Delhi District Court
State vs 1] Raina Grover on 16 December, 2014
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In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 46/13
Unique ID No. : 02401R1303012008
State versus 1] Raina Grover
D/o Sh. Sunil
Grover
R/o C206, 2nd Floor, West
Patel Nagar, Delhi
2] Anita Grover
W/o Sh. Sunil Grover
R/o C206, 2nd Floor, West
Patel Nagar, Delhi
3] Sunaina Grover
D/o Sh. Sunil Grover
R/o C206, 2nd Floor, West
Patel Nagar, Delhi
4] Chanky Grover @ Palu
S/o Sh. Sunil Grover
R/o C206, 2nd Floor, West
Patel Nagar, Delhi
5] Harish Sachdeva
S/o Sh. P. D. Sachdeva
R/o Flat No. 20, New
Market,
West Patel Nagar, Delhi
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6] Rajesh Jaggi
S/o Sh. Balram Jaggi
R/o E132, West Patel
Nagar,
Delhi
7] Sunil Kumar Gulati
S/o Sh. Kushal Chand
Gulati
R/o 505, Double Storey,
New Rajinder Nagar,
Delhi
Case arising out of:
FIR No. : 489/06
Police Station : Patel Nagar
Under Section : 376/120B/34 IPC
Judgment reserved on : 08.12.2014
Judgment pronounced on : 16.12.2014
JUDGMENT
CASE OF THE Prosecution:
1. The facts of this case are rather peculiar. The case is hand was registered on the basis of complaint dated 26.08.06 made by Complainant 'C' [name withheld to protect her identity]. The :3: Complainant 'C' incidently, expired after registration of FIR and thus, did not appear in court as a witness.
2. 'C' alleged in her complaint dated 26.08.2006 that she was living with her father and brother. Her brother got married to Accused Raina Grover on 05.12.2005. After the marriage of his brother with Accused Raina Grover, there used to be frequent quarrels in her house.
She alleged that on 31.12.2005, Accused Raina Grover had a quarrel with her father and she made a call at 100 number and got her father arrested. Her brother also supported her Bhabhi i.e. Accused Raina Grover. She claimed that though her father was released on bail on the very next day, but he did not return to the house and went to an unknown place. Out of compulsion, she had to live with her brother and Bhabhi.
3. On 03.01.2006, her brother and Bhabhi i.e. Accused Raina took her to parental house of her Bhabhi at West Patel Nagar and reached there at 11 AM. Her brother left stating that he has to go for an interview. After about 02 hours, Accused Raina told her in presence of her mother Anita Grover, sister Sunaina Grover and brother Chunky :4: Grover that she will have to do some work, if she wants to live in their house. She was told that she has to give massage to some elderly persons in order to earn her livelihood. Complainant stated that she had no other option and since she trusted her Bhabhi and her family members, she accompanied them in three wheeler scooter to Karol Bagh. They took her to a room where one Sardar was present and left her there with him. The said person told her that he has paid money to Accused Anita Grover and threatened to kill her and under the threat, he committed rape upon her. Her bhabhi and her mother returned after about 1 ½ hours and said Sardar made some payment to them, after which all of them returned to the house of Accused Anita Grover.
4. When she raised an objection, she was told by the said Accused persons that they have made video recording, if she does not do as they say, they will defame her. Out of fear, she was compelled to do this kind of work.
5. On 15.07.2006 father of the Prosecutrix came to take her and she went with him to her house. On 16.08.2006 her bhabhi i.e. Accused Raina Grover and her mother Accused Anita Grover came to :5: her house and tried to take her alongwith them stating that they have taken advance from one customer. Complainant alleged that she started quarreling with them and refused to go with them for such work. In the meantime, her father reached home and she revealed everything to him. Thereafter, the Complainant 'C' went to the PS on 26.08.2006 and lodged her complaint and got the case registered.
6. The investigation of the case was marked to Insp. Surender Kumar Verma, who was examined as PW26. During the course of investigation, Prosecutrix was got medically examined and exhibits were sent to FSL and three persons namely Harish Sachdeva, Rajesh Jaggi and Sunil Kumar were arrested at the instance of Prosecutrix, whom she identified as the same persons to whom she was taken by Accused for the purpose of prostitution. Chargesheet also discloses that Prosecutrix had pointed out to the places where Accused Harish Sachdeva, Rajesh Jaggi and Sunil Kumar committed rape upon her. She was, however, unable to identify any other person to whom she was taken for prostitution.
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7. The further investigation of the case was then assigned to R. P. Minz [PW22] and Insp. Ravinder Singh [PW25]. The Investigating Agency obtained mobile number of Accused persons during the course of investigation to establish that they were in touch with each other. Four audio cassettes having conversations between Sunaina and her in laws and Sunaina and her mother and Sunaina and her husband alongwith 4 sets of papers containing written text which are recorded on the produced audio cassettes, were seized by which it was established that Anita Grover and Sunaina were involved in prostitution.
8. It is a matter of record that after their arrest, Accused Anita Grover and Sunaina Grover refused to give their voice samples despite order of the court and their statement to this effect were recorded. Investigating Agency also collected record pertaining to pre marital pregnancy of Accused Raina Grover. Accused Harish Sachdeva, Rajesh Jaggi and Sunil Grover were medically examined and after completion of investigation, chargesheet was submitted before concerned court.
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9. Pursuant to committal of case and on the basis of material on record, while Accused Raina Grover, Sunaina Grover, Anita Grover, Chunky Grover, Harish Sachdeva, Rajesh Jaggi and Sunil Kumar were charged for offence punishable under Section 5 ITP Act r/w Section 120B IPC, Accused Harish Sachdeva, Rajesh Jaggi and Sunil Kumar Gulati were charged for offence punishable under Section 376 r/w Section 120B IPC. All the Accused pleaded not guilty and claimed trial when charges were read over and explained to them. Prosecution Evidence:
Public Witnesses:
10. PW1 'SN' father of the Prosecutrix deposed that Sunny [PW2] is his son and he got married on 05.12.2004 with Accused Raina Grover. After their marriage, Accused Raina Grover used to quarrel with him and she insisted repeatedly to go to her parental house. The Accused Raina Grover got him implicated in a false case and he remained in jail for one day. When he was released from jail, he did :8: not go to his home as he was fed up. However, he returned to his house after 78 months and met with his daughter i.e. Prosecutrix, who told him on 25.08.06 that in his absence, Accused Raina Grover took her to her house and then Accused Raina Grover alongwith Accused Sunaina Grover and Anita Grover took her to the house of a Sardar, where all three Accused persons left his daughter and that Sardar committed rape upon his daughter forcibly and without her consent. All the three Accused persons threatened his daughter and took her to their house, where she was beaten by Accused Chanky Grover. PW1 deposed that his daughter further stated to him that all the four Accused persons pressurized her to indulge in the prostitution otherwise, they will blackmail her as they had prepared a blue CD of her in nude condition and under the threat and pressure of four Accused persons, his daughter used to do the prostitution. He took his daughter to PS Patel Nagar, where statement of his daughter i.e Prosecutrix was recorded.
11. PW1 further deposed that on 01.10.06 he alongwith his daughter and one Madan Gopal and IO of the case went to the shop of Rahul Properties, Main Market, East Patel Nagar, where his daughter :9: identified Accused Harish Sachdeva and stated that said Accused had committed rape forcibly with her in the month of March with the collusion of Accused persons Raina Grover, Anita Grover, Sunaina Grover and Chanky Grover. The IO prepared pointing out memo cum identification memo of the place of occurrence and Accused respectively which is Ex. PW1/A. Further, his daughter had also pointed out M/s Jaggi Syndicate Properties, C113, West Patel Nagar and stated that at that place, in February, 2006, Accused Jaggi had made physical relations with her and in collusion of Accused persons Raina Grover, Anita, Sunaina and Chanky Grover. The IO also made pointing out memo of place of occurrence and identification memo of Accused at the instance of his daughter and same is Ex. PW1/B. PW1 correctly identified all the Accused persons present in court.
12. PW3 Sanjeev deposed that on 21.07.07 he joined the investigation of this case and in pursuant of which he alongwith his cousin sister i.e. Prosecutrix and the IO of this case went to Karol Bagh, the exact shop No. he does not remember, but he can identify the place where she pointed out a shop and stated that in that shop apart from :10: Accused Sunil Kumar, two other persons were also present, when she came to that shop to purchase some articles alongwith Accused Anita Grover, Raina Grover and Sunaina Grover where Accused Anita talked with Accused Sunil Kumar and then Prosecutrix alongwith Anita, Sunaina and Raina Grover came to their house at West Patel Nagar. On the next day at about 34 PM, Accused Sunil Kumar came to their house, where Accused Anita, Sunaina and Raina Grover an Accused Chanky Grover pushed her into the room and forcibly compelled to make physical relations with Accused Sunil Kumar. He correctly identified Accused Sunil Kumar present in court. The IO prepared pointing out memo of place of occurrence at the instance of Prosecutrix, which is Ex PW3/A.
13. PW4 Surender Grover deposed that he has been living on the first floor at West Patel Nagar and his brother Sunil Gorover is living on the second floor with his family. Accused Anita Grover is the wife of his brother Sunil Grover and Raina Grover and Sunaina Grover are daughters of his brother Sunil Grover and Chanky Grover is the son of his brother Sunil Grover. All the female members i.e. Accused :11: Anita, Raina and Sunaina are indulged in the business of prostitution and some unknown persons used to come at their house in connection with the prostitution. Several times the unknown persons who wanted to go on second floor used to stop on the first floor and they used to show him the money and demand the girl for prostitution, due to which he several times, felt ashamed.
14. PW4 further deposed that Accused Raina Grover is married at Mukerjee Nagar and Sunaina is married at Dilshad Garden but due to their illegal acts, they have left their matrimonial houses and they are staying at the house of their parents at West Patel Nagar. These Accused persons are out of control of his brother Sunil Grover. He deposed that Prosecutrix i.e. sister of husband of Raina Grover lived with them for 34 months and the Accused persons had also compelled her to indulge in prostitution alongwith them. After disclosing the fact of compelling the Prosecutrix to indulge in prostitution, she had also told him this fact. Police recorded his statement in this regard.
15. PW5 Geeta Arora deposed that she has been working in the :12: Beauty Parlour of Geeta Mahajan since 2000 till 2005. In October, 2005, Geeta Mahajan had got married her son Honey Mahajan to Accused Sunaina Grover. After three months of marriage, Accused Sunaina Grover started coming to Beauty Parlour of her motherinlaw. Accused Sunaina Grover was extra frank to everyone. One day, Geeta Mahajan had gone somewhere and she was present in the Beauty Parlour and Accused Sunaina came in the Beauty Parlour. Accused Sunaina asked her as to how much money Geeta Mahajan used to give her for the job. She deposed that firstly, she delayed the reply, but on the insistence of Accused Sunaina, she told her that Geeta Mahajan used to give her Rs. 1500/ per month. Then Accused Sunaina said that 'bas itne hi rupiye deti hain, itne toh main ek ghante me kama leti hun.' She asked Accused Sunaina as to how she earns so much money in an hour. Accused Sunaina said that she will tell her also that way, so that she will also start earning so much money in short period. Then Accused Sunaina started telling dirty talks regarding sex. She deposed that she got shocked when Accused Sunaina told her that 'gents ke saath sone se or sex karne se tumhe do ghante mein 60007000/ rupiye :13: mil jayenge.' She deposed that she could not tell this thing to Geeta Mahajan due to shock but after 1015 days, one day she saw that Geeta Mahajan was sitting very sad. She asked Geeta Mahajan the reason for sadness. Firstly, Geeta Mahajan kept mum then she told her that her daughterinlaw i.e. Accused Sunaina is involved in sexual relations with other men and some boys used to come to their house to meet her. PW5 deposed that she asked Geeta Mahajan as to how she came to know about all this. Geeta Mahajan told her that she came to know about this through her maid servant. Police recorded her statement.
16. PW6 Henu Mahjan deposed that prior to her marriage, when she was living with her parents, during that period, she recorded the conversation taking placed between her sisterinlaw Accused Sunaina and her mother Accused Anita Grover, while they were talking at her house. In the same span of time, when Accused Sunaina Grover was talking with some of her client on telephone, that conversation was also got recorded, to which later on, she also wrote down when she heard the same. From the conversation, it was clearly indicated that Accused Sunaina and her mother Accused Anita Grover were involved :14: in prostitution. PW6 further deposed that once she also recorded the conversation taking place between Accused Sunaina Grover and her parents i.e. her father Narender Mahajan and mother Geeta Mahajan. In that conversation, Accused Sunaina admitted that she used to invite her clients at her house for prostitution. She also recorded in two cassettes the conversation of her brother Honey Mahajan and his wife i.e. Accused Sunaina Grover. In those two cassettes also, Accused Sunaina Grover admitted that she is involved in prostitution and how they do it. She handed over all the four cassettes and four set of papers which she had wrote down to the police. The police sealed the same with the seal of 'RS' and seized the same and prepared the seizure memo Ex. PW6/A. In her deposition, PW6 also exhibited the audio CD prepared by her of the said recording, alongwith the transcript of conversation stated to be recorded in four files in the said CD Ex. PW6/P1 to Ex. PW6/P4.
17. PW7 Kamal Malhotra was examined by the Prosecution to prove the pointing out memo in respect of alleged incident ie Rahul Properties, X77, Main Market, West Patel Nagar and Shop No. C113, :15: West Patel Nagar, Delhi. However, he failed to support the case of the Prosecution and deposed that police merely obtained his signatures on some papers and thus, he was declared hostile.
18. PW8 Sunita, Assistant Supdt. Central Jail No. 6, Tihar, Delhi was examined to establish the factum of refusal by Accused Sunaina Grover and Anita Grover to give their voice samples to the IO. The statement of Accused persons in this respect is Ex. PW8/A and Ex. PW8/B. She correctly identified Accused Raina Grover and Sunaina Grover, present in court.
19. PW9 Madan Gopal deposed that on 01.10.2006, he alongwith Prosecutrix 'C', her father Surender Narchal went to PS Patel Nagar. They remained in PS for about one or two hours. Then, 34 police officials and one lady police official took all of them to the office of Jaggi. Thereafter, Prosecutrix took them to a room which was inside the office and told IO that Accused Jaggi had made physical relations with her in that room. The pointing out memo is already Ex. PW1/B. Thereafter, Prosecutrix took them to the office of Harish Sachdeva in Patel Nagar Market, where she pointed out the office of Harish :16: Sachdeva. At that time, no one was present at the office and later on Harish Sachdeva was called at his office by the IO. The pointing out memo is Ex. PW1/A. Prosecutrix stated to the IO that Accused Harish Sachdeva had committed zabardasti/galat kaam with her on the sofa lying in the office.
20. PW10 Honey Mahajan deposed that on 23.10.2005 he got married with Accused Sunaina Grover. From the beginning, the behaviour of Accused Sunaina was not proper. After sometime, about 24 months after his marriage, one day in the day time, he came to his house and he went to the toilet from where one unknown boy came out, whose shirt's button were opened. He asked him who is he then he pushed him and ran away. Then he asked his wife Accused Sunaina about that boy. She told him that the said boy was her boyfriend before marriage. On further enquiry from Sunaina, she stated that 23 more boys also used to come to house and she used to take money from some of them and some of her friends. Accused Sunaina further told him that her mother Anita Grover and brother Palu Grover used to send the customers to her and half of the money they kept with them and half :17: was sent to her. He deposed that he got shocked after hearing all this and he made the enquiry from the neighbourers and in the mohalla. Some of neighbourers and the mohalla residents told him that they were about to tell this fact to him as everyday some new face used to come to his house. During the enquiry, he met one Geeta Arora, who told him that she left the job from the Beauty Parlour of his mother because his wife Sunaina had asked her to earn Rs. 1500/ daily if she does whatever she does. Then, his parents talked with Accused Sunaina about the unknown male visitors.
21. PW10 further deposed that Accused Sunaina told his parents that the boys namely Vicky and Raj used to come to her and from whom she earned money. In the room wherein his parents were talking to Accused Sunaina, his sister Henu Mahajan installed a tape recorder to record the discussion and all the discussion was recorded. Thereafter, they called the parents of Accused Sunaina. They sent Accused Anita Grover, mother of Accused Sunaina Grover alongwith her to talk on their grievances in a separate room of their house wherein they put a tape recorded and recorded all the discussion. Thereafter, :18: they came to know that Accused Sunaina Grover alongwith her mother Anita Grover, sister Raina Grover and brother were indulged in carrying sex racket. Thereafter, his sister Henu Mahajan made a telephone call to Prosecutrix, who told his sister and Accused Sunaina, Anita and Raina Grover are carrying a sex racket and they are indulged in prostitution and they also enforced her to do the prostitution. He deposed that Prosecutrix told his sister the name of persons who raped her at the instance of Accused Anita Grover etc. and told their addresses also. Thereafter, he filed a petition for divorce. He correctly identified all the Accused present in court.
22. PW16 Geeta Mahajan deposed that Honey Mahajan is her son. He got married with Accused Sunaina in October, 2005. After marriage, Accused Sunaina started residing at the house of PW16. On those days, PW16 used to run a Beauty Parlour at Dilshad Garden. She deposed that Accused Sunaina used to remain at home alone as other family members used to go outside for work. First of all, Accused Sunaina went to honeymoon with her son at Vaishno Devi and she also went to Patni Top. The character of Accused Sunaina was not good as :19: she used to tell them that she had boyfriends. PW16 deposed that Accused Sunaina told her that her mother Anita used to take money from customers for doing wrong work and by 'wrong work', she meant 'sexual intercourse'.
23. PW16 further deposed that one day, her son Honey Mahajan returned home in lunch hours and he entered inside the bathroom. She again said, Accused Sunaina tried to prevent her son not to go to bathroom on one pretext or another, but her son entered into the bathroom and saw a stranger in the bathroom. She deposed that her son Honey Mahajan tried to apprehend that boy, but that boy fled away. Her son Honey Mahajan asked Accused Sunaina in detail and Accused Sunaina told Honey Mahajan that she has done sex with that boy using condom. Her son and his family members asked Accused Sunaina as to how many boyfriends she has. She told them that she had 34 boyfriends. After the occasion of Lohri festival in the year 2006, he took Accused Sunaina as to who was the father of fetus in her womb. Accused Sunaina told her that her son Honey Mahajan was the father of that fetus and she further told her that she had sexually intercoursed :20: with other boys using condom.
24. PW16 further deposed that she asked the Accused Sunaina that they will get done the DNA test of fetus and thereafter, Accused Sunaina went to her mother's house. Thereafter, Accused Sunaina left their house with all her belongings. Before leaving to her house, her daughter Henu Mahajan told them that they should have a proof against Sunaina and thereafter, she recorded the conversation against Accused Sunaina and her son Honey Mahajan and Henu Mahajan, PW16 and her husband. PW16 deposed that one day they kept the cassette recorder under the pillow and conversations were recorded secretly. Other day, they called Accused Anita Grover, mother of Accused Sunaina and she was also told about this fact and she was asked to make her daughter Sunaina understand and their conversation was recorded. Thereafter, she came to know that Accused Sunaina is not a good lady and she asked them to forgive her. Thereafter, she took her belongings and left their house. Henu Mahajan gave cassette to the IO of this case. PW16 correctly identified Accused Anita and Sunaina present in court. Doctors:
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25. PW14 Dr. Yogendra Nath Mourya deposed that on 11.09.2008 while he was posted at DDU Hospital as Medical Officer, he examined Accused Harish Sachdeva and Accused Rajesh Jaggi vide MLCs Ex. PW14/A and Ex. PW14/B respectively.
26. PW15 Dr. Rishi Kanava deposed that on 22.09.2008, he medically examined Accused Sunil Kumar Gulati vide MLC Ex. PW15/A.
27. PW20 Dr. Namita deposed that she gynecogically examined Prosecutrix 'C' vide MLC No. 22104 Ex. PW20/A.
28. PW21 Dr. Raman Khurana deposed that on patient Raina aged 19 years, female came to his centre on 21.01.2005 for ultrasound examination and on examination, she was found having 11 to 1 weeks pregnancy. He prepared his report and the same is Ex. PW21/A and handed over the ultrasound report and film to the patient.
29. PW24 Dr. Ajay Sharma identified signatures of Dr. Aarti, who prepared MLC of Prosecutrix Ex. PW24/A. Police Witnesses:
30. PW11 L/Ct. Sunita deposed that on 17.07.2008 she was :22: posted at PS Patel Nagar. On that day, she went to H. No. C206, second floor belonging to Accused Anita Grover alongwith IO/Insp. Ravinder Singh and from where the Accused persons Anita Grover, Raina Grover and Sunaina Grover were arrested. PW11 correctly identified all three Accused persons. IO prepared their arrest memos of Accused Anita Grover, Raina Grover and Sunaina Grover Ex. PW11/A to Ex. PW11/C respectively. PW11 conducted the personal search of all the three Accused persons vide memos Ex. PW11/D to Ex. PW11/F respectively. IO recorded her statement.
31. PW12 L/Ct. Kamlesh deposed that on 17.07.2008 while she was posted at PS Patel Nagar, she joined the investigation with IO Insp. Ravinder Singh. IO arrested and brought the Accused persons Anita Grover, Raina Grover and Sunaina Grover. She correctly identified all three Accused persons and stated that they remained in her custody during investigation. The IO recorded the disclosure statement of Accused all three Accused persons vide memo Ex. PW12/A to Ex. PW12/C respectively. Accused Anita Grover pointed out the places Brijwasi Mill, 20/23, West Patel Nagar, Jaggi Syndicate Properties, :23: C113, West Patel Nagar and Rahul Properties, X77, West Patel Nagar. The IO prepared the pointing out memos Ex. PW12/D to Ex. PW12/F. IO recorded her statement.
32. PW13 HC Major Singh deposed that on 25.07.2008 while he was posted at PS Patel Nagar, Accused Chunky Grover was brought to Police Station by his father Sunil Grover and Accused Chunky was produced before Insp. Ravinder, who interrogated Accused Chunky Grover and he was arrested vide arrest memo Ex. PW13/A and his personal search was carried out vide memo Ex. PW13/B. Disclosure statement of Accused is Ex. PW13/C. Accused Chunky Grover led the police party to C113, West Patel Nagar, X77, Main Market, West Patel Nagar and 20/23, West Patel Nagar, Brijwasi and pointed out the places. IO prepared the pointing out memos of those places which are Ex. PW13/D to Ex. PW13/F. Accused Chunky Grover was taken to DDU Hospital for his medical examination. IO recorded his statement.
33. PW13 further deposed that on 11.09.2008 he again joined the investigation of this case. On that day, Accused Harish Sachdeva and Jaggi came to PS. They were formally arrested vide arrest memo :24: Ex. PW13/G and Ex. PW13/H respectively. Accused persons were taken to DDU Hospital for their medical examination. Accused persons surrendered their passport before the IO. IO seized the passport of Rajesh Jaggi vide seizure memo Ex. PW13/J and passport of Accused Harish vide memo Ex. PW13/K.
34. Thereafter, on 22.09.2008, he again joined the investigation of this case. On that day, Accused Sunil came to PS. He was formally arrested by IO vide arrest memo Ex. PW13/L. IO seized the passport of Accused Sunil vide seizure memo Ex. PW13/M. Accused Sunil Gulati was taken to DDU Hospital for medical examination. IO recorded his statement. The witness correctly identified Accused Sunil, Harish, Rajesh and Chunky Grover present in court.
35. PW17 HC Satish deposed that on 26.08.2006 while he was posted at PS Patel Nagar as MHC[M], he received one sealed pullanda from Insp. Surender along sample seal of CMO DDU Hospital and deposited the same in the malkhana. He made entries to this effect at Serial No. 3517 in malkhana register vide entry Ex. PX. :25:
36. PW17 deposed that on 14.11.2006, he received four sealed pullandas containing audio cassettes and deposited the same in the malkhana and made entry in malkhana register No. 19 at serial No. 3565 which is Ex. PY.
37. On 07.01.2008 Insp. Ravinder Singh handed over to him one sealed pullanda alongwith sample seal of CMO DDU Hospital to Ct. Triveni Tiwari to deposit the same in FSL Rohini and Ct. Triveni Tiwari took the said pullanda with sample seal to FSL vide RC No 8/21. After deposition of the exhibits in FSL, Ct. Triveni Tiwari informed her and he made his endorsement to this effect in the malkhana register No.
19. IO recorded his statement. The photocopy of road certificate is Ex. PW17/A. The photocopy of the deposition receipt handed over to him by Ct. Triveni Tiwari is Ex. PW17/B and the relevant entry is Ex. PW17/C.
38. On 10.06.2008 PW17 received the result abovesaid exhibits from FSL from HC Ramesh Kumar and he handed over the same to IO. The same are Ex. PZ.
39. PW19 HC Yogesh Kumar was the Duty Officer, who :26: proved the FIR NO. 489/2006 PS Patel Nagar. The computerized copy of which is Ex. PW19/A.
40. PW22 W/SI R. P. Minz deposed that on 26.08.2006 while she was posted at PS Patel Nagar as SI, she joined the investigation of this case. IO/Insp. Surender Verma asked her to take Prosecutrix 'C' for her medical examination. Prosecutrix was taken to DDU Hospital where she was medically examined. After he medical examination, doctor gave her pullanda containing the vaginal slide and sample seal. She brought the said pullanda and sample seal to the PS and handed over the same to IO. IO prepared a seizure memo of the said pullanda vide seizure memo Ex. PW22/A.
41. On 01.10.2006 PW22 again joined the investigation of this case. The Prosecutrix alongwith her father and one other person came to PS and Prosecutrix led her to Shop No. X77, Rawal Properties, Main Market, West Patel Nagar. One person was sitting on the shop and Prosecutrix pointed out towards that person and told her that he is the person, who committed raped upon her. At that time, IO was also with them and he prepared the pointing out memo which is already Ex. :27: PW1/A.
42. Thereafter, she alongwith IO, Prosecutrix, her father and one Madan Gopal went to C113, West Patel Nagar, which was a shop. The Prosecutrix pointed out towards the said shop. In the said shop, one Rajesh Jaggi was sitting. The Prosecutrix pointed out that he is the person who had committed rape upon her. The Prosecutrix further told that in the month of February, she was brought to that shop by Anita Grover and where she was offered for sexual intercourse by Accused Rajesh Jaggi. The pointing out memo is already Ex. PW1/B.
43. PW22 deposed that the Prosecutrix took them to M/s Brijwasi Milk Product B/33, West Patel Nagar. On the said shop, one person was sitting whose name was Yogesh Choudhary and Prosecutrix told them that he was not the person, who committed rape upon her. But she further told that she was brought to the place by Anita Grover for sex. IO prepared the pointing out memo which is Ex. PW22/B.
44. Thereafter, on 06.01.2007 the investigation was marked to her. She alongwith Prosecutrix and her brother Sanjeev went to Shop No. 7A/45 WEA Karol Bagh and Prosecutrix told her that owner of the :28: said shop was Sunil Kumar. Prosecutrix further told that she was brought to that shop by Anita Grover and she was introduced to Sunil Kumar and later on said Sunil Kumar was called at the house No. C206, West Patel Nagar and in that house she was forced to have a sex with Sunil Kumar and Accused Anita Grover, Raina and Sunaina and Chunky. PW22 prepared the pointing out memo which is Ex. PW3/A. PW22 also got the CDRs of mobile phone No. 9350458742 to 9312743224, 9312743224 to 9810361378, 9312743224 to 9871134633, 9350458742 to 9810361378, 9350458742 to 9871134633, 9871134633 to 9313087707 and 9819361378 to 9313087707. The CDRs are Mark PX collectively. Thereafter, again investigation was handed over to Insp. Ravinder. Witness correctly identified Accused Sunil Kumar and Rajesh present in court.
45. PW25 Insp. Ravinder Singh deposed that on 18.09.2007 while he was posted as Insp. at PS Patel Nagar, the investigation of this case was marked to him from W. SI R. P. Minz. He went through the file and discussed the case file with the previous IO/W. SI R. P. Minz. He made enquiries in the locality of CBlock, West Patel Nagar :29: regarding Accused Anita Grover, Sunaina Grover, Raina Grover and Chunky Grover. On enquiry, he came to know that the said Accused persons were not having good character and reputation and the local persons of the locality did not courage to come forward against the Accused persons.
46. On 14.11.2007 Geeta Mahajan and Henu Mahajan came to PS and produced four audio cassettes alongwith their written transcription. The audio cassettes were played and they were seized vide seizure memo Ex. PW6/A. The cassettes were converted into pullandas and the seal of 'RS' was put on them and cassettes were marked serial 1 to 4.
47. On 18.11.2007 Prosecutrix produced ultrasound report and he seized the same vide seizure memo Ex. PW25/A. The ultrasound report is Mark A and Ex. PW21/A.
48. PW25 deposed that he asked the Accused persons Sunaina Grover and Anita Grover to provide the voice samples but they did not come forward. Thereafter, on 14.12.2007, he moved an application Ex. :30: PW25/B in the concerned court for providing speech/voice sample of Anita and Sunaina Grover. The Accused persons were summoned for 17.12.2007 but they did not turn up. PW25 sent the exhibits to FSL, Rohini through Ct. Triveni.
49. On 17.07.2008 PW25 Insp. Ravinder Singh alongwith L/Ct. Sunita reached at C206, West Patel Nagar, Delhi i.e. the residence of Accused persons Anita Grover, Sunaina Grover and Raina Grover. Accused Anita Grover, Raina Grover and Sunaina Grover were arrested vide their arrest memos Ex. PW11/A to Ex. PW11/C respectively. Their personal search was conducted vide memos Ex. PW11/D [Accused Sunaina Grover], Ex. PW11/E [Accused Anita Grover] and Ex PW11/F [Accused Raina Grover]. PW25 also prepared the body inspection memo of said Accused persons Ex. PW25/C, Ex. PW25/D and Ex. PW25/E. Three Accused persons Raina, Anita and Sunaina Grover were brought to PS. PW25 recorded the disclosure statement of Anita Grover, Raina Grover and Sunaina Grover Ex. PW12/A to Ex.PW12/C respectively in presence of L/Ct. Kamlesh.
50. PW25 deposed that Accused Anita Grover pointed out the :31: place of Rahul Properties at West Patel Nagar and identified the office of Accused Harish Sachdeva and he prepared the pointing out memo Ex. PW12/F. Accused Anita Grover pointed out M/s Jaggi Syndicate Propety, Shop No. C113, West Patel Nagar and told that she had produced Prosecutrix twice for prostitution at that place. PW25 prepared the said pointing out memo Ex. PW12/E. Thereafter, Accused Anita Grover led the police party to Brijwasi Milk Product at 20/33, West Patel Nagar and she pointed out the place where she had offered Prosecutrix for prostitution. He prepared the pointing out memo of the place Ex. PW12/D. Accused persons were sent to hospital for their medical examination and thereafter, they were produced in the court.
51. On 25.07.2008 Accused Chunky Grover alongwith his father came to PS. Accused Chunky Grover was interrogated and thereafter, he was arrested. PW25 prepared his arrest memo which is Ex. PW13/A and body inspection memo Ex. PW25/F. Thereafter, personal search of Accused Chunky Grover was prepared which is Ex. PW13/B. PW25 recorded disclosure statement of Accused Chunky Grover Ex. PW13/C. Accused Chunky Grover pointed out M/s Rahul :32: Properties, X77 Main Market, West Patel Nagar, Delhi told that he an his mother Anita had brought Prosecutrix to that place for prostitution with Harish Sachdeva. PW25 prepared the pointing out memo which is Ex. PW13/D. Thereafter, Accused Chunky Grover led the police party to Jaggi Syndicate Property, C113, West Patel Nagar and told that he and his mother had produced Prosecutrix twice for prostitution with Rajesh Jaggi. He prepared the pointing out memo of that place which is Ex. PW13/E. Thereafter, Accused Chunky Grover led the police party to M/s Brijwasi Milk Produce, 20/21, West Patel Nagar an told that he and his mother had produced Prosecutrix for prostitution. PW25 prepared the pointing out memo of that place which is Ex. PW13/F. Accused Chunky Grover was sent for his medical examination and thereafter, he was produced in court.
52. On 26.07.2008 PW25 Insp. Ravinder Singh moved an application in the court for providing voice/speech sample of Accused Anita and Sunaina Grover vide application Ex. PW25/G, which was allowed.
53. PW25 further deposed that on 01.08.2008 he went to Tihar :33: Jail and requested the Supdt. Tihar Jail to provide facility to get the voice sample of Anita Grover and Sunaina Grover vide his request application Ex. PW25/H and Assistant Supdt. Jail Sunita called Accused Anita and Sunaina Grover. He wrote an application to Accused Anita and Sunaina Grover about the court order and also showed them the court order vide letters Ex. PW25/J and Ex. PW25/K, but Accused Anita Grover and Sunaina Grover refused to give their voice samples and voluntarily gave their refusal in writing vide reply Ex. PW8/A and Ex. PW8/B. At the time of arrest of Accused Anita and Sunaina Grover, they were asked to give their voice samples but they had refused in writing vide his application and reply of Accused persons Ex. PW25/L and Ex. PW25/M.
54. PW25 Insp. Ravinder Singh further deposed that on 11.09.2008, Accused Harish Sachdeva and Rajesh Jaggi with their surities came to his office. Both the Accused were got medically examined by sending them through Ct. Major Singh. After their medical examination, both Accused Harish and Rajesh were brought to police station. He arrested them vide arrest memo formally as they :34: were already enlarged on anticipatory bail. He prepared the arrest memo of Accused Harish and Rajesh vide arrest memo Ex. PW13/G and Ex. PW13/H and seized the passport of said Accused persons vide seizure memo Ex. PW13/K and Ex. PW13/J respectively. Both the Accused persons were released after getting bail bond from them.
55. On 22.09.2008 Accused Sunil came to PS alongwith anticipatory bail order with surety. He interrogated him and thereafter, he was sent to hospital for his medical examination through Ct. Major. After his medical examination, Ct. Major brought Accused Sunil to PS and he arrested him formally vide arrest memo Ex. PW13/L. Accused Sunil also submitted his passport, which was seized by him vide memo Ex. PW13/M. Accused Sunil was also released on bail after getting bail bond from him.
56. PW25 Insp. Ravinder Singh further deposed that on 30.09.2008 he moved an application in the court for recording of statement of Prosecutrix 'C' under Section 164 CrPC vide application Ex. PW25/N, but on that day, her statement could not be recorded as she was not feeling well and even on later stages, her statement could :35: not be recorded due to her illness.
57. During investigation, PW25 checked the CDRs of all four mobile phones used by Accused persons and during scrutiny of call details, it was established that there was lot of conversation among all the four mobile number users. PW25 recorded the statement of witnesses and obtained the FSL result. After completion of investigation, chargesheet was submitted in court. PW25 Insp. Ravinder Singh correctly identified all the Accused persons.
58. PW26 ACP Surender Kumar Verma deposed that on 26.08.2006 while he was posted as Insp. at PS Patel Nagar, the present case was marked to him for investigation after registration of FIR. During investigation, he sent Prosecutrix for her medical examination alongwith lady SI R. P. Minz. After medical examination, SI R. P. Minz produced one sealed pullanda duly sealed with the seal of hospital alongwith MLC of Prosecutrix before him, which he seized vide seizure memo Ex. PW22/A. He made efforts to search the Accused persons but they could not be traced. After about a month, Accused Raina Grover, :36: Sunaina Grover, Anita Grover and Chunky Grover obtained the 'No Arrest Order' from Hon'ble Delhi High Court.
59. On 01.10.2006 Complainant 'C' was called in PS Patel Nagar. She alongwith her father came to the PS. They joined the investigation alongwith him and W. SI R. P. Minz. They all left the police station and went to Jaggi Syndicate Properties in Patel Nagar, where Accused Rajesh Jaggi was found present. In the meanwhile, one Kamal Malhotra, President of West Patel Nagar Market Association also reached there and Complainant in his presence and in the presence of her father identified Accused Rajesh Jaggi and also pointed out the place. The identification memo as well as the pointing out memo of the same was prepared by PW26 which is Ex. PW1/B. PW26 verbally interrogated Accused Rajesh Jaggi. Thereafter, Complainant alongwith her father and Kamal Malhotra took them to a shop/office of Accused Harish Sachdeva at West Patel Nagar, where Accused Harish Sachdeva was found sitting in his shop/office and he was identified by the Complainant. The said office/shop was also pointed out by the Complainant. Identification memo as well as pointing out memo in this :37: regard was prepared by him which is Ex. PW1/A. After seeing the said memo, witness has stated that one uncle of Complainant Madan Gopal had also accompanied the Complainant and her father to join the investigation with them on 01.10.2006.
60. On 01.10.2006 PW26 concluded the investigation for that particular day as Complainant 'C' was a bit nervous and sought time to identify other places and Accused persons.
61. After 1520 days of 01.10.2006, father of Complainant alongwith one other person came to police station Patel Nagar and handed over one photocopy of a paper in which names of owner and property of Brijwasi Milk Product as well as 23 other names of other properties were mentioned and father of Complainant requested him to interrogate the abovesaid persons. PW26 directed the father of Complainant to bring the Complainant to the police station for joining the investigation so that she could identify the places as well as the right/correct persons.
62. PW26 ACP Surender Kumar further deposed that despite :38: his directions given to the father of the Complainant in the month of October, 2006 to bring the Complainant to police station for joining investigation, Complainant did not turn up and on 02.01.2007 Complainant alongwith her father came to PS Patel Nagar. On that day, he had also called owners of Brijwasi Milk Product namely Yogesh and Mukesh in the police station alongwith their identity proof for the purpose of identification and they both came to the police station. PW26 also called third owner of Brijwasi Milk Product but he did not come to the police station as on that day he was somewhere in Mathura. Yogesh and Mukesh were directed to bring third owner namely Yashpal on 05.01.2007. Complainant did not identify Yogesh and Mukesh in the police station on taht day despite the fact that she was shown the documentary proof for their identify. On 05.01.2007 Yashpal came to the police with his identity proof. Prosecutrix alongwith her father also came to the PS but she did not identify Yashpal. Thereafter, a complaint was made by Prosecutrix against him to his senior police authority and hence, the file of the present case was marked to other police officer for conducting the further investigation of this case. :39: Other Witnesses:
63. PW18 Raj Kumar, Assistant Nodal Officer, Reliance Communication proved the CDRs of mobile phone NO. 9350458742 for the period w.e.f. 01.08.2006 to 01.04.2007 alongwith CAF, copy of driving license of Satish Kumar Sharma. As per record, the said mobile number was allotted to Satish Kumar. The CAF is Ex. PW18/A, photocopy of DL is Ex. PW18/B, CDRs are Ex. PW18/C.
64. PW18 proved the CDRs of mobile phone No. 9312743224 for the period w.e.f. 01.08.2006 to 17.05.2007 alongwith CAF, copy of driving license of Mohit Verma. As per record, the said mobile phone was allotted to Mohit Verma on 17.08.2005. The CAF is Ex. PW18/D, photocopy of DL is Ex. PW18/E and CDRs are Ex. PW18/F.
65. PW18 also proved the CAF of mobile phone NO.
9313087707, copy of driving license of Sukhbir Singh. As per record, the said mobile phone was allotted to Sukhbir Singh on 30.10.2005. The CAF is Ex. PW18/G and photocopy of DL is Ex. PW18/H. The witness stated that he has seen the CDRs placed on judicial file of the :40: said mobile phone and stated that they are the same CDRs, which he has produced.
66. PW23 R. K. Singh, Nodal Officer, Bharti Airtel Ltd. proved the record pertaining to mobile phone No. 9810361378. As per record, the said mobile was issued in the name of Sunil Grover. At the time of issuing the said number, the customer filled the CAF and enclosed copy of election identity card. The CAF is Ex. PW23/A. The copy of election identity card is Ex. PW23/B.
67. PW23 proved the record of mobile phone No. 9871134633. As per record, the said mobile number was issued in the name of Vivek Grover. At the time of issuing the said number, the customer filled up CAF enclosing copy of election identity card. The copy of CAF Ex. PW23/C. The copy of election identity card is Ex. PW23/D.
68. PW23 also proved CDRs of mobile phone No. 9871134633 for the period w.e.f. 09.02.2006 to 28.02.2006 and 25.01.2006 to 05.01.2007, the call details of mobile No. 9810361378 from 27.06.2006 to 31.08.2007 and from 01.01.2006 to 13.02.2006 placed on judicial file. They are the same call details which were issued by the mail and :41: are Ex. PW23/E collectively.
STATEMENT OF Accused AND DEFENCE EVIDENCE:
69. In their statement recorded under Section 313 CrPC, all Accused persons pleaded innocence and false implication.
70. All Accused persons except Accused Raina Grover chose not to lead any evidence in their defence.
71. Accused Raina Grover examined HC Hitesh Kumar as DW1. He proved the record i.e. DD register containing DD No. 53 dated 31.12.2005. Copy of the said DD entry is Ex. DW1/A.
72. DW1 deposed that he was also directed to produce complaints dated 31.12.2005, 06.06.2006 and 13.07.2006. However, the said record has been weeded out vide order dated 04.02.2013 Ex.
DW1/B.
73. DW2 HC Satish Kumar was summoned to produce the record relating to complaint stated to be lodged by one Raina with CAW Cell, Pitampura on 17.08.2006 and the record relating to appearance of the said Complainant on 26.08.2006. However, he :42: deposed that vide order dated 29.04.2013 Ex. DW2/A, the said record has since been weeded out.
ARGUMENTS:
74. I have heard arguments of Ld. Defence Counsels as well as Ld. Addl. PP for the State and gone through the entire evidence on record.
75. As discussed above, Accused Raina Grover, Anita Grover, Sunaina Grover and Chunky Grover are facing trial on the allegations that they all in furtherance of their criminal conspiracy with coAccused Harish Sachdeva, Rajesh Jaggi and Sunil Grover forced the Prosecutrix 'C' into prostitution and thereby committed offence punishable under Section 5 ITP Act r/w Section 120B IPC. Accused Harish Sachdeva and Sunil Grover have been facing trial on separate charges for offence punishable under Section 376 r/w Section 120B IPC for having committed rape upon the Prosecutrix in furtherance of aforesaid criminal conspiracy.
76. The case of the Prosecution, as aforesaid, arose from the complaint dated 26.08.2006 made by the Prosecutrix 'C' alleging that on :43: 03.10.2006, Accused Raina Grover, Anita Grover, Sunaina Grover and Chunky Grover took her to one "Sardar" in the area of Karol Bagh, who committed rape upon her and they charged huge amount of money from him. The Complainant also alleged that Accused Harish Sachdeva, Rajesh Jaggi and Sunil Kumar also committed rape upon her and during the course of investigation, she pointed out respective places where alleged offences took place.
77. Unfortunately, Prosecutrix 'C' expired after registration of the case and thus, could not be produced in the witness box during the course of trial.
78. It has been submitted by Ld. Defence Counsels that in absence of the testimony of the Prosecutrix, the case of the Prosecution does not stand proved. My attention was drawn to the judgment of Madhusudan Singh and another Vs State of Bihar AIR 1995 Supreme Court 1437 wherein Hon'ble Apex Court held that "FIR by itself is not a substantive piece of evidence. It can be used to either contradict or corroborate the maker thereof in the manner provided under the Evidence Act."
:44:
79. Ld. Defence Counsel thus contended that contents of the FIR cannot be substitute for testimony of the Prosecutrix and the allegations of rape upon the Prosecutrix cannot be said to be proved in absence of her testimony. Similar view was taken by Hon'ble Supreme Court in case of Nissar Ali Vs State of UP 1957 SC 366 which was relied upon by Hon'ble Delhi High Court in case of Savita Vs State of Delhi 2011 3JCC 1687. 80. The next contention of the defence is that complaint of the Prosecutrix upon which the FIR was registered is also inadmissible in evidence, it being hit by Section 33 of the Indian Evidence Act. In this regard, reliance was placed on judgment titled as Sashi Jena and others Vs Khadal Swain and another AIR 2004 Supreme Court 1492.
81. With regard to testimony of PW1 and PW2 i.e. father and brother of Prosecutrix, the defence vehemently argued that deposition of these two Prosecution witnesses is also inadmissible in evidence, it being hearsay and conviction of the Accused cannot be based thereupon. It was pointed out that in his crossexamination, PW1 admitted that "It is correct that my statement in the court is based on :45: what I had heard from my daughter and I was not a witness of any of incident." Even otherwise the testimony of PW1, PW2 and PW3 stated to be full contradictions and not helpful to the case of the Prosecution.
82. Prosecution, on the other hand, argued that PW10 Honey Mahajan and PW16 Geeta Mahajan, being husband and motherinlaw respectively of Accused Sunaina Grover, clearly deposed that Accused Sunaina indulged in prostitution at behest of her mother ie. Accused Anita Grover and Accused Sunaina Grover even confessed about the same to them.
83. Ld. Addl. PP while taking aid of Section 30, Evidence Act, contended that deposition of these two witnesses i.e PW10 and PW16, thus clearly supports the case of the Prosecution.
84. Further, it was contended by Ld. Addl. PP that deposition of PW21 Dr. Raman Khurana coupled with ultrasound report Ex. PW21/A also establish the case of the Prosecution regarding premarital pregnancy of Accused Raina Grover.
85. Ld. Addl. PP further drew my attention to the testimony of PW4 Surender Grover and PW5 Geeta Arora, and contended that it :46: stands proved on record that Accused Sunaina Grover and Raina Grover were indulging in prostitution.
86. The next argument of the Prosecution was with regard to the audio recordings stated to have been proved on record by PW6 Henu Mahajan. Relying on the same, Prosecution contended that said audio recording also prove the charges against Accused persons beyond reasonable doubt.
87. Besides the aforesaid, it was contended that pointing out memos of the places of occurrence as proved by PWs 3 and 9 who are independent public witnesses also prove the case of Prosecution against Accused Harish Sachdeva, Rajesh Jaggi and Sunil Kumar beyond reasonable doubt.
ANALYSIS: FINDINGS: REASONS:
88. I have given my thoughtful consideration to the matter at hand and the submissions made before me in the light of evidence on record in its entirety. The evidence on record, and the lack of it, may now be categorized as under for the sake of analyzing the case in hand: :47: No Direct Evidence:
89. Undoutedly, the present case is peculiar one, inasmuch as Prosecutrix expired after registration of FIR and thus, did not appear before the court to depose during trial. The contents of FIR thus, cannot be said to have been proved in absence of the testimony of the Prosecutrix.
90. Admittedly, the Prosecution has not examined any witness who could categorized as an 'eye witness' in the present case. In absence of the Complainant 'C', there is thus no direct evidence, whatsoever, to prove the allegations of commission of rape upon her by anyone, including Accused Harish Sachdeva, Rajesh Jaggi and Sunil Kumar.
91. I find myself unable to subscribe to the argument of the Prosecution that contents of the FIR can be read as "evidence". It is clearly held by Hon'ble Apex Court in the case of Madhusudan Singh and another Vs State of Bihar (Supra) that "FIR by itself it not a substantive piece of evidence. It can be used to either contradict or corroborate the maker thereof in the manner provided under the :48: Evidence Act."
92. I am also unable to hold that the complaint dated 26.08.2006, which led to registration of FIR, can be treated as admissible evidence with the aid of Section 32 Evidence Act. It is apparent on a bare perusal of clause (1) of Section 32 Evidence Act that a statement of relevant fact made by a person, who is dead, is relevant when the statement is made by the person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the causes of that person's death comes into question.
93. Certainly, the present case does not relate to the cause of death of the Complainant, nor can the complaint dated 26.08.2006 be said to be made by her as to the cause of her death.
94. Further, the complaint dated 26.08.2006 also cannot be read in evidence in view of the 2nd proviso to Section 33, Evidence Act. Thus, the present case is clearly a case of no direct evidence, the complaint dated 26.08.2006, leading to registration of FIR, being inadmissible in evidence in absence of the Complainant herself. :49: Hearsay Evidence:
95. The claim of the Prosecution that the testimony PW1 and PW2 establishes the allegations of commission of rape upon the Prosecutrix by Accused Harish Sachdeva, Sunil Kumar and Rajesh Jaggi or its case that the Prosecutrix was forced into prostitution by remaining Accused persons, does not appeal to reason. The testimony of PW1 and PW2 i.e. father and brother of the Prosecutrix is clearly hearsay and thus inadmissible in evidence.
96. Even otherwise PW1, father of the Prosecutrix, cannot be said to be a reliable witness. Upon perusal of his testimony in totality, it would be noticed that as per the FIR, PW1 did not return home, after being released on bail on the next day after his arrest on 31.12.2005. It is thus the case of the Prosecution that he remained at some other place and returned home only on 25.08.06 when he came to take her daughter ie. Prosecutrix from maternal house of Accused Raina Grover on 15.07.2006. It is further the case of the Prosecution as per chargesheet that deceased Prosecutrix revealed all the facts to her father on :50: 16.08.2006 i.e. on the day of Janmashtmi.
97. However, PW1 upon stepping into the witness box deposed that Prosecutrix apprised him about all the facts on 25.08.2006. He also stated in his crossexamination that he returned to his house after being released from jail on 25.08.2006 and his daughter had already came back at his house. He further deposed that his daughter told him about the commission of rape upon her on the same day and that on 26.08.2006, they lodged a case. This, is clearly at variance with the case of the Prosecution, as aforesaid.
98. It is also noteworthy that upon being crossexamined, PW1 was unable to state the addresses of places where he stayed for 08 months after being released on bail. He also admitted that Accused Sunaina Grover was married before 31.12.2005 and he attended not only her marriage, but also her Lohri function which obviously was on 13.01.2006.
99. What is also interesting to note is that admittedly, neither PW1 nor deceased PW Prosecutrix gave any complaint against Accused Rajesh Jaggi prior to 01.10.2006 when the Prosecutrix pointed out :51: address C113, West Patel Nagar, Delhi where Accused allegedly commited rape upon her. It is also interesting to note that Accused Rajesh Jaggi was not arrested even on 01.10.2006 and it is the own case of the Prosecution that he was arrested only on 11.09.2008 (Ex.PW13/H).
100. The reason for the said delay, however, remained unexplained during the entire length of trial. PW1 further admitted in his crossexamination that neither he, nor his daughter visited the shop or house of other Accused persons between 26.08.2006 to 30.08.2006 with the police, nor any complaint was filed by them against Accused Harish Sachdeva and Sunil during this period.
101. In the light of above discussion, it is apparent that testimony of PW1 cannot be said to be worthy of reliance, apart from the fact that it also clearly falls within the category of hearsay evidence, thus making inadmissible in evidence.
102. Similarly, PW2 Sunny Narchal, brother of deceased, who though deposed that Accused Raina Grover, Sunaina Grover, Anita Grover and Chunky Grover threatened his sister i.e. deceased :52: Prosecutrix and compelled her to indulge in prostitution, his statement to this effect is also inadmissible in evidence, being hearsay. Statement of PW4:
103. Prosecution, also placed much reliance on the deposition of PW4 Surender Grover, who deposed that he is living on the first floor at West Patel Nagar and his brother Sunil Grover is living on the second floor with his family. PW4 deposed that Accused Anita Grover, Raina Grover and Sunaina Grover used to indulge in business of prostitution and some unknown persons used to come at their house in connection with the prostitution. He also deposed that several times the unknown persons who wanted to go on second floor used to stop on the first floor and they used to show him the money and demand the girl for prostitution, due to which he felt ashamed several times. He also deposed that Sunaina Grover, Raina Grover, Anita Grover and Chunky Grover compelled the Complainant 'C' to indulge in prostitution alongwith them. He further stated that deceased 'C' told all these facts to him.
104. At the outset, it is necessary to note that testimony of PW4 :53: with regard to fact that Prosecutrix 'C' was forced into prostitution by Raina Grover, Anita Grover, Sunaina Grover and Chunky Grover cannot be read in evidence since it is the own testimony of PW4 that this fact was told to him by Prosecutrix.
105. Prosecution has placed much emphasis on the fact that PW4 admittedly attended marriage of Accused Raina Grover and Sunaina Grover and though there appears to be some property dispute between Sunil and his brother PW4 Surender Grover, yet in view of the fact that he attended marriage of his daughter, he can be safely said to be an independent witness. However, upon going through the testimony of PW4 in its totality, I find that his testimony to effect that Raina Grover, Sunaina Grover and Anita Grover used to indulge in prostitution or that several times unknown persons came to his house demanding girl for prostitution by showing money is too vague to be said to be sufficient to prove the case of the Prosecution. Noticeably, PW4 has not given any specific date with regard to any such incident nor Accused Anita Grover, Raina Grover and Sunaina Grover are facing trial for carrying out prostitution. The charge under Section 5 :54: ITP Act for having forced 'C' into prostitution cannot be made out from the testimony of PW4, which must be discarded, it being hearsay. Extra Judicial Confessional Statement:
106. The next witness i.e. PW5 Geeta Arora, who is stated to have been working in the Beauty Parlour, mother in law of Accused Sunaina Grover. This witness deposed that Accused Sunaina Grover once came to the Beauty Parlour and told her that she can earn lot of money in the short period by indulging in sexual activities with different persons.
107. Prosecution has sought to put forth an argument with regard to admissibility of deposition of PW5 Geeta Arora with the aid of Section 30 Indian Evidence Act.
108. To my mind, however, provisions of Section 30 Indian Evidence Act have no applicability in so far as testimony of PW5 is concerned. Before a statement of one of the Accused persons can be taken into consideration against the other Accused under Section 30 of the Evidence Act, the following conditions must be fulfilled:
i) There must be a joint trial for the same offence, :55:
ii) It must be a confession,
iii) The confession of guilt must implicate the maker substantially to the same extent as the other Accused,
iv) The confession of guilt must be duly proved.
109. On a reading of testimony of PW5 Geeta Arora, it is clear that as per this witness, it is only Accused Sunaina Grover, who told PW5 about herself indulging in acts of prostitution and she made no such statement about the coAccused, jointly facing trial with her. Thus, there is no question of applicability of Section 30 Indian Evidence Act in so far as deposition of PW5 is concerned.
110. Moreover, PW5 also stated that she was told by Geeta Mahajan and she came to know through her maid servant that Accused Sunaina Grover is involved in sexual relations with other men and some boys used to come to their house to meet her. This piece of evidence is also inadmissible, it being hearsay. Incidently, the said maid servant was neither cited nor produced as Prosecution witness during trial. Thus, I find no substance in the argument of Prosecution that PW5 Geeta Arora establishes its case against Accused, nor is there any :56: question of applicability of provisions of Section 30 Evidence Act in the present situation.
111. It may also be relevant at this juncture to revert to the deposition of PW10 and PW16 i.e. husband and mother in law of Accused Sunaina Grover. Here also Prosecution again seeks to take aid of Section 30 in support of its arguments that Prosecutrix apparently confessed to PW10 and PW16 that she used to indulge in prostitution and that her mother Accused Anita Grover an brother Chunky Grover used to take money from the customers for this purpose.
112. Ld. Addl. PP strongly argued that testimony of PW10 and PW16 support the case of the Prosecution. I, however, find on going through the deposition of PW10 and PW16 that both these witnesses did not even whisper about the deceased Prosecutrix having been forced into prostitution by Accused Raina Grover, Sunaina Grover, Anita Grover and Chunky Grover at any point during their entire deposition. These two witnesses merely deposed about what Accused Sunaina Grover allegedly told them about herself indulging in prostitution and the other Accused i.e. Anita Grover and Chunky Grover taking money :57: from the customers for this purpose. In absence of even iota of evidence in the deposition of PW10 and PW16 with regard to Prosecutrix having been compelled into prostitution by these Accused persons, PW10 and PW16 to my mind, do not lend any support to the case of the Prosecution.
113. In other words, the deposition of these witnesses does not establish the charge of Section 5 r/w Section 120B IPC, on which Accused Anita Grover, Raina Grover, Sunaina Grover are facing trial in the present case. It may also be pertinent to mention that in absence of any substantive evidence, the testimony of PW5, PW10 and PW16 cannot be said to be of any help to the case of the Prosecution. In this regard, reliance may be placed upon State of M.P. through CBI etc. Vs Paltan Mallah and Others etc. AIR 2005 Supreme Court 733 where it has been held that no conviction can be based for extra judicial confession of coAccused in absence of any substantive evidence against other Accused and that under Section 30 Evidence Act, extra judicial confession can only be admitted in evidence as corroborative :58: piece of evidence. Similar view has been taken in Hardeep Singh Sohal Vs State of Punjab AIR 2004 Supreme Court 4783. Statement of PW21:
114. PW21 Dr. Raman Khurana was examined by Prosecution to prove the ultrasound report of Accused Raina Grover Ex. PW21/A. As per this report, on 21.01.2005 one patient namely Raina came to PW21 for ultrasound examination and it was found that she was having pregnancy of 11 weeks. Ld. Addl. PP strongly argued that pregnancy report of Accused Raina Grover also lend support to the case of the Prosecution indulging Accused carrying out activities of prostitution.
115. To my mind, PW21 has failed to prove the case of the Prosecution to this effect. Admittedly, document Ex. PW21/A is a photocopy. PW21 also stated in his crossexamination that he had not taken any identity proof of Raina Grover, her father's name and her address. He has no record in his office to prove that patient Raina Grover came to his clinic for ultrasound. It is thus apparent on going through the testimony of PW21 that report Ex. PW21/A may pertain to any person in the name of Raina Grover and there is no evidence :59: whatsoever to connect the same with the Accused Raina Grover or to prove that it relates to her premarital pregnancy. Audio Recordings:
116. During the course of arguments, Prosecution also heavily relied upon the four audio cassettes, transcripts of recorded conversation and a CD brought on record by PW6 Henu Mahajan.
117. PW6 was firstly examined on 24.07.2010. The witness deposed that she had recorded the conversation taking place between her sister in law i.e. Accused Sunaina Grover and her mother Anita Grover while they were talking at their house. She further deposed that in the same span of time, when Accused Sunaina Grover was talking with some of her client on telephone, that conversation was also got recorded and from the said conversation, it was clear that Accused Sunaina Grover and her mother Anita Grover were involved in prostitution. PW6 also deposed that she also recorded conversation between Accused Sunaina and her parents Narender Mahajan and Geeta :60: Mahajan and in the said conversation, Accused Sunaina Grover admitted that she used to invite her clients at their house for prostitution.
118. PW6 also deposed that she also recorded the conversation of her brother Honey Mahajan and his wife i.e. Accused Sunaina Grover wherein Accused admitted her involvement in the prostitution.
119. The Investigating Agency seized the aforesaid four audio cassettes vide seizure memo Ex. PW6/A. During the course of trial, audio cassette bearing Cassette No. 1 was played in court on 23.10.2010. PW6 identified her voice and voice of Geeta Mahajan, besides voices of her parents Narender Mahajan and Geeta Mahajan and that of Accused Sunaina Grover. The transcript of said conversation was exhibited as Ex. PW6/B. The Prosecution, as aforesaid contended that said recorded conversation as per transcript Ex. PW6/B establishes the case of the Prosecution that Accused Sunaina Grover and her mother Anita Grover used to indulge in the activities of prostitution.
120. The defence, however, strongly opposed the Prosecution :61: case, not only with regard to the mode and manner of proving the recorded conversation, but also objected to the exhibiting of the transcript Ex. PW6/B as to mode of its proof. It was contended by Ld. Defence Counsel that neither the recorded conversation as contained in the audio cassette No. 1, nor its transcript Ex. PW6/B stand proved in accordance with law. Moreover, the case of the Prosecution cannot be said to have been proved by way of this evidence.
121. I have considered the aforesaid submissions. It is apparent on going through the crossexamination of PW6 that admittedly, the witness joined the investigation in the present case only on 14.11.2007 when her statement under Section 161 CrPC Ex. PW6/DA was recorded by the Investigating Agency. She admitted that she did not tell the police as to when the cassette was recorded or as to who recorded the conversation or as to who wrote the transcript Ex. PW6/B. She further admitted that transcript does not bear the signatures of the author nor the date when it was written. Thus, though the cassette stated to be containing the sound recording of conversation between Accused Sunaina Grover , PW6 Henu Mahajan and her parents Narender :62: Mahajan and Geeta Mahajan can be said to be primary evidence, yet to my mind, has not been proved in accordance with law.
122. The law dealing with tape recorded conversation has been laid down by Hon'ble Apex Court in case of Ram Singh and others Vs Col. Ram Singh AIR 1986 Supreme Court 3 , as under:
"The conditions for admissibility of a tape recorded statement are as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker.
Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape recorded statement has been proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said :63: statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible an dnot lost or distorted by other sounds or disturbances."
123. In the present case, though PW6 claims that voice recording in cassette No. 1 contains her voice and the voice of her parents besides that of Accused Sunaina Grover, I find no reason as to why Geeta Mahajan, who has been examined as PW16 was not asked to identify her voice in the said recorded conversation an why the Prosecution never put the cassette to PW16 Geeta Mahajan.
124. Similarly, there is no reason as to why Narender Mahajan, whose voice is stated to be contained in the said audio cassette was not examined as a Prosecution witness. Moreover, PW6 Henu Mahajan admittedly did not tell the police as to when and by whom the conversation contained in the aforesaid cassette was recorded. :64: Transcript Ex. PW6/B also does not stand proved in accordance with law. Thus, despite the fact that Accused Anita Grover and Sunaina Grover refused for giving their voice sample during the course of investigation, the mere fact that an adverse inference is likely to be drawn against them for this reason, cannot be said to be sufficient per se to hold that the recorded conversation as contained in Cassette No. 1 stands proved.
125. Apart from the aforesaid cassette, the Prosecution also relied upon a CD Ex. PW6/B, which as per PW6 was recorded by her from the recording of the aforesaid four audio cassettes. It is a matter of record that cassette Ex. PA2, Ex. PA3 and Ex. PA4 when played during the testimony of PW6 on 24.11.2010, the voices contained therein were not audible. PW6 deposed that she converted the cassettes into CD and she was allowed to prove on record all said CD vide order dated 11.11.2013. The said CD with transcript of conversation contained in the CD Ex. PW6/F stated to be in four different files was played in court and PW6 identified the voice contained in the said CD.
126. However, apparently no certificate under Section 65B :65: Evidence Act was furnished by the witness to prove the recorded conversation contained in the CD in question. In view of the recent ruling of Hon'ble Apex Court in case of Anvar P. V. Vs P. K. Basheer 2014 SCC Online SC 732, the said CD thus cannot be read in evidence. While overruling the case of State (NCT of Delhi) Vs Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 with regard to admissibility of secondary evidence pertaining to electronic record, Hon'ble Apex Court held as under:
"An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
127. In the light of the above discussion and the relevant case law on the subject, I am of the considered opinion that audio cassettes and CD sought to be relied upon by the Prosecution, also do not come to the aid of case of Prosecution.
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128. With regard to charge against Accused Rajesh Jaggi, Sunil Kumar and Harish Sachdeva under Section 376 r/w Section 120B IPC, I find that not even an iota of any substantive evidence has been brought on record by the Prosecution against these Accused persons. Obviously, with the demise of Prosecutrix, there is no evidence on record to establish that above named three Accused persons committed rape upon her, as alleged. There is also no evidence to establish any criminal conspiracy between Accused Rajesh Jagii, Sunil Kumar and Harish Sachdeva and Accused Anita Grover, Sunaina Grover, Raina Grover and Chunky Grover. The only material brought on record against these three Accused persons are the pointing out memos Ex. PW1/A, Ex. PW1/B and Ex. PW1/C which, cannot by any stretch of imagination, be said to be substantive evidence nor can the pointing out memos be said to have proved in case of the Prosecution against these Accused persons.
129. From the above discussion and the evidence on record, I am, therefore, of the considered opinion that Prosecution has miserably failed to prove the existence, of any criminal conspiracy between :67: Accused persons. Also, there is no legally admissible material on record to establish the charges for offence under Section 5 ITP Act r/w Section 120B IPC against Accused Raina Grover, Sunaina Grover, Anita Grover and Chunky Grover. Moreover, the charges under Section 376/120B IPC also do not stand proved in view of the above discussion and the evidence led on record during the course of trial.
130. Accordingly, all the above named Accused deserve to be acquitted from all charges on which they have been facing trial. It is ordered accordingly.
131. File be consigned to Record Room.
Announced in the Open Court on 16.12.2014 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.