Delhi District Court
State vs . 1. Anwar on 22 April, 2014
1
FIR No. 1408/07
PS - Sultan Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 71/13
Unique ID No. : 02404R0657292007
State Vs. 1. Anwar
S/o Mohd. Salim
R/o B324, Jahangir Puri,
Delhi.
2. Sushma
W/o Neetu
R/o T1/50, Budh Vihar,
Phase - I, Delhi.
3. Mercy Serroa @ Shanti
W/o Anseil Serroa
R/o 6/216, PMG Colony,
V. B. Nagar, Kurla (West),
Mumbai - 70.
Present Address :
16/201, PMG Colony,
V. B. Nagar, Kurla (West),
Mumbai - 70.
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2
FIR No. 1408/07
PS - Sultan Puri
FIR No. : 1408/07
Police Station : Sultan Puri
Under Sections : 376(2)(g)/365/366/342/328/120B/34 IPC
& Section 4/5/6 ITP Act
Date of committal to session Court : 24/12/2007
Date on which judgment reserved : 26/03/2014
Date on which judgment announced : 22/04/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 11/09/2007, prosecutrix (name withheld being a case u/s 376 IPC) came to the Police Station and made a statement which is to the effect that, she is residing at House No. Y36, Mangal Bazar, Phase V, Sultan Puri, Delhi with her family on rent for the last five years. She has studied upto 10th class. On 06/08/2007 at about 8:00 p.m. in the evening she was going to take curd and on the way Sushma met 2 of 161 3 FIR No. 1408/07 PS - Sultan Puri her who asked her to drink the juice and she (prosecutrix) drank the juice and thereafter, Anwar, devar of Sushma met her and then she became unconscious. When she regained consciousness she found herself in a train. Anwar told this is Shahjahan Pur and here his mausa Abdul Wahid lives and she was taken to the house of Abdul Wahid. There Abdul Wahid offered her sweet to eat. After eating sweet she became somewhat unconscious. Anwar and Wahid committed rape upon her. She was kept confined for three days there. Abdul Wahid pressurised her to make marriage with him which she refused. Thereafter, she was taken to Mumbai and there she was kept in a rented room. At the said room, one boy named Rakesh used to come to meet both (Anwar and Abdul Wahid) of them. Thereafter, these three (Anwar, Abdul Wahid and Rakesh) sold her to one lady named Shanti. Shanti used to beat her and used to give intoxicated injections and used to keep her confined in a room after closing it and used to talk other persons for the further sale of her (prosecutrix) and used to send her to different persons for establishing physical relations. One day, after finding an opportunity, she (prosecutrix) phoned her brother. He brother Rinku brought her to Delhi from Mumbai. On 09/09/2009, she came to Delhi 3 of 161 4 FIR No. 1408/07 PS - Sultan Puri and her condition was very worst at that time (Meri Halat Us Samay bahut Kharab Thi) and for this reason she has come today (11/09/2007) to the Police Station for lodging the report. Sushma had made her to drink juice after mixing some intoxicating substance. Anwar had forcibly taken her away to Shahjahan Pur in the house of his Mausa and there Abdul Wahid and Anwar had committed rape upon her and they had sold her to Shanti with the help of Rakesh. Shanti used to send her for establishing physical relations with different different persons and used to beat her and used to give intoxicated injections after confining/closing her in the room. Legal action be taken against all these. She has made the statement in the presence of her mother Smt. Bimla. Statement has been read out to her and is correct. On the basis of the said statement, a case u/s 365/366/376(2)(g)/328/342 IPC was got registered and the investigation was proceeded with by W/SI Nisha. During the course of investigation, prosecutrix was got medically examined and the sealed exhibits handed over by the doctor after her medical examination were taken into police possession. Section 120 B IPC and sections 4/5/6 ITP Act were added. Accused Anwar and Sushma were arrested. Anwar was got medically examined and the 4 of 161 5 FIR No. 1408/07 PS - Sultan Puri sealed exhibits handed over by the doctor after his medical examination were taken into police possession. Site plan was prepared. Statements of the witnesses were recorded. Further investigation was handed over to Inspector Mir Singh and thereafter on 16/11/2007, further investigation was handed over to Inspector Deen Dayal. Inspector Deen Dayal got deposited the sealed exhibits in FSL. Efforts were made for the tracing out of accused Abdul Wahid, Rakesh and Shanti but nothing could be known about them and on their tracing out supplementary chargesheet shall be filed against them.
Upon completion of necessary further investigation challan for the offences u/s 376(2)(g)/365/366/342/328/120B/34 IPC and u/s 4/5/6 ITP Act was prepared against accused Anwar and Sushma and was sent to the Court for trial.
2. Since the offences under section 376(2)(g)/366/328 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case against accused Anwar and Sushma was committed to the Court of Session under section 209 Cr.P.C.
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3. During the course of further investigation on 07/12/2007, accused Mercy Serroa @ Shanti was arrested and a supplementary chargesheet for the offences u/s 328/342 IPC and u/s 4/5/6 ITP Act was prepared against her and after compliance of the provisions of section 207 Cr.P.C., the case against accused Mercy Serroa @ Shanti was sent to the Court of Session for trial.
4. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case u/s 376(2)(g) IPC, Section 342/34 IPC and Section 372/34 IPC against accused Anwar, a case u/s 120B IPC, Sections 328/365 IPC r/w section 120B IPC against accused Anwar and Smt. Sushma on 14/01/2008 and prima facie a case u/s 120B IPC, Section 5 of the Immoral Traffic (Prevention) Act, 1956, Sections 343/323 IPC and Section 328 IPC against accused Mercy Serroa @ Shanti on 23/09/2008 were made out. The charges were framed accordingly, which were read over and explained to the accused to which they pleaded not guilty and claimed trial.
5. In support of its case prosecution has produced and 6 of 161 7 FIR No. 1408/07 PS - Sultan Puri examined sixteen witnesses. PW1 Prosecutrix, PW2 Bimla, PW3 Lady Constable Rajesh, PW4 Dr. Renu Gupta, Senior Resident Gynaecology, SGM Hospital, Mangol Puri, Delhi, PW5 Rinku @ Praveen Kumar, PW6 - Constable Vijay Kumar, PW7 Dr. Shankar Gupta, CMO SGM Hospital, Mangol Puri, Delhi, PW8 Constable Nav Rattan, PW9 - Constable Biri Singh, PW10 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, New Delhi, PW11 SI Alok, PW12 HC Ramesh Kumar, PW13 Inspector Deen Dayal Kansal, PW14 SI Mukesh Kumar, PW15 W/Constable Babita and PW16 W/SI Nisha.
6. In brief the witnessography of the prosecution witnesses is as under : PW1 prosecutrix is the victim who deposed regarding the incident and proved the complaint made to the police Ex. PW1/1, signed by her at point 'A'. Arrest memo of accused Anwar Ex. PW1/A, his personal search memo Ex. PW1/C, Arrest memo of accused Sushma Ex. PW1/B, her personal search memo Ex. PW1/D. She also identified her clothes , the pajama Ex. P1.
7 of 161 8 FIR No. 1408/07 PS - Sultan Puri PW2 Bimla is the mother of the prosecutrix who deposed regarding the missing of her daughter/prosecutrix and on the facts of the incident disclosed to her by her daughter/prosecutrix and about the receipt of the phone call from Bombay and of sending of her son PW5 - Rinku @ Praveen Kumar for bringing her daughter/prosecutrix from there and deposed on the investigational aspects which she joined.
PW3 Lady Constable Rajesh who deposed that on 11/09/2007 she remained with the IO W/SI Nisha in the investigation of this case. IO made inquiry from prosecutrix (name withheld) at Police Station and recorded her statement. She alongwith IO took prosecutrix (name withheld) to Sanjay Gandhi Memorial Hospital for medical examination where she was medically examined. After the medical examination Doctor handed over two pullindas and one sample seal sealed with the seal of 'SGMH, Govt. of NCT, Delhi' to IO, which were taken into possession vide memo Ex. PW3/A, which bears her signature at point 'A'. IO prepared rukka and handed over the same to Constable Vijay who took the same to the Police Station, Sultan Puri for the registration of the case. Thereafter, she alongwith IO and prosecutrix 8 of 161 9 FIR No. 1408/07 PS - Sultan Puri came to Police Station and Constable Vijay handed over the rukka and copy of the FIR to the IO. Thereafter, they reached T1/50. Budh Vihar in search of the accused persons. Both the accused, present in the Court, namely, Anwar and Sushma were arrested by the IO at the instance of the complainant. The arrest memo of accused Anwar is Ex. PW1/A. Arrest memo of accused Sushma is Ex. PW1/B. The personal search of Sushma was taken by her vide memo Ex. PW1/D already exhibited, which bears her signature at point 'B'. Both the accused were interrogated and disclosure statement of Sushma is Ex. PW3/B, bears her signature at point 'A', accused signed the same at point 'B'. Accused Sushma was taken to Sanjay Gandhi Hospital by her where she was medically examined. IO recorded her statement under section 161 Cr.P.C. in this regard.
PW4 - Dr. Renu Gupta, Sr. Resident (Gynaecology) Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi who deposed that on 11/09/2007, patient/prosecutrix (name withheld) D/o Sh. Babu Lal aged about 19 years was brought to the Hospital by lady Constable Rajesh with the alleged history of being kidnapped by some persons about one 9 of 161 10 FIR No. 1408/07 PS - Sultan Puri month back, was taken to Bombay, subjected to torture, forcible detention, sexual assault and cruelty by various persons there and escaped three days back as told by the patient. Patient was referred to her by Dr. Sameer Pandit the then CMO for gynaecology examination and management. Patient was examined by her. On local examination hymen was absent and there was no external injury. She was not sure of the date of her last menstrual period. In her history she gave her menstrual period as 02/08/2007. The UPT was done and was negative. But still the emergency contraceptives were given. Her vaginal swab and the under garments were taken and sealed with the seal of Hospital and were handed over to the Police. The patient was advised to review in the gynae OPD if she does not have her menstrual period. Her note regarding the examination of the patient is Ex. PW4/A on the MLC of the prosecutrix, which bears her signature at point 'B'.
PW5 Rinku @ Praveen Kumar is the brother of the prosecutrix who deposed regarding the missing of his sister/prosecutrix and about the facts of the incident disclosed to him by her sister/prosecutrix and about the receipt of the phone call from Bombay 10 of 161 11 FIR No. 1408/07 PS - Sultan Puri and of his going there for bringing his sister/prosecutrix and deposed on the investigational aspects which he joined and also proved the arrest memo of accused Shanti @ Mercy Ex. PW5/C and her personal search memo Ex. PW5/D. PW6 Constable Vijay Kumar who deposed that on 11/09/2007, he had joined the investigations of the present case. On that day, complainant/prosecutrix (name withheld) and her mother Bimla Devi came to PP of PS - Sultan Puri. Thereafter, they went to PS - Sultan Puri from there Rajesh joined the investigation alongwith W/SI Nisha and from there they went to Sanjay Gandhi Memorial Hospital for the medical examination of prosecutrix (name withheld). At the Hospital, IO handed over him a Rukka for the registration of the case. He went to PS - Sultan Puri with Rukka and got registered the case FIR No. 1408/07. Thereafter, IO alongwith prosecutrix and her mother and Lady Constable Rajesh reached at PS - Sultan Puri in an auto rickshaw and he handed over a copy of FIR and original Rukka to IO. From there, they went to T1/50, Phase - I, Budh Vihar where accused Sushma and Anwar both accused present in the Court were found present. On the 11 of 161 12 FIR No. 1408/07 PS - Sultan Puri identification of prosecutrix, accused Anwar and Sushma were arrested vide memos already Ex. PW1/A and Ex. PW1/B and their personal search were conducted vide memos already Ex. PW1/C and Ex. PW1/D. All these memos bear his signatures at point 'B' respectively. Thereafter, accused Sushma and Anwar were taken to Sanjay Gandhi Memorial Hospital for their medical examination. On that day, accused Sushma was medically examined but the medical examination of accused Anwar was not conducted and the same was kept pending. On the next day, accused Anwar was again taken to Sanjay Gandhi Memorial Hospital for his medical examination and his medical examination was conducted and Doctor handed over sealed pullindas, sample seal, blood sample with the seal of SGMH Govt. of NCT of Delhi which were taken into possession vide memo Ex. PW6/A which bears his signatures at point 'A'. Thereafter, accused was brought to PS and sent to lockup and pullindas were deposited with MHC(M). Before sending the accused to lockup, his disclosure statement was recorded which is Ex. PW6/B and bears his signatures at point 'A'. Thereafter, his statement was recorded by the IO in this regard.
12 of 161 13 FIR No. 1408/07 PS - Sultan Puri PW7 Dr. Shankar Gupta, CMO SGM Hospital, Mangol Puri, Delhi who deposed that on 12/09/2007, patient Anwar S/o Sh. Mohd. Saleem, 21 years male was brought to hospital by Constable Vijay for his medical examination with the alleged history of sexual intercourse was done by patient. On examination, there was not external injury. On genital examination, he found secondary sexual characteristics well developed, scrotum penis was developed. There was nothing to suggest that patient is incapable of doing sexual activity. Undergarments, blood sample and semen sample were taken and sealed with the seal of SGMH and handed over to the IO. After examination, he prepared detailed MLC Ex. PW7/A which bears his signatures at point 'A'.
PW8 Constable Nav Rattan who deposed that on 10/08/2007, he was posted at PS - Sultan Puri and working as a DD Writer and his duty hours were from 8:00 a.m. to 4:00 p.m. On that day, at about 9:00 a.m., Bimla came to PS and gave her statement to him and same was reduced into writing by him vide DD No. 27B dated 10/08/2007 and thereafter copy of the said DD was handed over to HC Vinod for further inquiry/investigation. He has brought the original DD 13 of 161 14 FIR No. 1408/07 PS - Sultan Puri Entry Register, copy of same is Ex. PW8/A which bears his signature at point 'A' (original seen and returned).
PW9 Constable Biri Singh who deposed that on 11/09/2007, he was posted at PS - Sultan Puri. On that day on the instructions of IO, he received the exhibits alongwith FSL form vide RC No. 444/21/07 in a sealed condition with the seal of 'SGMH Govt. of NCT of Delhi' to deposit the same at FSL, Rohini, Delhi. Accordingly, he took the same and deposited at FSL, Rohini and obtained the receipt and thereafter he came back at PS and receipt was handed over to MHC(M). The exhibits as long as remained in his possession, he did not tamper with the same and same were remained intact. Later on, IO recorded his statement in this regard.
PW10 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, Delhi who deposed that on 11/09/2007, he had medically examined patient/prosecutrix (name withheld), 19 years female brought by Rajesh with the alleged history of kidnapped by some person about one month back, was drugged and taken to Mumbai subjected to torture, 14 of 161 15 FIR No. 1408/07 PS - Sultan Puri forcible detention, sexual assault and cruelty by various persons there and escaped three days back as told by the patient. On examination, there was no mark of any fresh injury seen on exposed body of patient. Thereafter, he referred the patient for detail examination to Gynae. He prepared the MLC already Ex. PW4/A which bears his signatures at point 'A'.
PW11 SI Alok who deposed that on 11/09/2007, he was posted at PS - Sultan Puri and working as Duty Officer from 4:00 p.m. top 12:00 night. At about 8:20 p.m., he received a rukka through Constable Vijay sent by W/SI Nisha for the registration of case. Accordingly, he registered a case FIR No. 1408/07 u/s 365/366/376/328/342 IPC. He also made endorsement on the original rukka vide DD No. 26A. After registration of the case computer generated copy of FIR and original rukka was handed over the Constable Vijay to further hand over to W/SI Nisha for further investigation. He has brought the original FIR, computer copy of same is Ex. PW11/A and endorsement on the rukka is Ex. PW11/B which bears his signature at point 'A' (original FIR seen and returned).
15 of 161 16 FIR No. 1408/07 PS - Sultan Puri PW12 HC Ramesh Kumar who deposed that on 11/09/2007, he was posted at PS - Sultan Puri and working as MHC(M). ON that day, IO W/SI Nisha had deposited two pullindas and one sample seal sealed with the seal of SGMH, Mangol Puri, Delhi. He took the same and entered in Register No. 19 vide Serial No. 11548. On 12/09/2007, W/SI Nisha had also deposited three pullindas and one sample seal sealed with the seal of SGMH Mangol Puri, Delhi. He took the same and entered in Register No. 19 vide Serial No. 11552. On 03/12/2007, all the exhibits in a sealed condition were sent to FSL, Rohini through Constable Biri Singh vide RC No. 444/21/07. After depositing the same at FSL, Rohini, he handed over him (PW12) a receipt no. 2007/B4436. On 06/05/2008, FSL result and exhibits of the case were received from FSL, Rohini and FSL result was handed over to HC Jalbir Singh I/c VB. The exhibits as long as remained in his possession, he did not tamper with the same and same were remained intact. He has brought the Register No. 19 and RC. Photocopies of same are Ex. PW12/A and Ex. PW12/B and the photocopies of RC is Ex. PW12/C and receipt is Ex. PW12/D (original seen and returned).
16 of 161 17 FIR No. 1408/07 PS - Sultan Puri PW13 - Inspector Deen Dayal Kansal who deposed that on 16/11/2007, he was posted at PS - Sultan Puri as an Inspector (Investigation) and on that day, the present case was marked to him for further investigation. On receiving the case file, he inspected the same and found that accused namely Shanti, Rakesh and Wahid were yet to be arrested. On 03/12/2007, he sent the exhibits of the present case through Constable Biri Singh to FSL, Rohini vide RC No. 444/21/07 in a sealed condition. After depositing the exhibits Constable Beeri Singh came at PS and he (PW13) recorded the statement of Constable Beeri Singh and MHC(M) HC Ramesh. Thereafter, he sent the SI Mukesh Rana alongwith Constable Ramesh and Rinku brother of prosecutrix to Mumbai in search of accused Shanti. On 07/12/2007, SI Mukesh Rana met him at PS - Sultan Puri after returning from Mumbai and one person namely Uma Shanker Tiwari (Be read as Rama Shankar Tiwari) alongwith Mercy also came at PS. Prosecutrix (name withheld) and Rinku, brother of the prosecutrix were also present at PS - Sultan Puri who had told him the lady who is telling her name as Mercy was the same lady whose name is Shanti. He called the W/Constable Babita and 17 of 161 18 FIR No. 1408/07 PS - Sultan Puri interrogated Mercy @ Shanti and thereafter she was arrested in the present case vide arrest memo already Ex. PW5/C and her personal search was conducted vide personal search memo already Ex. PW5/D, which bears his signatures at point 'B' respectively and the personal search of accused Mercy @ Shanti who is present in the Court were handed over to Rama Shanker Tiwari. Thereafter, he recorded the statement of Rinku, prosecutrix (name withheld) and W/Constable Babita. Accused Mercy @ Shanti was produced before the concerned Court and sent to JC. He completed the investigation and prepared the supplementary chargesheet in respect of the accused Mercy @ Shanti and presented the same before the Court for judicial verdict. The main challan of the present case was also filed by him earlier in this case.
PW14 - SI Mukesh Kumar who deposed that on 26/11/2007, he was posted at PS - Sultan Puri. On that day, the case file of the present case was handed over to him by Inspector Deen Dayal and thereafter he had gone through the case. On the same day i.e. 26/11/2007, he alongwith complainant/prosecutrix (name withheld), W/Constable Rajesh and Constable Ramesh went to Shahjahan Pur in UP 18 of 161 19 FIR No. 1408/07 PS - Sultan Puri in search of accused Abdul Wahid (since not arrested) but he could not be found. At Shahjahan Pur, complainant/prosecutrix (name withheld) showed them various houses but she could not identify the house where she was kept by the accused persons. On 04/12/2007, he in the company of Praveen, brother of prosecutrix visited Mumbai in search of accused Rakesh and Mercy Serroa @ Shanti. The accused Mercy Serroa @ Shanti, accused present in the Court was identified by Praveen, brother of the prosecutrix. They returned Delhi with accused Mercy on 07/12/2007. He handed over the accused Mercy Serroa @ Shanti to IO Inspector Deen Dayal who carried out the further investigation in this case. Accused Mercy Serroa @ Shanti voluntarily accompanied them to Delhi and he had not formally arrested her in this case and he simply handed over her to the IO Inspector Deen Dayal.
PW15 - W/Constable Babita who deposed that on 07/12/2007, she was posted at PS - Sultan Puri. On that day, accused Mercy Serroa @ Shanti, who is present int he Court, was arrested by Inspector Din Dayal vide arrest memo already Ex. PW5/C which bears her signature at point 'C'. Personal search of the accused Mercy Serroa 19 of 161 20 FIR No. 1408/07 PS - Sultan Puri @ Shanti was conducted by her and all the articles recovered from the personal search of the accused were handed over to one Rama Shanker Tiwari S/o Shiv Tiwari. Inspector Din Dayal prepared personal search memo in this regard which is already Ex. PW5/D and bears her signature at point 'C'. Her statement was recorded by Inspector Din Dayal.
PW16 W/SI Nisha is the initial Investigating Officer (IO) who deposed that on 11/09/2007, she was posted at PS - Sultan Puri in rape crises cell. On that day, at about 4:00 to 5:00 p.m. prosecutrix alongwith her brother and mother came to the PS. A DD No. 23A entry was recorded by the DO after preliminary interrogation and the case was referred to her. She also interrogated the prosecutrix and her mother. She recorded the statement of prosecutrix. Statement of prosecutrix is Ex. PW1/A signed by prosecutrix and her mother had put her thumb impression under the statement. She has also attested the same at point 'B'. thereafter, she went to the SGM Hospital alongwith prosecutrix, her mother, Lady Constable Rajesh and Constable Vijay. The prosecutrix was got medically examined but because of heavy rush the pullindas were taken by the Doctors were not sealed. In the meantime, he prepared 20 of 161 21 FIR No. 1408/07 PS - Sultan Puri the rukka Ex. PW16/A and handed over to Constable Vijay for registration of the case at about 8:00 p.m. He went to the PS - Sultan Puri for registration of the case. In the meantime, Doctor had given the two sealed pullindas and a sample seal and same were taken into possession vide Ex. PW3/A signed by her at point 'B'. Constable Vijay informed about the registration of the case. Thereafter, from the Hospital they all i.e. she, prosecutrix, her mother, Lady Constable Rajesh directly went to the PS and after taking the FIR copy and original rukka from the Constable Vijay alongwith him, they came to the spot i.e. T1/50, Budh Vihar, Phase - I, which is the house of accused Sushma, present in the Court. Accused Anwar was also found present in the house of accused Sushma at that time. Prosecutrix identified both the accused involving (involved) in the incident. She interrogated both the accused. Both the accused were arrested at the instance of prosecutrix vide arrest memo Ex. PW1/A and Ex. PW1/B, signed by her at point 'A' respectively. Their personal search memo were also prepared vide memo Ex. PW1/C and Ex. PW1/D. Disclosure statement of both the accused were recorded vide memo Ex. PW6/D (Be read as Ex. PW6/B) and Ex. PW3/D (Be read as Ex. PW3/B), signed by her at point 'C'. Accused 21 of 161 22 FIR No. 1408/07 PS - Sultan Puri Sushma was got medically examined from Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi. At the pointing out of the prosecutrix and her mother, the site plan from where she was kidnapped was prepared and the same is Ex. PW16/B signed by her at point 'A'. She recorded the statement of witnesses which were available at their house. She also got medically examined accused Anwar from Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi. The pullindas and a sample seal which was given by concerned Doctor were seized vide memo already Ex. PW6/A. She recorded the statement of witnesses and after completion of the investigation, she handed over the file to SHO for filing the challan in the Court and taking the relevant action against all accused. Both the accused are present in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. It is to be mentioned that on 01/03/2014, Learned Addl. PP tendered in evidence the FSL Report dated 24/04/2008, comprising of the biological report Ex. PY and the serological report Ex. PZ to which 22 of 161 23 FIR No. 1408/07 PS - Sultan Puri the Learned Counsel for the accused had 'no objection'.
8. Statements of accused Anwar, Sushma and Mercy Serroa @ Shanti were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused Sushma did not opt to lead any defence evidence. However, accused Anwar and Mercy Serroa @ Shanti opted to lead defence evidence and in their defence examined three witnesses namely DW1 - Smt. Nirasha Chauhan, DW2 - Sh. Jai Kishan Goyal and DW3 - Shanky.
DW1 - Smt. Nirasha Chauhan, who deposed that she knows accused Mercy @ Shanti as she stays next to her Chal (flat). They stay at the place for the past about 10 years. She (Mercy @ Shanti) used to take tuition of her children. She does not remember the date, month and year but it was month of Sawan on that day, she was going to drop her children to their School at about 11:30 a.m. when she saw some women staying at the ground floor of the Chal (flat) standing there with a girl namely Muskan. She (DW1) inquired them as to what was the matter. They told her that, that was a young girl who was telling herself to be an 23 of 161 24 FIR No. 1408/07 PS - Sultan Puri orphan and she further told that she was being brought up by her Fufa and Bua. Since, her Fufa was trying to get her forcibly married off, therefore she fled away from her house. Thereafter, she (DW1) went to drop her children at their School. After she came back, she saw the said girl standing there in the company of same women. One of them asked her (DW1) as to what to do with the said girl. She (DW1) suggested them to collect some money so that she could go back to Delhi. Thereafter, they all contributed and collected about Rs. 450/ and gave the same to Muskan. In fact, accused namely Mercy @ Shanti also contributed a sum of Rs. 100/ for that purpose. Thereafter, they told Muskan to go back to Delhi but she refused to do so saying that in case if she ever goes back, her Fufa would definitely marry her with some old man. Since the daughter of accused Shanti suffers from mental ailments, hence they decided to keep Muskan at her (Mercy @ Shanti) house to look after her (Mercy @ Shanti) daughter. Muskan used to take care of her (Mercy @ Shanti) daughter. At times, Muskan used to take her (Mercy @ Shanti) daughter for walking and eating some fast food etc. outside. After three days of the Raksha - Bandhan, accused Mercy came to her (DW1) house and told her that, that girl Muskan was telling lies.
24 of 161 25 FIR No. 1408/07 PS - Sultan Puri She was not an orphan she had a brother also at Delhi and she wanted to talk with them. Thereafter, they spoke to some other women of Chal and decided to speak to members of Muskan's family on the number provided by her. At about 8:00 p.m., accused Mercy called up on the number supplied by Muskan which was picked up by her mother. Accused Mercy @ Shanti made inquiries about the said girl from her mother on telephone who told that her name was prosecutrix (name withheld) not Muskan. Her mother also told that she was wearing an anklet in her foot. Her mother also told that prosecutrix (name withheld) had fled away from the house after taking Rs. 250/ on the pretext of buying some curds. She (DW1) is aware about the above said conversation as the speaker of the telephone was on at that time. On the same day at night, Muskan's brother gave a missed call at the mobile phone of accused Mercy. Upon which accused Mercy gave a call to him and he confirmed that he would be coming to Mumbai. After Muskan's brother came at Mumbai, accused Mercy went to receive him at station and brought him at her Chal. Thereafter, they all gathered there and asked Muskan to give one page statement stating therein that the person who came Mumbai was her brother and she is leaving Mumbai with him for Delhi. Muskan 25 of 161 26 FIR No. 1408/07 PS - Sultan Puri also stated in that statement that she had stayed there with her own will and during that period she never faced any trouble. In the morning, she (DW1) came to know from accused Shanti that Muskan had left the house of accused with her brother without intimating the accused for Delhi. In fact, in their hurry to leave the place, they left one small bag there. She does not have any knowledge about the facts of this case.
DW2 - Sh. Jai Kishan Goyal, who deposed that he is doing the business of ready made garments from the last 15 years. His garments shop is situated at 676, Rani Bagh, Delhi. Accused Anwar was working at his shop since JanuaryFebruary, 2006. His shop used to open at 10:30 a.m. in the morning and used to close at about 9:159:30 p.m. On 06/08/2007 accused Anwar was working at his shop and he (Anwar) remained at the shop till 9:30 p.m. on that day. Thereafter, he (Anwar) worked at his shop for the entire month of August, 2007 and he (Anwar) worked at his shop till 10/09/2007. He did not receive any complaint against him (Anwar) at his shop.
DW3 - Shanky, who deposed that in the year 2007, he used 26 of 161 27 FIR No. 1408/07 PS - Sultan Puri to work at N20, Budh Vihar, Phase - I in a footwear shop. The witness has been shown Ex. PW16/B (site plan) and he states that his shop was situated hardly 2025 paces from the Hanuman Mandir. In January, 2007, he had been working at this place. There was no juice shop in the year 2007 near the Hanuman Mandir. Vol. Even juice shop on a rehri was not allowed by the Police officials. There was no sweet/confectionery shop in the year 2007 near the Hanuman Mandir. The place shown in the site plan is a very crowded place and beat Constable are there on regular duty. No incident of girl getting unconscious had happened in August/September 2007 in his presence or in his knowledge. Vol. If any such incident had occurred, a large crown would have gathered at the place of incident. The market generally opens at 10:00 a.m. in the morning and shuts down at 9:30 p.m. The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
9. Learned Counsel for accused Mercy Serroa @ Shanti submitted that the accused Mercy Serroa @ Shanti has been charged u/s 27 of 161 28 FIR No. 1408/07 PS - Sultan Puri 343/323/328/120B IPC r/w section 5 of Immoral Trafficking (Prevention) Act, 1956. He further submitted that the prosecutrix has not made any statement in her statement in chief alleging against the accused person of any criminal action falling under 328 of Indian Penal Code. Even otherwise the PW10 has also affirmed that there was no injury on the body of the prosecutrix even distantly suggesting that PW1 was ever given any injection containing obnoxious substance. He further submitted that PW1 in her deposition has stated that two person namely Abdul & Wahid brought her from Shahjahan Pur to Mumbai. At Mumbai one Rakesh used to come at the place where the PW1 was purportedly kept against her will and wish. There one person namely Rakesh used to pay visit and said Rakesh sold to the present accused. However, there is no investigation made by the Police so as to furnish any details of said three persons. In fact, it has been alleged by the PW1 that said Abdul & Wahid were Mausa of the main accused namely Anwar. However, Police did not furnish any details of a blood relation of the main accused Anwar despite taking him under Police custody. The Police could not clarify as to whether Abdul Wahid are one person or two persons. Furthermore, in the same fashion no investigation or 28 of 161 29 FIR No. 1408/07 PS - Sultan Puri inquiry was made by the Police to furnish any detail of said Rakesh. He further submitted that there is delay in lodging complaint. It is the case of the prosecution that the prosecutrix went missing on 06/08/2007; however, the complaint was lodged on 10/08/2007. Any member of her family did not bother to lodge FIR on 07/09/2007 when finally they came to know about whereabouts of PW1 over phone, PW2 made a statement that 07/09/2007, when she came to know as to where her daughter has been all this while, she made a call to 100 number and apprised to the Police about the said development. However, there is nothing on record to prove as to whether any call was made on that day. Thereafter, despite coming back to Delhi on 09/09/2007 and claiming telling everything to her mother, no FIR was lodged till date in the evening of 11/09/2007. It has been very vaguely stated that the condition of PW1 was very bad that was why there was delay in lodging FIR. However, the prosecution has miserably failed to produce any documentary proof or otherwise to show as to whether any medical care and attention was ever given to the PW1 and if at all it was given to her, then where and what time and what she was treated for. On the contrary, the PW2 very specifically stated in her crossexamination dated 18/07/2008 as under : 29 of 161 30 FIR No. 1408/07 PS - Sultan Puri "...After arrival of my daughter from Bombay, I did not provide her any medical assistance in any hospital or from any local Doctor..."
After the so called escape of PW1 & PW5 from Mumbai, they did not bother to lodge any complaint neither in Mumbai nor immediately after coming back to Delhi. It has come on record in the statement of PW5 that while coming back to Delhi, the PW1's condition was not bad, then also PW1 & PW5 did not lodge any complaint in Mumbai. At every railway station there is a Police post where the PW1 & PW5 could have lodged their complaint. Further, contrary statements are also made by the PW2 & PW5 as to why no FIR was lodged or could not be lodged. The PW5 states that they did not lodge any complaint to the Police as Mercy @ Shanti made a request to them not to do the same. Whereas the PW2 states that when she came to know as to where her daughter has been all this while, she made a call to 100 number and apprised to the Police about the same. "I went to the Police next date but Police did not record my complaint." Lastly, the prosecutrix and her entire family were not inhibited to lodge any complaint/FIR against the accused persons due to social stigma rather some strange and 30 of 161 31 FIR No. 1408/07 PS - Sultan Puri contradictory explanation has been afforded casting serious doubt about their intention to lodge the complaint immediately. In case "Bhaiyamiyan @ Jardar Khan & Anr. Vs. State of Madhya Pradesh AIR 2011 SC 2218", while acquitting the accused persons, the Hon'ble Apex Court has duly noted the fact of delay of 60 hours in lodging FIR and did not believe the story of the prosecutrix. The Hon'ble Supreme Court has opined as under :
"2...FIR has been lodged after a delay of about 60 hours and that the statement of the prosecutrix was full of contradictions and as the statements of her father and mother (PW2 & PW3) were based on the information given by her to them, no reliance could be placed on their evidence as well...
4...we find that the explanation for this delay is some what difficult to believe..."
Further, the Hon'ble Delhi High Court has delved upon the fact of delay in lodging FIR and acquitted the accused person on the same ground in "Shashi Chaudhary Vs. Ram Kumar, 2011 III AD (DELHI) 249" (Para 8).
Learned Counsel for the accused submitted that the FIR has 31 of 161 32 FIR No. 1408/07 PS - Sultan Puri been lodged inordinately delayed without affording any plausible reason or documentary proof, which seriously cast serious doubt on the entire story as forwarded by the prosecution.
Learned Counsel further submitted that the prosecutrix during the entire period of her so called captivity had been travelling at public places and interacting with public persons, despite that did never raise any hue and cry. The PW1 had stated that she was fully conscious when she visited to Mumbai with Abdul & Wahid. They visited to Mumbai by train, however, they went to railway station on bus from Shahjan Pur. When specifically questioned as to whether she raised any hue and cry, she had stated that she did not raise any voice at train. He further submitted that at every railway station there is always Help Desk manned by Railway Police, GRP & Police, who are readily available to help in case if it is sought. However, at no point of time, there was any efforts were made to report such grave offences committed upon the prosecutrix. It is an admitted fact that the accused stays at two storey building where on each and every floor there are 32 single room Chawl where families are residing. In the said building there are no bathroom 32 of 161 33 FIR No. 1408/07 PS - Sultan Puri attached to the single room Chawl rather it is common toilet. The said fact has been verified by the PW14 & DW1. However, strangely the said fact has been denied by the prosecutrix. Meaning thereby, the prosecutrix has every single of her so called captivity had four or six occasions to complain and/or to talk to any public persons residing at the said building in a single day. Admittedly she had stayed at the residence of the accused for about four weeks, however she had stayed at the residence of the accused for about four weeks, however she has never spoken to anyone forget about raising hue and cry.
Learned Counsel referred to the cases and are reported as State Vs. Rahul 2011 [2] JCC 701 (Para 7, 8, 11 & 12); Mahabir Prasad Vs. State 76 (1998) DHC (Para 8); Hari Chand Vs. State, 82 (1999) DLT, 356 (Para 9, 10, 12, 13, 14 & 15) and Shashi Chaudhary Vs. Ram Kumar, 2011 III AD (DELHI) 249 (Para 4, 6 & 8).
Learned Counsel further submitted that the entire allegation leveled against the accused persons is not at all supported with the medical evidence. The PW4 has stated that no injury external or internal 33 of 161 34 FIR No. 1408/07 PS - Sultan Puri was found on the body of the PW1. The PW4 stated that hymen was absent further he could not confirm as to whether Hymen ruptured or old one. The PW1 has been alleging that she had been time and again been forcefully raped, therefore there ought to be external injury on one or another part of the body of the PW1.
The Supreme Court has concurred with the Trial Court with the order of acquittal in "Bhaiyamiyan @ Jardar Khan & Anr. Vs. State of Madhya Pradesh AIR 2011 SC 2218" since there was no external injury.
"...The Court further observed that as per the medical evidence no injury had been found on her person though she had been raped by two persons and as such there was no evidence to suggest that rape had been committed."
Learned Counsel further submitted that the statement of prosecutrix is full of contradictions, improvements and inconsistency, hence not reliable and liable to discarded in toto. Further, since the statements of her mother (PW2) and brother (PW5) are based on the informations given by her to them, no reliance could be placed on their evidence as well. The instances of concoctment, improvement and 34 of 161 35 FIR No. 1408/07 PS - Sultan Puri inconsistency of PW1, PW2 & PW5 are as under : PW1 stated that Shanti went to railway station to receive my brother leaving me at the room. Shanti brought my brother to the room. While, PW2 stated that after return to Delhi, my son Rinku informed me that he was received by accused Mercy @ Shanti at Railway Station at Mumbai. While, PW5 denies being received by Mercy.
PW1 stated that my brother informed my house members (family) about the demanded money. Shanti also talked to my brother that "paise do ladki lo". While, PW2 stated that she heard the sound of beating on phone and therefore, the phone call was disconnected by my daughter. The PW1 does not state anything to that effect (by this time entire criminal action rape was not divulged to the PW2).
PW1 stated that she was sleeping with Shanti and my brother was sleeping in the other room. PW1 stated that my brother slept in another room in the house of accused Mercy @ Shanti. PW1 stated that in the morning we left Shanti sleeping and ran away and came to Delhi. She also stated that she saw him (Anwar) only 10 days prior to 35 of 161 36 FIR No. 1408/07 PS - Sultan Puri the incident. Then also she did not raise hue and cry when she found herself in the train after gaining conscience. She further stated that the shop she went to fetch curd was 10 minutes walk from her house, after drinking the intoxicated Juice, she walked down to the same route for 10 minutes. Learned Counsel submitted that does she mean to say that she came back home. She further stated that after consuming the juice, she had hardly covered a distance of 10 minutes by walk and she became unconscious. PW1 further stated that she also called the customers to her house and compel me physical relation with them and on my refusal she used to beat me and due to this fact those customers had forcible sexual intercourse with me in that room of her house.
Learned Counsel submitted that despite being forced to have sex with various customers, surprisingly has no injury marks on her entire body.
She never mentions the aforesaid allegations before the Police in her statement u/s 161 Cr.P.C.
PW1 also stated that "It is correct that one boy and one girl child were living in the house of accused Mercy @ Shanti but I do not know whether the said children belonged to her or not. She further 36 of 161 37 FIR No. 1408/07 PS - Sultan Puri stated that "It is correct that the girl was mentally retarded." PW1 stated that "It is wrong to suggest that I used to prepare my own meals. Vol. I was not getting anything to eat. Again said, I was given food in small quantity. PW1 stated that she used to remain lying in one room in the house of accused Mercy @ Shanti during her stay in the said house. She further stated that she identified the building in the photograph mark 'D'. PW1 stated that the house of the accused Mercy @ Shanti does not have any bathroom or toilet. While PW5 stated in his crossexamination that toilet was not attached with the said room. And PW14 stated that the latrine and bathroom was not attached with the said flats and they were common latrine/bathroom for many flats.
PW1 stated that she informed her address to her mother. She was not aware of the address of the accused Mercy @ Shanti. Vol. She had only informed her mother that she was at the house of accused Mercy @ Shanti at Mumbai. While PW2 stated in her crossexamination that "It is wrong to suggest that I was informed about the address of her house by accused Mercy @ Shanti. Vol. Her address was told to me by my daughter/prosecutrix only.
37 of 161 38 FIR No. 1408/07 PS - Sultan Puri PW1 stated that my brother reached Mumbai on the next day of the making of telephonic call. She further stated that she narrated the entire story to her mother. They went to the PS on the same day. PW1 further stated that "It is wrong to suggest that when I met the accused Mercy @ Shanti for the first time she was coming back from tuition classes. Vol. She was sitting at that time along with another lady. She was sitting at ground floor. She further stated that the accused Mercy @ Shanti was having two rooms in the said building. Both the rooms were on the second floor. The second room of the accused Mercy @ Shanti was on the side of the first room after two rooms. PW1 further stated that she never used to leave her house. She further stated that she does not remember the time when the accused Mercy @ Shanti used to leave her house in the morning. She used to leave her room occasionally. She does not remember after about how much time she used to come back to her house. PW1 also stated that she was never allowed to go out of the room by accused Mercy @ Shanti. Learned Counsel submitted that PW1 Never said that she was kept under lock and keys.
38 of 161 39 FIR No. 1408/07 PS - Sultan Puri Learned Counsel referred to the case "Pardeep @ Sonu Vs. State (Govt. of NCT of Delhi) 2011 (2) JCC 1031 (DB)" : "28...However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused....."
Learned Counsel for accused further submitted that the statement of PW5 is also full of contradictions.
PW5 stated that he received a call at 8:00/8:30 p.m. PW5 further stated that he comes back to house at 11:30 p.m. and his mother only received the call. PW5 further stated that she was sold by Anwar & Sushma. He further stated that next day on 08/09/2007, in the morning at about 4:00/5:00 a.m., he went to take his sister/prosecutrix (name withheld). However Shanti refused to send her and threatened him to leave the place otherwise he would be killed. After 1015 minutes, he alongwith his sister managed to escape from there and reached at Bandra Railway Station from where they boarded a local train and reached Dahanu Railway Station and purchased two railway tickets of super fast 39 of 161 40 FIR No. 1408/07 PS - Sultan Puri train to Delhi. He further stated that Phone was brought to the market by his father on 07/09/2007. He further stated that was given Rs. 1,500/ by his mother to bring his sister from Mumbai. While PW2 stated in her crossexamination that she gave a sum of Rs. 5,000/ to her son Rinku @ Praveen when he went to Mumbai in search of prosecutrix. PW5 further stated that he remembered the entire route to the house of accused Mercy. PW5 in his crossexamination further stated that he does not remember on which floor the house of accused Mercy was situated.
Learned Counsel for the accused further submitted that a strange behaviour has been shown by PW2 - Smt. Bimla who in her crossexamination has deposed that it is correct that when accused Mercy @ Shanti called me up, I directly inquired from her as to whether my daughter is still in possession of costly anklet and how much money she had carried right now.
Learned Counsel for accused further submitted that the evidence of defence is more plausible and reliable.
40 of 161 41 FIR No. 1408/07 PS - Sultan Puri Learned Counsel for accused submitted that there is shoddy investigation and further submitted that PW13 - Inspector Deen Dayal Kansal sent PW14 SI Mukesh Rana, Constable Ramesh and Rinku (PW5) in search of Mercy. Learned Counsel further submitted that PW13 admitted that one Rama Shankar Tiwari also came alongwith the accused Mercy and that Mercy was arrested in Delhi. Learned Counsel further submitted that in case, Rinku was also there at the time of arrest, he would have had identified the accused Mercy in Mumbai, however that was not so and she was brought to Delhi to join investigation in search of a lady called Shanti. Learned Counsel for accused further submitted that PW14 - SI Mukesh Rana has admitted that Latrine and bathroom were common. Various families were residing in those flats. No recording of the statement of any public witness at Mumbai and justification for not recording the statement was that all of them were saying that mercy was not guilty. Learned Counsel further submitted that none of the investigation officers bothered to find out who is Rakesh; no inquiry from the area where the accused person resides as to whether any such activity ever took place; no investigation as to whether there is any juice shop situated as per the so called site plan; no 41 of 161 42 FIR No. 1408/07 PS - Sultan Puri disclosure memo of Mercy; Rakesh is not even named in FIR and no call records has been placed with respect to prove any link whatsoever with said Abdul, Wahid, Rakesh, Anwar & Sushma.
Learned Counsel for accused further submitted that Mercy is a tutor and been residing in the same locality since her birth. Learned Counsel for accused further submitted that PW2 has stated that it is correct that accused Mercy @ Shanti told her that she would be able to identify her son from his clothes and she also asked that he should bring a photograph of prosecutrix.
Learned Counsel for the accused further submitted that she (accused Mercy) is the one who has given her own address to the prosecutrix's family. If she had any ill will or criminal action, she would have never given the address; it was not possible for a mother of two and single woman to put the restriction upon the prosecutrix. It is not the case of the prosecution that the accused Mercy was ever helped by any other person while her stay at Mumbai; she contributed Rs. 100/ towards the contribution for sending Prosecutrix back her home (Delhi) and most 42 of 161 43 FIR No. 1408/07 PS - Sultan Puri importantly, the kind of allegation leveled against the accused herein that cannot be committed single handedly.
Learned Counsel for the accused further submitted that it is a case of false implication and submitted that while passing the judgment of "Pardeep @ Sonu Vs. State (Govt. of NCT of Delhi) 2011 (2) JCC 1031 (DB)", the Hon'ble division Bench had quoted the relevant portion of "Radhu Vs State of Madhya Pradesh, 2007 (4) JCC 2603 : (2007) 12 SCC 57" and the same is reproduced as under : "41....the false charges of rape are not uncommon and in some cases parents do persuade gullible or obedient daughter to make false charge of rape either to take revenge or extort money or to get rid of financial liability. The Supreme Court had cautioned against false cases. In this case the evidence of the prosecutrix is full of discrepancies and improbabilities and does not inspire confidence...."
Learned Counsel for accused further submitted that as there are clear discrepancies in the evidence of mother, the brother and the prosecutrix, therefore, in the facts and circumstances the sole testimony of the victim is not sufficient to convict the accused Mercy Serroa @ Shanti and prayed the acquittal of accused Mercy Serroa @ Shanti on all 43 of 161 44 FIR No. 1408/07 PS - Sultan Puri the charges levelled against her.
Learned Counsel also referred to the cases and are reported as 'Rajesh Patel Vs. State of Jharkhand' AIR 2013 SC 1497; 'Mohd. Imran Khan Vs. State' 175 (2010) DLT 627; 'Ram Babu Vs. State' Crl. A. 655/11 (DHC) decided on 23/04/2013; 'Deepak Gulati Vs. State of Haryana' (SCCrl.Appl.No. 2322/10) decided on 20/05/2013; 'Ganga Saran @ Chotu & Anr. Vs. State of Delhi' Crl. A. 464/11 (DHC) decided on 26/03/2013; 'State Vs. Lalita' CRL.L.P. 501/2013 (DHC) decided on 16/09/2013.
10. Learned Counsel for accused Anwar and Sushma submitted on the same lines and also submitted that there are loopholes in the story of the prosecutrix and the version is not inspiring confidence to common prudence. There are major discrepancies in the statement of prosecutrix, her mother, brother and the IO. The investigation of the case is faulty, IO did not found it proper to examine the prosecutrix before the Metropolitan Magistrate for recording her statement u/s 164 Cr.P.C. The medical report and the FSL Report do not support the case of the 44 of 161 45 FIR No. 1408/07 PS - Sultan Puri prosecution as no injury of any nature was found on the prosecutrix despite the fact she was gang raped and physically assaulted against her wishes and prayed for the acquittal of accused Anwar and Sushma on all the charged levelled against them as the prosecution has failed to prove its case beyond reasonable doubt.
Learned Counsel referred to the cases and are reported as 'Ali Sher @ Raju Vs. The State' Manu/DE/0520/2011; 'State Vs. Rahul' 2011(2) JCC701; 'Abass Ahmad Chaudhary Vs. State of Assam' 2010 CRLJ2060 (SC); 'Sadashiv Ramarao Hadbe Vs. State of Maharashtra and another' 2006(10)SCC92; 'Dinesh Jaiswal Vs. State of MP' AIR2010SC1540; 'Raghunath Vs. State of NCT' Manu/DE/1127/2004; 'Pradeep @ Sonu Vs. State (Delhi)' 2011(2)JCC1031; 'Krishan Kumar Mallik Vs. State of Haryana' Manu/SC/0718/2011; 'Sumit Gupta Vs. State (Delhi)' Manu/DE/3699/2009; 'Rakesh Kumar Vs. State of Haryana' 2005(2) RCR 817; 'Vinay Krishna Vs. State of Rajasthan' 2004 (1) RCR 565; 'Radhu Vs. State of MP' JT 2007(11) SC 91.
45 of 161 46 FIR No. 1408/07 PS - Sultan Puri
11. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
12. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Umesh Sinha, Learned Amicus Curiae for accused Anwar and Sushma and Sh. Nitesh Kumar Singh Learned Counsel for accused Mercy Serroa @ Shanti and have also carefully perused the entire record.
13. The charge for the offences punishable u/s 376(2)(g) IPC, Section 342/34 IPC and Section 372/34 IPC against accused Anwar is that between 06/08/2007 to 09/09/2007 at the house of Abdul Wahid at Shahjahan Pur, he alongwith his associate Abdul Wahid (not arrested so far) committed gang rape upon prosecutrix (name withheld) daughter of Shri Babu Lal against her will and without her consent and that on the above mentioned period, time and place he alongwith his associate 46 of 161 47 FIR No. 1408/07 PS - Sultan Puri Abdul Wahid (not arrested so far) wrongly confined prosecutrix (name withheld) and that after the abduction of prosecutrix (name withheld) mentioned above he alongwith his associates Abdul Wahid and Rakesh in furtherance of their common intention sold prosecutrix (name withheld) to one Shanti (not arrested so far), against her wishes and in contravention of provisions of law.
The charge for the offences punishable u/s 120B IPC and Sections 328/365 IPC r/w Section 120B IPC against accused Anwar and Sushma is that on or before 06/08/2007, they both agreed and conspired with each other to do an illegal act i.e. to abduct the prosecutrix (name withheld) daughter of Babu Lal aged about 19 years from her house with intention to sell her to one Shanti and to force her to marry her with some one and that on 06/08/2007 at about 8:00 p.m. main market Budh Vihar in front of Hanuman Mandir they both as per the conspiracy hatched by them mentioned above administered some intoxicant to the prosecutrix (name withheld) which was provided to her by accused Sushma by mixing the same in juice with intent to facilitate the offence of abduction and in pursuance of the said act she become unconscious and later on she was abducted by accused Anwar with the 47 of 161 48 FIR No. 1408/07 PS - Sultan Puri intention to sell to force her to marry with someone and to put her into prostitution.
The charge for the offences punishable u/s 120B IPC, Section 5 of the Immoral Traffic (Prevention) Act, 1956, Sections 343/323 IPC and Section 328 IPC against accused Mercy Serroa @ Shanti is that as per the conspiracy hatched by her coaccused namely Anwar and Sushma to do an illegal act i.e. to sell prosecutrix (name withheld) to her (Mercy Serroa @ Shanti) after her kidnapping and that from the date when (prosecutrix (name withheld) was sold to her and she kept her and thereafter she procure her at her above mentioned house for the purpose of prostitution and she used to send prosecutrix (name withheld) to customer for the purpose of prostitution and that from the date when her coaccused mentioned above brought the prosecutrix (name withheld) at her house, she wrongfully confined her at her above mentioned house for more than 10 days and during this period she used to give bearings to her and that on her above mentioned house during the period of wrongful confinement of the prosecutrix (name withheld) she used to give intoxicated injections to her with intention to cause hurt to her and to facilitate the commission of offence of wrongfully 48 of 161 49 FIR No. 1408/07 PS - Sultan Puri confinement and to send her for prostitution.
14. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
15. PW1 - prosecutrix during her crossexamination recorded on 28/05/2008 conducted on behalf of accused Anwar has deposed that : "I am 19 years old now".
PW2 - Bimla - mother of PW1 - prosecutrix in her examinationinchief recorded on 14/05/2008 has deposed that : "Prosecutrix (name withheld) is my daughter and she was about 19 years on 06/09/2007 (be read as 06/08/2007)."
There is nothing in crossexamination of PW2 - Bimla so as to impeach her creditworthiness.
49 of 161 50 FIR No. 1408/07 PS - Sultan Puri The said factum that the age of PW1 - prosecutrix was about 19 years as on the date of incident on 06/08/2007 has also not been disputed by the accused. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged around 19 years as on the date of alleged incident on 06/08/2007. MEDICAL EVIDENCE OF THE PROSECUTRIX
16. PW10 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, Delhi, has deposed that on 11/09/2007, he had medically examined patient/prosecutrix (name withheld), 19 years female brought by Rajesh with the alleged history of kidnapped by some person about one month back, was drugged and taken to Mumbai subjected to torture, forcible detention, sexual assault and cruelty by various persons there and escaped three days back as told by the patient. On examination, there was no mark of any fresh injury seen on exposed body of patient. Thereafter, he referred the patient for detail examination to Gynae. He 50 of 161 51 FIR No. 1408/07 PS - Sultan Puri prepared the MLC already Ex. PW4/A which bears his signatures at point 'A'.
During his crossexamination on behalf of accused Mercy @ Shanti, PW10 - Dr. Sameer Pandit has deposed that : "The injection marks can hear within 24 hours. There would be sign of inflammation in a fresh case. The symptoms in case of continuous drugging will depend upon the nature of drug. In case, a drug is administered for a continuous period of 1516 days then there will be the symptoms on the body regarding the said drug."
During his crossexamination on behalf of accused Anwar, PW10 - Dr. Sameer Pandit has deposed that : "On the day, when the patient was examined by me, she was not under the influence of any drug."
Despite grant of opportunity, PW10 - Dr. Sameer Pandit was not crossexamined on behalf of accused Sushma.
There is nothing in the crossexamination of PW10 - Dr. Sameer Pandit so as to impeach his creditworthiness.
PW4 - Dr. Renu Gupta, Sr. Resident (Gynaecology) Sanjay 51 of 161 52 FIR No. 1408/07 PS - Sultan Puri Gandhi Memorial Hospital, Mangol Puri, Delhi, has deposed that on 11/09/2007, patient/prosecutrix (name withheld) D/o Sh. Babu Lal aged about 19 years was brought to the Hospital by lady Constable Rajesh with the alleged history of being kidnapped by some persons about one month back, was taken to Bombay, subjected to torture, forcible detention, sexual assault and cruelty by various persons there and escaped three days back as told by the patient. Patient was referred to her by Dr. Sameer Pandit the then CMO for gynaecology examination and management. Patient was examined by her. On local examination hymen was absent and there was no external injury. She was not sure of the date of her last menstrual period. In her history she gave her menstrual period as 02/08/2007. The UPT was done and was negative. But still the emergency contraceptives were given. Her vaginal swab and the under garments were taken and sealed with the seal of Hospital and were handed over to the Police. The patient was advised to review in the gynae OPD if she does not have her menstrual period. Her note regarding the examination of the patient is Ex. PW4/A on the MLC of the prosecutrix, which bears her signature at point 'B'.
During her crossexamination on behalf of accused Anwar, 52 of 161 53 FIR No. 1408/07 PS - Sultan Puri PW4 - Dr. Renu Gupta has deposed that : "The undergarments sealed by me were the same which patient was wearing at the time of her medical examination."
During her crossexamination on behalf of accused Mercy @ Shanti, PW4 - Dr. Renu Gupta has deposed that : "I cannot comment whether the hymen ruptured was recent or not."
Despite grant of opportunity, PW4 - Dr. Renu Gupta was not crossexamined on behalf of accused Sushma.
There is nothing in the crossexamination of PW4 - Dr. Renu Gupta so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical and the gynaecological examination of PW1 - prosecutrix vide MLC Ex. PW4/A stands proved on the record.
VIRILITY OF THE ACCUSED
17. PW7 Dr. Shankar Gupta, CMO SGM Hospital, Mangol Puri, Delhi has deposed that on 12/09/2007, patient Anwar S/o Sh.
53 of 161 54 FIR No. 1408/07 PS - Sultan Puri Mohd. Saleem, 21 years male was brought to hospital by Constable Vijay for his medical examination with the alleged history of sexual intercourse was done by patient. On examination, there was not external injury. On genital examination, he found secondary sexual characteristics well developed, scrotum penis was developed. There was nothing to suggest that patient is incapable of doing sexual activity. Undergarments, blood sample and semen sample were taken and sealed with the seal of SGMH and handed over to the IO. After examination, he prepared detailed MLC Ex. PW7/A which bears his signatures at point 'A'.
During his crossexamination on behalf of accused Anwar, PW7 - Dr. Shankar Gupta deposed that : "Accused Anwar was brought by Constable Vijay of PS - Sultan Puri. There was nothing to suggest that patient was incapable of doing sexual activity."
There is nothing in the crossexamination of PW7 - Dr. Shankar Gupta so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Anwar was capable of performing sexual activity.
54 of 161 55 FIR No. 1408/07 PS - Sultan Puri BIOLOGICAL AND SEROLOGICAL EVIDENCE
18. On 01/03/2014, Learned Addl. PP tendered in evidence the biological report Ex. PY and the serological report Ex. PZ, to which the Learned Counsel for the accused had 'no objection'.
As per the biological report Ex. PY, the description of the articles contained in the parcel and the result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibits '1', kept in a tube. Exhibit '1' : Cotton wool swab on a wooden stick described as 'Vaginal swab'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibits '2'.
Exhibit '2' : One pyjama.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibits '4' Exhibit '4' : One underwear.
55 of 161 56 FIR No. 1408/07 PS - Sultan Puri Parcel '5' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibits '5', kept in a vial Exhibit '5' :
One wet foul smelling brown gauze cloth piece described as 'Blood Sample'.
Parcel '6' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibits '6', kept in a vial.
Exhibit '6' : Yellowish white viscous foul smelling liquid described as 'Semen'.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '5'
2. Blood could not be detected on exhibits '1', '2' & '4'.
3. Semen could not be detected on exhibits '1', '2' & '4'.
4. Report of serological analysis in original is attached herewith.
NOTE : Remnants of the exhibits have been sealed with the seal of 'RK FSL DELHI'.
The serological report Ex. PZ reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '5' Blood stained gauze No reaction cloth piece 56 of 161 57 FIR No. 1408/07 PS - Sultan Puri Semen stains: Sample semen putrefied hence no opinion '6' Semen sample On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit '5' (Blood sample of accused Anwar); blood could not be detected on exhibits '1' (vaginal swab of the prosecutrix), '2' (Pyjama of the prosecutrix) and '4' (underwear of accused Anwar) and semen could not be detected on exhibits '1' (vaginal swab of the prosecutrix), '2' (Pyjama of the prosecutrix) and '4' (underwear of accused Anwar).
As per the biological report Ex. PY with regard to the description of the articles contained in the parcels, it is noticed that parcel nos. 1 & 2 belong to PW1 - prosecutrix which were seized vide seizure memo dated 11/09/2007 Ex. PW3/A and parcel nos. 4 & 5 belong to accused Anwar which were seized vide seizure memo dated 12/09/2007 Ex. PW6/A. It is also to be noticed that the period of alleged incident is from 06/08/2007 till 09/09/2007 when PW1 - prosecutrix was brought to 57 of 161 58 FIR No. 1408/07 PS - Sultan Puri Delhi and the medical examination of PW1 - prosecutrix was conducted on 11/09/2007 and the exhibits 1 & 2 of the prosecutrix were seized vide seizure memo Ex. PW3/A during this period from 06/08/2007 till 11/09/2007, it cannot be ruled out that prosecutrix must have washed her clothes, pyjama and must have answered the call of nature a number of times, must have been urinated a number of times and must have taken bath a number of times and this not being a case of recent sexual intercourse activity and for the said reasons it appears that semen could not be detected on exhibit '1' (vaginal swab) and exhibit '2' (pyjama) of the prosecutrix.
19. Now let the testimonies of PW1 - Prosecutrix, PW2 - Bimla, her mother and PW5 - Rinku @ Praveen Kumar, her brother be perused and analysed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 06/08/2007, I alongwith my family were residing on the above mentioned house (H. No. 22/36, Phase - V, Sultan Puri, Mangal Bazar) on rent about five years prior to the above mentioned date. I 58 of 161 59 FIR No. 1408/07 PS - Sultan Puri studied upto 10th class. On 06/08/2007 at about 8:00 p.m., I was going to market to purchase curd. On the way Sushma, accused present in the Court (correctly identified by the witness) met me. Accused Sushma was known to me as she was also residing in the neighbourhood where I was residing. Sushma asked me to take juice. I alongwith accused Sushma took juice and drunk the same. At the same time Sushma took me to Anwar who was standing near the juice shop. Anwar Sushma ka devar lagta hai. Thereafter I became unconscious. When I regained consciousness I found myself in a train with the accused Anwar, present in the Court today. He was accompanied by some other persons, who are not present in the Court but I can identify them, if shown to me. I asked accused as to where he was taking me who told that he was going to Shahjahan Pur where his mausa Abdul resides. After descending the train accused took me to the house of his mausa Abdul at Shahjahan Pur. Abdul was found present there at that time. At the house of Abdul, I was raped by Abdul, Wahid and Anwar. Initially accused Anwar sexually raped me, then Wahid and then Abdul also raped me. Q. Do you understand the meaning of rape. (?) A. Yes. Firstly, they removed my clothes, touched me on my breast and raped me one by one. They removed my underwear and inserted their urinating part in my urinating part.
They confined me in their house for three days and during these days they had sexual intercourse upon me without me (my) consent several times. Accused Abdul and Wahid put pressure upon me to marry with Abdul but I refused. Abdul and Wahid thereafter took me to Bombay by Train. There I was confined by them in a room. In that room one Rakesh came there. Abdul, Wahid and Rakesh sold me to one Shanti. I cannot say about the amount of sale consideration. Shanti kept me in her room for about one month. She used to send me to people to 59 of 161 60 FIR No. 1408/07 PS - Sultan Puri make physical relations with me and those customers used to rape me.
Thereafter, I heard about selling me to Dubai by Shanti. On one day Shanti went out leaving her mobile phone in the room. From that mobile phone I rang my brother Rinku and informed him that I was in Bombay and told him the address of Shanti. Shanti came to know that I had made a call to Delhi. She enquired from me and I told her that I had made a call to my brother in Delhi. My brother came to Bombay on the next month of my reaching Bombay. Shanti went to railway station to receive my brother leaving me at the room. Shanti brought my brother to me at the room. Shanti asked my brother whether he had brought money as she had spent money on purchasing of prosecutrix and her up keepment in Bombay for a month. She demanded a sum of Rs. 2 lacs from my brother which he denied to pay. Shanti refused to handover me to my brother and threatened us in case of nonpayment of money, she shall liquidate myself and my brother.
My brother informed my house members at Delhi about the money. Shanti also talked to my mother that "Paise Do Ladki Lo". No money was given to Shanti by my brother. I was sleeping with Shanti and my brother was sleeping in the other room. In the morning we left Shanti sleeping and ran away and came to Delhi. Police was informed on the third day of my reaching Delhi as I was not feeling well for first two days. My statement was recorded by Police which is Ex. PW1/1 which bears my signatures at point 'A'. I was medically examined at Sanjay Gandhi Memorial Hospital. My clothes were sealed by doctor at the time of my medical examination. Accused Anwar and Sushma were arrested in the presence of my mother at her behest. I was not there at that time. Arrest memo of accused Anwar is Ex. PW1/A. Arrest memo of accused Sushma is Ex. PW1/B bearing my signatures at point 'A'. Personal search memo of accused Anwar is Ex. PW1/C and personal 60 of 161 61 FIR No. 1408/07 PS - Sultan Puri search memo of accused Sushma is Ex. PW1/D bearing my signatures at point 'A'."
During the leading question put by the Learned Addl. PP for the State, prosecutrix had deposed that : "It is correct that my brother visited me at Bombay on 07/09/2007 and I lodged the complaint on 11/09/2007. I had stated before the Police that Abdul and Wahid sold me to Shanti for Rs. 30,000/. I forgot this fact due to lapse of time. I can identify my clothes if shown to me.
Q. Is it correct that both the accused were arrested by IO in your presence from J1/50, Budh Vihar, Phase - I?
A. They were not arrested in my presence."
During her further examinationinchief dated 15/10/2008 after the arrest of accused Shanti @ Mercy, PW1 - prosecutrix deposed that : "On 02/06/2007, she alongwith her family were residing at H. No. 22/36, Phase - V, Sultan Puri, Mangal Bazar, with her family. I studied upto 10th class.
I was sold to accused Shanti @ Mercy by accused Abdul Wahid when accused Abdul Wahid and Rakesh took me to Bombay. However, I do not remember the amount for which I was sold by them to accused Shanti @ Mercy present in the Court today (witness has correctly pointed out towards the accused Shanti @ Mercy). Accused Shanti kept me in a room at her house at Bombay for about one month 61 of 161 62 FIR No. 1408/07 PS - Sultan Puri and she used to beat me. She also called the customers to her house and compel me physical relations with them and on my refusal she used to beat me and due to this fact those customers had forcible sexual intercourse with me in that room of her house. On one day one person came to the house of accused Shanti @ Mercy and she told me that the said person had come from Dubai and she received money from that person for my sale consideration as accused Shanti @ Mercy wants to sell me to that man.
At this stage witness states that she has already gave detailed statement before the Court on earlier dates and she wants to adopt the same.
At this stage the whole statement was read over to the witness in Hindi and she adopts the same in toto."
From the aforesaid narration of PW1 - prosecutrix, it is clear that on 06/08/2007, she alongwith her family were residing on the above mentioned house (H. No. 22/36, Phase - V, Sultan Puri, Mangal Bazar) on rent about five years prior to the above mentioned date. She studied upto 10th class. On 06/08/2007 at about 8:00 p.m., she was going to market to purchase curd. On the way Sushma, accused present in the Court met her. Accused Sushma was known to her as she was also residing in the neighbourhood where she was residing. Sushma asked her to take juice. She alongwith accused Sushma took juice and drunk the same. At the same time Sushma took her to Anwar who was 62 of 161 63 FIR No. 1408/07 PS - Sultan Puri standing near the juice shop. Anwar Sushma ka devar lagta hai. Thereafter, she became unconscious. When she regained consciousness she found herself in a train with the accused Anwar, present in the Court. He was accompanied by some other persons, who are not present in the Court but she can identify them, if shown to her. She asked accused as to where he was taking her who told that he was going to Shahjahan Pur where his mausa Abdul resides. After descending the train accused took her to the house of his mausa Abdul at Shahjahan Pur. Abdul was found present there at that time. At the house of Abdul, she was raped by Abdul, Wahid and Anwar. Initially accused Anwar sexually raped her, then Wahid and then Abdul also raped her.
Q. Do you understand the meaning of rape. (?) A. Yes. Firstly, they removed my clothes, touched me on my breast and raped me one by one. They removed my underwear and inserted their urinating part in my urinating part.
They confined her in their house for three days and during these days they had sexual intercourse upon her without her consent several times. Accused Abdul and Wahid put pressure upon her to marry with Abdul but she refused. Abdul and Wahid thereafter took her to Bombay by Train. There she was confined by them in a room. In that 63 of 161 64 FIR No. 1408/07 PS - Sultan Puri room one Rakesh came there. Abdul, Wahid and Rakesh sold her to one Shanti. She could not say about the amount of sale consideration. Shanti kept her in her room for about one month. She used to send her to people to make physical relations with her and those customers used to rape her. Thereafter, she heard about selling her to Dubai by Shanti. On one day Shanti went out leaving her mobile phone in the room. From that mobile phone she rang her brother Rinku and informed him that she was in Bombay and told him the address of Shanti. Shanti came to know that she had made a call to Delhi. She enquired from her and she (PW1) told her (accused Shanti) that she had made a call to her brother in Delhi. Her brother came to Bombay on the next month of her reaching Bombay. Shanti went to railway station to receive her brother leaving her at the room. Shanti brought her brother to her at the room. Shanti asked her brother whether he had brought money as she had spent money on purchasing of prosecutrix and her upkeepment in Bombay for a month. She demanded a sum of Rs. 2 lacs from her brother which he denied to pay. Shanti refused to hand her over to her brother and threatened them in case of nonpayment of money, she shall liquidate herself and her brother. Her brother informed her house members at Delhi about the 64 of 161 65 FIR No. 1408/07 PS - Sultan Puri money. Shanti also talked to her mother that "Paise Do Ladki Lo". No money was given to Shanti by her brother. She was sleeping with Shanti and her brother was sleeping in the other room. In the morning they left Shanti sleeping and ran away and came to Delhi. Police was informed on the third day of her reaching Delhi as she was not feeling well for first two days. Her statement was recorded by Police which is Ex. PW1/1 which bears her signatures at point 'A'.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that her brother had some altercation with Anwar prior to the incident of her kidnapping or that her brother had any altercation with Sushma on Anwar or that she is deposing falsely about her having raped by Anwar or that she had love affair with Anwar or that she had earlier gone with him or that she left her house with Anwar on her own with her own wish or that she has concocted a false story to falsely implicate Anwar as Anwar had an altercation with her brother or that she met Anwar at Sushma's house and that she fell in love with him from there only or that accused Sushma came to her house at about 6:00 p.m. at her house or that the house of the accused Mercy @ Shanti does 65 of 161 66 FIR No. 1408/07 PS - Sultan Puri not have any bathroom or toilet or that she used to prepare her own meals. Vol. She was not getting anything to eat. Again said, she was given food in small quantity to eat or that she had told her name wrongly as Muskan during her stay in the house of accused Mercy @ Shanti or that she was present at her house at the time of arrest of accused Anwar and Sushma or that she reached the colony of accused Mercy @ Shanti all alone in the second week of September, 2007 or that she was crying while standing in the colony of accused Mercy @ Shanti or that two ladies from the said building met her or that she met the accused Mercy @ Shanti on the said date at about 12:30 p.m. or that when she met the accused Mercy @ Shanti for the first time she was coming back from tuition classes or that she told the accused Mercy @ Shanti and another lady that her parents had expired and her MausiMausa wanted to marry her to an old person and that is why she ran away from her house or that she was hungry at that time and she was offered food by the accused Mercy @ Shanti or that while she was talking with accused Mercy @ Shanti, 23 other ladies from the colony also came there or that the said ladies requested the accused Mercy @ Shanti to keep her (prosecutrix) in her house to look after her mentally retarded daughter or that her only 66 of 161 67 FIR No. 1408/07 PS - Sultan Puri duty in the house of accused Mercy @ Shanti was to look after her mentally retarded daughter or that accused Mercy @ Shanti was not having other room on the said floor or that accused Mercy @ Shanti used to come back to the room at about 12:30 p.m. after leaving her daughter at the aforesaid School or that she is deposing falsely about two rooms belonging to accused Mercy @ Shanti or that accused Mercy @ Shanti and her two children used to live in the same room in which she (prosecutrix) was kept or that she used to take the aforesaid daughter of the accused Mercy @ Shanti down stairs as and when she used to have fits or that she and accused Mercy @ Shanti used to take the aforesaid child to the Doctor as and when she used to have fits or that she was kept to took after the aforesaid mentally retarded daughter of accused Mercy @ Shanti at a monthly salary of Rs. 2,000/ or that she had written a statement on a paper that she was residing with the accused Mercy @ Shanti on her own and that she was being paid a monthly salary of Rs. 2,000/ to look after her mentally retarded daughter or that she had torn the said paper when she ran away from the flat of accused Mercy @ Shanti or that the said statement was kept in the house of accused Mercy @ Shanti before the same was torn by her (prosecutrix) or that the 67 of 161 68 FIR No. 1408/07 PS - Sultan Puri accused Mercy @ Shanti has been implicated in a false case by her or that her brother demanded a sum of Rs. 3 lacs from the accused Mercy @ Shanti and when she refused she was got falsely implicated in this case or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/1 made to the Police.
68 of 161 69 FIR No. 1408/07 PS - Sultan Puri The testimony of PW1 - Prosecutrix is also found to be corroborated by PW2 - Bimla, her mother and PW5 - Rinku @ Praveen Kumar, her brother, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW2 - Bimla in her examinationinchief has deposed that : "Prosecutrix (name withheld) is my daughter and she was about 19 years on 06/09/2007. On that day i.e. 06/09/2007 my daughter prosecutrix (name withheld) went to market for shopping at about 8:00 p.m. But she did not come back at house on that day. I searched for her in the market, in the neighbourhood and I also inquired about her from my relatives and friends but I could not find any clue about my daughter on that day. Thereafter, I lodged report on 10/08/2007 and I signed that missing report at Police Station.
After about one month of the incident, exact date I do not remember now, my son Rinku received a phone call of my daughter/prosecutrix (name withheld) from Bombay. The phone call was also attended by me. My daughter/prosecutrix (name withheld) told me on phone that she was kidnapped by accused Sushma and now she is present at Bombay at the house of one Shanti and in the meantime, I heard the sound of beating on phone and therefore, the phone call was 69 of 161 70 FIR No. 1408/07 PS - Sultan Puri disconnected by my daughter.
On the same night Shanti telephoned at our house which was attended by me and she told me that prosecutrix (name withheld) is with her at her house and on my request she told her address. Then I told her that she can talk with my son Rinku as I was unable to understand the address of Shanti. Shanti again made a telephone call which was attended (by) my son Rinku and she told the same fact as well as the address to my son.
My son Rinku left my house for Bombay on 06/09/2007 to bring back my daughter/prosecutrix (name withheld). My son brought back my daughter to Delhi on 07/09/2007. Again said I do not remember the exact date, it might be 8th also. Then I informed the Police at number 100. PCR Van reached at the spot and local Police from PS - Sultan Puri also reached at the spot. My daughter/prosecutrix (name withheld) was taken to Sanjay Gandhi Memorial Hospital for medical examination by Police where she was medically examined. Both the accused were arrested by Police at the instance of my daughter/prosecutrix (name withheld) in my presence from Budh Vihar on 11/09/2007. Their arrest memos and personal search memos were prepared. Police recorded my statement on two occasions. Both the accused are present in the Court today."
During her further examinationinchief dated 15/10/2008 after the arrest of accused Shanti @ Mercy, PW2 - Bimla deposed that : "After about one month of the date of missing of my daughter/prosecutrix (name withheld) I received a phone call at my house from one Shanti from Bombay which was attended by me. She told me that prosecutrix (name withheld) is with her at her house and on 70 of 161 71 FIR No. 1408/07 PS - Sultan Puri my request about her address she told her address but I was unable to understand the said address, being illiterate, then I called my son Rinku to attend that call. Thereafter my son Rinku attend the phone call of Shanti and (the) she told her address to Rinku. On the said telephone call accused Shanti demanded money of Rs. 2 lacs from us in lieu of release of my daughter/prosecutrix (name withheld) and she asked me to arrange the money and to come to her house at Bombay with the said money and thereafter my daughter would be released.
At this stage witness states that she has already gave detailed statement before the Court on earlier dates and she wants to adopt the same.
At this stage the whole statement was read over to witness in Hindi and she adopts the same in toto."
From the aforesaid narration of PW2 - Bimla it is clear that the prosecutrix is her daughter and she was about 19 years on 06/09/2007. On that day i.e. 06/09/2007 her daughter/prosecutrix went to market for shopping at about 8:00 p.m. But she did not come back at house on that day. She(PW2)searched for her (prosecutrix) in the market, in the neighbourhood and she also inquired about her from her relatives and friends but she could not find any clue about her daughter on that day. Thereafter, she lodged report on 10/08/2007 and she signed that missing report at Police Station. After about one month of the 71 of 161 72 FIR No. 1408/07 PS - Sultan Puri incident, exact date she does not remember, her son Rinku received a phone call of her daughter/prosecutrix from Bombay. The phone call was also attended by her. Her daughter/prosecutrix told her on phone that she was kidnapped by accused Sushma and now she is present at Bombay at the house of one Shanti and in the meantime, she (PW2) heard the sound of beating on phone and therefore, the phone call was disconnected by her daughter. On the same night Shanti telephoned at their house which was attended by her and she (Shanti) told her that prosecutrix is with her at her house and on her (PW2) request she told her address. Then she (PW2) told her (Shanti) that she can talk with her son Rinku as she (PW2) was unable to understand the address of Shanti. Shanti again made a telephone call which was attended by her son Rinku and she told the same fact as well as the address to her son. Her son Rinku left her house for Bombay on 06/09/2007 to bring back her daughter/prosecutrix. Her son brought back her daughter to Delhi on 07/09/2007. Again said she does not remember the exact date, it might be 8th also. Then she (PW2) informed the Police at number 100. PCR Van reached at the spot and local Police from PS - Sultan Puri also reached at the spot. Her daughter/prosecutrix was taken to Sanjay 72 of 161 73 FIR No. 1408/07 PS - Sultan Puri Gandhi Memorial Hospital for medical examination by Police where she was medically examined.
During her crossexamination PW2 - Bimla has negated the suggestion that accused Anwar used to visit their building or that her sons had a scuffle with the accused for prosecutrix (name withheld) or that Anwar was having affair with her daughter or that her daughter had eloped with Anwar for a month or that she had falsely implicated the accused or that she is deposing falsely or that she did not give her medical assistance after arrival of her daughter from Bombay or that prosecutrix (name withheld) was not present there at the time of arrest of accused Sushma or that she had falsely implicated accused Sushma through her daughter or that as her daughter had love affair with accused Anwar and she had objection on his religion being Muslim, so she falsely implicated the accused or that her daughter was ready for marriage but she (PW2) had objection as the accused Anwar is Muslim or that accused Mercy @ Shanti informed her on the telephone that her daughter/prosecutrix (name withheld) was working with her or that she specifically inquired as to what she did of Rs. 800/ that she took from home while fleeing away from the house or that she was informed about 73 of 161 74 FIR No. 1408/07 PS - Sultan Puri the address of her house by accused Mercy @ Shanti or that prosecutrix (name withheld) was not suffering from any ailment at that time or that she is deposing falsely.
PW5 - Rinku @ Praveen Kumar in his examinationinchief has deposed that : "I used to reside at the above said address (H. No. Y36, Phase - I, Budh Vihar) alongwith my parents and brother sisters and I used to sell vegetables. I studied upto 8th. We are two brothers and two sisters. On 06/08/2007, my sister/prosecutrix (name withheld) had gone from our house but she did not return. Thereafter, we lodged a complaint at PS - Sultan Puri regarding her missing. On 06/09/2007, I received a call on my mobile phone no. 9818167912 from my sister/prosecutrix (name withheld) from Mumbai at about 8:00 - 8:30 p.m. She told me that she had been sold by one lady namely Sushma. After some time, I again received a telephonic call on my mobile phone from a mobile number 9224389746 which was the same mobile number from which first call was received. The caller told her name as Shanti and told me that my sister/prosecutrix (name withheld) was with her and if I wanted to take her back to Delhi from Mumbai then I should come to Mumbai. On 06/09/2007, I went to Mumbai from Delhi in a train namely Janta Express ticket of which I have brought to the Court today and the same is Ex. PW5/A. I reached Dadar Station, Mumbai on 07/09/2007 at about 9:30 p.m. From there, I made a call to Shanti on the above said mobile phone from STD booth and I was called at Kurla Station. At Kurla bus stop, one person met me and he took me to house of Shanti and we 74 of 161 75 FIR No. 1408/07 PS - Sultan Puri reached there at about 11:30 p.m. There, I met Shanti, accused present in the Court today (correctly identified by the witness) and I show her a photograph of my sister which I was carrying from my house at Delhi. There, I also met with my sister/prosecutrix (name withheld) who was also present there. There accused Shanti refused to hand over my sister/prosecutrix (name withheld) to me and she also threatened me with dire consequences and also told me that she had spent a huge amount on my sister/prosecutrix (name withheld). Next day on 08/09/2007, in the morning at about 4:00 - 5:00 a.m., I went to take my sister/prosecutrix (name withheld) however accused Shanti again refused to send her and threatened me to leave the place otherwise I would be killed. After 1015 minutes, I alongwith my sister managed to escape from there and reached at Bandra Railway Station from where we boarded a local train and reached Dahanu Railway Station and purchased two railway tickets of Super fast train to Delhi. The said railway tickets are Ex. PW5/B (colly.). On 09/09/2007, at about 9:30 a.m., we reached New Delhi Railway Station from where I alongwith my sister/prosecutrix (name withheld) reached our house Budh Vihar. The whole incident was narrated by my sister/prosecutrix (name withheld) to my mother. On the said day, condition of my sister was not good and on 11/09/2007 we went to PS and made a complaint and got registered the case and IO also recorded my statement on 11/09/2007.
On 04/12/2007, I again joined the investigation in the present case. On the said day, I alongwith SI Mukesh Rana and one another Constable went to Mumbai from Delhi and reached Mumbai on 05/12/2007 at about 5:30 - 6:00 p.m. From where assistance of local Police of Mumbai was taken and thereafter we reached Kurla in the house of accused Shanti. At that time, accused Shanti was present in her house and I told to IO that she was the same lady from whose custody, I 75 of 161 76 FIR No. 1408/07 PS - Sultan Puri managed to take away my sister/prosecutrix (name withheld). On my identification, accused Shanti @ Mercy was apprehended. Accused Shanti @ Mercy took me aside and offered me to take as much money as I and my sister required and I should not name her in this case. She also told me that she will tackle the Police officials also. On 06/12/2007, accused Shanti was brought to Delhi and she was also accompanied by one person namely Rama Shankar Tiwari. On 07/12/2007 at about 5:30
- 6:00 a.m., we alongwith accused Shanti reached New Delhi Railway Station from where accused was brought to PS - Sultan Puri and she was arrested vide arrest memo Ex. PW5/C and personal search was conducted by a lady Constable vide memo Ex. PW5/D. Both the above memos bear my signatures at point 'A' respectively. Thereafter, IO recorded my supplementary statement in this regard. IO also recorded the statement of my sister/prosecutrix (name withheld) in my presence."
From the abovesaid narration of PW5 - Rinku @ Praveen Kumar, it is clear that he used to reside at the above said address (H. No. Y36, Phase - I, Budh Vihar) alongwith his parents and brother sisters and he used to sell vegetables. He studied upto 8th. They are two brothers and two sisters. On 06/08/2007, his sister/prosecutrix had gone from their house but she did not return. Thereafter, they lodged a complaint at PS - Sultan Puri regarding her missing. On 06/09/2007, he received a call on his mobile phone no. 9818167912 from his sister/prosecutrix from Mumbai at about 8:00 - 8:30 p.m. She told him 76 of 161 77 FIR No. 1408/07 PS - Sultan Puri that she had been sold by one lady namely Sushma. After some time, he again received a telephonic call on his mobile phone from a mobile number 9224389746 which was the same mobile number from which first call was received. The caller told her name as Shanti and told him that his sister/prosecutrix was with her and if he wanted to take her back to Delhi from Mumbai then he should come to Mumbai. On 06/09/2007, he went to Mumbai from Delhi in a train namely Janta Express ticket of which he had brought to the Court and the same is Ex. PW5/A. He reached Dadar Station, Mumbai on 07/09/2007 at about 9:30 p.m. From there, he made a call to Shanti on the above said mobile phone from STD booth and he was called at Kurla Station. At Kurla bus stop, one person met him and he took him to house of Shanti and they reached there at about 11:30 p.m. There, he met Shanti, accused present in the Court and he showed her a photograph of his sister which he was carrying from his house at Delhi. There, he also met with his sister/prosecutrix who was also present there. There accused Shanti refused to hand over his sister/prosecutrix to him and she also threatened him with dire consequences and also told him that she had spent a huge amount on his sister/prosecutrix (name withheld). Next day on 08/09/2007, in the 77 of 161 78 FIR No. 1408/07 PS - Sultan Puri morning at about 4:00 - 5:00 a.m., he went to take his sister/prosecutrix however accused Shanti again refused to send her and threatened him to leave the place otherwise he would be killed. After 1015 minutes, he alongwith his sister managed to escape from there and reached at Bandra Railway Station from where they boarded a local train and reached Dahanu Railway Station and purchased two railway tickets of Super fast train to Delhi. The said railway tickets are Ex. PW5/B (colly.). On 09/09/2007, at about 9:30 a.m., they reached New Delhi Railway Station from where he alongwith his sister/prosecutrix reached their house Budh Vihar. The whole incident was narrated by his sister/prosecutrix to his mother. On the said day, condition of his sister was not good and on 11/09/2007 they went to PS and made a complaint and got registered the case and IO also recorded his statement on 11/09/2007. On 04/12/2007, he again joined the investigation in the present case. On the said day, he alongwith SI Mukesh Rana and one another Constable went to Mumbai from Delhi and reached Mumbai on 05/12/2007 at about 5:30 - 6:00 p.m. From where assistance of local Police of Mumbai was taken and thereafter they reached Kurla in the house of accused Shanti. At that time, accused Shanti was present in her house and he told to IO that she 78 of 161 79 FIR No. 1408/07 PS - Sultan Puri was the same lady from whose custody, he managed to take away his sister/prosecutrix. On his identification, accused Shanti @ Mercy was apprehended. Accused Shanti @ Mercy took him aside and offered him to take as much money as he and his sister required and he should not name her in this case. She also told him that she will tackle the Police officials also. On 06/12/2007, accused Shanti was brought to Delhi and she was also accompanied by one person namely Rama Shankar Tiwari. On 07/12/2007 at about 5:30 - 6:00 a.m., they alongwith accused Shanti reached New Delhi Railway Station from where accused was brought to PS - Sultan Puri and she was arrested vide arrest memo Ex. PW5/C and personal search was conducted by a lady Constable vide memo Ex. PW5/D. Both the above memos bear his signatures at point 'A' respectively. Thereafter, IO recorded his supplementary statement in this regard. IO also recorded the statement of his sister/prosecutrix in his presence.
During his crossexamination PW5 - Rinku @ Praveen Kumar has negated the suggestions that he does not know anything about this case and that he is deposing falsely or that they did not make any 79 of 161 80 FIR No. 1408/07 PS - Sultan Puri such complaint as no such telephonic call as stated to him was ever received by him or that he is deposing falsely or that accused Sushma has been falsely implicated in this case or that he does not know anything about this case or that his sister never informed them about the incident of selling her that took place with her or that he is deposing falsely or that he did not tell the said fact (about identification of person who met him at Kurla Bus Stop and was wearing blue coloured clothes and was having a locket in his neck who took him to the house of accused Mercy Serroa @ Shanti) to any public person as he never went to Kurla bus stop and met any such person or that neither he went to Mumbai nor he brought his sister back from the house of accused Shanti @ Mercy at Mumbai or that he is deposing falsely against the accused Shanti @ Mercy or that accused Shanti @ Mercy has been falsely implicated in this case or that he did not get his sister treated as she was not unwell or that he is deposing falsely and no such incident as narrated by him ever took place or that the person who met him at Kurla Bus Stop did not take him to the house of accused Shanti @ Mercy or that his sister was not taken away by him from the house of accused Shanti @ Mercy and it was the house of some other person from where he and his sister managed to 80 of 161 81 FIR No. 1408/07 PS - Sultan Puri escape or that his sister was not detained by accused Shanti @ Mercy or that accused Shanti @ Mercy has no role in the present case or that accused Shanti @ Mercy has been falsely implicated in this case or that he saw accused Shanti @ Mercy for the first time in the PS - Sultan Puri or that he is deposing falsely or that he did not intentionally lodge any report with the Police at Mumbai on his first visit to Mumbai or that he is deposing falsely as he had a previous enmity with accused Anwar or that he is deposing falsely or that he knew accused Sushma prior to the incident or that Anwar was having loveaffair with his sister/prosecutrix (name withheld) or that he has falsely implicated accused Sushma because she was on friendly terms with accused Anwar to whom they did not like or that he is deposing falsely or that accused Mercy was also present at the Railway Station alongwith the aforesaid person or that the persons residing in the neighbourhood of accused Mercy gathered when they reached there or that his sister/prosecutrix (name withheld) was not suffering from any illness at that time and they deliberately did not lodge any report immediately on their return to Delhi or that he demanded Rs. 3 lacs from accused Mercy on account of not to initiate any false and frivolous criminal proceedings against her or that he lodged the FIR only 81 of 161 82 FIR No. 1408/07 PS - Sultan Puri in order to exert pressure upon the accused Mercy or that he is deposing falsely.
Inspite of incisive crossexamination of PW2 - Bimla and PW5 - Rinku @ Praveen Kumar, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on careful perusal and analyses and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
20. While analysing the testimony of PW1 Prosecutrix, PW2 - Bimla and PW5 - Rinku @ Praveen Kumar as discussed hereinabove inspite of incisive crossexamination of PW1 Prosecutrix, PW2 - Bimla and PW5 - Rinku @ Praveen Kumar nothing has come out in their statements which may throw even a slightest doubt on the prosecution 82 of 161 83 FIR No. 1408/07 PS - Sultan Puri version of the incident. Though the suggestion by the defence to PW1
- Prosecutrix that her brother had some altercation with Anwar prior to the incident of her kidnapping or that her brother had any altercation with Sushma on Anwar or that she is deposing falsely about her having raped by Anwar or that she had love affair with Anwar or that she had earlier gone with him or that she left her house with Anwar on her own with her own wish or that she has concocted a false story to falsely implicate Anwar as Anwar had an altercation with her brother or that she met Anwar at Sushma's house and that she fell in love with him from there only or that accused Sushma came to her house at about 6:00 p.m. at her house or that the house of the accused Mercy @ Shanti does not have any bathroom or toilet or that she used to prepare her own meals Vol. She was not getting anything to eat. Again said, she was given food in small quantity to eat or that she had told her name wrongly as Muskan during her stay in the house of accused Mercy @ Shanti or that she was present at her house at the time of arrest of accused Anwar and Sushma or that she reached the colony of accused Mercy @ Shanti all alone in the second week of September, 2007 or that she was crying while standing in the colony of accused Mercy @ Shanti or that two ladies 83 of 161 84 FIR No. 1408/07 PS - Sultan Puri from the said building met her or that she met the accused Mercy @ Shanti on the said date at about 12:30 p.m. or that when she met the accused Mercy @ Shanti for the first time she was coming back from tuition classes or that she told the accused Mercy @ Shanti and another lady that her parents had expired and her MausiMausa wanted to marry her to an old person and that is why she ran away from her house or that she was hungry at that time and she was offered food by the accused Mercy @ Shanti or that while she was talking with accused Mercy @ Shanti, 23 other ladies from the colony also came there or that the said ladies requested the accused Mercy @ Shanti to keep her (prosecutrix) in her house to look after her mentally retarded daughter or that her only duty in the house of accused Mercy @ Shanti was to look after her mentally retarded daughter or that accused Mercy @ Shanti was not having other room on the said floor or that accused Mercy @ Shanti used to come back to the room at about 12:30 p.m. after leaving her daughter at the aforesaid School or that she is deposing falsely about two rooms belonging to accused Mercy @ Shanti or that accused Mercy @ Shanti and her two children used to live in the same room in which she (prosecutrix) was kept or that she used to take the aforesaid daughter of 84 of 161 85 FIR No. 1408/07 PS - Sultan Puri the accused Mercy @ Shanti down stairs as and when she used to have fits or that she and accused Mercy @ Shanti used to take the aforesaid child to the Doctor as and when she used to have fits or that she was kept to took after the aforesaid mentally retarded daughter of accused Mercy @ Shanti at a monthly salary of Rs. 2,000/ or that she had written a statement on a paper that she was residing with the accused Mercy @ Shanti on her own and that she was being paid a monthly salary of Rs. 2,000/ to look after her mentally retarded daughter or that she had torn the said paper when she ran away from the flat of accused Mercy @ Shanti or that the said statement was kept in the house of accused Mercy @ Shanti before the same was torn by her (prosecutrix) or that the accused Mercy @ Shanti has been implicated in a false case by her or that her brother demanded a sum of Rs. 3 lacs from the accused Mercy @ Shanti and when she refused she was got falsely implicated in this case or that she is deposing falsely the suggestions to PW2 - Bimla that accused Anwar used to visit their building or that her sons had a scuffle with the accused for prosecutrix (name withheld) or that Anwar was having affair with her daughter or that her daughter had eloped with Anwar for a month or that she had falsely implicated the accused or that 85 of 161 86 FIR No. 1408/07 PS - Sultan Puri she is deposing falsely or that she did not give her medical assistance after arrival of her daughter from Bombay or that prosecutrix (name withheld) was not present there at the time of arrest of accused Sushma or that she had falsely implicated accused Sushma through her daughter or that as her daughter had love affair with accused Anwar and she had objection on his religion being Muslim, so she falsely implicated the accused or that her daughter was ready for marriage but she (PW2) had objection as the accused Anwar is Muslim or that accused Mercy @ Shanti informed her on the telephone that her daughter/prosecutrix (name withheld) was working with her or that she specifically inquired as to what she did of Rs. 800/ that she took from home while fleeing away from the house or that she was informed about the address of her house by accused Mercy @ Shanti or that prosecutrix (name withheld) was not suffering from any ailment at that time or that she is deposing falsely and the suggestions to PW5 - Rinku @ Praveen Kumar that he does not know anything about this case and that he is deposing falsely or that they did not make any such complaint as no such telephonic call as stated to him was ever received by him or that he is deposing falsely or that accused Sushma has been falsely implicated in this case or that he 86 of 161 87 FIR No. 1408/07 PS - Sultan Puri does not know anything about this case or that his sister never informed them about the incident of selling her that took place with her or that he is deposing falsely or that he did not tell the said fact (about identification of person who met him at Kurla Bus Stop and was wearing blue coloured clothes and was having a locket in his neck who took him to the house of accused Mercy Serroa @ Shanti) to any public person as he never went to Kurla bus stop and met any such person or that neither he went to Mumbai nor he brought his sister back from the house of accused Shanti @ Mercy at Mumbai or that he is deposing falsely against the accused Shanti @ Mercy or that accused Shanti @ Mercy has been falsely implicated in this case or that he did not get his sister treated as she was not unwell or that he is deposing falsely and no such incident as narrated by him ever took place or that the person who met him at Kurla Bus Stop did not take him to the house of accused Shanti @ Mercy or that his sister was not taken away by him from the house of accused Shanti @ Mercy and it was the house of some other person from where he and his sister managed to escape or that his sister was not detained by accused Shanti @ Mercy or that accused Shanti @ Mercy has no role in the present case or that accused Shanti @ Mercy has been falsely 87 of 161 88 FIR No. 1408/07 PS - Sultan Puri implicated in this case or that he saw accused Shanti @ Mercy for the first time in the PS - Sultan Puri or that he is deposing falsely or that he did not intentionally lodge any report with the Police at Mumbai on his first visit to Mumbai or that he is deposing falsely as he had a previous enmity with accused Anwar or that he is deposing falsely or that he knew accused Sushma prior to the incident or that Anwar was having love affair with his sister/prosecutrix (name withheld) or that he has falsely implicated accused Sushma because she was on friendly terms with accused Anwar to whom they did not like or that he is deposing falsely or that accused Mercy was also present at the Railway Station alongwith the aforesaid person or that the persons residing in the neighbourhood of accused Mercy gathered when they reached there or that his sister/prosecutrix (name withheld) was not suffering from any illness at that time and they deliberately did not lodge any report immediately on their return to Delhi or that he demanded Rs. 3 lacs from accused Mercy on account of not to initiate any false and frivolous criminal proceedings against her or that he lodged the FIR only in order to exert pressure upon the accused Mercy or that he is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made 88 of 161 89 FIR No. 1408/07 PS - Sultan Puri probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
At the cost of repetition, from the suggestions put to PW5 - Rinku @ Praveen Kumar, brother of prosecutrix, as detailed herein above, by accused Mercy Serroa @ Shanti, it is to be noticed that a futile attempt has been made by accused Mercy Serroa @ Shanti to save her skin from the clutches of law by floating a theory that "Neither PW5 - Rinku @ Praveen Kumar) went to Mumbai nor he brought his sister back from the house of accused Mercy Serroa @ Shanti at Mumbai".
On careful perusal and analysis of the entire evidence on record, the said theory so propounded by accused Mercy Serroa @ Shanti is found not only contrary with the defence evidence led by her but the same has also not at all made probable much established by any cogent evidence, therefore falls flat to the ground. DW1 - Smt. Nirasha Chauhan in her examinationinchief has deposed that : "In the morning, I came to know from accused Shanti that 89 of 161 90 FIR No. 1408/07 PS - Sultan Puri prosecutrix (name withheld) had left the house of accused with her brother without intimating the accused for Delhi."
21. However, a futile attempt has been made by the accused Mercy Serroa @ Shanti by way of examination of DW1 - Smt. Nirasha Chauhan and by accused Anwar by way of examination of DW2 - Sh. Jai Kishan Goel and DW3 - Shanky in order to save their skins from the clutches of law : DW1 - Smt. Nirasha Chauhan in her examinationinchief had deposed that she knows accused Mercy @ Shanti as she stays next to her Chal (flat). They stay at the place for the past about 10 years. She (Mercy @ Shanti) used to take tuition of her children. She does not remember the date, month and year but it was month of Sawan on that day, she was going to drop her children to their School at about 11:30 a.m. when she saw some women staying at the ground floor of the Chal (flat) standing there with a girl namely Muskan. She (DW1) inquired them as to what was the matter. They told her that that was a young girl who was telling herself to be an orphan and she further told that she was being brought up by her Fufa and Bua. Since, her Fufa was trying to get her forcibly married off, therefore she fled away from her house.
90 of 161 91 FIR No. 1408/07 PS - Sultan Puri Thereafter, she (DW1) went to drop her children at their School. After she came back, she saw the said girl standing there int he company of same women. One of them asked her (DW1) as to what to do with the said girl. She (DW1) suggested them to collect some money so that she could go back to Delhi. Thereafter, they all contributed and collected about Rs. 450/ and gave the same to Muskan. In fact, accused namely Mercy @ Shanti also contributed a sum of Rs. 100/ for that purpose. Thereafter, they told Muskan to go back to Delhi but she refused to do so saying that in case if she ever goes back, her Fufa would definitely marry her with some old man. Since the daughter of accused Shanti suffers from mental ailments, hence they decided to keep Muskan at her (Mercy @ Shanti) house to look after her (Mercy @ Shanti) daughter. Muskan used to take care of her (Mercy @ Shanti) daughter. At times, Muskan used to take her (Mercy @ Shanti) daughter for walking and eating some fast food etc. outside. After three days of the Raksha - Bandhan, accused Mercy came to her (DW1) house and told her that that girl Muskan was telling lies. She was not an orphan she had a brother also at Delhi and she wanted to talk with them. Thereafter, they spoke to some other women of Chal and decided to speak to members of Muskan's 91 of 161 92 FIR No. 1408/07 PS - Sultan Puri family on the number provided by her. At about 8:00 p.m., accused Mercy called up on the number supplied by Muskan which was picked up by her mother. Accused Mercy @ Shanti made inquiries about the said girl from her mother on telephone who told that her name was prosecutrix (name withheld) not Muskan. Her mother also told that she was wearing an anklet in her foot. Her mother also told that prosecutrix (name withheld) had fled away from the house after taking Rs. 250/ on the pretext of buying some curds. She (DW1) is aware about the above said conversation as the speaker of the telephone was on at that time. On the same day at night, Muskan's brother gave a missed call at the mobile phone of accused Mercy. Upon which accused Mercy gave a call to him and he confirmed that he would be coming to Mumbai. After Muskan's brother came at Mumbai, accused Mercy went to receive him at station and brought him at her Chal. Thereafter, they all gathered there and asked Muskan to give one page statement stating therein that the person who came Mumbai was her brother and she is leaving Mumbai with him for Delhi. Muskan also stated in that statement that she had stayed there with her own will and during that period she never faced any trouble. In the morning, she (DW1) came to know from accused Shanti that 92 of 161 93 FIR No. 1408/07 PS - Sultan Puri prosecutrix (name withheld) had left the house of accused with her brother without intimating the accused for Delhi. In fact, in their hurry to leave the place, they left one small bag there. She does not have any knowledge about the facts of this case.
I have carefully perused and analysed the testimony of DW1
- Smt. Nirasha Chauhan. The theory of manner of possession of PW1
- prosecutrix by accused Mercy Serroa @ Shanti as propounded by DW1 - Smt. Nirasha Chauhan by deposing that, "After she came back, she saw the said girl standing there in the company of same women. One of them asked her (DW1) as to what to do with the said girl. She (DW1) suggested them to collect some money so that she could go back to Delhi. Thereafter, they all contributed and collected about Rs. 450/ and gave the same to Muskan. In fact, accused namely Mercy @ Shanti also contributed a sum of Rs. 100/ for that purpose. Thereafter, they told Muskan to go back to Delhi but she refused to do so saying that in case if she ever goes back, her Fufa would definitely marry her with some old man. Since the daughter 93 of 161 94 FIR No. 1408/07 PS - Sultan Puri of accused Shanti suffers from mental ailments, hence they decided to keep Muskan at her (Mercy @ Shanti) house to look after her (Mercy @ Shanti) daughter. Muskan used to take care of her (Mercy @ Shanti) daughter. At times, Muskan used to take her (Mercy @ Shanti) daughter for walking and eating some fast food etc. outside."
AND The theory that, "thereafter, they all gathered there and asked Muskan to give one page statement stating therein that the person who came Mumbai was her brother and she is leaving Mumbai with him for Delhi. Muskan also stated in that statement that she had stayed there with her own will and during that period she never faced any trouble."
have not at all been made probable, much established by any cogent evidence. Moreover, the said theories so propounded by DW1 - Smt. Nirasha Chauhan in view of the categorical testimony of PW1 - prosecutrix, as discussed hereinbefore does not hold water and falls flat to the ground.
94 of 161 95 FIR No. 1408/07 PS - Sultan Puri Further, whatever has been attempted to be portrayed by way of examinationinchief of DW1 - Smt. Nirasha Chauhan has neither been put/suggested by accused Mercy Serroa @ Shanti, either to PW1 - prosecutrix or to PW5 - Rinku @ Praveen Kumar, her brother, during their lengthy and incisive crossexamination. In the circumstances, the testimony of DW1 Nirasha Chauhan does not inspire confidence. She is a procured witness and the abovesaid theories so propounded by her are merely an afterthought.
It is also to be noticed that the explanation given by accused Mercy Serroa @ Shanti in her statement recorded u/s 313 Cr.P.C. that she hired prosecutrix to help and assist her in household chores on a monthly salary of Rs. 3,000/ does not find support even from her own witness DW1 - Smt. Nirasha Chauhan. The entire testimony of DW1 - Smt. Nirasha Chauhan is totally silent on the aspect of hiring of prosecutrix for help and assistance in her household chores by accused Mercy Serroa @ Shanti on a monthly salary of Rs. 3,000/. As to what has been deposed by DW1 - Nirasha Chauhan in her examinationin chief is reproduced and reads as under : 95 of 161 96 FIR No. 1408/07 PS - Sultan Puri "Since the daughter of accused Shanti suffers from mental ailments, hence we decided to keep Muskan at her (Mercy @ Shanti) house to look after her (Mercy @ Shanti) daughter."
The relevant part of statement of accused Mercy Serroa @ Shanti recorded u/s 313 Cr.P.C. reads as under : "I am innocent. I have been falsely implicated in this case. Infact, I hired prosecutrix to help and assist me in household chores and for the purpose of baby sitting of my mentally challenged daughter namely Daizy. I hired her on a monthly salary of Rs. 3,000/....."
Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Since the facts were especially within the knowledge of accused Mercy Serroa @ Shanti, it was for her to explain why no Police complaint was made by her regarding finding of prosecutrix at or near 96 of 161 97 FIR No. 1408/07 PS - Sultan Puri her chawl (flat)? why she kept prosecutrix at her house without informing the Police? where is that document/statement which was got written from prosecutrix that she had stayed there at Mumbai with her own will and during that period, she never faced any trouble? No such alleged document/statement has been produced or proved on the record. Moreover, PW1 - prosecutrix during her crossexamination on behalf of accused Mercy Serroa @ Shanti has specifically deposed that : "I have not given in writing on any paper that I went to the house of accused Mercy Serroa @ Shanti on my own."
DW2 - Sh. Jai Kishan Goyal has deposed that he is doing the business of ready made garments from the last 15 years. His garments shop is situated at 676, Rani Bagh, Delhi. Accused Anwar was working at his shop since JanuaryFebruary, 2006. His shop used to open at 10:30 a.m. in the morning and used to close at about 9:159:30 p.m. On 06/08/2007 accused Anwar was working at his shop and he (Anwar) remained at the shop till 9:30 p.m. on that day. Thereafter, he (Anwar) worked at his shop for the entire month of August, 2007 and he 97 of 161 98 FIR No. 1408/07 PS - Sultan Puri (Anwar) worked at his shop till 10/09/2007. He did not receive any complaint against him (Anwar) at his shop.
On careful perusal and analysis of the testimony of DW2 - Sh. Jai Kishan Goyal, it is found that the theory propounded by him by deposing that, "06/08/2007 accused Anwar was working at his shop and he (Anwar) remained at the shop till 9:30 p.m. on that day. Thereafter, he (Anwar) worked at his shop for the entire month of August, 2007 and he (Anwar) worked at his shop till 10/09/2007" has not at all been made probable, much established by any cogent evidence. Nor the said theory so propounded by DW2 - Sh. Jai Kishan Goyal, was put/suggested to PW1 - prosecutrix during the course of her cross examination. Nor even a single word regarding the said theory so propounded, was uttered by the accused Anwar during his statement u/s 313 Cr.P.C.
In the circumstances, the testimony of DW2 - Sh. Jai Kishan Goyal does not inspire confidence and he is a procured witness.
DW3 - Shanky deposed that in the year 2007, he used to 98 of 161 99 FIR No. 1408/07 PS - Sultan Puri work at N20, Budh Vihar, Phase - I in a footwear shop. The witness has been shown Ex. PW16/B (site plan) and he states that his shop was situated hardly 2025 paces from the Hanuman Mandir. In January, 2007, he had been working at this place. There was no juice shop in the year 2007 near the Hanuman Mandir. Vol. Even juice shop on a rehri was not allowed by the Police officials. There was no sweet/confectionery shop in the year 2007 near the Hanuman Mandir. The place shown in the site plan is a very crowded place and bear Constable are there on regular duty. No incident of girl getting unconscious had happened in August/September 2007 in his presence or in his knowledge. Vol. If any such incident had occurred, a large crown would have gathered at the place of incident. The market generally opens at 10:00 a.m. in the morning and shuts down at 9:30 p.m. On careful perusal and analysis of the testimony of DW3 - Shanky, it is found that the theory propounded by him by deposing that, "There was no juice shop in the year 2007 near the Hanuman Mandir." has not at all been made probable, much established by any cogent evidence. Nor the said theory so propounded by DW3 - Shanky, 99 of 161 100 FIR No. 1408/07 PS - Sultan Puri was put/suggested to PW1 - prosecutrix during the course of her cross examination. Nor even a single word regarding the said theory so propounded, was uttered by the accused Anwar during his statement u/s 313 Cr.P.C. Moreover, PW1 - prosecutrix during her crossexamination has specifically deposed that : "The juice shop is after the shop from where I was going to fetch Dahi. The said juice shop is the distance of ½ hours by walk from my house. Sushma took me to the Juice shop by walking. I used to go to fetch dahi seldom. I had not told this fact to Sushma that I was going to fetch Dahi. I reached the shop of Juice Vendor at about 08:30 p.m."
In the circumstances, the testimony of DW3 - Shanky does not inspire confidence and he is a procured witness.
22. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at 100 of 161 101 FIR No. 1408/07 PS - Sultan Puri page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
101 of 161 102 FIR No. 1408/07 PS - Sultan Puri In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, gynaecological examination vide MLC Ex. PW4/A of the prosecutrix together with the MLC of accused Anwar Ex. PW7/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Anwar with PW1 - Prosecutrix without her consent.
23. Learned Counsel for the accused submitted that the prosecutrix has not made any statement in her examinationinchief alleging against accused Mercy @ Shanti of any criminal action falling under 328 of Indian Penal Code. Even otherwise the PW10 has also affirmed that there was no injury on the body of the prosecutrix even 102 of 161 103 FIR No. 1408/07 PS - Sultan Puri distantly suggesting that PW1 was ever given any injection containing obnoxious substance.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief has specifically deposed that : "On 06/08/2007 at about 8:00 p.m., I was going to market to purchase curd. On the way Sushma, accused present in the Court (correctly identified by the witness) met me. Accused Sushma was known to me as she was also residing in the neighbourhood where I was residing. Sushma asked me to take juice. I alongwith accused Sushma took juice and drunk the same. At the same time Sushma took me to Anwar who was standing near the juice shop. Anwar Sushma ka devar lagta hai. Thereafter I became unconscious. When I regained consciousness I found myself in a train with the accused Anwar, present in the Court today. He was accompanied by some other persons, who are not present in the Court but I can identify them, if shown to me. I asked accused as to where he was taking me who told that he was going to Shahjahan Pur where his mausa Abdul resides. After descending the train accused took me to the house of his mausa Abdul at Shahjahan Pur.
Abdul was found present there at that time. At the house of Abdul, I was raped by Abdul, Wahid and Anwar. Initially accused Anwar sexually raped me, then Wahid and then Abdul also raped me. Q. Do you understand the meaning of rape. (?) 103 of 161 104 FIR No. 1408/07 PS - Sultan Puri A. Yes. Firstly, they removed my clothes, touched me on my breast and raped me one by one. They removed my underwear and inserted their urinating part in my urinating part.
They confined me in their house for three days and during these days they had sexual intercourse upon me without me (my) consent several times. Accused Abdul and Wahid put pressure upon me to marry with Abdul but I refused. Abdul and Wahid thereafter took me to Bombay by Train. There I was confined by them in a room. In that room one Rakesh came there. Abdul, Wahid and Rakesh sold me to one Shanti. I cannot say about the amount of sale consideration. Shanti kept me in her room for about one month. She used to send me to people to make physical relations with me and those customers used to rape me."
(underlined by me) From the aforesaid narration of the prosecutrix, it is clearly indicated that PW1 prosecutrix was abducted on 06/08/2007 by accused Anwar and Sushma from Delhi after administering her some intoxicant substance by mixing in the juice by accused Sushma with intent to facilitate the offence of abduction and thereafter, she was taken by accused Anwar to the house of his mausa Abdul Wahid at Shahjahan Pur and thereafter, after committal of the gang rape upon her there at Shahjahan Pur, accused Anwar, sold the prosecutrix to accused Mercy Serroa @ Shanti at Mumbai through his mausa Abdul Wahid and Rakesh 104 of 161 105 FIR No. 1408/07 PS - Sultan Puri (not arrested) for the purpose of prostitution. Had accused Mercy Serroa @ Shanti not been in criminal conspiracy with accused Anwar and Sushma, then why she was sold only to accused Mercy Serroa @ Shanti and none else by accused Anwar and Sushma through Abdul Wahid and Rakesh (not arrested).
Presence/living of PW1 - prosecutrix at the house of accused Mercy Serroa @ Shanti has been proved on record. Nothing has been shown either from the evidence on the record or proved otherwise by accused Anwar & Sushma as to how the prosecutrix, living at Delhi, reached at the house of accused Mercy Serroa @ Shanti at Mumbai, Had they (accused Anwar, Sushma and Mercy Serroa @ Shanti) not been in criminal conspiracy. At the cost of repetition, the journey of PW1 - prosecutrix which started from Delhi via Shahjahan Pur at the house of the mausa (Abdul Wahid) of accused Anwar and ended at the house of accused Mercy Serroa @ Shanti at Mumbai, the graphic representation of the same has been made by PW1 - prosecutrix in her testimony as reproduced hereinabove.
In the circumstances, being a part of a criminal conspiracy, it does not lie in the mouth of accused Mercy Serroa @ 105 of 161 106 FIR No. 1408/07 PS - Sultan Puri Shanti to utter that she is not liable for any criminal action for the administering of intoxicating substance to PW1 - prosecutrix.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
As regards the testimony of PW10 - Dr. Sameer Pandit is concerned, although the same has been discussed and analysed herein before yet it will also be dealt with in the later part of the judgment.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that PW1 in her deposition has stated that two person namely Abdul & Wahid brought her from Shahjahan Pur to Mumbai. At Mumbai one Rakesh used to come at the place where the PW1 was purportedly kept against her will and wish. There one person namely Rakesh used to pay visit and said Rakesh sold to the present accused. However, there is no investigation 106 of 161 107 FIR No. 1408/07 PS - Sultan Puri made by the Police so as to furnish any details of said three persons. In fact, it has been alleged by the PW1 that said Abdul & Wahid were Mausa of the main accused namely Anwar. However, Police did not furnish any details of a blood relation of the main accused Anwar despite taking him under Police custody. The Police could not clarify as to whether Abdul Wahid are one person or two persons. Furthermore, in the same fashion no investigation or inquiry was made by the Police to furnish any detail of said Rakesh.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
PW1 - prosecutrix in her examinationinchief recorded on 17/03/2008 has deposed that : "I asked accused as to where he was taking me who told that he was going to Shahjahan Pur where his mausa Abdul resides. After descending the train accused took me to the house of his mausa Abdul at Shahjahan Pur. Abdul was found present there at that time. At the house of Abdul, I was raped by Abdul, Wahid and Anwar. Initially accused 107 of 161 108 FIR No. 1408/07 PS - Sultan Puri Anwar sexually raped me, then Wahid and then Abdul also raped me. Q. Do you understand the meaning of rape. (?) A. Yes. Firstly, they removed my clothes, touched me on my breast and raped me one by one. They removed my underwear and inserted their urinating part in my urinating part.
They confined me in their house for three days and during these days they had sexual intercourse upon me without me (my) consent several times. Accused Abdul and Wahid put pressure upon me to marry with Abdul but I refused. Abdul and Wahid thereafter took me to Bombay by Train. There I was confined by them in a room. In that room one Rakesh came there. Abdul, Wahid and Rakesh sold me to one Shanti."
While answering a leading question put by Learned Addl. PP recorded on 17/03/2008, PW1 - prosecutrix has deposed that : "I had stated before the Police that Abdul and Wahid sold me to Shanti for Rs. 30,000/"
During her crossexamination recorded on 28/05/2008 on behalf of accused Anwar, PW1 - prosecutrix has deposed that : "I went to Mumbai from Shahjahanpur with Abdul Wahi. We went to Mumbai by train however, I went to railway station on bus from Shahjahanpur. I had told this fact to one lady when I was made to board a bus forcibly by Abdul Wahi but she denied to help me saying that it was our personal matter as Wahi had told her that I was his wife."
108 of 161 109 FIR No. 1408/07 PS - Sultan Puri During the recording of her further examination after the arrest of accused Shanti @ Mercy, PW1 - prosecutrix has deposed that : "I was sold to accused Shanti @ Mercy by accused Abdul Wahid when accused Abdul Wahid and Rakesh took me to Bombay. However, I do not remember the amount for which I was sold by them to accused Shanti @ Mercy present in the Court today (witness has correctly pointed out towards the accused Shanti @ Mercy)."
From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that Abdul Wahid is one person. Apparently, there appears to be some mistake in recording his name as stated by PW1 - prosecutrix. Therefore, nothing turns much on the said submission of the Learned Counsel for the accused.. Further had there been any confusion with regard to, whether Abdul Wahid is one person or two persons, clarifications must have been obtained during her cross examination but accused failed to do so.
It is also to be noticed that PW16 - W/SI Nisha in her cross examination recorded on 15/02/2011 conducted on behalf of accused Anwar has specifically deposed that : 109 of 161 110 FIR No. 1408/07 PS - Sultan Puri "During investigation prosecutrix had told me about the person named Abdul Wahid who had raped and that Abdul Wahid was the single person and not two separate persons Abdul and Wahid."
PW13 - Inspector Deen Dayal Kansal in his cross examination recorded on 13/01/2010, as was conducted on behalf of accused Anwar, has deposed that : "The investigation of the present case was marked to me by the SHO PS - Sultan Puri. SI Mukesh Rana alongwith prosecutrix and Rajesh were sent to Shahjahan Pur in search of accused Abdul Wahid but the said accused could not be arrested in this case as his complete address was not available."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that there is delay in lodging complaint. It is the case of the prosecution that the prosecutrix went missing on 06/08/2007; however, the complaint was lodged on 10/08/2007. Any member of her family did not bother to lodge 110 of 161 111 FIR No. 1408/07 PS - Sultan Puri FIR on 07/09/2007 when finally they came to know about whereabouts of PW1 over phone, PW2 made a statement that 07/09/2007, when she came to know as to where her daughter has been all this while, she made a call to 100 number and apprised to the Police about the said development. However, there is nothing on record to prove as to whether any call was made on that day.
Thereafter, despite coming back to Delhi on 09/09/2007 and claiming telling everything to her mother, no FIR was lodged till date in the evening of 11/09/2007. It has been very vaguely stated that the condition of PW1 was very bad that was why there was delay in lodging FIR. However, the prosecution has miserably failed to produce any documentary proof or otherwise to show as to whether any medical care and attention was ever given to the PW1 and if at all it was given to her, then where and what time and what she was treated for. On the contrary, the PW2 very specifically stated in her crossexamination dated 18/07/2008 as under : "...After arrival of my daughter from Bombay, I did not provide her any medical assistance in any hospital or from any local doctor..."
111 of 161 112 FIR No. 1408/07 PS - Sultan Puri After the so called escape of PW1 & PW5 from Mumbai, they did not bother to lodge any complaint neither in Mumbai nor immediately after coming back to Delhi. It has come on record in the statement of PW5 that while coming back to Delhi, the PW1's condition was not bad, then also PW1 & PW5 did not lodge any complaint in Mumbai. At every railway station there is a Police post where the PW1 & PW5 could have lodged their complaint. Further, contrary statements are also made by the PW2 & PW5 as to why no FIR was lodged or could not be lodged. The PW5 states that they did not lodge any complaint to the Police as Mercy @ Shanti made a request to them not to do the same. Whereas the PW2 states that when she came to know as to where her daughter has been all this while, she made a call to 100 number and apprised to the Police about the same. "I went to the Police next date but Police did not record my complaint." Lastly, the prosecutrix and her entire family were not inhibited to lodge any complaint/FIR against the accused persons due to social stigma rather some strange and contradictory explanation has been afforded casting serious doubt about their intention to lodge the complaint immediately. Learned Counsel for the accused submitted that the FIR has been lodged inordinately delayed 112 of 161 113 FIR No. 1408/07 PS - Sultan Puri without affording any plausible reason or documentary proof, which seriously cast serious doubt on the entire story as forwarded by the prosecution.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has deposed that Police was informed on the third day (on 11/09/2007) of her reaching Delhi (on 09/09/2007) as she was not feeling well for first two days.
The relevant part of examinationinchief of PW1 - prosecutrix is reproduced and reads as under : "Police was informed on the third day of my reaching Delhi as I was not feeling well for the first two days."
The said part of the testimony of PW1 - prosecutrix does not get nullified as has been attempted to be done by the Learned Counsel for the accused, in view of as to what has been specifically deposed by PW2 - Bimla, her mother in her crossexamination that, after arrival of her daughter from Bombay, she did not provide her any 113 of 161 114 FIR No. 1408/07 PS - Sultan Puri medical assistance in any Hospital or from any local Doctor.
Since health includes not only the physical health but mental health also. In the circumstances not providing of any medical assistance in any Hospital to her daughter/prosecutrix by PW2 - Bimla or from any local Doctor or the absence of any documentary medical proof does not falsify the testimonies of PW1 - prosecutrix and PW2 - Bimla, her mother. There is nothing in their crossexamination so as to impeach their creditworthiness. Their testimonies on careful perusal and analysis have been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
The sight cannot be lost of the physical and mental condition of PW1 - prosecutrix who was missing from her home for about one month and was kidnapped and was repeatedly raped by accused Abdul Wahid (not arrested) and accused Anwar and then was sold to accused Mercy Serroa @ Shanti, who wrongfully confined her 114 of 161 115 FIR No. 1408/07 PS - Sultan Puri and sent her (PW1 - prosecutrix) to different people to make physical relations with her and those customers raped her.
PW2 - Bimla in her examinationinchief has deposed that she lodged the report on 10/08/2007 (Ex. PW8/A) and she signed that missing report at Police Station.
PW8 - Constable Nav Ratan has proved the DD No. 27B dated 10/08/2007 Ex. PW8/A and in his examinationinchief has deposed that : "On 10/08/2007, I was posted at PS - Sultan Puri and working as a DD Writer and my duty hours were from 8:00 a.m. to 4:00 p.m. On that day, at about 9:00 a.m., Bimla came to PS and gave her statement to me as same was reduced into writing by me vide DD No. 27B dated 10/08/2007 and thereafter copy of the said DD was handed over to HC Vinod for further inquiry/investigation. I have brought the original DD Entry Register, copy of same is Ex. PW8/A which bears my signature at point 'A' (original seen and returned)."
PW2 - Bimla during her crossexamination recorded on 28/09/2010 has deposed that : "It is correct that we did not lodge any report on the day on which my daughter/prosecutrix (name withheld) went missing. It is correct that from the day of her missing till the day we received the telephonic call from accused Mercy @ Shanti, we had no clue about the 115 of 161 116 FIR No. 1408/07 PS - Sultan Puri whereabouts of prosecutrix (name withheld). I do not remember the day or date on which we received a telephonic call from accused Mercy @ Shanti, however it was in the month of September. I attended the telephonic call received from accused Mercy @ Shanti."
Further PW2 - Bimla, during her crossexamination has deposed that : "I informed the Police when I received a call from my daughter. My son had gone to Bombay. My son brought my daughter on 9 of Bhadoh month. I went to the Police Station next date but Police did not record my complaint."
Had PW1 - prosecutrix no opportunity to make a call to her house from Bombay from the house of accused Mercy Serroa @ Shanti, to disclose her whereabouts to her family members, then there was no chance, to know as to where she is, who was missing since 06/08/2007 and the atrocities committed upon her (PW1 - prosecutrix) by accused Mercy Serroa @ Shanti would have continued.
The sight cannot be lost of the fact that she was confined at the house of accused Mercy Serroa @ Shanti and did not appear to have gathered the courage due to the atrocities of accused Mercy Serroa @ Shanti to report the incident immediately and when she found an 116 of 161 117 FIR No. 1408/07 PS - Sultan Puri opportunity, she made call to her house telling them (her family members) her whereabouts. Had she (PW1 - prosecutrix) not disclosed to her family members her whereabouts then she could not have been recovered by her brother, PW5 - Rinku @ Praveen Kumar from the house of accused Mercy Serroa @ Shanti and brought her the Delhi on 09/09/2007.
In view of above and in the circumstances, the delay in the registration of the case stands satisfactorily and sufficiently explained.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
117 of 161 118 FIR No. 1408/07 PS - Sultan Puri The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
118 of 161 119 FIR No. 1408/07 PS - Sultan Puri The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya 119 of 161 120 FIR No. 1408/07 PS - Sultan Puri Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that the prosecutrix during the entire period of her so called captivity had been travelling at public places and interacting with public persons, despite that did never raise any hue and cry. The PW1 had stated that she was fully conscious when she visited to Mumbai with Abdul & Wahid. They visited to Mumbai by train, however, they went to railway station on bus from Shahjan Pur. When specifically questioned as to whether she raised 120 of 161 121 FIR No. 1408/07 PS - Sultan Puri any hue and cry, she had stated that she did not raise any voice at train. He further submitted that at every railway station there is always Help Desk manned by Railway Police, GRP & Police, who are readily available to help in case if it is sought. However, at no point of time, there was any efforts were made to report such grave offences committed upon the prosecutrix. It is an admitted fact that the accused stays at two story building where on each and every floor there are 32 single room Chawl where families are residing. In the said building there are no bathroom attached to the single room Chawl rather it is common toilet. The said fact has been verified by the PW14 & DW1. However, strangely the said fact has been denied by the prosecutrix. Meaning thereby, the prosecutrix has every single of her so called captivity had four or six occasions to complain and/or to talk to any public persons residing at the said building in a single day. Admittedly she had stayed at the residence of the accused for about four weeks, however she had stayed at the residence of the accused for about four weeks, however she has never spoken to anyone forget about raising hue and cry.
I have carefully perused and analysed the evidence on 121 of 161 122 FIR No. 1408/07 PS - Sultan Puri record.
Nonraising of any hue and cry by the PW1 - prosecutrix while travelling at the public places and while being at Shahjahan Pur and at the Chawl at the Mumbai does not falsify the case of the prosecution. The sight cannot be lost of the fact of the mental condition of the prosecutrix and the rigors through which she had passed while being at Shahjahan Pur where she was gang raped by Abdul Wahid and Anwar continuously for three days and at the Chawl at Mumbai where she was kept closed in room for about one month and was sent to customers by accused Mercy @ Shanti who used to rape her (PW1 - prosecutrix), one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry. In the circumstances, nonraising of any hue and cry by PW1 prosecutrix does not falsify the case of the prosecutrix which is otherwise proved on record by the clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
122 of 161 123 FIR No. 1408/07 PS - Sultan Puri
27. Learned Counsel for the accused submitted that the statement of prosecutrix is full of contradictions, improvements and inconsistency, hence not reliable and liable to discarded in toto. Further, since the statements of her mother (PW2) and brother (PW5) are based on the informations given by her to them, no reliance could be placed on their evidence as well. The instances of concoctment, improvement and inconsistency of PW1, PW2 & PW5 are as under : PW1 stated that Shanti went to railway station to receive my brother leaving me at the room. Shanti brought my brother to the room. While, PW2 stated that after return to Delhi, my son Rinku informed me that he was received by accused Mercy @ Shanti at Railway Station at Mumbai. While, PW5 denies being received by Mercy.
PW1 stated that my brother informed my house members (family) about the demanded money. Shanti also talked to my brother that "paise do ladki lo". While, PW2 stated that she heard the sound of beating on phone and therefore, the phone call was disconnected by my daughter. The PW1 does not state anything to that effect (by this time 123 of 161 124 FIR No. 1408/07 PS - Sultan Puri entire criminal action rape was not divulged to the PW2).
PW1 stated that she was sleeping with Shanti and my brother was sleeping in the other room. PW1 stated that my brother slept in another room in the house of accused Mercy @ Shanti. PW1 stated that in the morning we left Shanti sleeping and ran away and came to Delhi. She also stated that she saw him (Anwar) only 10 days prior to the incident. Then also she did not raise hue and cry when she found herself in the train after gaining conscience. She further stated that the shop she went to fetch curd was 10 minutes walk from her house, after drinking the intoxicated Juice, she walked down to the same route for 10 minutes. Learned Counsel submitted that does she mean to say that she came back home. She further stated that after consuming the juice, she had hardly covered a distance of 10 minutes by walk and she became unconscious. PW1 further stated that she also called the customers to her house and compel me physical relation with them and on my refusal she used to beat me and due to this fact those customers had forcible sexual intercourse with me in that room of her house. Learned Counsel submitted that despite being forced to have sex with various customers, surprisingly has no injury marks on her entire body.
124 of 161 125 FIR No. 1408/07 PS - Sultan Puri She never mentions the aforesaid allegations before the Police in her statement u/s 161 Cr.P.C.
PW1 also stated that "It is correct that one boy and one girl child were living in the house of accused Mercy @ Shanti but I do not know whether the said children belonged to her or not. She further stated that "It is correct that the girl was mentally retarded." PW1 stated that "It is wrong to suggest that I used to prepare my own meals. Vol. I was not getting anything to eat. Again said, I was given food in small quantity. PW1 stated that she used to remain lying in one room in the house of accused Mercy @ Shanti during her stay in the said house. She further stated that she identified the building in the photograph mark 'D'. PW1 stated that the house of the accused Mercy @ Shanti does not have any bathroom or toilet. While PW5 in his crossexamination stated that toilet was not attached with the said room. And PW14 stated that the latrine and bathroom was not attached with the said flats and they were common latrine/bathroom for many flats.
PW1 stated that she informed her address to her mother. She was not aware of the address of the accused Mercy @ Shanti. Vol.
125 of 161 126 FIR No. 1408/07 PS - Sultan Puri She had only informed her mother that she was at the house of accused Mercy @ Shanti at Mumbai. While PW2 in his crossexamination stated that "It is wrong to suggest that I was informed about the address of her house by accused Mercy @ Shanti. Vol. Her address was told to me by my daughter/prosecutrix only."
PW1 stated that my brother reached Mumbai on the next day of the making of telephonic call. She further stated that she narrated the entire story to her mother. They went to the PS on the same day. PW1 further stated that "It is wrong to suggest that when I met the accused Mercy @ Shanti for the first time she was coming back from tuition classes. Vol. She was sitting at that time along with another lady. She was sitting at ground floor." She further stated that the accused Mercy @ Shanti was having two rooms in the said building. Both the rooms were on the second floor. The second room of the accused Mercy @ Shanti was on the side of the first room after two rooms. PW1 further stated that she never used to leave her house. She further stated that she does not remember the time when the accused Mercy @ Shanti used to leave her house in the morning. She used to leave her room occasionally.
126 of 161 127 FIR No. 1408/07 PS - Sultan Puri She does not remember after about how much time she used to come back to her house. PW1 also stated that she was never allowed to go out of the room by accused Mercy @ Shanti. Learned Counsel submitted that PW1 prosecutrix never said that she was kept under lock and keys.
I have carefully perused and analysed the evidence on record.
The testimonies of PW1 - prosecutrix, PW2 - Bimla and PW5 - Rinku @ Praveen Kumar have been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimonies of the said witnesses have been found to be natural, clear, cogent, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, the testimony of PW1 - prosecutrix is also found to be corroborated by PW2 - Bimla, her mother and PW5 - Rinku @ Praveen Kumar, her brother, to whom, the prosecutrix deposed the facts, relating to the crime, shortly after the incident at the first 127 of 161 128 FIR No. 1408/07 PS - Sultan Puri available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
On careful perusal and analysis of the entire evidence on the record, the said discrepancies regarding which the plea has been raised on the aspects that, as to who took prosecutrix to Bombay whether by Abdul Wahid or by accused Anwar and Sushma; who phoned to the house of prosecutrix, whether the prosecutrix or accused Mercy Serroa @ Shanti, who received such call whether by PW2 - Bimla or by PW5 - Rinku, who gave the address of accused Mercy Serroa @ Shanti, whether by prosecutrix or by accused Mercy Serroa @ Shanti; from whom accused Mercy Serroa @ Shanti demanded a sum of Rs. 2,00,000/ whether from PW5 - Rinku or from PW2 - Bimla; how much money PW5 - Rinku was having when left for Bombay whether Rs. 5,000/ or Rs. 1,500/; who took PW5 - Rinku to the house of accused Mercy Serroa @ Shanti from Kurla Bus Stop whether accused Mercy Serroa @ Shanti or one person who met him (PW5 - Rinku) at Kurla Bus Stop; in whose presence accused Anwar and Sushma were arrested whether in the presence of prosecutrix or her mother (PW2 - Bimla); by 128 of 161 129 FIR No. 1408/07 PS - Sultan Puri whom prosecutrix was sold to accused Mercy Serroa @ Shanti whether by Abdul Wahid and Rakesh or by accused Sushma; in what amount prosecutrix was sold to accused Mercy Serroa @ Shanti whether in Rs. 30,000/ or in some other amount; whether PW5 - Rinku @ Praveen Kumar, brother of PW1 - prosecutrix at Railway Station Mumbai was received by accused Mercy Serroa @ Shanti or not; in which room PW5
- Rinku @ Praveen Kumar, brother of PW1 - prosecutix slept in the house of accused Mercy Serroa @ Shanti; on which date, PW5 - Rinku @ Praveen Kumar left for Bombay from Delhi and on which date he reached at Bombay and on which date, he brought PW1 - prosecutrix to Delhi; on the aspects of location/topography of the building of accused Mercy Serroa @ Shanti; position of toilet and latrine in the house of accused Mercy Serroa @ Shanti whether were attached or not etc. do not reflect upon the substantive evidence and the probative value of the statements made by PW1 - prosecutrix, PW2 Bimla and PW5 - Rinku @ Praveen Kumar on the material and relevant aspects. Moreover, the so called discrepancies are mere the details, unrelated to the main incident. In fact they are the 'clarifications' or 'elaborations' of the facts in response to the questions put to them and they have deposed the facts in 129 of 161 130 FIR No. 1408/07 PS - Sultan Puri the manner they experienced, perceived and observed. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact. Moreover, the said discrepancies are merely the inconsistencies of the fringe without materially affecting the credibility of the evidence and do not go to the root of the matter.
At the cost of repetition, as discussed hereinbefore, from the testimony of PW1 - prosecutrix, it has been clearly established that she was sold to accused Mercy Serroa @ Shanti by accused Rakesh and accused Abdul Wahid (not arrested), Mausa of accused Anwar.
It is also proved on record by the testimony of PW5 - Rinku @ Praveen Kumar, brother of PW1 - prosecutrix that he brought her (PW1 - prosecutrix) to Delhi from the house of accused Mercy Serroa @ Shanti from Mumbai. His testimony is also corroborated by the testimony of PW1 - prosecutrix.
The fact that PW1 - prosecutrix was with accused Mercy 130 of 161 131 FIR No. 1408/07 PS - Sultan Puri Serroa @ Shanti at Mumbai at her house has also not been disputed by accused Mercy Serroa @ Shanti.
Prosecution has discharged its initial burden of proving that after the abduction of PW1 - prosecutrix from Delhi by accused Sushma and Anwar, she was taken to Shahjahan Pur by accused Anwar and thereafter, she was sold to accused Mercy Serroa @ Shanti of Mumbai by accused Rakesh and Abdul Wahid (not arrested). Accused Mercy Serroa @ Shanti was under an obligation to explain as to how and WHEN and FROM WHOM and under what circumstances, she came to possess PW1 prosecutrix. The absence of such an explanation in the Section 313 Cr.P.C. statement and her complete denial becomes an additional link in the prosecution case.
In the circumstances, the existence of criminal conspiracy between accused Mercy Serroa @ Shanti and accused Anwar, Sushma, Abdul Wahid (not arrested) and accused Rakesh (not arrested) stands established on the record and in pursuance of that criminal conspiracy, PW1 - prosecutrix, after abduction from Delhi by accused Anwar and 131 of 161 132 FIR No. 1408/07 PS - Sultan Puri Sushma, was taken to Shahjahan Pur, where she was repeatedly raped by accused Anwar and Abdul Wahid, his Mausa and from there she (PW1 - prosecutrix) was taken to Mumbai by accused Abdul Wahid and accused Rakesh (not arrested) where, in pursuance of the criminal conspiracy, she was sold to accused Mercy Serroa @ Shanti. Had it not been so, then accused Mercy Serroa @ Shanti, at Mumbai, could not have come in possession of PW1 - prosecutrix.
It is well settled that criminal conspiracies are hatched in secrecy and direct evidence in proof of a conspiracy is seldom available.
'The theory of manner of possession of PW1 -
prosecutrix by accused Mercy Serroa @ Shanti' as propounded by DW1 - Smt. Nirasha Chauhan in view of the categorical testimony of PW1 - prosecutrix does not hold water and falls flat on the ground.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the 132 of 161 133 FIR No. 1408/07 PS - Sultan Puri witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
In case "Bharwada Bhoginbhai Jirjibhai Vs. State of Gujrat" (1983) 3 SCC 217, the Hon'ble Supreme Court, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic 133 of 161 134 FIR No. 1408/07 PS - Sultan Puri memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details;
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or 134 of 161 135 FIR No. 1408/07 PS - Sultan Puri variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the 135 of 161 136 FIR No. 1408/07 PS - Sultan Puri occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that the statement of PW5 is also full of contradictions. Learned Counsel further submitted that PW5 stated that he received a call at 8:00/8:30 p.m. PW5 further stated that he comes back to house at 11:30 p.m. and his mother only received the call. PW5 further stated that she was sold by Anwar & Sushma. He further stated that next day on 08/09/2007, in the morning at about 4:00/5:00 a.m., he went to take his sister/prosecutrix (name withheld). However Shanti refused to send her and threatened him to leave the place otherwise he would be killed. After 1015 minutes, he 136 of 161 137 FIR No. 1408/07 PS - Sultan Puri alongwith his sister managed to escape from there and reached at Bandra Railway Station from where they boarded a local train and reached Dahanu Railway Station and purchased two railway tickets of super fast train to Delhi. He further stated that Phone was brought to the market by his father on 07/09/2007. He further stated that was given Rs. 1,500/ by his mother to bring his sister from Mumbai. While PW2 in her cross examination stated that she gave a sum of Rs. 5,000/ to her son Rinku @ Praveen when he went to Mumbai in search of prosecutrix. PW5 further stated that he remembered the entire route to the house of accused Mercy. He further stated in his crossexamination that he does not remember on which floor the house of accused Mercy was situated.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit they intend to reap by raising the said plea.
The testimony of PW5 - Rinku @ Pradeep Kumar, brother of prosecutrix has been reproduced, discussed and analysed herein before. At the cost of repetition his testimony on careful perusal and 137 of 161 138 FIR No. 1408/07 PS - Sultan Puri analysis has been found to be natural, clear, cogent and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused to falsify implicate them in the case. PW5 - Rinku @ Pradeep Kumar has deposed regarding the facts which were disclosed to him by his sister PW1 - prosecutrix and regarding the facts which he experienced and observed. It is well settled that the corroboration of evidence with mathematical niceties cannot be expected in criminal cases. It is also well settled that irrelevant details which do not corrode the credibility of the witness cannot be labelled as omissions or contradictions.
At the cost of repetition, even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
In the circumstances, there is no substance in the plea so 138 of 161 139 FIR No. 1408/07 PS - Sultan Puri raised by the Learned Counsel for the accused.
29. Learned Counsel for the accused submitted that strange behaviour has been shown by PW2 - Smt. Bimla, who in her cross examination has deposed that it is correct that when accused Mercy @ Shanti called me up, I directly inquired from her as to whether my daughter is still in possession of costly anklet and how much money she had carried right now. Learned Counsel for accused further submitted that the evidence of defence is more plausible and reliable.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit they intend to reap by raising the said plea.
The testimony of PW2 - Bimla, mother of prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition her testimony on careful perusal and analysis has been found to be natural, clear, cogent and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to 139 of 161 140 FIR No. 1408/07 PS - Sultan Puri falsify implicate them in the case. PW2 - Bimla has clearly deposed the facts which she perceived, observed and experienced. It does not, in any manner, indicate any strange behaviour, either of her (PW2 - Bimla) or of any other family member.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused submitted that there is shoddy investigation and further submitted that PW13 - Inspector Deen Dayal Kansal sent PW14 SI Mukesh Rana, Constable Ramesh and Rinku (PW5) in search of Mercy. Learned Counsel further submitted that PW13 admitted that one Rama Shankar Tiwari also came alongwith the accused Mercy and that Mercy was arrested in Delhi. Learned Counsel further submitted that in case, Rinku was also there at the time of arrest, he would have had identified the accused Mercy in Mumbai, however that was not so and she was brought to Delhi to join investigation in search of a lady called Shanti. Learned Counsel for accused further submitted that PW14 - SI Mukesh Rana has admitted that Latrine and 140 of 161 141 FIR No. 1408/07 PS - Sultan Puri bathroom were common. Various families were residing in those flats. No recording of the statement of any public witness at Mumbai and justification for not recording the statement was that all of them were saying that mercy was not guilty. Learned Counsel further submitted that none of the investigation officers bothered to find out who is Rakesh; no inquiry from the area where the accused person resides as to whether any such activity ever took place; no investigation as to whether there is any juice shop situated as per the so called site plan; no disclosure memo of Mercy; Rakesh is not even named in FIR and no call records has been placed with respect to prove any link whatsoever with said Abdul, Wahid, Rakesh, Anwar & Sushma.
I have carefully perused and analysed the evidence on record.
The testimonies of PW13 Inspector Deen Dayal Kansal IO and PW14 - SI Mukesh Kumar have been detailed hereinbefore. They have clearly deposed as to what investigation was carried out by them.
At the cost of repetition, PW13 - Inspector Deen Dayal Kansal in his examinationinchief has deposed that on 16/11/2007, he 141 of 161 142 FIR No. 1408/07 PS - Sultan Puri was posted at PS - Sultan Puri as an Inspector (Investigation) and on that day, the present case was marked to him for further investigation. On receiving the case file, he inspected the same and found that accused namely Shanti, Rakesh and Wahid were yet to be arrested. On 03/12/2007, he sent the exhibits of the present case through Constable Biri Singh to FSL, Rohini vide RC No. 444/21/07 in a sealed condition. After depositing the exhibits Constable Beeri Singh came at PS and he (PW13) recorded the statement of Constable Beeri Singh and MHC(M) HC Ramesh. Thereafter, he sent the SI Mukesh Rana alongwith Constable Ramesh and Rinku brother of prosecutrix to Mumbai in search of accused Shanti. On 07/12/2007, SI Mukesh Rana met him at PS - Sultan Puri after returning from Mumbai and one person namely Uma Shanker Tiwari (Be read as Rama Shankar Tiwari) alongwith Mercy also came at PS. Prosecutrix (name withheld) and Rinku, brother of the prosecutrix were also present at PS - Sultan Puri who had told him the lady who is telling her name as Mercy was the same lady whose name is Shanti. He called the W/Constable Babita and interrogated Mercy @ Shanti and thereafter she was arrested in the present case vide arrest memo already Ex. PW5/C and her personal search was conducted vide 142 of 161 143 FIR No. 1408/07 PS - Sultan Puri personal search memo already Ex. PW5/D, which bears his signatures at point 'B' respectively and the personal search of accused Mercy @ Shanti who is present in the Court were handed over to Rama Shanker Tiwari. Thereafter, he recorded the statement of Rinku, prosecutrix (name withheld) and W/Constable Babita. Accused Mercy @ Shanti was produced before the concerned Court and sent to JC. He completed the investigation and prepared the supplementary chargesheet in respect of the accused Mercy @ Shanti and presented the same before the Court for judicial verdict. The main challan of the present case was also filed by him earlier in this case.
During his crossexamination, on behalf of accused Sushma, PW13 - Inspector Deen Dayal Kansal has deposed that : "On 07/12/2007, I recorded the statement of Rinku @ Praveen and lady Constable Babita. On 06/12/2007 I recorded the statement of Bimla, mother of the prosecutrix. I did not conduct the investigation in respect of accused Sushma in this case. Vol. She has already been arrested by the earlier IO."
During his crossexamination, on behalf of accused Anwar, PW13 - Inspector Deen Dayal Kansal has deposed that : 143 of 161 144 FIR No. 1408/07 PS - Sultan Puri "I have been in Police service from the last about 29 years. I have investigated number of cases pertaining to kidnapping, abduction and rape in respect of various other offences during my service as Police official. The investigation of the present case was marked to me by the SHO PS - Sultan Puri. SI Mukesh Rana alongwith prosecutrix and Rajesh were sent to Shahjahan Pur in search of accused Abdul Wahid, but the said accused could not be arrested in this case as his complete address was not available. I did not obtain the Police remand of accused Anwar during the investigation of this case. I was handed over the investigation on 16/11/2007 and by that time the period of 15 days during which the Police remand could have obtained have already expired so he was not taken to Shahjahan Pur and Mumbai by me or SI Mukesh Rana. It is correct that I did not went to Mumbai in respect of the investigation of this case. I did not get the statement of the prosecutrix recorded u/s 164 Cr.P.C. Vol. The same were got recorded by the earlier IO. I did not conduct any investigation in respect of any accused Anwar in this case. I recorded the statement of prosecutrix, Rinku @ Praveen and Bimla u/s 161 Cr.P.C. as per the version given by them. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I have not recorded the statement of the witnesses. It is wrong to suggest that I have not properly conducted the investigation in this case in fair manner."
During his crossexamination, on behalf of accused Mercy @ Shanti, PW13 - Inspector Deen Dayal Kansal has deposed that : "I was handed over the entire case file of this case on 16/11/2007 by the SHO, PS - Sultan Puri for further investigation. It is correct that accused Shanti @ Mercy was arrested in Delhi. Vol. She 144 of 161 145 FIR No. 1408/07 PS - Sultan Puri came on her own to Delhi from Mumbai.
It is wrong to suggest that accused Shanti @ Mercy was brought to Delhi by SI Mukesh Rana to join the investigation in search of a lady named Shanti. It is correct that no disclosure statement of accused Shanti @ Mercy was recorded by me in this case. The name of accused Shanti @ Mercy was disclosed by the witnesses Rinku @ Praveen and prosecutrix (name withheld)."
At the cost of repetition, PW14 - SI Mukesh Kumar in his examinationinchief has deposed that on 26/11/2007, he was posted at PS - Sultan Puri. On that day, the case file of the present case was handed over to him by Inspector Deen Dayal and thereafter he had gone through the case. On the same day i.e. 26/11/2007, he alongwith complainant/prosecutrix (name withheld), W/Constable Rajesh and Constable Ramesh went to Shahjahan Pur in UP in search of accused Abdul Wahid (since not arrested) but he could not be found. At Shahjahan Pur, complainant/prosecutrix (name withheld) showed them various houses but she could not identify the house where she was kept by the accused persons. On 04/12/2007, he in the company of Praveen, brother of prosecutrix visited Mumbai in search of accused Rakesh and Mercy Serroa @ Shanti. The accused Mercy Serroa @ Shanti, accused 145 of 161 146 FIR No. 1408/07 PS - Sultan Puri present in the Court was identified by Praveen, brother of the prosecutrix. They returned Delhi with accused Mercy on 07/12/2007. He handed over the accused Mercy Serroa @ Shanti to IO Inspector Deen Dayal who carried out the further investigation in this case. Accused Mercy Serroa @ Shanti voluntarily accompanied them to Delhi and he had not formally arrested her in this case and he simply handed over her to the IO Inspector Deen Dayal.
During his crossexamination, on behalf of accused Mercy @ Shanti, PW14 - SI Mukesh Kumar has deposed which is reproduced and reads as under : "We left Delhi on 04/12/2007 at about 2:00 p.m. from Mumbai. Our departure was recorded in the roznamcha but I did not place the copy of DD on file. I did not obtain the warrant of any of the accused before leaving for Mumbai. We reached at Mumbai on the next day but I do not remember the exact time when we reached there. After reaching Mumbai, we went to PS Vinova Bhawe Nagar. After reporting in the said PS, we took the local Police officials with us and went to the house of accused Mercy @ Shanti. Praveen, brother of the prosecutrix accompanied us and he had seen the house of accused Mercy @ Shanti and accordingly he took us to her house. The flats where the accused Mercy @ Shanti was residing were 34 storey Janta flats. The latrine and bathroom were not attached with the said flats and they were 146 of 161 147 FIR No. 1408/07 PS - Sultan Puri common latrine/bathroom for many flats. Various families were residing in those flats. Many public persons gathered when we reached there. We inquired from those public persons but they did not reveal anything as they were known to accused Mercy @ Shanti and they were in fact trying to save accused and were saying that the name of the accused was not Shanti but was Mercy. I did not record the statement of any person including Uma Shankar Tiwari. One old man accompanied accused Mercy @ Shanti to Delhi and the public persons were calling him by the name of Uma Shanker Tiwari.
It is wrong to suggest that I alongwith accused Mercy @ Shanti and aforesaid Uma Shankar came to PS - Vinova Bhave Nagar from the residence of accused Mercy @ Shanti in a TSR. It is wrong to suggest that I was also got reserved the train tickets got accused Mercy and Uma Shanker Tiwari. It is wrong to suggest that accused Mercy @ Shanti did not accompany us voluntarily to Delhi or that she was forced to come to Delhi. It is wrong to suggest that I alongwith accused Mercy @ Shanti and Uma Shankar traveled in the same coach of Rajdhani Express to Delhi. We reached Delhi on 07/12/2007 at about 1011 a.m. I did not organize any raiding party after reaching Delhi. I and other Police officials traveled in one auto and accused Mercy @ Shanti traveled in another auto with Uma Shankar to PS - Sultan Puri. I did not hand over my train ticker to the IO.
It is wrong to suggest that from Railway Station at Delhi to PS - Sultan Puri, I and the accused Mercy traveled in the same auto. It is wrong to suggest that I am deposing falsely."
Despite grant of opportunity, PW14 - SI Mukesh Kumar 147 of 161 148 FIR No. 1408/07 PS - Sultan Puri was not crossexamined on behalf of accused Sushma and Anwar.
On careful perusal and analysis the testimonies of PW13 - Inspector Deen Dayal Kansal and PW14 - SI Mukesh Kumar, are found to be clear, cogent and give a graphic description of the steps taken by them during the course of the investigation. Inspite of their incisive crossexamination nothing material has been brought out so as to impeach their creditworthiness. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
As regards the lapses/discrepancies in the investigation, detailed in the plea so raised, the same, on careful perusal and analysis, are found not to reflect upon the substantive evidence and the probative value of the statement made by PW1 - prosecutrix on the material and relevant aspects nor do they in any way, negate or vitiate the case of the prosecution which is otherwise proved on record by the clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
148 of 161 149 FIR No. 1408/07 PS - Sultan Puri In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused submitted that Mercy is a tutor and been residing in the same locality since her birth. Learned Counsel for accused further submitted that PW2 has stated that it is correct that accused Mercy @ Shanti told her that she would be able to identify her son from his clothes and she also asked that he should bring a photograph of prosecutrix. Learned Counsel for the accused further submitted that she (accused Mercy) is the one who has given her own address to the prosecutrix's family. If she had any ill will or criminal action, she would have never given the address; it was not possible for a mother of two and single woman to put the restriction upon the prosecutrix. It is not the case of the prosecution that the accused Mercy was ever helped by any other person while her stay at Mumbai; she contributed Rs. 100/ towards the contribution for sending Prosecutrix back her home (Delhi) and most importantly, the kind of allegation leveled against the accused herein that cannot be committed single handedly.
149 of 161 150 FIR No. 1408/07 PS - Sultan Puri I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. The facts forming the corpus of the plea raised have already been discussed and analysed while dealing with the testimony of PW2 - Smt. Bimla as well as PW1 - prosecutrix. No further discussion is called for on it.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for the accused Anwar and Sushma submitted that the medical report and the FSL Report do not support the case of the prosecution as no injury of any nature was found on the prosecutrix despite the fact she was gang raped and physically assaulted against her wishes. While the Learned Counsel for the accused Mercy @ Shanti submitted that the entire allegation leveled against the accused persons is not at all supported with the medical evidence. The PW4 has 150 of 161 151 FIR No. 1408/07 PS - Sultan Puri stated that no injury external or internal was found on the body of the PW1. The PW4 stated that hymen was absent further he could not confirm as to whether Hymen ruptured or old one. The PW1 has been alleging that she had been time and again been forcefully raped, therefore there ought to be external injury on one or another part of the body of the PW1.
I have carefully perused and analysed the evidence on record.
The medical evidence of PW1 - prosecutrix has been discussed and analysed hereinbefore.
At the cost of repetition, PW10 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, Delhi, has deposed that on 11/09/2007, he had medically examined patient/prosecutrix (name withheld), 19 years female brought by Rajesh with the alleged history of kidnapped by some person about one month back, was drugged and taken to Mumbai subjected to torture, forcible detention, sexual assault and cruelty by various persons there and escaped three days back as told by the patient. On examination, there was no mark of any fresh injury 151 of 161 152 FIR No. 1408/07 PS - Sultan Puri seen on exposed body of patient. Thereafter, he referred the patient for detail examination to Gynae. He prepared the MLC already Ex. PW4/A which bears his signatures at point 'A'.
PW4 - Dr. Renu Gupta, Sr. Resident (Gynaecology) Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that On 11/09/2007, patient/prosecutrix (name withheld) D/o Sh. Babu Lal aged about 19 years was brought to the Hospital by lady Constable Rajesh with the alleged history of being kidnapped by some persons about one month back, was taken to Bombay, subjected to torture, forcible detention, sexual assault and cruelty by various persons there and escaped three days back as told by the patient. Patient was referred to her by Dr. Sameer Pandit the then CMO for gynaecology examination and management. Patient was examined by her. On local examination hymen was absent and there was no external injury. She was not sure of the date of her last menstrual period. In her history she gave her menstrual period as 02/08/2007. The UPT was done and was negative. But still the emergency contraceptives were given. Her vaginal swab and the under garments were taken and sealed with the seal of Hospital and 152 of 161 153 FIR No. 1408/07 PS - Sultan Puri were handed over to the Police. The patient was advised to review in the gynae OPD if she does not have her menstrual period. Her note regarding the examination of the patient is Ex. PW4/A on the MLC of the prosecutrix, which bears her signature at point 'B'.
There is nothing in the crossexamination of PW10 - Dr. Sameer Pandit and PW4 - Dr. Renu Gupta, SR, Gynae so as to impeach their creditworthiness.
At the cost of repetition, the period of alleged incident is from 06/08/2007 till 09/09/2007 when PW1 - prosecutrix was brought to Delhi and the medical examination of PW1 - prosecutrix was conducted on 11/09/2007. It is not a case of recent sexual intercourse activity. Moreover, nonfinding of injuries on the body of prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the 153 of 161 154 FIR No. 1408/07 PS - Sultan Puri labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be 154 of 161 155 FIR No. 1408/07 PS - Sultan Puri decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. As far as the plea of the Learned Counsel for the accused Anwar and Sushma that the statement of PW1 prosecutrix was not recorded u/s 164 Cr.P.C. and this is the lacuna in the investigation, is concerned, the same is without any substance as nonrecording of the statement of the prosecutrix u/s 164 Cr.P.C. cannot prove fatal to her case in as much as to get recording of such a statement is the prerogative of the prosecution. (Rel. Tasleem @ Pappu Vs. State (NCT Govt. of Delhi 2011 III AD (Delhi) 325).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
34. Learned Counsel for the accused referred to the cases and 155 of 161 156 FIR No. 1408/07 PS - Sultan Puri are reported as 'Bhaiyamiyan @ Jardar Khan & Anr. Vs. State of Madhya Pradesh' AIR 2011 SC 2218; 'Pardeep @ Sonu Vs. State (Govt. of NCT of Delhi)' 2011 (2) JCC 1031 (DB); 'Radhu Vs State of Madhya Pradesh' 2007 (4) JCC 2603 : (2007) 12 SCC 57; 'Shashi Chaudhary Vs. Ram Kumar' 2011 III AD (DELHI) 249; 'State Vs. Rahul' 2011 [2] JCC 701; 'Mahabir Prasad Vs. State' 76 (1998) DHC; 'Hari Chand Vs. State' 82 (1999) DLT, 356; 'Rajesh Patel Vs. State of Jharkhand' AIR 2013 SC 1497; 'Mohd. Imran Khan Vs. State' 175 (2010) DLT 627; 'Ram Babu Vs. State' Crl. A. 655/11 (DHC) decided on 23/04/2013; 'Deepak Gulati Vs. State of Haryana' (SCCrl.Appl.No. 2322/10) decided on 20/05/2013; 'Ganga Saran @ Chotu & Anr. Vs. State of Delhi' Crl. A. 464/11 (DHC) decided on 26/03/2013; 'State Vs. Lalita' CRL.L.P. 501/2013 (DHC) decided on 16/09/2013; 'Ali Sher @ Raju Vs. The State' Manu/DE/0520/2011; 'State Vs. Rahul' 2011(2) JCC701; 'Abass Ahmad Chaudhary Vs. State of Assam' 2010 CRLJ2060 (SC); 'Sadashiv Ramarao Hadbe Vs. State of Maharashtra and another' 2006(10)SCC92; 'Dinesh Jaiswal Vs. State of MP' AIR2010SC1540; 'Raghunath Vs. State of NCT' Manu/DE/1127/2004; 'Pradeep @ Sonu Vs. State (Delhi)' 2011 (2)JCC1031; 'Krishan Kumar Mallik Vs. State of Haryana' Manu/ 156 of 161 157 FIR No. 1408/07 PS - Sultan Puri SC/0718/2011; 'Sumit Gupta Vs. State (Delhi)' Manu/DE/3699/2009; 'Rakesh Kumar Vs. State of Haryana' 2005(2) RCR 817; 'Vinay Krishna Vs. State of Rajasthan' 2004 (1) RCR 565; 'Radhu Vs. State of MP' JT 2007(11) SC 91.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
35. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on or before 06/08/2007, accused Anwar, Sushma and Mercy Serroa @ 157 of 161 158 FIR No. 1408/07 PS - Sultan Puri Shanti agreed and conspired with one another to abduct PW1 - prosecutrix (name withheld), aged around 19 years from her house with intention to sell her to accused Mercy Serroa @ Shanti and that on 06/08/2007 at about 8:00 p.m. main market Budh Vihar in front of Hanuman Mandir, accused Anwar and Sushma in pursuance of the criminal conspiracy administered some intoxicant to PW1 - prosecutrix which was provided to her by accused Sushma by mixing the same in juice with intent to facilitate the offence of abduction and in pursuance of the said act she became unconscious and she was abducted by accused Anwar with the intention to sell her to force her to marry with someone and to put her into prostitution and took her to Shahjahan Pur where his mausa Abdul Wahid resides and thereafter, accused Anwar alongwith his mausa Abdul Wahid (not arrested) committed gang rape upon her (PW1 prosecutrix) against her will and without her consent and he alongwith his mausa Abdul Wahid (not arrested) wrongly confined the prosecutrix and thereafter, in pursuance of the criminal conspiracy accused Anwar alongwith his mausa Abdul Wahid and Rakesh (not arrested) in furtherance of their common intention sold prosecutrix for the purpose of prostitution to accused Mercy Serroa @ Shanti against her wishes and 158 of 161 159 FIR No. 1408/07 PS - Sultan Puri that from the date when PW1 prosecutrix was sold to accused Mercy Serroa @ Shanti she kept her (prosecutrix) wrongfully confined at her (accused Mercy Serroa @ Shanti) house at 6/216, PMG Colony, VB Nagar, Korla, Mumbai - 70 and during this period she (accused Mercy Serroa @ Shanti) used to give beatings to her (prosecutrix) and she (accused Mercy Serroa @ Shanti) used to send prosecutrix to customer for the purpose of prostitution.
I accordingly hold accused Anwar, Sushma, Mercy Serroa @ Shanti guilty for the offence punishable u/s 120B IPC. Accused Anwar is also hold guilty for the offences punishable u/s 376(2)(g) IPC, Section 342/34 IPC and Section 372/34 IPC. Accused Anwar and Sushma are also hold guilty for the offences punishable u/s 328/365 IPC r/w Section 120B IPC. Accused Mercy Serroa @ Shanti is also hold guilty for the offences punishable u/s 5 of the Immoral Traffic (Prevention) Act, 1956, u/s 343/323 IPC and u/s 328 IPC read with section 120B IPC and convict them thereunder.
36. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Anwar, Sushma, Mercy 159 of 161 160 FIR No. 1408/07 PS - Sultan Puri Serroa @ Shanti in the commission of the offence u/s 120B IPC and that of accused Anwar also in the commission of the offences u/s 376(2)(g) IPC, Section 342/34 IPC and Section 372/34 IPC, and that of accused Anwar and Sushma also in the commission of the offences u/s 328/365 IPC r/w Section 120B IPC and that of accused Mercy Serroa @ Shanti also in the commission of the offences u/s 5 of the Immoral Traffic (Prevention) Act, 1956, u/s 343/323 IPC and u/s 328 IPC r/w section 120B IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Anwar, Sushma, Mercy Serroa @ Shanti beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I therefore, hold accused Anwar, Sushma, Mercy Serroa @ Shanti guilty for the offence punishable u/s 120B IPC. Accused Anwar is also hold guilty for the offences punishable u/s 376(2)(g) IPC, Section 342/34 IPC and Section 372/34 IPC. Accused Anwar and Sushma are also hold guilty for the offences punishable u/s 328/365 IPC r/w Section 120B IPC. Accused Mercy Serroa @ Shanti is also hold guilty for the offences punishable u/s 5 of the Immoral Traffic (Prevention) Act, 1956, u/s 160 of 161 161 FIR No. 1408/07 PS - Sultan Puri 343/323 IPC and u/s 328 IPC read with Section 120B IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 22nd Day of April, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 161 of 161