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Delhi District Court

State vs 1 Hazi Mohd. Altaf (A-1) on 29 February, 2016

        IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
          FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
                              DELHI

Unique Identification No. 02404R5955632004
Sessions Case No. 141/1/2010


FIR No. 852/2000
PS Rajouri Garden
U/s 193/195/218/388/389/465/120-B IPC

State          Versus                        1               Hazi Mohd. Altaf (A-1)
                                                             Son of Sh. Hazi Nasiruddin,
                                                             Resident of C-6/303, Yamuna
                                                             Vihar,Delhi.

                                             2               Narender Singh (A-2)
                                                             Son of Sh. Zile Singh,
                                                             Resident of Village Kazipur,
                                                             PS Jaffarpur, Delhi.

                                             3               Chander Mohan Dutta, (A-3)
                                                             Son of late Sh. V.N. Dutta,
                                                             Resident of H. No. 8,
                                                             Police Colony, PS Rajouri
                                                             Garden, Delhi.
                                                             (since expired)

                                             4               Sameer Ahmad @ Sonu (A-4)
                                                             Son of Sh. Nooruddin,
                                                             Resident of H. No. 3805,
                                                             Gali Neem Wali, Kala Mahal,
                                                             Jama Masjid, Delhi.
                                                             (since expired proceedings
                                                             abated on 26.07.2007)

        Date of institution in Sessions Court:                          17.11.2006
        Date of conclusion of arguments :                               27.01.2016
        Date of pronouncement of judgment:                              25.02.2016

Memo of Appearance:

Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. S.C. Buttan, learned defence counsel for A-1.
Sh. Raj Pal Singh, learned defence counsel for A-2.


FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.)     Page 1 
 JUDGMENT

1.0 Police and advocates play a pivotal role in justice delivery system in any criminal matter. They are, unquestionably, bound by probity, integrity and professional ethics. They have to show utmost respect to principles of moral values as well. Though, any advocate enjoys privileged relationship with his client, he has, certainly, no business to frame anyone in a false case. Police in particular has to ensure that no innocent is incarcerated while, at the same time, not letting off any guilty. Present case tells a sordid tale of two police officials and an advocate who, with the help of others, have shown the audacity of framing an innocent man in a serious case of rape in a very ingenious manner.

1.1 On 06.06.2000, Sh. Sushil Gulati (PW12) was sitting in the office of Balraj Bhasin situated at Rajouri Garden Extension. Dr. Jeevan Prakash Gandhi came rushing to him in a perplexed state and told that someone had intruded their house and was misbehaving with his daughter-in-law. Sushil Gulati along with Balraj Bhasin immediately rushed to the house of Dr. Gandhi where they saw C.M. Dutta (A-3) misbehaving with the wife of Dr. K.D. Gandhi (PW9). Sushil Gulati already knew him as earlier Sh. C.M. Dutta was posted as Chowki Incharge in Rajouri Garden area. They rescued Jeewan Lata Gandhi from the clutches of C.M. Dutta (A-3). Accused C.M. Dutta left the house but not before threatening and abusing. Such incident resulted in registration of FIR No. 579/2000 u/s 354/506 IPC against accused C.M. Dutta. Registration of such molestation case infuriated him and he threatened to implicate them in a false case.

1.2 Accordingly, a plot was devised.

1.3 One Rajni Gupta (PW1) used to work in Marketing Division of M/s Power & Power Company. She came in contact of accused Haji Mohd. Altaf (A-

1), a practising lawyer at Tis Hazari Courts who had earlier helped her in procuring one handicapped certificate. She had to leave her said marketing job and she again came in contact of A-1 Haji Mohd. Altaf in order to ascertain as to what opportunities one could avail on the basis of said handicapped certificate.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 2 There, she also happened to meet Savita (PW2) and accused Sameer Ahmad @ Sonu (A-4). Sonu was working as Munshi in Tis Hazari Courts and was associated with A-1 Haji Mohd. Altaf. Since, Rajni Gupta was in need of money for the purpose of one operation, she was asked to become part of conspiracy. She was told that said police official/accused C.M. Dutta had been suspended because of the deposition of Sushil Gulati and, therefore, Sushil Gulati was to be implicated in a rape case. She was accordingly shown photographs of Sushil Gulati as well as of his car. One visiting card of Sushil Gulati was also given to her and she was asked to make a phone call to Sushil Gulati. She accordingly took an appointment with Sushil Gulati and met him on 08.08.2000.

1.4 On 28.08.2000, she again went to Tis Hazari Courts in the chamber of A-1 Haji Mohd. Altaf. There she also met A-4 Sonu and Savita (PW2). One police official also came there and he told them about the plan. She was also given a fictitious name as 'Seema Kaur' and she was told that one Balbir Kaur (PW6) of Baljeet Nagar would play role of her aunt. Savita also told that she would arrange meeting between them. It will be also important to mention here that Rajni Gupta was asked to indulge into physical relation with accused Sonu for the purposes of substantiation of rape allegation and false implication of Sushil Gulati but Rajni Gupta claimed that she would make her own arrangements in this regard.

1.5 As per the plan, on 29.08.2000, Rajni Gupta had physical relation with her one friend Babloo. I would also add here that such Babloo, however, reportedly died in 2004 in his native village. Rajni Gupta, thereafter, came to Tis Hazari Courts at 5.00 PM where she met A-1 Haji Mohd. Altaf, A-2 Narender Singh, A-4 Sonu, Savita (PW2) and Najma (PW7). They all elaborated about the plan as to how rape scene was to be constructed. She was also given one sweet piece (burfi) laced with something to eat but it did not have much intoxicating effect on her. Thereafter, she was taken to upper floor of the chamber where Savita injected some fluid in her private part in order to establish that she had been raped. Thereafter, she was administered some tobacco which made her giddy and thereafter she was dropped near St. Stephens Hospital in a planned manner same evening by accused Sonu.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 3 1.6 A-2 Narender Singh was an integral part of the conspiracy. He was posted as Sub Inspector, Police Post Tis Hazari Courts at the relevant time. While patrolling and as per plan, he reached Church Road near St. Stephens Hospital at 8.00 PM where he saw said Rajni Gupta @ Seema Kaur in said intoxicated state. He flashed information to Police Control Room through wireless and sent requisi- tion for PCR Van. PCR Van reached there and Seema Kaur was taken to Hindu Rao Hospital. She was also referred to Gynecology Ward. When she was admit- ted in the hospital, she had given history of administration of soft drink and also of sexual assault. Since, she was declared fit for statement, her statement was recorded by A-2 Narender Singh and as per the prior concert and planning, Seema Kaur, in her statement, made categoric allegations of sexual assault against Sushil Gulati. She claimed that when she had earlier come to Tis Hazari Courts in connection with preparation of her handicapped certificate, she hap- pened to meet Sushil Gulati who claimed himself to be a property dealer and had also given her his visiting card. She also revealed that when she had gone to his house situated at Rajouri Garden, Sushil Gulati came in a white Maruti car no. DL-2CL-0444 and told that SDM would not be able to come that day. He then of- fered her a cold-drink and also assured that he would send her to another office where she could get job of 'telephone operator'. After consuming cold-drink, she was made to sit in that Maruti car and Sushil Gulati also sat with her on the rear. His two friends sat in the front seat and while in the running car, Sushil Gulati raped her and thereafter his two friends also raped her. She was then threatened and when she regained consciousness, she came to know that she had been thrown near St. Stephens Hospital. She thus prayed that action may be taken against Sushil Gulati and his friends.

1.7 Initially, zero FIR was registered at PS Subzi Mandi. Subsequently, FIR No. 852/2000 PS Rajouri Garden for offences under Sections 328/376/506/34 IPC was registered. Clothes of victim, vaginal swab, exhibits and blood sample were preserved at Hindu Rao Hospital and statement of Seema Kaur, under Section 164 Cr.P.C., was also got recorded on 01.09.2000 in which she supported the contents of FIR.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 4 1.8 Matter was thereafter transferred to Crime Branch and Seema Kaur @ Rajni Gupta was interrogated at length and then it came to fore that a conspir- acy had been hatched and she had never been raped by anyone.

1.9 In her supplementary statement recorded under Section 161 Cr.P.C. and another statement under Section 164 Cr.P.C. recorded on 11.09.2000, she, while completely deviating from her earlier stand taken in FIR, rather confessed that case had been fabricated by all the four accused persons in order to implicate Sushil Gulati in a false rape case.

1.10 Statements of Balbir Kaur, Savita Gupta, Babloo & Najma were also got recorded and they also supported the subsequent stand taken by Seema Kaur @ Rajni Gupta and revealed that all the four accused persons were behind the conspiracy. DNA reports were also obtained from FSL, Hyderabad which exonerated Sushil Gulati and it stood established that the source of semen on the relevant exhibits were of accused Sonu and Babloo Mandal and not of Sushil Gulati.

1.11 Accused Sonu was arrested. He also admitted about aforesaid conspiracy and about the assembly of all the accused persons in the chamber of accused Haji Mohd. Altaf and others. He also admitted that he had purchased a syringe and put semen in the same and thereafter such syringe was given to Najma who injected the semen in the private part of Rajni Gupta @ Seema Kaur. He also admitted that thereafter, he dropped Rajni near Stephens Hospital on a motorcycle and SI Narender Singh completed further chain of events.

1.12 Insp. C.M. Dutta surrendered before the Court on 08.03.2001. Accused Haji Mohd. Altaf was arrested on 17.03.2001 and accused/SI Narender Singh was arrested on 19.03.2001.

1.13 Thus, investigation revealed that said rape case filed under Section 376/328/506/34 IPC against Sushil Gulati and others was fabricated by the accused (s) with the objective to involve Sushil Gulati in order to take avenge of arrest of accused/Insp. C.M. Dutta in the molestation case and also to extort FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 5 money from him. Investigation established that Sushil Gulati was completely innocent.

1.14 Resultantly, he was discharged on 09.04.2001 by the court.

1.15 Police also moved application before the concerned court of the then learned ACMM, Tis Hazari Courts for making complaint u/s 195 Cr.P.C. but such request was disallowed vide order dated 19.07.2001 holding that bar u/s 195 Cr.P.C. did not get attracted as the forgery had been committed prior to production of any such document in the court.

1.16 However, sanction under Section 197 Cr.P.C. was obtained from Hon'ble Lieutenant Governor, Delhi on 21.01.2002.

1.17 It is in these circumstances that the present charge-sheet has been filed against all the four accused persons for commission of offences under Sections 193/195/218/388/389/465/120-B IPC.

COGNIZANCE AND CHARGES 2.0 Charge-sheet was presented before the Court of learned Addl. Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi on 30.04.2002. It took cognizance and ordered summoning of all the four accused persons.

2.1 It will be worthwhile to mention here that Sushil Gulati also moved an application under Section 319 Cr.P.C. r/w Section 173 (8) Cr.P.C. praying therein to take cognizance against certain other persons who were not shown as accused in the charge-sheet and it was also prayed that matter may be got further investigated. It will be also important to mention here that Court of learned Addl. Chief Metropolitan Magistrate, Rohini (which had been become the successor court) vide order dated 11.08.2006 ordered further investigation under Section 173 (8) Cr.P.C. and directed police to submit status/final report accordingly. Thereafter, a supplementary charge-sheet was also filed on 31.10.2006. However, no fresh evidence could be collected against any other FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 6 person despite such subsequent investigation.

2.2 Matter was further considered by the Court of Sh. Dig Vinay Singh the then learned Metropolitan Magistrate, Rohini, Delhi and vide his detailed order dated 03.11.2006, he held that bar provided under Section 195 Cr.P.C. and bar under Section 140 of Delhi Police Act did not stand attracted. Holding that Court had no power to review or recall its previous order, application for recalling of summoning order/ discharge was also dismissed. Sh. Dig Vinay Singh, the then learned Metropolitan Magistrate also observed that a careful perusal of the order would reveal that prime evidence against all the four accused persons was based on the oral statements made by Seema Kaur @ Rajni Gupta, Najma, Babloo, Savita Gupta and Balbir Kaur etc. and if they were to be made accused, their statements would become disclosure/confession of co-accused and then those would lose evidentiary value against the accused facing trial. He also held that there was not sufficient material on record to issue process against any other person besides the aforesaid four accused persons, who had already been summoned. He, however, observed that during trial if involvement of any other person came to light, resort would be taken to Section 319 Cr.P.C. Observing that offence under Section 195 IPC was exclusively triable by the Court of Sessions, matter was committed to the Court of Sessions by him.

2.3 It is in these circumstances that this matter finally landed in the Court of Sessions.

2.4 Since, accused Sameer Ahmed @ Sonu (A-4) stopped appearing before the Court, coercive process was issued against him. It will be also important to mention here that father of such absconding accused appeared before the Court and informed that his son/accused Sameer Ahmed @ Sonu had been murdered. Proceedings qua accused Sameer Ahmad @ Sonu stood abated vide order dated 26.07.2007. It will be also important to mention here that even Sonu, at one point of time, had desired to become approver as he had moved an application, during the investigation stage, praying therein for recording of his statement u/s 164 Cr.P.C. However, case diary dated 18/11/2000 indicates that he withdrew his such request.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 7 2.5 Arguments on charge were heard and vide order dated 18.08.2007, all the accused were charged under Sections 193/195/218/389/465/120-B IPC.

2.6 Charges were framed accordingly.

2.7 All the pleaded not guilty and claimed trial.

2.8 It will not be out of place to mention here that even accused C.M. Dutta died during the trial and proceedings qua him stood abated vide order dated 05.07.2014.

WITNESSES FOR PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined thirty four witnesses.

3.1 These witnesses can be categorized as under:-

Public witnesses:

(i) PW1 Ms. Rajni Gupta

(ii) PW2 Ms. Savita Gupta

(iii) PW6 Ms. Balbir Kaur.

(iv) PW7 Ms. Najma

(v) PW8 Dr. H.C. Gandhi

(vi) PW9 Dr. K.D. Gandhi

(viii) PW12 Sh. Sushil Gulati Police witnesses:

               (i)      PW10 ASI Satbir Singh (duty officer police official who recorded Zero
                        FIR at PS Subzi Mandi)
               (ii)     PW11 SI Sumeela (duty officer)
               (iii)    PW13 SI Balwan Singh (PCR official).
               (iv)     PW14 SI Sohan Dass (police official who proved suspension order of
                        accused C.M. Dutta in case FIR No. 579/00)
               (v)      PW15 HC Raghunath (DD Writer PP Tis Hazari)
               (vi)     PW17 Ct. Ramesh Chand (duty constable of Hindu Rao Hospital)
               (vii)    PW18 HC Vinod Kumar (duty constable of Hindu Rao Hospital)
               (viii)   PW19 Ct. Anil Kumar
               (ix)     PW20 HC Pradeep (North District Control Room).
               (x)      PW21 ASI Rohtash (MHCM PS Rajouri Garden).
               (xi)     PW22 HC Narender
               (xii)    PW23 HC Lalit (police official posted at PP MIG Flats PS Rajouri Garden).
               (xiii)   PW24 SI Kamal Singh (PCR North District).
               (xiv)    PW25 SI Mahipal Singh
               (xv)     PW26 HC Rajbir Singh.
               (xvi)    PW27 Ct. Sanjay (police official who took the photographs of log book of
                        District Net


FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.)    Page 8 
                (xvii)    PW28 HC Rishi Raj
               (xviii)   PW29 ASI Ram Karan
               (xix)     PW30 HC Bhim Singh (duty constable of Hindu Rao Hospital)
               (xx)      PW32 SI Ram Avatar
               (xxi)     PW33 Insp. Rajveer Singh
               (xxii)    PW34 ACP Ranbir Singh (investigation officer).

               Forensic expert/other witnesses:
               (i)   PW3 Dr. Rajender Kumar (FSL Expert)

(ii) PW4 Sh. R.K. Chopra (witness from Telephone Department).

(iii) PW5 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd.

(iv) PW16 Sh. Harsh Vardhan (document expert).

(v) PW24 Dr. Adarsh Kumar (autopsy surgeon).

(vi) PW31 Sh. A.K. Srivastava (FSL Expert) STATEMENTS OF ACCUSED AND THEIR DEFENCE

4.0 Accused, in their statements under Section 313 Cr.P.C., pleaded innocence and claimed that they had been falsely implicated.

4.1 Accused Haji Mohd. Altaf claimed that he had been falsely implicated in the matter. When asked whether he wanted to say anything else or not, he answered as under:

"I am innocent. On that day, some policemen came to the chamber of Noorudin Advocate and started misbehaving with one Sonu, son of Noorudin. I objected to the same and some heated arguments took place and they implicated me in the false case. I don't know any Rajni nor I met her ever. The false story has been formulated against me by hatching a conspiracy by the police officials."

4.2 Accused Narender Singh also claimed that he had been falsely implicated. He claimed that he performed his duties in a bonafide manner as per law and as per directions of his seniors. He claimed that he had unblemished record and also felt that he had been made a scapegoat in the matter.

4.3 They both, however, did not desire to lead any evidence in defence.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 9 RIVAL CONTENTIONS 5.0 Sh. Sanjay Jindal, learned Addl. P.P. has contended that prosecution has been able to prove its case beyond shadow of doubt. He has argued that case is of unusual nature and Insp. C.M. Dutta (since expired) had evolved a cunning and clever way to take avenge against Sushil Gulati. He felt that he (C.M. Dutta) was facing molestation case only due to the evidence of Sushil Gulati and, therefore, he thought to teach him a lesson of his life. He hatched a conspiracy and accordingly, services of Rajni Gupta were hired and she was made to play the role of a rape victim. He has argued that the testimony of Rajni Gupta @ Seema Kaur clinches the issue in favour of prosecution and against both the accused and it stands firmly proved that a conspiracy was hatched by the accused persons and it was conspired to implicate Sushil Gulati in a false rape case and evidence was accordingly fabricated. He has also contended that the objective was two-fold. Besides taking revenge, there was also intention to extort money from Sushil Gulati. He has argued that accused/SI Narender Singh was also a key player and in terms of conspiracy, he reached the spot where eventually Seema Kaur @ Rajni Gupta was to be found in intoxicated condition and he then deliberately and knowingly recorded her false statement so that Sushil Gulati was put behind the bars.

5.1 Sh. Jindal has also claimed that keeping in mind the peculiar nature of the case, there is no harm in believing the version of Seema Kaur, Savita Gupta, Najma and Balbir Kaur. He has argued that keeping in view the unusual characteristics of the case, though these persons also seem to be accomplices yet only they could have spilled the beans and could have proved the conspiracy and, therefore, they were not made accused in the present case. He has also contended that testimony of such accomplices is trustworthy and can always become basis of conviction.

5.2 All such contentions have been refuted by the defence.

5.3 Sh. Raj Pal Singh, learned defence counsel for accused SI Narender Singh has contended that testimony of PW1 Rajni Gupta @ Seema Kaur is not FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 10 sufficient for inferring involvement of SI Narender Singh as she has made scanty and sweeping reference against him. He has also argued that testimony of Rajni Gupta is not even otherwise believable as she herself admitted in her deposition that whatever was done in the present case was out of greed. He has also contended that as far as PW2 Savita Gupta is concerned, she has not been able to identify SI Narender Singh. Sh. Raj Pal Singh has also contended that PW7 Najma has rather exonerated SI Narender Singh by categorically admitting in her cross-examination that whatever she had done was as per the direction of accused Sonu and no other accused had ever talked to her in this regard . As regards PW6 Balbir Kaur and PW12 Sushil Gulati, it has been claimed that their testimony cannot be read as they were never produced for cross-examination.

5.4 Thus, according to him, there is nothing on record to show that there was any sort of conspiracy-agreement.

5.5 Simultaneously, it has been contended that even otherwise, accused Narender Singh cannot be prosecuted and convicted for want of sanction under Section 197 Cr.P.C. It has also been supplemented that he is also entitled to protection as envisaged under Section 140 of Delhi Police Act.

5.6 Finally, Sh. Raj Pal Singh has contended that though an accomplice is a competent witness yet such testimony cannot be said to be worthy unless corroborated. He has contended that as per the various judicial pronouncements and rule of prudence, conviction cannot be recorded on the basis of sole testimony of accomplice. He has also contended that appropriate course for the investigating agency was to seek tender of pardon for any such accomplice which procedure had not been followed in the present case and, therefore, testimony of all such accomplices i.e. PW1 Rajni Gupta @ Seema Kaur, PW2 Savita Gupta, PW6 Balbir Kaur and PW7 Najma is liable to be discarded.

5.7 Sh. S.C. Buttan, learned defence counsel for accused Haji Mohd. Altaf has also contended that testimony of all such accomplices cannot be relied upon. He has contended that Rajni Gupta @ Seema Kaur is found to be a lady of dubious character and no credence can be given to her testimony who has FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 11 shown the audacity of giving incongruous and contradictory versions on oath. He has also taken strong exception to the procedure adopted by the investigating agency and has raised serious question mark over the manner in which these alleged accomplices have rather been illegally exonerated and made witnesses. He has contended that since the procedure prescribed under Sections 306/307 Cr.P.C. was not followed, statements made by such accomplices before the Court has no evidentiary value. Sh. Buttan has also contended that even otherwise, there is no corroboration by way of any independent evidence and, therefore, deposition of such accomplices has no value.

5.8 Written arguments have also been furnished by both the learned defence counsels. Sh. Buttan has also relied upon following authorities.

(i) Abdul Sattar Vs. Union Territory, Chandigarh AIR 1986 SC 1438

(ii) Balwant Kaur Vs. Union Territory, Chandigarh AIR 1988 SC 139

(iii) Lal Chand Vs. State of Haryana AIR 1984 SC 226

(iv) State (Delhi Admn) Vs. V.C. Shukla & Ors. AIR 1980 SC

(v) Fancis Stanly Vs. Intelligence Officer, NCB, Thiruvananthapuram AIR 2007 SC 794

(vi) Sadashiv Mahadeo Yavaluje & Gajanan Shripatrao Salokhe AIR 1990 SC 287

(vii) Gaurav Jain Vs. Union of India & Ors. AIR 1990 Supreme Court 292 (viii )Maj. Genl. A.S. Gauraya & Anr. Vs. S.N. Thakur & Anr. AIR 1986 SC 1440

(ix) Adambhai Sulemanbhai Ajmeri & Ors. Vs. State of Gujarat AIR 2014 SLT 274 EVALUATION OF EVIDENCE

6.0 There are various aspects which need to be weighed up and assessed.

6.1 First, it has to be seen whether incomplete testimony of PW 12 Sushil Gulati and of PW6 Balbir Kaur can be read or not. If yes, then to what extent.

6.2 Cumulative impact of testimony of all concerned public witnesses who have raised accusing fingers towards accused when, according to defence, they themselves were also part of alleged conspiracy is also to be evaluated. In other words, the significance and importance of testimony of an accomplice is to be weighed up.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 12 6.3 It is also required to be considered whether prosecution of police official is sustainable or not.

WORTH AND UTILITY OF INCOMPLETE TESTIMONY 7.0 As regards PW12 Sushil Gulati, defence counsels have contended that his testimony is of no avail to prosecution as he died before his cross- examination could be conducted and recorded and, therefore, his examination-in- chief, being incomplete evidence, is not liable to be considered.

7.1 I have seen the record very carefully. PW12 Sushil Gulati entered into witness box on 17.02.2011 for the first time. His examination-in-chief was further recorded on various subsequent dates and eventually his examination-in- chief was completed on 21.01.2012.

7.2 Order-sheet dated 21.01.2012 indicates that his cross-examination was deferred as defence counsel was not available. Thereafter, on 28.01.2012 said witness appeared before the Court but could not be examined as judicial record had been sent to High Court of Delhi in connection with one revision petition.

7.3 Thereafter, on 03.03.2012, PW12 Sushil Gulati was present for cross- examination but he was discharged unexamined at the request of accused persons.

7.4 On 31.03.2012, 21.04.2012 and 07.07.2012 and 04.08.2012 also, PW12 Sushil Gulati was sent back unexamined at the request of accused. On various subsequent dates also, Sushil Gulati kept on appearing but his cross- examination could not be recorded primarily due to non-availability of defence counsels.

7.5 On 17.10.2013, all the three accused persons were present and file had also been received back from High Court of Delhi and case was adjourned to 26.10.2013 for recording of testimony of PW12 Sushil Gulati. However, on FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 13 26.10.2013 though PW12 Sushil Gulati was present yet one of the accused did not appear and, therefore, coercive process was issued and evidence of PW12 Sushil Gulati could not be recorded.

7.6 Thereafter, PW12 Sushil Gulati was summoned for 24.01.2015 and then it came to the notice of the court that he had expired on 19.12.2014 and copy of death certificate was also submitted along with the report. Undoubtedly, there is no cross-examination of PW12 Sushil Gulati but defence cannot be permitted to reap the fruits of its own wrongs. On number of occasions, PW12 Sushil Gulati could not be examined either due to non-availability of defence counsels or due to absence of accused. In such a situation, evidently, defence had earlier a clear opportunity to cross-examine him.

7.7 Defence has contended that it would be, undoubtedly, harsh on them if such incomplete evidence is read in defence to the detriment of the accused as they had no insight or supernatural knowledge that witness would die later on. I, however, cannot be oblivious of the provision contained under Section 33 of Indian Evidence Act which stipulates that evidence given by a witness in judicial proceedings is relevant in a later stage in same judicial proceedings and can be considered if any such witness is dead.

7.8 Needless to say that cross examination is conducted to elicit the truth. Fair trial is cardinal principle of law which should not be compromised. Issue is whether such testimony which is untested should be held admissible per se or not? The only plausible way out would lie in finding corroboration from other sources. If there is any other witness, who also supports the version of such witness, then court can rely upon such incomplete testimony as well. Reference be made to Tunda Ram Dagar vs State (CRL. Appeal 44/1998 DOD 28.03.2011, Delhi High Court) wherein also it has been observed that though the evidence of a witness, who dies before his cross-examination is recorded, is admissible in evidence yet the weight to be attached to such evidence would vary and depend upon the circumstances of each case. Hon'ble Bench also made reference to another judgment Krishan Dayal v. Chanu Ram ILR (1969) 1 Del 1090 wherein it was observed as under:-

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 14 ".................I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross- examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross- examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity."

7.9 Thus, such evidence does not stand effaced altogether but it will be obligatory and prudent as well to find corroboration to ensure that there is no prejudice to accused.

7.10 In view of aforesaid, let me now evaluate the testimony of PW12 Sushil Gulati.

VERSION OF SUSHIL GULATI 8.0 PW12 Sushil Gulati has deposed that on 06.08.2000 one Jeevan Prakash Gandhi (father-in-law of Jeevan Lata Gandhi) had come to his office when he was sitting along with Balraj Bhasin. He told that him that one police official was misbehaving in his house with his daughter-in-law. Therefore, PW12 FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 15 Sushil Gulati along with some other persons of the locality went to their house and saw accused C.M. Dutta misbehaving with Jeevan Lata Gandhi. He also deposed that he was holding her hand and they tried to make him understand and sent him back. He also deposed that he knew C.M. Dutta earlier also when he (C.M. Dutta) was posted as incharge of P.P. Rajouri Garden. He also deposed that C.M. Dutta had threatened he would not spare anyone and he specially threatened him and Balraj Bhasin. Same night, he received a call from the house of Dr. Gandhi from one Ct. Mahender Singh and he then went to the house of Dr. Gandhi. There, he saw accused C.M. Dutta along with some persons who were raising noise and abusing. He then informed SHO PS Rajouri Garden on telephone about the aforesaid incident. Dr. Gandhi also told Sushil Gulati that he had already made a complaint by dialing 100 and PCR had also come there. Accused C.M. Dutta along with other persons then fled from there.

8.1 Next morning, they were called by ACP Rajiv Ranjan and they told him about the incident dated 06.06.2000. He deposed that he, Balraj Bhasin, Mrs. Jeevan Lata Gandhi, K.D. Gandhi were taken to DCP Udai Sahai and thereafter in the evening he learnt that accused C.M. Dutta had been booked under Section 354 IPC and he was suspended also.

8.2 PW12 Sushil Gulati also deposed that thereafter accused C.M. Dutta and his wife Sanyogita Dutt started threatening him physically and accused C.M. Dutta threatened that he would falsely implicate him in some case. His aforesaid part of the testimony clearly indicates that accused C.M. Dutta was harbouring a grudge against him.

8.3 PW9 Dr. K.D. Gandhi has also supported the aforesaid version of prosecution and has supported the stand of Sushil Gulati. He deposed that in the month of June 2000, he had received a call from Sushil Gulati who informed that one young man was molesting his wife and threatening her and he called PCR and found that said young man had run away. He also deposed that same night Insp. C.M. Dutta came in two cars with his sister Mrs. Prem Bala Vaid, his nephew Manoneet Vaid and K.K. Vaid. At that time, two police officials from chowki were sitting inside his residence and were recording his statement. Insp.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 16 C.M. Dutta and his associates starting threatening those police officials who then called up SHO, PS Rajouri Garden. SHO Mr. Dahiya came at the spot and hot words were exchanged between him and Insp. C.M. Dutta. On the next day, he along with his wife appeared before DCP who ordered for suspension of accused C.M. Dutta. He also deposed that same day Insp. C.M. Dutta followed him upto his residence and threatened him to take back his complaint. He also deposed that in July 2000 when he was going to his residence in his car, one bus stopped in front of his car and two persons alighted from such bus. They were Prabhjot Singh Gandhi @ Pinki and Mr. Lamba and they also threatened him and asked him to withdraw the FIR No. 579/2000 otherwise they would see him and his witnesses. He also deposed that after about two-three months, a counter-case was got registered against him by Insp. Chander Mohan Dutta and his wife Insp. Sanyogita Dutta and Insp. C.M. Dutta extended threats to him on telephone. He did admit in further examination that thereafter a compromise had taken place between C.M. Dutta and other and his wife connection with one criminal Writ Petition No. 1285/2000 but fact remains that his testimony clearly points that it was accused C.M. Dutta who had been threatening him. It also became evident that accused C.M. Dutta had molested his wife in his absence at his house. Interestingly, testimony of PW9 Dr. K.D. Gandhi is unrebutted and uncontroverted.

8.4 As is evident from the case of prosecution, accused had conspired together and they wanted to falsely implicate Sushil Gulati in a rape case and there was an attempt to show that such rape had been committed on 29.08.2000.

8.5 PW12 Sushil Gulati has further deposed that on 29.08.2000 at about 10.30 PM, he received a call and the caller had asked him whether number of his car was 0444 to which he replied in affirmative and also asked as to why those inquiries were being made about his car. He was then told by the caller that his car had caused an accident in Model Town area but Sushil Gulati told him that he had not gone to the area of Model Town. Caller asked him not to be clever and asked about the number of his car. Sushil Gulati then asked caller to give his name on which caller revealed his name as Balbir Singh. Sushil Gulati told him not to harass him in the night on which caller exclaimed what he could do (kaya FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 17 kar lega). He also deposed that thereafter two PCR vans came to his house and someone rang the door bell. When he came out, one person made inquiries from him whether 0444 was his car. He made a complaint to them that someone was harassing him in this regard also and then that person contacted someone in the Control Room and someone directed from the Control Room that he (Sushil Gulati) be detained with his car. After 5-7 minutes, one Balbir Singh reached there in his gypsy and asked him to sit in the gypsy. Two other persons were present with him. One was in civil clothes and other was Ct. Satish of PP Rajouri Garden. Despite objection of the persons of the locality, his car was taken into possession of the police. He was also taken to PS Rajouri Garden. En route, Balbir Singh had asked him as to where he was at about 12.00 noon that day. Sushil Gulati told that he was with DCP Taj Hasan of South-West District in PS Vasant Kunj then he was asked as to where he was from 3.00 PM to 4.00 PM, Sushil Gulati told that at about 3.00 PM he was in the bank and at about 3.30 PM Ct. Satish was with him.

8.6 Then he was taken to PS Subzi Mandi and he was handed over to Addl. SHO PS Subzi Mandi Hari Ram Malik and one SI Vineet Soni and then both started beating him. After 15-20 minutes Balbir Singh came there again and told something by gesture to them on which SI Vineet Soni uttered that he (Sushil Gulati) had got suspended Dutta and, therefore, he should enjoy the fruits of the same. Thereafter, he was removed to Bara Hindu Rao Hospital where they had shown him one lady to identify him. However, that lady did not identify him. He also deposed that he learnt that lady was Seema Kaur @ Rajni Gupta. He also deposed that Addl. SHO Hari Ram Malik told her that he was Sushil Gulati. He also deposed that Najma and Sonu @ Samir Ahmed were also present in the hospital and one more person also came there whose name he later on learnt as Narender (accused herein) and thereafter he was removed to PP Tis Hazari. He was also handcuffed and locked up. He also happened to see Seema Kaur and Balbir Kaur near the room of Addl. SHO Hari Ram Malik and they were talking in a jovial mood. SI Narender Singh also reached there and then he was taken to PS Rajouri Garden in his car no. DL-2CL-0444 which was in the name of his sister. He also deposed that Insp. Hoshiyar Singh, SHO PS Rajouri Garden also kicked him and directed him to sit on the ground in the corner claiming that "hum FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 18 chowdhariyon ka yeh haal karte hain".

8.7 SI Narender Singh (accused herein) also entered along with Balbir Kaur and Seema Kaur and they all started discussing about a Supreme Court ruling that bail could not be granted in a rape case. He was thereafter beaten up and his signatures were obtained forcibly on some blank papers. He also deposed that he was also shown one visiting card of his by Insp. Hari Ram Malik and Insp. Hoshiyar Singh. On the front side of visiting card, his name was written in hand besides maruti car no. 0444. He then deposed that on seeing that visiting card, he told Insp. Hari Ram that incomplete number of maruti was written as 0444 but when such visiting card was again shown to him at PS Rajouri Garden, it was containing full number of his maruti car. He was again beaten up by ASI Rajbir Singh and his signatures on some blank and some written papers were obtained and thereafter he was taken to DDU Hospital for medical examination. From there he was taken to RML Hospital where efforts were made to take semen sample but he could not ejaculate. Blood sample and pubic hair were collected and it was mentioned in the MLC that patient was not cooperating for semen sample.

8.8 His further deposition also indicates that Insp. Hoshiyar Singh had told Seema Kaur to see him properly so that she could identify him in TIP. His further deposition is regarding his production before the Court and his being taken on PC remand and about his detailed interrogation. He also deposed that on 11.09.2000 and 12.09.2000 Sonu @ Sameer had come to his ward and had threatened him next day and demanded Rs. 10-20 lacs from him if he wanted to come out of jail. Sonu also told him that he had come in the ward as per part of planning and also told him about the conspiracy which had been hatched by accused Hazi Mohd. and O.P. Wadhwa, advocate and said ladies and others. He also deposed that Sonu had even told him that he wanted to make full disclosure of the facts before the court.

8.9 He also deposed that when he contacted the officials of Crime Branch and told them about all the facts, he then learnt that DNA report had come which was negative but DNA of Babloo Mandal and one Khadus were reported to be FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 19 positive. I would supplement here that factually, however, such DNA report in- dicted accused Sameer @Sonu and PW Babloo Mandal.

8.10 Sushil Gulati then deposed that application was moved by IO for his discharge on 09.04.2001 and thereafter concerned court discharged him from the case. He then sent his representation to LG and Commissioner of Police for taking appropriate action against all those persons who were involved in the conspiracy. His such complaint to LG has been proved as Ex. PW12/A and copy of complaint sent to Commissioner of Police has been proved as Ex. PW12/B. 8.11 I would hasten to add here that this innocent man had to spend time behind the bars for no fault of his. He was eventually bailed out on 21.10.2000.

VERSION OF ALLEGED ACCOMPLICES 9.0 It's time to deal with the deposition of material witnesses whom defence has labelled as accomplices. According to defence, these witnesses are dancing to the tunes of police and their testimony has no worth as they are also alleged to be equal partners-in-crime.

9.1 Let me first deal with the revelations made by them. Whether these can be read and admitted in evidence would be considered later.

9.2 PW1 Rajni Gupta is the most crucial character in the present incident. Learned defence counsels have re-asserted that she was made witness in an unjustifiable and unlawful manner and without following the legal procedure. According to them, police invented a new procedure and in an innovative and astute manner, granted her pardon in self-styled manner and made her a prosecution witness. It has also been claimed that her testimony is nothing but tutored and, therefore, should not be read.

9.3 As noted above, I would examine this legal aspect little later.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 20 9.4 First, let me see as to what she has to offer in the witness box.

9.5 In her initial deposition, she mentioned that she had been working in a private company where she met one Lucky and developed friendly relation with him. She also claimed that she was handicapped by one leg and, therefore, Lucky had asked her whether she was having any certificate or not because such certificate could prove handy for obtaining various facilities like allotment of shop etc. Since she was not having any certificate, Lucky gave her address of an Advocate claiming that such advocate would help her in obtaining such certificate. She then met such advocate i.e. accused Haji Mohd. Altaf (accused No.1 herein). She went to his chamber at Tis Hazari Courts in January, 2000 who helped her in procuring such certificate also. Such certificate has been proved by her as Ex. PW1/A. 9.6 PW1 Rajni Gupta further deposed that after such certificate, she again met accused Haji Mohd. Altaf (A1) in order to procure his further help in obtaining facilities on the basis of such certificate. She visited him in June or July, 2001 and then accused Haji Mohd. Altaf told her that she could get a shop from DDA or a PCO booth on the basis of such certificate. In chamber of accused Haji Mohd. Altaf (A1), she also happened to meet accused Sonu (A4). She also developed friendly relation with accused Sonu. She visited chamber of accused Haji Mohd. Altaf on 5-6 occasions and also told him that she was not having sufficient means to get herself operated upon.

9.7 On this, accused Sonu (A4) asked her to play a game, in which, she could get 5-6 patties (one lac is generally referred as one patty) which they all would share amongst themselves. Accused Haji Mohd. Altaf (A1) was also present in the chamber at that time along with his two brothers and when PW1 Rajni Gupta asked about such game, Sonu showed her photo of one person stating that it was of Sushil Gulati. He also showed him photo of one Maruti car of white colour and told her that she had to play a game of rape. All these photographs were shown to her in chamber of accused Haji Mohd. Altaf (A1) and she was also told that because of the evidence given by Sushil Gulati, one police officer Mr. Dutta had been suspended and, therefore, Sushil Gulati was to be FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 21 falsely implicated in some case so that he may not depose against Sh. Dutta.

9.8 She further deposed that on 08/08/2000, accused Sonu (A4) took her to Rajouri Garden by bus to the house of Sushil Gulati and asked her to go inside the house so that she could identify him properly. She was also given one letter of one Savita Gupta and to meet Sushil Gulati with such reference. She accordingly met Sushil Gulati and handed over such letter to him and Sushil Gulati told her that he would help her as much as possible. Thereafter, she came out and accused Sonu (A4) showed her the office and car of Sushil Gulati so that she could properly identify those. She was also given a card of Sushil Gulati.

9.9 On 28/08/2000, she again visited the chamber of accused Haji Mohd. Altaf (A1), where she met Savita Gupta, Najma, Sonu and one another person. She also asked accused Sonu and Haji Mohd. Altaf to at least show her that person, for whom, she was to play a game and then they introduced her to accused C.M. Dutta, who was that other person present in the chamber at that time. During trial, she also correctly identified Sh. C.M. Dutta. Then accused Sonu and Haji Mohd. Altaf (A1) explained as to how the game was to be played. Accused Sonu told her that since there was an accusation of rape, she must have some physical evidence of rape and, therefore, she would have to make relationship with one of them. However, PW1 Rajni Gupta refused in this regard claiming that she would make her own arrangement for that. She also expressed her apprehension that in such case of rape game, the police would be also involved and her name would be tarnished. Then accused persons told her not to worry as police was also with them and that her name would not come in picture. She was also told not to disclose her real name and whenever required, she should tell her name as Seema Kaur. She was also told that she would be shown to have been thrown at a place from a running car and it would also be shown that rape had been committed by Sushil Gulati. She was also told that at the said place, where she was to be thrown, their own police officers would be keeping a watch and the medical examination would also be under their own supervision and direction. Savita Gupta was also told to help PW1 Rajni Gupta in getting some accommodation on rent. Savita Gupta then told that she would take her to the house of Balbir Kaur who would act as her aunt and she (Rajni Gupta) would FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 22 stay in said house of Balbir Kaur. She was also told to have sexual intercourse with someone in advance.

9.10 PW1 Rajni Gupta further deposed that thereafter, she rang-up Babloo, her friend, to meet her at Shadipur red light next day at 10.00 a.m. 9.11 She further deposed that on 29/08/2000, at about 10.00 a.m., Savita Gupta and Babloo were present at Shadipur red light and Savita Gupta then took them to house of Balbir Kaur. However, Balbir Kaur was not present in the house but her daughter-in-law was present. Savita Gupta then called-up accused Haji Mohd. Altaf (A1) and told that Balbir Kaur was not present in her house, upon which, accused Haji Mohd. Altaf asked them to take her to her own house. Then Savita Gupta took Rajni Gupta and Babloo to her own house situated in Baljeet Nagar. As per the plan of accused persons, Rajni Gupta had sexual intercourse with Babloo. Accused Sonu was also informed who then asked them to reach chamber of accused Haji Mohd. Altaf at 5.00 p.m. Thereafter, she reached the chamber of accused Haji Mohd. Altaf at 5.00 p.m. and Babloo was left at ISBT.

9.12 In the chamber of accused Haji Mohd. Altaf, she met Savita Gupta, Najma, accused Sonu, accused Inspector C.M. Dutta and also accused Inspector Narender Singh. She also correctly identified accused Narender Singh and claimed that at that time, both these police officials i.e. C.M. Dutta and Narender Singh were in police uniform.

9.13 PW1 Rajni Gupta further deposed that they all inquired from her whether she already had sexual intercourse with someone, upon which, she replied in affirmative. She was thereafter given a 'burfi' laced with some intoxicating substance which she ate besides having a cold drink. She also claimed that such intoxicating substance did not have any effect on her and then Najma had taken her to the first floor of the chamber where younger brother of accused Haji Mohd. Altaf was present besides accused Haji and Sonu. Accused Sonu then gave an injection syringe with needle to Najma which was filled with some liquid and Najma was told to inject the contents in her private parts. PW1 Rajni Gupta made inquiries about the aforesaid injection and then she was told by FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 23 Sonu that it was material for confirmation of rape allegation. Najma then poured in such contents in her private parts. Since Rajni Gupta was not under any intoxication, Sonu gave her some tobacco. After chewing the same, she started feeling giddiness. Thereafter, accused Narender Singh left the chamber and Savita Gupta and Najma were sent to a stand near St. Stephens Hospital red light for looking after her.

9.14 PW1 Rajni Gupta deposed that she then started having affect of intoxication and Sonu took her on his motorcycle and dropped her near St. Stephens Hospital where Najma and Savita Gupta were already present. She was feeling lot of giddiness and, therefore, she caught hold of a nearby pole and sat there. In the meantime, one police Constable came there from nearby police booth and asked her as to what had happened to her. She, however, could not reply. He then asked Savita Gupta and Najma whether they knew her but they refused. Thereafter, that Constable made her sit inside the police booth and made a call at 100 number. Thereafter, accused Narender Singh came there in a police vehicle and took her to a hospital in a police vehicle where she was medically examined. However, by that time, she had lost her consciousness. On regaining consciousness, she, as per plan, made statement to accused Narender Singh and also give him the card of Sushil Gulati which was earlier handed over to her by accused Sonu. After sometime, police officials brought Sushil Gulati to hospital. She identified him to be the same person who had raped her. She thus levelled allegation of rape against Sushil Gulati. PW1 Rajni Gupta further deposed that thereafter, doctors put a tube on her nostrils through which blood came out which was collected by her in a vial and same was put in the car of Sushil Gulati for creating evidence. She also deposed that blood was oozing out from some injuries of Sushil Gulati and said blood was also put upon her clothes so as to create further evidence.

9.15 After her discharge from the hospital, accused Narender Singh took her to PS Subzi Mandi where her detailed statement was recorded under the name of Seema Kaur. She was shown such statement in the witness box and she identified the same as Ex. PW1/B, on which, she signed as Seema Kaur at point A. FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 24 9.16 She further deposed that at the PS, Balbir Kaur, who was playing the role of her aunt, also came along with Sonu and accused Narender Singh asked for some strands of her hair. Balbir Kaur then pulled out her some hair. Thereafter, SI Narender Singh took her to PS Rajouri Garden and dropped her there claiming that case pertained to PS Rajouri Garden. From there, she was taken to Nari Niketan.

9.17 She further deposed that thereafter she was also brought to Court where her statement u/s 164 Cr.P.C. was recorded. Carbon copy of such statement has been proved as Mark PW1/PX1. Thereafter, her custody was given to Balbir Kaur and as per the plan, Balbir Kaur kept her confined in her house for three days. She also deposed that in the house of Balbir Kaur, number of persons used to visit as Balbir Kaur was indulged in wrong activities i.e. prostitution. Balbir Kaur even took money from some persons for Rajni Gupta as well.

9.18 She further deposed that after three or four days, crime branch police officials came over there and when inquiry was made by one lady police official Chander Prabha, she told her that she was kept over there in confinement and then she was taken to Azadpur Crime Branch. Initially, she stuck to her earlier false statement but when she saw Sushil Gulati being given beatings by police officials, she, out of her own consciousness, chose not to falsely implicate Sushil Gulati as he had not done anything wrong. She then narrated all the true facts to Chander Prabha and also disclosed that her true name was Rajni Gupta. She also stated that whatever she earlier stated was all false. She was again taken to Court on 11/09/2000 where her another statement u/s 164 Cr.P.C. was recorded. Such statement has been proved as Ex. PW1/C. Visiting card of Sushil Gulati and Bhasin was also shown to her which according to her was provided by accused Sonu. Such card has been proved as Ex. P1. On the reverse of the card words "M/Car White, DL2CL-0444, Sushil Gulati" were mentioned. On the other side of the card, word "Sushil Gulati" was mentioned besides words "Res against a phone number is mentioned". She also deposed that card had been seized vide memo Ex. PW1/D. She also deposed that when the card was given to her, only '0444' had been written on the card and initial part of registration number i.e. "DL-

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 25 2CL" were inserted subsequently. She also deposed that all such writing except "DL-2CL" was made by Sonu in the chamber of accused Haji Mohd. Altaf.

9.19 I have seen her exhaustive cross-examination. I have, however, failed to find out anything which may show that her deposition before the Court is not correct or that she is trying to falsely implicate the accused persons. Undoubtedly, in her cross-examination conducted by learned defence counsel for accused C.M. Dutta, she did admit that whatever she had done in the present case was out of greed but that would not make her a false and untrustworthy witness. She did admit that accused C.M. Dutta never met her after he was introduced to her in the chamber of accused Haji Mohd. Altaf till the time of her deposition in the Court. She was confronted with her previous statement on certain points which, according to me, are not much significant and important. In her cross- examination, she did admit that it was correct that after agreeing to play the present game, she, first of all, made a false statement before the police when she was lifted from near Hindu Rao Hospital. She also admitted that it was correct that she was never known by the name of Seema Kaur. She also claimed that she never had any sexual relation with any person prior to Babloo. She also claimed that even after such relation with Babloo, she never had further relation with any person except her husband. It was suggested to her that she was a habitual liar and that she had falsely implicated accused C.M. Dutta in the present case at the instance of Inspector Chander Prabha and that she had done the same out of greed. She, however, brushed aside such suggestions as incorrect.

9.20 When PW1 Rajni Gupta was cross-examined by learned defence counsel for accused Narender Singh, she was again confronted with her previous statement on many aspects. Fact, however, remains that every omission or contradiction cannot be said to be material and fatal. Only those omissions or contradictions, which go to the root of the matter, can be considered. Her deposition before the Court is very exhaustive and detailed. Though she had given all the relevant details when her statement was recorded by the police as well as by the Court u/s 164 Cr.P.C., fact remains that those statements were comparatively concise. In such a situation, even if some of such facts which she detailed in her deposition before the Court, are not found mentioned in the FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 26 previous statements made by her before the police and the Court during investigation, would not mean that she has come-up with improvement. The Court is required to reach to overall conclusion from the testimony of any such witness. Such conclusion can be drawn after careful scrutiny of examination-in-chief as well as cross-examination. When PW1 Rajni Gupta was confronted with her previous statement, she claimed that she did not remember whether she had revealed all these tiny details in her previous statement or not. It is quite understandable as well. She must have been under fear and stress. She, whether it was out of greed or otherwise, chose to oblige the accused party by agreeing to make a false statement against Sushil Gulati. Thereafter, when she learnt that Sushil Gulati had been trapped and was given beatings, she underwent a change of heart and spilled the beans. She had been brought to the Court twice for the purpose of recording of her statement u/s 164 Cr.P.C. and she naturally must be feeling a lot of pressure because of the present case.

9.21 I also cannot be oblivious of the fact that the incident is of the year 2000 and her deposition before the Court was recorded after 7-8 years and in such a situation, even otherwise, it is not expected that any person, placed in such an awful situation, would come-up with mathematical precision. She, however, categorically claimed in her cross-examination that she was removed to Hindu Rao Hospital from the spot by accused Narender Singh. All the accused persons have simply put across bald suggestions. She has out rightly denied all such suggestions and has rather stuck to her stand taken by her in examination- in-chief.

9.22 PW7 Najma has also supported the case of prosecution. She has deposed that from 1998 till 2003, she worked as Clerk in the chamber of Sh. Satya Prakash Khatri, Advocate, Chamber No. B-1, Tis Hazari Courts. She also deposed that on 25/08/2000, she met Sonu who took her to the chamber of accused Haji Mohd. Altaf. There, Sonu showed her a photograph and told that the photograph was of Sushil Gulati. He also gave her visiting card of Sushil Gulati and told her that she was to falsely implicate Sushil Gulati in a rape case. When asked why, Sonu told that Sushil Gulati had got a police officer suspended. She, however, told Sonu that she will not be able to do so but Sonu persuaded her to FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 27 do so and also told that she would be paid Rs. 15,000/- for such work. She became greedy and agreed to such plan. She was also given a paper slip by Sonu, on which, the plan of implicating Sushil Gulati had been mentioned. As per such plan, she was to show that she had tripped from the stairs in Tis Hazari Courts and then Sushil Gulati had lifted her up and thereafter, Sushil Gulati had given her that visiting card and asked her to come to his office on the pretext that a shop would be arranged for her and thereafter, she was to go to the office of Sushil Gulati where, as per plan, she was to show that she had been given intoxicating Pepsi, after which, she had been raped by the accused.

9.23 Such note was taken back by Sonu after it was read by Najma. Within ten minutes, one more lady Seema came to that chamber whom she had earlier also seen in the Court Complex. Najma, however, later refused to act as per the aforesaid plan. However, Seema agreed to do the same and asked for a sum of Rs. 40,000/- in lieu thereof from accused Haji Mohd. Altaf. Though Najma had refused to play the role of rape victim, Sonu still asked her to at least give an injection filled with semen in the private part of Seema and Sonu also that her that she would be given Rs. 15,000/-. Since she was poor, she agreed to such plan.

9.24 She has further corroborated about her meeting accused Haji Mohd. Altaf in his chamber where she also met Seema, Savita, Sonu and one more person who was probably brother of accused Haji Mohd. Altaf. She also claimed that one police official namely Narender was also present there. She deposed about giving intoxicating 'burfi' to Seema by Sonu. She also supported prosecution case regarding Seema going upstairs of the same chamber and her inserting material filled in a syringe in her private part. She also deposed that accused Haji Mohd. Altaf had also told Savita to telephone one Balbir Kaur and to tell her if police contacted her, then she should tell that Seema was living with them as tenant. She also deposed about the later part of the story regarding dropping of Seema near St. Stephens Hospital. She also deposed that one police official had reached the spot. She also told that as per plan, she telephoned accused Haji Mohd. Altaf that the task, as per plan, had been done and accused Haji then asked her to come back to his chamber. However, she was told by Savita to accompany Rajni Gupta to Hospital where police officials had taken her FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 28 already. There, they saw Seema shouting for calling of her aunt. She along with Savita went to Azad Market in a TSR but Balbir Kaur was not available at her house. Savita informed accordingly to accused Haji Mohd. Altaf and then accused Haji Mohd. Altaf asked them to return to Tis Hazari Courts. It was already 10.30 p.m. by that time. When they reached Tis Hazari Courts, they found the chamber of accused Haji Mohd. Altaf lying closed but they met Sonu, who had come there on his motorcycle. Sonu then took them to the house of Balbir Kaur. Police officials had already reached there and Sonu then told them that Balbir Kaur was annoyed as to why her address was given to the police without her permission and that she was demanding Rs. two lacs for the same. Sonu also told them that Balbir Kaur was also threatening that if Rs. Two lacs were not paid, she would rather implicate them and send them behind the bars. Najma was also told that accused Haji had agreed to pay her Rs. one lac. She also deposed that thereafter, there was a quarrel related to payment of said amount and accused Haji had assured Balbir Kaur that she would be given money after the plan was executed successfully. From the house of accused Hazi, they all went to Hospital. Najma also deposed that she was told that planning had been done on behalf of Inspector Dutta who was got suspended by Sushil Gulati.

9.25 She also deposed that as per plan, after rejection of bail application of Sushil Gulati, Sushil Gulati would have to pay money for entering into compromise with Seema and then such money would be distributed. She also deposed that she, later on, identified police official Narender Kumar. She also deposed that she had made a statement before the Court u/s 164 Cr.P.C. Her such statement has been proved as Ex. PW7/A. She also deposed that she had not received any money during the entire process. Since she was taking name of hospital as Indira Hospital, the prosecution, with the permission of the Court, put a leading question and then she clarified that Seema had been taken to Hindu Rao Hospital. She also volunteered that in fact, she was mentioning the name as Hindu Rao Hospital which has been recorded as Indira Hospital.

9.26 I have seen the cross-examination of PW7 Najma. In her cross- examination, she claimed that whatever was done by her was as per the instance of accused Sonu. She also claimed that no other accused had ever talked about FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 29 doing of anything. However, this does not mean that her entire examination-in- chief is liable to be discarded. I cannot be oblivious of the fact that it is a case of conspiracy and as far as the aspect related to hatching of conspiracy in the chamber of accused Haji Mohd. Altaf is concerned, the same does not stand dislodged in any manner whatsoever. There is no question or suggestion which may show that accused Haji Mohd. Altaf and accused Narender Singh were not present in the chamber at the time of hatching of such conspiracy when Rajni Gupta @ Seema Kaur had been given intoxicating 'burfi' and when she was asked to play role of rape victim.

9.27 PW2 Savita Gupta has also corroborated the stand taken by Seema Kaur and has supported the case of prosecution. She used to go to the chamber of her advocate namely Mohd. Irshad as she was facing some litigation in CAW Cell. Accused Haji happens to be brother of her such counsel. She deposed that she had gone to the chamber of her such Advocate on 28/08/2000 where she saw accused Haji Mohd. as well as one handicapped girl who revealed her name as Seema or Komal. Accused SI Narender Singh had also come there in uniform. She claimed that her own advocate was not present in the chamber at that time and accused Haji Mohd. asked her to help said handicapped girl in getting some PCO booth etc., upon which, she asked for her handicapped certificate. Accused Hazi gave her copy of such certificate. Thereafter, Irshad and accused Haji told her that they wanted some room on rent and then she along with Irshad had gone to Baljeet Nagar i.e. house of one Balbir Kaur.

9.28 She further deposed that on 29/08/2000, said handicapped girl met her at Shadipur red light. She was accompanied by one boy whom she claimed to be her brother. She then asked her to show her the house of Balbir Kaur. She was then taken to house of Balbir Kaur but Balbir Kaur was not there and then she asked her to take them to her own house. She accordingly, on humanitarian ground, took her to her house and allowed her to take rest in her such house. She also claimed that same evening, at 7.30 p.m., when she went to the chamber of accused Haji, accused Haji was present there along with his other brother. She also saw Seema, one more lady Najma and one boy Sonu in the chamber. Accused SI Narender Singh also came there for some time and after talking to FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 30 accused Haji, he left. In the meanwhile, Sonu brought one piece of 'burfi' and gave the same to Seema. When Savita herself demanded for 'burfi', she was refused claiming that it was meant for Seema only. Thereafter, accused Haji, Najma, Sonu and Seema all went to first floor. She deposed that thereafter, accused Sonu took Seema on his bike and she along with Najma reached near St. Stephens Hospital near police booth. She deposed that she saw large number of persons gathered over there who were saying that someone had thrown a girl from the bike. Her further deposition indicates that she wanted to tell the police official, who was present at the spot, that she had seen that very girl in the chamber of accused Haji but no attention was given by police to her such utterances. One police gypsy came there, in which, accused SI Narender Singh was present and he removed said girl Seema. From there, she along with Najma and Sonu had gone to the house of Balbir Kaur. She also deposed that there was heated discussion between Balbir Kaur on one side and Najma and Sonu on the other side. She also overheard such conversation, in which, Balbir Kaur was asking them to give a sum of Rs. 2 lacs failing which, she would not go to the hospital to see Seema Kaur. Balbir Kaur even asked Sonu to talk to accused Haji as well. She also deposed that thereafter, they met accused Haji as well who gave Rs. 500/- to Balbir Kaur. Thereafter, she returned to her house while others left for the hospital.

9.29 PW2 Savita Gupta further deposed that on 01/09/2000, she read in newspaper about the gang rape and then she talked to Balbir Kaur and then she went to chamber of accused Haji where she again saw Sonu and Najma. They all were talking that they had played a very good game and had taken revenge of Inspector Dutta by falsely implicating Sushil Gulati. Her further deposition indicates that she was furious with such conspiracy. She abused all three of them and asked them as to why they had involved her in the same. She also deposed that next day, accused Sonu and Balbir Kaur came to her house at 1.30 a.m. and asked her to accompany them in an auto as there was threat to her life. They then took her and her son to the house of accused Haji where she was threatened not to reveal anything to anyone, else she would be killed. She was allowed to go back to her house next morning only.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 31 9.30 She further deposed that on 04/09/2000, when she had gone to attend her case, she met her advocate Irshad who was followed by accused Haji and then they took her to their chamber where Sonu was present. They all gave her a letter and asked her to deliver it to Seema Kaur, who was, by that time, present in the house of Balbir Kaur. She accordingly took that letter and gave the same to Balbir Kaur and also told her that she was under threat. Later on, Balbir Kaur told her that she had handed over such letter to crime branch. However, Savita Gupta was not aware what were the contents of that letter as it was in a closed envelope. She also deposed that her statement u/s 164 Cr.P.C. was also recorded. She was shown her statement and she admitted the same as Ex. PW2/A. 9.31 I have seen her cross-examination. Again except for few confrontations with her previous statement, nothing material has been elicited from her mouth which may indicate that her testimony is false or artificial.

9.32 PW6 Balbir Kaur has started her deposition from the point of her receiving a call from accused Narender Singh. She deposed that on 29/08/2000, at about 10.15 p.m., she received a call from him who told her that one girl Seema had been raped. She then told him that her elder daughter Seema was alright, upon which, Narender Singh asked her to reach hospital at Subzi Mandi where Seema was admitted. She, however, did not believe the information given by accused Narender Singh and disconnected the phone. After 5-6 minutes, said person again called her up and asked her as to why she had not come. She again told that she would not come as her daughter Seema was safe and was in her house. After about 15-20 minutes, accused Narender Singh came to her house along with Savita Gupta, Najma and Sonu. She deposed that since on 28/08/2000, she had gone to house of her daughter Kulvinder Kaur at Chander Vihar, she made inquiries from her daughter-in-law Prem Kaur whether someone had come to their house, on which, she told that in the morning of 29/08/2000, said Savita Gupta had come along with one handicapped lady and a boy and when she told that she (Balbir Kaur) was not present in the house, they all left.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 32 9.33 She also deposed about the exchange of hot words between her and Savita Gupta as she was furious as to why address of her house was used. She claimed that accused Narender Singh was in police uniform and was on a police motorcycle and she questioned all of them as to why her address had been given for that lady who was not even residing at her house. They all, however, told her that such lady was calling her but she told them when she had never met her, then how she could know her and even call her. Thereafter, accused Sonu rang up accused Haji and told him that aunt (Balbir Kaur) was not cooperating. She further deposed that she knew accused Haji as well as she had gone to his chamber along with Savita Gupta in connection with some accident case. She also correctly identified accused Haji as well as accused Narender during trial.

9.34 She further deposed that she overheard Sonu talking on the phone that if she (Balbir Kaur) was not cooperating, then they should contact another aunt of Pahar Ganj. Thereafter, accused Haji talked to her (Babir Kaur) on telephone and told her that the address was given mistakenly but since there was no one to look-after said lady, so, she was requested to help that lady. She, however, could sense that something was wrong but still she agreed to accompany them. She then went to Hindu Rao Hospital. There, that lady, whom otherwise she did not know, met her in a very intimate manner by putting her hands around her neck and started crying. Thereafter, that lady was brought to PS Subzi Mandi and she (Balbir Kaur) was asked to stay there as no lady police official was available in the night. Next morning, Seema was taken to PS Rajouri Garden by SI Narender Singh and other police officials in a police vehicle. However, before that, at PS Subzi Mandi, some hair of Seema were plucked from her head and accused Narender was saying that these would be put in the car.

9.35 I have seen her further deposition and it is very much evident that she has supported the case of prosecution and has raised a clear cut accusing finger towards all the accused including accused Haji Mohd. and Narender Singh. She has also deposed regarding handing over of one letter to Savita Gupta which she was asked to give to Seema Kaur and then to destroy. Such letter Ex.PX2 has been identified by PW6 Balbir Kaur as well. Such letter was handed over by her to the crime branch official which was seized vide memo Ex. PW6/A. As per said FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 33 letter, which is admittedly in the handwriting of accused Sonu, Sonu wanted to inform Seema Kaur @Rajni about certain precautions which she was required to take. PW6 Balbir Kaur also deposed about the threats given to her by Sonu and she also revealed that she had rather caught hold of Sonu and had given him two slaps, on which, Sonu rushed away from her house. She deposed that thereafter, they handed over Seema Kaur to crime staff officials. She also deposed that she was called by them 2-3 days thereafter where her statement was recorded. She also deposed that she had given statement Ex.PW6/B before the Magistrate also. She deposed that accused Narender Singh regularly used to come to her house and because of the incident in question, she got defamed in the locality.

9.36 Her examination-in-chief was recorded on 02/07/2008. Her cross- examination was deferred as counsels were not available on that day. Thereafter, when the matter was taken up on 03/02/2009, it was reported by the IO that PW6 Balbir Kaur had already died and her death certificate was also filed along with such report. Therefore, there is no cross-examination. However, admittedly, defence had one clear opportunity to cross-examine her on 02/07/2008 and such opportunity went begging as defence counsels were not available. Be that as it may, such aspect has already been considered above and it cannot be said that the testimony of PW6 Balbir Kaur is liable to be effaced altogether.

INVESTIGATIONAL ASPECTS 10.0 Investigational aspects related to initial investigation which had been conducted by A-2 Narender Singh are not in much dispute.

10.1 Reference in this regard be made to testimony of PW33 Insp. Rajvir Singh. His testimony is more or less uncontroverted. He deposed that on 30.08.2000, investigation of the present case had been marked to him and he re- ceived various documents including copy of FIR, original rukka, site plan, pointing out, identification memo, seizure memo of visiting card etc. These documents had been prepared by accused/SI Narender Singh of PS Subzi Mandi. He has also deposed about seizing of car vide memo Ex. PW11/B. He also informed FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 34 NGO about the prosecutrix. The vehicle in question was got inspected at the PS and HC Budh Ram collected some hair strands lying on the backseat of the car. PW33 Insp. Rajvir Singh has also proved various seizure memos. He had pre- pared site plan Ex. PW33/C at the instance of complainant and has also deposed about the arrest of Sushil Gulati and preparation of his arrest memo and personal search memo. He has also claimed that he got Sushil Gulati medically examined where doctor had handed over sealed pullandas containing his blood sample, un- derwear, pubic hair and sample seal. He also moved application for recording of statement of prosecutrix under Section 164 Cr.P.C. He deposed that he obtained custody remand of Sushil Gulati on 05.09.2000. However, thereafter, case was transferred to Crime Branch and he handed over all the documents to the con- cerned Crime Branch official.

10.2 Reference may be also made to the testimony of various other police officials who were part of earlier investigation.

10.3 PW10 ASI Satbir Singh was posted as Duty Officer in PS Subzi Mandi on the intervening night of 29/08/2000 and 30/08/2000 and he has deposed that on the basis of rukka sent by SI Narender through Ct Pawan Kumar, he had registered zero FIR and gave copy of FIR and rukka to SI Narender who had also reached the PS in the meanwhile along with the complainant, from where, he (SI Narender) left for PS Rajouri Garden along with complainant and Ct Pawan Kumar. Such FIR has been proved as Ex. PW10/A. Right here, I would also like to make reference to the testimony of PW24 SI Kamal and PW13 SI Balwan.

10.4 PW13 SI Balwan was posted in control room of North District at the relevant hour and he was informed by SI Narender Singh through wireless regarding presence of one lady at Church Road, St. Stephens Hospital who wanted PCR van to reach there. SI Balwan Singh communicated such message to the concerned authorities and also informed SHO PS Subzi Mandi to reach the spot and sent PCR at the spot. Concerned PCR official then informed him that a lady namely Seema Kaur had been taken away by three persons in a car and that she had been raped and such lady had been handed over to Duty Ct Ramesh Chand at Hindu Rao Hospital. His testimony is unrebutted though fact remains FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 35 that the relevant entry made in the concerned logbook was destroyed as per rules in terms of order Ex. PW13/B. 10.5 PW24 SI Kamal Singh was posted in PCR, North District and was on duty as in-charge of PCR van Sugar-25 in the area of Baraf khana Chowk and on receipt of such information regarding presence of one girl in unconscious/injured condition at Church Road, behind St. Stephens Hospital and that she was to be taken to hospital, he along with his staff reached in PCR van at the spot at 8.45 p.m. There, he met SI Narender Singh (accused herein). One girl, whose name was later ascertained as Seema Kaur, was also lying in semi-unconscious condition at a patri (pavement) near police booth and as per the directions of SI Narender Singh, he took that girl to Hindu Rao Hospital.

10.6 Reference be also made to the deposition of Duty Constable who remained posted at Hindu Rao Hospital on different dates.

10.7 PW17 Ct Ramesh Chand was posted as Duty Constable at the relevant time on 29/08/2000 and he has deposed that PCR van brought Seema Kaur in the hospital vide MLC No. 9962/2000. He has also deposed about her medical examination and also testified that doctor had handed over sealed pullandas which he eventually handed over to SI Rajbir Singh vide memo Ex. PW17/A. He has also deposed about handing over of exhibits on 05/09/2000 and 07/09/2000. His testimony is unrebutted.

10.8 PW18 HC Vinod Kumar was posted as Duty Constable in same hospital on 03/02/2001. By that time, crime branch had taken over the investigation of the matter and he has deposed about the handing over of blood sample of accused Samir Ahmad @ Sonu to IO Inspector Prithvi Singh. Seizure memo in this regard has been proved as Ex. PW18/A. PW30 HC Roop Singh was posted as Duty Constable on 04/02/2001 at same hospital and he has deposed that one suspect Mohd. Khudush was brought to hospital for medical examination by IO Inspector Prithvi Singh and doctor had taken his sample. Seizure memo in this regard has been proved as Ex. PW30/A. FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 36 10.9 PW15 HC Raghu Nath has deposed about DD entry related to departure of SI Narender Singh. Such entry has been proved as Ex.PW15/A. Suspension order of accused C.M. Dutta has been proved by PW14 SI Sohan Dass and as per order Ex. PW14/A passed by Sh. Vivek Gogia, the then Addl. DCP, South District, C.M. Dutta was placed under suspension with immediate effect vide order dated 10/06/2000. PW21 ASI Rohtash remained posted as Malkhana in-charge and he has proved various entries regarding deposit of exhibits/case property with him from time to time. There is no challenge to his deposition either. PW11 SI Sumila was posted as Duty Officer on 30/08/2000 at PS Rajouri Garden and she has deposed that SI Narender came along with one girl Seema and also produced copy of Zero FIR and such documents besides one Maruti car and she recorded FIR. Such FIR has been proved by her as Ex. PW11/A. She has also deposed about seizure of Maruti Car. Seizure memo in this regard has been proved as Ex. PW11/B. She also deposed that the prosecutrix was detained vide memo Ex. PW11/C. She also deposed about taking in possession of visiting card (Ex. P1) and she has also identified accused SI Narender Singh correctly. Her testimony is also unrebutted.

10.10 PW34 ACP Ranbir Singh was posted as Inspector, Special Team, Crime Branch, Adarsh Nagar, Delhi on 06.09.2000 and he has deposed about the investigation conducted by him in the present case. He had taken over the file from Insp. V.P.S. Rana. After the transfer of Insp. V.P.S. Rana, investigation of the present case had been entrusted to him and he went to Tis Hazari Court to get the statement of PW2 Savita Gupta recorded u/s 164 Cr.P.C. in the Court of Sh. Rakesh Syal, the then learned MM. Since Sh. Rakesh Sayal was on leave that day, PW34 ACP Ranbir Singh took Smt. Savita Gupta to the Court of Sh. R.K. Sharma the then learned MM for getting the date fixed for recording her statement u/s 164 Cr.P.C., where she saw accused Haji Mohd. and identified him as the main conspirator and PW34 ACP Ranbir Singh recorded her supplementary statement u/s 161 Cr.P.C. in this regard. Sh. R.K. Sharma then learned MM fixed 27.09.2000 for recording of her statement under Section 164 Cr.P.C.

10.11 PW34 ACP Ranbir Singh has further deposed that on 27.09.2000, he went to the Court of Sh. Rakesh Syal, the then ld. MM after 2.00 PM and since FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 37 Sh. Rakesh Sayal had gone for evidence, PW2 Savita Gupta was produced before Sh. Sanantan Prasad, the then Ld. MM who fixed the date for recording of her statement on 29.09.2000. He further deposed on 29.09.2000, her statement u/s 164 Cr.P.C. was recorded by Sh. Rakesh Syal, the then learned MM. PW34 ACP Ranbir Singh has further deposed that on 27.09.2000, he came to know that accused Haji Mohd. Altaf and accused Samir Ahmad @ Sonu son of Noorudin Advocate, resident of Khirkhi Tafzul Hussain, Kala Mahal, Delhi were the main conspirators. He deposed that on 28.09.2000, he took permission from Sh. T.S. Kashyap, the then learned ACMM to interrogate accused Samir Ahmad @ Sonu who was in judicial custody in case of PS Kotwali and on 03.10.2000, he along with Inspector Prithvi Singh and ASI Mahipal Singh went to Central Jail No. 1, Tihar, Delhi and interrogated accused Sameer Ahmad @ Sonu. PW34 ACP Ranbir Singh also took his specimen signatures in English and Hindi and specimen handwriting in Hindi marked S1 to S6 and on 05.10.2000, said specimen handwriting/signatures along with the questioned signatures were sent to FSL Malviya Nagar through Sh. Mahipal Singh ASI. PW34 ACP Rajbir Singh has deposed that as per instructions of handwriting expert, he again went to Central Jail Tihar and took specimen handwriting in English and Hindi on six pages of accused Samir Ahmad @ Sonu. Specimen signatures and handwriting of accused Samir Ahmad @ Sonu are collectively Ex. PW16/C (S1 to S12). Specimen handwritings were taken on 06/10/2000 and sent to FSL again on 11/10/2000 through ASI Mahipal Singh.

10.12 PW34 ACP Ranbir Singh further deposed that on 07.10.2000, he received material, namely, three disposable syringes along with needle and three vials, one instruction chart how to obtain blood for DNA finger printing, identification form from CDFD Hyderabad for collecting blood sample. He further deposed that he interrogated accused Haji Mohd Altaf. On 10.10.2000, Sushil Gulati was produced in the court of Sh. T.S. Kashyap, the then learned ACMM and he (Sushil Gulati) gave his willingness to give his blood for DNA finger printing and on 19.10.2000, accused Samir Ahmad @ Sonu and Sushil Gulati were produced before the court Sh. T.S. Kashyap then learned ACMM and they gave their consent for obtaining their blood for DNA finger printing. He deposed that he then took both of them to DDU hospital for taking their blood for DNA FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 38 finger printing and produced two disposable syringes, two vials, two identification forms, one chart containing instructions how to take blood for DNA finger printing and one flask containing ice before Dr. S.C. Gandhi who, in the presence of Dr. Bhawna Saxena, Dr. V.K. Sharma and Dr. Aruna Singh, took their sample blood. PW34 ACP Ranbir also deposed that he had taken four photographs of each of accused Sameer Ahmad @ Sonu and Sushil Gulati with the permission of Court and such photographs were taken by his digital camera and two of them were used and the remaining two were destroyed in the presence of Court. PW34 ACP Ranbir Singh also deposed that he had also produced their photographs before the Court and affixed them on the identification form and stamped and signed them on the identification form. He deposed that he had taken photographs accused both Samir Ahmad @ Sonu and Sushil Gulati and the same were also produced before the doctor and both were identified by him. He deposed that doctor sealed both vials with the seal of "CMO DDU Hosp. & Delhi" and put both the vials in the flask containing ice and also sealed the flask with the same seal and he took the same into possession through seizure memo Ex. PW8/E. He further deposed that on 19.10.2000, the exhibits were sent to CDFD Hyderabad through ASI Mahipal Singh. He also deposed that on 21.10.2000, he received an application of accused Samir Ahmad @ Sonu from the Court of Sh. T.S. Kashyap then learned ACMM for his willingness to get his statement recorded u/s 164 Cr.P.C. but he declined the same on 03.11.2000 before Sh. Rakesh Syal. On 22.10.2000, ASI Mahipal Singh came back from CDFD Hyderabad and he recorded his statement about deposit of exhibits. I have seen the cross- examination of PW34 ACP Ranbir Singh and admittedly, he deposed that when he had gone through the entire file, he noticed that statements of some of the witnesses were inculpatory in nature and that they had also shown themselves as conspirator but he never recommended their arrest in the present case.

10.13 I would also like to make reference to the visiting card which was seized during the investigation. Its seizure memo has been proved as Ex. PW1/D and such visiting card had been allegedly handed over to accused Narender Singh by Seema Kaur. Seema Kaur @ Rajni Gupta has already elaborated about the various facets related to such visiting card. I have seen the printed material as well as material written in hand on the front and back side of visiting card.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 39 Such visiting card was examined by handwriting expert and reference in this regard be made to the testimony of PW16 Sh. Harsh Vardhan, Assistant Director (Documents), FSL. His report has been proved as Ex. PW16/A. Along with questioned handwriting appearing on such visiting card, which are referred as Q5, Q6 & Q6/1, and other questioned handwriting contained in letter written by accused Sonu were also sent to FSL. Such letter was addressed to Seema and was allegedly written by Sameer @ Sonu. For necessary comparison, specimen handwriting of accused Sameer Ahmad @ Sonu was also sent which was marked as S1 to S12 and after forensic examination, expert came to the conclusion that the person who had written writing Mark S1 to S12 had also written questioned writing Mark Q1, Q2 & Q5. Q5 is the portion appearing in front of visiting card. Words 'Sushil Gulati' are mentioned therein. As far as Q1 & Q2 are concerned, these are found contained in the letter which had been sent by accused Sonu to Seema Kaur when she was residing with Balbir Kaur after the incident in question. The contents of such letter also show the complicity of accused Sonu. Such letter had been seized by the police from Balbir Kaur vide memo Ex. PW6/A and Seema Kaur had also been directed to destroy the letter after reading its contents. However, letter was eventually handed over to the police and as per the expert report, this letter was also written by accused Sameer Ahmad @ Sonu.

10.14 There is one more forensic report related to DNA Fingerprinting. PW32 SI Ram Avtar had joined the investigation of the present case with Insp. Prithvi Singh and on 02.02.2001, he was handed over the investigation. He went through the file. He also deposed that he had received the report of DNA test in respect of accused Sameer Ahmad, Sushil Gulati and Babloo Mandal and since DNA was not against Sushil Gulati, he sought his discharge. Thereafter, accused C.M. Dutta, SI Narender Singh and Hazi Altaf Mohd. were arrested on the basis of evidence available on record which also included DNA report. Such DNA report has been proved as Mark PW32/B. It is forwarded by the office of Director, Centre for DNA Fingerprinting & Diagnostics, Ministry of Science & Technology, Government of India, Hyderabad. Blood sample of Sushil Gulati, Sameer Ahmad @ Sonu, Babloo Mandal had been sent along with dupatta, underwear, salwar of prosecutrix and two vaginal swab slides and after STR analysis, Dr. G.V. Rao, the concerned Scientist concluded that source of exhibits F & G (Sameer Ahmad @ FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 40 Sonu and Babloo Mandal) respectively were the individuals whose semen were present on the source of exhibit B (underwear) and he also excluded the source of exhibit E of Mr. Sushil Gulati. Thus, his report clearly indicates that semen stains appearing on the underwear of Seema Kaur @ Rajni Gupta were of accused Sameer Ahmad @ Sonu and Babloo Mandal and certainly not of Sushil Gulati.

10.15 Undoubtedly, concerned expert has not graced the witness box but nonetheless, when this report was marked and tendered in evidence, no objection was raised regarding marking or exhibition of the document. Moreover, even independent of such report, the testimony of Seema Kaur is fully inspiring and convincing and she has categorically claimed that Sushil Gulati was innocent and that she fell in a trap out of some greed.

10.16 Gastric lavage of Seema Kaur also indicated presence of oxazepam and the report in this regard has been given by Dr. Madhulika Sharma, Sr. Scientific Officer (Chemistry). Such report dated 11.09.2000 is per se admissible in evidence under Section 293 Cr.P.C.

10.17 I have seen the testimony of various other officials of crime branch who remained associated with the investigation. Reference be made to the testimony of PW23 HC Lalit, PW25 retired SI Mahipal Singh, PW26 HC Rajbir Singh, PW27 Ct Sanjay, PW28 HC Rishi Raj, PW29 ASI Ram Karan and PW32 retired SI Ram Avatar.

10.18 PW23 HC Lalit was posted at PP MIG Flats, PS Rajouri Garden on 30/08/2000 and he has deposed that he was present at PS Rajouri Garden with SI Rajbir Singh, SI Satish and Ct Amar Pal and investigation of this case was handed over to SI Rajbir Singh as per the orders of SHO and Duty Officer ASI Sumedha handed over the copy of FIR and other documents to him. His examination-in-chief was deferred and thereafter he did not turn up to complete his testimony.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 41 10.19 PW25 SI Mahipal Singh (now retired) has deposed that on 03/10/2000, he was posted as ASI in Special Team, Crime Branch, Adarsh Nagar and that day, he joined investigation with IO Inspector Ranbir Singh and Inspector Prithvi Singh also accompanied them to Central Jail Tihar, where specimen signatures of accused Sameer Ahmad @ Sonu were taken on two sheets in Hindi and English language which were marked as S1 and S2 and specimen handwriting was taken on four pages which were marked as S3 to S6 and he signed the same as a witness. He has further deposed that on 06/10/2000, he along with Inspector Prithvi Singh again joined investigation with IO Inspector Ranbir Singh and they reached Central Jail No.1 where again specimen handwriting of accused Sameer @ Sonu was taken on six pages in Hindi and English language and were given serial No. S7 to S12. All such writings have been proved as Ex. PW16/C. PW25 SI Mahipal Singh has further deposed that on 11/10/2000, specimen handwritings Mark S7 to S12 were kept in an envelope and sealed with the seal of "MP" and was given serial No. 3 and same was handed over to him for depositing at FSL Malviya Nagar. He accordingly deposited the same with concerned dealing Assistant and obtained acknowledgment which along with copy of RC was affixed in the RC book.

10.20 PW25 SI Mahipal has further deposed that on 19/10/2000, IO Inspector Ranbir Singh handed over to him CDFD form containing forwarding note, two identification forms of Sushil Gulati and of Samir Ahmad @ Sonu containing their attested photographs and two sample seals vide memo No. 7903 dated 19/10/2000 of ACP Special Branch Crime Team, Delhi. He has further deposed that thereafter, as per directions of IO, he reached PS Rajouri Garden and collected two sealed parcels along with one Vacuum Flask from MHC(M) vide RC No. 242/21/2000 for depositing at DNA, Finger Printing, Hyderabad. He has further deposed that on 20/10/2000, he deposited the said exhibits at the Office of DNA Finger Printing CDFD, Hyderabad and obtained acknowledgement receipt from the concerned dealing assistant and on 22/10/200, he handed over the copy of RC and copy of receipt to MHC(M) and original receipt to IO.

10.21 PW26 HC Rajbir Singh deposed that on 01.02.2001, he was posted with Special Team, Crime Branch, Adarsh Nagar and that day, he collected two FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 42 sealed pullandas having seal of RK FSL along with sample seal and one closed envelope from FSL Malviya Nagar and deposited the same in malkhana and handed over the closed envelope containing FSL result to IO. PW27 Ct. Sanjay has deposed that on 23.03.2001, he took photocopy of logbook of District Net dated 29.08.2000 for the period 20:28 PM to 21.35 PM and handed over the same to IO who seized the same vide seizure memo Ex. PW27/A. PW28 HC Rishi Raj was posted as Ct in Special Team, Crime Branch, Adarsh Nagar. He has deposed that on 05.02.2001, as per the directions of IO Inspector Prithvi Singh, he took two sealed pullandas along with sample seal and FSL form from malkhana of PS Rajouri Garden vide RC No. 335/21/2001 and deposited the same with FSL Malviya Nagar and after obtaining receipt, he handed over the same to MHC(M). PW29 ASI Ram Karan has deposed that on 03/02/2001, he joined investigation of this case with Inspector Prithvi Singh and accused Samir Ahmad @ Sonu took them to a workshop near Shastri Park and owner of said workshop Kamal Kishore had produced one motorcycle make Rajdoot bearing No. UAS-6063 of red colour at the instance of accused Samir Ahmad @ Sonu which was seized vide memo Ex. PW29/A. He has further deposed that thereafter, accused Samir Ahmad @ Sonu led them to Khanna Market, Tis Hazari and pointed out Supreme Medico Chemist Shop No. 87 from where he had purchased empty syringes. Pointing out memo in this regard is Ex. PW29/B. Thereafter, accused was taken to Hindu Rao Hospital for his medical examination and duty Constable Vinod Kumar handed over blood sample of accused along with sample seal to IO which was seized vide memo Ex.PW18/A. 10.22 PW32 SI Ram Avtar was posted in Anti-Homicide Section, Crime Branch, Adarsh Nagar on 02/02/2001. He has deposed that he joined investigation of this case with Inspector Prithvi Singh and in his presence, disclosure statement of accused Samir Ahmed @ Sonu (since deceased) Mark PW32/A was recorded by the IO. He has further deposed that on 09/02/2001, the investigation of the case was handed over to him and he received the report of DNA test of accused Sameer Ahmed (since expired), PW12 Sushil Gulati and Babloo Mandal (since expired) through post from Hyderabad. Such report is Mark PW32/B. He also received FSL report from FSL, Malviya Nagar. He got accused Sushil Gulati discharged as DNA report was not against him and was against FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 43 accused Sameer Ahmed @ Babloo Mandal. Thereafter, accused C.M. Dutta (since expired), SI Narender Singh and Haji Altaf were arrested on the basis of evidence available on record. He has further deposed that on 17/03/2001, he arrested accused Haji Mohd. Altaf and prepared his personal search memo Ex.PW32/C. Personal search memo of accused Narender Singh dated 19/03/2001 is Ex. PW32/D. Accused C.M. Dutta was arrested pursuant to his surrender before the Court.

10.23 It will be also important to mention that PW32 SI Ram Avtar was also questioned by the defence and he did admit that various public witnesses, whose statements had been got recorded u/s 164 Cr.P.C., had admitted their involvement about their participation in the present matter. He also deposed that he did not take any step for arresting them. However, he also volunteered that all such persons were rather made instruments.

10.24 Surely, during investigation, police had collected certain call details record. Reference in this regard be made to the testimony of PW4 Sh. R.K. Chopra from MTNL and PW5 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. However, prosecution could not elaborate and elucidate as to how these calls were relevant in the present context. Undoubtedly, it would have been touch better if certain other witnesses had also graced the witness box. Nonetheless, it is very much perceptible that the story of false implication could have been proved by the alleged accomplices only and they all have graced the witness box and have clearly indicted all the accused persons. According to the defence counsels, hair strands of the prosecutrix were recovered from the car of the accused. Defence counsels have again contended that the initial narration of Seema Kaur was the correct one and she has changed her stand under some influence or due to some unknown oblique reason. However, I do not find any merit in such contention. The plot and scheme stands revealed and exposed in view of the testimony of Rajni Gupta, Balbir Kaur, Savita Gupta and Najma besides the deposition of Sushil Gulati. Conspiracy stands established and even if some aspects were not brought on record in the desired manner would not mean that the entire case of the prosecution is liable to be discarded. Even otherwise, no case can be proved with complete mathematical precision and FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 44 court is not required to give undue weightage and unwarranted importance to minor inconsistencies.

WHETHER TESTIMONY OF ALLEGED ACCOMPLICES CAN BE ACCEPTED 11.0 In connection with worth of testimony of approver, two sections of Indian Evidence Act are very important. These are as under:-

"133. Accomplice .- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."

Illustration (b) to Section 114 "(b) The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars."

11.1 Dealing with the scope and ambit of the above-noted two provisions, Apex Court, in Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 held that both the sections were part of one subject and have to be considered together. It further held:-

"The combined effect of Sections 133 and Illustration (b) to Section 114, may be stated as follows:

According to the former, which is a Rule of law, an accomplice is competent to give evidence and according to the latter, which is a Rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."

11.2 Thus, an accomplice is undoubtedly a competent witness under the Indian Evidence Act. When police is unable to crack any mystery, such provision related to "tender of pardon" can even be resorted to by them to bring home the guilt of any such perpetrator. There can be, however, no doubt that the very fact that any such accomplice, who is willing to reveal the truth, has participated in the commission of the offence introduces a sort of blemish in his evidence and courts are hesitant to act on such evidence unless it is corroborated in material FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 45 particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice, the approver is a reliable witness or not. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. Reference in this regard be made to Sarwan Singh vs. State of Punjab AIR 1957 SC 637.

11.3 In Saravanabhavan and Govindaswamy v. State of Madras, AIR 1966 SC 1273, it has been observed that the antecedents of the approver do not really make him "either a better or worse witness" but his evidence can only be accepted on its own merit and with sufficient corroboration.

11.4 Reference be also made to Narayan Chetanram Chaudhary v. State of Maharashtra (2000) 8 SCC 457 wherein it has been held that for corroborative evidence, the court must look at the broad spectrum of the approver's version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases.

11.5 Such corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence, however, must be independent and not vague or unreliable.

11.6 The question is, however, little different and complex. If any such person is made witness without formal tender of pardon then what should be the FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 46 evidentiary value of his testimony? Should it be treated at par with that of approver? Should it be effaced altogether?

11.7 Here comes the two terms i.e. approver and accomplice. These look quite overlapping and interchangeable ones. Importantly, said two sections use word 'accomplice' and not 'approver'.

11.8 Any person given immunity under sec 306 or sec 307 Cr.P.C. is an approver. He gets official immunity though at the same time, he is under legal obligation to make complete disclosure during trial or else be ready to be relegated to the status of accused. Any other partner in crime, who has not been given any such legal immunity and also not sent up to face trial attains the status of accomplice. His status is shade less than that of approver. He is also not under any legal obligation or bound by any condition to make disclosure during trial.

11.9 The essential objective of a pardon is that the fear of prosecution being removed, a person, though privy to the offence, may freely testify and make a full disclosure of the events about the crime. The tender of pardon is quid pro quo. The tender of pardon not having been sought or given would not make such person a formal approver. He also, certainly, is not a person against whom the State has entered nolle prosequi. However, such person cannot be said to be incompetent to stand as a witness. He may still be regarded a competent witness though his legal status would be that of an accomplice. However, his evidence must be treated with bigger caution than that of an established approver. He also is required to meet the twin tests of reliability and corroboration.

11.10 Thus, the evidence of an accomplice does not differ from the evidence of any other witness except that his evidence is looked upon with additional caution.

11.11 There cannot be any scope of debate about the judgments cited at the bar by the defence. Legal position is precisely the same as already noted above. In Abdul Sattar vs Union Territory, Chandigarh AIR 1986 SC 1438, it was held that law was fairly well settled that on the uncorroborated testimony of the approver, it would be risky to base the conviction. It was also held that if such testimony does not seem convincing then, there is no requirement of seeking corroboration even. In Balwant Kaur vs Union Territory Of Chandigarh 1988 AIR 139 (supra) it has been observed that the corroboration has to be of two FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 47 kinds; first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second- which arises for conclusion after the court is satisfied about the creditability of the approver-as to the corroboration in material particulars not only of the commission of the crime but also of the complicity of other accused-person in the crime. If on the first area the court is not satisfied, the second does not arise. However, the two areas of corroboration are not two separate, water-tight compartments. The evidence as a whole will have to be examined to reach conclusions on both aspects. Such position is also admitted one. Propositions as laid down in Fancis Stanly (supra), Adambhai Sulemanbhai Ajmeri & Ors. (supra), Abu Salem (supra) and Lal Chand (supra) are not disputed at all.

11.12 In Abdul Kayum @ Mufti Sab Ahmadhusen vs State Of Gujarat, (2006) 1 GLR 651, situation was almost akin. On the same set of allegations, two persons, instead of being made accused, were made witnesses without tendering any pardon. It was contended they had played the same role as alleged against the accused and, therefore, they were accomplices in the alleged crime. It was also asserted that power of pardon is given to the Courts only and police has no power to grant pardon. Therefore, it was contended that the power of investigation was misused and such illegality in investigation was not cured by any provision of the Code. Rejecting such contention, Hon'ble Gujarat High Court held as under:-

"....As regards the contention that the power of pardon is vested in the Courts and not in the investigating officer or the prosecuting agency, on bare reading of the provisions of Sections 306 to 308 of the Code of Criminal Procedure, there cannot be any dispute on this proposition of law. However, the grievance in this appeal proceeds on the assumption that Sections 306 and 307 are in the nature of safeguards for the accused. It appears to us that far from being any such safeguard, Sections 306 and 307 lay down a clear exception to the principle that no inducement shall be offered to a person to disclose what he knows about the offence. The provisions of Sections 306 and 307 empower or enable the Court to grant pardon to an accomplice in the crime, lest for want of evidence no accused FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 48 should be convicted. If a person is prepared to be examined as a witness without asking for any pardon from the Court, because the witness does not believe himself to be involved directly or indirectly in or privy to the offence, there is nothing in these provisions to prevent the prosecution from examining such a person as a witness nor do these provisions prevent a person from coming forward as a witness without inquiring from the Court whether any pardon will be granted to him in case the Court finds him to be involved in or privy to the offence."

11.13 Thus, said two provisions seem essentially meant for those witnesses who might have, unwillingly or under some force and compulsion, aided the main perpetrators. These witnesses are not made accused by the concerned investigating agency and, therefore, there is no occasion for tender of pardon for them. In said peculiar backdrop only, said two provisions are resorted to for any such witness. As already noted above, person, who has been granted pardon by the court, is already under legal compulsion to reveal the truth though court would certainly look for corroboration in that situation as well.

11.14 Be that as it may, even otherwise, accused is also required to show and demonstrate as to what prejudice has been caused on account of not going through the provisions of tender of pardon. Nothing of that sort has been projected here. Accused(s) merely want to wriggle out of clutches of law by taking hyper-technical approach.

IMPACT OF NOT OBTAINING SANCTION U/S 140 OF DELHI POLICE ACT 12.0 Sh. Rajpal Singh, learned defence counsel for A-2 SI Narender Singh has vehemently contended that prosecution of accused Narender Singh is totally unjustified, unfounded and in gross violation of settled legal proposition. He has contended that accused was a serving public servant and whatever action he took was in utmost good faith and in discharge of his official duties. He has asserted that accused Narender Singh had never any inkling that Seema Kaur @ Rajni FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 49 Gupta would come up with any false accusation against anyone and, therefore, he, believing her, simply recorded the statement made by such prosecutrix and recommended necessary action as per the law. It has thus been argued that there was a direct nexus between the action taken by him and his public duty as a police officer and, therefore, he is entitled to protection as envisaged under Section 140 of Delhi Police Act and under Section 197 Cr.P.C. It has been asserted that since there is flagrant violation of these two provisions and no sanction has been obtained, prosecution is bad in law. It has also been argued that accused Narender Singh had been arrested in the present case on 19.03.2001 and the challan was put in the Court on 03.04.2002 i.e. after one year and 15 days from his arrest and, therefore, prosecution of said public servant is without any substance & not sustainable.

12.1 I have given my thoughtful consideration to the aforesaid aspect. It is quite evident that defence is completely oblivious of the fact that sanction u/s 197 Cr.P.C. had been obtained in the instant matter. Needless to say that the object behind the requirement of obtaining sanction of prosecution of a public servant is to have a check on frivolous, mischievous and unscrupulous attempts to prosecute an honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office.

12.2 There is no doubt that accused Narender Singh was a public servant at the relevant point of time as well. However, I have no hesitation, even of slightest nature, in my mind in holding that the acts committed by him have nothing to do with his public duty as a police official. Section 140 (1) of Delhi Police Act reads as under:-

"(1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of an such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of: Provided that any such prosecution against a Police Officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence."

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 50 12.3 Relevant portion of Section 197 (1) Cr.P.C. reads as under:-

"(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted."

12.4 It becomes very much evident that protection is available only when act complained of is integrally connected with public duties of such official. Both these crucial ingredients should be completely inseparable from each other. If there is any relation, connection or nexus between the two, protection would not be available. It will be useful to make reference to P. Arulswami v. State of Madras (AIR 1967 SC 776), wherein it has been held as under:

"... It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."

12.5 In B. Saha & Ors. v. M.S. Kochar (1979 (4) SCC 177), it was held that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 51 the Code are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.

12.6 Even as regards Section 140 of Delhi Police Act, reference be made to Prem Chand Goyal Vs. Krishan Kumar and Others 111 (2004) DLT 477, wherein it has been held that allegations regarding subjecting to beating and humiliation are not acts covered by provision under Section 140 of the Act as these do not form 'acts done under colour of duty or in excess of such duty or authority'. These are barbaric acts of total lawlessness. Such acts of police personnel cannot find any protection under any law much less under Section 140 of Delhi Police Act.

12.7 I need not remind myself that the present case is very unusual and different. The plot is having strong resemblance which one can come across any revenge drama or pot boiler of Bollywood. Accused C.M. Dutta was a police official of a substantial rank. He was feeling fumed and humiliated because of slapping of molestation case against him. He felt that his image had been tarnished in the estimation of others and thought of a novel way to take vengeance and wanted to set right Sushil Gulati who was a key witness in such molestation case. He took services of his fellow colleague i.e. accused Narender Singh and then conspiracy was hatched with his help as well as of accused Hazi Mohd. and others. The idea was to implicate Sushil Gulati in a false criminal case which would have naturally pressurized him to deviate from the truth in such molestation case. Thus, the acts committed by such public servants reveal criminal conspiracy and no law prescribes committing of conspiracy to be FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 52 regarded as act done in discharge of official duty or even in excess of such duty.

12.8 In Harihar Prasad v. State of Bihar (1972) 3 SCC 89 it has been held that as far as the offence of criminal conspiracy punishable under section 120-B was concerned, it could not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. It was thus held that it was not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and, therefore, want of sanction under Section 197 of the Code of Criminal Procedure was no bar to prosecution.

12.9 Entering into a criminal conspiracy, fabricating evidence and alluring hapless ladies to become false witnesses cannot be said to be a part of duty of any police official and, therefore, defence contention in this regard is found to be completely misplaced and accused Narender Singh cannot be permitted to seek any shelter under the protected umbrella of said two protections.

12.10 Moreover, it is a case where police had, in fact, obtained sanction from Hon'ble Lieutenant Governor for institution of criminal proceedings. Reference be made to order issued of the then Deputy Secretary (Home) issued on 21.01.2002. Such order has been issued by him in the name of Lieutenant Governor of Government of NCT of Delhi. It is another thing that such sanction order was not proved during the trial. This, to me, is hardly of any consequence as the peculiarity of the present case clearly indicates that such sanction was not even required.

CONCLUSION 13.0 Writing is very much on the wall.

13.1 Conclusion is irresistible.

13.2 The ploy was shrewd and impish.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 53 13.3 Accused C.M. Dutta (since expired) was feeling cheesed off and disgraced because of his being made an accused in molestation case and consequent suspension. Instead of defending such case in lawful manner, he thought of taking revenge from key witness of that molestation case. He wanted to kill two birds with one stone. By implicating Sushil Gulati in false rape case, he would have got some sort of sadistic satisfaction. Simultaneously, this would have put immense pressure on Sushil Gulati and he might have retracted from the reality. C.M. Dutta joined accused Hazi Mohd. Altaf, Advocate and accused Narender Singh. A plot was accordingly woven. Accused Sameer Ahmad @ Sonu was also involved in the conspiracy and efforts were made to find out a lady who could play the role of rape victim.

13.4 Seema Kaur or should I say Rajni Gupta was not required to give in to the temptation offered by the accused persons. She should have rather shown complete restraint. Undoubtedly, her economic condition was not very good but she was not living in penury either. She though, seemingly in need of job and money, chose to oblige the accused persons, albeit reluctantly and half-heartedly. She was naturally in a dilemma. However, when she saw Sushil Gulati being tortured, she underwent drastic change in heart and spilled the beans. Testimony of Seema Kaur @ Rajni Gupta, Savita Gupta, Balbir Kaur and Najma clearly indicates the manner in which all the accused persons had entered into an unlawful agreement to commit various offences. The objective was to take revenge from Sushil Gulati whom they considered the main reason behind the slapping of molestation case against accused C.M. Dutta.

13.5 It is known cliché that conspiracy is hatched in secrecy and generally, there is no direct evidence to decipher the same. It, on most occasions, is inferred from bunch of circumstances. The prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication as well. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence. Surely, privacy and secrecy are essential characteristics of a conspiracy. No one would conspire by indulging in a loud discussion on an elevated place open or in full public view. Therefore, direct evidence of conspiracy FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 54 is seldom available. The provisions of Section 120-A and120-B, IPC have brought the law of conspiracy in India in line with the English Law by making the overt act unessential when the conspiracy is to commit any punishable offence.

13.6 In Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540, Apex Court has held as under:

"The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co- participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested.

There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators."

13.7 In the present case, the conspiracy stands exposed to the hilt and I have no hesitation in believing the testimony of all the material public witnesses i.e. Seema Kaur @ Rajni Gupta, Savita Gupta, Balbir Kaur and Najma as well as that of Sushil Gulati. When their evidence is read in conjunction, I feel persuaded to hold that no link is missing and the conclusion clearly indicts the accused persons.

13.8 All the accused are responsible for fabricating false evidence with intent to ensure conviction of an innocent. As per Section 376 IPC, whoever commits rape shall be punished with imprisonment and such punishment can be of minimum period of seven years and could be even for life or for a term which may extend to ten years besides fine. In case of gang rape, whereas such punishment invites minimum sentence of 10 years and maximum upto life besides fine. It also becomes clear that Sushil Gulati was put under fear of accusation of serious offence of rape in order to commit extortion. Reference in FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 55 this regard be made to the testimony of PW12 Sushil Gulati who has categorically claimed that accused Sameer Ahmad @ Sonu had come to his ward on 11.09.2000 and 12.09.2000 and next day he threatened him and demanded Rs. 10-20 lacs from him and told him that only thereafter he would be released from jail. He also told Sushil Gulati that he had come to the ward in terms of planning only.

13.9 Accused SI Narender Singh cannot be permitted to agitate that he had merely recorded the version as given by Seema Kaur @ Rajni Gupta. He was all along an active member of the criminal conspiracy and was there in the chamber of his co-accused Hazi Mohd. Altaf when the entire planning was done and when even Seema Kaur @ Rajni Gupta herself was also present. Thus, he knowingly and deliberately prepared a false record knowing fully well that it would cause loss or injury to Sushil Gulati. Accused SI Narender Singh was in haste. On one hand, he tried to project that the case was beyond his jurisdiction but on the other, he wasted not even a single second and arrested Sushil Gulati in a jiffy and seized his car as well after planting hair strands therein. Interestingly, if the alleged rape had been done in a moving car and victim had been dumped in his area, he still had clear jurisdiction. Accused Hazi Mohd. Altaf also remained a main facilitator and used his co-accused Sonu to find out a girl who could play the role of rape-victim.

13.10 Admittedly, Rajni Gupta and other accomplices were also dramatis personae and played their bit in the plot but it is quite obvious that they were mere objects who were well-exploited by the accused. All the accused herein are main perpetrators and chief-architects of the crime. Though, hypothetically speaking, position of such key lady-witnesses may be at par with any official-approver, yet all these ladies, simply put, permitted themselves to be used by the main accused. These alleged accomplices cannot be said to be relegated to the status of accused from any angle and for all purposes, they continue to be prosecution witnesses. It, therefore, will be too bizarre to say that their deposition is liable to be equated with confessional statement of any co-accused and, therefore, inadmissible. As an upshot, I have no hesitation in accepting their deposition.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 56 13.11 I also do not find any substantial material on record to summon anyone else as accused.

13.12 In view of my foregoing discussion, I hold both the accused, namely, A-1 Hazi Mohd. Altaf and A-2 Narender Singh, who are at the moment facing trial, guilty for offence under Section 120B IPC and also for offences under Sections 193/195/465/218/389 r/w Section 120-B IPC.

Announced in the open Court On this 25th day of February 2016 (MANOJ JAIN) Addl. Sessions Judge (FTC) North-West Distt: Rohini: Delhi FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 57 FIR No. 852/2000 PS Rajouri Garden U/s 193/195/218/388/389/465/120-B IPC 29-02-2016 Present: Sh. Sanjay Jindal, Ld. Addl. PP for State.

Both the convicts in person Sh. S.C. Buttan, learned defence counsel for A-1 Sh. Raj Pal Singh, learned defence counsel for A-2 1 Heard arguments on sentence.

2 Learned Addl. PP has contended that the present case is of a very serious magnitude and shows the demeaning level of terrible thinking of convicts. He has also argued that since Sh. Sushil Gulati, who had been framed in a gang- rape matter, is now no more, the maximum sentence be meted out to the convicts to bring some solace to the departed soul.

3 Both the learned defence counsels have, whereas, prayed for compassion and leniency while reasserting innocence of the convicts. They both have also supplemented that convicts have clean antecedents and are not involved in any other matter at all. It has also been asserted that they both come from reputed background and are respectable members of the society. It has been contended that police official Narender Singh has unblemished career thorough out and Advocate Hazi Altaf has also always shown highest regard to the profession of advocacy. It has been claimed that the incident in question had taken place in the year 2000 and both the convicts have already undergone sufficient agony of trial spanning 16 years. It has also been argued that as a fall out of the present judgment, even otherwise, Narender Singh is going to be deprived of his job. It has also been argued that the lady, whose role is allegedly at par with the convicts, is still roaming free and, therefore, it will be appropriate to show maximum mercy to both the convicts.

4 I have given my thoughtful consideration to the aforesaid contentions.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 58 Finding right sentence is no mean a small job. The higher the discretion, the more challenging becomes the task.

5 Indubitably, it is the duty of the court to strike sort of balance between the aggravating and mitigating circumstances. But, simultaneously, court owes duty to society as well. Society cannot be said to be 'nobody' in context of award of sentence as such type of matter is bound to touch the very fabric of our social and moral ethos. Offence committed by an illiterate man or committed under ignorance or done by a person under compulsion while driven by extreme need may still be pardonable but the offence committed by those who are otherwise called protectors of Law is intolerable. When such protectors of Rule of Law become destructors, then court must respond with firm hands.

6 I also cannot be oblivious of the fact that in order to achieve their evil objective and to oblige their co-accused Inspector Dutta, they played havoc with the life of a handicapped lady. Her poor economic condition was exploited and she was made to agree to play the role of rape-victim while showing her lure of money. Though in first blush she too looked equal partner in crime but in hindsight, I have also started feeling that she was, in fact, made a tool and police did a splendid job by citing her witness instead of accused.

7 The plot woven by both the convicts along with their two associates was indeed a very impish one. Such revenge drama is normally seen in a fiction or may be seen on a silver screen. Rarely, one comes across such devilish but meticulous plot in real life.

8 Naturally, since Sushil Gulati had been entangled in a case related to gang rape, the sentence would have been a very stringent one i.e. life sentence. I can also fathom the stigma, disgrace and the disrepute attached with such type of imputation. Both the convicts did not blink for a second in tarnishing the character of an innocent man and displayed the audacity of playing with law like a 'pack of cards' by conspiring to fabricate an innocent man in a serious case of gang rape. It was only good fortune of Sushil Gulati that the matter was eventually transferred to Crime Branch and the conspiracy came to fore and stood FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 59 unearthed. For no fault of his, Sushil Gulati had to even remain behind the bars which must have, surely and certainly, caused immense damage to his character and reputation in the estimation of others.

9 Unfortunately, Sh. Sushil Gulati is no more alive to see that his malefactors now stand nailed down finally. Of course, culmination point has come little late but it is aptly said that mills of God grind slowly but they grind exceedingly small.

10 Admittedly, both the convicts did not remain behind the bars even for a single day. There does not seem to be any requirement of passing any substantive sentence for offence u/s 193 IPC as the convicts have been held guilty u/s 195 IPC and are being sentenced thereunder which is nothing but aggravated form of offence of section 193 IPC.

11 Keeping in mind the overall facts and circumstances of the case, I sentence each of the convicts as under:

         Penal Section           Sentence                         Imprisonment in
                                                                  default of fine

         Sec 120B IPC            2 years R.I. and fine of Three months S.I.
                                 Rs. 20,000/-

         Sec 195 read with 4 years R.I. and fine of Six months S.I.
         Section 120B IPC Rs. 1,00,000/-

Sec 465 read with 1 year R.I. and fine of Rs. Three months S.I. Section 120B IPC 10000/-

Sec 218 read with 1 year R.I. and fine of Rs. Three months S.I. Section 120B IPC 10000/-

Sec 389 read with 2 years R.I. and fine of Three months S.I. Section 120B IPC. Rs. 10000/-

12 All the sentences would run concurrently. Needless to say they both would be entitled to benefit of Section 428 Cr.P.C. and period undergone by them, in the present case, would be liable to be set off.

FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 60 13 It is also directed that in case of realization of entire fine, a sum of Rs. 2 lacs, would go to the legal representatives of Sh. Sushil Gulati as token compensation for causing enormous damage to his reputation and character.

14 Both the convicts be sent to jail under appropriate warrants.

15 A copy of judgment and order on sentence be provided to them free of cost.

16 File be consigned to Record Room.

Announced in the open Court On this 29th day of February 2016 (MANOJ JAIN) Addl. Sessions Judge (FTC) North-West Distt: Rohini: Delhi FIR No.852/2000 PS Rajouri Garden (State Vs. Haji Mohd. Altaf etc.) Page 61