Delhi District Court
State vs 1. Jagbir S/O Harkesh R/O H. on 6 September, 2012
425/07
06.09.2012
Pre: Ld. APP for the state.
Accused are on bail.
Vide separate judgment placed along side in the file, I acquit
accused persons namely 1.Jagbir; 2.Rajabla 3.Billoo @ Jane Alam;
4.Kuldeep; 5.Rajbir by giving them benefit of doubt for the offences
punishable u/s 365, 366, 364A, 368, 376 r/w 109 IPC. At this stage,
accused persons are directed to furnish personal bond in the sum of
Rs.10,000/ each with one surety in the like amount for the period of six
months that in case the decision is set aside in any appeal or other
proceedings they shall present themselves before the court concerned to
face further proceedings in accordance with law. File be consigned to record
room.
At this stage accused persons moved an application seeking time to
produce surety. Now, time is granted. Case be fixed for furnishing PB/SB
on .............................
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 375/1/10
Assigned to Sessions. 16.04.2008
Arguments heard on 03.09.2012
Date of order. 06.09.2012
FIR No. 425/07
State Vs 1. Jagbir s/o Harkesh r/o H.
No.345, Ward no.27, Subhash
nagar, Jind, Haryana.
2. Smt. Rajbala w/o Jagbir r/o as
above
3. Rajbir s/o Deep Chand r/o
Bagdu Kalan, PS Safidon, Distt.
Jind, Haryana.
4. Jane Alam s/o Ayub r/o
Nasbandi Colony, Ghaziabad,
UP
5. Kuldeep s/o Rajpal r/o Village
Lalhedi, PS Gannaur, Distt.
Sonepat, Haryana.
Police Station NDLS
Under Section 365, 366, 364A, 368, 376 r/w 109
IPC.
JUDGEMENT
1.Briefly facts of the case as per prosecution story are that on 12.12.07, the prosecutrix had taken a TSR for going to new Delhi Railway Station. She was to take a train. However, before she could reach the railway station, the train had already left. She intimated this particular fact to her brother 2 in law (Jija) Mohd. Aslam on phone. She further informed that she would be coming to Shahdara in TSR. However, she did not reach there. In the evening at about 8 p.m., Mohd. Aslam received telephone calls on his mobile that in case, he wanted the girl, an amount of Rs.40,000/ be paid and the girl be taken. Mohd. Aslam then lodged a report that his sister inlaw Shweta Khartoon (Zubaida) has been kdnapped. Since, from the mobile phone of Mohd. Aslam the telephone numbers of the Caller could be found out, therefore, the IO could reach the accused. The prosecutrix was recovered. In her statement, she disclosed that she had started residing with her sister. She used to take the children of her sister to Shahdara metro park. There, she had met accused Billoo (accused Jane Alam). He had tried to make friendship with her. He had asked as to whether she would marry with him or not. Accused told her that he resides in his own house in Bhajanpura. He also told that he shall keep her in that house. She and Billoo then became friends. However, he did not show his house.
2.On 12.12.2007 at about 5 p.m. , she had told her sister that she was going to the park. She had all alone gone to the park and from there to Shahdara Metro Station as she had been called by Billoo @ Jane Alam. Accused Billoo @ Jane Alam met her and took her to New Delhi Railway Station. Since, the train had already left, therefore, they had come out 3 of the railway station. She was made to sit in an Auto by accused Billoo @ Jane Alam and told that they would go to Gokulpuri where his sister resides. There, she had been left with one lady and male who had disclosed their name as Rajbala and Jagbir. From there, she was taken in a Maruti Car to Jind, Haryana. Accused Rajbala had threatened her as she wanted to force her in the prostitution. Accused Kuldeep, Wakeel and Rajbir had then raped her. They had taken the phone number of her brother in law. From the phone of accused Kuldeep, they had contacted her brotherinlaw and demanded Rs.40,000/. She had been kept in a room by accused Rajbala and Jagbir. Accordingly, accused persons were arrested and booked for the alleged offences.
3.This case was committed to the Sessions Court vide order dated 16.04.2008 for trial as it pertains to the heinous crime committed under sections 365, 366, 364A, 368, 376 r/w 109 IPC which is exclusively triable by court of Sessions. ld. Predecessor of this court after perusal of the case file and material available on record, passed a detailed order on charge vide order dated 22.05.2008.
4.Ld. Predecessor of this court ordered to frame a charge for the offence u/s 376 r/w 109 IPC against accused 1.Rajabla for facilitating co accused in commission of the main crime i.e. rape; charge for the 4 offence u/s 365/366 IPC against accused 2.Billoo @ Jane Alam; charge for the offence u/s 364A & 376 IPC against accused 3.Kuldeep; charge for the offence u/s 368 IPC against accused 4.Jagbir along with other accused persons except accused Billoo @ Jane Alam; and charge for the offence u/s 376 IPC against accused 5.Rajbir.
5.Thereafter, prosecution examined prosecution PW1 Shailender Kishore - General Dy. Medical Officer - formal witness - he medically examined accused Jagbir and Rajbir on 17.12.2007; PW2 Dr. Renu Jain, Sr. Resident - formal witness - she medically examined prosecutrix Ms. Pinki @ Subeda @ Jubeda @ Shweta Khatoon w/o Rafiq - she got exhibited the medical report as Ex.PW2/A; PW3 Sandeep - public witness - he is hostile witness - he did not support the prosecution story on any count - rather he stated that police did not record his statement - he stated that no one is present in the court who had purchased cigarette from his shop on 16.12.2007; PW4 SI Jagmal Singh - material witness being initial I.O. Of the case; PW5 ASI Ashok Kumar - formal IO of the case who arrested accused Kuldeep Singh formally on 14.01.2007 after obtaining permission from the court; PW6 Ct. Veer Pal he accompanied the IO SI Jagmal Singh on 24.12.2007 - it has been observed that his statement was recorded u/s 161 Cr. PC and the same 5 was not found on the judicial file or in the State file; PW7 Smt. Phoolmati - public witness - she is hostile witness - she did not support the prosecution case on any count - she stated that she does not know accused Rajbala nor she was arrested in her presence; PW8 HC Ashok he also accompanied the IO/ SI Jagmal Singh in investigation of this case on 16.12.2007; PW9 Ct. Ramphal he also accompanied the IO SI Jagmal in the investigation on 16.12.2007; PW10 HC Narender he has wrongly been summoned in this case due to mistake of belt number; PW11 HC Laxman - he the formal witness in respect of arrest of accused Kuldeep on 08.01.2008; and PW12 Ct. Narender he is the witness to the formal arrest of accused Kuldeep on 14.01.2008.
6.I have gone through the testimonies of all these witnesses carefully. It has come on record that on 16.12.2007, DD no.11A was received by PW4 SI Jagmal and in the meanwhile Mohd. Aslam also came at the PS to give his statement vide Ex.PW4/A, PW4 SI Jagmal made his endorsement on the same vide Ex.PW4/B and accordingly FIR No.425/07 vide Ex.PW4/C was registered Thereafter PW4 SI Jagmal Singh along with Mohd. Aslam went to Sonepat to recover prosecutrix as Mohd. Aslam informed the police that he has been receiving messages on his mobile about the confinement of prosecutrix in Sonepat but she 6 could not be traced. The caller called to give ransom money to one shopkeeper i.e. one Juicewala at Chowk Subzi Mandi, Sonepat who disclosed the name of that person as accused Kuldeep. It has also come on record from the depositions of prosecution witnesses that accused Jagvir Singh was contacted on mobile phone. From the residence of accused Jagvir Singh situated at Subhash Nagar, Haryana prosecutrix Jubaida Khatun was recovered. On 17.12.2007, PW2 Dr. Renu Jain medically examined the prosecutrix vide MLC Ex.PW2/A. On inquiry, prosecutrix Jubaida Khatun stated that she was brought in Jind, Haryana by accused Rajbala and Jagvir from Delhi. On 17.12.2007, accused Jagbir was arrested vide arrest memo, personal search memo and disclosure statement Ex.PW4/D, E and F. Accused Rajbala was also arrested vide arrest memo, personal search memo and recovery memo of prosecutrix Ex.PW4/G, H and J. Mobile phone (P2) from Rajbala and Jagvir was seized vide seizure memo Ex.PW4/K. Accused Rajbir was also arrested vide arrest memo, personal search memo and disclosure statement Ex.PW4/I, M and N. Further, perusal of the testimonies of these witnesses it has also come on record that accused Jagvir and Rajbir were got medically examined by PW1 Dr. Shailender Kishore vide MLC Ex.PW1/A and B and IO had taken the exhibits from the hospital, vide memo Ex.PW4/O, P and Q. Further, it has also come on record that accused Jane Alam was arrested vide arrest memo, 7 personal search memo and disclosure statement vide Ex.PW4/R, S and T respectively. I have gone through their crossexamination also very carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
7.After recording of the prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons pleaded that they are innocent and they have been falsely implicated. However, they did not lead any defence evidence.
8.Case was fixed for final arguments. During the course of arguments ld. counsel for the accused persons argued and submitted that accused are innocent and they have been falsely implicated in this case. All the 8 material witnesses as well as public witnesses PW3 Sandeep and PW7Smt. Phoolmati have been got declared hostile. They have not identified the accused persons as culprits. Other public witnesses are officials witnesses. ld. Counsel again submitted that the star witness Subeda @ Jubeda Khatoon and Mohd. Aslam who happens to be the complainant and victim have not been examined as they were not traceable in this case. On these grounds ld. counsel submitted that accused persons be given benefit of doubt and they be acquitted.
9.Contrary to it, Ld. APP submitted that the most material witnesses i.e. public witnesses have been won over by the accused persons. Police witnesses have correctly identified the accused persons as culprits. Ld. APP further argued and submitted that IO has got exhibited all the material documents on record. On these grounds ld. APP submitted that accused persons be convicted.
10.Having gone through the case file very carefully and arguments of ld counsel for accused and ld. APP as well. It has borne out on record that prosecution witnesses namely PW3 Sandeep who is public witness has been got declared hostile. He did not support the prosecution story on any count. He stated that police did not record his statement. He further stated that no one is present in the court who had purchased 9 cigarette from his shop on 16.12.2007. PW7 Smt. Phoolmati, another public witness has also been got declared hostile. She also did not support the prosecution case and stated that she does not know accused Rajbala nor she was arrested in her presence. Besides, having gone through the testimonies of other official witnesses I found some contradictions. It has also come on record in the deposition of PW6 Ct. Veer Pal that he accompanied the IO SI Jagmal Singh on 24.12.2007 but his statement recorded u/s 161 Cr. PC was not found on the judicial file or in the State file. I found major lacunae in the prosecution case. Moreover, star witnesses namely Subeda @ Jubeda Khatoon and Mohd. Aslam are also not traceable in this case despite all best efforts. Therefore, on the basis of testimonies of official witnesses the order of conviction cannot be recorded since it is the fundamental principle of criminal law that in case of conviction of accused the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that:
"Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man 10 would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."
In the case in hand, it has categorically come on record that most of the material / public witnesses i.e. PW3 Sandeeep and PW7 Smt. Phoolmati have been got declared hostile and they have not supported the prosecution story on any count. These contradictions falls within the domain of major contradictions and Hon'ble Supreme Court in case of Jaskaran Singh Vs State 1997 SCC (Crl) 651 observed in the following words: "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
The observations made in the aforesaid case by the Hon'ble Supreme Court are ex facie indicative of the fact that when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses. Moreover, star witnesses namely Subeda @ Jubeda Khatoon victim and Mohd. Aslam who happens to be the brotherinlaw of prosecutrix, are not traceable in this case 11 despite all best efforts were made by the State inclusive of IO/ SI Jagmal Singh vide order sheets dated 16.08.2010; 16.03.2011; 09.12.2011; 09.02.2012; 02.03.2012 and 03.04.2012. COURT OBSERVATION:
Before parting with the delivery of the judgment I would like to make a note with regard to the conduct of the IO of this case, who has not made any witness from the cell phone departments to prove call details connecting the accused persons with the alleged incident. Though this was within the discretion of Investigating Officer/ authority to make witness yet I found the preparatory and adoptive measures by the IO / authority inadequate for the collection of the evidence.
11.In light of these facts and circumstances of the case and judgments Jaskaran Singh Vs State & Vijayee Singh Vs State of UP discussed supra, I acquit accused persons namely 1.Jagbir; 2.Rajabla 3.Billoo @ Jane Alam; 4.Kuldeep; 5.Rajbir by giving them benefit of doubt for the offences punishable u/s 365, 366, 364A, 368, 376 r/w 109 IPC. At this stage, accused persons are directed to furnish personal bond in the sum of Rs.10,000/ each with one surety in the like amount for the period of six months that in case the decision is set aside in any appeal or other proceedings they shall present themselves before the court concerned to face further proceedings in accordance with law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 06.09.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 12