accused Sandeep. At that time accused Sandeep, her motherinlaw accused Jai Shree and Sanjiv were present at the house. They were arrested vide memos Ex. PW1/D and E and their personal searches were conducted vide memos Ex. PW1/F and G. All bearing her signature at point 'A'. On 07/08/2002, her father Sh. Page 70 of 152 71 FIR No. 399/02
PS - Prashant Vihar O. P. Malik went to the PS and handed over to the IO 5 photographs Ex. P3/1 to Ex. P3/5 and list Ex. PW1/A which was taken into possession by the IO Ex. PW1/H and I, bearing her signatures at point 'A'. On 08/08/2002, she alongwith IO and Police Constable and accused Sanjiv went to the house of accused Sandeep. The gate of the house was found locked. IO called key maker and got the lock opened and in the presence of Surya Kant and Davender Gupta and on her identification goods as mentioned in Ex. PW1/J were recovered bearing her signature at point 'A'. The goods recovered were not the entire goods comprising her istridhan and some were missing. From the almirah of her bed room, 3 dupattas/chunnies were recovered which were used for tying her as aforesaid while committing rape upon me vide memo Ex. PW1/K beating my signature at point 'A'. The chunnies were red, blue and greed, and firozi in colour. The same are Ex. P1 to P3. Her statement was also recorded by the MM and she admitted her statement Ex. PW1/L bearing her signature at point 'A'. She had all the articles seized vide memo Ex. PW1/J. The case property has been verified and now stand Ex. P5/1 to 44. She is the registered owner of Maruti Zen No. DL9CE2992 and all the articles are on Superdari with her. The list Ex. Page 71 of 152 72 FIR No. 399/02
PS - Prashant Vihar PW1/M contains the details of the articles given to her at the time of her marriage but have not been recovered and they were still with the accused persons. She had seen the photographs on record. They are of the house of the accused and are marked 2, 3 and 4 for identification. The FIR is Ex. PW2/A bears her signature at point 'A'. She was medically examined at BSA Hospital. She identified the accused present in the Court as her fatherinlaw, motherinlaw and her husband. Her brotherinlaw is facing trial before Juvenile Court.
PW1 - Shalini Malik during her crossexamination has negated the suggestions that after the marriage till 30th June, the 'dadi' of Sandeep remained at matrimonial home as she was ill or that the 'chacha' and tau of accused Sandeep used to come daily during the said period to the matrimonial home to make enquiries about the health of 'dadi' Vol. They all had come on 10th for her 'munhdikhai' or that Kamla used to do the washing of utensils and cleaning of the house during the entire time she had lived in the matrimonial home or that on several occasions her parents had shared dinner with her inlaws or that they used to visit her matrimonial home during their after dinner stroll or that the accused and she used to take a after dinner stroll upto her parental house on occasions Page 72 of 152 73 FIR No. 399/02 PS - Prashant Vihar or that she and Sandeep used to go for outings and for picnics outside Delhi or that the photograph Ex. PW1/DO has been taken inside the building at Pinjore Gardens or that the photograph Ex. PW1/DP was taken on the way to Mansa Devi temple or that the photograph Ex. PW DQ was taken at Pinjore Garden gates or that she alongwith Sanjeev, Sandeep and her motherinlaw had stayed overnight at the house of Geeta Mausi, at Chandigarh in 2002 or that the dadi of Sandeep was at her matrimonial home even on 30/06/2002.
Inspite of incisive crossexamination of PW1 - Shalini Malik nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout. The testimony of PW1 Shalini Malik on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
Page 73 of 152 74 FIR No. 399/02
PS - Prashant Vihar The testimony of PW1 Shalini Malik is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 Shalini Malik is also found to be in consonance with FIR Ex. PW2/A, recorded on her statement made to the police, as well as her statement recorded u/s.164 Cr.PC Ex. PW12/B (also Ex. PW1/L).
The testimony of PW1 Shalini Malik is also corroborated by PW4 - Sh. Om Pal Malik, her father and PW6 - Smt. Kusum, her mother, to whom Shalini Malik had disclosed the facts relating to the crime shortly after the incident at the first available opportunity on 30/06/2002, being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW4 - Sh. Om Pal Malik in his examinationinchief has deposed that : "I am a Govt. employee. Shalini was my daughter. She was Page 74 of 152 75 FIR No. 399/02 PS - Prashant Vihar married to accused Sandeep present in Court today as per Hindu rites and ceremonies on 09/05/2002. In the marriage I gave dowry articles to my daughter beyond my capacity like Maruti Zen car, AC, fridge, TV etc., and gold and silver jewelery and other house hold goods. After marriage my daughter went to her matrimonial home at sector - 11, Rohini. On 16/05/2002 my daughter along with her husband accused Sandeep came to meet us at my residence at Prashant Vihar. In the evening she went along with her husband to her matrimonial home. When she went to her matrimonial home her husband and inlaws i.e. her parentsinlaw and accused Sanjeev brotherinlaw (All present in the Court today except accused Sanjeev who is facing trial in Juvenile Court) demanded Rs. 5 lacs and asked her why she had not brought this amount when she had gone to meet her parents on that day. My daughter did not disclose this demand of Rs. 5 lacs to either me or any of the family members. Accused Sandeep gave beatings to my daughter on this pretext at the instance of other accused persons. Motherinlaw of my daughter told her that she would see to it how she will not bring the said amount of Rs. 5 lacs from her parents. The accused persons did not allow my daughter to talk on telephone on the pretext that Shalini was sleeping or taking bath or she has gone for outing with husband.
On 30/06/2002 my daughter Shalini came along (alone) without chappal in her foot in lunch time at my residence in a very disturbed condition. She was not wearing her mangalsutra also. At that time we were having lunch along with some family friend Sarika Kapoor. On entering in the house my daughter started weeping. Neighbours also came on hearing the cries. We inquired from her and came to know that on 17/05/2002 accused Balbir Singh and Sandeep went to their factory and in their absence accused Jai Shree and Sanjeev gave her beatings and locked her in a room. My daughter kept on weeping but both the Page 75 of 152 76 FIR No. 399/02 PS - Prashant Vihar accused i.e. motherinlaw and brotherinlaw tied her hands and legs by chuni with double bed. Accused motherinlaw came out of that room and bolted the room from outside. Accused Sanjeev remained in the room and raped her after raising the volume of the TV. Thereafter Sanjeev came out of the room and motherinlaw entered in the room. My daughter kept on crying to leave her but no heed was paid to her by the accused persons. Motherinlaw of my daughter took off her clothes and started kissing my daughter on her body. My daughter kept on weeping. Thereafter, whenever the motherinlaw and the brotherinlaw used to get opportunity they used to repeat the same as stated above with my daughter. My daughter further told that in order to harras (harass) and torture her they used to put ice, mouse and lizard in her clothes. Due to all this harassment my daughter became very nervous and depressed. Till 30/06/2002 my daughter was kept by the accused persons in such a manner that was not allowed to go out of the house without the permission and never allow her to go alone. On 30/06/2002, the husband, motherinlaw and brotherinlaw of my daughter came at my residence within half an hour of reaching my daughter. They apologies and gave in writing about their conduct towards my daughter which were handed over by me to the IO in the presence of Sarika Kapoor and Sh. M. L. Sharma my neighbour. They asked to finish the matter there only and to send back prosecutrix (name withheld) with them. On seeing the condition of my daughter I did not send my daughter back.
On 05/08/2002 complaint was lodged against them by my daughter. I handed over the marriage card Ex. P1 to IO which was seized by the IO vide memo Ex. PW1/B bears my signatures at point 'B'. I also produced the mark Sheet showing the date of birth of my daughter which is Ex. P2 which was seized by the IO vide seizure memo Ex. PW1/C which is signed by me at point 'B'. The photograph of marriage Page 76 of 152 77 FIR No. 399/02 PS - Prashant Vihar Ex. PW3/1 to PW3/5 were also produced by me before IO. The same were seized vide memo Ex. PW1/E which bears my signature at point 'B'. The list of dowry articles Ex. PW1/A was also produced which was seized by the IO vide memo Ex. PW1/H which bears my signature at point 'B'.
On 08/08/2002, I along with my daughter Shalini reached at Police Post, Sector - 16 of PS - Prashant Vihar at about 7:00 a.m. From there I alongwith my daughter, IO, one Constable and accused Sandeep went to G3/3738, Sector - 11, Rohini i.e. the matrimonial home of my daughter. The house was found locked. The IO called one Kishan Key Maker from the nearby area. Two persons were also called as a witness by the IO, I do not know them however they were from Sector - 11. In their presence the lock was opened. The valuable items of my daughter were missing. On the identification of my daughter her dowry articles which were lying in the house were taken into possession by the IO vide seizure memo Ex. PW1/J which bears my signature at point 'B'. Besides the dowry articles mentioned in list Ex. PW1/J nothing else was recovered by the IO. Again said my daughter got recovered three chunies from her almirah which were stated to be used by accused Jai Shree and Sanjeev for the further (purpose) of tied her hands and legs. These chunies were kept in a polythene and converted into a pullinda and sealed with the seal of IO and was taken into possession vide memo Ex. PW1/K which bears my signature at point 'A' and signatures of my daughter at point 'B'. the IO locked the house and the keys were handed over to the neighbours. Memo to that effect must have been prepared by the IO."
From the aforesaid narration of PW4 - Sh. Om Pal Malik, it is clear that the he is a Govt. employee. Shalini was his daughter. She Page 77 of 152 78 FIR No. 399/02 PS - Prashant Vihar was married to accused Sandeep present in Court as per Hindu rites and ceremonies on 09/05/2002. In the marriage he gave dowry articles to his daughter beyond his capacity like Maruti Zen car, AC, fridge, TV etc., and gold and silver jewelery and other house hold goods. After marriage his daughter went to her matrimonial home at sector - 11, Rohini. On 16/05/2002 his daughter along with her husband accused Sandeep came to meet them at his residence at Prashant Vihar. In the evening she went along with her husband to her matrimonial home. When she went to her matrimonial home her husband and inlaws i.e. her parentsinlaw and accused Sanjeev brotherinlaw (All present in the Court today except accused Sanjeev who is facing trial in Juvenile Court) demanded Rs. 5 lacs and asked her why she had not brought this amount when she had gone to meet her parents on that day. His daughter did not disclose this demand of Rs. 5 lacs to either him or any of the family members. Accused Sandeep gave beatings to his daughter on this pretext at the instance of other accused persons. Motherinlaw of his daughter told her that she would see to it how she will not bring the said amount of Rs. 5 lacs Page 78 of 152 79 FIR No. 399/02 PS - Prashant Vihar from her parents. The accused persons did not allow his daughter to talk on telephone on the pretext that Shalini was sleeping or taking bath or she has gone for outing with husband. On 30/06/2002 his daughter Shalini came alone without chappal in her foot in lunch time at his residence in a very disturbed condition. She was not wearing her mangalsutra also. At that time they were having lunch along with some family friend Sarika Kapoor. On entering in the house his daughter started weeping. Neighbours also came on hearing the cries. They inquired from her and came to know that on 17/05/2002 accused Balbir Singh and Sandeep went to their factory and in their absence accused Jai Shree and Sanjeev gave her beatings and locked her in a room. His daughter kept on weeping but both the accused i.e. motherinlaw and brotherinlaw tied her hands and legs by chuni with double bed. Accused motherinlaw came out of that room and bolted the room from outside. Accused Sanjeev remained in the room and raped her after raising the volume of the TV. Thereafter Sanjeev came out of the room and motherinlaw entered in the room. His (PW4) daughter kept on Page 79 of 152 80 FIR No. 399/02 PS - Prashant Vihar crying to leave her but no heed was paid to her by the accused persons. Motherinlaw of his daughter took off her clothes and started kissing his daughter on her body. Her daughter kept on weeping. Thereafter, whenever the motherinlaw and the brother inlaw used to get opportunity they used to repeat the same as stated above with his daughter. His daughter further told that in order to harras (harass) and torture her they used to put ice, mouse and lizard in her clothes. Due to all this harassment his daughter became very nervous and depressed. Till 30/06/2002 his daughter was kept by the accused persons in such a manner that was not allowed to go out of the house without the permission and never allow her to go alone. On 30/06/2002, the husband, motherinlaw and brotherinlaw of his daughter came at his residence within half an hour of reaching his daughter. They apologized and gave in writing about their conduct towards his daughter which were handed over by him to the IO in the presence of Sarika Kapoor and Sh. M. L. Sharma his neighbour. They asked to finish the matter there only and to send back prosecutrix (name withheld) with them. On seeing the condition of his daughter he did not Page 80 of 152 81 FIR No. 399/02 PS - Prashant Vihar send his daughter back. On 05/08/2002 complaint was lodged against them by his daughter. He handed over the marriage card Ex. P1 to IO which was seized by the IO vide memo Ex. PW1/B bears his signatures at point 'B'. He also produced the mark Sheet showing the date of birth of his daughter which is Ex. P2 which was seized by the IO vide seizure memo Ex. PW1/C which is signed by him at point 'B'. The photograph of marriage Ex. PW3/1 to PW3/5 were also produced by him before IO. The same were seized vide memo Ex. PW1/E which bears his signature at point 'B'. The list of dowry articles Ex. PW1/A was also produced which was seized by the IO vide memo Ex. PW1/H which bears his signature at point 'B'. On 08/08/2002, he alongwith his daughter Shalini reached at Police Post, Sector - 16 of PS - Prashant Vihar at about 7:00 a.m. From there he alongwith his daughter, IO, one Constable and accused Sandeep went to G3/3738, Sector - 11, Rohini i.e. the matrimonial home of his daughter. The house was found locked. The IO called one Kishan Key Maker from the nearby area. Two persons were also called as a witness by the IO, he does not know them however they were from Sector - 11. In their presence the lock was opened. The valuable items of his daughter were missing. On the identification of his Page 81 of 152 82 FIR No. 399/02 PS - Prashant Vihar daughter her dowry articles which were lying in the house were taken into possession by the IO vide seizure memo Ex. PW1/J which bears his signature at point 'B'. Besides the dowry articles mentioned in list Ex. PW1/J nothing else was recovered by the IO. Again said his daughter got recovered three chunies from her almirah which were stated to be used by accused Jai Shree and Sanjeev for the further (purpose) of tied her hands and legs. These chunies were kept in a polythene and converted into a pullinda and sealed with the seal of IO and was taken into possession vide memo Ex. PW1/K which bears his signature at point 'A' and signatures of his daughter at point 'B'. The IO locked the house and the keys were handed over to the neighbours. Memo to that effect must have been prepared by the IO.
During his crossexamination PW4 - Sh. Om Pal Malik has negated the suggestion that he cannot tell the exact address of the clinic, medicine and Doctor as he never visited there alongwith his daughter being imaginary names or that his daughter was in a fit condition to give statement or lodge FIR before the Police on 30/06/2002 itself or that between this period he had been making efforts to send his daughter Page 82 of 152 83 FIR No. 399/02 PS - Prashant Vihar Shalini with accused Sandeep or that due to the failure of sending his daughter with Sandeep his daughter lodged this complaint at his instance or that his daughter never used to like her husband Sandeep and it was a matter between the husband and wife but he (PW4) gave colour to the same by adding the fake allegations of rape and dowry demand etc. or that he alongwith family has been visiting the matrimonial home of his daughter between 09/05/2002 to 30/06/2002 sometimes on lunch or sometimes on dinners and has been calling the accused persons to his house also or that his daughter had no problem while living with her in laws but was not doing well with her husband or that no rape was committed upon his daughter by the accused persons, as alleged or that Shalini was having cordial relations with Sanjeev Solanki (Dewar) or that list of articles given by them is false or that list of articles shown by them do not relate to them and it related to the accused or that the Maruti Zen car which he is claiming to have been given to the accused was always under his (PW4) possession or that he was going on tours by the same vehicle. Vol. This vehicle used to remain with the accused and whenever the service was required then the vehicle was used to (be) send (sent) to him by the accused. Once upon a time on 24/06/2002, he had Page 83 of 152 84 FIR No. 399/02 PS - Prashant Vihar taken this car to Haridwar and stayed there at Mahajan Bhawan or that at that time accused Sandeep Solanki, his daughter Shalini and his wife were with him at the above address (Mahajan Bhawan) Vol. His daughter Akansha, his son Nishant and his wife were with him or that by end of May, 2002, examination of his children were over or that the Maruti Zen car was with him and he had parked the same in front of the house of accused persons on 08/08/2002 at about 8:00 a.m. or that no such list (list of articles) was prepared by him at the time of marriage or that he had requested the IO that the list of articles will be prepared and handed over to the IO in 07/08/2002 or that he went to the PS on the said Maruti Zen Car from his house and thereafter went to the house of accused on the said car and from there he returned with the same car to his house or that the said Maruti Zen Car was never parked before the house of accused persons or that no chunnies were recovered or sealed from the house of accused or that the articles recovered from the house of accused were belonging to the accused or that the names of the witnesses are Surya Kant and Devender Gupta and both are contractors on MCD or that these two witnesses were awarded tender supervised by him (PW4) or that the said two witnesses were invited guests in the marriage of his Page 84 of 152 85 FIR No. 399/02 PS - Prashant Vihar daughter or that the said two persons were having family relations with them or that said witnesses signed the seizure memos at his asking or that he has filed a false case or that he had been waiting for accused Sandeep to take his daughter and when the matter was not materialized then with ulterior motive he lodged this fake FIR or that he is deposing falsely or that no rape was committed nor any harassment was caused to his daughter or that no articles were given in dowry to the accused.
PW6 - Smt. Kusum in her examinationinchief has deposed that : "Shalini was my daughter who was married to accused Sandeep present in the Court on 09/05/2002. In the dowry, everything including Zen Car was given. After marriage my daughter went to her matrimonial home at Sector - 11, Rohini. On 10/05/2002, my daughter came along with accused Sandeep for Phera Ceremony. Again said, my son had gone to take her from her matrimonial home. She went back to her matrimonial home after sometime. Thereafter on 16/05/2002, she along with accused Sandeep at my residence and they went back on the same day. We used to talk on telephone with the accused persons. On asking about my daughter Shalini, they used to give answer that she was sleeping or she had gone for some outing."
During her further examinationinchief recorded on Page 85 of 152 86 FIR No. 399/02 PS - Prashant Vihar 28/02/2011, PW6 - Smt. Kusum has deposed that : "Inlaws of Shalini had not allowed us to talk with Shalini. On 30/06/2002, Shalini came at our house. She was very much upset and was mentally disturbed. On asking, she told us that her inlaws namely devar Sanjeev, husband Sandeep, fatherinlaw Balbir Singh and motherinlaw Jai Shree were demanding Rs. 5 lacs and for that they also used to beat her. Shalini further told me that on 17/05/2002, when her husband and her fatherinlaw had gone to the factory, she was beaten by her brotherinlaw Sanjeev and motherinlaw Jai Shree and she was brought in a room where her legs and hands were tied with the help of chunni.
Shalini further told me that thereafter, her motherinlaw went out of the room and closed the door from outside. Thereafter, accused Sanjeev committed rape with her. Thereafter, her motherinlaw opened the door and came inside and Sanjeev went outside the room. Thereafter, her motherinlaw also remover her clothes and lied upon her and kissed her.
Shalini further told me that her motherinlaw committed such acts whenever she got chance. I told these facts to my husband Om Pal Singh Malik. Prosecutrix (name withheld) had further told me that when she refused to bring Rs. 5 lakhs from her parents then the accused persons dropped a rat (in) her salwar. The accused persons also dropped ice and lizard in her shirt.
When I told these facts to my husband, he talked with accused persons. The accused persons asked my husband to finish this matter then and there otherwise they would be killed. My daughter was tortured and harassed by the accused persons for dowry. Her istridhan was also lying with the accused persons. List of dowry articles was also Page 86 of 152 87 FIR No. 399/02 PS - Prashant Vihar given to the Police. I have seen the list of dowry articles in the case file, which was given to the Police, the same bears signature of my daughter Shalini at point 'A' each as I have seen her writing and signing being my daughter, in her life time. The same is Ex. PW6/A (running into three pages)."
From the aforesaid narration of PW6 - Smt. Kusum it is clear that Shalini was her daughter who was married to accused Sandeep present in the Court on 09/05/2002. In the dowry, everything including Zen Car was given. After marriage her daughter went to her matrimonial home at Sector - 11, Rohini. On 10/05/2002, her daughter came along with accused Sandeep for Phera Ceremony. Again said, her son had gone to take her (PW1 Shalini Malik) from her (PW1) matrimonial home. She went back to her matrimonial home after sometime. Thereafter on 16/05/2002, she along with accused Sandeep at her residence and they went back on the same day. They used to talk on telephone with the accused persons. On asking about her daughter Shalini, they used to give answer that she was sleeping or she had gone for some outing. Inlaws of Shalini had not allowed them to talk with Shalini. On 30/06/2002, Shalini came at their house. She was very much upset and was mentally disturbed. On Page 87 of 152 88 FIR No. 399/02 PS - Prashant Vihar asking, she told them that her inlaws namely devar Sanjeev, husband Sandeep, fatherinlaw Balbir Singh and motherinlaw Jai Shree were demanding Rs. 5 lacs and for that they also used to beat her (PW1 Shalini Malik). Shalini further told her that on 17/05/2002, when her (PW1) husband and her fatherinlaw had gone to the factory, she was beaten by her brotherinlaw Sanjeev and motherinlaw Jai Shree and she was brought in a room where her legs and hands were tied with the help of chunni. Shalini further told her that thereafter, her (PW1 Shalini Malik) motherinlaw went out of the room and closed the door from outside. Thereafter, accused Sanjeev committed rape with her. Thereafter, her mother inlaw opened the door and came inside and Sanjeev went outside the room. Thereafter, her motherinlaw also remover her clothes and lied upon her and kissed her. Shalini further told her that her (PW) motherinlaw committed such acts whenever she got chance. She (PW6 - Smt. Kusum) told these facts to her husband Om Pal Singh Malik. Shalini had further told her that when she refused to bring Rs. 5 lakhs from her parents then the accused persons Page 88 of 152 89 FIR No. 399/02 PS - Prashant Vihar dropped a rat in her salwar. The accused persons also dropped ice and lizard in her shirt. When she (PW6) told these facts to her husband, he talked with accused persons. The accused persons asked her husband to finish this matter then and there otherwise they would be killed. Her daughter was tortured and harassed by the accused persons for dowry. Her istridhan was also lying with the accused persons. List of dowry articles was also given to the Police. She had seen the list of dowry articles in the case file, which was given to the Police, the same bears signature of her daughter Shalini at point 'A' each as she had seen her writing and signing being her daughter, in her life time. The same is Ex. PW6/A (running into three pages).
During her crossexamination PW6 - Smt. Kusum has negated the suggestion that she used to visit the inlaws of Shalini after taking her dinner or that similarly, inlaws family of Shalini also used to visit their house or that her daughter Shalini had told her that she did not like accused Sandeep but was liking Sanjeev or that her daughter was not tortured and harassed by accused persons for demand of dowry or that her daughter did not want to live with Sandeep or that she is deposing falsely.
Page 89 of 152 90 FIR No. 399/02
PS - Prashant Vihar Inspite of incisive crossexamination of PW4 - Sh. Om Pal Malik and PW6 - Smt. Kusum, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard (Ref. Raju @ Balachandran & Ors V/s State of Tamil Nadu 2012 XII AD (S.C.)1) their testimonies are found to be natural, clear, cogent, corroborative, consistent, reliable and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
Now let the testimonies of PW13 - Devender Gupta and PW15 - Surya Kant Sharma, who are the witnesses to the recovery in the presence of the complainant (PW1 - Shalini Malik, since deceased) be perused and analysed.
PW13 - Devender Gupta has deposed that he was residing at House No. 83, Nimri Colony, Phase - II, Delhi and was working as Government Contractor. On 08/08/2002, he had gone to see his house Page 90 of 152 91 FIR No. 399/02 PS - Prashant Vihar No. G5/8, in Sector - 11, Rohini which was under construction. When he was passing through near house No. G3/3738, Sector - 11, Rohini, at that time, he had seen Police officials standing in front of House No. G3/3738. At that time, Police officials had requested him to join the investigation as some recovery was to be effected from the said house. On the request of Police officials, he joined the proceedings At that time, the aforesaid house was found locked. One person was called by the Police to open the lock, whose name I do not remember now and he opened the lock of aforesaid house. At that time, one Surya Kant and husband of complainant were also present there. The lock was opened in their presence. At that time, complainant Shalini was also present there. In their presence, the dowry articles were recovered from that house, as per list. Same were taken into possession by the Police vide seizure memo Ex. PW1/J, which also bears his signature at point 'C'. At that time, complainant Shalini had taken out three chunnis from the almirah. Police prepared the pullinda of these chunnis and sealed the same with the seal of 'VK' and took the same into possession vide seizure memo Ex. PW1/K, which also bears his signature at point 'D'. Thereafter, they came out from the house and the main gate was locked with the new lock Page 91 of 152 92 FIR No. 399/02 PS - Prashant Vihar and keys were handed over to one neighbour, whose name he does not remember. His statement was recorded by the IO. He also identified the chunnis of green and blue, red and ferozi colour which are Ex. P1 to P3.
PW15 - Surya Kant Sharma deposed that on 08/08/2002, he was passing through House N. G3/38/39, Sector - 11, Rohini. He saw the gathering in front of that house. Police persons were also there and those Police persons asked him to join the proceedings and thereafter in his presence, one key maker, who was a Sikh gentleman, whose name he does not remember, has opened the main gate of the aforesaid house. One Devender Gupta, who was his friend has also joined the proceedings. After the gate was opened by the key maker, in his presence, Police had recovered the dowry articles as per list at the instance of Shalini, which were taken into possession by the Police. Thereafter, from the wall almirah, near the bed room, three chunnis were taken out by the Police at the instance of Shalini. Regarding those chunnis, Shalini had told that she was tied with the bed with the help of those chunnis. The chunnis were sealed in a pullinda with the seal of 'VK'. Seal after use was handed over to Sh. Om Pal Malik. The sealed Page 92 of 152 93 FIR No. 399/02 PS - Prashant Vihar pullinda wa seized vide memo Ex. PW1/K, which bears his signatures at point 'C'. After that, the house was locked with a new lock. After locking the main gate, the key was handed over to the neighbour of accused Sandeep. He had also signed the seizure memo of the recovered stridhan articles, which is Ex. PW1/J and bears his signatures at point 'D'. His statement was also recorded by the Police. He also identified the three chunnis which are Ex. P1 to P3. He deposed that he cannot identify the stridhan articles recovered in his presence due to lapse of time.
The testimonies of PW13 - Devender Gupta and PW15 - Surya Kant Sharma have been corroborated by PW4 - Sh. Om Pal Malik, father of the prosecutrix, PW9 - Constable Amit Kumar, PW16 - SI Vinod Kumar IO as well as by PW14 Kishan, the key maker. There is nothing in the crossexamination of PW13 - Devender Gupta and PW15
- Surya Kant Sharma so as to impeach their creditworthiness. They have withstood the test of crossexamination without being shaken. On careful perusal and analysis their testimonies are found to be clear, cogent, convincing, inspiring confidence and having a ring of truth. Page 93 of 152 94 FIR No. 399/02
PS - Prashant Vihar There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
20. While analysing the testimony of PW1 Shalini Malik, PW4
- Sh. Om Pal Malik and PW6 - Smt. Kusum as discussed hereinabove inspite of incisive crossexamination of PW1 Shalini Malik, PW4 - Sh. Om Pal Malik and PW6 - Smt. Kusum nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1 Shalini Malik that after the marriage till 30th June, the 'dadi' of Sandeep remained at matrimonial home as she was ill or that the 'chacha' and tau of accused Sandeep used to come daily during the said period to the matrimonial home to make enquiries about the health of 'dadi' Vol. They all had come on 10th for her 'munhdikhai' or that Kamla used to do the washing of utensils and cleaning of the house during the entire time she had lived in the matrimonial home or that on several occasions her parents had shared dinner with her inlaws or that they used to visit her matrimonial home during their after dinner stroll or that the accused and she used to take a after dinner stroll upto her parental house on occasions Page 94 of 152 95 FIR No. 399/02 PS - Prashant Vihar or that she and Sandeep used to go for outings and for picnics outside Delhi or that the photograph Ex. PW1/DO has been taken inside the building at Pinjore Gardens or that the photograph Ex. PW1/DP was taken on the way to Mansa Devi temple or that the photograph Ex. PW DQ was taken at Pinjore Garden gates or that she alongwith Sanjeev, Sandeep and her motherinlaw had stayed overnight at the house of Geeta Mausi, at Chandigarh in 2002 or that the dadi of Sandeep was at her matrimonial home even on 30/06/2002, the suggestions to PW4 - Sh. Om Pal that he cannot tell the exact address of the clinic, medicine and Doctor as he never visited there alongwith his daughter being imaginary names or that his daughter was in a fit condition to give statement or lodge FIR before the Police on 30/06/2002 itself or that between this period he had been making efforts to send his daughter Shalini with accused Sandeep or that due to the failure of sending his daughter with Sandeep his daughter lodged this complaint at his instance or that his daughter never used to like her husband Sandeep and it was a matter between the husband and wife but he (PW4) gave colour to the same by adding the fake allegations of rape and dowry demand etc. or that he alongwith family has been visiting the matrimonial home of his Page 95 of 152 96 FIR No. 399/02 PS - Prashant Vihar daughter between 09/05/2002 to 30/06/2002 sometimes on lunch or sometimes on dinners and has been calling the accused persons to his house also or that his daughter had no problem while living with her in laws but was not doing well with her husband or that no rape was committed upon his daughter by the accused persons, as alleged or that Shalini was having cordial relations with Sanjeev Solanki (Dewar) or that list of articles given by them is false or that list of articles shown by them do not relate to them and it related to the accused or that the Maruti Zen car which he is claiming to have been given to the accused was always under his (PW4) possession or that he was going on tours by the same vehicle Vol. This vehicle used to remain with the accused and whenever the service was required then the vehicle was used to (be) send (sent) to him by the accused. Once upon a time on 24/06/2002, he had taken this car to Hariwar and stayed there at Mahajan Bhawan or that at that time accused Sandeep Solanki, his daughter Shalini and his wife were with him at the above address (Mahajan Bhawan) Vol. His daughter Akansha, his son Nishant and his wife were with him or that by end of May, 2002, examination of his children were over or that the Maruti Zen car was with him and he had parked the same in front of the house of Page 96 of 152 97 FIR No. 399/02 PS - Prashant Vihar accused persons on 08/08/2002 at about 8:00 a.m. or that no such list (list of articles) was prepared by him at the time of marriage or that he had requested the IO that the list of articles will be prepared and handed over to the IO in 07/08/2002 or that he went to the PS on the said Maruti Zen Car from his house and thereafter went to the house of accused on the said car and from there he returned with the same car to his house or that the said Maruti Zen Car was never parked before the house of accused persons or that no chunnies were recovered or sealed from the house of accused or that the articles recovered from the house of accused were belonging to the accused or that the names of the witnesses are Surya Kant and Devender Gupta and both are contractors on MCD or that these two witnesses were awarded tender supervised by him (PW4) or that the said two witnesses were invited guests in the marriage of his daughter or that the said two persons were having family relations with them or that said witnesses signed the seizure memos at his asking or that he has filed a false case or that he had been waiting for accused Sandeep to take his daughter and when the matter was not materialized then with ulterior motive he lodged this fake FIR or that he is deposing falsely or that no rape was committed nor any harassment was caused to Page 97 of 152 98 FIR No. 399/02 PS - Prashant Vihar his daughter or that no articles were given in dowry to the accused and the suggestions to PW6 - Smt. Kusum that she used to visit the inlaws of Shalini after taking her dinner or that similarly, inlaws family of Shalini also used to visit their house or that her daughter Shalini had told her that she did not like accused Sandeep but was liking Sanjeev or that her daughter was not tortured and harassed by accused persons for demand of dowry or that her daughter did not want to live with Sandeep or that she is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
21. Learned Counsel for the accused submitted that the evidence of PW4 Sh. Om Pal Malik and PW6 Smt. Kusum, the parents of the deceased complainant is a hearsay evidence. He further submitted that it is an admitted fact by the prosecution that none of the accused ever demanded any kind of dowry from the parents of the deceased Shalini nor the prosecutrix ever demanded any dowry from her Page 98 of 152 99 FIR No. 399/02 PS - Prashant Vihar parents at the instance of the accused persons in her life time. Admission made by O. P. Malik which is being reproduced (it is correct that I am not an eye witness of the incident of rape and dowry demand or subsequent harassment from 09/05/2002 to 30/06/2002. The entire facts have been told to me by my daughter on 30/06/2002 p.8 of cross on 26/07/2010 by O. P. Malik). He further submitted that the prosecutrix was never harassed for non fulfillment of dowry demand by any of the accused persons in his presence or in the presence of his wife at any point of time. The statement given by the witnesses is the effect that their daughter Shalini Malik told them that she was raped and was subjected to harassment by the accused persons for not bringing dowry. This evidence is completely a hearsay evidence and is hit by the provisions of section 32 (1) and Section 60 of Evidence Act and is not admissible in evidence and even the statement of the witnesses does not inspire confidence as the statement, though on oath, but is not admissible in evidence. He further submitted that whatever the prosecutrix had told them is also not admissible in evidence because "statement of a dead person is admissible in law if statement is as to cause of death or as to any of circumstance of transaction which resulted in her death, in a case Page 99 of 152 100 FIR No. 399/02 PS - Prashant Vihar in which cause of death comes into question." And "as such, evidence of PWs about statement attributed to deceased cannot be used as evidence for recording conviction under section 498A" as held by the Hon'ble Supreme Court while deciding a criminal appeal No. 1124 of 2009, Bhairon Singh Versus State Of Madhya Pradesh 2009 (3) LRS 205 (SC).
On careful perusal and analysis of the testimonies of PW4 - Om Pal Malik and PW6 - Smt. Kusum, parents of PW1 - Shalini Malik/complainant, as reproduced, discussed and analysed herein above, the same are found to be clear, cogent, corroborative, consistent, reliable and having a ring of truth and they have deposed on the facts which were disclosed to them, relating to the crime shortly after the incident by their daughter PW1 - Shalini Malik on 30/06/2002, on the first available opportunity when she had come in chappal in her foot in a very disturbed condition wearing no mangal sutra to their house, being relevant u/s 6 & 8 of the Indian Evidence act, 1872.
Learned Counsel for the accused has referred to the case Bhairon Singh Versus State Of Madhya Pradesh 2009 (3) LRS 205 (SC). I have carefully gone through the same. With due respect, the same is Page 100 of 152 101 FIR No. 399/02 PS - Prashant Vihar distinguishable in view of the peculiar facts and nature of the evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that there is an unexplained delay on the part of the prosecution. He submitted that as per the statement of Om Pal Malik and Kusum Malik, Shalini Malik left the house of the Inlaws on 30th June 2002 and told her mother about the alleged harassment and the rape committed upon her repeatedly by the Juvenile, Sanjeev Solanki. He further submitted that it is also the statement of the PW4 Om Pal Malik that on the same day i.e. half an hour of reaching of the prosecutrix the accused persons also reached to Page 101 of 152 102 FIR No. 399/02 PS - Prashant Vihar his house after Shalini reached. There is no admissible, cogent and reliable explanation as to why Om Pal Malik did not call the police at the spot when all the accused were present there or did not report the matter to the police till 5th of August, 2002. He further submitted that Om Pal Malik has tried to establish that he did not go to the police because he wanted to examine his daughter medically and treat her by the doctor. He further submitted that it is also unbelievable that PW4 Om Pal Malik took his daughter to the reputed doctors of Hiteshi Nursing Home and the Doctor from Apollo Hospital and told all about what has been alleged in the present FIR but none of the doctors either sent them to the Government Hospital nor called the police nor recorded MLC with the alleged history of rape, meaning thereby that Om Pal Malik and his daughter did not go to the doctors with the alleged history of rape. He further submitted that more than this is that despite the passage of 35 days, he did not provide the police/IO, with any kind of treatment papers of Shalini despite the fact that he met the IO several times nor he recorded his statement that his daughter was being treated by any such doctor as stated by him in the statement recorded before this Court.
I have carefully perused and analysed the evidence on Page 102 of 152 103 FIR No. 399/02 PS - Prashant Vihar record.
It is well settled that different persons act and react differently in a given situation.
It is also well settled that the powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
PW4 Ompal Malik has explained that he did not report the matter to the police, as he wanted to examine his daughter medically and treat her by the doctor as she was in a very disturbed mental condition. Nothing more can be read in his such explanation.
Nonproduction of the documents of the medical treatment of PW1 Shalini Malik doesn't falsify the testimony of PW4 Ompal Malik despite searching crossexamination. However, as regards the theory of nonproduction of medical record of PW1 Shalini Malik as propounded by the learned counsel for accused, I will discuss it in the later part of the judgment.
PW4 Ompal Malik, father of PW1 Shalini Malik, in his Page 103 of 152 104 FIR No. 399/02 PS - Prashant Vihar crossexamination has specifically deposed that "On 30/06/2002, my daughter Shalini came along (alone), without Chappal in her foot in lunch time at my residence in a very disturbed condition. She was not wearing her Mangalsutra also".
The said factum of coming of PW1 Shalini in the lunch time on 30/06/2002 to her parental house has not been disputed by the accused, either in the lengthy crossexamination of PW4 Ompal Malik or in the cross examination of PW6 Smt. Kusum, mother of PW1 Shalini Malik. Moreover, PW6 Smt. Kusum in her crossexamination has specifically deposed that "All the family members were present in my house, when my daughter Shalini came to my house on 30/06/2002".
PW6 Smt. Kusum during her crossexamination recorded on 28/02/2011 has also specifically deposed that "On 30/06/2002, Shalini Malik came to our house. She was very much upset and was mentally disturbed".
The factum of marriage between PW1 Shalini Malik and the accused Sandeep on 09/05/2002 has not been disputed by the accused. Page 104 of 152 105 FIR No. 399/02
PS - Prashant Vihar Sight cannot be lost of the fact that he (PW4 Ompal Malik) was the father of a daughter / PW1 Shalini Malik (since deceased), whose marriage had not even completed two months, which was solemnized on 09/05/2002, with accused Sandeep and within two months of such marriage, his daughter had come to her parental house in a disturbed condition, having no Chappals in her feet and wearing no Mangal Sutra.
During his crossexamination, PW4 Om Pal Malik recorded on 26/07/2010, has categorically deposed that : "It is correct that I had not contacted the police between 30/06/2002 to 05/08/2002 i.e the date of registration of FIR. I did not call police at no. 100 or to approach any police station despite the fact that accused persons were present in my house on 30/06/2002 and asked me to finish the matter. The accused persons remained at my house on 30/06/2002 for about two hours. My daughter had already told me all the misdeeds committed by the accused persons prior their reaching at my residence and despite that I allowed them to go.
Q. When did you think about registration of FIR against the accused persons?
Ans. I did not take any action as first I wanted to save my daughter who was very scared and depressed thereafter I thought of lodging the FIR." Page 105 of 152 106 FIR No. 399/02
PS - Prashant Vihar PW4 Ompal Malik during his crossexamination recorded on 26/07/2010 after lunch has specifically deposed that: "On 30/06/2002, I did not ask my daughter Shalini to lodge the complaint against the accused persons. My daughter was frightened and was not willing to have a talk with anybody except me and my wife. She was continuously weeping. I was alright at that time. I had not lodged the compliant but it was my daughter who had lodged the complaint."
PW4 Ompal Malik during his crossexamination recorded on 26/07/2010 has specifically deposed that : "Doctor had declared my daughter normal on her treatment papers. Only then her statement was recorded and case was registered. The treatment was completed by 04/08/2002 Vol. However they had prescribed the further medicine for about 1 year".
In view of above and in the circumstances, the delay in reporting the matter to the police on 05/08/2002 has been sufficiently and satisfactorily explained by the prosecution.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station Page 106 of 152 107 FIR No. 399/02 PS - Prashant Vihar and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder Vs. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate Page 107 of 152 108 FIR No. 399/02 PS - Prashant Vihar somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that Page 108 of 152 109 FIR No. 399/02 PS - Prashant Vihar ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that the conduct of PW4 Om Pal Malik and PW6 Smt. Kusum is quite abnormal and Page 109 of 152 110 FIR No. 399/02 PS - Prashant Vihar unnatural. He submitted that Om Pal Malik, has been thoroughly cross examined by the defence on various points but this witness has tried to misguide and has tried to put a new story apart from what has been recorded by him in his statement u/s 161 Cr.P.C. He submitted that the witness is the Asstt. Engineer and has been residing in Delhi and is quiet acquainted with the system, rather in a position to control the system, but did not call the police when his daughter came to his residence and complained of a very serious offence i.e. rape. He further submitted that normally a father, after hearing the incident of rape with his own daughter would never sit with the rapist of his daughter and have dialogue with them but Om Pal Malik is not only talking with the rapist but allows them to go scot free and does not lodge any complaint against them for more than 35 days. Thus the conduct of Om Pal Malik is quiet abnormal and unnatural conduct. (But when he lodges the complaint/FIR against the accused persons then the allegations are so filthy that a common man will read them hesitantly). He further submitted that the natural conduct of a common person in these circumstance is always will be to call the police at no. 100, call the neighbours, friends or relatives for apprehending the accused persons and to hand them over to the Page 110 of 152 111 FIR No. 399/02 PS - Prashant Vihar police but none of the above, which negatives the reality of the allegations. Secondly, when this witness has got his daughter medically examined, then what prevented him to hand over the medical examination documents to the IO. He further submitted that the most surprising fact is that this witness got medically examined his daughter from a reputed doctor after reference by another reputed doctor but does not know the names of any of the doctors nor the name of the clinic or the hospital and the place where the hospital is situated from where the treatment of his daughter was continued till years. He further submitted that this witness has met the IO and also handed over the 1. marriage card of Shalini, 2. photographs of marriage, 3. mark sheet of Shalini, 4. list of articles of istridhan which was prepared by Shalini, later on, and various other documents and supplementary statements to the IO between 6th Aug 2002 to 8th Aug 2002 (I met the IO for the purpose of giving the documents like marriage card, mark sheets etc. two times. At that time complete documents of treatment by all the doctors were in my possession and this fact I had told to the IO). He further submitted that not a single medical record relating to the medical examination of the prosecutrix has been given by this witness who is the father of the Page 111 of 152 112 FIR No. 399/02 PS - Prashant Vihar prosecutrix and has been fighting with tooth and nails against the accused persons since 5th August, 2002 but did not produce the medical records of the treatment of his own daughter since 30th June, 2002 till 4th August, 2002 before the IO on 5th August, 2002. The IO who is PW16 had made the statement in the cross "I had made inquiries as to why complaint was given late and they had told that they were under threat as had already explained the same in the complaint". (page 8 para 2 last 3 lines of the crossexamination). He further submitted that PW4 Om Pal Malik has admitted and stated on oath that his daughter was firstly taken to Hitaishi Nursing Home which is in his neighbourhood and this doctor referred his daughter to another Hospital which is in South Delhi and treated his daughter and on 4th of August, 2002 declared his daughter as fit but Om Pal Malik as stated and explained above did not produce the vital and important documents. He further submitted that when asked as to why he i.e. Om Pal Malik did not lodge the report to the police then the witness stated "my daughter was frightened and was not willing to have a talk with anybody except me and my wife. She was continuously weeping. I was alright at that time. I had not lodged the complaint but it was my daughter who had to lodge the complaint." He referred to the Page 112 of 152 113 FIR No. 399/02 PS - Prashant Vihar cases and are reported as Badam Singh Vs. State of M.P. (2003) 12 SCC 792; Tajinder Singh @ Kaka Vs. State of Punjab 2013 V AD (S.C.)1; Daya Shankar Vs. State of Delhi 2011 (2) JCC 1249 & Digamber Vs. State of Maharashtra 2013 (2) BomCR (Cri.) 450.
I have carefully perused and analysed the evidence on record.
It appears that the learned counsel for the accused has either misread or not read the evidence on record while propounding the theory of abnormal and unnatural conduct of PW4 Ompal Malik; the theory of nonproduction of medical record of PW1 Shalini Malik and the theory of delay in making the complaint by PW1 Shalini Malik to the police.
Undisputably, PW4 Ompal Malik is the father of PW1 Shalini Malik (since deceased) whose marriage was solemnized with accused Sandeep on 09/05/2002.
Sight can not be lost of the fact that on 30/06/2002 PW4 Ompal Malik was facing his daughter (PW1 Shalini Malik) who had come alone at his residence without chappal in her foot, in a very disturbed condition and also not wearing her Mangal Sutra, whose Page 113 of 152 114 FIR No. 399/02 PS - Prashant Vihar marriage had not even completed two months. In such a situation, what normal and good conduct could be expected from the father (PW4 Ompal Malik) or from the mother (PW6 Smt. Kusum), for such an unfortunate girl (PW1 Shalini Malik).
During his crossexamination, PW4 Ompal Malik recorded on 26/07/2010 has categorically deposed that: "It is correct that I had not contacted the police between 30/06/2002 to 05/08/2002 i.e the date of registration of FIR. I did not call police at no. 100 or to approach any police station despite the fact that accused persons were present in my house on 30/06/2002 and asked me to finish the matter. The accused persons remained at my house on 30/06/2002 for about two hours. My daughter had already told me all the misdeeds committed by the accused persons prior their reaching at my residence and despite that I allowed them to go. Q. When did you think about registration of FIR against the accused persons?
Ans. I did not take any action as first I wanted to save my daughter who was very scared and depressed thereafter I thought of lodging the FIR."
During his crossexamination, PW4 Ompal Malik recorded on 26/07/2010 has further specifically deposed that: "She was provided treatment and her counseling was also done. This fact of lodging the FIR after delay was also inquired by the IO to whom I gave the same reply as mentioned above. IO did not ask any Page 114 of 152 115 FIR No. 399/02 PS - Prashant Vihar medical documents pertaining to the treatment of my daughter. She was under the treatment of a doctor at South Ex. I cannot tell the name and details of the doctor as the documents of her treatment have been destroyed due to the fire at my residence on 20/06/2007. We used to go to the doctor at the interval of 1520 days initially. The doctor had diagnosed that she was under threat and depression. The doctor from whom the treatment was going on was not known to me. I myself used to bring medicines and sometimes doctor also used to give the same. I cannot tell the name of the doctor, medicine and clinic of the doctor. I do not know the exact address of the clinic of the said doctor however I can take to the clinic said doctor. It is near the south ex. Market. It is incorrect to suggest that I cannot tell the exact address of the clinic, medicine and doctor as I never visited there along with my daughter being imaginary names. Initially I took my doctor to Hiteshi Nursing Home where Dr. Maheshwari used to treat my daughter. I can produce after searching at my home if any documentary proof of the treatment taken by my daughter at Hiteshi Nursing Home from where my daughter was referred to Apollo Hospital. I took my daughter on 30/06/2002 itself to Hiteshi Nursing Home. I met IO for the purpose of giving the documents like marriage card, mark sheet etc. two times. At that time complete treatment documents by all the doctors were in my possession and this fact I had told to the IO.
Q. Did you handover the medical treatment documents to the IO or offered to him?
A. I had shown the documents to the IO but since the treatment was going on it were not taken by the IO. The apology letter written by the accused persons was also produced by me twice between 05/08/2002 to 08/08/2002 before the IO but he did not seize the same." Page 115 of 152 116 FIR No. 399/02
PS - Prashant Vihar PW4 Ompal Malik during his crossexamination recorded on 26/07/2010 after lunch has specifically deposed that : "I had lodged a report regarding catching of fire, at PS Prashant Vihar, on the same day in which it was mentioned that all the things of the house were burnt".
"On 30/06/2002, I did not ask my daughter Shalini to lodge the complaint against the accused persons. My daughter was frightened and was not willing to have a talk with anybody except me and my wife. She was continuously weeping. I was alright at that time. I had not lodged the compliant but it was my daughter who had lodged the complaint."
On careful perusal and analysis, the testimonies of PW4 Ompal Malik and PW6 Smt. Kusum, the parents of PW1 Shalini Malik (since deceased) are found to be clear, natural, reliable, corroborative, consistent, inspiring confidence and having a ring of truth. They have withstood the rigors of crossexamination without being shaken. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case. They have deposed as to what they experienced, observed and acted. Their versions on the core spectrum of the crime has remained intact.
In view of above and in the circumstances, the theory of Page 116 of 152 117 FIR No. 399/02 PS - Prashant Vihar abnormal and unnatural conduct of PW4 Ompal Malik; the theory of nonproduction of medical record of PW1 Shalini Malik and the theory of delay in making the complaint by PW1 Shalini Malik to the police so propounded by the accused falls flat to the ground.
Learned Counsel for the accused had referred to Badam Singh's case (Supra), Tajinder Singh's case (Supra), Daya Shankar's case (Supra) and Digamber's case (Supra). I have carefully gone through the same. With due respect, the same are distinguishable in view of the peculiar facts and the nature of evidence adduced in the instant case. At the cost of repetition in case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
Page 117 of 152 118 FIR No. 399/02
PS - Prashant Vihar
24. Learned Counsel for the accused submitted that the conduct of PW4 Om Pal Malik is not natural but against human behaviour. He submitted that it is worth noticeable that PW Om Pal Malik has tried to show himself complete careless of his daughter who was just married and did not care her and even did not hear her since 9 th May 2002 to 30th June 2002 (51 days) despite she was living in his neighbourhood. He further submitted that deceased was the eldest daughter of Om Pal Malik and she went first time to the house of the accused persons in her life who were completely unknown for her and it was not certain whether she would adjust herself in the family of the accused persons or not. He further submitted that as per his statement Om Pal Malik never tried to know her whereabouts nor went to the house of the accused persons. In a way, if we admit the version of the prosecution correct, then Om Pal Malik forgot his daughter or he never wanted to see her face and despite a rape committed upon his elder daughter did not inform the police. This conduct is completely against the human behaviour in the circumstances when we are talking about a normal person from Indian Society where emotions and sentiments are the prime factors and where a father spends Page 118 of 152 119 FIR No. 399/02 PS - Prashant Vihar a major portion of his hard earned money in the marriage of his daughter and sometimes also takes money on loan from others on the basis of interest also and keeps on repaying the same throughout his life. He further submitted that here we are not talking about an American or about the European Society where family ties, emotions and sentiments are not so deep as compared to our society. On the other hand Om Pal Malik is very much caring and anxious about a car, given in dowry, its maintenance and service. He further submitted that it is pertinent to mention that the car which is shown to have been seized by the police from the house of the accused persons, the same was lying with Om Pal Malik till 28th June, 2002 and Om Pal Malik was present at Haridwar along with this car. The vehicle Maruti Zen car remained with me up till 28/06/2002, page 3 dated 26/07/2010). He further submitted that what was the reason that when the accused persons did not allow his daughter to come out of the room, rather detained her in a closed room that Om Pal Malik never went to the house of the accused persons nor sent there anybody which is, admittedly at a distance of 1015 minutes walks from the house of Om Pal Malik. When this witness is crossexamined about the doctor, where he took his daughter for treatment not only one time Page 119 of 152 120 FIR No. 399/02 PS - Prashant Vihar but for about a year and this witness says "I cannot tell the name and details of the doctor as the document of her treatment have been destroyed due to fire at my residence on 20/06/2007. We used to go to the doctor at the interval of 1520 days initially..... I cannot tell the name of the doctor, medicine and the clinic of the doctor.... i can produce after searching at my home if any documentary proof of the treatment taken by my daughter at Hiteshi Nursing Home from where my daughter was referred to Apollo Hospital".
"I had cordial relations with the accused between the period 09/05/2002 to 30/06/2002. I had no reason for me and for any member of my family for not going to the house of my daughter Shalini and her Inlaws between 09/05/2002 to 30/06/2002.
"The vehicle Maruti Zen remained with me till 28/06/2002."
On 30/06/2002 I did not ask my daughter Shalini to lodge the complaint against the accused persons. My daughter was frightened and was not willing to have a talk with anybody except me and my wife. She was continuously weeping. I was all right at that time. I had not lodged the complaint but it was my daughter who had to lodge complaint." He further submitted that it is thus clear that the conduct of this witness is Page 120 of 152 121 FIR No. 399/02 PS - Prashant Vihar not natural. Though he is an A.E and is also have been the Incharge of various projects and as per PW Suryakant and Devender Gupta handles the contracts successfully and is well versed in the administration and therefore, this witness is a good manager and manages the situations very well.
I have carefully perused and analysed the entire evidence on the record.
It is not made clear by the Learned Counsel for the accused, as to what benefit he intends to reap by raising the said plea.
PW4 Ompal Malik has specifically deposed in his examinationinchief, which is reproduced and reads as under :
"The accused persons did not allow my daughter to talk on telephone on the pretext that Shalini was sleeping, or taking bath, or she has gone for outing with husband".
The said part of examination of PW4 Ompal Malik has not been challenged in his entire lengthy crossexamination by the accused persons.
Moreover, PW6 Smt. Kusum, mother of PW1 Shalini Malik during her crossexamination specifically deposed that "Inlaws Page 121 of 152 122 FIR No. 399/02 PS - Prashant Vihar of Shalini had not allowed us to talk to Shalini".
Sight cannot be lost of the fact that the marriage of Shalini Malik, PW1, the daughter of PW4 Ompal Malik and PW6 Smt. Kusum had taken place on 09/05/2002 and despite the fact that the matrimonial house of Shalini Malik was nearby, but they (PW4 and PW6) being the parents, did not think it right to visit the matrimonial house of their daughter, thinking that their visits may not be mis construed as interfering in the family affairs of the accused persons moreover, especially in view of as to what PW4 Ompal Malik has deposed in his crossexamination "I had cordial relations with the accused between the period 09/05/2002 to 30/06/2002". In the circumstances, nonvisiting the matrimonial house of PW1 Shalini Malik (since deceased) by PW4 Ompal Malik, her father, cannot be taken as unnatural and against the human behaviour, as has been attempted to be portrayed by making a futile attempt by the learned counsel for the accused.
As regards the plea of the seizure of car by the police from the house of the accused persons and that the vehicle Maruti Zen car was with PW4 Ompal Malik till 28/06/2002, it is not made clear, as to what Page 122 of 152 123 FIR No. 399/02 PS - Prashant Vihar benefit the Learned Counsel for the accused intends to reap, when PW4 Ompal Malik during his crossexamination has specifically deposed "The vehicle Maruti Zen remained with me till 28/06/2002".
As regards the plea that during the crossexamination, PW4 Ompal Malik could not tell the name and details of the doctor, although this plea has been dealt with in detail, earlier, at the cost of repetition nothing more can be read for the nondisclosure of names and particulars of the doctor/s, from where the medical treatment was made available to PW1 Shalini Malik (since deceased), when the case of the prosecution is otherwise proved by the clear, cogent and convincing evidence on the record.
As regards the plea raised by the Learned Counsel for the accused, while referring to the crossexamination of PW4 Ompal Malik, "I had cordial relations with the accused between the period 09/05/2002 to 30/06/2002. I had no reason for me and for any member of my family for not going to the house of my daughter Shalini and her inlaws between 09/05/2002 to 30/06/2002". It is not made clear as to what benefit he intends to reap by raising the said plea. Had PW1 Page 123 of 152 124 FIR No. 399/02 PS - Prashant Vihar Shalini Malik (since deceased) not come to her parental house in the afternoon of 30/06/2002, bare footed and in a disturbed condition, having no Mangal Sutra in her neck, then her parents would not have been in any position to know as to under what rigors, her daughter (PW1 Shalini Malik) was passing through and what cruelties had been perpetuated upon her by the accused persons, when they (PW4 and PW6) were not allowed even to talk on telephone to her daughter PW1 Shalini Malik at her matrimonial home. As I have discussed earlier, PW4 Ompal Malik and PW6 Smt. Kusum being the parents of PW1 Shalini Malik (since deceased) were not expected to be regular visitor to her matrimonial home in order to avoid any criticism, either from the accused persons, or from other friends and relatives on the ground that their visits may amount to interference in the family affairs of the accused persons. Moreover, PW4 Ompal Malik has candidly stated that he had no reason for him and for his any other family member for not going to the house of her daughter Shalini and her inlaws between 09/05/2002 to 30/06/2002. What reason could be expected from him, when the marriage had taken placed in recent past only on 09/05/2002 and had not even become two months old on 30/06/2002. Page 124 of 152 125 FIR No. 399/02
PS - Prashant Vihar In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
25. Learned Counsel for the accused further submitted regarding the conduct of PW16 IO SI Vinod Kumar. He submitted that as per the admission of the IO, he is quite trained and has qualified all the trainings which are necessary for becoming SI. The first step he takes is that he arrests the accused persons in the night, as admitted by him "I reached at the house of the accused persons at about 3:00 a.m. and accused persons were arrested at 4:10 to 4:00 a.m. I did not verify the criminal history of the accused persons. It is correct that I was knowing that one of the accused was a lady. I did not take permission from the concerned MM to conduct raid at the house of the accused persons in the night and to arrest them in the night. Complainant party insisted me to take action and I was also apprehending that the accused persons might escape, so I conducted the raid in the night. The raid was conducted at the direction of the SHO, I did not give any application in writing to the SHO in this respect. I had not mentioned this fact in the case diary." "I had gone there to conduct investigation. Only accused Page 125 of 152 126 FIR No. 399/02 PS - Prashant Vihar persons were arrested during investigation." while on 08/08/2002 the same IO took only one hour in taking out all the household articles, preparing list of istridhan, seizure memo and the statement of the witnesses. Learned Counsel for the accused further submitted that the conduct of the IO reflexes when he gives logic in favour of getting the house photographed. "the house was found locked from outside and we had to effect recovery and in proof of the same I had prepared the photographs but when asked why he did not take photographs of the articles recovered and the car and the witnesses then the same IO reacts "I did not ask the photographer to take the photographs of the recovered articles No photographs were taken of the car. I cannot give any reason for it. Seizure memo was prepared of each article recovered from the house of the accused but not of the key of the car. "the key of the car was brought from drawing room. Sandeep had given me the key of the car. I did not prepare any seizure memo of the key of the car. I cannot explain any reason for it. "the key after locking the door was handed over to Kamla at the instance of accused Sandeep. I did not record the statement of Kamla. I cannot tell any reason about the same". I did not call public witness Devender Gupta and Surya Kant. They were already Page 126 of 152 127 FIR No. 399/02 PS - Prashant Vihar present in the crowd and joined investigation on my request. Regarding delay caused in lodging of FIR, the witness says " I received the investigation of this case after registration of the FIR. So I did not make any enquiry as to why the report was lodged at a belated stage. But Om Pal Malik gives another description when he says " I met the IO for the purpose of giving the documents like marriage card, mark sheets etc. two times. At that time complete treatment documents by all the doctors were in my possession and this fact I had told to the IO).
I have carefully perused and analysed the entire evidence on the record.
On careful perusal of the testimony of PW16 IO SI Vinod Kumar, it is found that he has given a graphic details of the proceedings conducted by him and has also withstood the lengthy crossexamination without being shaken. However, the irregularities indicated during his cross examination that he did not give any application to the SHO for conducting the raid or did not take permission from the concerned M.M. for conducting the raid in the house of accused persons in the night and to arrest them in the night, or that no photographs of the car and of the recovered articles were taken, or that no seizure memo of key of car was Page 127 of 152 128 FIR No. 399/02 PS - Prashant Vihar prepared or that he did not record the statement of Kamla, are merely the lapses which reflect on the investigation but do not reflect upon the substantive evidence and probative value of statements of the witnesses made on material and relevant aspects and does not falsify the case of prosecution which is otherwise proved on record by the clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that the falsity of rape reflected from the statement. He submitted that when a factum of rape is disclosed to a doctor, particularly to a doctor who was practicing in the Nursing Home and a Hospital like Apollo Hospital, it is presumed and required and expected from the doctor being a Medico Legal case that the doctor will call the police or will refer the patient to the Govt. Hospital for preparation of the MLC or will prepare MLC himself and thereafter will call the police but here in this case neither the father, mother nor doctor informs the police about such a heinous offence like a rape, despite the passage of 35 days of which a father is Page 128 of 152 129 FIR No. 399/02 PS - Prashant Vihar never expected to tolerate. He further submitted that a doctor will never suggest to a rape victim and her family members to keep quiet and keep their mouth shut. Had the factum of rape been disclosed before the doctor then the doctor must had called the police or at least must had prepared the MLC of the complainant/deceased.
I have carefully perused and analysed the entire evidence on the record.
It is not made clear by the Learned Counsel for the accused as to the basis for the raising of the said plea nor has referred to the evidence of any witness on the record in this regard. Doctors, who deal with the medicolegal cases must be knowing the duties and formalities required by them to be performed.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that two independent witnesses of the locality PW13 Devender Gupta and PW15 Surya Kant Sharma were joined during the house search. He submitted that one of the search witnesses Shri Devender Gupta said "I know Om Page 129 of 152 130 FIR No. 399/02 PS - Prashant Vihar Pal Malik since the year 198485, as at that time I was working with him, later on I left his office. I am on visiting terms with Om Pal Singh, presently also. I had visited the house of Om Pal Singh at the time of marriage of his daughter and at the time of death of his daughter.... Suryakant, another witness is also known to me since the year, 2001. Suryakant was also working with Om Pal Singh", (page 3 cross examination).
Learned Counsel for the accused further submitted that as per statement by Om Pal Malik, "the independent witnesses called by the IO at the time of recovery were not known to me nor I knew their names previously. It is incorrect to suggest that the names of the witnesses were Suryakant and Devender Gupta and both were contractor on MCD. It is incorrect to suggest that these two witnesses were awarded tenders supervised by me. It is incorrect to suggest that the said two witnesses were invited guests in the marriage of my daughter. It is incorrect to suggest that the said two witnesses were having family relation with us".
As per PW15 Suryakant "I know Om Pal Malik since 2002. I was not called either by Devender Gupta or by Om Pal Malik. While I was passing through there I was called by Devender Gupta." "I Page 130 of 152 131 FIR No. 399/02 PS - Prashant Vihar had not gone to the marriage of Shalini. Again said, I do not remember whether I had attended the marriage of Shalini or not".
Learned Counsel for the accused submitted that these two witnesses were known to Om Pal Malik prior to the alleged recovery and were named as witnesses at the instance of Om Pal Malik by the IO and were not the independent witnesses rather both the witnesses were the interested witnesses therefore, their statements are neither reliable, nor admissible.
I have carefully perused and analysed the entire evidence on the record.
On careful perusal and analysis of the testimonies of PW13 Devender Gupta and PW15 Suryakant Sharma, who are the witnesses to the recovery of the case property (istridhan), from the house of the accused, the same are found to be clear, cogent, convincing and having a ring of truth.
PW13 Devender Gupta in his examinationinchief has specifically deposed that: "Earlier I was residing at House No. 83, Nimri Colony, PhaseII, Delhi and was working as Government Contractor. On 08/08/2012, I had gone to see my house no. G5/8, in Sector11, Page 131 of 152 132 FIR No. 399/02 PS - Prashant Vihar Rohini, which was under construction. When I was passing through near house No. G3/3738, Sector11, Rohini, at that time, I have seen police officials standing in front of house no. G3/3738. At that time, police officials had requested me to join the investigation as some recovery was to be effected from the said house. On the request of police officials, I joined the proceedings....."
During his crossexamination, PW13 Devender Gupta has consistently deposed that : "I was going on the road in the front of the said house, when I was called by the police to join the investigation. Police had told me about the facts for which I was asked to join investigation".
PW15 Suryakant Sharma in his examinationinchief has specifically deposed that on 08/08/2002 he was passing through H. No. G3/3738, Sector 11, Rohini. He saw the gathering in front of that house. Police persons were also there and those police persons asked him to join the proceedings. One Devender Gupta who was his friend has also joined the proceedings.
During his crossexamination, PW15 Suryakant Sharma has specifically deposed that accused Sandeep also remained with the police during these proceedings.
Page 132 of 152 133 FIR No. 399/02
PS - Prashant Vihar Even if, it is taken for the sake of arguments that PW13 Devender Gupta and PW15 Suryakant Sharma were the known persons of PW4 Ompal Malik, Learned Counsel for the accused has failed to show, as to how and in what manner, the proceedings of the recovery of the case property (istridhan) have been vitiated. There is nothing in the crossexamination of PW13 Devender Gupta and PW15 Suryakant Sharma so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that the factum of recovery on 08th August, 2002 is false. He submitted that the recovery shown to have been effected on 08th Day of August, 2002, in fact, was effected on 6th Day of August, 2002 as is clear that the IO remained in the house of the Accused for three hours and what he claims is to arrest the accused only and on 08th August 2002 he claims that he remained at Page 133 of 152 134 FIR No. 399/02 PS - Prashant Vihar the spot only for one hour and recovered the complete household articles, made the list of recovered articles, recorded the statement of various search witnesses and the complainant and her father, sealed the articles, made various seizure memos, loaded them in the temp. Practically, it is quite adverse because it must have taken at least three hours and the arrest of the accused persons on 06th August, 2002 could be effected within an hour only. So the recovery shown to have been effected on 08th August, 2002 is completely false.
I have carefully perused and analysed the entire evidence on the record.
I have carefully gone through the seizure memo of the Istridhan dated 08/08/2002 Ex. PW1/J and the seizure memo of the Chunnis dated 08/08/2002 Ex. PW1/K as well as the testimonies of PW4 Ompal Malik, PW15 Suryakant Sharma, PW13 Devender Gupta, PW9 Constable Amit and PW16 SI Vinod Kumar, IO. There is nothing in their statements to suggest that the recovery of the articles was not made in accordance with the seizure memos Exs. PW1/J and PW1/K, both dated 08/08/2002.
Learned Counsel for the accused failed to show any Page 134 of 152 135 FIR No. 399/02 PS - Prashant Vihar material/evidence on the record to substantiate his plea so raised.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
29. Learned Counsel for the accused submitted regarding the admissions made by PW4 Om Pal Malik. He submitted that Om Pal Malik is the father of the prosecutrix (deceased). In his chief examination on oath before the Court and statement made to the police this witness has categorically stated that his daughter was never allowed to have a talk with her parents and also that neither he i.e. Om Pal Malik nor any member of his family ever contacted with the accused persons but surprisingly admitted that the car, which was given by him to his daughter in dowry on 09th day of May, 2002, was handed over to him on 24th June, 2002 and remained with him till 28th June, 2002 and also admitted that he went to Haridwar on 24th June, 2002 alongwith two males and 2 females and also admitted the various photographs of his daughter with the juvenile and other accused in a very happy and pleasant atmosphere alongwith various other relatives and the photographs related to the places outside of Delhi i.e of Pinjore and Page 135 of 152 136 FIR No. 399/02 PS - Prashant Vihar Mansa Devi, Rock Garden and other places.
I have carefully perused and analysed the entire evidence on the record.
The said plea so raised has been discussed in detail herein before and does not call for any further discussion. However, at the cost of repetition, PW4 Ompal Malik during his crossexamination has specifically deposed, "The vehicle Maruti Zen car remained with me till 28/06/2002". PW6 Smt. Kusum, mother of PW1 Shalini Malik (since deceased) during her crossexamination has negated the suggestion that accused Sandeep and Shalini also accompanied with them to Haridwar.
The relevant part of crossexamination of PW6 Smt. Kusum reads as under : "It is incorrect to suggest that accused Sandeep and Shalini also accompanied with them to Haridwar".
It is also to be noticed that statements of accused persons recorded U/s 313 Cr.PC are totally silent on the aspect regarding which suggestion has been put to PW6 Smt. Kusum that accused Sandeep and Shalini had also accompanied them (PW6 Smt. Kusum), which she negated as reproduced hereinabove.
Page 136 of 152 137 FIR No. 399/02
PS - Prashant Vihar In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
30. Learned Counsel for the accused submitted that man can tell a lie but the circumstances never. He submitted that the witness has admitted and recognized all the photographs of his daughter exhibited as Ex. PW1/DG to PW1/DP which relate to several places and on several and different occasions in which the prosecutrix is very much comfortable, rather happier than ever with the accused persons. The witness has also admitted that "the vehicle Maruti Zen remained with me up till 28/06/2002" and has even traveled up to Haridwar by the same car which he has alleged was lying with the family of the accused persons. The distance between the two houses also is 10 to 15 minutes walk and cordial relations between 09th May, 2002 to 30th June, 2002 (I had cordial relations with the accused between the period 09/05/2002 to 30/06/2002. There is no reason for me and my family for not going to the house of my daughter Shalini and her inlaws between 09/05/2002 to 30/06/2002. Page 3 of the cross by O. P. Malik dated 26 th July, 2010), shows that he was regularly in touch with the accused persons and the Page 137 of 152 138 FIR No. 399/02 PS - Prashant Vihar statement that he did not hear his daughter for about fifty days is completely false and he is making the false statement due to vested interest i.e. enmity towards the accused persons. Another glaring example of false statement by this witness is that the witness took the car to Haridwar and stayed there with his wife, daughter (deceased Shalini 21 years old), accused Sandeep (who was also Major) and there were four persons i.e. two males and two females. The document was got written at the instance and signed at point 'A' by the witness is Exhibited PW1/DR (it is correct that in Ex. PW1/DR at point 'A' the address and all the information mentioned, were given by me to the author of the same. Two males and two females have been got written at my instance), but this witness gives a false explanation that he went to Haridwar with his wife, daughter Akanksha (who is admittedly was 8 years younger than his daughter (deceased Shalini) and was at that time thirteen years of rape of age), his son Nishant. Witness again admitted "I can understand the difference between the girl and the female and male and the boy. "my daughter Akanksha is 8 years younger than my daughter Shalini. Nishant is one and half year younger than Shalini".
I have carefully perused and analysed the entire evidence on Page 138 of 152 139 FIR No. 399/02 PS - Prashant Vihar the record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said pleas repeatedly, when the same have been raised earlier. However, the said pleas have been dealt with, analysed and discussed hereinabove elaborately.
Moreover, the plea raised by the Learned Counsel for the accused, that "He (PW4 Ompal Malik) was regularly in touch with the accused persons and the statement that he did not hear his daughter for about fifty days is completely false and he is making the false statement due to vested interest i.e. enmity towards the accused persons", On analysis of the entire material on the record the plea so raised is found to be selfcontradictory. No suggestions in the entire lengthy crossexamination of PW4 Ompal Malik has been put to him that he was regularly in touch with the accused persons, or that he did not hear his daughter for about fifty days is completely false, or that he is making the false statement due to vested interest i.e. enmity towards the accused persons.
Even the statements of the accused recorded u/s 313 Cr.PC are also totally silent on these aspects. In the circumstances, Page 139 of 152 140 FIR No. 399/02 PS - Prashant Vihar it appears that such plea is an afterthought and has been raised by the accused in order to save their skin from the clutches of the law.
It is also to be noticed that during the crossexamination, PW4 Ompal Malik has deposed that, "I had cordial relations with the accused between the period 09/05/2002 to 30/06/2002".
Learned Counsel for the accused is blowing hot and cold in the same breath and has failed to explain, as due to which vested interest i.e. enmity towards the accused persons, PW4 Ompal Malik is making the false statement, regarding which the plea has been raised, when PW4 Ompal Malik during his crossexamination has deposed that he had cordial relations with the accused between the period 09/05/2002 to 30/06/2002. Nor the said plea, so raised by the Learned Counsel for the accused has at all been made probable much established by any cogent evidence.
It is also to be noticed that the existence and the execution of the document Ex. CW1/A has not been disputed by the accused persons. Nor any evidence contrary to this document has been led or produced by the accused persons on the record.
Page 140 of 152 141 FIR No. 399/02
PS - Prashant Vihar As regards the plea that who went to Haridwar with PW4 Ompal Malik, Learned Counsel for the accused failed to explain as to what benefit he intends to reap by raising the said plea, however, at the cost of repetition, PW6 Smt. Kusum, mother of PW1 Shalini Malik (since deceased) during her crossexamination has negated the suggestion that the accused Sandeep and Shalini also accompanied with them to Haridwar.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
31. Learned Counsel for the accused submitted regarding the photographs taken by PW18 Harish. He submitted that the photographs allegedly taken at the instance of the IO have not been proved to the effect whether they relate to the house of the accused persons or not. He further submitted that in this regard the prosecution has examined PW18 Shri Harish S/o Sh. Motilal, who has completely denied of any knowledge of taking photographs by any of the employee of his shop while the IO has given statement to this effect that the house of accused was photographed. Thus the photographs allegedly of the house of Page 141 of 152 142 FIR No. 399/02 PS - Prashant Vihar accused persons have not been proved and therefore, are not admissible and cannot be read in evidence.
I have carefully perused and analysed the entire evidence on the record.
PW16 Vinod Kumar, IO in his examinationinchief has deposed that photographer had taken the photographs of the main gate prior to the opening of the main gate. He had collected the three photographs along with their negatives from the photographer. The photographs are Mark - 2, 3 and 4.
PW18 Harish in his examinationinchief has deposed that on 08/08/2002, he was running a photography studio in the name and style Him Studio at E2/170, Sector - 11, Rohini, Delhi. He was having 23 photographers in the shop. On 08/08/2002, some Police officials came to his shop and he sent one of the boy to take photographs as per their request and it was told to me later on by his staff as he was not present at the shop at that time. He used to reach at his shop later because of illness of his mother. He does not know of which place photographs were to be taken. He had closed the photo studio in the year, 2003. He cannot tell who was employed with him at that time and Page 142 of 152 143 FIR No. 399/02 PS - Prashant Vihar who had taken photographs on the request of the Police. He has seen three photographs already Marked - 2, 3 and 4. He can not say whether these photographs were got developed from their studio. He can not tell the name and address of the boy, who might have taken the photographs on the request of the Police.
On careful perusal and analysis of the testimony of PW18 Harish, it is found that although he was turned hostile and he did not prove the photographs Mark - 2, 3 and 4 but coupled with the testimony of PW16 SI Vinod Kumar, IO, it stands proved that on 08/08/2002, he was running a photography studio in the name and style Him Studio at E2/170, Sector - 11, Rohini, Delhi. He was having 23 photographers in the shop. On 08/08/2002, some Police officials came to his shop and he sent one of the boy to take photographs as per their request. The hostility of the said PW18 Harish doesn't falsify the case of prosecution, which is otherwise proved on the record by clear, cogent and convincing evidence.
In case Himanshu @ Chintu V/s State (NCT of Delhi) (2011) 2 SCC 36, the Hon'ble Supreme Court has held that the dependable part of the evidence of a hostile witness can be relied on. Page 143 of 152 144 FIR No. 399/02
PS - Prashant Vihar Thus it is the duty of the court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide Nissar Alli Vs The State of Uttar Pradesh AIR 1957 SC 366.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
32. Learned Counsel for the accused submitted that Om Pal Malik has improved his statement to the tune of adding a new chapter that :
a) He was threatened by the accused persons.
b) Accused persons came to his house on the same day i.e. on 30th June, 2002 within half an hour of reaching my daughter. They apologizes and gave in writing about their conduct towards my daughter which were handed over by me to the IO in the presence of Sarika Kapoor and Sh. M. L. Sharma my neighbour. They asked us to finish the matter there only and send back Shalini with them. On seeing the condition of my daughter I did not send my daughter back.
c) Documents of treatment were burnt in the fire and a police report was lodged to this effect with the police.
Page 144 of 152 145 FIR No. 399/02
PS - Prashant Vihar
d) The police did not receive the documents of treatment of Shalini Malik from him.
I have carefully perused and analysed the entire evidence on the record.
Although, this plea so raised has been dealt with in detail hereinabove. Yet at the cost of repetition, on careful perusal and analysis of testimony of PW4 - Om Pal Malik, I find that PW4 - Om Pal Malik has not made any improvement as such in his testimony as has been attempted to be portrayed by the Learned Counsel for the accused. The so called variations cannot be dubbed as improvements as the same are merely the elaborations of the statement made by the witness earlier and the information elicited from him during the crossexamination.
At the cost of repetition, it is also to be noticed that the existence and the execution of the document Ex. CW1/A has not been disputed by the accused persons. Nor any evidence contrary to this document has been led or produced by the accused persons on the record.
Moreover, the said variations dubbed as improvements do Page 145 of 152 146 FIR No. 399/02 PS - Prashant Vihar not reflect upon the substantive evidence and the probative value of the statement of PW4 Ompal Malik made on material and relevant aspects. Nor do they vitiate or negate the prosecution case which is otherwise proved on record by the clear, cogent and convincing evidence. The version of PW4 Ompal Malik on the core spectrum of crime has remained intact.
In case 'Leela Ram vs. State of Haryana (1999) 9 SCC 525', the Hon'ble Supreme Court has held that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals (Ref. Mahmood vs. State 1991 RLR 287).
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused Page 146 of 152 147 FIR No. 399/02 PS - Prashant Vihar by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Page 147 of 152 148 FIR No. 399/02
PS - Prashant Vihar Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held :
"....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be Page 148 of 152 149 FIR No. 399/02 PS - Prashant Vihar dubbed as improvements as the same may be elaborations of the statements made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
33. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 09/05/2002, marriage of PW1 Shalini Malik (since deceased) was solemnized with accused Sandeep and accused Sandeep, being the husband of PW1 Shalini Malik (since deceased) and accused Jaishree, Balbir, being motherinlaw and fatherinlaw respectively and Sanjeev (juvenile), being her Devar(brotherinlaw) being relatives of accused Sandeep treated PW1 Shalini Malik (since deceased) with cruelty on account of dowry and that on 17/05/2002 and thereafter many times in H.No. G3/3738, Sector11, Rohini, Delhi, accused Jaishree abetted Sanjeev (Juvenile) to commit rape on the person of PW1 Shalini Malik (since deceased) and in consequence of said abetment on 17/05/2002 and Page 149 of 152 150 FIR No. 399/02 PS - Prashant Vihar thereafter Sanjeev (juvenile) committed rape on the person of PW1 Shalini Malik (since deceased) in the abovesaid house and that accused Jaishree assaulted and used criminal force to the person of PW1 Shalini Malik (since deceased), intending thereby to dishonour PW1 Shalini Malik (since deceased) otherwise than on grave and sudden provocation.
I accordingly hold accused Balbir, Jaishree and Sandeep guilty for the offence punishable u/s 498A IPC. Accused Jaishree is also hold guilty for the offences punishable u/s 376/109 IPC and u/s 355 IPC and convict them thereunder.
34. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Balbir, Jaishree and Sandeep in the commission of the offence u/s 498A IPC and that of accused Jaishree also in the commission of the offences u/s 376/109 IPC and u/s 355 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent Page 150 of 152 151 FIR No. 399/02 PS - Prashant Vihar with that of innocence of accused. I, therefore, hold accused Balbir, Jaishree and Sandeep guilty for the offence punishable u/s. 498A IPC. Accused Jaishree is also hold guilty for the offences punishable u/s 376/109 IPC and u/s 355 IPC and convict them thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 17th Day of September, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi Page 151 of 152