Delhi District Court
State vs Virender @ Billu Etc.//Fir No.97/05 on 14 January, 2011
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 132/2008
FIR No. 97/2005
PS : BAWANA
U/s. 395/376G/412 IPC
STATE
VERSUS
1. VIRENDER @ BILLU
S/O SH. ATTAR SINGH
R/O. JHUGGI NO. 37,
NEAR JAIPUR GOLDEN HOSPITAL
SECTOR-03, ROHINI,
DELHI
2. SUNIL KUMAR
S/O SH. DHARAM PAL
R/O. JHUGGI NO. 237,
NEAR JAIPUR GOLDEN HOSPITAL
SECTOR-03, ROHINI,
DELHI
Date of Institution : 11.07.2005
Date of receipt of case in this court : 01.12.2008
Arguments heard On : 06.01.2011
Order Announced On : 14.01.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI S. C. SHARMA & SHRI R. K. JHA, COUNSEL FOR
BOTH THE ACCUSED.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05
PSBAWANA//U/S. 395/376G/412 IPC.
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JUDGMENT
1. The name of the prosecutrix / victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 CLJ 2913.
2. The factual matrix of the case is that on 19.03.2005 at around 8.25 am, DD No. 5A was written at PS Bawana regarding the facts that at Begum Pur, Barwala Road near school at Hanuman Mandir at about 2.00 am in the morning, a lady was raped and some articles of mandir were also removed. The DD entry was received by Inspector Babu Lal, SHO PS Bawana who along with HC Dharampal and Operator Ct. Shanker went to the spot of crime in the government vehicle. Inspector Babu Lal met SI Ajit Singh and Ct. Ayub Khan at Sankat Mochan Sidh Hanuman Mandir, Begumpur, Barwala Road. There he came to know that wife of pandit namely K was removed by PCR to MB Hospital. At STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:3: the spot of crime he found that at the left side corner one broken lock was lying and at the back in a room of the articles were scattered. One Ram Prasad Adhikari was also present there. Inspector Babu Lal recorded statement of Ram Prasad Adhikari and prepared rukka and sent the same for registration of FIR u/s 395/376G IPC.
3. Ram Prasad Adhikari in his statement stated to the police that he has been residing at Sankat Mochan Hanuman Mandir, Begumpur since 2003 along with his children and working as priest in the mandir. In the year 2004, he brought his wife prosecutrix K along with brother in law Keshav Raj since Diwali. About two months back, his wife gave birth to a daughter. On the day of incident at about 10.00 pm, he was sleeping in the temple and his wife along with brother in law Keshav Raj aged about 04 years were sleeping in a room, which was locked by him from outside. At about 12.15 am in the mid night, 5-6 persons entered into the mandir and pulled up his 'choti' while he was sleeping and then awakened him. He raised alarm on seeing them. All STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:4: the persons were carrying pistol and guns. They all put pistol and guns at his abdomen and chest and said that they will fire a shot and asked him to tell about Rs. 50,000/- galla. He replied that there is no galla of Rs. 50,000/- and then they broke the lock of the mandir gate with the help of iron saria and dragged him outside and thereafter tied his hands and legs and put him in the open space. Thereafter, they took out the keys of the room from under the pillow and went to the room where his wife was sleeping and opened the door. Four or five persons entered into the room and then he heard the noise of his wife and children as they started crying. Those four persons remained in the room for considerable time and after sometime they came out and untied him. Thereafter they locked him along with his wife and children in the room.
4. Ram Prasad Adhikari further stated that he asked his wife and then she disclosed that those four persons on the point of pistol and gun removed her clothes and one by one committed rape with her. They also removed her gold ear rings, gold noise pin and silver paajebs forcibly. Apart STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:5: from these, they also removed three sarees and one dhoti- kurta. She also disclosed the age of those persons to be about 30-40 years and three persons among them were wearing turban (pagdi). He has further stated that he along with his wife and children remained locked in the room till morning and then in the morning, he started shouting and then one bicycle rider stopped and opened the door of the room and he came out of the room. Thereafter he disclosed the whole incident to the nephew of the owner of the mandir, who called the police and then his statement was recorded by police.
5. Investigation officer Inspector Babu Lal prepared site plan of the spot of crime and crime team was called along with photographer. One broken lock, one button of shirt and woolen shawl of prosecutrix K were taken into possession. Prosecutrix K was thereafter medically examined. Dr. Goyal from FSL was also called to inspect the spot of crime. Statement of prosecutrix K and other witnesses was recorded. A plastic sheet which was on the takhat and one STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:6: quilt cover was also seized. The exhibits were deposited in Malkhana and sent to FSL for expert opinion. Investigation officer collected the blood samples of suspect Sanjeev Kala, Rajbir, Sukhbir, Monu, prosecutrix K and complainant Ram Prasad Adhikari for DNA analysis at FSL Rohini. On 12.04.05, the investigation was transferred as per order of the DCP-NW to Inspector Gurmeet Singh of Operation Cell. Inspector Babu Lal handed over all the documents and also informed him about the complete investigation carried out till then by him to Inspector Gurmeet Singh.
6. On 14.04.05, DD No. 4 was received by Operation Cell, North West District regarding FIR No. 135/05 u/s 25 Arms Act PS Alipur, in which, accused Sunil Kumar was arrested and another FIR No. 136/05 u/s 25 Arms Act PS Alipur regarding arrest of accused Virender @ Billu. Both these accused persons made disclosure about the present incident. Accordingly Inspector Gurmeet Singh along with special staff went to the PS Alipur and collected disclosure statement, seizure memo and other documents from HC STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:7: Azad Singh and HC Rajender Singh, who were the investigation officers of these two FIRs. Accused Sunil Kumar and accused Virender @ Billu were arrested in this case and investigation was carried out by Inspector Gurmeet Singh. Investigation Officer Inspector Gurmeet Singh recorded their disclosure statements and they were sent to Judicial Custody. Both the accused persons refused to join TIP proceedings and thereafter police custody of both the accused persons were granted by the concerned MM. At the instance of accused Sunil Kumar, one saree and the cloth, which was used at the time of incident for wrapping his head were recovered and seized. Both accused persons pointed out spot of crime. Prosecutrix K handed over the bedsheet on which she was sleeping on the day of incident and same was seized. Thereafter blood samples of both the accused persons was collected for DNA analysis. At the instance of accused Virender @ Billu during investigation of FIR No. 136/05 u/s 25 Arms Act, robbed gold ear rings were recovered and were taken into possession. Thereafter TIP of recovered saree and gold ear rings were conducted. All the exhibits were sent to STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:8: FSL for expert opinion. As per disclosure statement of both the accused persons, one Rajpal @ Kala, Kamal Dass @ Pappu and Krishpal were searched at the given addresses. All these three persons absconded and proceedings for declaring them proclaimed offenders were carried out and they were declared Proclaimed Offenders. DNA and FSL report were obtained by the Investigation Officer and placed on the file. After completion of investigation, charge sheet was filed against both the accused persons u/s 395/376G/412 IPC.
7. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
8. Vide order dated 22.11.2005 Ld. ASJ, Delhi framed charge u/s 395/376G/412 IPC against the accused to which he pleaded not guilty and claimed trial.
9. Prosecution in support of its case examined PW1 HC Rajeev, PW2 ASI Asha Devi, PW3 Ram Prasad Adhikari, the complainant, PW4 Dr. Jai Kumar, who prepared the MLC of prosecutrix, PW5 Dr. Sunita Sethi, who identified the writing and signatures of the doctor who STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:9: examined the prosecutrix, PW6 Vineeta Wadhwa, who prepared MLCs of both the accused persons, PW7 Prosecutrix K, PW8 W. Ct. Neeta, PW9 Mandip, owner of the temple, PW10 Ct. Dalbir Singh, photographer, PW11 Satbir Singh (wrongly mentioned as PW10), PW12 SI Satya Prakash (wrongly mentioned as PW11), PW13 Ct. Vijay Kumar (wrongly mentioned as PW12), PW14 A. K. Srivastava, Sr. Scientific Officer, FSL (wrongly mentioned as PW13), PW15 HC Harbeer Singh (wrongly mentioned as PW14), PW16 Ct. Ayub Khan (wrongly mentioned as PW15), PW17 SI Ajit Singh (wrongly mentioned as PW16), PW18 Yogender (wrongly mentioned as PW17), PW19 Sh. Gurdeep Singh, Ld. ASJ (wrongly mentioned as PW18), PW20 Ct. Japan Singh (wrongly mentioned as PW19), PW21 Ct. Shambhu (wrongly mentioned as PW20), PW22 HC Mahender Singh (wrongly mentioned as PW21), PW23 Vivek Tripathi (wrongly mentioned as PW22), PW24 HC Azad Singh (wrongly mentioned as PW23), PW25 HC Rajender Singh (wrongly mentioned as PW24), PW26 Ct. Dharamvir Singh (wrongly STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:10: mentioned as PW25), PW27 HC Babu Ram (wrongly mentioned as PW26), PW28 Ms. Archna Sinha, Ld. ADJ (wrongly mentioned as PW27), PW29 HC Suraj Bhan (wrongly mentioned as PW28), PW30 Insp. Babu Lal (wrongly mentioned as PW29) and PW31 ACP Gurmeet Singh (wrongly mentioned as PW30).
10. As per statement of Ld. APP for State Sh. P.K.Verma, prosecution evidence was closed.
11. Statements of both the accused were recorded u/s 313 CrPC and accused wished not to examine any defence witness.
12. I have heard Sh. P. K. Verma, Ld. APP for the State and Sh. S. C. Sharma, Ld. Counsel for the accused.
13. PW1 HC Rajeev is the duty officer, who recorded FIR No. 135/05 u/s 25/54/59 Arms Act as well as FIR No. 136/05 on 13.04.05 and he has proved both these FIRs. PW2 STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:11: ASI Asha Devi is also the duty officer who recorded FIR of this case and also proved the same. She has also proved DD No. 9A and DD No. 5A.
14. PW3 Ram Prasad Adhikari is the complainant of this case. He has testified that in the year 2005, he was residing with his wife and daughter in a temple at village Barwala where he used to perform puja. On the intervening night of 18-19.03.05, he slept in the temple near the idol and his wife and daughter slept in the room adjoining the temple in the compound of temple. At about 12.45 am, some one pulled his choti and made him awake and he saw five persons on the gate of temple having pistols, guns and some other sharp edged weapons. Those persons told him to hand over the galla of Rs. 50000/-, to which, he replied that he was not having any galla of Rs. 50000/-. Thereupon his hands and legs were tied and he was dropped behind the temple and thereafter, they took the keys of the locked room from under his pillow and went to the room where his wife and daughter were sleeping. PW3 has further deposed that after opening STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:12: the room they entered the same and he then heard the cries of his wife, his daughter and his brother in law and those persons came out of that room after 1½ to 2 hours. During this time, one person remained with him keeping his mouth shut and they took three sarees, one gold ear ring, one gold nose pin and one silver pajeb belonging to his wife. Thereafter those persons took him in the room where his wife and daughter were sleeping and locked him there after extending threats to him. He then talked to his wife who told him while weeping that she was being raped by assailants turn by turn at gun point. PW3 Ram Prasad Adhikari has further testified that in the morning on hearing his alarm one cyclist opened the room where they were locked and then he accordingly went to Yogender, nephew of owner of temple and narrated the entire incident to him, who in turn called the police and his statement Ex. PW3/A was recorded.
15. In his cross examination by counsel for accused, he has stated that the room where his wife and his daughter were sleeping was about 30 feet away from where he was STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:13: sleeping. He has stated that Yogender had called the police by making a call from STD booth. He has also stated that he had slept in the temple on that day as per chance otherwise he used to sleep with his wife only. He has further stated that main road was about at a distance of about 60-70 ft from the room where his wife was sleeping. He has stated in cross examination that on 20.03.05, remained in the police station along with his wife and came back to temple/his house on next day and remained there for some time but again returned back to police station and stayed there for 7-8 days as the assailants had threatened them with dire consequences. The assailants had also threatened them that they would be killed if they return to temple. He has denied the suggestion of the counsel for accused that he has deposed falsely or that both the accused persons have been falsely implicated in this case at the instance of police or that the incident of this case never happened.
16. PW4 Dr. Jai Kumar has proved the MLC of prosecutrix K Ex. PW4/A prepared by him on 19.03.05. PW5 Dr. Sunita Sethi has also proved and identified the gynae STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:14: notes written by Dr. Rashmi, on MLC Ex. PW4/A of prosecutrix K and the said notes are Ex. PW5/A. PW6 Dr. Vineeta Wadhwa has proved the MLCs of both accused persons as Ex. PW6/A pertaining to accused Virender @ Billu and Ex. PW6/B pertaining to accused Sunil Kumar.
17. PW7 Prosecutrix K is the victim of this case. As PW7 she has testified that in the year 2004, she was residing in Barwala Hanuman Temple which was on the outskirts of the village where her husband was a priest and she used to reside in a room which was at the back side of the temple. She has deposed that in the month of Chaitra at about 1.00 am, five persons entered the temple and they tied her husband and came into her room and one of those five persons took her daughter. Thereafter the lights of the room were switched off but when she started crying her mouth was gagged and she was subjected to sexual intercourse by four persons. She has stated that Rs. 50,000/- were offered by her to those persons but they did not spare her and they also took her gold ear rings, one gold nose pin and one pajeb.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:15: PW7 has deposed that she cannot identify the assailants as lights were switched off when she was raped. This witness was declared hostile by the Ld. APP for the state and during her cross examination, she has stated that her husband had slept in the temple on the day of incident after locking her room from outside. PW7 Prosecutrix K also identified the two accused persons as the assailants who committed rape upon her.
18. During cross examination, PW7 has stated that she was raped by four persons and after the incident she stayed at the house of nephew of landlord namely Raju and stayed there for about three-four days and from there they shifted to rented accommodation at Barwala Village. She has further stated that in the rented accommodation she stayed with her husband for about two months and from that house she paid 4 to 5 visits to the police station whenever she was called by police officials. She has stated that in the temple where they were residing, pooja used to be performed in the evening as well as in the morning i.e. at either 5 am or 6 am STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:16: in the morning and at 7.00 pm in the evening. She has then stated that only agricultural fields were adjoining the temple besides the school and no houses were constructed in those fields and that residential houses were situated at a distance of about 10/15 minutes walk from the temple. She has denied the suggestion of counsel for accused that there is a ashram situated at a distance of about 50 steps from the temple or that she has deposed falsely at the instance of her husband and police officials or that she was not subjected to rape on the day of incident or that there was no incident of dacoity on the said day or that the entire case has been cooked by the her at the instance of police or that accused persons have been implicated falsely.
19. PW8 W/Ct. Neetu has proved the copy of PCR form Ex. PW8/A filled by her on 19.03.05 while being on duty at PCR Head Quarter. PW9 Mandip, who is the owner of Sankat Mochan Hanuman Mandir, Barwala Begum Pur Road, has deposed that on 20.03.05 at about 7.00 / 8.00 am, son of STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:17: his sister in law told him about the decoity which took place in the mandir and after that he left for his work and after his return from work he went to the Balmiki hospital and met the Pujari and his wife admitted in the hospital. He has further deposed that on the same day police came to the temple in the evening and seized some objects vide memo Ex. PW9/A. This witness was cross examined by Ld. APP on the point of date of incident wherein he admitted it as correct that incident of this case took place on the intervening night of 18/19.03.05.
20. In his cross examination by counsel for the accused, PW9 Mandip has stated that his statement was recorded by the police on the spot but he could not tell the exact time of recording of his statement. He has further stated in cross examination that on the day of incident, he was on rest from his duty but he was called in the office on that day. He has denied the suggestion of counsel for accused that he has deposed falsely and no recovery was STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:18: effected at his instance or that all the proceedings were conducted in the police station or that his signatures were obtained on blank papers in police station.
21. PW10 Ct. Dalbir Singh is the photographer who took photos of the scene of crime at the instance of Investigation Officer as he was posted as photographer in the crime team on 19.03.05 and he has proved photographs Ex. PX1 to Ex. PX7 taken by him from different angles. PW11 Satbir Singh (wrongly mentioned as PW10), is the brother in law of owner of temple and he has deposed that on 19.03.05 at about 7.00 am, pujari of Sankat Mochan Sidh Hanuman Mandir, Barwala, Begum Pur Road, Delhi came to his house and informed him that about 4-5 persons entered the temple forcibly entered the temple and committed rape upon his wife in the intervening night of 18/19.03.05 and robbed her of his ear rings and some wife. Thereupon he called his brother in law Mandeep who asked him to lodge a report with the police and accordingly nephew of PW10 namely Yoginder made a call to police and police came there STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:19: and wife of Pandit Ram Prasad Adhikari was removed to Rishi Balmiki Hospital. He has further deposed that in the meantime SHO also reached the spot and plastic sheet and cover of quilt were kept in pullanda and same were sealed and taken into possession.
22. In his cross examination by counsel for accused, PW10 has deposed that PW3 Pandit Ram Prasad Adhikari had come to his house alone on the day of incident which is at a distance of about one kilometer from temple. He further stated in cross examination that Mandeep had put his lock on the room and handed over the key to him on 19.03.05. He has denied the suggestion of counsel for accused that police was having suspicion on him and his family members regarding the incident. He has denied the suggestion of counsel for accused that he has deposed falsely at the instance of the police or that to save himself from implication in this case he has deposed falsely.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
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23. PW12 SI Satya Prakash (wrongly mentioned as PW11), has deposed that on 19.03.05 he was working as Incharge Crime Team, North West District and on that day on receipt of information from PS Bawana he along with his team reached the spot near Sankat Mochan Hanuman Mandir, Begum Pur, Barwala Road at about 10.00 am and found SHO PS Bawana present there. He prepared the crime team report which is Ex. PW11/A.
24. PW13 Ct. Vijay Kumar (wrongly mentioned as PW12) has deposed that on 19.03.05 he delivered special report pertaining to FIR no. 97/05 PS Bawana to the office of DCP North West, Joint CP North West and to the residence of Ilaqa MM. PW14 Sh. A. K. Srivasatava (wrongly mentioned as PW13), Sr. Scientific Officer, FSL, GNCT of Delhi has proved Ex. PW13/A (DNA analysis report), PW13/B (biological report), PW13/C (DNA analysis report), PW13/D, PW13/E, PW13/F, PW13/G, PW13/H (enclosures of DNA analysis report) Ex. PW13/I and Ex. PW13/J (identification forms), Ex. PW13/K STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:21: (DNA analysis report), Ex. PW 13/L1 to PW13/L9 (enclosures of DNA analysis report) and Ex. PW13/M to PW13/R (identification form of accused persons).
25. PW15 HC Harbeer Singh (wrongly mentioned as PW14), has proved the photocopy of original PCR call book Ex. PW14/A and has also deposed that after informing concerned police officials on 19.03.05 about the incident he along with other concerned police officials took victim to Maharshi Balmiki Hospital and got her medically examined. In his cross examination by counsel for accused he has stated that when he reached the spot 5-7 public persons were present there. He has further stated that he met PW3 Ram Prasad Adhikari near the temple and he made enquiries from him regarding the incident. He also stated that enquiries were also made from the victim and she narrated all the facts to him. He has denied the suggestion of counsel for accused that he has deposed falsely.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
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26. PW16 Ct. Ayub Khan (wrongly mentioned as PW15) has testified that on 19.03.05 on receipt of DD no. 5A, he along with SI Ajit Singh reached the spot and noticed that the lock of temple was broken and house hold articles were lying in the room and complainant Ram Prasad Adhikari met them and informed them about the incident. He has further deposed that in the meanwhile SHO PS Bawana reached the spot and recorded his statement and thereafter he took the rukka to the PS and got the FIR of this case recorded and also handed over copy of FIR and original rukka to IO. In his cross examination by counsel for accused he has stated that only few rickshaw pullers were present at the spot and no police official was present when he reached there along with SI Ajit Singh. He has further stated in cross examination that he came back to the spot with rukka and copy of FIR by bus. He has denied the suggestion of counsel for accused that he had not taken rukka to the police station or that he had not gone to the spot or that he has deposed falsely.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
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27. PW17 SI Ajit Singh's (wrongly mentioned as PW16) examination in chief was recorded on 03.11.08 but on that day his examination in chief was deferred as he was not feeling well. Vide order dt. 11.03.10 PW16 SI Ajit Singh was dropped as witness after verification of his death.
28. PW18 Yogender (wrongly mentioned as PW17) has deposed that in the year 2005 when he was residing in the house of his maternal uncle at VPO Barwala, one pandit namely Ram Prasad along with his wife was living in the mandir which belonged to his Mausa. That pandit came to his house in the early morning hours immediately after the incident and told him about the robbery in mandir and rape being committed by robbers with his wife. Thereafter he telephoned his mausa and police about the incident and he along with the pandit reached the mandir and saw the lock of the door broken and articles lying in the room inside the mandir ransacked. Ld. APP for the state with the permission of the court put a leading question regarding date and month STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:24: of the incident to which the witness admitted it as correct that Ram Prasad had come to his house in the morning of 19.03.05 and informed about the incident of previous night.
29. During cross examination by counsel for the accused, he has stated that the broken lock of the room was lying outside the gate of mandir and not at the outer gate of the mandir. He has denied the suggestion of the counsel for accused that he did not visit the spot or he has deposed falsely.
30. PW19 Sh. Gurdeep Singh (wrongly mentioned as PW18), has proved the TIP proceedings conducted by him Ex. PW18/A, PW18/B, PW18/C and PW18/D. PW 20 Ct. Japan Singh (wrongly mentioned as PW19), has stated that on 24.03.05, he deposited one sealed pullanda in FSL Rohini. Receipt of the deposit of pullanda in FSL was handed over to MHC(M) on the same day by PW19. PW21 Ct. Shambhu (wrongly mentioned as PW20) has testified that on 22.03.05 STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:25: he took four pullandas and one sample seal and deposited the same in FSL. Receipt of the deposit of pullanda in FSL was handed over to MHC(M) on the same day by him.
31. PW22 HC Mahender Singh (wrongly mentioned as PW21) has deposed that on 19.03.05, he was posted as MHC(M) at PS Bawana and on the said date SHO PS Bawana deposited five sealed pullandas, one sample seal and one lock with him. He has proved Ex. PW 21/A. Ex. PW21/B, Ex. PW21/C, Ex. PW21/D, Ex. PW21/D1, Ex. PW21/D2, Ex. PW21/E, Ex. PW21/E1, Ex. PW21/E2, Ex. PW21/F and Ex. PW21/G as MHC(M), PS Bawana.
32. PW23 Vivek Tripathi (wrongly mentioned as PW22), Lab Technician, NASA Pathology has testified that on 20.04.05 on the request of Insp. Gurmeet Singh, he collected blood samples of two persons under the supervision of doctor for DNA Test. During his cross examination by counsel for the accused, he has stated that he is in service for 10 years and during those 10 years he had take blood sample of persons STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:26: who are in police custody only twice. He has denied the suggestion of counsel for accused that he was not called by the police to take blood samples of accused persons or that he has deposed falsely at the instance of Investigation Officer.
33. PW24 HC Azad Singh (wrongly mentioned as PW23) has deposed that on 13.04.05, on receipt of DD No. 59B he reached Palla Mor, GTK Road and met Ct. Ved Prakash who had handed handed over the custody of accused Sunil Kumar to him with one buttondar knife which was recovered from accused Sunil. PW24 got FIR No. 135/05 u/s 25 Arms Act registered at PS Alipur. Thereafter accused Sunil Kumar made a disclosure statement Ex. PW23/A. On the basis of this disclosure, information regarding the arrest of this accuse was given to PS Bawana and thereupon Insp. Gurmeet Singh and HC Babu Lal came to the PS Ali Pur and arrested accused Sunil Kumar. Carbon copy of his disclosure statement was also handed over to Insp. Gurmeet Singh.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
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34. In his cross examination by counsel for accused, has stated that he was posted in PS Alipur from 2003 to 2005 and on 13.04.05, a case was registered against accused Virender in FIR No. 136/05 U/s 25 Arms Act. He has also stated that DD no. 59B mentioned the fact that two boys have been apprehended with knives at Palla Mor, GTK Road and request was made to sent the police officials for necessary action. He has denied the suggestion of counsel for the accused that accused Sunil Kumar has been falsely implicated in this case as well as in the Arms Act Case.
35. PW25 HC Rajender Singh (wrongly mentioned as PW24) has testified that on 13.04.05, while being posted at PS Alipur on receipt of DD No. 59B, he along with HC Azad Singh reached Palla Mor, near Bus Stand, Pulia Old G. T. Road where Ct. Suraj Bhan produced accused Virender @ Billu along with one buttondar knife which was recovered from accused. There Ct. Ved Prakash produced accused Sunil with buttondar knife which was recovered from accused Sunil and they were handed over to HC Azad Singh by him. He has STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:28: further deposed that thereafter he got registered case vide FIR No. 136/05 against the accused persons. Accused Virender was arrested by him and he made a disclosure statement, mark PW26/A regarding his involvement in case FIR No. 97/05 PS Bawana. On the pointing out of accused Virender one ear ring was recovered from his jhuggi No. 37, near Jaipur Golden Hospital and the same was sealed vide Ex. PW26/A. On giving intimation at PS Bawana regarding the present case, Inspector Gurmeet Singh visited PS Alipur and copy of disclosure statement of accused Virender @ Billu, pointing out memo and seizure memo of ear ring was handed over to Inspector Gurmeet Singh. Thereafter Inspector Gurmeet Singh recorded his statement in addition to statement of HC Azad Singh and Ct. Suraj Bhan and on the instructions of Inspector Gurmeet Singh he took the accused persons to BJRM hospital where their MLCs were prepared. Thereafter, accused were produced before the concerned magistrate and they were sent to JC and he came back to PS Alipur.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:29:
36. In his cross examination, HC Rajender Singh has stated that he remained at the spot for about 3 to 3½ hours. He denied the suggestion of counsel for accused that on 14.04.05 he did not make any specific departure entry at the PS. He has further stated that during the recovery of ear rings from the jhuggi of accused Virender @ Billu he asked 3- 4 public persons to join the recovery proceedings but none agreed. He has also denied the suggestion of counsel for accused that nothing was recovered from the jhuggi of accused Virender @ Billu or that gold ear ring was planted on accused Virender or that all proceedings were conducted while sitting in the police station. He has further denied the suggestion of counsel for accused that accused persons were falsely implicated in this case or that he has deposed falsely.
37. PW26 Ct. Dharamvir Singh (wrongly mentioned as PW25), has deposed that on 19.03.05 while being posted as Constable at the Dog Squad, Pitampura he joined the STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:30: investigation of this case along with crime team and went along with Dog Madhubala at the spot but the dog could track the assailants till main road only.
38. PW27 HC Babu Ram (wrongly mentioned as PW26) has deposed that on 14.04.05 on receipt of DD no. 9, he along with Insp. Gurmeet Singh, ASI Karan Singh and a driver visited PS Alipur where they met HC Azad Singh and HC Rajender Singh along with accused Virender @ Billu and Sunil Kumar who were arrested in case FIR No. 135/05 and 136/05 PS Alipur. After necessary inquiries from both the accused persons they were arrested in the present case vide memo Ex. PW26/A and PW26/C. Personal search memos of both the accused persons Virender @ Billu and Sunil Kumar, Ex. PW26/B and PW26/D were prepared. He has further deposed that on 20.04.05 two days police remand of both the accused persons was granted by the court. Disclosure statement of accused Virender @ Billu and Sunil Kumar, Ex. PW26/E and PW26/F were recorded by IO. He has further deposed that on 21.04.05 he along with Insp. Gurmeet Singh, STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:31: ASI Karan Singh and ASI Rajbir Singh, went to jhuggi of accused Sunil Kumar at jhuggi no. 26, near Jaipur Golden Hospital and from there accused Sunil Kumar took out a brownish colour saree and a cloth which was used by him at the time of alleged incident and both were seized by IO. Thereafter blood samples of both the accused persons were taken at FSL Rohini. He has further deposed that thereafter they went to the house of complainant where complainant identified both the accused persons. IO prepared pointing out memo.
39. In his cross examination by counsel for both the accused, He has stated that IO Insp. Gurmeet Singh personally interrogated accused Virender and accused Sunil for about 15 minutes each. He has denied the suggestion of counsel for accused that both the accused persons did not make any disclosure statement or that their signatures were taken on blank papers or that he did not visit the spot of crime and hence could not tell the number of staircases at the Hanuman Temple or that he cannot tell the name of STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:32: god's statues situated in the mandir except the idol of Hanumanji or that he cannot tell the size of Lord Hanuman statue or that he cannot tell the articles in the mandir because he did not visit the Hanuman Mandir i.e. the spot of crime. He has further denied the suggestion of counsel for both the accused persons that he did not visit the room of behind the mandir or that he did not join the investigation and nothing was recovered in his presence or that all documents were signed by him at the instructions of IO at PS or that he has deposed falsely.
40. PW28 Ms. Archna Sinha, Addl. District Judge (wrongly mentioned as PW27), has proved TIP of accused Sunil and Virender Kumar Ex. PW27/A, Ex. PW27/B, Ex. PW 27/C and Ex. PW27/D.
41. PW29 HC Suraj Bhan (wrongly mentioned as PW28) has deposed that on 13.04.05 he along with Ct. Ved Prakash while being on patrolling duty reached at Vikas Service Station, Alipur Road at about 8.40 pm and STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:33: apprehended accused Virender @ Billu and Sunil Kumar and one buttondar knife each was recovered from them and information in this regard was given to PS Alipur and HC Rajender and HC Azad reached the spot. Custody of both the accused persons was handed over to HC Rajender and HC Azad. After investigation they got FIR No. 136/05 U/s 25 Arms Act registered against the accused persons. On the next day both the accused persons made disclosure statement and disclosed their involvement in case FIR no. 97/05. Accused Virender led them to his jhuggi and got recovered one bali and produced before the IO. The same was seized. Thereafter they reached the PS and from there HC Rajender informed to PS Bawana about the disclosure statement of accused Virender and recovery of this case. He has further deposed that Insp. Gurmeet along with other staff of PS Bawana reached PS Alipur and arrested them.
42. During cross examination by counsel for both the accused, he has stated that both the accused persons were standing at a lonely place and there was slight darkness and STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:34: the boys started running after seeing them. He has denied the suggestion of counsel for both the accused that nothing was recovered from the possession of the accused or that he was falsely implicated in this case or that signatures of accused were obtained while sitting in PS on blank papers or that nothing was recovered or that recovery was planted upon the accused or that he has deposed falsely at the instance of the IO.
43. PW 30 Insp. Babu Lal (wrongly mentioned as PW29) has testified that on 19.03.05 he was posted as SHO PS Bawana. On that day DD No. 5 A was recorded at PS and marked to SI Ajit Singh. When PW29 reached the spot of crime ASI Ajit Singh and Ct. Ayub were already present there along with complainant and there he came to know that wife of complainant i.e. the prosecutrix has already been removed to MB hospital by PCR. After making preliminary investigation, he recorded statement of complainant Ex. PW3/A and prepared a rukka and handed over the same to Ct. Ayub for registration of FIR. In the meantime, crime team STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:35: reached the spot and the scene of crime was photographed. Broken lock and shawl of maroon colour were lifted from the spot and seized by PW29. Thereafter he reached MB hospital and collected the MLC of prosecutrix and made inquiries from prosecutrix. On 22.03.05 sealed parcels were sent to FSL for examination. Site plan was prepared at the instance of complainant. During investigation statement of witnesses were recorded and DNA test of four suspects were conducted.
44. In his cross examination by counsel for both the accused persons, he has stated that he did not feel to call any independent person who could translate Nepali Language to Hindi as prosecutrix had told the facts to him in Nepali language and the same was translated in Hindi by her husbands. He has denied the suggestion of the counsel for the accused that all the proceedings were conducted by him at the instance and instructions of complainant or that he did not conduct any investigation or that he did not seize any articles from the spot or that all the proceedings were STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:36: conducted by him while sitting in PS or that he has deposed falsely or that no broken lock or household articles were recovered from the spot of crime. He has also denied the suggestion of counsel for accused that he recorded statement of complainant on his own at the PS in order to falsely implicated the accused persons or that no crime team conducted any proceedings in his presence or that he did not seize any articles or that prosecutrix did not make any statement to him or that no samples were sent to FSL or that blood samples for DNA test were taken to manipulate the case and falsely implicate the accused persons or that he has deposed falsely.
45. PW31 ACP Gurmeet Singh (wrongly mentioned as PW30), has deposed that on 12.04.05 while being posed as Insp. Operation Cell, North West District. On 14.04.05 DD No. 4 was recorded at Operation Cell Office in respect of arrest of accused persons at PS Alipur and on this information he along with ASI Karan Singh, HC Babu Ram and STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:37: other staff reached PS Alipur and after collecting disclosure statements Ex. PW 23/A and PW26/A arrested both the accused persons. On 19.04.05, when TIP of both the accused persons was fixed, they refused to join the TIP proceedings. On 20.04.05 two days PC remand of both the accused was obtained by him and both the accused persons made disclosure statement in this case Ex. PW26/E and Ex. PW26/F. On 21.04.05 he along with ASI Karan Singh, ASI Rajbir Singh, HC Babu Ram and other staff members along with accused Sunil reached the house of accused Sunil and got recovered one saree and one cloth which was used by him at the time of robbery and they were seized vide memo. Both the accused persons were taken to FSL for DNS Test. Thereafter both the accused persons were taken to the house of complainant where they were identified by him. Prosecutrix identified accused Virender @ Billu and her statement was recorded. Both the accused persons pointed the place of crime. Both the accused person disclosed the names of their associates who were present at the time of robbery but they could not be apprehended when their houses were raided. He STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:38: has further deposed both the accused persons were medically examined. On 09.05.05 TIP of articles was conducted at Tis Hazari Courts. After completion of investigation he filed challan in the court.
46. In the cross examination by counsel for both the accused, he has stated that he never visited the place of occurrence prior to 12.04.05 for the purpose of investigation. He has stated that he used to converse with prosecutrix through her husband as she did not know Hindi language. He has denied the suggestion of counsel for both the accused that all his investigation was confined to statement of complainant or that prosecutrix did not know even single word of Hindi or that no information was received on 14.04.05 about the arrest of accused persons or that HC Rajender and other staff never met and handed over any disclosure statement of accused Virender @ Billu and Sunil Kumar to him or that he has manipulated the proceedings in order to falsely implicate the accused persons in collusion STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:39: with HC Rajender or that accused persons were already shown to the witnesses prior to conducting their TIP or that TIP proceedings were initiated only to create evidence against the accused persons or that he planted one saree and one cloth upon accused Sunil and the same was shown as recovered from at his instance from his house. He has also denied the suggestion of counsel for accused that no raid was conducted at the jhuggis of associates of accused persons or that both the accused persons were forcibly taken to FSL for blood sample for DNA Test or that illegally their blood samples were taken in order to create false evidence or that accused Virender was never identified by prosecutrix or that accused persons never pointed out towards the place of occurrence or that no case property was deposited with the MHC (M) or that accused persons have been falsely implicated in this case or that he has deposed falsely.
47. Ld. Addl. PP Sh. P.K. Verma made statement for closing prosecution evidence on 01.07.2010. Thereafter, an application on behalf of both the accused persons filed for STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:40: recalling PW-29 SI Babu Lal and PW-30 Gurmeet Singh for cross-examination. After examination of these witnesses by ld. counsels for accused persons, prosecution evidence was closed on 21.08.2010.
48. Statement of both the accused persons recorded under section 313 Cr.P.C. Accused Virender wished to lead evidence in defence but accused Sunil preferred not to lead any defence evidence in this case. However, on next date of hearing accused Virender also wished not to lead any defence evidence but tendered a judgment in FIR No.136/05, PS Alipur under section 25/54/59 Arms Act as defence evidence. Same was exhibited as D-1.
49. I have heard ld. Addl. PP Sh. P.K. Verma and ld. Counsel for both the accused persons Sh. S.C. Sharma and Sh. R.K. Jha and perused the record.
50. Firstly I am taking the charge under section 376G IPC against accused Virender @ Billu and against accused Sunil Kumar. The star witness in order to prove this charge is STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:41: PW-7 prosecutrix K. Her testimony has been discussed hereinabove in detail. She testified that incident took place in the year 2004 in the month of Chaitra at about 1.00 a.m. in the night when five persons entered into her room behind Barwala temple where her husband was a priest. They switched off and removed her saari and subjected her to intercourse one by one by four persons. All five persons were having pistols. They also removed her gold ear rings and gold nose pin and silver payal. On identity, she turned out to be hostile and deposed that she cannot identify the accused persons as lights were switched off by the assailants. Ld. Addl. PP cross-examined her. Cross- examination of PW-7 prosecutrix K was conducted after the lunch. This made a great difference because in the pre-lunch session both the accused persons were produced at the time of examination of PW-7 prosecutrix K when she turned out to be hostile on the identity. During cross-examination ld. Addl. PP specifically asked a leading question then she identified both the accused persons. This identification is not voluntary but at the instance of ld. Addl. PP. PW-7 prosecutrix K STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:42: categorically testified that she cannot identify assailants but her cross-examination after lunch had shaken the veracity on the point of identification of both the accused. In these special circumstances evidence on the point of identification of both the accused persons is very weak and cannot be relied upon. In the cross-examination she also admitted that the photographs of the accused persons were also shown to her by the police later on when both the accused persons were arrested.
51. Another piece of evidence on the point of identity of accused is TIP proceedings of both the accused persons conducted during investigation after their arrest. PW28 Ms. Archana Sinha, Ld. ADJ (wrongly mentioned as PW27) has proved the TIP proceedings wherein accused Sunil Kumar refused to join the TIP Ex. PW27/B and accused Virender @ Billu also refused to join the TIP Ex. PW27/C. The TIP refusal is again a very week piece of evidence and the circumstances appreciated hereinabove where prosecutrix identified the accused is doubtful. Therefore, TIP proceedings STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:43: cannot become the sole basis for identification of both the accused persons being the assailants for committing the offence u/s 376G IPC. Another witness of prosecution is PW3 Ram Prasad Adhikari, complainant who also identified both the accused persons being the assailants on the day of commission of offence but he is not the witness to the offence u/s 376G IPC. The best witness to this aspect is PW7 prosecutrix K but she has failed to identify both the assailants being the same assailants.
52. The prosecution also relied upon scientific evidence to establish the identity of the accused persons being the assailants and committed gang rape with the prosecutrix K. PW-14 Sh. A.K. Srivastav (wrongly mentioned as PW13) proved DNA analysis report of accused Virender Singh and Sunil. PW-23 Sh. Vivek Tripathi (wrongly mentioned as PW22), Lab Technician, NASA Pathology, Rohini, Delhi deposed that on 20.04.2005 blood samples of accused Virender and Sunil were collected from FSL, Rohini by him. PW-14 Sh. A.K. Srivastav (wrongly mentioned as STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:44: PW13) in his detailed biological report given specific observations that human semen was detected on Ex.2A i.e. Ladies Shirt, 2B Salwar and 4a micro slides and submitted DNA analysis report. The blood sample of accused Virender is Ex.1 and blood sample of Sunil Kumar is Ex.2 and both subjected to DNA analysis. During analysis DNA finger printing profiles were prepared and compared. The detailed observations mentioned that DNA profile of Ex.1 i.e. of Virender Singh matches with the DNA profile of Ex.2B i.e. the salwar of victim prosecutrix K as well as mixed DNA profile of Ex.2B. It also matches with Ex.4B micro slide of victim. However, DNA profile Ex.2 i.e. blood sample of accused Sunil Kumar did not match with Ex.2B and Ex.4B. It also not matched with the mixed DNA profile of Ex.2B i.e. salwar and Ex.4B i.e. micro slides. Hence, DNA finger printing profile analysis established that accused Virender Singh may be one of the assailants who committed gang rape. However, a very astonishing fact emerges out from these circumstances that as per the testimony of PW-7 prosecutrix K at the time of incident she was wearing saari, this fact is corroborated by STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:45: PW3 complainant Ram Prasad Adhikari as well. But for DNA analysis one shirt and salwar were sent. Prosecution is silent on this aspect as to how shirt and salwar came into the picture and sent for DNA analysis. The prosecutrix and her husband at no point of time testified that she was wearing shirt and salwar at the time of incident. Ist IO Insp. Babu Lal in his statement as PW30 is also silent about the fact as to whether prosecutrix K was wearing saree or was wearing salwar and shirt at the time of commission of rape. The MLC of prosecutrix Ex.PW-4/A also not mentioned that at her medical examination her shirt and salwar were seized. Further more these two exhibits i.e. shirt and salwar of prosecutrix were not shown to her during her examination. Even the doctor who seized these two exhibits i.e. shirt and salwar also not proved that these clothes were worn by prosecutrix when she was produced in the hospital just after the incidence. These two exhibits were never proved by the prosecution. Both were never produced and proved by any of the witnesses of prosecution. The prosecution committed gross error and there is no explanation to this effect that STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:46: when prosecutrix was wearing a saari at the time of commission of gang rape, how shirt and salwar came into picture having semens which matches with one of accused Virender Singh. Therefore, scientific evidence is also contrary to the prosecution case and does not inspire confidence. A mehroon colour shawl of PW3 prosecutrix K was also seized by the IO which was having semen like stains but after FSL examination no semen stains were detected the said shawl.
53. On the basis of above discussion and observation, prosecution has failed to establish that accused Virender @ Billu and Sunil Kumar committed gang rape along with two or three assailants namely Rajpal @ Kalu, Kamal Dass @ Pappu and Krish Pal upon prosecutrix K on the night intervening 18/19.03.05.
54. Now let me deal with second charge which is u/s 395 IPC and 412 IPC against both the accused persons. The star witness of the prosecution is complainant PW3 Ram STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:47: Prasad Adhikari, the pujari of the temple. His testimony is discussed her in above in detail including his cross examination. He has explained that the incident took place on intervening night of 18/19.03.05 at around 12.45 am. He has stated that the assailants were five persons who were carrying guns/pistols and sharp edged weapons having long blades. They asked him to handover the galla containing Rs. 50,000/-. He further explained that they broke open the lock of the room and extended threats and also abused him. Thereafter he was tied with a cloth by them and dropped him behind the temple. They also took away the keys and searched for valuables in the temple and then went to the room where his wife was sleeping. He also proved that they took away one saree, one pair of gold ear rings, one silver pajeeb and one nose pin and locked his family. Then in the morning one cyclist passerby on hearing the alarm came and room was opened. He informed Yogender, nephew of the owner of the temple regarding the incident who informed the owner and then police came and recorded his statement Ex. PW3/A. He categorically identified accused Virender @ Billu STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:48: and Sunil Kumar being the two assailants out of those five assailants who robbed his family of the above stated articles.
55. PW9 Mandeep, owner of the Sankat Mochan Hanuman Mandir, where PW3 Ram Prasad Adhikari was employed as pujari corroborates the fact that after getting the information from son of his sister in law about dacoity incident on 20.03.05 he went to mandir and then to hospital. He proved the seizure of plastic sheet, cloth and one cover of quilt by the IO vide memo Ex. PW9/A. He also identified these articles Ex. P3 i.e plastic sheet and Ex. P4 cover of quilt. Later on Ld. APP for the state corrected the incident date that was 19.03.05. PW12 Satbir (wrongly mentioned as PW11) further corroborated the fact that on 19.03.05 at about 07.00 am PW3 Ram Prasad Adhikari came to him and informed him about the incident of dacoity and gang rape. Then he asked him to lodge a report and he further corroborated that Yogender called the PCR. He also proved the seizure of plastic sheet, cover of quilt by IO Ex. PW9/A. He also identified both these articles.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:49:
56. The testimony of PW30 Insp. Babu Lal (wrongly mentioned as PW29) who was the initial investigation officer, is discussed hereinabove. He corroborates the facts regarding the initial investigation carried out by him. He was entrusted with DD no. 5A and visited the spot of crime on 19.03.05. He also proved the seizure of broken lock Ex. PW29/B at the spot and recording of statement of complainant Ram Prasad Adhikari Ex. PW3/A on which he prepared rukka Ex. PW29/A. He further proved the crime team conducted the investigation and took the photographs as well and made a report Ex. PW11/A. He has also proved the fact that he lifted a button at the residential room which was seized vide memo Ex. PW29/C. A shawl of mehroon colour having semen like stains on it was also seized vide memo Ex. PW29/D. He also proved that he prepared site plan Ex. PW29/F. He further corroborated that FSL Director also visited the scene of crime on 23.03.05. He then corroborated the fact that he seized the plastic sheet and cover of quilt vide memo Ex. PW9/A. The testimony of this witness further STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:50: shows that he made efforts and four suspects namely Rajbir, Sukhbir, Sanjeev and Sonu were subjected to DNA test but the report was negative, therefore, no further investigation was carried out against those four suspects. He identified the lock Ex. PW29/I, plastic sheet Ex. P3, cover of the quilt Ex. P4 and mehroon shawl Ex. PW29/2.
57. In cross examination he explained that statement of prosecutrix K was recorded with the help of her husband PW3 Ram Prasad Adhikari because she did not know Hindi. He explained he has reached the hospital at about 2.00 pm and initially reached at the spot around 09.30 am. He further explained the situation of the temple and the dimensions of the Lord Hanuman statue. He prepared investigation proceedings that he had conducted while sitting in the police station. He denied that DNA samples were manipulated while investigation in this case.
58. Now comes the initial investigation regarding arrest of the accused persons and recovery of articles allegedly robbed by accused persons. Accused Sunil Kumar was arrested by HC Azad Singh of PS Alipur in FIR no. 135/05 STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:51: u/s 25 Arms Act on 13.04.05. PW23 HC Azad Singh proved that accused Sunil Kumar made disclosure statement on 14.04.05 regarding his involvement in the present case. The law is well settled that the disclosure statement is not an admissible evidence. However as per Section 27 of Indian Evidence Act any new fact discovered in pursuance of disclosure statement is admissible. He also proved that he handed over the accused to Insp. Gurmeet Singh who came to police station Alipur along with carbon copy of disclosure statement and subsequently accused was arrested in this case. In the cross examination discussed hereinabove in detail, he explained all the circumstances and remained cogent and coherent.
59. PW25 HC Rajender Singh (wrongly mentioned as PW24) is the police official who initially arrested accused Virender @ Billu in FIR no. 136/05 U/s 25 Arms Act and proved the disclosure statement made by accused Virender @ Billu Ex. PW 26/A which is not admissible. However if a new fact emerges in pursuance of disclosure statement, the same is admissible in evidence as per Section 27 of Indian STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:52: Evidence Act. He also proved in detail the sequence when accused Virender @ Billu led them to his jhuggi at jhuggi no. 37, near Jaipur Golden Hospital. One golden ear ring was also got recovered at his instance which was seized vide memo Ex. PW26/A. Thereafter Insp. Gurmeet Singh was informed who arrested accused Virender @ Billu in this case and recovered golden ear rings and seizure memo of the same was handed over to him. Accused was also medically examined. He identified the recovery of ear rings Ex. P5. In the cross examination he explained how the accused was arrested and disclosure statement was recorded by him and thereafter he was handed over to Insp. Gurmeet Singh. He also remained cogent and coherent during cross examination and further elucidated the circumstances in which accused was arrested.
60. PW27 HC Babu Ram (wrongly mentioned as PW26), who joined investigation on 14.04.05 along with IO Insp. Gurmeet Singh, corroborates the facts regarding the arrest of accused persons in this case and both were then produced in the court in muffled face. He proved the arrest of STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:53: accused Sunil Kumar vide memo Ex.PW26/A and his personal search Ex. PW26/B. He also proved the arrest of accused Virender @ Billu vide memo Ex. PW26/C and his personal search Ex. PW26/D. He further proved the investigation dt. 20.04.05 when in pursuance to disclosure statement of accused Virender @ Billu Ex. PW26/E and disclosure statement of accused Sunil Kumar Ex.PW 26/F was recorded. He further proved the investigation dt. 21.04.05 when they after medical examination went to jhuggi of accused Sunil Kumar at jhuggi no. 26, near Jaipur Golden Hospital. He also corroborated the fact that a saree recovered at the instance of accused Sunil Kumar which was seized vide memo Ex. PW26/G and one cloth piece which was worn by accused Sunil Kumar at the time of incident on his head and same was seized vide memo Ex. PW26/H. It is further pertinent to mention her that the cloth Ex. P1 which was recovered at the instance of accused Sunil Kumar from his jhuggi was also identified by prosecutrix K when the same was shown to her in the court. This witness further proved that thereafter they went to the house of complainant where one bed sheet was STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:54: handed over to them which was seized vide memo Ex. PW26/I although it was washed by the complainant. The complainant identified both the accused persons but the prosecutrix could only identify accused Virender @ Billu. He has further proved the pointing out memos Ex. PW3/B and PW3/C of spot of crime prepared at the instance of both the accused persons. He identified bed sheet Ex. P3 and saree of badami colour Ex. P2 and a cloth Ex. P1. In the cross examination he explained the circumstances how the investigation of this case was carried out. He also explained the location of the jhuggi and the spot of crime i.e. Sankat Mochan Sidh Hanuman Temple. He denied that he did not join the investigation and accused persons are falsely implicated in this case.
61. PW31 Insp. Gurmeet Singh (wrongly mentioned as PW30) joined the investigation of this case on 14.04.05 after the arrest of accused persons at PS Alipur in another case. He corroborated and proved the copy of disclosure statement of accused Sunil Kumar Ex. PW23/A, his arrest memo Ex. PW26/A and personal search memo Ex. PW26/B and copy of STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:55: disclosure statement of accused Virender mark PW26-A, arrest memo of this accused Ex. PW26/C and his personal search memo Ex. PW26/D. This witness further proved the application for TIP of accused Ex. PW30/A, identification of witnesses prosecutrix K and complainant Ram Prasad Adhikari vide application Ex. PW30/B. He also corroborated the refusal of TIP proceedings by both the accused persons vide Ex. PW27/B and Ex. PW27/C. He also proved the disclosure statements of both the accused persons in this case vide memo Ex. PW26/E and Ex. PW26/F, which although are not admissible as evidence. He has corroborates the seizure of one saree of badami colour and one cloth vide memo Ex. PW26/G and Ex. PW26H and also proved seizure of bed sheet of yellow colour brought by prosecutrix vide memo Ex. PW26/J. This witness has further proved the application for TIP of case property i.e ear rings, one saree and one piece of cloth vide memo Ex. PW19/A. He further corroborated the seizure of cloth Ex. P1 and saree Ex. P2 at the instance of accused Sunil Kumar.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:56:
62. During cross examination this witness remained cogent and coherent and corroborated the facts of as to how the present case was investigated by him after the same was assigned to him on 12.04.05. He denied that in collusion with HC Rajender he manipulated the proceedings in order to falsely implicate the accused persons in this case and he did not conduct the investigation of this case properly and fairly.
63. Perusal of above discussed evidence reveals that PW3 Ram Prasad Adhikari, who is the complainant in this case and PW7 prosecutrix K both have identified the cloth Ex. P1 which were recovered at the instance of accused Sunil Kumar from his jhuggi which was used by the accused in the commission of robbery. The prosecution has further been able to prove and establish the recovery of saree Ex. P2 which was recovered at the instance of accused Sunil Kumar from his Jhuggi and the said fact stands corroborated with the evidence of PW3 Ram Prasad Adhikari i.e complainant, STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:57: PW7 Prosecutrix K, PW26 HC Babu Ram and PW30 ACP Gurmeet Singh. The golden ear rings were not identified in the TIP proceedings by prosecutrix K. PW3 Ram Prasad Adhikari, the complainant has also not identified the golden ear rings produced in the court, as the original and gold ear rings of his wife which were robbed during the incident. Rather he has termed the ear rings produced in the court as ear rings having same design but not made of gold. However, corroboration of recovery of saree and cloth by complainant, prosecutrix and police witnesses coupled with identification of both the accused persons as assailants by the complainant and prosecutrix further proves the case of prosecution in respect of charge u/s 395 CrPC against both the accused persons along P.O.'s namely Rajpal @ Kalu, Kamal Dass @ Pappu and Krish Pal.
64. As per discussion and observation, here in above, one robbed saree while committing the dacoity was recovered from the possession of accused Sunil Kumar at his instance and same was identified by PW3 Ram Prasad STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:58: Adhikari as well as PW7 Prosecutrix K. Thus in these circumstances, prosecution has been able to prove the guilt of accused Sunil Kumar u/s 412 IPC. Therefore, accused Sunil Kumar is convicted for offence punishable u/s 412 IPC. However an ear ring recovered at the instance of accused Virender @ Billu, has not been identified by PW7 prosecutrix K during the TIP proceedings and also by PW3 Ram Prasad Adhikari, the complainant, when he appeared in the witness box. Some doubt emerges out regarding the identity of an ear ring which was recovered at the instance of accused Virender @ Billu.
65. On the basis of above discussion and observation, the prosecution has failed to bring home the guilt of both the accused persons for commission of offence u/s 376G IPC. However, prosecution has succeeded in proving its case against both the accused persons in respect of commission of offence punishable u/s 395 IPC. Accordingly both the accused persons are acquitted of charges framed against them u/s 376G IPC. However, both the accused STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:59: persons namely Virender @ Billu and Sunil Kumar are convicted for commission of offence punishable u/s 395 IPC. Accused Sunil Kumar is further convicted u/s 412 IPC. Accused Virender @ Billu is given benefit of doubt and is acquitted of charge u/s 412 IPC. The evidence led in this case shall be read against proclaimed offenders Rajpal @ Kalu, Kamal Dass @ Pappu and Krish Pal as per Section 299 CrPC as and when they are arrested.
66. Before parting with the judicial file, it is essential to draw the attention of Commissioner of Police and Director, FSL. First Investigation Officer Insp. Babu Lal did not discharge his duty professionally because very crucial evidence has been lost and has not been not proved in this case. Investigation qua the clothes of prosecutrix is done unscientifically, negligently and carelessly and same is not described in his own statement. The seizure memo does not contain any detail about the same. The unprofessional, negligent and casual aspect of investigation by Insp. Babu Lal attracts the dereliction of duty. Therefore, a departmental STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:60: inquiry shall be conducted and proper action be taken against him as per law. The Commissioner of Police is directed to comply the directions and also apprise the court about the same.
67. It emanates from the analysis of this case that the doctor who attends any victim, injured or a dead person and seizes his or her clothes, it is a very crucial evidence specially in heinous cases. Therefore, it is incumbent on the doctor to take photographs of the clothes of such victim and submit the same with the MLC with investigation officer or the court. Similar duty is cast upon the persons who analyzes such clothes at FSL laboratory. The Director, FSL shall take photographs of the clothes or any other exhibit after opening of their seal and along with the FSL report, photographs of the clothes or any other exhibit shall also be filed. In this regard, I direct Secretary (Health) and Secretary (Home), Govt. of NCT of Delhi to issue written directions to their respective subordinates to follow this procedure in order to assist the criminal justice system. The compliance STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:61: report be filed by respective agencies after receiving the operative part of this order within one month from today. Copies of these directions shall be sent to Commissioner of Police, Secretary (Home) and Secretary (Health), Govt. of NCT of Delhi. File be consigned to record room after necessary compliance.
Announced in the open court (SANJAY KUMAR) today i.e. on 14.01.2011 ASJ-01 (NW),ROHINI COURTS: DELHI STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:62: THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - I, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI SC No. 132/2008 FIR No. 97/2005 PS : BAWANA U/s. 395/376G/412 IPC STATE VERSUS
1. VIRENDER @ BILLU S/O SH. ATTAR SINGH R/O. JHUGGI NO. 37, NEAR JAIPUR GOLDEN HOSPITAL SECTOR-03, ROHINI, DELHI
2. SUNIL KUMAR S/O SH. DHARAM PAL R/O. JHUGGI NO. 237, NEAR JAIPUR GOLDEN HOSPITAL SECTOR-03, ROHINI, DELHI Date of Institution : 11.07.2005 Date of receipt of case in this court : 01.12.2008 Arguments heard On : 06.01.2011 Order Announced On : 14.01.2011 Order on Sentence announced on : 17.01.2011 SHRI P.K. VERMA, APP FOR THE STATE.
SHRI S. C. SHARMA & SHRI R. K. JHA, COUNSEL FOR BOTH THE ACCUSED.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
:63: Present : Sh. P. K. Verma, APP for the State.
Both convicts in JC with their counsel Sh. S. C. Sharma & Sh. R. K. Jha.
1. It has been submitted by Sh. S. C. Sharma and Sh. R. K. Jha, counsel for both the convicts that convict Sunil Kumar is aged about 28 years. He is unmarried having four marriageable sisters and a widow mother. Convict Sunil Kumar is the sole bread winner of the family. It is further submitted that convict Virender @ Billu is aged about 40 years, married and having 06 children, wife and also having the responsibility of 90 years old widow mother. He is also the sole bread winner of his family. Counsel for both the convicts submit that the families of both the convicts will be at the verge of starvation in their absence. Counsel for the convicts submit that both the convicts are not previous convicts and they are in JC in this case for the last 05 years and 09 months. They request that lenient view may be taken against both the convicts.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
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2. On the other hand, Sh. P.K. Verma, Ld. APP for the State has vehemently submitted that both the convicts be awarded maximum punishment as they are involved in a gruesome crime.
3. I have heard both the parties and have perused the record.
4. Accused persons are involved in a gruesome incident of dacoity and gang rape but only offence of dacoity has been proved against both the accused persons. Convict Sunil Kumar is also convicted of offence punishable u/s 412 IPC. Hence keeping in view the facts and circumstances of the case, I award sentence to convict Sunil Kumar to undergo rigorous imprisonment for a period of six (06) years and to pay a fine of Rs. 5,000/- u/s 395 IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of six months. I further award sentence to convict Sunil Kumar to undergo rigorous imprisonment for a period of one (01) year u/s 412 IPC.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.
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6. Further I award sentence to convict Virender @ Billu to undergo rigorous imprisonment for a period of six (06) years and to pay a fine of Rs. 5,000/- u/s 395 IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of six months.
7. Both the sentences awarded to convict Sunil Kumar shall run concurrently. Benefit of section 428 Cr.P.C. Shall be given to both the convicts. Copy of judgment and order on sentence be supplied free of cost.
8. File be consigned to record room after necessary compliance.
Announced in the open court (SANJAY KUMAR) today i.e. 17.01.2011 ASJ-01 (NW),ROHINI COURTS: DELHI.
STATE VS VIRENDER @ BILLU ETC.//FIR NO.97/05 PSBAWANA//U/S. 395/376G/412 IPC.