Delhi District Court
State vs . Sweety on 19 May, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.191/13.
Unique Case ID No. 02405R0342862013.
State Vs. Sweety
D/o Sh. Prakash,
R/o House No.628, VPO Gubhana,
Distt. Jhajjar,
Haryana.
Date of Institution : 30.11.2013.
FIR No.279 dated 01.9.2013.
U/s. 376/323/506/120B IPC.
P.S. Najafgarh.
Date of reserving judgment/Order : 19.5.2015.
Date of pronouncement : 19.5.2015.
JUDGMENT
1. The above named accused Sweety was chargesheeted by the prosecution for the offences u/s.376/323/506/109/366 IPC.
2. The police machinery, in this case, was set into motion on receipt of information in P.S. Najafgarh on 01.9.2013 to the effect that the lady caller has been raped and beaten by a boy near Neelkanth Dham, Shani Bazar, Uttam Nagar Road, Najafgarh. The information was recorded as DD NO.27A and was entrusted to SI Kavita for inquiry. SI Kavita alongwith Lady Const. Anita reached the aforesaid spot. SHO alongwith staff also arrived there. SI Kavita found a PCR vehicle and the prosecutrix 'R' (real name SC No.191/13. Page 1 of 30 withheld in order to conceal her identity) present at the spot. The prosecutrix seemed to be in a frightened state and told her in weeping tone that she had been brought there by accused Sweety and her brother Gullu on the pretext of providing her a job, was beaten and was raped inside the bushes at the point of knife by Gullu. Thereafter, the prosecutrix showed to them the actual spot where she had been raped. Water had accumulated there on account of rain. The condition of the prosecutrix was not well as started vomitting. However, at her instance, a bottle of liquor, two white disposable glasses and a long plastic rope were seized from the spot. Prosecutrix also handed over a few hair strands to the IO. Search was made for the knife used in the incident but could not be found. The prosecutrix took out a postcard sized photograph and original Marksheet of Ashish s/o Babli and Prakash from a white polythene bag and handed over the same to the IO. As the prosecutrix started vomitting again and her condition worsened, the IO alongwith Lady Const. Anita and Const. Pankaj took her to RTRM Hospital for medical examination.
3. Thereafter, the IO recorded the statement of the prosecutrix wherein she mentioned in detail as to how she came in contact with accused Sweety, the circumstances in which she was brought by accused Sweety and Gullu to the aforesaid spot and was raped by Gullu. IO prepared rukka and got the FIR registered. Then the police officials reached the address mentioned on the documents found at the spot i.e. village Gobana and brought accused Sweety as well as her brother Ashish to the police station for inquiries. Upon interrogation in the police station, accused Sweety was arrested whereas her brother Gullu, being a juvenile, SC No.191/13. Page 2 of 30 was apprehended and kept with Juvenile Welfare Officer SI Veer Singh. He was then got medically examined and was lodged in Sewa Kutir, Kingsway Camp. Statement of the prosecutrix u/s.164 Cr.PC was got recorded on 02.9.2013 wherein she corroborated her version contained in the FIR. The call detail records and location chart of the mobile phones of the prosecutrix and accused Sweety were obtained by the IO. Hair sample of accused Sweety was collected from DDU Hospital to compare it with hair strands found at the crime spot. All the exhibits of the case were sent to FSL for forensic examination. Statements of the relevant witnesses u/s.161 Cr.PC were recorded.
4. After completion of the investigation, IO prepared the Charge Sheet and submitted the same to the concerned Ld. M.M.
5. Upon committal of the case to the court of Sessions, Charges u/s.366 IPC, u/s.376/109 IPC, u/s.506 IPC and u/s.323 IPC were framed against the accused on 20.12.2013. The accused denied the charges and hence trial was held.
6. The prosecution has examined 12 witnesses to prove the charges against the accused. The accused was examined u/s. 313 Cr.PC on 02.1.2015 wherein she denied the prosecution case and claimed false implication. She claimed that she does not know the prosecutrix at all and had not met her before she saw her in the police station after her arrest in this case. She further stated that no incident of rape had happened with the prosecutrix in her presence on 31.8.2013 and in fact, she herself was raped by Sonu, Rakesh, Ramesh and Naipal on that day. Accused has examined SC No.191/13. Page 3 of 30 herself as DW1 in her defence.
7. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire record.
Details of witnesses examined by the parties
8. The prosecution has examined following witnesses:
(1) PW1 is HC Roshan Lal. He was the Duty Officer in P.S. Najafgarh on the night intervening between 31.8.2013 and 01.9.2013 from 12 midnight to 8 a.m. He had received (2) PW2 is Dr. Ritu Kathuria. She had obtained the hair sample of the accused in DDU Hospital on 26.10.2013 and handed over the same in sealed condition to the IO. She proved the MLC prepared by her as Ex.PW2/A. (3) PW3 is the prosecutrix. Her deposition would be discussed in detail in later part of the judgment.
(4) PW4 is Mr. Deepak, the Nodal Officer of M/s. Vodafone Mobile Services Ltd. He proved the customer details in respect of mobile no. 9899937931, according to which it was allotted in the name of Ms. 'R' (the prosecutrix). He proved the customer application from as Ex.PW4/A and its call detail record from 28.8.2013 to 01.9.2013 as Ex.PW4/C alongwith certificate u/s.65B of the Evidence Act as Ex.PW4/E. He also proved the Cell ID Chart of his company as Ex.PW4/E. He stated in the cross examination that the SC No.191/13. Page 4 of 30 customer 'R' had applied for the mobile connection on 27.8.2013.
(5) PW5 is Sh. Pawan Singh, the Nodal Officer of M/s. Idea Cellular Limited. He proved the customer details in respect of mobile no. 8221083709, according to which it has been allotted in the name of Babli w/o Sh. Prakash, r/o Village Gobana, Bahadurgarh. He proved the customer application form as Ex.PW5/A and the call detail records of the said mobile phone for 31.8.2013 as Ex.PW5/C alongwith the certificate u/s. 65B of the Evidence Act as Ex.PW5/D. He then again produced the call detail record of the said mobile phone for 28.8.2013 and 30.8.2013 on the next date and proved the same as Ex.PW5/D alongwith certificate u/s.65B of the Evidence Act as Ex.PW5/E. (6) PW6 is Sh. Guddu Prasad Yadav, the Branch Head of M/s. Jan Lakshmi Financial Service Pvt. Ltd., Uttam Nagar. He deposed that a sum of Rs.
15,000/- was disbursed as loan to prosecutrix 'R' on 17.8.2013 vide loan agreement Ex.PW6/A and demanded promissory note Ex.PW6/B. He has stated that the prosecutrix had opened a loan account no. 30298140096704 with the company and proved its statement of account as Ex.PW6/C. (7) PW7 is Sh. Ashok Kumar Jain. He is the owner of Femina Beauty Parlour, Najafgarh, and deposed that he had employed prosecutrix 'R' as a helper in the said Beauty Parlour in second half of August, 2013. According to him, she worked in the Beauty Parlour for SC No.191/13. Page 5 of 30 about one week. He could not tell the date when she had joined the parlour and when she stopped coming to the parlour. In the cross examination conducted by Ld. APP after he was declared hostile, he denied having stated to the police that the prosecutrix had started working in his parlour on 20.8.2013 and left on 31.8.2013.
(8) PW8 is Lady Const. Anita. She was on night duty at Women Help Desk in P.S. Najafgarh on the night intervening between 31.8.2013 and 01.9.2013 from 8 p.m. to 8 a.m. She had accompanied SI Kavita to the crime spot. She deposed that when they saw prosecutrix at the spot, her clothes were wet as well as muddy and she told them that she has been raped by one Gullu. She showed them the actual crime spot which was nearby. According to her, an empty liquor bottle, two disposable glasses and one rope were found at the spot. She further stated that as the prosecutrix was feeling like vomitting, they took her to RTRM Hospital for treatment. She stated that there were red markes on the throat and hands of the prosecutrix. SI Kavita took her to a toilet in the hospital where she clicked her photographs with her mobile phone. After medical examination of the prosecutrix in the hospital, the doctor handed over to her certain sealed pullindas and one sample seal, which she gave to SI Kavita, who seized those vide memo Ex.PW3/F. At the request of Ld. APP, she was declared hostile on certain points and in the cross examination conducted SC No.191/13. Page 6 of 30 by Ld. APP, she admitted that the prosecutrix had handed over a bunch of hairs to SI Kavita at the spot of incident. Sjhe further stated that at the request of SI Kavita, she sent Const. Pankaj to the house of her paternal aunt (Bua), who brought a Suit Salwar there from, which was worn by the prosecutrix in the hospital and the clothes worn by her were taken into possession by the doctor. She also admitted that SI Kavita had recorded the statement of the prosecutrix in the hospital in her presence. She identified the liquor bottle Ex.P1 with its outer box as Ex.P2, two plastic glasses as Ex.P3 and a plastic rope Ex.P4, when shown to her in the witness box.
(9) PW9 is Const. Pankaj. He had accompanied the SHO to the crime spot on 31.8.2013 and was witness to the seizure of liquor bottle, disposable glasses and rope by IO SI Kavita from the spot. The prosecutrix had also handed over a photograph and Marksheet of one Gullu to IO in his presence. Thereafter, he had accompanied SI Kavita, Lady Const. Anita and the prosecutrix to RTRM Hospital. From there, he had been sent by IO SI Kavita to Lady Const. Anita's Bua's house at Nanafgarh, wherefrom he brought a Suit Salwar and handed over the same to SI Kavita.
(10)PW10 is Const. Mohit. He had taken certain sealed pullindas alongwith sample seal to FSL on 26.9.2013. (11)PW11 is Ms. Manika, Ld. M.M., who recorded the statement u/s.164 Cr.PC of the prosecutrix on 02.9.2013 Ex.PW3/C. She proved her certificate in SC No.191/13. Page 7 of 30 support of that statement as Ex.PW11/A. (12) PW12 is the IO SI Kavita. She has described the circumstances in which she had reached the spot of incident on 31.8.2013 where she met the prosecutrix, made inquiries from her, seized articles from the spot, took the prosecutrix to RTRM Hospital for medical examination, recorded her statement and got the FIR registered. She also mentioned in detail the steps taken by her in the investigation of this case after registration of the FIR.
9. As already noted herein-above the prosecutrix has been examined as PW3. The relevant portion of her examination in chief is reproduced herein below :
"I had taken up a job in Famina Beauty Parlour in Tura Mandi, Najafgarh, New Delhi, w.e.f. 20.8.2013. On 24th or 25th August, 2013 when I had come out of the parlour in the evening and was proceeding on foot towards my house, accused Sweety (present in court and correctly identified) stopped my way. I did not know her. She asked me whether I am working in the Beauty Parlour and I replied in affirmative. On her asking, I told her that I am earning Rs.2,000/- per month. She told me that she can make me to earn about Rs.10,000/- per day but I told her that I am not interested in such earnings as it would be only from an illegal job or trade. She told me that I should think over her proposal and she would meet me again tomorrow. However, she did not reveal her name and other particulars to me at that time.
Next day, she met me again outside the parlour in the evening. She told me that she has misplaced her mobile phone and asked me to give her my mobile phone so that she can locate her mobile phone by dialling her mobile number from my mobile number. I SC No.191/13. Page 8 of 30 gave her my mobile phone. She made a call from my mobile phone upon her mobile number and it was in her purse. Then she returned my mobile phone to me. She then told me that she can get me a job at a Beauty Parlour in Gurgaon which is run by her relative wherefrom I can earn salary of Rs.7,000/- to Rs.8,000/- per month. I agreed. She then told me to lend her Rs. 5,000/- as she is not having any money with her and she required the money for the admission of her brother. She told me that she would return the amount later on to me alongwith interest of Rs.1,000/-. But I was not having any money with me and hence I was not in a position to give money to her.
Next day i.e. 29.8.2013 she again met me in the evening of said Beauty Parlour. I had brought Rs. 5,000/- with me to be given to her. I was having money at my home as I had taken a loan of Rs.15,000/- from M/s. Jan Laxmi Finance Company. I handed over Rs. 5,000/- to Sweety and she left.
On 30.8.2013 I received a call from Sweety and she told me to meet her in village Gobana, Haryana, where she would return my money to me and also would introduce me to the owner of the Beauty Parlour there. I told her how I can come alone to village Gobana and she told me that I can get a direct RTV Bus from Dhansa Bus Stand. However, I did not go there on that day. I went to village Gobana to meet Sweety on 31.8.2013. I reached there at about 6 p.m. Sweety alongwith a boy met me at the bus stand. She introduced that boy as her brother. She told me that she has received a call from the owner of the Beauty Parlour to meet him in Najafgarh. Accordingly I alongwith Sweety and that boy boarded the bus again and reached Najafgarh. We alighted from the bus at Dhansa Bus Stand, Najafgarh, and from there we took an auto rickshaw upto Sai Baba Mandir in Najafgarh. They stopped the auto rickshaw before reaching Sai Baba temple and took me into a gali where there was a sign board of Neel Kanth Dham. After walking through the gali for about 5 to 10 minutes, we reached an open space where there were bushes all around. By that time, it was complete dark and it was about to rain. I saw light emanating from a house at a distance of SC No.191/13. Page 9 of 30 about 100 meters from that place and they told me that it is the house of the Beauty Parlour owner. On reaching in the middle of the bushes, they stopped. I became frightened and told Sweety that I do not want my money back and I want to return to my home. However, Sweety told me that she has consumed liquor and hence cannot go to the house of the Beauty Parlour owner and he would himself come to this place. Sweety's brother Gullu took out a liquor bottle and two plastic glasses from a bag, which was hanging from his shoulder. Sweety and Gullu started consuming liquor. They asked me also to consume the liquor but I refused and in this struggle, some liquor fell on my clothes. Gullu then took out a knife and a rope from the bag. He tied my hands with a rope on my behind. Then he gagged my mouth. Sweety told her brother that he should teach me a lesson or I would not follow their directions easily. Sweety stood aside and her brother Gullu committed rape upon me. He also bite on my thighs and abdomen beneath my breast. I was not in a position to resist as Gullu had shown me the knife, upon which I had become terrified. I was wearing a shirt and Salwar. My shirt had got torn in the struggle. After Gullu raped me, Sweety came near me and beat me mercilessly. It had started raining while I was being raped by Gullu. My clothes as well as my whole body had become drenched with mud. They threatened me that if I disclosed the incident to police, they would kill me and my daughter. Thereafter both Sweety and Gullu ran away from the spot. Gullu had used condom while raping me.
On account of fear of accused Sweety and Gullu, I remained at the spot for some time. Thereafter I slowly untied my hands. I made a call at telephone no. 100 from my mobile phone no.9899937931. I wrapped my upper body parts with the Chunni and walked upto the main road. Sweety and Gullu had left the rope, two glasses liquor bottle and a polythene bag at the spot. I opened that polythene bag. It was having photograph of Gullu and his Xth class marksheet. It was still complete dark by that time. After sometime, I saw a police vehicle and I ran towards it. I took the police officials in that vehicle to the spot where I was raped.SC No.191/13. Page 10 of 30
They inspected the spot but did not conduct any proceeding there. They brought me to the main road again in the same vehicle. Thereafter one more police vehicle reached there. SHO and other staff of police station were in the said vehicle. I took them to the spot of incident. One of the police officials photographed the spot. They lifted one bottle, two plastic glasses and one rope from the spot. I was not feeling well and therefore, they did not make any inquiry from me at the spot. The police officials brought me to the police station.
From the police station, I was taken to RTRM Hospital, where we reached at about 10.45 p.m. I was examined in the hospital. The doctor seized my all clothes which I was wearing. The lady police official accompanying me gave me a Suit Salwar to wear. From the hospital, I was brought back to the police station. In the police station, my statement was recorded. The photocopy of the statement is Ex.PW3/A bearing my signature at point A. (original statement of the witness is in the case file pertaining to juvenile Gullu which is being tried by JJB. The Ld. Counsel for the accused submits that he has no objection if the photocopy of the statement of the witness is exhibited).
My husband and my sister had also reached the police station. They took me home after my statement was recorded by the police official."
10. She further deposed that she had been called to the police station on the next day i.e. 01.9.2013 and on reaching there, she saw accused Sweety and her brother Gullu present there. Her signatures were taken on the arrest memo of accused Sweety Ex.PW3/B. Upon asking of the police officials, he reached Dwarka Court on 02.9.2013 where she was produced before a lady Magistrate, who recorded her statement Ex.PW3/C. She further identified the photocopy of 10th class Marksheet of Ashish, which had been lifted by police officials from the spot of incident in her SC No.191/13. Page 11 of 30 presence. She also identified her photograph Ex.PW3/D which had been taken by the IO in RTRM Hospital from her mobile phone.
11. In the cross examination, she deposed that her age is 22 or 23 years but did not remember her exact age. She stated that 'R' is her real name since her birth and she has been staying in Delhi since her childhood. She deposed that she had met SI Kavita for the first time on the date of incident at the spot of incident and had not met her before that day and denied that she had made discussion with SI Kavita regarding statement to be given by her. She further deposed that it was raining heavily when she was being raped but the rain had stopped when she had shown the spot to the police officials. Her all clothes had become wet on account of rain. According to her, the incident of rape had taken place at about 7 p.m. or 7.30 p.m. and it was complete dark at that time. She deposed that after about half an hour of the incident of rape when she rose up, she found that her phone was lying in the grass nearby and she made a call at telephone no.100. There were water drops on the mobile phone also and she wiped it by her clothes. There was light on its screen and she realized that it was in working condition. She had made two calls on telephone no.100 within five minutes of each other from her mobile phone no.9899937931. She had obtained the said mobile number just 4 to 5 days before the date of incident. Before that she was not using any mobile phone. She admitted that she had mentioned two mobile numbers at the Beauty Parlour where she was working and stated that these were being used by her brother and her younger sister. She further explained that mobile no.9540290321 was being used by her brother Arvind Kumar and mobile no.
SC No.191/13. Page 12 of 309212961541 was being used by her younger sister Sarita Kumari during those days.
12. She stated that the mobile number of IO SI Kavita is 8376912066 and denied that she had made call on the said mobile number before registration of FIR. She denied that SI Kavita had provided her another mobile no.09968877422. She deposed that her mobile handset was of make Nokia but could not tell its model. She had purchased the same for about Rs.1100/- or Rs.1200/- and the mobile connection was activated after about 24 hours. The handset was of blue colour. She stated that her handset was taken by the police officials on the date of incident either in the police station or in the hospital and they told her that it is not working. She stated that the mobile handset is still in possession of the police officials. She had found certain hair strands on her clothes. She took off her clothes in the hospital on the asking of the doctor and handed over those hair strands to the IO. She had not activated the internet facility or GPRS on her mobile phone. She was not able to run away from the spot as her hands had been tied by a brown colour rope. She could not tell the length of the rope. She deposed that she was wearing black and white colour printed Suit Salwar at the time of incident.
13. She further deposed that she had worked in the Beauty Parlour from 20th or 21st August, 2013 to 31st August, 2013. The Beauty Parlour was situated near her residence. She had got the mobile no. 9899937931 activated on 28.8.2013 or 30.8.2013. She stated that she must have met accused Sweety three or four times before the date of incident. She had paid Rs.5,000/- to her at SC No.191/13. Page 13 of 30 the time of their second meeting. She admitted that she was not aware about the residential address and other particulars of the accused on that day. She also admitted that she did not know whether her real name was Sweety or something else. She had not lent any money to any unknown person before that day. She stated that she had taken a loan of Rs.15,000/- from M/s. Jan Lakshmi Finance Company for admission of her daughter in school. However, she admitted that the admission of her daughter was not to take place in the month of July. The company had disbursed a sum of Rs.15,000/- in cash to her, which she had to repay in 10 instalments of Rs.1480/- each and the last two instalments were to be in the amount of Rs.1470/- each. She further deposed that she had visited village Hirankudna in the morning of 31.8.2013 and thereafter she reached Najafgarh via Nangloi after 4 p.m. She admitted that she did not join her full duty in the Beauty Parlour on that day. She worked in the Beauty Parlour from 4 p.m. to 5 p.m. only on that day. She made calls on the mobile number of accused Sweety twice or thrice on that day. When she received call from accused Sweety at about 3.15 p.m. on that day, she was at Nangloi. She denied the suggestion that she was present in village Hirankudna at that time. She again stated that she had not gone to the Beauty Parlour for her job on that day but had gone to meet Parlour's owner for increase of her salary as her salary had not been fixed by that time. She disclosed the mobile number of her husband as 9990166036. She further deposed thatshe had reached Dhansa Bus Stand at about 4.45 p.m. or 5 p.m. on that day i.e. 31.8.2013. She admitted that in her complaint to the police, she has mentioned about Chhawla Bus Stand and not Dhansa Bus Stand and explained that it took her 5 or 6 minutes to SC No.191/13. Page 14 of 30 reach Dhansa Bus Stand from Chhawla Bus Stand and upon leaving the Beauty Parlour where she was working, Chhawla Bus Stand comes first. Here she stated that she cannot tell the time when she left Dhansa Bus Stand but at another place, in the cross examination, she has deposed that she boarded Gramin Sewa vehicle at Dhansa Bus Stand, Najafgarh, at about 5.30 p.m. or 6.00 p.m. and reached village Gubhana in half an hour. She got down from RTV at Gubhana Bus Stand.
14. She was confronted with her statement to police Ex.PW3/A wherein she had not mentioned that Gullu had used condom at the time of committing rape upon her. She further stated that the IO did not find any such condom at the spot of incident and had lifted only one bottle of liquor, two plastic glasses, one rope and a plastic bag containing one certificate and one photograph of Gullu from the spot. She had signed the seizure memo prepared by the IO regarding these articles in the hospital. She stated that the IO had seized her Suit Salwar, Dupatta and undergarment in the hospital. She admitted that there is no mention of her undergarment in the seizure memo dated 01.9.2013 Ex.PW3/F. She admitted that this seizure memo does not bear her signature. She further stated that only one rope was lifted by the IO from the spot but she could not tell the length of the rope. Only her hands had been tied with rope. The rope was also thrust into her mouth. Her hands had been tied at her back. She was made to lie on the ground on her back and her hands were beneath her back. She had kept her mobile phone near her chest inside her brasserie which had fallen down during the course of incident. She admitted that it was raining at that time but the SC No.191/13. Page 15 of 30 water had not accumulated at that spot. The soil had become wet at the spot due to rain. The mobile phone also had become wet and there was some wet soil on the same. She had wiped off the water and soil from the mobile phone by her Chunni. She had found the mobile phone amongst the bushes which was just adjacent to the spot where she had been raped. She had made first call from telephone no.100 from the spot of incident itself and the second call was made by her after travelling a distance of about 25 paces from that spot. She denied that she had made second call at telephone no.100 from village Kakrola. She did not make any call to any person from her mobile phone after the incident of rape. She even did not make any call to her family members after calling at telephone no.100. She did not recollect whether she had received any text message on her mobile phone from the mobile phone of accused Sweety on 31.8.2013. She admitted that she has mentioned in her statement u/s.161 Cr.PC that she boarded an auto rickshaw from Chhawla Bus Stand. She further denied all the suggestions put to her. She was also confronted with her statement to the police Ex.PW3/A wherein she had not mentioned certain facts which she has stated in her examination in chief before this court.
15. As per the prosecution case, the prosecutrix was raped by accused's minor brother on her exhortation and in her presence on 31.8.2013 at around 8.30 p.m. at a secluded place near Aman Vihar Colony, behind Neelkanth Dham, Najafgarh. It appears from the testimony of the prosecutrix that the accused exhorted her brother to rape the prosecutrix in order to teach her a lesson and to avoid repayment of loan amount of Rs.5,000/- to her which the SC No.191/13. Page 16 of 30 prosecutrix is stated to have given to her on 29.8.2013.
16. The deposition of the prosecutrix indicates that she met the accused for the first time on 24th or 25th August, 2013 outside the Beauty Parlour where she was working. The accused was a total stranger to her. Accused offered her a job wherefrom she could earn Rs.10,000/- per day but she did not show any interest in the same saying that it would be only an illegal job or trade. Accused did not reveal her name and other particulars to her at that time and only asked her to think about the proposal. She has further deposed that the accused met her again the next day near the same Beauty Parlour and took her mobile number by deceit. Accused, this time, told her that she can get her a job at Beauty Parlour in Gurgaon run by her relative where she can get a salary of Rs.7,000/- to Rs.8,000/- per month, to which she agreed. The accused further demanded a loan of Rs.5,000/- from her which the accused required for admission of her brother and promised to return the same alongwith interest of Rs.1,000/-. However, the prosecutrix was not having any money on that day. The prosecutrix met her again the next day i.e. 29.8.2013 in the evening in front of same Beauty Parlour and paid a sum of Rs. 5,000/- to her and the accused left.
17. The prosecutrix has admitted in her cross examination that she was not aware about the residential address and other particulars of the accused on the day when she lent a sum of Rs. 5,000/- to her. She also did not know whether the real name of the accused was Sweety or something else. I find it totally unbelievable that a person would lend a sum of Rs.5,000/- to a SC No.191/13. Page 17 of 30 complete stranger in their second or third meeting when he/she does not know the real name, residential address and other particulars of the borrower. The prosecutrix has deposed in the cross examination that she has not lent money to any unknown person beore that day which makes her conduct more curious as to what prompted her to pay Rs.5,000/- as loan to the accused before trying to know her fully well. It further intrigues this court that the prosecutrix did not ask the full name, mobile number and residential address of the accused even at the time of paying Rs. 5,000/- to her.
18. The prosecutrix has then deposed that on the asking of the accused, she reached their Village Gobana on 31.8.2013 at about 6 p.m. to meet the accused and to receive back her money. Accused was accompanied by a boy whom she introduced her as her brother and they brought her to Najafgarh in a bus wherefrom they took an auto rickshaw upto Sai Baba Mandir in Najafgarh. There they took her into a gali and reached an open space after walking for about 5 to 10 minutes where they were bushes all around. On reaching there, the accused and her brother consumed liquor and thereafter accused's brother showed a knife to the prosecutrix, tied her hands with a rope on her back, gagged her mouth and raped her. She deposed that it started raining while she was being raped by accused's brother and her clothes as well as her whole body had become drenched with mud. She deposed that after accused and her brother left the spot, she untied her hands slowly and made a call at telephone no.100 from her mobile no.9899937931.
SC No.191/13. Page 18 of 3019. It is evident from the above noted portion of the testimony of the prosecutrix that she had met the accused and her brother in village Gobana, Haryana, at 6 p.m. and she was there having her mobile phone with no. 9899937931 with her. The call detail records and the location of this mobile number for 30.82013 and 31.8.2013 have been proved by the Nodal Officer of M/s. Vodafone Mobile Services Limited (PW4) as Ex.PW4/C.
20. The call detail records and location of mobile no. 8221083709 which is stated to have been used by the accused on 30.8.2013 and 31.8.2013 have been proved by PW5, the Nodal Officer of M/s. Idea Cellular Limited. According to his deposition, the said mobile number was allotted in the name of Babli, the mother of the accused. It may be noted here that though there is no evidence on record that Babli is the mother of the accused herein, this fact had come on record during trial in case FIR No. 88/13, P.S. Najafgarh, titled State vs. Inderjeet Kala & Ors., in which the accused herein was the complainant/prosecutrix and which case also was tried and disposed off by this court. Further, the accused in her deposition as DW1 has stated that she was using mobile no. 8221083709.
21. The testimony of the prosecutrix shows that there had been no telephonic conversation between her and the accused on 31.8.2013. However, the CDR Ex.PW4/C demonstrates that she had received two text messages from mobile number of the accused i.e. 8221083709 at 1.51 p.m. and 2.26 p.m. Thereafter she received a call from same mobile number at 3.11 p.m. lasting for 353 seconds i.e. 6 minutes. She then made a call on the said SC No.191/13. Page 19 of 30 mobile number at 6.01 p.m. and immediately received call from same mobile number. She then made two continuous calls on the said mobile number at 6 p.m. and 6.14 p.m. lasting for 53 second and 2 seconds respectively. She then received a call from the same mobile number at 6.15 p.m. which lasted for 148 seconds. Thereafter, she made a call on the said mobile number at 6.25 p.m. which lasted for 91 seconds. She again made a call on the same mobile number at 6.36 p.m. and received two consecutive calls from the same at 6.41 p.m. and 6.44 p.m. She has made a call at telephone no.100 at 8.53 p.m. However, she received a call from landline no.23861102 at 8.58 p.m. and then four consecutive calls from the accused's mobile no. 8221083709 at 8.59 p.m., 9.01 p.m., 9.02 p.m. and 9.04 p.m. respectively. She then made a call at the aforesaid landline no. 23861102 at 9.05 p.m. and then again made a call at telephone no.100 at 9.06 p.m. She then received a call from accused's mobile number again at 9.07 p.m. which lasted for 171 seconds i.e. about 3 minutes. The CDR of the mobile phone of the accused Ex.PW5/C & Ex.PW5/D confirm exchange of these calls between her and the prosecutrix.
22. The exchange of such number of calls between the mobile number of the accused around the time when the incident of rape is stated to have taken place and even after the prosecutrix had made first call at telephone no.100 intrigues this court and brings the version of the prosecutrix within the sphere of doubt. When, according to prosecutrix, she had met the accused at 6 p.m., where was the occasion for the two to exchange calls to talk to each other on phone. No evidence has been led by the prosecution to show whose landline number is 23861102, from SC No.191/13. Page 20 of 30 which the prosecutrix had received a call at 8.58 p.m. i.e shortwhile after making first call at telephone no.100 and on which she had made a call at 9.05 p.m., immediately before making second call at telephone no.100. Why had the identity of this person been kept secret by the prosecution and why did not the prosecutrix apprise that person about the rape incident is what also creates suspicion in the mind of the court regarding truthfulness of the prosecution case. The prosecution has also not made any attempt to explain why the prosecutrix did not disclose that she had received four consecutive calls from the accused in between the two calls by her at telephone no.100 and what were the contents of those calls. Be that as it may, the conduct of the prosecutrix in talking to the accused on phone several times before and after making calls at telephone no.100 does not indicate that any such incident of rape had taken place as stated by her.
23. The prosecutrix has deposed in her cross examination that she did not make any call either to her family member or to any other person from her mobile phone after the incident of rape and after making calls at telephone no.100. The call detail records of her mobile phone, as noted herein-above, demonstrate that she has deposed falsely in this regard as she had received four consecutive calls from the accused and had made a call at landline no. 23861102 after making the first call at telephone no.100. She has deposed that she has made first call at telephone no.100 from the spot of incident itself i.e. near Neelkanth Dham, Sai Baba Mandir, Najafgarh and second call at a distance of about 25 paces from that spot. However, the call detail records Ex.PW4/C show SC No.191/13. Page 21 of 30 that the first call was made by her at telephone no.100 from Roshan Garden, Najafgarh, and the second call from Patel Garden, Dwarka. These two places are nowhere near the spot of incident as mentioned by the prosecutrix and are very distant from each other. This also falsifies the version of the prosecutrix.
24. The prosecutrix has deposed in her cross examination that it was raining heavily when she was being raped by accused's brother and all her clothes had become wet on account of rain. She has further deposed that she had kept her mobile phone near her chest inside her brasserie which had fallen down during the course of incident and the mobile phone has also become wet. There was some wet soil on the same which she wiped off by her Chunni. She had found the mobile phone amongst the bushes just adjacent to the spot where she had been raped. Hence, as per the testimony of the prosecutrix, the mobile phone had remained on the wet soil for a considerable period, during which she was being raped by the accused's brother and it was raining heavily during that time. This raises a doubt in the mind of the court as to how the mobile phone could work even after being exposed to heavy rain and wet soil for a long time and how the prosecutrix was able to make and receive calls on it after the rape incident. The fact that the mobile phone of the prosecutrix was in order and could be used without any difficulty indicates that it had not been exposed to rain or wet soil, as stated by the prosecutrix, which in turn leads to conclusion that no such incident as mentioned by the prosecutrix had occurred.
25. The prosecutrix in her statement u/s.164 Cr.PC SC No.191/13. Page 22 of 30 Ex.PW3/C as well as in her deposition before this court has stated that accused's brother had used condom while raping her. However, it appears that the investigating officer did not try to recover and seize the used condom from the spot of incident. It may be noted here that the prosecutrix did not say so in her initial statement to the police dated 01.9.2013 Ex.PW3/A on the basis of which FIR has been registered. Nevertheless, she stated so in statement Ex.PW3/B recorded on 02.9.2013. The used condom, if recovered from the spot, could have been a material piece of evidence to support the prosecution case. It seems that either the prosecutrix did not inform the investigating officer at any point during the course of investigation that the accused's brother had used condom while raping her or that the search had been made for the same from the crime spot and the same could not be found. In any case, non recovery of used condom too creates doubt in the prosecution case.
26. The prosecutrix has deposed that while leaving the spot of incident, the accused and her brother had left the rope, two glasses, liquor bottle and a polythene bag at the spot. She opened the polythene bag and found it containing 10th class marksheet and photograph of accused's brother. It is very difficult to believe that the accused's brother would deliberately carry his marksheet and photograph alongwith him to the crime spot and would leave it behind while running away from the spot. There was no reason or occasion for the accused's brother to carry his photograph and marksheet alongwith him on that day when he knew that he is accompanying his sister and they are going to do something which is not permitted by law. Further, it is the case of SC No.191/13. Page 23 of 30 the prosecution itself that the accused and her brother had met the prosecutrix in their village Gobana itself at about 6 p.m. and then they brought her to Delhi in a bus. If, in fact, the accused wanted to teach the prosecutrix a lesson by getting her raped by her brother, she could have easily done so at a secluded place in her own village or in the adjacent village. There was no point in bringing the prosecutrix back to Delhi and to commit the crime in Delhi in vicinity of the area where the prosecutrix resided.
27. The case of the prosecution that the accused and her brother were apprehended from their house in village Gobana on the same day i.e. 01.9.2013 also seems to be doubtful. In the Charge Sheet, it has been stated by the IO that she reached village Gobana on the basis of address mentioned in the documents found at the spot of incident and she brought accused and her brother to P.S. Najafgarh for interrogation. It is the case of the prosecution itself that only 10th class marksheet of accused's brother and his photograph were found in a polythene bag left behind by them at the spot. The said marksheet is Ex.PW3/C. It nowhere mentions the residential address of the accused's brother. It only bears his name and parentage and the address of the school where he used to study. No other document has been filed on record which had been found at the spot of incident and which contained residential address of the accused or her brother. The prosecutrix has very fairly admitted in her cross examination that she was not aware about the residential address or other address of the accused when she lent a sum of Rs.5,000/- to her. She has nowhere mentioned in her testimony that the accused had apprised her about complete residential address. Therefore, it SC No.191/13. Page 24 of 30 appears to be intriguing as to how the investigating officer came to know about the residential address of the accused so soon after the incident.
28. Here I find it pertinent to refer to follow portion of the testimony of the accused (DW1) :
"S.I. Kavita had called me to the police station in August, 2013 and told me that my evidence has to be recorded in the Court on 05.09.13. She again offered me Rs.10 lacs if I entered into settlement with Inderjeet etc. She also told me that even if I did not settle the matter with them, she would ensure that they are acquitted as she is the Investigating Officer of the case. I again refused to enter into settlement with Inderjeet etc. She threatened me that I would not accept her offer easily and would show me what she can do with me. She then told me to make a call to her on 29.08.13 on which date she would call me to the police station to tell me how to depose in Court. I made a call on her mobile number 8059815782 on
29.08.13. She talked to me for some time and asked me to call her again the next day i.e. 30.08.13. I made various calls to her on 30.08.13. I made last call to her at 11.45 a.m. She told me that there is some problem in her mobile phone and asked me to call on another number 9899937931. I made call on the said number after about 5 minutes. She told me that somebody is sitting with her and I should call her after about 15 to 20 minutes. I again made calls to her and she asked me to call her again on the next day. She told me that if she would not take up my call I should send a text message to her and she would call me when she would be free.
I made various calls on her mobile phone on 31.08.13 but she did not pick up the calls and hence I sent two text messages to her. I again made a call to her at about 3.00 p.m and the call was answered by her brother Sonu. He told me that he would be coming to pick me up and to bring me to the police station SC No.191/13. Page 25 of 30 where my statement would be completed. At about 5.45 p.m., Sonu, Rakesh, Ramesh and few other unknown persons forcibly entered our house and snatched my mobile phone. They abused and misbehaved with myself and my mother. They took the photograph of my brother Gullu and his marks sheet from our house forcibly. They threatened my parents that if we would complaint against them, they would kill their children. They pushed myself and my brother Gullu in two separate vehicles. Four persons stayed at our house. We were taken towards Najafgarh. Kavita's brother Sonu, Rakesh and Ramesh were also sitting in the vehicle in which I was kept. On reaching Najafgarh, S.I. Kavita and Nepal met us. S.I. Kavita told her brother Sonu to show me what is meant by actual rape. S.I. Kavita left thereafter and Nepal boarded our vehicle. They showed weapons to me and threatened me and raped me inside the vehicle. Sonu prepared my obscene video by his mobile phone. When I offered resistance to their acts, they beat me. Thereafter, they forced me to consume liquor. Thereafter, we were brought towards Village Gobana. They kept us confined in the vehicles for some time outside our house and then took us inside the house. The four persons who had stayed at our house kept my family members confined therein till 4.00 a.m in the morning. S.I. Kavita reached our house at about 4.00 a.m and then myself and my brother Gullu were brought to the police station. On reaching police station, S.I. Kavita told us that she has registered a rape case against myself and my brother Gullu. She told me that I would see how she would make me languish in jail. A lady was sitting in the police station whose name I came to know later on as Rita. I was told that said Rita has filed a complaint of rape against myself and my brother. S.I. Kavita took me to the room of the SHO. I told the SHO that I was raped by Sonu, Rakesh and Ramesh. I also told him that a false rape case has been registered against myself and my brother. S.I. Kavita told me to take of my ear rings, rings and nose pin as I have to be taken to hospital for medical examination. She handed over these jewelery articles to a police official and asked him to deposit these in malkhana. She told me SC No.191/13. Page 26 of 30 that I can take these articles again after I get bail. She advised me not to tell the doctor that I have been raped and threatened me that in case I told the doctor about the rape, she would upload my obscene video on the internet and would also kill my brother. I got scared by her threats but even then I told the doctor, who conducted my medical examination, that I was raped. I gave my consent for medical examination. The doctor talked to IO S.I. Kavita and thereafter told me that S.I. Kavita has stated that I am mentally disturbed and that I have not been raped and that a rape case has been registered against myself and my brother."
29. In view of the above discussion on the deposition of the prosecutrix and the doubts created in the mind of the court from scrutiny of the evidence on record, the deposition of accused as DW1, noted herein-above, appears to be believable, if not to the fullest extent but to the extent that the calls had been made by her from her mobile no. 8221083709 upon the mobile number of the prosecutrix 9899937931 on 30.8.2013 and 31.8.2013 and also received calls from the said mobile number and the photograph as well as marksheet of her brother had been taken forcibly from her house. It seems probable that the IO already knew the place of residence of the accused and hence it did not take her any longer time to trace the accused and she straightaway reached accused's house without any difficulty at all.
30. On one hand, it is claimed by the prosecution that the investigating officer reached village Gobana in search of the accused and her brother on the basis of address mentioned in the document found at he spot of incident and on the other hand, perusal of the statement of the prosecutrix Ex.PW3/A which is the basis of the FIR, shows that she has mentioned the name of the SC No.191/13. Page 27 of 30 accused as Sweety, resident of village Gobana, Haryana. It is the case of the prosecution itself that the IO had first recorded the statement Ex.PW3/A of the prosecutrix in the hospital, pursuant to which she got the FIR registered and then started search of accused and her brother. If that was the case, then the investigating officer should have known the name of the accused as Sweety and her place of residence in village Gobana from the statement of the prosecutrix Ex.PW3/A itself and not from the document allegedly found at the spot of incident whereas no such document had been found at the spot. The conduct of the investigating officer depicts that she had first apprehended the accused and her brother from their house in village Gobana, brought them to the police station and it is then the statement Ex.PW3/A of the prosecutrix has been recorded. This sufficiently indicates the botching up of investigation by the investigating officer for certain ulterior reasons known to her only.
31. This was the case where it was incumbent upon the investigating officer to make a thorough inspection of the spot of incident and to prepare a detailed site plan showing the spot where the prosecutrix had been raped, the spot where she had found her mobile phone after the rape incident and the spots wherefrom polythene bag containing marksheet as well as photograph of accused's brother, rope, whisky bottle and the two glasses had been found. No such site plan had been prepared by the investigating officer. Further it is evident that the glasses as well as the bottle of whisky has not been sent to FSL for forensic examination. No effort has been made to lift chance fingerprints from the whisky bottle and the two glasses so as to compare those SC No.191/13. Page 28 of 30 with the fingerprint of the accused and her brother. Even though, the IO, appearing as PW12, has also deposed that she had found the original 10th class certificate of accused's brother and his postcard sized photograph in the polythene bag given to her by the prosecutrix, she did not seize the same. There is no seizure memo on record regarding these two documents. All these acts rather inaction of the IO only go on to indicate that no incident as projected by the prosecutrix had taken place.
32. It also appears very strange that the prosecutrix did not make any call to her husband or to any of other family members after the rape incident even though, according to her, her mobile phone was in working condition and she was able to make two calls at telephone no.100. It is evident from the call detail records on her mobile phone Ex.PW4/C that there is a gap of 13 minutes between the two calls made by her at telephone no.
100. This was sufficient time for her to make a call either to her husband or to any of her family members apprising them about the incident. That having not been done by the prosecutrix, her conduct appears intensely doubtful. The prosecutrix has deposed that when she was brought back to the police station after her medical examination in the hospital, she found her husband and her sister in the police station. IO (PW12) has also deposed that when she brought the prosecutrix to police station from the hospital after her medical examination, the husband and sister of prosecutrix had already reached the police station. It remains a mystery as to who had informed the husband and sister of the prosecutrix about the rape incident. There is no evidence on record in this regard.
SC No.191/13. Page 29 of 3033. It is true that PW14, during examination of the prosecutrix in RTRM Hospital had found various injury marks on her body and mud over her clothes as well as body. That alone is not sufficient to demonstrate that the occurrence had taken place in the manner as stated by the prosecutrix when her version is found to be far from being credible or trustworthy. The FSL result also does not support her version. There are various discrepancies and the lacunae in the prosecution evidence as noted herein above, which go to the root of the prosecution case and bring it under the cloud of suspicion.
34. There is no credible, clinching or trustworthy evidence on record to suggest that the rape incident had taken place and in the manner as described by the prosecutrix. The evidence led by the prosecution throws out various doubts which have remained to be cleared by the prosecution and the benefit of which has to be given to the accused.
35. Resultantly, the accused is hereby acquitted, giving her the benefit of doubt.
Announced in open (VIRENDER BHAT)
Court on 19.5.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.191/13. Page 30 of 30