Delhi District Court
State vs . Johnson Etc. on 11 December, 2015
SC No. 34/15
FIR No. 132/15
PS: Mayur Vihar
State Vs. Johnson etc.
11.12.2015
ORDER:
1. Vide this order, I shall decide whether this case will continue to be heard by this court or it should be sent to the designated Fast Track Court for rape cases.
2. I have already heard ld. Addl. PP for the State and ld. counsels for the accused persons. Submissions of the IO/SHO and ACP concerned were also heard. I have perused the record.
3. FIR in the present case was registered upon the statement of prosecutrix wherein she alleged that on 19.02.2015 at about 11:30 pm, she had reached at Zook Club, Saket and took drinks. At about 00:15 hours, she came out and was waiting for a transport, when she saw a car and asked for lift. The occupants of the car agreed. The prosecutrix sat in the car on the rear seat between two persons. She alleged that soon after, the occupants of the car started misbehaving with her and touched her to which she resisted. She alleged that persons sitting on the rear seat removed her undergarments forcibly. She did not like it and vomited in the car. She further alleged that all the four occupants of the car took their turn to rape her in the car. She stated that they had changed their seats during the journey. She stated that all of them used condoms during the rape and threw the same out of the moving car. She had resisted the acts of the accused persons and scratched them. After some time the car stopped at the Toll barrier where she tried to shout but the occupants of the car threatened her to kill her. After the Toll barrier, the occupants of the car pushed her out of the car. Her hand beg was snatched by them. The hand beg contained money, passport, makeup articles and her personal belongings. She stated that due to fall from the car, she received injuries. She went to the Toll barrier and called the police. Police reached there and FIR No.132/15 State Vs. Johson etc. Page of 1 of 4 she was taken for medical examination. The statement of the prosecutrix was recorded in the presence of representative of the NGO. The FIR was registered u/s 376D/392/307/506/34 IPC at PS Mayur Vihar. The matter was investigated into.
4. During the investigation, statement of prosecutrix u/s 164 CrPC was also recorded wherein she reiterated the allegations of rape. CCTV footage were scanned. Vehicle in question could be seen in the footage of Toll barrier. The number of the car was disclosed as DL-2CM-1944 make Hyundai Accent car. The investigating agency traced the owner of the car who led them to Johnson and Vikas. Johnson and Vikas were arrested after interrogation. At the instance of Johnson, snatched bag of the complainant was recovered from the almirah/safe. Co- accused Deepak and Rakesh were also arrested at the instance of Johnson. Vehicle was also seized and was got inspected from Crime Team and CFSL, CBI, Lodhi Colony, Delhi. Six condom packs were found in the car. One yellow colour legging having blood stains was also found in the rear seat of the car. One black colour suit was also there. One black colour ladies shirt without sleeves was also found in the car. All these articles were seized. Accused Johnson refused to join the TIP proceedings. TIP of accused Deepak was failed as complainant could not identify him. Accused Rakesh and Vikas were duly identified in the TIP proceedings by the prosecutrix. Later on prosecutrix identified accused Deepak also during some hearing in the court and stated that earlier she could not identify him due to being nervous.
5. In this case, the investigating agency got the crime scene reconstructed by the CFSL, CBI, Lodhi Colony, Delhi. The CFSL, on the basis of reconstruction of scene of crime carried out by it, concluded that there was no physical or biological evidences were detected in the vehicle; and that the sequences of events as stated by the investigating officer were not consistent with the sequence of events occurs in the normal circumstances.
6. The exhibits were also sent to FSL, Rohini. From the report of the FSL, it was found that there was no male DNA in the Vaginal slide/swab of the victim or FIR No.132/15 State Vs. Johson etc. Page of 2 of 4 the Cervical swab of the victim. The female DNA was matched from the source of exhibit i.e. skirt of victim. Male DNA was generated from the source of exhibit i.e. legging which did not match with the male DNA i.e. of Vikas or Rakesh. DNA could not be generated from the blood of accused Johnson or Deepak due to degradation of samples. Report was also obtained from Chemistry Division of FSL. Further, lubricant found on the condoms was also not traced on the exhibits.
7. Thus on the basis of the report of CFSL about reconstruction of scene of crime coupled with other reports of FSL, the investigating agency concluded that the allegations of rape were not substantiated. However, it was of the opinion that something had happened inside the car and the investigating agency presumed that after the prosecutrix took lift in the car, the occupants of the car tried to enjoy the company of the prosecutrix and started talking to her and started touching her body but the prosecutrix vomited inside the car due to which the accused persons pushed her out of the moving car. Thus the investigating agency concluded that accused persons touched the prosecutrix inappropriately. Section 376D IPC was removed and instead of it, section 354 IPC was added. Chargesheet was filed u/s 392/307/354/506/411/34 IPC. The matter was committed to this court.
8. IO/SHO and the ACP concerned were called to clarify the matter.
9. The basis of the investigating agency was the report of the crime scene reconstruction of CFSL and the further reports of the FSL, Rohini. It is found that in this case, the investigating agency had not confronted the prosecutrix with the reports of CFSL as well as FSL, Rohini. It is strange that the version of the prosecutrix given in the FIR as well as in the statement u/s 164 CrPC was disbelieved and allegations of rape were held to be not substantiated merely on the basis of the crime scene reconstruction report and some medical evidences. In the crime scene reconstruction report, it was opined that rape as alleged by the prosecutrix was not possible, considering the size of body of the prosecutrix. As per the expert opinion, there was no sufficient space in the car so that any person of the size of the prosecutrix could be raped in the rear seat of the car in question. This FIR No.132/15 State Vs. Johson etc. Page of 3 of 4 opinion of the expert was never put to the prosecutrix during the investigation before filing the chargesheet.
10. In my view, the investigating agency faulted at this juncture. The prosecutrix must have been given opportunity to explain the circumstances. How could the sworn statement of prosecutrix (u/s. 164 CrPC) could be disbelieved without even giving her opportunity to explain the adverse reports? In my view, the prosecutrix was denied a fair opportunity to explain her case. It is settled law that in case of difference between medical evidence and sworn statement of prosecutrix in rape cases, the sworn statement would be given preference provided the same is truthful and reliable. In my view, the present stage of the proceeding is even more appropriate for application of the said statement of law when prosecutrix is alleging rape. There is nothing on record to suggest that prosecutrix is lying except the CFSL and FSL reports which were never put to her nor her explanation ever sought. It should have been taken as a case of rape until and unless she was not able to explain the contradictions. It is further strange that the investigating agency believes the allegations of rape as false but presumes that her modesty was outraged which was never the version of the prosecutrix. The opinion of the investigating agency is faulty and defective and is liable to be overlooked. There was prima facie material to take cognizance of the offences u/s 376D IPC as well and the case should have been sent to the Fast Track Court.
11. In this view of the matter, let the file of the present case be put up before Ld. District & Sessions Judge (East) on 17.12.2015 with request to send it to the Fast Track Court for Rape Cases. Parties to appear before the said court on the date fixed.
12. I may clarify here that I have not decided the issue of charge at this stage as the same exercise would be appropriately done by the Fast Track Court.
(SANJAY BANSAL)
ASJ-03/EAST/KKD/11.12.2015
FIR No.132/15 State Vs. Johson etc. Page of 4 of 4