Delhi District Court
Fir No. 63/11 State vs . Jahid @ Banti Etc. 1 Of 2615 on 17 November, 2015
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-03 (NE), KARKARDOOMA COURTS, DELHI. SC No. 17/11 Unique case ID no. 02402R0151412011 FIR No. 63/2011 PS : GTB Enclave U/s 365/366/367/354/506/34 IPC State Versus 1. Jahid @ Banti S/o Sh. Sadre Alam R/o Gali no. 9, Mandoli Road, Bank Colony, Delhi. 2. Soni @ Mehtab S/o Sh. Kishan R/o H. No. 1208, Janta Flat, Tulsi Niketan Bhopra, Ghaziabad, U.P 3. Saleem @ Mendak S/o Sh. Gulam Mohd. Khan R/o H. No. 160, Sunder Nagri, Nand Nagri, Delhi. Date of Committal : 04.06.2011 Date of Arguments : 02.11.2015 Date of Pronouncement : 17.11.2015 FIR No. 63/11 State Vs. Jahid @ Banti etc. 1 of 2615 JUDGMENT :
1. Prosecution case : It is the case of the prosecution that on 24.03.2011 at about 1.00 am, at near red light, GTB Hospital, Delhi, one lady namely Gauri @ Jyoti was waiting for an auto rickshaw and at that time, one TSR came there from the side of Nand Nagri in which four boys were sitting in the TSR, forcibly pulled her inside the auto and threatened her. It is further alleged that all the accused persons were abducted her with intention to abuse her physically and even they outraged to abuse her physically and also extended threats to kill in case of raising alarm. She shouted towards PCR van and police officials of PCR van started chasing and stopped the said TSR forcibly. It is further alleged that two of them were managed to escape and two accused persons were apprehended. Accused were arrested and thereafter chargesheeted after investigation.
2. This charge-sheet committed to this court after compliance of Section 207 Cr. P.C.
3. This court framed charges under Section 366/354/506(1)34 IPC against accused persons on 25.07.2011. Accused pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 Ms. Jyoti @ Gauri, PW2 Ct. Lokesh Singh, PW3 Ct. Sunil Kumar, PW4 Smt. Bhagwati, PW5 SI Shiv Lal, PW6 HC Naresh Singh, PW7 HC FIR No. 63/11 State Vs. Jahid @ Banti etc. 2 of 2615 Satish, PW8 SI Ratnesh Kumar Singh and closed PE.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C. and their statements were recorded. Accused have failed to lead any defence witness and DE was closed by this court vide order dated 12.10.2015.
6. I have heard the arguments and perused the record. As per the allegations of the prosecution, on 24/03/2011 at about 1:00 a.m., complainant was standing in waiting of an auto rickshaw when accused abducted the complainant with intention to abuse her physically and even they outraged her modesty by touching her body parts inappropriately and also extended threats to kill in case of raising an alarm. To prove these allegations, the testimonies of PWs are relevant. To prove the case, it is to be proved by the prosecution that the incident took place. It is to be seen as to whether prosecution has proved the incident of abduction of the complainant by the accused or not.
A. Incident:- Though the PW1 is the material witness to prove the incident yet the DD No. Ex.PW5/1 is also material to prove it. It was the first information by which the incident was reported. The incident was reported by the PCR official on 24/03/2011 at about 1:50 am to PS GTB Enclave via wireless that a PCR van B-30 was chasing a TSR heading towards Tahirpur in which a lady was crying for help. PW7 FIR No. 63/11 State Vs. Jahid @ Banti etc. 3 of 2615 and PW8 went to spot after receipt of information but till than two accused had been apprehended by PCR van alongwith PW1. As such, PW1 and PCR officials are the main PWs who are the eye witnesses of the incident.
(i) PW1 has deposed that on 24/03/2011 at about 1.00 a.m., she came out of GTB Hospital and was standing at GTB Red Light and waiting for TSR to go her home. It is further deposed that one TSR came from Nand Nagri side and stopped near her and occupants of auto dragged her inside the auto and misbehaved with her. It is further deposed that they were total four persons in auto who tried to take her somewhere and one was driving TSR who turned the auto towards Nand Nagri from Tahir Pur Red light. It is further deposed that she saw the policemen and started shouting 'Bachao-Bachao' and on hearing her cries, police Gypsy started chasing the auto and stopped the auto forcibly at Kodi Colony. It is further deposed that the occupants of the auto misbehaved with her and touched her body parts inappropriately and they were saying on the way that they would misbehave with her and she would not be in position to show her face to anyone and they also extended threats to kill in case of shouting. It is further deposed that police apprehended two accused namely Jahid @ Bunti and juvenile at the spot but others managed to escape. It is further deposed that the local police also arrived at the spot and accused were handed over to the local police and custody of complainant was entrusted to one Lady Ct. police recorded her statement Ex.PW1/A and accused were arrested.
FIR No. 63/11 State Vs. Jahid @ Banti etc. 4 of 2615
(ii). During cross examination by Ld. Addl. PP for State, PW1 has admitted that all the accused had stated inside the auto that she is a prostitute and they would enjoy with her and they pulled her inside the auto with a view to rape her. Police also seized the TSR bearing no UP-14-BT-6772.
(iii). During cross examination by accused, PW1 has deposed that her husband was away for his job on the day of incident and she had gone to hospital for medical checkup as she was on the family way but she did not remember the name of doctor who treated her and medical documents also fell down during the incident. It is further deposed that on the day of incident she did not get stopped the auto but the accused stopped themselves. It is further deposed that on the front seat driver was sitting. It is further deposed that her statement was recorded by the police at spot but she could not tell the exact distance from the place where she was kidnapped and the place where the accused were apprehended. It is further deposed that her statement was read over to her after recording and then she put her thumb impression. It is further deposed that the place where accused were apprehended was well lit with the street lights. It is further deposed that two persons pulled her inside the auto who were Soni @ Mehtab and Saleem and driver was driving the auto but he did not stop the auto till apprehended. It is further deposed that accused Jahid did not misbehave with her, but he could have stopped the auto and he was following the directions of other accused sitting on rear seat. It is further deposed that she raised alarm at the time of abduction but no FIR No. 63/11 State Vs. Jahid @ Banti etc. 5 of 2615 one tried to save her. It is further deposed that she did not know the accused earlier and she saw them on the day of incident.
(iv). PW2 Ct. Lokesh Singh visited the spot of incident under the instruction of PW8 and found HC Dev Dutt and Ct. Sunil of PCR besides PW7 and PW8 at the spot. PW1 was also present there and PCR apprehended two persons namely Jahid and juvenile and one TSR bearing No UP-14-BT-6772 was also at the spot. It is further deposed that accused apprehended at the spot disclosed the involvement of other accused namely Saleem @ Mendak and Soni @ Mehtab.
(v). During cross examination, he has deposed that he reached the spot at around 2.00 am and remained there upto 3:45 am. It is further deposed that public persons were not passing through there and only 2-3 documents were prepared there and statements of police officials were not recorded at the spot.
(vi). PW3 was posted as constable at PCR van Baker 30 on the day of incident on 24/03/2011 and HC Dev Dutt was Incharge of PCR.
It is further deposed that at about 1:15 am, PCR van was stationed at T point Tiharpur and he noticed one TSR coming from the side of GTB Hospital and heard the cries of a girl. It is further deposed that he responded to the cries and rushed towards Korhi colony and followed the TSR and managed to stop the TSR near DLF. It is further deposed that he noticed four persons and a girl were seated in the TSR. Two persons managed to escape and two were overpowered by them. It is further deposed that girl disclosed her name and complained that she FIR No. 63/11 State Vs. Jahid @ Banti etc. 6 of 2615 had been abducted by the accused from GTB Hospital and was also assaulted. A massage was flashed to control room and custody of accused as well as complainant was handed over to local police, but he has failed to identify the accused.
(vii). During cross examination, he has deposed that accused were apprehended at about 1:15 am and he chased about 10 minutes before stopping the auto. It is further deposed that he followed the accused in narrow streets and his vehicle got damaged during chasing the auto and he enquired the name of accused after nabbing them. It is further deposed after 8-10 minutes of arrival of local police he left the spot with PCR. It is further deposed that it was night time but street lights were working and it was not dark.
(viii). PW4 Bhagwati was the owner of the TSR bearing no UP-14-BT-6772 which was used during the incident and seized vide memo Ex.PW1/E and got released on Superdari vide Superdarinama Ex.PW4/B and document ownership is Ex.PW4/A (colly). The vehicle is Ex.PW4/P1.
(ix). PW5 SI Shiv Lal has proved the DD No. 6A which is Ex.PW5/1 of which copy was handed over to PW7. It is further deposed that at about 3:30 am, he registered the FIR on the basis of rukka prepared by PW8 and brought by PW7 and copy of FIR is Ex.PW5/2.
(x). PW6 has proved that on 24/03/2011 he made entry of seizure of TSR bearing no UP-14-BT-6772 vide entry Ex.PW6/1.
(xi). PW7 has also deposed that he visited the spot on receipt FIR No. 63/11 State Vs. Jahid @ Banti etc. 7 of 2615 the DD entry Ex.PW5/1 alongwith SI Ritnesh Kumar and found PCR officials namely HC Dev Dutt and Ct. Sunil who had apprehended two accused Jahid and Juvnile and one lady Gauri was also there. It is further deposed that PW8 prepared rukka on the basis of statement of the lady and handed over to him to get registered the FIR. He handed over the FIR after registration of FIR to PW8 SI Ritenesh Kumar. All the accused were also arrested in his presence and made their disclosure statements.
(xii). During cross examination, he has deposed that he reached at the spot with IO at about 2:00 am and no independent witness was found there. It is further deposed that he remained at the spot for about one hour and IO started to write at about 2:15 am and concluded statement at about 2:45 am. It is further deposed that the PCR officials were there and IO recorded the statement of complainant while standing on the road. It is further deposed that he left the spot with rukka at about 3.00 am and returned back at about 4.00 am.
(xiii). PW8 SI Ritnesh Kumar has also deposed the similar facts as of other PWs. It is deposed that he recorded the statement of PW1 which is Ex.PW1/A and prepared rukka Ex.PW8/1 and handed over to PW7 for registration of FIR. It is further deposed that he asked the DO to provide more staff and Ct. Lokesh and L/Ct. Meenu were sent to the spot. It is further deposed the Ct. Lokesh informed that FIR no 63/11 was already registered against Juvenile on the basis of DD Entry No. 8A. He arrested the accused in this case from the spot and later on, on the basis of the information of secret informer, other accused were FIR No. 63/11 State Vs. Jahid @ Banti etc. 8 of 2615 arrested.
(xiv). During cross examination, he has deposed that he took 40 minutes in recording the statement of complainant and handed over rukka to PW7 at about 3.00 am and he came back with FIR at around 5 am. It is further deposed that he remained at the spot till 5.00 am and by the time PW7 came back to the spot, PCR officials left the spot. It is further deposed that he did not collect any document that accused Jahid was driver of the auto and even he did not record the statement of the owner to this effect.
(xv). After going through the statements of all PWs, it is clear that the PW1 has duly proved that the incident was took place against her and accused abducted her while she was waiting at GTB Chowk for an auto to return back to her house from GTB Hospital after her medical checkup. PW3 has duly supported to the PW1 that he alongwith HC Dev Dutt apprehended two accused alongwith TSR bearing no. UP-14-BT-6772 which is Ex.PW4/P1. CW1 has proved that HC Dev Dutt is unable to speak and walk on account of disease 'post traumatic quardriparesis' and has been invalidated from Delhi Police on medical ground vide order dated 25/03/2015 due he could not be examined and it is not fatal to this case. PW3 has duly proved the on hearing of the cries of the pw1 he chased the auto in which pw1 was abducted and, he apprehended two accused namely Jahid and Juvenile at the spot alongwith auto, but two other managed to escape. PW2, PW7 and PW8 have also proved and corroborated the testimonies of PW1 and PW3 that they found them at the spot after the FIR No. 63/11 State Vs. Jahid @ Banti etc. 9 of 2615 incident. PW1 has duly explained beyond reasonable doubt that the accused abducted her from Red Light, GTB Hospital when she was waiting for an auto but accused suddenly dragged her inside the auto whereas she did not ask them to stop. During the incident she cried and PW3 heard the cries and chased the auto and got it forcibly stopped and apprehended two accused and complainant. It is further proved that the said abduction was with intention to commit rape or for sexual pleasure. Even accused touched the complainant's body parts in-appropriately and, they also extended threats to kill in case of raising alarm.
(xvi). During the course of arguments, Ld. counsel for the accused has argued that accused have been falsely implicated in this case as the police have failed to seize the medical documents of the complainant to prove that she was present at the spot at the time of her alleged abduction and even no such document has been seized to prove that the accused Jahid was the driver of the auto. It is further argued that PW8 has not supported the testimony of PW7 and delay in registration of case also suggests that the entire story is concocted. It is further argued that the non examination of HC Devdutt, who was the incharge of alleged PCR which chased and apprehended the accused alongwith auto, also could not be proved and it is fatal to the case of the prosecution and incident could not be proved beyond reasonable doubt.
(xvii). On the other hand, Ld. APP for state has argued that the prosecution has duly proved the incident of abduction of the FIR No. 63/11 State Vs. Jahid @ Banti etc. 10 of 2615 complainant and accused were duly apprehended alongwith auto by the PCR officials and the testimony of PWs has duly proved that the accused abducted the complainant with intention to commit rape on her and they also extended threats to kill her, in case of raising alarm. They also touched her inappropriately during the incident and they are liable for the same.
(xviii). I have heard the arguments and perused the record. The defences led by the accused are not sustainable. Firstly, non- seizure of medical document of the complainant to prove that she visited the GTB Hospital is not fatal to the case of the prosecution as PW1 has explained that the documents were dropped some where during the incident and it is quite possible as nobody in similarly situated situation would care for documents when she is being kidnapped in the odd hours at 1.00 am by four accused especially a lady who has everything to lose by such kidnapping. As such, it is not fatal to this case.
(xix) Secondly, even it is also not fatal to the case of the prosecution that HC Devdutt could not be examined by the prosecution. CW1 has proved this fact that he was not in position to depose before this case in the absence of walking or speaking ability. If a person is not in position to speak or walk then how he would depose before the court. In fact, he was supposed to prove a fact about chasing and apprehending the accused on hearing the cries of the pw1 and, PW3 has duly proved this fact. As such, non examination of HC Devdutt is not fatal to this case.
(xx). Even the recovery of any document about being the FIR No. 63/11 State Vs. Jahid @ Banti etc. 11 of 2615 accused Jahid as auto driver is not fatal to this case as, it was not necessary that accused must be a driver of the auto rickshaw used in the incident. Accused was apprehended with auto rickshaw used in the incident and PW1 has duly explained that he was driving the auto in a very fast speed and was following the instructions of the other accused sitting in the rear seat. It is further deposed that the accused did not stop the vehicle despite raising alarm by complainant. As such, all the PWs have proved the incident but accused has failed to prove any defense against the incident.
B. Arrest of the Accused:
(i) The arrest of the accused Jahid and Juvenile was made at the spot after apprehending them by PCR officials who chased the auto on hearing the cries of the complainant and forcibly stopped the auto and then local police arrested the accused. Accused Jahid was arrested vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. PW1 put her thumb impression on arrest memo Ex.PW1/B when it was duly filled up. PW2 Ct. Lokesh has also proved that the accused Jahid was arrested in his presence. The other accused who was Juvenile was arrested separately in this FIR No. 63/11.
(ii) The other two accused ran away from the spot when PCR apprehended the accused alonwith pw1 after chasing the TSR. PW1 has deposed this fact and PW3 has also supported it. The statement of the PW1 which is Ex.PW1/A has description about the names of the FIR No. 63/11 State Vs. Jahid @ Banti etc. 12 of 2615 accused who managed to escaped. As per the statement, on interrogation, the names of the other accused were disclosed as Saleem @ Mandek and Sadab @ Soni. PW7 and PW8 have proved the arrest of accused Soni @ Mehtab. PW7 has deposed that on 26/3/2011 at about 11.00 pm, he was present alongwith IO at red light when secret informer informed to IO that one of the accused involved in this case was roaming in the area Sunder Nagri on motorcycle. He alongwith PW8 reached near MCD office, Sunder Nagri and on the pointing out of secret informer accused was apprehended by the IO and arrested after interrogation vide memo Ex.PW7/1 and his personal search was conducted vide memo Ex.PW7/2 and motorcycle was seized vide memo Ex.PW7/3 which was later released by the court on superdari. Accused made a disclosure statement Ex.PW7/4.
(iii) Accused Saleem @ Mendak was arrested on 28/03/2011 when the secret informer gave information at about 3.00 pm, that accused involved in this case was present at Gagan Cinema. He was apprehended and on interrogation arrested vide memo Ex.PW7/5 by IO and his personal search was conducted vide memo Ex.PW7/6. Accused made a disclosure statement Ex.PW7/7.
(iv) During cross examination, PW7 has deposed that secret informer pointed out towards the accused Soni @ Mehtab from a distance of 15-20 meters and accused was not wearing helmet at the time of his arrest and he did not try to run away. It is denied that accused was not arrested or his documents regarding his arrest were prepared at PS. It is also denied that the motor cycle has no FIR No. 63/11 State Vs. Jahid @ Banti etc. 13 of 2615 concerned with the accused or is planted one. Similarly, accused Saleem was apprehended at about 5:30 pm in the presence of a lot of persons. It is denied that signatures of the accused were obtained on blank papers or accused did not make any disclosure statement. It is admitted that no site plan of arrest of accused was prepared.
(v) PW8 has also deposed the similar facts as of PW7 and during cross examination, he has deposed that on the day of incident after arrest of the accused Jahid he sent Juvenile, alongwith Ct. Lokesh and W/Ct. Meenu to PS and complainant was also relieved, but he alongwith accused Jahid and Ct. Satish went to Sunder Nagri area in search of other accused but they could not be traced. It is further deposed that the criminal dossier was checked to ascertain the names of the accused before their arrest and he was arrested on the basis of secret information in the presence of PW7. It is further deposed that on 05/05/2011, he was present in court complex regarding extension of the remand of the accused Soni and Saleem and PW1 came to Court to make an enquiry where he identified the accused and her supplementary statement was recorded by him regarding it.
(vi) After going through the statements of PW1 and PW3, it stands proved that the accused Jahid and Juvenile were apprehended by PCR after kidnapping of the PW1 and they were apprehended red handed and later on arrested by local police. The arrest of other accused has been disputed by the Ld. Counsel of the accused on the ground that the identity of accused who ran away from the spot was FIR No. 63/11 State Vs. Jahid @ Banti etc. 14 of 2615 not ascertained and even PW1 did not give and description of the accused but police still arrested them on the basis of secret information and their false implication cannot be ruled out.
(vii) I have gone through the material available on record. Though the accused Soni @ Mehtab and Saleem @ Mendek were arrested on the basis of secret information, yet their names were duly disclosed by the accused Jahid in his disclosure statement and even it was recorded in the statement of PW1 which is Ex.PW1/A. Though the accused have claimed their false implication in this case, yet they refused to participate in the TIP proceedings vide proceedings Ex.C1 and Ex.C2 and no plausible explanation has been forwarded to it. Even the PW1 and PW8 have duly deposed that accused Saleem @ Mendak was seen by the complainant when she came to court to make an enquiry of her case and PW8 came to court regarding extension of remand of accused persons on 05/05/2011 and she identified them to be the same person who committed the incident. Both PWs have identified all the accused before this court as well. She did not know both accused prior to the incident and saw them first time on the day of incident and PWs have duly deposed that there was sufficient light of street lights at the spot at that time at the time of apprehending accused, and it was quite possible to identify the accused. Even she has identified the accused Soni @ Mehtab who intimidated her. Pw1 remained in auto for about 20 minutes and it was sufficient time to identify the accused. PW7 and PW8 were the persons who arrested the accused but accused have not cross FIR No. 63/11 State Vs. Jahid @ Banti etc. 15 of 2615 examined them regarding their involvement except putting the suggestions that the mode and manner of arrest was not proper that they have been falsely implicated, but it has not been proved as to how they have been falsely implicated and what was the motive of the complainant to implicate them in a false case. Though PW8 has admitted that no site plan of the arrest of accused was prepared, yet it is not fatal to the case as any deficiency in investigation is not a ground to give benefit to accused. As such, the arrest of the accused stands proved in this case in pursuance of their involvement.
C. Identity of Accused: Identity of accused is not much disputed in this case. PW1 has identified all the accused before this court. Accused Jahid and Juvenile were apprehended at the spot and PW2, PW3, PW7 and PW8 have corroborated this fact who saw the accused alongwith TSR and complainant at the spot after the incident. PW3 has proved that he chased the auto and apprehended two accused. Thereafter two other accused were apprehended at the instance of secret informer by PW7 and PW8. Their identity has been established by the PWs before the court. PW1 and PW8 have duly proved that she identified the accused Soni @ Mehtab and Saleem @ Mandak in Karkardooma Court complex when they were produced for extension of remand and complainant visited there to know the status of her case. Both accused deliberately refused to participate in the TIP proceedings despite making them aware about the adverse consequences. Even they have not tendered any explanation during FIR No. 63/11 State Vs. Jahid @ Banti etc. 16 of 2615 examination of PWs about the reason of their refusal for TIP proceedings Ex.C1 and Ex.C2. As such, the identity of accused stands proved.
D. Involvement of Accused :
(i) The involvement of accused is material and is to be proved by the prosecution beyond reasonable doubt and without proving it, accused cannot be held guilty despite proving their identity, arrest and other material facts. In the present case, accused Jahid and Juvenile were apprehended and arrested at the spot after the incident and PW1 and PW3 have also proved this fact that the accused kidnapped the PW1 and were apprehended red handed with the complainant and auto rickshaw. PW2, PW7 and PW8 have also corroborated this fact that they saw the complainant alongwith accused and auto used in the incident and PCR officials were also present their when they visited the spot. Even the DD entry No. 6A has also proved the information and visit of PW2 and PW7 and PW8 on entrustment at the spot of the DD. PW1 and duly identified accused Jahid before this court.
(ii) Further the other accused were apprehended and arrested by the PW7 and PW8 on the basis of secret information as well as the information provided by the accused Jahid during his disclosure statement made during interrogation. Both the accused were duly identified alongwith their specific roles played by them. PW1 has deposed accused Saleem @ Mandak and Soni @ Mehtab were FIR No. 63/11 State Vs. Jahid @ Banti etc. 17 of 2615 identified by her on 05/05/2011, when she came to court to make enquiry from IO about her case and both accused were being produced there for extension of remand. Thereafter she identified them before this court during her examination despite the fact that she did not know them earlier. Accused have failed to point out any motive on the part of the complainant to implicate them except a suggestion that husband of the complainant is a person of criminal background and accused have been implicated because of enmity with him. However, no such document or any involvement of the husband of the complainant or any enmity with the accused has been proved before this court. In the absence of proving any such fact as stated herein above, it could not be proved that accused have been falsely implicated in this case.
(iii) The involvement of the accused has been pointed out since beginning of the case initiated on the statement of PW1 which is Ex.PW1/A where the names of the accused were disclosed. Even the names of the accused were further disclosed in the disclosure statement of the accused Jahid which is Ex.PW1/F. The seizure of TSR Ex.PW4/P1 at the spot vide seizure memo Ex.PW1/E of which documents are Ex.PW4/A (Colly.) has also proved that the accused were apprehended at the spot when abducted / kidnapped the complainant. That auto was later on got released on superdari vide Ex.PW4/B by PW4 who is the mother of Juvenile apprehended red handed.
(iv). Similarly, the other accused were also apprehended in FIR No. 63/11 State Vs. Jahid @ Banti etc. 18 of 2615 this case who were also involved in this case as identified by the complainant that the Accused Saleem @ Mandek also extended threat to her in the auto rickshaw. PW1 has also verified her statement recorded by the police during investigation and also the arrest and disclosure statement of the accused. Any of the accused was not previously known to the complainant so false implication of any accused without motive was out of question. As such, the involvement of the accused in the incident stands proved beyond reasonable doubt.
E. Defences of accused and lapses in investigation: Though the defenses of the accused have been discussed by and large during my observations hereinabove, yet they are required to be discussed separately.
(i) First defence taken by the accused is that there was a lot of delay in lodging the FIR, whereas the alleged place of incident was not much far away from the PS and it renders the incident doubtful and accused are entitled for benefit of doubt. To consider this defense, the examination of PWs is material. The DD entry Ex.PW5/1 was lodged at 1.50 am on the basis of PCR information and PW7 reached the spot at about 2.00 am alongwith IO who has also verified the same. IO starting recording the statement of PW1 at about 2:15 am and concluded by 2:45 am. Thereafter, rukka was prepared by PW8 and handed over to PW7 for registration of FIR at about 3.00 am and he returned back to the spot by 4.00 am. Contrary to it, PW8 has given a little different description that he reached at the spot at about 2.00 am FIR No. 63/11 State Vs. Jahid @ Banti etc. 19 of 2615 and took 40 minutes in recording the statement of complainant and handed over rukka to PW7 at about 3.00 am. To the extent of arrival at the spot, the timings given by the PW7 and PW8 are similar and have no discrepancy. However, the difference of timings with regard to the time taken by PW7 in reaching back to to the spot with FIR. PW7 reached the spot at 4.00 am, but PW8 has deposed that he reached at 5.00 am. As per FIR Ex.PW5/2, it was lodged on the basis of DD entry No. 8A at about 3:30 am. If the rukka was prepared and handed over to PW7 at 3.00 am and FIR was lodged at 3:30 am, then there was no such delay in lodging FIR as argued by Ld. Counsel for accused, as a computerized FIR would definitely take some time in recording. In fact, the difference of timings in the deposition of PW7 and PW8 could be only because of lapse of period in deposition and incident as the incident took place on 24/03/2011 and their deposition was recorded on 19/08/2014 and 20/08/2014 respectively. In such a long duration, some fading of memory is natural and this discrepancy is not fatal to the case of the prosecution. As such, it is not a defence.
(ii). The other defence taken by the accused is that the police did not get joined the public persons in the investigation despite their availability and false implication of accused may not be ruled out. The incident took place in the odd hours at 1.00 am (night) and statement of the complainant was recorded at about 2:45 am. All the PWs have deposed that the public persons were not available at that time and if the public persons were not available then, how their involvement in the proceedings could be possible. Even otherwise it a matter of FIR No. 63/11 State Vs. Jahid @ Banti etc. 20 of 2615 common sense as to where the public persons would be available at 3.00 am (night) to join proceedings. Even otherwise, if it is assumed for the sake of arguments that some public persons were available or passing though then also who will get ready to join investigation in such a wee hours. As such, defence is not sustainable.
(iii). Another defense taken by the defense is that the IO has not supported that the statement of PW3 was recorded at the spot as PW3 has deposed that he left the spot after the incident being the driver of the PCR, but PW7 and PW8 have deposed that the PCR officials remained there at the spot after the incident and their statements were recorded at about 3:30 am. I have gone through the testimony of the PWs. Though PW3 has deposed that he left the spot after the incident being the driver of the PCR after handing over the custody of the accused and complainant to the local police who reached the spot on information, yet he has deposed that local police reached the spot in his presence and PW7 has also certify the presence of PW3 at the spot alongwith the accused and complainant. PW8 has deposed that the statement of PCR official was recorded at about 3:30 am which proved the presence of the PW3 at the spot after the incident and during incident. PW1 has supported the testimony of PW3 alongwith his role and presence at the spot. As such, it is not a defence at all.
(iv). Another defense taken by the accused is about the doubtful arrest of the accused. I have already dealt with this defense of the accused under the heading 'Arrest of the Accused'. the arrest of FIR No. 63/11 State Vs. Jahid @ Banti etc. 21 of 2615 the accused was not doubtful. One of the accused Jahid was arrest at the spot soon after the incident and other accused were arrested on the basis of secret information. Accused have not pointed out any discrepancy in the arrest and even they have not cross examined the PWs regarding it except putting suggestions and, it could not be proved that they have been falsely implicated in this case.
(v). Another defence of the accused is that the identity of the accused Saleem @ Mandek and Soni @ Mehtab was not ascertained and they have been falsely implicated in this case, but again this defense has been dealt with by this court. Besides it, the accused were offered to get conducted by their TIP but they refused it consciously despite knowing the consequences. PW1 and PW8 have duly proved that the both accused were duly identified by the PW1 in the court complex before identifying them in the court. PW8 recorded the supplementary statement of the PW1 regarding it and the same has also been verified before this court. Even the names of both accused were already disclosed by the accused Jahid alongwith the address of one of the accused in his disclosure statement as recorded in the statement of the PW1 as well. As such, the defence taken by the accused is not sustainable.
(vi). Another defense of the accused is that the accused have been falsely implicated in pursuance of the enmity with the husband of the complainant. However, accused have not led any evidence to prove this defense that the husband of the accused is involved in any case or had any enmity with the accused. Rather, PW1 has deposed FIR No. 63/11 State Vs. Jahid @ Banti etc. 22 of 2615 that she did not know the accused earlier and nothing against it has been put to her. In the absence any material on record, this defence of the accused could not be proved.
(vii). Another defense taken by the accused is that the site plan prepared by IO is defective and has not reflected the correct situation of the place of incidence. However, during the cross examination of the PW1 and PW8, it was not specifically pointed in what manner site plan is defective. On the other hand, PW1 and PW7 have duly proved that the IO prepared the site plan of the place of incident and in the absence of pointing out any deficiency in the site plan, it is no defence at all.
(viii). Another defense is that the IO did not prepare the site plan of the place of arrest of the accused Saleem @ Mandek and Soni @ Mehtab and it render the arrest doubtful. However, accused has failed to point out any deficiency in their arrest and merely absence of site plan cannot render the arrest doubt. PW7 and PW8 have sticked to their testimony regarding the arrest of the accused and no material contradiction has come on record which proves that merely absence of site plan is fatal to the case of the prosecution and it is no defense.
(ix). Besides these defenses, no other material defense has been led by the accused and all the defenses taken before this court are vague and discarded.
F. Offences proved against the accused: The accused have been charged for many offences whom I am taken up one by one :
FIR No. 63/11 State Vs. Jahid @ Banti etc. 23 of 2615 (1). Section 366/34 IPC - The first offence for which accused have been charged is u/s 366 IPC and, Ld. Counsel for the accused has argued that the prosecution has failed to prove that the accused kidnapped / abducted the complainant in order to commit any offence due to accused are entitled for acquitted.
(i) To prove these allegations the testimony of the PW1 is material in which she has categorically deposed that accused told after her kidnapping that they 'would enjoy with her' and during cross examination by Ld. Addl. PP for State, she has admitted that they pulled her inside with a view to rape her. It is further deposed that the accused were saying that they will "misbehave with her and she would not in a position to show her face to anybody". It is further deposed that accused were fondling with her body and touching her body parts.
This deposition of the PW1 made it clear that her kidnapping / abduction by the accused was in order to rape her or to exploit her sexually. The kidnapping of the complainant has already been proved by the PWs and the purpose of the kidnapping has been proved by the PW1. Though PW1 has deposed that accused Jahid did not misbehave with her, yet he was driving the vehicle in which she was kidnapped and was following directions of the other accused that were sitting in rear seat of the auto and also did not stop the auto despite raising the alarm by her. It is further deposed that he could have stopped the auto, if wanted. This testimony of PW1 has duly proved that that Jahid was also the accomplice of the other accused and was also acting in furtherance of their common intention, and he can not be FIR No. 63/11 State Vs. Jahid @ Banti etc. 24 of 2615 left scot free just because he did not physically misbehave with her but facilitated the opportunity to others to misbehave with her. In fact, he is also responsible for the same offence for his common intention. As such, it stands proved that the accused committed the offence under section 366/34 IPC which was committed by all accused in furtherance of their common intention.
(2) Section 354/34 IPC :- All the accused have been charged for this offence and in view of the testimony of PW1, it is clear that all the accused except accused Jahid assaulted the complainant and used criminal force intending to outrage her modesty. PW1 has deposed that all the accused in rear seat were fondling her body and touched her body parts inappropriately. This deposition itself proved that all the accused committed this offence in furtherance of their common intention, but accused Jahid who was driving the vehicle and did not misbehave with the complainant is not liable for this offence. However, the other accused namely Saleem @ Mandek and Soni @ Mehtab are liable u/s 354/34 IPC.
(3) Section 506 (I)/34 IPC : - All the accused has been charged for this offence. To prove this offence, PW1 has deposed when the TSR was in motion, the accused persons had threatened her that if she shouted, then they will not leave her alive. During cross examination, PW1 has specified that accused Soni @ Mehtab who was sitting in rear seat intimidated her by saying, "AGAR CHILAYA FIR No. 63/11 State Vs. Jahid @ Banti etc. 25 of 2615 TAU ACHCHHA NAHI HOGA". This testimony itself suggests that the threat was extended by accused Soni @ Mehtab and general deposition that all the accused extended threat to her could not be proved that all the accused had criminally intimidated her. As such, this offcence could be proved only against the accused Soni @ Mehtab.
7. Conclusion : Keeping in view the facts and circumstances of the case, I am of the considered opinion that the prosecution has proved beyond reasonable doubt that all the accused in furtherance of their common intention committed the offence under section 366/34 IPC. Accused Soni @ Mehtab has also committed the offence under section 354/34 IPC as well as offence under section 506(1)IPC. However, charges under section 354/34 IPC could not be proved against the accused Jahid and Charges under section 506(1)/34 IPC could not be proved against the accused Saleem @ Mandek and Jahid. Accused Jahid is convicted u/s 366/34 IPC. Accused Saleem @ Mandek is convicted u/s 366/354/34 IPC. Accused Soni @ Mehtab is convicted u/s 366/354/506(1)/34 IPC.
Announced in open court (Devender Kumar)
today on 17.11.2015 Additional Session Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 63/11 State Vs. Jahid @ Banti etc. 26 of 2615