Delhi District Court
State vs Dev Chander on 11 August, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURT,
ROHINI COURTS : DELHI
SC No. 23/2
Date of institution of the case: 05/12/2006
Date of Decision: 11th of August, 2008
State
Versus
Dev Chander
Son of Sh. Jolly Yadav
R/o H.No. 2874, E-Block,
J.J. Colony, Bawana,
Delhi.
FIR NO. 532/2006
PS- Narela
U/s. 376/506 IPC
JUDGMENT
1. First the facts In this case, Dev Chander (accused) has been facing trial for an offence u/s. 376 IPC on the accusation levelled by the prosecutrix, his immediate neighbourer, aged about 18 years, that on 29/08/2006 at about 10.30 p.m., he took her from in front of her house, to a public lavatory, -:2:- situated at a distance, in the area of Narela, and in the darkness did commit rape on her behind the said lavatory.
The prosecutrix returned to her house and narrated the occurrence to her father. Father of the prosecutrix in turn enquired from the accused, whereupon persons from the neighbourhood gathered there and gave him beatings.
Present case was registered on the statement made by the prosecutrix on the night intervening 29/30.08.2006. Therein, she further stated that when she tried to raise hue and cry, the accused shut her mouth by placing his hand over it and also threatened to kill her.
The prosecutrix made aforesaid statement before SI Yashpal, who happened to reach Maharishi Balmiki Hospital after having come to know on reaching the spot that the prosecutrix and the accused had been removed to hospital. DD No. 74 B is stated to have been registered at the police station on the basis of which SI Yashpal happened to reach the spot and then to the hospital.
As per prosecution version, father of the prosecutrix called PCR. PCR staff reached the house of the -:3:- prosecutrix and them removed the prosecutrix and the accused to Maharishi Balmiki Hopsital where both of them were medico legally examined.
Constable Satish Kumar and lady Constable Santro are stated to have collected sealed parcels from the doctor after medico legal examination of the accused and the prosecutrix. After registration of the case, lady Sub Inspector Sushila Rana took up investigation of the case, reached the hospital and then at the spot. At the spot, rough site plan of the place of occurrence was prepared.
During investigation, statement of the prosecutrix U/s. 164 CrPC is stated to have been got recorded. Sealed parcels were sent to CFSL Kolkatta for analysis.
After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session.
2. Charge Prima facie case having been made out, charge for an offence U/s. 376 IPC was framed against the accused on 18.05.2007. Since the accused pleaded not guilty and -:4:- claimed trial, prosecution was called upon to lead evidence.
3. Prosecution Evidence In order to prove its case, prosecution examined following witnesses:
Prosecutrix has stepped into the witness box as PW4; her sister as deposed in court as PW6 whereas their father has appeared as PW3.
Medical evidence is available in the statements of PW1 Dr. N. Masand,who medico legally examined the prosecutrix and referred her to Gynae department, and also prepared MLC in respect of the accused; and PW2 Dr. Sanjay Kakkar, who has prepared report Ex. PW2/A regarding bone age of the prosecutrix as on 02/09/2006.
PW5 HC Harkesh Singh has been examined to prove recording of FIR Ex. PW5/A. PW7 SI Sushila Rana, PW9 HC Rajbir, PW10 Inspector Yashpal, PW11 lady Constable Santro and PW12 Constable Satish have deposed about investigation part of prosecution story.
PW8 Sh. Digvinay Singh, learned Metropolitan -:5:- Magistrate, has been examined to prove recording of statement of the prosecutrix U/s. 164 CrPC.
CFSL report Ex. PX has also been tendered into evidence.
4. Defence Plea When examined U/s. 313 CrPC, the accused has admitted that he is immediate neighbourer of the prosecutrix, but he has denied all other incriminating circumstances appearing in evidence against him.
Plea put forth by the accused reads as under:
"I was sleeping at my house. At about 10:30/11 p.m., father of the prosecutrix came to my house and started pulling me out. 3/4 other persons were also present there. I enquired from father of the prosecutrix as to why he was pulling me out of the house. He replied that I had teased his daughter. I denied this allegation. A scuffle took place between me and father of the prosecutrix. More persons gathered there. I was given beatings. Police reached there. I was then taken to hospital. Then I was falsely implicated in this case......
.... I was putting up in the house adjoining the house of the prosecutrix, with my wife and four children. Quarrel used to take place between my children and the -:6:- brothers and sisters of the prosecutrix. When I used to return home at about 8/9 p.m. family members of the prosecutrix used to lodge complaint with me regarding quarrel by my children. Accordingly, verbal wrangle used to take place between me and father of the prosecutrix. About ten days prior to the registration of this case, I sent my wife and my children to my native place in Bihar to avoid any kind of quarrel between my children and brothers and sisters of the prosecutrix."
Despite opportunity, accused opted not to lead any evidence in defence.
5. Arguments heard. File perused.
6. Discussion Learned Addl. PP has contended that case of the prosecution stands duly established from the statements of the prosecutrix, her father, medical evidence coupled with the statements of the investigating officers, and as such accused is liable to convicted and sentenced.
Occurrence is alleged to have taken place on 29/08/2006 at about 10.30 p.m. Present case was registered on the statement of the prosecutrix at about 4.00 a.m. at Maharishi Balmiki Hospital. On the basis of ruqqa dispatched from the hospital at 4.00 a.m. FIR Ex. PW5/A came to be -:7:- recorded at 4.45 a.m. It is in the statement of PW10 Inspector Yashpal-then SI, that after receipt of the information vide DD No. 74B, he accompanied by Constable Satish reached H.No. 2873, E-Block, J.J. Colony, Bawana, at about 12.15 a.m. and having come to know that prosecutrix and the accused had already been removed to Maharishi Balmiki Hospital, he and the Constable reached the hospital, collected MLCs and then recorded statement of the prosecutrix which is Ex. PW4/A. The Inspector further stated that ruqqa was dispatched from the hospital through Constable Satish at about 4.00 a.m. Statement of PW10 regarding his departure in the company of Constable Satish from the police station finds corroboration from documentary evidence which is in the shape of DD No. 74B - Ex. PW10/A.
7. Name of accused not recorded in first information given to police Learned Amicus Curiae has contended that prosecution has failed to establish commission of any rape on the prosecutrix. In this regard, learned Amicus Curiae has referred to contents of DD entry No.74-B - Ex. PW10/A -:8:- wherein name of the accused does not find mention. As submitted by learned Amicus Curiae, had the accused subjected the prosecutrix to rape, his name must have figured in DD No. 74-B Ex.PW10/A and that since it does not find mention therein it becomes doubtful that she was subjected to rape by accused.
As per contents of Ex.PW10/A, information was received at PS Narela at 11.40 p.m. to the effect that daughter of the informant was being subjected to wrong act. Case of the prosecution is that this information was given by the father of the prosecutrix to the PCR and the PCR passed on this informant to local police. Father of the prosecutrix has stated in court to have informed the PCR staff. But there is nothing in DD No.74-B recorded at 11:40 p.m. as to who was the informant. Furthermore, the information passed on to the police and as recorded in Ex.PW10/A does not reveal name of the culprit. From the information as recorded in Ex.PW10/A, it transpires as if the wrong act was still being committed even at the time the information was being given to the police. The information was not to the effect that the daughter of the informant had already been subjected to rape -:9:- or wrong act. Even the place where the wrong act was stated to be going on, does not find mention in Ex.PW10/A. The fact remains that the information made to police was not to the effect that Dev Chander accused had committed rape or wrong act on the daughter of the informant and that offence had taken place at such and such place.
8. How name of accused with parentage figured in statement of prosecutrix made to police? Present case came to be registered on the statement Ex.PW4/A said to have been made by the prosecutrix at Maharishi Balmiki Hospital. Learned Amicus Curiae has referred to cross examination of prosecutrix wherein she admitted that she did not know the accused prior to the present occurrence; that she did not know father's name of the accused; that she did not state before the police father's name of the accused.
Reference has also been made to cross examination of the prosecutrix wherein she stated that police obtained her thumb impression on blank paper. Contention of learned Amicus Curiae is that name of the accused with his -:10:- parentage and address stands recorded in statement Ex.PW4/A which creates doubt if this statement was ever made by the prosecutrix.
PW10 Inspector Yashpal stated to have recorded statement of the prosecutrix on reaching Maharishi Balmiki Hospital.
PW12 HC Satish Kumar-then Constable, has also stated about recording of statement of the prosecutrix, taking of ruqqa to the police station, while leaving the hospital at about 4.00 a.m., and having got the case registered.
A perusal of statement of prosecutrix made in court would reveal that she admitted therein that she did not know the accused prior to the present occurrence. Case of the prosecution is that accused is immediate neighbourer of the prosecutrix. It is difficult to believe the prosecutrix when she stated that she did not know the accused. Rather this goes to show that prosecutrix has intentionally tried to conceal this fact. In case she did not know the accused prior to the present occurrence how could it appear in her statement Ex.PW4/A made before the police. In Ex.PW4/A even father's name of Dev Chander stands recorded. When -:11:- according to the prosecutrix she did not state before the police father's name of the accused, it remains unexplained as to how it also figured in Ex.PW4/A. Question arises if the prosecutrix actually made any statement Ex.PW4/A. In her cross examination the prosecutrix categorically stated that police had obtained her thumb impression on a blank paper. This goes to show that her statement Ex. PW4/A was recorded on a blank paper after her thumb impression had been obtained.
9. Did the prosecutrix accompany the accused of his own?
It is in the statement of PW3- father of the prosecutrix that she was about 18 years of age during the days of occurrence. He so stated even before the doctor at the time the prosecutrix was taken to hospital for her medico legal examination. If we believe the statement of the prosecutrix that she did not know the accused prior to the present occurrence, simply because of signal given by a stranger, a girl of the age of the prosecutrix would never accompany him.
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A perusal of MLC Ex. PW1/A i.e. of the prosecutrix would reveal that the prosecutrix was brought to Maharishi Balmiki Hospital, Pooh Khurd, Delhi, on 30/08/2006 at 12.40 a.m. She was brought there by PCR staff. At that time, Sunita, sister of the prosecutrix, was also accompanying them. Smt. Sunita (PW6) has supported the case of prosecution to have removed her sister-prosecutrix to the hospital in the company of their father and the PCR staff where the prosecutrix was medico legally examined. At the time of her arrival in the hospital, the prosecutrix furnished her age as 14 years, but her father, as noticed above, told the doctor that she was 18 years of age. While appearing in court as PW4, the prosecutrix did not furnish her age. When she could furnish her age before the doctor, she could furnish the same even while deposing in court. It appears that she had intentionally not furnished her age to suppress the fact that she accompanied the accused of her own. In this regard, reference may be made to her cross examination wherein it has appeared that at the time the accused took her along, persons from the neighbourhood were present in the street. In her cross examination, she could not tell as to why she had -:13:- come out of the house on a signal being given by the accused. She tried to explain that she had refused to accompany the accused, but in the next sentence, she stated that the accused had not taken her along after holding her, when she came out of the house. Had she refused to accompany the accused, she could raise hue and cry to attract the persons present in the street. However, in cross examination, she stated to have not raised any alarm in the street after her refusal to accompany the accused. According to the prosecutrix, she just accompanied the accused. She admitted that it takes about 15 minutes in reaching the toilet where the offence is stated to have been committed. It means, according to her, she covered the distance from her house to the toilet in 15 minutes. The accused talked to her during this period of 15 minutes but she did not raise any hue and cry.
According to the prosecutrix, at the time she was called out of her house, it was about midnight. Contrary to it, according to her father (PW3), it was about 10 p.m. that the prosecutrix got up from the takhat lying in front of his house and went away. So, according to the prosecutrix, she was -:14:- present inside the house, but according to her father, she was present outside the house. In this way, the statements of the two PWs are in contradiction with each other not only regarding the time the prosecutrix left but also regarding the place where she was present at the time she left.
All this goes to show that the prosecutrix herself accompanied the accused.
10. Was the prosecutrix subjected to rape?
As noticed above, present case was registered on the statement of the prosecutrix. That statement is Ex. PW4/A. Therein, the prosecutrix narrated the date, time and place when she was taken away from her house by the accused to a place behind public lavatory, and the manner he subjected her to rape.
While appearing in court, the prosecutrix deposed that on 29/08/2006 at about midnight, while she was present inside her house, Dev Chander accused came to her house, took her away to a public lavatory, situated at a lonely place, at a distance from her house, and then did commit rape on her.
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It is significant to note that it is not case of prosecution that anyone saw the accused calling the prosecutrix out of her house.
As regards place where rape is said to have taken place, in Ex. PW4/A i.e. statement made before the police, it stands recorded that the accused took the prosecutrix behind the public lavatory and there he committed wrong act with her. However, while appearing in court, she stated that accused took her inside the toilet and did commit rape on her. Had she been subjected to rape inside the toilet, she would have stated so specifically in Ex. PW4/A, but therein, it stands recorded that the offence took place behind the toilet. Therefore, statement alleged to have been made by the prosecutrix before the police is in contradiction with the statement made in court.
Even otherwise, as per rough site plan Ex. PW7/A, the concerned place has been shown inside the public lavatory. PW7 Lady SI Sushila Rana Investigating Officer stated in her cross examination to have not observed any incriminating material behind the public lavatory where the prosecutrix is stated to have been subjected to rape. -:16:- Thus, according to SI Sushila Rana the prosecutrix came forward with the version about commission of wrong act behind the lavatory. Had the prosecutrix been subjected to rape inside the toilet, the investigating officer would not have stated so. The fact remains that statements of the prosecutrix and that of the investigating officer are in contradiction. Had any rape taken place, atleast mark of struggle could be noted by the Investigating Officer at the place, whether inside or outside the public lavatory. However, there is nothing on record to suggest that any mark of struggle was observed inside or outside the public lavatory. All this creates doubt in the version of the prosecution regarding rape on the prosecutrix.
It is in the statement of the prosecutrix that at the time the accused subjected her to wrong act, she used her nails in injuring the accused. Had it been so, mark of injuries must have been observed on the person of the accused. There is nothing in the MLC Ex.PW1/B to support the statement of the prosecutrix in this regard. Swelling was observed on the frontal region of the accused. Case of the prosecution is that the accused was given beatings by -:17:- persons from the neighbourhood. Therefore, possibility of swelling as observed on the frontal region of the accused, having been suffered by the accused on account of beatings by the neighbourer cannot be ruled out.
According to the prosecutrix, one lady happened to reach at the time of commission of rape and saw the accused in that process. Furthermore, in her statement in court, prosecutrix stated that she had not seen that lady. If she had not seen that lady how could she state that the occurrence was witnessed by the lady. Had any such lady witnessed any such act, this fact must have appeared in her statement Ex.PW4/A alleged to have been made before the police. However, there is no mention in Ex.PW4/A that any lady witnessed the accused indulging in the act.
In her cross examination, the prosecutrix stated that the aforesaid lady also raised alarm. That lady, according to the prosecutrix, was present even at the time of arrival of the police and the lady narrated the occurrence to the police. This version of the prosecutrix does not find support from any other evidence. No such lady has been cited as a prosecution witness. Even otherwise, had any -:18:- such lady raised alarm during the midnight that must have attracted persons from the locality. However, there is nothing on record to suggest that anyone heard any such alarm raised by any such lady. There is nothing in the statements of the Investigating Officers that any lady met them at the time of their arrival at the spot or thereafter. PW7 SI Sushila Rana admitted in her cross examination that investigation did not reveal that commission of rape was witnessed by any lady. According to the prosecutrix, said lady left and returned with her father. But father of the prosecutrix nowhere stated that any lady contacted him or raised any alarm or brought to his notice that she had witnessed the accused indulging in the act.
In view of the above discussion, this court comes to the conclusion that prosecutrix has introduced false version about witnessing of the occurrence by a lady.
In statement Ex.PW4/A alleged to have been made by the prosecutrix before the police, the version is that prosecutrix could not raise hue and cry as the accused put his hand on her mouth. However, in her cross examination as PW4, the prosecutrix stated to have raised hue and cry at the -:19:- time accused was committing wrong act. Therefore, the prosecutrix has made contradictory statements regarding raising of hue and cry. Even otherwise, had she raised any hue and cry, during the night, it would have attracted anyone from the neighbourhood or from the persons passing on the road situated thereby.
In her cross examination the prosecutrix admitted that on 23/02/2008 before she stepped into the witness box as PW4, police had taught her. This goes to show that the prosecutrix was tutored before she stepped into the witness box on 23/02/2008.
Case of the prosecution is that prosecutrix made her statement Ex.PW4/E under Section 164 Cr.P.C. levelling allegation against the accused. In her statement recorded on 10/03/2004, the prosecutrix admitted that police had taught her, before her statement was recorded by the Magistrate, as to what she had to state. This goes to show that the prosecutrix was tutored on both the occasions.
It is in the statement of PW3 Sikander Prasad that the prosecutrix, on enquiry, told him that she was taken away by the accused to the toilet and then there subjected her to -:20:- rape. As noticed above, prosecution has placed reliance regarding commission of rape only on the statement of the prosecutrix. Statement of PW3 Sikander Prasad is only as to what he was told by the prosecutrix. Had the prosecutrix told him about commission of rape by the accused, PW3 must have informed the PCR about the name of the accused and the place where his daughter was subjected to rape. As noticed above, neither name of the accused nor the place where she was subjected to rape finds mentioned in Ex.PW10/A i.e. the DD entry , stated to have been recorded on the information given by PW3. Therefore, statement of PW3 Sikander Prasad does not help the prosecution.
Statement of PW6 Smt. Sunita, sister of prosecutrix also does not help the prosecution as her testimony can safely be termed to be hearsay evidence and no reliance can be placed thereon for the reasons recorded above.
11. Conclusion In view of the above discussion, this court comes to the conclusion that prosecution has miserably failed to -:21:- bring home guilt to the accused. Consequently, Dev Chander accused is acquitted of the charge framed against him in this case.
12. Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
13. This court appreciates the assistance provided by Sh. Amit Prashar, learned Amicus Curiae.
14. File be consigned to record room.
Announced in Open Court on dated 11th of August, 2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Court Rohini : Delhi 11-08-2008