Delhi District Court
State vs Onkar Nath Tiwari on 21 April, 2012
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 44/10
STATE
Vs.
1. Onkar Nath Tiwari
s/o late Shri Gauri Nandan Tiwari
R/o L469, gali no. 15,
Mahipal Pur Extension, New Delhi.
2. Puran Chand Kaushal
S/o late Shri Moti Ram
R/o L503, Gali no. 15,
Mahipal Pur Extension, New Delhi.
FIR No. : 427/07
P.S. : Vasant Kunj
U/S : 452/342/376 (2) (g)/377/511/506/34 IPC.
Date of Institution : 27082008
Date of Judgment : 21042012
J U D G M E N T
FIR No. : 427/07 1
1. Both the accused persons have been charged with and have faced trial for having committed offences u/s 452/342/376 (2) (g)/377/511/506/34 IPC.
2. In brief the case of the prosecution is that on 160607 three calls were received in the PCR within a period of about 12 minutes. PCR van reached the spot where the complainant was found who alleged that their neighbour O.L. Tiwari came there along with two other boys and ran away after beating her. PCR van took her for her medical examination. FIR was registered on 180607 on her statement wherein the complainant alleged that on 160607 her children had gone to their grandmother's house and her husband had gone to Gurgaon. At around 1.30 pm when she was alone at home both accused who were also her neighbours entered her house and bolted the door from inside. They both pushed her to the ground. While accused Puran Chand Kaushal caught hold of her hands, the other accused Onkar Nath Tiwari raped her against her FIR No. : 427/07 2 wishes. They also tore her clothes and threatened to eliminate her and her family. FIR u/s 376/506/34 IPC was registered. The torn clothes of the victim worn at the time of the incident were seized. Site plan was prepared. Accused Puran Chand was arrested. Proceedings u/s 82 Cr.PC were initiated against Onkar Nath Tiwari. Statement of the complaint u/s 164 Cr.PC was recorded wherein she had given the details of the manner in which she was raped by the accused persons. In her statement she made further allegations of attempt of sodomy (which was not stated by her before the doctor who examined her on 160607 and she was not examined for the act of sodomy on her). Sections 377/511, 342, 452 IPC were also added.
3. She also alleged that accused Onkar Nath Tiwari had bitten her on the back side of her shoulder. Since she was changing stands it was decided to get her polygraph test done. However, she refused for the same on medical grounds. The mobile crime team inspected FIR No. : 427/07 3 the scene of crime and took the photographs of the spot. The torn clothes and medical exhibits were sent to FSL and it was reported that the semen could not be detected on any of the exhibits. After completion of the investigation, chargesheet was filed in the court.
4. On the basis of allegations contained in the chargesheet, charge was framed against the accused persons for having committed offencess u/s 452/342/376 (2) (g)/377/511/506/34 IPC. The accused persons pleaded not guilty to the said charges and claimed trial.
5. In support of its case prosecution has examined 16 witnesses.
6. PW1 is Dr. Richa Arora, who had medically examined the prosecutrix and has proved her MLC as Ex.PW1/A.
7. PW2 is prosecutrix herself.
8. PW3 is ASI Asha Rani, who registered the FIR in this case and has proved the coy of same as Ex.PW3/A.
9. PW4 is Shri Rajinder Kumar, the husband of the FIR No. : 427/07 4 prosecutrix.
10. PW5 is ASI Vijender Kumar, who had accompanied WASI Saroj on 160607 to the house of the complainant Jagwanti. He testified that they came to know that she had been taken to the hospital by PCR. They reached the hospital; IO collected her MLC and medical exhibits vide recovery memo Ex.PW5/A.
11. PW6 is WASI Saroj, the initial IO of the case, who reached at the spot with PW5 on receipt of information on 160607 and then from there to the hospital where she seized medical exhibits of the prosecutrix and then returned to the PS and recorded the statement of the prosecutrix. The complaint was kept pending. She recorded another statement Ex.PW2/A of the prosecutrix on 180607 and then made her endorsement Ex.PW6/A and got the FIR registered. Thereafter the further investigation was transferred to CAW cell.
12. PW7 is ACP Achala Rampal, who took over further investigation of this case on 210607. She FIR No. : 427/07 5 visited the spot and prepared the site plan on inquiries from the prosecutrix. The site plan was Ex.PW2/B; seized the clothes of the prosecutrix which she was wearing at the time of the incident.
13. PW8 is SHO/Inspector, to whom the investigations were handed over on 010807. He recorded the statements of the concerned PCR staff who received the PCR calls in this case. Thereafter on 061107 the investigation was transferred to Crime Branch as per the orders of the Hon'ble High Court.
14. PW9 is SI Aditi Lilly, to whom the case was marked in CAW cell on 190607.
15. PW10 is Retd. SI Rajender Singh, who was incharge crime team on 160607 and had visited the house and photographs of the spot were taken. He proved his report as Ex.PW10/A.
16. PW11 is Inspector Satyavir Singh, who testified that he along with other officials had gone to the spot on 160607 and made inquiries; crime team was called and FIR No. : 427/07 6 then WASI Saroj conducted the investigations under his supervision.
17. PW12 is Shri Vikas Dhull, the then Ld. MM who had recorded the statement of the prosecutrix u/s 164 Cr.PC.
18. PW13 is Inspector Harivansh Singh, who was working as SI in Inter State Cell Crime Branch and had arrested accused Onkar Nath Tiwari after he surrendered in the court on 050508 and then took him into police custody on 130508.
19. PW14 is Dr. Sanjay Kumar, who deposed with the respect to the MLC of accused Onkar Nath Tiwari and had proved the same as Ex.PW14/A.
20. PW15 is HC Ravinder Singh, the photographer in the crime team who took 8 photographs as per the directions and has proved the same as Ex.PW2/DB 1 to DB 8.
21. PW16 is Shri R.K. Singh, the then Ld. MM who conducted the TIP of accused Onkar Nath Tiwari on FIR No. : 427/07 7 090508.
22. In their examination u/s 313 Cr.PC, all the incriminating evidence was put to the accused persons which they denied and stated that this was a false case and that they had been falsely implicated in this case and that they were innocent. It was stated by the accused persons that prosecutrix and her husband were known to them earlier but some dispute had arisen due to the (alleged) grabbing of the property by the prosecutrix and her husband. Accused persons had made complaints against her and her husband and to get even she had lodged this false complaint against both the accused.
23. Accused persons chose to lead evidence in defence.
24. DW1 is HC Hari Kishan, who testified that on 160607 he received a call at 2.10 pm regarding a quarrel; he went to the spot and saw a lady namely Jagmohini was sitting outside. She told him that her husband had gone out and 23 men had beaten her and FIR No. : 427/07 8 gone away. That several persons gathered there. No visible injuries were seen on the person of Jagmohini. She went inside for 34 minutes while they were informing the control room about the situation.
25. He further testified that at around 2.19 pm they again received a call and they informed that they were already at the spot. The said lady asked them to get her medically examined; they took her to the hospital and on the way, they went to the PS and a lady constable also accompanied them and thereafter they went to Safdarjung hospital and got her admitted there.
26. DW2 is Constable Ravinder Singh, who was posted as constable at PCR, SouthWest Zone on 160607. He testified that on the said date at around 2.05 pm he received a call regarding a quarrel at R.J. School at Mahipalpur. They reached the spot and saw a lady namely Jagmohini, who told the staff that one of her neighbor O.N. Tiwari along with 23 unknowns persons had beaten her and run away. They took the lady to the FIR No. : 427/07 9 PS and from there one lady constable and one HC accompanied them and they got admitted the said lady in Safdarjung hospital.
27. DW3 is Shri Vinay Kumar, who had gone to the PSVasant Kunj on the relevant date to lodge a complaint against his brother. The duty officer Asha Rani told him to wait as she was busy; he waited for 34 hours and at around 12.30 - 1.00 pm three persons namely Puran Chand Kaushal, O.N. Tiwari and one Gautam came to the PS and their complaint was lodged prior to his complaint. They remained in the PS till 2.303.00 pm.
28. This witness further returned to the court with an application that he had been forced to give this statement and would like to give another statement. Consequently his statement was recorded in which he stated that he had been approached by accused Puran Chand, who asked him to depose in the court in his favour that he was present in the PS on 160607 as the FIR No. : 427/07 10 police has not taken any action.
29. DW4 is Shri Ramesh Chand Gautam, who testified that on 160607 he had gone to the PSVasant Kunj for police verification form at around 1.001.15 pm and remained there till 2.15 pm. He was told to wait in the waiting room by one police official Asha Rani. There he met Jatan Singh,. Smt. Sheela Devi, Onkar Nath Tiwari (accused), Puran Chand Kaushal (accused) and Vinay (son of Jatan Singh). He further testified that he along with accused Puran Chand Kaushal had left the PS at 2.15 pm after completing his work. Prior to this he did not know accused Puran Chand Kaushal and Onkar Nath Tiwari.
30. I have heard the Ld. Addl. PP for the State and counsel for the accused persons at length and have also gone through the record carefully.
31. The star witness in this case is the prosecutrix herself who has been examined as PW2. She testified that on 160607 she was present at her home which was FIR No. : 427/07 11 on the fourth floor of the building while on the remaining floors school was being run by her. Her children were at their grandmother's place on summer vacation and her husband had also gone to Gurgaon for some personal work. She had gone down to check out the drainage/rain water. When she was returning both the accused Puran Chand Kaushal and Onkar Nath Tiwari pushed her inside the room and threw her on the ground. Accused Puran Chand Kaushal caught hold of her with both hands and accused Onkar Nath Tiwari opened her salwar and committed rape on her. She tried to save herself but they tore her clothes and bit her on her left upper arm. While she was trying to save herself accused Onkar Nath Tiwari tried to commit anal intercourse with her due to which she developed rashes in that area. She further testified that they left her in physical and mental pain and threatened to kill her if she disclosed this incident to anybody. She called the police at 100 number. PCR came and took her to the FIR No. : 427/07 12 hospital. She gave her statement Ex.PW2/A to the IO. Her statement u/s 164 Cr.PC Ex.PW2/B was also recorded by the Ld. MM.
32. At this stage, it may be relevant to revert to the stand of the accused persons.
33. Accused Puran Chand stated in his examination u/s 313 Cr.PC that this was a false case instituted against him only to grab his property. That on 291006, prosecutrix and her husband had encroached the public passage, as a result of which, people were aggrieved; that prosecutrix and her husband were of criminal intent and had been filing false complaints against other persons to extricate their immovable properties. She had falsely implicated them also. That no such incident had taken place. He further stated that after he was arrested a complaint was made by his family members to the Police Commissioner who ordered for Vigilance Inquiry and Inspector Achala Rampal was suspended during the inquiry. He had also filed a complaint with FIR No. : 427/07 13 the Hon'ble High Court where the inquiry officer had filed the vigilance inquiry report.
34. Accused Onkar Nath Tiwari had also stated that it was a false case. That on that date he along with his co accused Puran Chand was in the PS from 1.10 pm to 1.5 pm. He had gone there to check up about his earlier complaint against the husband of the prosecutrix and accused Puran Chand had gone there to lodge a complaint under the SC/ST Act against the husband of the prosecutrix. Duty officer Asha Rani knew the prosecutrix so she informed her that he had come there to register a complaint against them and that is why they were buying time to not to register the complaint. In the meantime prosecutrix made calls to the PCR at 2 pm, 2.14 pm and 2.19 pm and when the PCR reached the spot she only gave his name as he had left the PS by that time and accused Puran Chand was still in the PS. After leaving the PS he had gone for gas filling and deposit of money in the bank and their DD was not recorded in the FIR No. : 427/07 14 PS as they were still waiting for the response from the prosecutrix. He was called by the SHO in the evening where he was detained on 160607 and his medical examination was got done on the next day.
35. He further stated that he was the General Secretary at Naroda Welfare Association in 1997. Prosecutrix and her husband had encroached the public lane while making their own construction and he had made complaint for the same due to which there was enmity between them. Thereafter, in the year 2006 the prosecutrix again encroached the public land to encompass same into her school. He and Puran Chand (accused) had played an active role in opposing the said construction. As a result of which, she was nursing a grudge against both of them. Accused had further stated that they were also aggrieved by her actions as they had jointly purchased a plot adjoining to the plot of the prosecutrix. One day Puran Chand (accused) had gone there to erect a boundary wall on which a quarrel took FIR No. : 427/07 15 place with the prosecutrix and her husband and similar incident took place on 280507 when Puran Chand (accused) had gone there to erect the boundary wall and the prosecutrix and her husband along with their other associates had beaten him badly as a result of which police was called.
36. He further stated that prior to the incident of 280507 relations between them were cordial and even his wife had stood surety for the husband of the prosecutrix in a case earlier in the year 2002.
37. He further stated that Puran Chand (accused) was taken to the hospital as he was badly beaten by the husband of the prosecutrix and his associates on 280507. Thereafter, a complaint was lodged with the police and FIR was registered; husband of the prosecutrix was arrested and sent to jail. His bail application was also rejected due to which he started nursing grudge against them. Thereafter on his release from the jail on 020607 he threatened him so he lodged FIR No. : 427/07 16 a complaint against him with the police but he did not apprehend that he will lodge such a serious false complaint against him. He further stated that prosecutrix was in the habit of making false complaints to get her way and had similarly complained against one Mahinder Singh (but the matter has since compromised). The prosecutrix had lodged this false case and levelled such serious allegations against them only on the instigation of women police officials namely Asha Rani and Saroj Yadav, who were known to her in the PS. That he was residing in the jurisdiction of PS Vasant Kunj for the last 22 years and there was not even a single complaint against him. He was 57 years old and there was no complaint against him in any PS, whereas, 810 cases had been registered against the prosecutrix and her husband in the past 1015 years. He further stated that the prosecutrix belonged to this village and this community and he and Puran Chand (accused) were from outside and if this case was true, the people would FIR No. : 427/07 17 not have let them stay in that vicinity even for a day.
38. The evidence of the prosecutrix as also of the other witnesses is thus to be read with caution keeping in mind the said stand of the accused persons.
39. The prosecutrix PW2 had been crossexamined at length running into several hours of crossexamination for seven dates. It is noted with concern that at the outset that the prosecutrix had been changing her stand or adding to her statement on every date of hearing.
40. Motive : The factum of there being disputes on account of the encroachment by the prosecutrix and her husband are evident from her crossexamination itself i.e. in her crossexamination she had stated that she was running this school since 2001. She admitted that there was one Mahender Singh, who was amongst one of the other coparceners who had ancestral property in the same khasra, in which she had initially taken 150 sq yards for construction of the said school. Though she denied having placed barricades on both sides of her FIR No. : 427/07 18 plot, she admitted that kalandra u/s 133 Cr.PC was framed upon her on the complaint of one Mahender and that the SDM had passed the order for removing the encroachment from the road in those proceedings. She was specifically questioned by the counsel that she did not remove the encroachment even after that order on which she replied that there was no encroachment before the said proceedings or ever thereafter. It was suggested to her that accused Onkar Nath Tiwari had lodged a complaint dated 220697 as Secretary of Narmada Welfare Association against her alleged encroachment or that Hon'ble High Court had passed any directions for removing the encroachment. She stated voluntarily in the court that she had lodged a complaint against Mahender and Others u/s 341/354/323/325/506/34 IPC in the court regarding the incident dated 100697 and FIR was registered. She also denied having quarrel with the accused persons whenever they tried to raise the boundary wall or of FIR No. : 427/07 19 having any such quarrel on 310507. However, she admitted that case was registered against her husband on the allegations that her husband had broken the arm of accused Puran Chand (on 310507). She denied that they were nursing grudge against the accused persons as they both had appeared in the court to oppose the bail application of her husband in that case. It was denied by her that she of her husband used to address accused Puran Chand abusively on his caste. She admitted, however, that FIR no. 451/07 dated 250607 had been registered against her and her husband on those allegations.
41. Thus it emerges on record that there have been disputes relating to the encroachment on public land by the prosecutrix and her husband which issue was taken up by accused Onkar Nath Tiwari as the Secretary of the Narmada Welfare Association and the prosecutrix and her husband bore a grudge against him for the same. It has also come on record that the other accused Puran FIR No. : 427/07 20 Chand had got a case registered against the husband of the prosecutrix under SC/ST Act as the husband of the prosecutrid used to abuse him and even a kalandra u/s 133 Cr.PC had been filed against the husband of the prosecutrix. That there was FIR for having broken the arm of accused Puran Chand.
42. Now about the incident: Accused persons have argued that it was not possible for any person to walk into the school premises of the prosecutrix all on their own. It was the day of school holiday (being summer vacations). The gates of the school would have been obviously closed as it was summer vacation. The prosecutrix in her crossexamination had testified that there was no security guard in her school; there was only CCTV camera installed by her to check the cheating instance and other activities of children. She states that she made calls to the police officials as also to her husband from her landline phone.
43. The first information about the incident has been FIR No. : 427/07 21 given to the police by the prosecutrix herself. She stated in the court that she had informed police about this incident by making a call to the police control room by dialling at 100 number. She made these calls from the landline number of her school i.e. landline no. 26781755, which she states was installed in the room where the incident took place. The prosecution has placed on record three forms of the police control room to show that the prosecutrix had made three telephone calls from 1408 to 1419 to the PCR in respect of this incident. These forms have not been proved by the prosecution. However, since they have been filed by the prosecution and have material bearing on the case, the same are looked into.
44. The first form is filled at 1408; the second form is filled at 1414 and the third form is filled at 1419 hours on 160607. They are marked as Ex.C1, C2 and C3 for reference. The said calls were made to the PCR from telephone no. 26781755. In the first form the informant has informed the police that one man was misbehaving FIR No. : 427/07 22 with the police near R.J. School at Mahipalpur. Six minutes thereafter there is another call at 1414 from the same telephone number by the same informant i.e. Ms. Jagmohini (prosecutrix) who informs that one man had entered their house and was abusing and quarelling with her and that she was alone at home. Five minutes thereafter i.e. at 1419 there is another call from the same landline number in which it has been recorded that three men had entered the house of the informant and were forcing themselves on her and had even torn her clothes.
45. Thus it is seen that within the gap of 56 minutes each the prosecutrix has given three different versions to the police control room about the kind of incident that has taken place in her house. While in the first information she says that one man was misbehaving with a woman near the R.J. School i.e. the incident is not in the house or in the school but near the school as informed by her and it was only about one man FIR No. : 427/07 23 misbehaving with a woman. Whereas, after five minutes she informs that one man had entered her house and was abusing and was quarelling with her. After 510 minutes she tell that three men had entered her house and were forcing themselves on her and had also torn her clothes. What does it show? Was she informing the PCR of different incidents occurring within few minutes one after the other. Even if one was to take from the second form onwards - than was this information that only one person had entered and was abusing and quarreling. Then after sometime three persons enter and tear her clothes.
46. The further information recorded in the first form also shows that the PCR van had reached the spot at 1418 hours i.e. just one minute before the third call was made by the prosecutrix to the PCR. The police official who reached the spot in the PCR van ASI Mahinder has recorded that the prosecutrix was residing at the given address and (as stated by her) that on that day her FIR No. : 427/07 24 neighbour O.N. Tiwari along with two other boys had come there and had beaten her and had run away, while her husband was not at home; that she had received internal injury and was being taken to the hospital. It was also noted that there was a quarrel earlier on 31st May on account of construction of wall. It is seen that ASI Mahinder has not been produced in the witness box by the prosecution and thus a very important piece of evidence has been not been brought to the fore by the prosecution which could have reflected about the situation immediately seen by the first police officials who reached the spot on receipt of the information by the PCR. It also reveals that the prosecutrix knew O.N. Tiwari earlier and had thus been able to give his name as the person who had come there with two unknown men. That means according to this information she had informed the police that there were three men who came and out of which one was O.N. Tiwari and two others were unknown. Whereas, in the court she has stated FIR No. : 427/07 25 that it was the two accused persons i.e. O.N. Tiwari and Puran Chand Kaushal, who had come to her house. She knew Puran Chand earlier and hence would have given his name to the PCR van if that was the situation that besides O.N. Tiwari, accused Puran Chand had also come there.
47. Thus it is seen that the incident as recorded in the said PCR form immediately by the police officer after having reached the spot at the time when one call was yet to be made by the prosecutrix to the PS, does not say anything about having been raped. Thus even if one was to believe that accused O.N. Tiwari had reached there with two unknown men, it is seen that the information recorded by the police official who first reached the spot there is no mention of accused O.N. Tiwari or for that matter two another men who accompanied him, to have committed any rape upon the prosecutrix. As per the information recorded in the said form the prosecutrix had only alleged that accused O.N. Tiwari, along with FIR No. : 427/07 26 two other unknown men had come to her house and beaten her which resulted in an internal injury to her.
48. Thus, it is noted that there is an improvement by the prosecutrix in her statement given to the PCR in this interval of 56 minutes each i.e. while first she says that there was only one person who was misbehaving with a woman near R.J. School; in the second one she says that one person had entered her house and was quarelling and abusing her and in the third time she says that three men having entered her house and were forcing themselves on her and having torn her clothes. This is besides the fact that when she was examined in the court as PW2 she took a total different stand and stated that it was the accused O.N. Tiwari and accused Puran Chand who had come to her house on the said date and had committed rape upon her and had even tried to sodomize her. She had given the statement to the similar effect to the police on 180607 but these PCR forms which were recorded immediately after or after FIR No. : 427/07 27 the incident speak totally different story which makes one doubt the credibility of the statement of the prosecutrix at the outset.
49. After this the next statement/version is given by prosecutrix when she was taken to the hospital where the IO ASI Saroj met and her MLC was prepared by the doctor PW1 who medically examined her. It is seen from the said MLC Ex.PW1/A that she had given the history herself to the doctor examining her and had stated that she had been sexually assaulted by neighbour namely O.L. Tiwari at around 1.30 pm in her house and that she had put up a struggle. She also gave the history of penetration and ejaculation.
50. Thus it is seen that even till the time she goes to the hospital and is giving the history of the assault to the doctor examining her, she does not give the name of coaccused Puran Chand and had alleged only of sexual assault by one neighbour O.L. Tiwari. There is no mention of any other person or coaccused Puran Chand FIR No. : 427/07 28 or otherwise any person being also involved in the case.
51. Then there are 34 other statements made by the prosecutrix in respect of this incident subsequently i.e. there is statement u/s 161 Cr.PC recorded by the IO PW6 ASI Saroj on 160607 itself. ASI Saroj had stated that she had gone to the spot (house of the prosecutrix) on 160607on receipt of DD no. 27A. There she came to know that complainant had gone to the hospital by PCR vehicle; so she went to Safdarjung hospital where prosecutrix was got medically examined; she seized her medical exhibits and then came back to the PS with the complainant and recorded her statement. The statement recorded by her on 160607 is Ex. PW6/DA on record in which she stated to the IO that on that date in the afternoon her husband had gone to Gurgaron for some work and her children had gone to maternal grandparents home. She was sweeping outside the house at around 1.30 pm and had gone inside when both the accused had entered her house along with her FIR No. : 427/07 29 forcibly and bolted the door from inside. They took her forcibly inside and accused Puran Chand caught hold of both her hands while accused O.N. Tiwari, committed rape on her forcibly. She tried to save herself from both the accused, as a result of which, she received injuries and that both of them tore her clothes and threatened while leaving that they will finish the entire family of her's if she disclosed it to anyone.
52. Then she gives another statement on 180607 on which FIR came to be registered. The said statement is Ex.PW2/A in which she has stated almost to the same effect as in Ex.PW6/DA.
53. Then there is her statement u/s 164 Cr.PC recorded by the Ld. MM on 280607 which is Ex.PW12/A in which she has also stated to the same effect as in her statement u/s 161 Cr.PC. However, she improves on her statement further as she states that accused O.N. Tiwari had also bitten her on her left shoulder with his teeth and that accused O.N. Tiwari FIR No. : 427/07 30 had also tried to commit anal intercourse with her after turning her over due to which she had developed rashes in that area.
54. When she appears in the court she testified that she had come down to check out the drain/rain water, whereas in her statement Ex.PW2/A on which the FIR was registered she had stated that she was sweeping outside her house when the accused had come inside her house.
55. Thus it is seen that complainant has been making improvements in her statement at every step. When these improvements were put to her in the court in the witness box her answer was that she was not in a proper state of mind and that is why some of the things were not told to the IO or to the doctor in her statement. On the other hand doctor who examined her has been examined as PW1 in the witness box. The doctor PW1 has categorically testified that the patient was in absolutely perfect mental state of mind while giving her FIR No. : 427/07 31 alleged history.
56. It is noted from the MLC Ex.PW1/A of the prosecutrix that no external injury has been noticed by the doctor and that no history of sodomy was given to her by the prosecutrix nor was the prosecutrix examined for the same. The doctor PW1 in her crossexamination had testified that if there was any external injury she would have mentioned the same on the MLC. There was no mention of any external injuries on the MLC Ex.PW1/A. Thus it can be said that the prosecutrix had not received any external injury in the said alleged incident. It also belies her stand that accused O.N. Tiwari had bit her on the shoulder. That means that there were no such teeth bite mark seen by the doctor on the shoulder of the complainant. The outpatient reference card (of prosecutrix) has been proved on record as Ex.PW2/D1. According to this document there was scratch marks on the forearm and inner aspect of arm. In her crossexamination the doctor Richa Arora PW1 FIR No. : 427/07 32 had stated that these injury marks were not possible by teeth bite. On being asked, the doctor had also admitted that if a well built lady (like the prosecutrix) resist sexual assault, there would be external marks of injury on her body as well as on the body of the assailants but no such marks were seen on the body of the complainant. Similarly, no such fresh marks were seen on the body of the assailants either.
57. Then there is the allegation of sodomy by the accused O.N. Tiwari on the complainant: The doctor PW1 who had examined the prosecutrix had stated that the patient had not given the history of sodomy. Therefore, she was not examined for sodomy by her. The prosecutrix had alleged that she was also subjected to anal intercourse by accused O.N. Tiwari and had developed rashes in that area. In the ordinary course one would expect that she would disclose this fact to the doctor whom she met just few hours after the incident, but she did not do so. Thus, it makes one doubt FIR No. : 427/07 33 about the veracity of the statement of the complainant to this effect. This fact of sodomy was brought into the picture for the first time in her statement u/s 164 Cr.PC on 280607 after about 12 days of the incident. Whereas, before that she had made so many statements to the police and to the doctor but this fact was not disclosed by the prosecutrix to anyone.
58. She had also taken a stand in the cross examination that she could not give this fact of sodomy in the FIR as there were too many people present around her when her statement was being recorded and she was under pressure. This is again not palatable. FIR in this case has been registered after two days when the statement of the prosecutrix was recorded on 180607. First and foremost there is a doubt as to where this statement was got recorded. IO ASI Saroj i.e. PW6 had stated that she had recorded the statement of the prosecutrix in her house on 180607 as per the directions of the seniors. In her crossexamination she FIR No. : 427/07 34 had stated that the said statement was recorded by her in the PS between 2 to 2.30 pm when the prosecutirx had come alone to the PS. However, when confronted with the statement Ex.PW6/A portion mark A to A wherein it was mentioned that the statement of the prosecutrix was recorded after visiting her house, the witness conceded that she did not remember the exact sequence of the events and that the said statement was recorded at the house of the prosecutrix.
59. One cannot imagine that when the prosecutrix was giving her statement in the comfort of her home she would be under such a mental pressure nor would have the people gathered at her home around her in large number. Rather, she would have been sure of her statement at that time as she was making it after two days of the (alleged) incident and that so from the comfort of her home.
60. Thus, in my opinion the allegation of a serious offence as sodomy by accused is also another FIR No. : 427/07 35 improvement made by her in her statement.
61. The husband of the prosecutrix PW4 had admitted that there have been litigations and previous disputes against him for installing gate on both sides of the gali (thereby encroaching on the gali and including it in their school). The husband of the prosecutrix also testified that on receipt of phone call from his wife he reached home at around 2.30 - 3.00 pm and the house was lying unlocked i.e. the entry gate was lying open. However, the main gate was locked. Reading all the statements of the various witnesses regarding the structure/design of the school and gate/security of the school, it transpires that there was a huge gate on the boundary of the school. PW4 i.e. the husband of the prosecutrix has also stated that there were CCTV cameras installed at the entry gate of the school. If that was so, the CCTV cameras would have captured the image of the accused persons entering the school premises but that has not been done in the present case. The only excuse given by FIR No. : 427/07 36 the PW4 is that CCTV cameras were not in working condition and that no recording was maintained by them. SI Aditi Lily, examined as PW9 has admitted that chowkidars were present when she went to the house of the complainant with her staff. Thus there was no occasion for the accused persons to have entered the school complex unless they had scaled over the main gate of the school building which was locked and is stated by the witnesses to be quite high. Again accused persons being around 60 years of age could not have scaled the gate to come inside the school complex. If the building gates were locked it is difficult to understand as to how the accused persons could come inside from the said place i.e. when the prosecutrix was there inside the secured complex while she was all alone at home, the possibility of accused persons having been able to gain entry into the school complex sounds improbable.
62. Then there is the conduct of the prosecutrix : The prosecutrix also admitted that a case was registered FIR No. : 427/07 37 against her husband on the allegations that he had broken the arm of accused Puran Chand. The said case is FIR no. 356/07 and was registered on 290507 (just a few days before the present incident) on the complaint of accused Puran Chand. The copy of which is Ex.PW2/DD on record. It was alleged in the said FIR that on that day i.e. on 280507 while he (accused Puran chand) was crossing through R.J. Public School (of the complainant) in his gali he was stopped by the husband of the prosecutrix for taking cudgels with him for objecting to the construction of iron gate in the school and that he had started beating him; threw him on the ground and started kicking and raining blows on him, as a result of which, he received injury and case u/s 323/341/506 IPC was registered. The medical examination of accused Puran Chand was conducted and as per the MLC there was tenderness in the middle finger with soft tissue swelling. Thus he could not have caught hold of the prosecutrix as alleged by her. The prosecutrix and her FIR No. : 427/07 38 husband had also admitted in their crossexamination that the husband of the prosecutix was sent to JC in this case and the bail was opposed by the accused persons. It is the stand of the accused that the complainant and her husband started nursing grudge against them after this.
63. The prosecutrix has alleged that accused persons have torn her clothes that she was wearing. She also stated that she was not used to wearing underwear. However, since she was in that state on that day, before leaving with the police to the hospital she had put on a underwear under her salwar.
64. It sounds strange that she found herself in a proper state of mind to put underwear before going to the PS and to the hospital but did not think of changing her torn clothes before going out of her house. This leads to infer that the clothes were not torn as alleged by her. Not only this, in the PCR form, the police official who had first reached the spot and had taken her to the hospital had not noted or informed that her clothes were FIR No. : 427/07 39 torn. Not only that there is no mention about this fact by the doctor who medically examined her. If she had been really sexually assaulted by the accused persons and if her clothes were really torn, any prudent woman would have changed her torn clothes and handed over the torn clothes to the IO or to the doctor. The doctor could have given her opinion about the cut or tear corresponding to the injury inflicted by the assailant on the body of the victim. The doctor PW1 in her crossexamination had stated that though she did not remember the condition of the clothes that the prosecutrix was wearing at the time of examining her but if there were any tear on the clothes she would have noticed and observed the same in her MLC. No such observation is made in the MLC Ex.PW1/A about the clothes of the prosecutrix being torn. Whereas, the husband of the prosecutrix states that he found her having already changed the clothes when he reached there. All of which makes one doubt whether her clothes were really torn as alleged. FIR No. : 427/07 40
65. That aside, the whole story about the torn clothes sounds implausible. On one hand she stated that the said torn clothes were handed over by her (complainant) to SI Aditi Lily on 210607 by her when they had visited her house for investigations and the same were seized vide memo Ex.PW2/C. On the other hand there is this ever changing story of the prosecutrix. She says that she put on her underwear but did not change her torn clothes and went in that condition in the PCR van to the PS and then to the hospital. If she had handed over the clothes to the police officials on 210607 from her residence then obviously she did not give the torn clothes to the police officials or to the doctor in the hospital on 160607 when she was examined. There is no explanation as to why the said torn clothes were not handed over by the complainant to the IO and to the doctor in the hospital on 160607. The complainant says that she did not give the clothes as she did not have another set of clothes to wear. If that was so, she should FIR No. : 427/07 41 have brought the same with her from her home. Then there is the evidence of PW4, the husband of the prosecutrix who states that after receiving the information he had gone home from where he was told that she had gone to the hospital; he came to the hospital where he met IO ASI Saroj who asked him to bring the fresh set of clothes for her (complainant) as clothes of the complainant were torn and had to be changed. So he had gone back to bring another pair of clothes for his wife and had then come back to the hospital again. Rather in the next breath, he says in the crossexamination, that she had already changed her clothes. Whatever be the position i.e. whether she changed the clothes by the time her husband had brought another set or changed her clothes after her husband had brought them from home, the fact remains that the alleged torn clothes which the prosecutrix was allegedly wearing since the incident with her ( so called) were not handed over to the police or to the doctor on FIR No. : 427/07 42 that day by the complainant and were handed over to SI Aditi Lily only on 210607. Thus, this itself makes the story of the prosecutrix, that her clothes were torn by the accused persons, doubtful on the face of it. There is also no evidence that there was any corresponding injuries corresponding to the cut or tear in the set of the clothes by the complainant to the IO on 210607 who had gone to her residence. The whole story that accused persons had torn her clothes thus sounds doubtful.
66. Then there is the scene of crime and FSL report : The prosecutrix had categorically stated to the doctor who medically examined her on 160607 that there was history of penetration and ejaculation. If ejaculation had taken place then there would be semen stains and presence of semen on the spot, in the inner clothes of the prosecutrix as also of the accused persons and on the inner body parts of the complainant. The doctor in her crossexamination had stated that if a lady is subjected to sexual intercourse and there is FIR No. : 427/07 43 ejaculation, there is every possibility that the lady would have the semen stains in her vagina. MLC Ex.PW1/A shows that the doctor had sealed the undergarments and had taken the high vaginal swab, cervical swab and pubic hair of the complainant and handed over to the police in separate sealed parcels. The same were sent to FSL. There is the FSL report Ex.PXY and according to the said report the semen could not be detected on the panty (underwear), high vaginal swabs, cervical swab, pubic hair besides the clothes of the prosecutrix. The prosecutrix has been examined by the doctor immediately after the incident but the MLC shows no external injuries. The FSL report shows that the semen could not be detected in the vaginal and cervical swabs. Had the ejaculation been taken place as alleged by the prosecutrix, the semen would have been detected in these swabs. This also belies the statement made by the prosecutrix about the rape committed on her or any ejaculation by accused having taken place. FIR No. : 427/07 44
67. The doctor PW1 had stated in her cross examination that the probability of finding any evidence of rape is highest on the undergarment only. In the present case the prosecutrix says that she was not wearing the underwear at the time of the incident and had put on the underwear only before going to the hospital and to the PS. Even if it be so, the semen would have trickled on to her undergarments and would have been detected by the FSL and if she was not wearing the underwear at the time of the incident then there must have been spots of semen on the salwar which she was wearing but that was also not the case as per the FSL report i.e. the semen was not found on the inner body part .
68. PW2 i.e the prosecutrix and her husband PW4 have stated that after the hospital the complainant and her husband had then gone to the PS with the police officials where her statement was recorded. PW4 also testified that they stayed in the PS upto 89 pm and FIR No. : 427/07 45 thereafter they along with SHO Rajender, ACP Rakesh, Inspector Satbir Singh along with 23 constables and SI Saroj reached the home of the complainant; conducted the investigations and took the photographs.
69. PW10 is Retd. SI Rajender Singh, who was the incharge of crime team and had visited the house of the complainant with his team and has proved the report prepared by him as Ex.PW10/A.
70. PW11 Inspector Satyavir Singh had also gone to the spot along with the IO on the date. In his cross examination he admitted that he did not notice any semen stains at the spot. The report of the crime team also does not show that there was any semen found at the spot. The FSL report Ex.PXY also negatives the presence of semen.
71. Thus, it can been seen that no semen stains were found at the spot by the police officials or the crime team. There are no semen stains found on the clothes or in the vaginal and cervical swabs of the prosecutrix after FIR No. : 427/07 46 the alleged incident, which also makes one doubt about the veracity of the statement of the prosecutrix.
72. Now about the place where the incident took place : It is alleged by the complainant that she was pushed and thrown to the ground by the accused persons. The ground here is the floor of the reception hall/room of the school. The doctor PW1 in her cross examination had stated that the prosecutrix had not told her whether she was sexually assaulted on the rough surface or on the bed. She further submits that if the prosecutrix was pushed and sexually assaulted on the rough surface the injury on her back and thigh will depend on how much the surface is rough or what clothes she was wearing i.e. it means that if she was being sexually assaulted on rough surface (like floor) there would an injury on her back or thigh (to some extent atleast). However, there is no mention of any injury on her back or thigh during her medical examination which also makes one doubt the story put FIR No. : 427/07 47 up by the prosecutrix. Though she stated that she was pushed inside the room and thrown on the ground but there was no injury on her.
73. The prosecutrix had stated in her cross examination that the hall was a very big hall and the telephone wires were visible in the photographs when she was shown the point A in photograph Ex.PW2/DC2. She also states in another place in her crossexamination that her rape was committed all this while when she was making calls from this landline phone to the PCR. It itself sounds very strange as the landline phone could not have been at such an accessible distance from her that she could make the telephone call while being so molested and raped.
74. Then there is also the DD no. 38 B dated 030607 in which it has been alleged by accused O.N. Tiwari against the husband of the prosecutrix that after having been released from jail on 020607 the husband of the prosecutrix threatened him that he would involve him in FIR No. : 427/07 48 various false cases and that he was afraid that he would implicate him in false cases.
75. The first question then arises with respect to place of occurrence : SI Aditi Lily has been examined as PW9 and had accompanied ACP Achala Rampal to the house of the prosecutrix on 210607. The witness was also questioned about the building of school/house of the prosecutrix. She admitted that there was a huge gate installed outside the school building but she could not say if a person could jump over the gate and enter the said premises. She could not say as to how many gate/doors one has to cross to reach the place of occurrence in the said building from the main outer gate. She testified that chowkidar of the school was present besides the complainant when they reached the spot on 210607 to prepare the site plan. However, chowkidar was not there on 160607 as it was holiday and the statement of chowkidars were recorded on 200607 in which they stated that they were not present on FIR No. : 427/07 49 160607 as it was holiday. She categorically stated that chowkidars were present on 190607 and 210607 when she went there with her staff. PW6 ASI Saroj had admitted in her crossexamination that first of all they had to cross the main entry gate of the school and then there was a entry gate which leads to the other floor of the house.
76. It is also argued by the counsel for the accused persons that there were CCTV cameras installed at the gate as also installed at the building of the school and also at the spot where the incident is alleged to have taken place. If the incident as alleged by the prosecutrix had taken place, then CCTV cameras would have captured the accused persons entering the school building from the main gate and then committing this act with the prosecutrix. The prosecutrix in her cross examination admitted that there were CCTV cameras in her school which were installed to check the cheating incident and other activities of the children. The place FIR No. : 427/07 50 where the alleged incident has taken place as stated by the prosecutrix is a common hall by the side of the canteen in which the parents of students used to assemble and there was sofas etc. in that room. She stated that CCTV camera installed in the hall/room was not in working condition and there was no facility of recording in that camera. Though the prosecutrix had stated that there were no CCTVs installed at the gates, her husband who has been examined as PW4 had stated that CCTV cameras were installed at the main gate of the school.
77. The accused persons had taken a stand that on the said date i.e. on 160607 in the afternoon they were present in the PSVasant Kunj for making complaint against the husband of the prosecutrix. It was their stand that infact the police official Asha Rani, who was the duty officer was known to the prosecutrix and had informed the prosecutrix about the presence of accused persons in the PS. The prosecutrix had accordingly first FIR No. : 427/07 51 named accused O.N. Tiwari and thereafter when she came to know that accused Puran Chand had left the PS, she also named him in the said incident. The fact of accused persons present in the police station on 160607 in the afternoon is also confirmed by PW8 SHO/Inspector Rajender Paul who admitted in his cross examination that both accused persons had visited the PS in the afternoon on 160607 in relation to complaint under SC/ST Act and the duty officer had sent the accused persons to his office. The witness also admitted that FIR no. 356/07 dated 290507 u/s 323/341/506 IPC was registered against the husband of the prosecutrix on the complaint of Puran Chand (accused). Thus, it can be seen that FIR against the husband of the prosecutrix was registered on the complaint of accused Puran Chand. The witness has also admitted that the other accused O.N. Tiwari had lodged the complaint against the threats by the husband of the prosecutird. The said complaint was recorded vide DD no. 38B dated 030607 FIR No. : 427/07 52 which is also few days before the incident. Then there is another complaint recorded vide DD no. 29A dated 120607 which is also few days before the incident and was recorded on the complaint of accused Puran Chand against the threats extended by the husband of the prosecutrix.
78. Then there is the evidence of DW4 Shri Ramesh Chand Gautam, who testified that on 160607 he had gone to the PSVasant Kunj for police verification form at around 1.001.15 pm and remained there till 2.15 pm. He was told to wait in the waiting room by one police official Asha Rani. There he met Jatan Singh,. Smt. Sheela Devi, Onkar Nath Tiwari (accused), Puran Chand Kaushal (accused) and Vinay (son of Jatan Singh). He further testified that he along with accused Puran Chand Kaushal had left the PS at 2.15 pm after completing his work. Prior to this he did not know accused Puran Chand Kaushal and Onkar Nath Tiwari. Thus it is established from the statements of PW8 and FIR No. : 427/07 53 DW4 that the accused persons were present in the afternoon in the PS on the said date i.e. 160607.
79. Though the prosecutrix had taken a stand that she did not know accused Puran Chand and O.N. Tiwari earlier, her husband had admitted to the contrary. In his crossexamination as PW4 he categorically stated that he knew accused O.N. Tiwari since last 15 years and accused Puran Chand since 200506 and had good relations with both of them.
80. Then there is DD no. 29A of PSVasant Kunj dated 120607 in which it has been alleged by accused Puran Chand against the husband of the prosecutrix that he had apprehensions from him as he had threatened to involve him in various false cases.
81. Then there is this FIR no. 451/07 PSVasant Kunj registered on 250607 u/s 3 of SC/ST Act on the complaint of accused Puran Chand. The FIR in the said case has been registered on the complaint by accused Puran Chand on 140607 about having been abused and FIR No. : 427/07 54 threatened by husband of the complainant on 270107 and thereafter. Thus it is seen that this case u/s 3 SC/ST Act was registered against the husband of the prosecutrix on the complaint which was made by accused Puran Chand prior to the present incident. There is evidence that there were disputes between them on account of encroachment on road and barricading of the passage/gali by the prosecutrix and her husband in which it was alleged that accused O.N. Tiwari, being the Secretary of the Welfare Association had also taken active part.
82. Thus, it is seen that prosecutrix has been making improvements. She denies knowing the accused persons prior to the incident. Whereas, the investigations and evidence reveals that the accused persons were well known to her and to her husband by name. They had cordial relations at one point of time. The wife of accused O.N. Tiwari even stood surety for the husband of the prosecutrix. Thereafter, the accused persons had FIR No. : 427/07 55 made a complaint against the prosecutrix and her husband for encroachment on the road. Accused Puran Chand had also made a complaint against the husband of the prosecutrix under SC/ST Act. The accused persons have also made a complaint against the husband of the prosecutrix for the threats extended by him to the accused persons. Thus it is evident that there is the dispute with respect to encroachment on public land.
83. Thus, from the evidence as discussed above it can be said that it is seen that the accused persons were present in the PS on the day of the incident at the relevant time. Not only this even the attending circumstances, whether prevailing before, or at the time of the phone call to the PCR or thereafter, rather point out that incident as alleged, just could not have taken place. The accused persons are thus acquitted of the charges levelled against them.
Announced in the open court on 21st April, 2012.
FIR No. : 427/07 56
(R. Kiran Nath) ASJ01/South New Delhi.
FIR No. : 427/07 57
State Vs Onkar Nath Tiwari FIR no. 427/07 PSVasant Kunj 21042012 Present: Shri Manoj Chaudhary, Ld. Addl. PP for the State.
Both accused on bail.
Vide separate judgment of the date, accused persons are acquitted of the charges levelled against them.
Accused persons are directed to furnish bail bond in the sum of Rs.20,000/ each with one surety each in the like amount in terms of section 437A Cr.PC on 26042012.
(R. Kiran Nath) ASJ01/Saket Court 21042012 FIR No. : 427/07 58 State Vs Onkar Nath Tiwari FIR no. 427/07 PSVasant Kunj 26042012 Present: Ld. Addl. PP for the State.
Both accused persons are present.
Bail bond u/s 437A Cr.PC furnished by the accused persons and accepted.
File be consigned to record room.
(R. Kiran Nath) ASJ01/Saket Court 26042012 FIR No. : 427/07 59