Delhi District Court
State vs . Anil on 24 March, 2014
1
FIR No. 101/12
PS - Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 131/13
Unique ID No. : 02404R0231642012
State Vs. Anil
S/o Shri Krishan
R/o VPO Chand Pur Majra
Delhi110081.
FIR No. : 101/12
Police Station : Kanjhawala
Under Sections : 365/376/511/506 IPC
Date of committal to session Court : 04/10/2012
Date on which judgment reserved : 13/03/2014
Date on which judgment announced : 24/03/2014
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 10/05/2012, on receipt of DD No. 26A SI Naresh 1 of 38 2 FIR No. 101/12 PS - Kanjhawala Kumar reached at village Chand Pur, Delhi where he came to know that the injured has already been taken by PCR to S.G.M. Hospital, Mangol Puri. He reached at S.G.M. Hospital where he found the complainant/ prosecutrix (name withheld) D/o Gulab Singh R/o H. No. 101, VPO Chand Pur, Delhi - 110081 under treatment vide MLC No. 7652/12, who made the statement, which is to the effect that, she lives at the above address with her family and is working at the post of A.N.M. in the dispensary at Arvind Nagar. Today (on 10/05/2012) at about 3:40 p.m. when she alighted at the Kanjhawla Bus Stand, her uncle Anil met her there with his car DL2FGK0040 make Honda City, white color and asked her to sit in his car as he is only going to the house (Meri Gadi Mei Baith Jao Main Ghar Hi Ja Raha Hoon) she sat in the said car of his uncle and on the way her uncle pressed her breast and thighs and when she protested, he said he likes her very much (Main Tumhe Bahut Chahta Hoon) on which she said bad words (bura bhala) to him and also warned him that she will make complaint of him to her family members on which Anil said if she disclosed about this incident to anyone then he will kill her. On reaching at home, she disclosed all about the incident to her mother. The said Anil by pressing her breast and thighs and by 2 of 38 3 FIR No. 101/12 PS - Kanjhawala molesting her has outraged her modesty and has also threatened her to kill. Legal action be taken against him. Statement has been heard and is correct. On the basis of the statement, from the inspection of the MLC and from the circumstances, on finding that offences u/s 354/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Naresh Kumar. Statements of the witnesses were recorded. Accused Anil was arrested in the case but was released on bail being the offences bailable one. On 12/05/2012, prosecutrix alongwith her mother again came to the Police Station and told to disclose some more facts about the incident to the Police on which further investigation of the case was handed over to SI Rajesh Kumar. During the course of further investigation, SI Rajesh Kumar interrogated the prosecutrix and after her interrogation recorded the supplementary statement of the prosecutrix and the torn clothes produced by her were taken into Police possession. On the basis of the supplementary statement of the prosecutrix, sections 365/376/511 IPC were added in the case and section 354 IPC was deleted. Accused Anil was again arrested in the case and was sent to JC. The car used in the commission of the crime was taken into Police possession and was later 3 of 38 4 FIR No. 101/12 PS - Kanjhawala on released on superdari to its registered owner. Accused Anil on 21/05/2012 was granted bail by the Learned Sessions Court.
Upon completion of the necessary further investigation, challan for the offences u/s 365/376/511/506 IPC was prepared against accused Anil and was sent to the Court for trial.
2. Since the offence u/s 376/511 IPC is exclusively triable by Court of Session therefore, after compliance of the provisions of Section 207 Cr.P.C., the case was committed to the Court of Session.
3. Upon committal of the case against to the Court of Session, after hearing on charge prima facie a case u/s 365/376/511/506 IPC was made out against accused Anil. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 11 witnesses. PW1 Dr. Bina, CMO, SGM Hospital, Mangol Puri, PW2 Dr. Krishna, Sr. Ortho, SGM Hospital, Mangol Puri, PW3 -
4 of 38 5 FIR No. 101/12 PS - Kanjhawala Constable Krishan, PW4 - Prosecutrix, PW5 SI Ashwani Kumar, PW5 HC Anil Kumar, PW6 Smt. Bimla, PW8 Sunita, PW9 Sh. Sunil Kumar, Learned M.M., PW10 SI Naresh Kumar and PW11 SI Rajesh Kumar.
PW1 Dr. Bina, CMO, SGM Hospital, Mangol Puri, who deposed that on 10/05/2012 prosecutrix (name withheld) S/o Gulab Singh aged 19 years was brought to the hospital for medical examination with the alleged history of physical assault as told by the patient herself. On examination, patient was conscious oriented and her vitals were stable. On local examination, 1. abrasion over right forearm, 2. bruise over upper left back, 3. tenderness over both legs. Patient was referred to ortho opinion. She also opined nature of injury as simple. She prepared the MLC Ex. PW1/A bearing her signatures at point 'A'.
PW2 Dr. Krishna, Sr. Ortho, SGM Hospital, Mangol Puri, who deposed that on 10/05/2012 prosecutrix (name withheld) S/o Gulab Singh aged 19 years was brought to the hospital for medical examination with the alleged history of physical assault as told by the patient herself.
5 of 38 6 FIR No. 101/12 PS - Kanjhawala The patient was examined by CMO on duty and was referred to Ortho department whereupon she examined the patient and on examination, patient was having pain in right and left leg. XRay was advised. Bilateral leg AP and lateral view. After obtaining the XRay report No. 197071, she opined that nature of injury was simple. Her examination on MLC Ex. PW2/A (be read as MLC Ex. PW1/A) is at point 'X' to 'X' and bearing her signature at point 'B'.
PW3 Constable Krishan who deposed that on 10/05/2012 he was posted as Constable in PS - Kanjhwala. On that day he alongwith HC Tej Pal reached Sanjay Gandhi Hospital after receiving DD No. 26A. In the hospital SI Naresh met them. Prosecutrix was found in the hospital. SI Naresh recorded her statement, prepared rukka and handed over to HC Tej Pal for getting the FIR registered. Thereafter, he alongwith IO reached at village Chand Pur and from there accused Anil was apprehended. He was interrogated and arrested and thereafter he was released on bail.
PW4 - Prosecutrix who deposed that she does not 6 of 38 7 FIR No. 101/12 PS - Kanjhawala remember the date but it was around ten month ago. On that day, she was coming back from her duty and was standing at Bus stand Kanjhawala at around 3:00 p.m., one vehicle of her chacha was standing there and she sit down on that vehicle. Her uncle was putting the gear of the vehicle and his hand touched on her thigh once or twice. She screamed and her chacha put his hand on her mouth and left her home. She weepingly told it to her mother, Police came there at her house. She does not know how the Police came there and who called the Police. Police inquired from her and she told the same story which she has deposed today in the Court. She does not know what was noted down by the police and on which document her signature were obtained. She knows this much only. She was taken to the hospital by the police and she was medically examined. Her signatures is at point 'A' but she had not read the same before she signed it. The said document /statement is Mark PW4/X. She does not recollect as to whether the clothes which she was wearing taken into possession by police or not. As she recollect her statement was also recorded before the Magistrate. She has seen the statement u/s 164 Cr.P.C., it bears her signature at point 'A' but the contents thereof she cannot say that she had made such statement as she was too much 7 of 38 8 FIR No. 101/12 PS - Kanjhawala frightened at that time. The said statement u/s 164 Cr.P.C. is Mark PW4/X1. She has seen the statement in the form of an application addressed to the SHO PS Kanjhawla dated 12/05/2012. It bears her signature and it is also in her handwriting but it was written on the dictation of villagers who were gathered and has not written anything of her own. The same is Ex. PW4/A, which bears her signature at point 'A' and that of her mother at point 'B'. She deposed that she can identify her Chacha Anil, if shown to her and identified accused Anil. She did not support the prosecution and was also crossexamined by the Learned Addl. PP for the State.
PW5 SI Ashwani Kumar, who deposed that on 10/05/2012 he was posted as Duty Officer in PS - Kanjhawala and was on duty from 05:00 p.m. to 09:00 a.m. On that day at around 06:45 p.m. he received a rukka from HC Tej Pal which was sent by SI Naresh Kumar on the basis of which and on his instruction the present FIR No. 101/12 u/s 354/506 IPC was registered. After registration of FIR he handed over the rukka and copy of FIR to HC Tej Pal for handing over to SI Naresh for further investigation. The copy of FIR is Ex. PW5/A bearing his signature at 8 of 38 9 FIR No. 101/12 PS - Kanjhawala point 'A'. He made the endorsement on the rukka and the same is Ex. PW5/B bearing his signature at point 'A'.
PW6 HC Anil Kumar, who deposed that on 10/05/2012 he was posted as Duty Officer in PS Kanjhawala and was on duty from 9:00 a.m. to 05:00 p.m. On that day at around 03:53 p.m. he recorded DD No. 26A and thereafter information was given to HC Tej Pal for taking necessary action. The copy of DD No. 26 is Ex. PW6/A (OSR).
PW7 Smt. Bimla is the mother of the prosecutrix who deposed that prosecutrix (name withheld) is her daughter. On 10th may, prosecutrix (name withheld) came from duty in the vehicle of his chacha Anil Dabas. Prosecutrix told her that hand of his uncle Anil had touched on her feet. She (Prosecutrix) was weeping. She (PW7) was making inquiry from her daughter (Prosecutrix) about the incident. Her daughter (Prosecutrix) was perturbed (ghabrai hui thi) at that time. Later on she (Prosecutrix) told her that she had given a statement under some misconception. She did not support the prosecution and was also crossexamined by the Learned Addl. PP for the State.
9 of 38 10 FIR No. 101/12 PS - Kanjhawala PW8 - Sunita, who deposed that she is the registered owner of the Honda City Car No. DL2FGK0040. Her car was seized by the Police and she took it on superdari by the order dated 21/05/2012 of the Court. She has brought the said car. The Car is Ex. P1. Accused Anil is her brother.
PW9 Sh. Sunil Kumar, Learned M.M., who deposed that on 14/05/2012 he was posted as MM in Rohini Courts. On that day an application u/s 164 Cr.P.C. moved by SI Rajesh Kumar for recording statement of prosecutrix (name withheld) D/o Gulab Singh Dabas was put up before him. Prosecutrix (name withheld) was produced before him by the IO and identified by IO. IO was asked to leave the Chamber. He put certain preliminary questions to know about her state of mind, voluntariness and understanding of oath. Thereafter, he recorded the statement of prosecutrix (name withheld) which is Ex. PW9/A (earlier given as Mark PW4/X1) bearing signature of prosecutrix (name withheld) at point 'A' and his signature at point 'B'. The Proceedings u/s 164 Cr.P.C. is Ex. PW9/B, bearing his signature at point 'A'. After 10 of 38 11 FIR No. 101/12 PS - Kanjhawala recording the statement, he issued the certificate regarding the correctness of the statement which is Ex. PW9/C, bearing his signature at point 'A'. IO was allowed to take the copy of the statement on his application vide my order Ex. PW9/D, bearing his signature at point 'A'. After conducting the proceedings, Ahlmad was directed to send the proceedings in sealed cover to the concerned Court and same is Ex. PW9/E, bearing his signature at point 'A'.
PW10 SI Naresh Kumar, is the initial Investigating Officer (IO) of the case who deposed that on 10/05/2012 he was posted as Sub Inspector in PS - Kanjhawala. On that day he received DD No. 26A by the Order of SHO and HC Tej Pal was already attending the call. Thereafter, he along with Constable Krishan reached at village Chand Pur where they came to know that injured has been taken to SGM Hospital Mangol Puri. He alongwith Constable Krishan reached at SGM Hospital where prosecutrix (name withheld) was found under treatment. He collected the MLC of Prosecutrix and recorded statement of Prosecutrix Ex. PW10/A and attested her signature at point 'A', bearing his signature at point 'B'. He prepared Tehrir Ex. PW10/B, 11 of 38 12 FIR No. 101/12 PS - Kanjhawala bearing his signature at point 'A'. The rukka was handed over to HC Tej Pal for getting the FIR registered. Mother of Victim/Prosecutrix was also found present in the Hospital and he also recorded her statement u/s 161 Cr.P.C. Thereafter, he alongwith Constable Krishan reached at the house of accused Anil in village Chand Pur. He was found present at his house. They interrogated accused Anil. Accused Anil was arrested vide arrest memo Ex. PW10/C, bearing his signature at point 'A'. Accused was released on bail as the offences u/s 354/506 IPC were bailable. Thereafter, he came back to the Police Station and HC Tej Pal handed over to him the copy of FIR and original rukka. He recorded the statement of witnesses.
PW11 SI Rajesh Kumar is the subsequent Investigating Officer (IO) of the case, who deposed that on 12/05/2012 he was posted as Sub Inspector in PS Kanjhawala. On that day the case file of the present case was handed over to him. Complainant prosecutrix (name withheld) along with her mother Bimla had given a written complaint which is Ex. PW4/A. He also recorded the supplementary statement of complainant prosecutrix (name withheld) and her mother u/s 161 Cr.P.C. Complainant 12 of 38 13 FIR No. 101/12 PS - Kanjhawala produced her torn clothes. He put up the torn clothes in a pullinda and sealed the same with the seal of 'RK' and seized vide memo Ex. PW11/A, bearing his signature at point 'A'. They were released. Thereafter, he reached at village Chand Pur at the house of accused Anil. Accused Anil was found present at his house, he was interrogated and arrested as Section 376/511 were added in the present case in view of the statement of the complainant vide arrest memo Ex. PW11/B, bearing his signature at point 'A'. At the instance of accused Anil Kumar, a Honda City Car No. DL2FGK0040 was taken into possession vide seizure memo Ex. PW11/C, bearing his signature at point 'A'. Thereafter, they came back to Police Station and the car was deposited in the Malkhana. Accused Anil was medically examined through Constable Sandeep and after medical examination, Doctor handed over the sealed pullinda containing exhibits alongwith sample seal and the same were seized vide memo Ex. PW11/D, bearing his signature at point 'A'. Accused was sent to Police lockup and case property was deposited in the Malkhana. On the next day, accused was produced in the Court and was sent to JC. On 14/05/2012, he moved an application Ex. PW11/E, bearing his signature at point 'A', for recording statement of prosecutrix u/s 164 Cr.P.C. and 13 of 38 14 FIR No. 101/12 PS - Kanjhawala thereafter, her statement was recorded. He obtained the copy of the statement vide his application Ex. PW11/F, bearing his signature at point 'A'. He recorded the statements of witnesses and after completing the investigation the challan was prepared and filed in the Court. Accused Anil is present in the Court (correctly identified). He identified the clothes one black color pajami and one white colour shirt belonging to prosecutrix as Ex. P1 & Ex. P2 (earlier given mark P1 & P2). He can identify the Honda City Car bearing No. DL2FGK0040, if shown to him. (Learned Counsel has not disputed the identity of the car).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
5. Statement of accused Anil was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
6. Learned Counsel for the accused submitted that accused has been falsely implicated by the Police officials at the instance of the 14 of 38 15 FIR No. 101/12 PS - Kanjhawala villagers. Learned Counsel for the accused further submitted that PW4 - prosecutrix (name withheld) who is the complainant has not supported the case of the prosecution. Learned Counsel for the accused further submitted that PW4 prosecutrix has deposed in her examinationin chief and crossexamination that the accused did not misbehave with her. In her crossexamination the witness has stated that hand of the accused Anil had touched her at the time of applying Gears. In her cross examination the witness has also stated that some Police officials were also present with her when she was taken before the Magistrate for the recording u/s 164 Cr.P.C. and during the period of incident, she was not keeping good health and was under tension/perplexed. Learned Counsel for the accused further submitted that during her crossexamination by Addl. PP for the State, PW4 prosecutrix has stated that she is not aware if Police had arrested accused Anil and she further stated that she does not remember if the incident was occurred on 10/05/2012 and she further stated that she does not know who had phoned to the Police. Learned Counsel for the accused further submitted that PW7 - Smt. Bimla who is the mother of the PW4 prosecutrix has also not supported the case of prosecution. During her crossexamination PW7 - Smt. Bimla has 15 of 38 16 FIR No. 101/12 PS - Kanjhawala stated that her daughter/prosecutrix had told her that hand of the accused Anil had touched her feet while changing the gear of the vehicle.
Learned Counsel for accused further submitted that there is also no evidence against the accused that he intentionally touched the feet of the PW4 - complainant and by doing so he outraged the modesty of the complainant. Learned Counsel for the accused further submitted that PW11 - SI Rajesh Kumar who is the IO of the case during his cross examination has stated that he had not obtained the signature of the complainant i.e. PW4 and her mother i.e. PW7 on the seizure memo of the torn clothes. Vol. Due to inadvertence he could not obtain the signature of complainant (name withheld) and her mother on the seizure memo of torn clothes. In his crossexamination he has further stated that he had accompanied the prosecutrix at the time of getting her statement recording u/s 164 Cr.P.C. He was given suggestions, that he has falsely implicated the accused in the present case or that all the proceedings were not done in the manner he deposed but were done at the Police Station which he denied. Learned Counsel for the accused further submitted that the prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of accused on all the 16 of 38 17 FIR No. 101/12 PS - Kanjhawala charges levelled against him.
7. 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.
8. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Gajraj Singh, Learned Counsel for the accused and have also carefully perused the entire record.
9. The charge for the offences punishable u/s 365/376/511/506 IPC against the accused Anil is that on 10/05/2012 at about 3:40 p.m. at Kanjhawla Chowk on the road leading to village Chand Pur from Kanjhawla he abducted Prosecutrix (name withheld) D/o Gulab Singh age around 19 years in Car No DL2FGK0040 on the pretext that he is only going to his house, with intent to wrongfully and secretly confining 17 of 38 18 FIR No. 101/12 PS - Kanjhawala her and thereafter on the way he attempted to commit rape upon her and also criminally intimidated her by threatening her to kill, if she disclosed the incident to any one .
10. 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
11. PW4 prosecutrix in her statement recorded in the Court on 03/06/2013 while giving her particulars has stated her age as 20 years.
PW4 - prosecutrix in her statement recorded u/s 164 Cr.P.C. on 14/05/2012 Ex. PW9/B has stated her age about 19½ years.
Moreover, the said factum of age of PW4 - prosecutrix has also not been disputed by accused Anil. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
18 of 38 19 FIR No. 101/12 PS - Kanjhawala Since PW4 - prosecutrix in her statement recorded on 14/05/2012 under Section 164 Cr.P.C. Ex. PW9/B, has stated her age as 19½ years and she has stated her age as 20 years on 03/06/2013, at the time of recording of her evidence/statement in the Court and as the date of alleged incident is 10/05/2012, on simple arithmetical calculation, the age of the prosecutrix comes to around 19½ years as on the date of the alleged incident on 10/05/2012.
In view of above and in the circumstances, it stands proved on record that PW4 prosecutrix was aged around 19½ years as on the date of alleged incident on 10/05/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
12. PW1 Dr. Bina, CMO, SGM Hospital, Mangol Puri, has deposed that on 10/05/2012 prosecutrix (name withheld) S/o Gulab Singh, aged 19 years was brought to the hospital for medical examination with the alleged history of physical assault as told by the patient herself. On examination, patient was conscious oriented and her vitals were stable. On local examination, 1. abrasion over right forearm, 2. bruise over upper left back, 3. tenderness over both legs. Patient was referred 19 of 38 20 FIR No. 101/12 PS - Kanjhawala to ortho opinion. She also opined nature of injury as simple. She prepared the MLC Ex. PW1/A bearing her signatures at point 'A'.
During her crossexamination, PW1 Dr. Bina has deposed that, "It is correct that injury mentioned in the MLC could be possible by fall".
PW2 Dr. Krishna, Sr. Ortho, SGM Hospital, Mangol Puri, has deposed that on 10/05/2012 prosecutrix (name withheld) S/o Gulab Singh aged 19 years was brought to the hospital for medical examination with the alleged history of physical assault as told by the patient herself. The patient was examined by CMO on duty and was referred to Ortho department whereupon she examined the patient and on examination, patient was having pain in right and left leg. XRay was advised. Bilateral leg AP and lateral view. After obtaining the XRay report No. 197071, she opined that nature of injury was simple. Her examination on MLC Ex. PW2/A (be read as MLC Ex. PW1/A) is at point 'X' to 'X' and bearing her signature at point 'B'.
During her crossexamination, PW2 Dr. Krishna has deposed that, "It is correct that injury mentioned in the MLC could be possible by fall".
20 of 38 21 FIR No. 101/12 PS - Kanjhawala On careful perusal and analysis of the testimonies of PW1 Bina and PW2 Dr. Krishna, the same are found to be clear, cogent and convincing. There is nothing in their crossexamination so as to impeach their creditworthiness.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW1/A and the Radiological examination from point 'X' to 'X' on the MLC Ex. PW1/A of PW4 prosecutrix stands proved on the record.
13. It is to be noticed that, in case of "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. 21 of 38 22 FIR No. 101/12 PS - Kanjhawala State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916] In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to the subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 Supreme Today 63).
22 of 38 23 FIR No. 101/12 PS - Kanjhawala Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and crossexamine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
14. Now let the testimonies of PW4 prosecutrix and PW7 23 of 38 24 FIR No. 101/12 PS - Kanjhawala Smt. Bimla/mother of the prosecutrix be perused and analysed.
PW4 prosecutrix, in her examinationinchief recorded on 03/6/2013 has deposed which is reproduced and reads as under : "I do not remember the date but it was around ten month ago. On that day I was coming back from my duty and I was standing at Bus Stand Kanjhawla at around 3:00 p.m., one vehicle of my Chacha (uncle) Anil was standing there and I sit down in that vehicle. My Chacha Anil was inside the vehicle. My uncle was putting the gear of the vehicle and his hand touched on my thigh once or twice. I took it as if something wrong is taking place with me (Mujhe laga ki mere sath kuch galat ho raha hai), I started screaming on which my Chacha placed his hand on my mouth due to which I got too much frightened. Thereafter, I was left by my Chacha at my home. While weeping I told all about it to my mummy. Police came there at my house. I do not know how the Police came there and who called the Police. Police enquired from me and I told the same story which I have deposed today in the Court. I do not know what was noted down by the Police and on which document my signature were obtained. I know this much only. I was taken to the hospital by the Police and I was medically examined. My signature is at point 'A' but I had not read the same before I signed it. The said document/statement is Mark PW4/X. I do not recollect as to whether the clothes which I was wearing were taken into possession by police or not. As I recollect my statement was also recorded before the Magistrate."
At this stage, a sealed envelop sealed with the seal of 'SK' is opened from which the proceedings u/s 164 Cr.P.C. is taken out.
24 of 38 25 FIR No. 101/12 PS - Kanjhawala "I have seen the statement u/s 164 Cr.P.C., it bears my signature at point 'A' but the contents thereof I cannot say that I had made such statement as I was too much frightened at that time. The said statement u/s 164 Cr.P.C. is Mark PW4/X1."
"I have seen the statement in the form of an application addressed to the SHO PS Kanjhawla dated 12/05/2012. It bears my signature and it is also in my handwriting but it was written on the dictation of villagers who were gathered and has not written anything of my own. The same is Ex. PW4/A, which bears my signature at point 'A' and that of my mother at point 'B'."
Witness deposed as "I can identify my Chacha Anil, if shown to me."
At this stage the wooden partition is removed. The witness pointed towards the accused Anil and identified him correctly.
At this stage the wooden partition is restored to its original position.
At this stage, Learned Addl. PP requested for cross examination of the witness as she is resiling from her previous statements.
Heard and perused. Permission granted.
During her crossexamination as was conducted by the Learned Addl. PP for State, as to what PW4 prosecutrix has 25 of 38 26 FIR No. 101/12 PS - Kanjhawala deposed is reproduced and reads as under : "I am working as a nurse at Delhi Government Dispensary (DGD), Arvind Nagar for the last more than one year. I am XII passed and having diploma in nursing. I am not aware if the Police had arrested accused Anil. I do not remember if this incident was occurred on 10/05/2012. I do not know who had phoned to the Police. Only my mother had accompanied me to the Court premises when my statement was recorded u/s 164 Cr.P.C. It is correct as I recollect that as the questions were put to me by the Learned MM, the same were replied by me during the recording of the statement and the same were being recorded by the Court. Vol. but I was too much frightened at that time. It is wrong to suggest that I was not too much frightened when my statement was being recorded u/s 164 Cr.P.C. and I am deposing falsely in this regard."
"I do not recollect as to whether I had gone to the police station on 12/05/2012 after two days, of the date of the incident. As I recollect perhaps many people of the village had gathered and had gone to the Police Station on 12/05/2012. I do not recollect as to whether myself and my family members had also accompanied to the villagers to the Police Station on 12/05/2012. I do not recollect as to whether we (myself and my family members) alongwith the villagers had gone to the Police Station on 12/05/2012 for lodging a protest of releasing of accused Anil on 10/05/2012 itself by the police on bail."
Q. Please see the application Ex. PW4/A. I put it to you that on 12/05/2012 when you alongwith your family members and the villagers had gone to the Police Station for lodging a protest of releasing of 26 of 38 27 FIR No. 101/12 PS - Kanjhawala accused Anil on 10/05/2012 itself by the police on bail, there you had given the said application narrating the true facts? Ans. I do not recollect. I was too much frightened at that time.
"I do not recollect as to whether the make of the vehicle of accused Anil was Honda City. The house of accused Anil is across one gali from my house. I do not know as to how many vehicle accused Anil is having. I cannot say whether I can identify or not the vehicle in which I was dropped by my Chacha accused Anil at my house. (The identify (identity) of the vehicle not disputed by the Learned Defence Counsel). It is wrong to suggest that I am deposing falsely regarding the description/make of the vehicle. It is wrong to suggest that I had handed over my clothes i.e. one black colour Pajami and one white colour Bade Butidar Shirt to the Police."
"At this stage, MHC(M) has produced one sealed pulinda sealed with the seal of 'RK' and the same is opened and it found containing one black colour Pajami and one white colour Bade Butidar Shirt. Same is shown to the witness who stated that the same does not belong to her. For the purpose of reference the same are marked as Mark P1 & Mark P2 respectively. It is wrong to suggest that Mark P1 and Mark P2 belongs to me which I was wearing at the time of incident and today I am not identifying them intentionally."
"No litigation of my family regarding any land or otherwise is pending with accused Anil. There is no previous enmity between my family and that of accused Anil."
"It is wrong to suggest that on 10/05/2012 accused Anil attempted to commit rape upon me. It is wrong to suggest that today I am deposing falsely in this regard as matter has been compromised between my family and accused Anil who is my Chacha in relation by the intervention of the respectables of the village. It is wrong to suggest
27 of 38 28 FIR No. 101/12 PS - Kanjhawala that I have been won over by the accused Anil by the compromise entered into with him and for this reason I am deposing falsely."
During her crossexamination as was conducted by the Learned Counsel for the accused, as to what PW4 - prosecutrix has deposed is reproduced and reads as under : "It is correct that the hands of accused Anil had touched me at the time of applying gears. It is correct that accused Anil had told me not to make noise and in that process he put his hand on my mouth but did not press. It is correct that some police officials were also present with me when I was taken before the Magistrate for recording statement u/s 164 Cr.P.C. It is correct that during the period of incident I was not keeping good health and I was under tension/perplexed. It is correct that police official had not allowed me to talk to my mother before my statement was recorded u/s 164 Cr.P.C."
From the aforesaid narration of PW4 Prosecutrix it is clearly indicated that she of her own had sit down in the vehicle of his uncle/accused Anil. His uncle was inside the vehicle. His uncle was putting the gear of the vehicle and his hand touched on her thigh once or twice. She took it as if something wrong is taking place with her (Mujhe laga ke mere sath kuch galat ho raha hai), she started screaming on 28 of 38 29 FIR No. 101/12 PS - Kanjhawala which her Chacha placed his hand on her mouth due to which she got too much frightened. Thereafter, she was left by her Chacha at her home. She did not support the prosecution on the statement made to the police Mark PW4/X, statement in the form of an application dated 12/05/2012 Ex. PW4/A as well as on the statement u/s 164 Cr.P.C. Mark PW4/X1 (also Ex. PW9/A) and during the crossexamination by the Learned Addl. PP for the State negated the suggestions that on 10/05/2012 accused Anil attempted to commit rape upon her or that she is deposing falsely in this regard as the matter had been compromised between her family and accused Anil who is her chacha in relation by the intervention of the respectables of the village or that she had been won over by the accused Anil by the compromise entered into with him and for this reason she is deposing falsely.
It is also been indicated from the testimony of PW4 Prosecutrix that accused has not disputed his presence on the date, time and place of incident nor has disputed touching of his hands with the prosecutrix at the time of applying of gear and of his asking the prosecutrix not to make noise and also of putting his hands on her 29 of 38 30 FIR No. 101/12 PS - Kanjhawala mouth.
It is pertinent to reproduce relevant part of cross examination of PW4 prosecutrix as was conducted by Learned Counsel for the accused which reads as under : "It is correct that hands of accused Anil had touched me at the time of applying gears. It is correct that accused Anil had told me not to make noise and in that process he had put his hands on my mouth but did not press."
As discussed hereinabove, PW4 Prosecutrix was found to be aged around 19½ years as on the date of incident on 10/05/2012, from the testimony of PW4 Prosecutrix, nothing is being indicated that she was abducted by the accused in Car No. DL2FGK0040 on the pretext that he is only going to his house with intent to wrongfully and secretly confining her or that thereafter on the way accused attempted to commit rape upon her or that accused also criminally intimidated her by threatening her to kill, if she disclosed the incident to anyone or that she was physically assaulted by the accused.
Moreover, from the careful perusal and analysis of the 30 of 38 31 FIR No. 101/12 PS - Kanjhawala testimony of PW4 Prosecutrix nothing is also being indicated that the act of accused Anil, of his hand touching the thigh once or twice of PW4
- prosecutrix at the time of applying gears and of use of criminal force against her by placing his hand on her mouth when she screamed was committed with intend to outrage her modesty, so as to be covered within the mischief of section 354 IPC.
The provisions of section 354 IPC makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are :
(a)That the assault must be on a woman.
(b)That the accused must have used criminal force on her.
(c)That the criminal force must have been used on the woman intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a 31 of 38 32 FIR No. 101/12 PS - Kanjhawala request for sexual intercourse, is such as would be an outrage of the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. (Ref. 'Ram Kirpal Vs. State of MP', AIR 2007 SC (Supp) 49).
Now let the testimony of PW7 Smt. Bimla, mother of the prosecutrix be perused and analysed.
PW7 Smt. Bimla is the mother of the prosecutrix who in her examinationinchief has deposed which is reproduced and reads as under : "Prosecutrix (name withheld) is my daughter and she is working as ANM in dispensary at Arvind Nagar. On 10th of May, about 2 years ago at around 02:00/02:15 p.m. my daughter prosecutrix (name withheld) came from duty in the vehicle of his chacha Anil Dabas. prosecutrix (name withheld) told me that hand of his uncle Anil had touched on her feet. My daughter prosecutrix (name withheld) was weeping. I was making inquiry from daughter about the incident. My daughter was perturbed (ghabrai hui thi) at that time. Later on my daughter told me that she had given that statement under some misconception. I had not gone anywhere after hearing the incident from my daughter. I do not know who had reported the matter to the Police and as to when the matter was reported. Accused Anil is present in the Court today (correctly identified)."
32 of 38 33 FIR No. 101/12 PS - Kanjhawala At this stage Learned Addl. PP prayed to crossexamine the witness as she is resiling from her previous statement.
Heard and perused. Permission granted.
During her crossexamination as was conducted by the Learned Addl. PP for State, as to what PW7 Smt. Bimla has deposed is reproduced and reads as under : "Accused Anil is residing in the next gali to our house. I do not know about the work of accused Anil. Accused Anil is my Devar. I had not visited to the house of accused Anil after the incident was disclosed to me by my daughter to complain about his conduct. Vol. Mother of accused Anil and accused Anil of their own came to my house and they regretted about the conduct of accused Anil. Accused Anil was saying that his hand by chance touched with prosecutrix (name withheld) while changing the gear of the vehicle. They had come to my house after about 15/20 minutes of the reaching of prosecutrix (name withheld) at our house, however, I do not remember the exact time. It is wrong to suggest that I had gone to the house of accused Anil and complained to his family members about his conduct and there a quarrel has taken place between me and his family members. It is incorrect that my daughter had lodged the FIR against the accused. Vol. I am not aware if any case has been registered or not. It is wrong to suggest that I am deliberately deposing falsely that I am not aware if any case has been registered or not. I am not aware if the Police had arrested the accused Anil on the same date i.e. 10/05/2012 and he was released on bail. It is wrong to suggest that on 12/05/2012 I along with my daughter prosecutrix (name 33 of 38 34 FIR No. 101/12 PS - Kanjhawala withheld), my family members and other villagers and gone to the police station and protested before the police as to how and why the accused Anil Dabas has been set free on the same day i.e. on 10/05/2012. I had only signed at point 'B' on complaint Ex. PW4/A dated 12/05/2012 and I was not knowing as to what is the contents thereof. It is wrong to suggest that I had signed at point 'B' on Ex. PW4/A after knowing the contents thereof and my daughter had apprised me about the contents thereof. I do not recollect at which place I signed at point 'B' on the Ex. PW4/A. I had signed at point 'B' on the Ex. PW4/A on the asking of my daughter prosecutrix (name withheld). It is wrong to suggest that my daughter prosecutrix (name withheld) had told me that accused Anil had attempted to commit rape upon her and had not told that his hand had touched her feet and that is why we had got registered a case against accused Anil. It is wrong to suggest that we have compromised the matter with accused Anil and that is why I am deposing falsely to save the accused Anil."
During her crossexamination as was conducted by the Learned Counsel for accused, as to what PW7 Smt. Bimla has deposed is reproduced and reads as under : "It is correct that my daughter prosecutrix (name withheld) had told me that the hand of accused Anil had touched her feet while changing the gear of the vehicle.
At the cost of repetition, PW7 Smt. Bimla, in her examinationinchief has deposed which is reproduced and reads as 34 of 38 35 FIR No. 101/12 PS - Kanjhawala under : "Prosecutrix (name withheld) told me that hand of his uncle Anil had touched on her feet. My daughter prosecutrix (name withheld) was weeping. I was making inquiry from daughter prosecutrix (name withheld) about the incident. My daughter prosecutrix (name withheld) was perturbed (ghabrai hui thi) at that time. Later on my daughter prosecutrix (name withheld) told me that she had given that statement under some misconception".
From the aforesaid narration of PW7 Smt. Bimla, it is clearly indicated that she has deposed of having told to her by her daughter/prosecutrix that hand of his uncle Anil had touched on her feet and she (PW7 Bimla) had made enquiry from her daughter/prosecutrix about the incident and her daughter/ prosecutrix had told her (PW7 Bimla) that she (prosecutrix) had given the statement to the Police under some misconception. She did not support the prosecution on the statement in the form of an application dated 12/05/2012 Ex. PW4/A and during her crossexamination by the Learned Addl. PP for the State, PW7 - Smt. Bimla negated the suggestions that her daughter prosecutrix had told her that accused Anil had attempted to commit rape upon her and had not told that his hand touched her feet and that is why they had got registered a case against accused Anil or that they have compromised 35 of 38 36 FIR No. 101/12 PS - Kanjhawala the matter with accused Anil and that is why she is deposing falsely to save the accused Anil.
PW7 Smt. Bimla during her crossexamination by the Learned Counsel for the accused has admitted it to be correct that her daughter prosecutrix (name withheld) had told her that her uncle touched her feet while changing gear of the vehicle.
On a conjoint reading of the testimonies of PW4 prosecutrix and PW7 Smt. Bimla it is clearly indicated that PW4 prosecutrix was present with accused Anil in the vehicle and hands of accused Anil had touched her at the time of applying gears and accused had also put his hand on her mouth but did not press while telling her not to make noise but due to the hostility of PW4 Prosecutrix and that of PW7 Smt. Bimla, her mother, and inspite of their incisive and lengthy crossexamination by the Learned Addl. PP for the State, the case of the prosecution could not be rescued.
15. On careful perusal and analysis of the entire evidence on record, I find that prosecution has failed to prove its case beyond reasonable doubt against accused Anil. The hostility of PW4 36 of 38 37 FIR No. 101/12 PS - Kanjhawala Prosecutrix as well as that of PW7 Smt. Bimla, her mother has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 10/05/2012 at about 3:40 pm at Kanjhawla Chowk on the road leading to village Chand Pur from Kanjhawla accused Anil abducted PW4 Prosecutrix aged around 19½ years in Car No. DL2FGK0040 on the pretext that he is only going to his house, with intent to wrongfully and secretly confining her or that thereafter on the way he attempted to commit rape upon her or that he also criminally intimidated her by threatening her to kill, if she disclosed the incident to anyone.
I accordingly, acquit accused Anil for the offences punishable u/s 365/376/511/506 IPC.
16. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Anil in the commission of offences punishable u/s 365/376/511/506 IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Anil beyond shadows of all reasonable doubts and there is a 37 of 38 38 FIR No. 101/12 PS - Kanjhawala room for hypothesis, consistent with that of innocence of accused Anil. I, therefore, acquit accused Anil for the offences punishable u/s 365/376/511/506 IPC after giving him the benefit of doubt. Accused Anil is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Anil shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of March, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 38 of 38