Delhi District Court
State vs . Lalit Ratawal on 7 October, 2014
State Vs. Lalit Ratawal
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 03/13
ID No. : 02401R0581662010
FIR No. : 137/10
Police Station : Prasad Nagar
Under Section : 376 (2) (G)/377/506/34 IPC
State
Versus
Lalit Ratawal
S/o Sh. Tek Chand,
R/o H. No. 16/548-E. Padam Singh Road,
Bapa Nagar, Karol Bagh,
Delhi.
.........Accused
Date of Institution : 08.09.2011
Date of committal to Sessions : 08.09.2011
Date of transfer to this Court : 14.01.2013
Date of judgment reserved : 19.09.2014
Date of judgment : 07.10.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. J. K. Dhingra, Advocate, counsel for accused
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State Vs. Lalit Ratawal
JUDGMENT :-
1. This is a unique case as initially victims made certain allegations of sexual exploitation against the driver of school cab and two school mates but later on they added numerous persons in the list of accused persons including several coaches, school mates, their friends, security guard etc. Initially, local police also showed promptness not only in registration of FIR but also in arrest of accused and in recording the disclosure statement in most cryptic and causal manner but when matter was assigned to inspector Arti Sharma, she conducted intensive investigation and made sincere efforts to bring truth on record.
2. Considering the seriousness of the allegations, I deem it appropriate to narrate the facts in detail as unfolded from the charge- sheets.
3. As per charge-sheet, on September 17, 2010, complainant (PW4) got recorded her statement (Ex. PW4/A) to SI Balbir Singh. (Since complainant is the mother of sexually assaulted three victims, in order to conceal the identity of victims, her identity is also withheld and hereinafter she is referred to as complainant or mother of the victims and her daughter is referred to as victim X, eldest son is referred to as victim Y and youngest son is referred to as victim Z).
(i) In her statement Ex. PW4/A, it was alleged that she was residing at H. No. 11850/9, Sat Nagar, Karol Bagh, New Delhi along with her family and doing household work. It was alleged that at about 1 ½ years ago her husband had passed away. Her eldest son aged 13 years (Victim SC No. 03/13 Page 2 of 76 State Vs. Lalit Ratawal Y), daughter aged about 12 years (Victim X) and youngest son (Victim Z) aged 7 years were studying in J. D Tytler Public School. Since, the atmosphere of the school was not good, thus she got her daughter i.e. victim 'X' admitted in the Salwan Girls Sr. Sec. School, Old Rajinder Nagar.
(ii) It was alleged that accused Lalit Ratawal used to take her children in his Maxi Cab bearing registration No. DL-1K 6380 to J. D. Tytler School. About 1 ½ years ago, he took her daughter i.e. victim 'X', alone in his Maxi Cab and gave her some toffee like thing. On that day both of her sons had not gone to school. After eating toffee, her daughter i.e. victim 'X' fell unconscious. It was alleged that after dropping other children at school, accused took the victim 'X' to {Name-redacted}'s home, who also studied in J. D. Tytler School in 8 th standard. When her daughter i.e. victim X re-gained consciousness, she found that she was naked. It was alleged that accused Lalit Ratawal and {Name-redacted} had sexually assaulted the victim 'X' and filmed her. When her daughter protested, they threatened to expose her on internet and also threatened that they would kill her.
(iii) It was further alleged that after 3-4 days of the said incident, when accused Lalit Ratawal took above her three children to school, he did not allow them to get down at the school from van and took them to {Name-redacted}'s house where another boy named {Name-redacted}, who was {Name-redacted}'s classmate, was already present there. It was alleged that accused Lalit Ratawal, {Name-redacted} and {Name-redacted} forced her children to drink liquor and later on they all sexually assaulted her daughter (victim X) and also performed unnatural sex with her both sons i.e. victim Y and victim Z.
(iv) It was alleged that after a week, accused Lalit Ratawal again took the victims in his van but instead of taking them to school, he took SC No. 03/13 Page 3 of 76 State Vs. Lalit Ratawal them to {Name-redacted}'s house where two other boys namely Pawan and Anup were already present and they all five persons performed unnatural sex and raped her daughter. It was alleged that since then all the five persons used to do unnatural sex with her sons i.e. victim Y and victim Z and also raped her daughter i.e. victim X.
(v) It was alleged that in the month of Sawan she had received a dirty SMS on her mobile no. 9560348070. After going through the same, she suspected something fishy, accordingly she made an inquiry from her children and when they narrated the incidents to her, she made a call to police at 100.
(vi) On her statement, an FIR for the offence punishable under Section 376/377/506/34 IPC was got registered.
4. During investigation, accused Lalit Ratawal was arrested on September 17, 2010 and his mobile phone make Tata Indicom IMEI No. A- 100000515 EG7EI was seized while his Maxi Cab was seized on September 20, 2010. Accused {Name-redacted} and accused {Name-redacted} were also apprehended on September 18, 2010. Mobile phones of {Name-redacted}, {Name-redacted} and their fathers were also seized. Mobile phone of complainant was also seized. Attendance sheets of victims and both juvenile were also seized. Statement of all the three victims were got recorded under Section 164 Cr. P.C. Documents relating to age of victims were collected. Victims and accused were sent for medical examinations.
5. During investigation, following facts were surfaced:-
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(i) That all the three victims used to travel in the van of accused Lalit Ratawal from their residence to J. D. Tytler School and he charged ` 1100/- to ferry the victims.
(ii) That accused used to carry total 12 children including victims daily in his Maxi cab.
(iii) That since last 7 months, victim X had not been using his van as she had left J. D. Tytler School and joined Salwan Girl's Government School.
(iv) That complainant used to pay ` 800/- per month for the transportation of her both sons to the accused.
(vi) That victims were the last to be picked up and the first to get down from his van, as they lived nearest to the school and {Name-redacted} and {Name-redacted} did not travel in his van.
(vii) That the attendance records of all three victims and {Name-redacted} and {Name-redacted} were provided by J. D. Tytler School. The scrutiny of record does not reveal irregular absenteeism of victim Y and Z till September 2010 as well as of victim X till March 2010. Victim X left the J. D. Tytler school and joined Salwan Government Girls School in April 2010.
(viii) That {Name-redacted} and {Name-redacted} studied in the same class i.e. 8th Section D in the year 2009 and victim Y was one year junior to them and studied in class 7 th in the year 2009 while victim X was studied in class 6th Section C and victim Z was in Enrichment Centre B in SC No. 03/13 Page 5 of 76 State Vs. Lalit Ratawal the J. D. Tytler School in the year 2009.
(ix) That there were only two occasions when all children i.e. victims X, Y and Z and two juveniles were absent from the school together.
(a) First date is 10th September 2009. On that day, large number of students were absent in victim's Y class. Similarly, a large number of students missed school from the class of victim X. It is quite pertinent to mention here that Nain, twin sister of {Name-redacted}, who also studied in the same class and section was also absent on September 10, 2009.
(b) Second date is September 13, 2010, when victim Y, victim Z, {Name-redacted} and {Name-redacted} were absent at J. D. Tytler School. Victim X was studying at Salwan Government Girls School. She was marked leave/absent continuously from September 1st till October 30, 2010. On September 13, 2010, a large number of students missed the school along with victim Y. Victim Z also missed the school almost the entire month of September 2010 except on September 2, 2010, September 7, 2010 and September 9, 2010. Similarly, a large number of students missed the school on September 13 2010 in {Name-redacted}'s class including {Name-redacted}.
(x) That complainant alleged that about 1 ½ years ago, on the first occasion, when both her sons were at home, accused Lalit Ratawal, the cab driver took away her daughter i.e. victim to {Name-redacted}'s house instead of taking her to school and then both accused namely {Name-redacted} and Lalit Ratawal raped her. However, scrutiny of the school attendance record showed that there was no possibility of such occasion to arise.SC No. 03/13 Page 6 of 76
State Vs. Lalit Ratawal
(xi) That complainant further alleged that 3-4 days after the first incident, accused Lalit again took victim X along with victim Y and Z to {Name-redacted}'s house instead of taking them to school. And on that day accused Lalit, {Name-redacted} and {Name-redacted} sexually assaulted her children. Again, the scrutiny of the school attendance record, showed that there was no possibility of such occasion to arise.
(xii) That investigation revealed that there was no boy named Pawan studying in J.D. Tytler School. However, one boy named Anup, born in 2002, was found studying in second standard in J. D. Tytler School.
(xiii) That during investigation, Ms. Jennifer Tytler, Principal of J. D. Tytler school was examined. She stated that victim X, Y and Z had been students of her school. Victim Y studied in the 8 th standard. Victim Z was in Learning/Enrichment Centre for Slow Learners and Differently Abled students. Victim X had been a student in the J. D. Tytler School till March 2010 after that she had withdrawn from the school as her mother i.e. complainant had been unable to pay her fee. Both victims Y and Z studied on Total Free-ship and did not pay any fee in the school.
(xiv) That Principal stated that complainant approached her towards the end of August 2010 with a request to take her daughter back to the J. D. Tytler School. When she asked the complainant why she had withdrawn her daughter from the school in the first place, complainant told her that she had taken the victim X out of the school because of an SMS sent by student, {Name-redacted}.
(xv) That complainant in her complaint alleged that she had received the dirty SMS in her daughter's name in the month of 'Sawan' i.e. SC No. 03/13 Page 7 of 76 State Vs. Lalit Ratawal July/August 2010. However, she had taken her daughter out of the J. D. Tytler School in the month of April 2010 citing the same reason.
(xvi) That Ms. Jennifer Tytler had called student {Name-redacted} whether he had sent the SMS to victim X, he expressed shock and confusion. Then victim X clarified that she had told a lie to her mother about the SMS as she wanted to come back to J. D. Tytler school as she did not like any other school.
(xvii) That Ms. Tytler further clarified that there was no Badminton Coach in the J D Tytler School and also that victim Y never participated in swimming activities. According to the Taxi-cab records kept in the school there was no driver by the name of Jeeta. Complainant's children had also levelled allegations against the Badminton Coach, Swimming Coach and a driver named Jeeta also.
(xviii) That attendance sheet of Salwan Government School showed numerous instances of absenteeism of victim X since the month of July 2010. Salwan Girl's School authorities had confirmed that they had written first letter regarding victim's absenteeism to her guardian on September 6, 2010 (for continuing absence since 01.09..2010). When no response came, the Salwan Girls School authorities had written a second letter regarding the absence of victim to her guardians on 16.9.2010. However, during investigation, complainant had neither revealed this important fact to the police nor she had produced the two letters which she might have received from victims' school. Complainant had also not been very forthcoming about stating the mode of transport that victim X used to avail to go to Salwan Girl's School every day.
SC No. 03/13 Page 8 of 76State Vs. Lalit Ratawal (xix) MLCs of the three victims dated 17.9.2010 of LHMC and Smt. S. K. Hospital were examined. Victim X's MLC showed injuries and a history of assault by her mother. She had a Right Black Eye and other injuries. The MLCs of victim Y and Z showed no injuries on that day.
(xx) According to the history given by victim X at the time of MLC examination on 17.9.2010, the last sexual assault had taken place about 15 days ago. However, scrutiny of the attendance records showed that victim X had been continuously running absent from her school since 01.09.2010.
(xxi) MLCs of the three victims dated 19.9.2010 of LHMC and Smt. S. K. Hospital were also examined. MLCs of all the three victims showed injuries and history of assault by the mother. Victim X had right black eye and a '?' burn mark on right hand. Both brothers had multiple bruises. Doctors advised for admission of all the three victims for treatment in the hospital but complainant took away her children against medical advice after giving the same in writing to the hospital authority.
(xxii) MLCs of the three victims dated 22.9.2010 of LNJPN hospital were also examined. MLC of all the three victims showed extensive injuries. Victim X had contusion over right knee and left thigh in addition to the right black eye. Victim Y had contusion over both scapular regions. Victim Z had contusions over right thigh.
(xxiii) When all the MLCs were examined chronologically, it showed a distinctly rising incidence of injuries to all the three victims, which according to the medical records had been inflicted upon the children by their mother i.e. complainant.
SC No. 03/13 Page 9 of 76State Vs. Lalit Ratawal (xxiv) That on 10.10.2010 complainant produced three books reportedly written by her three children in which they named numerous other persons including about a dozen other school mates, who according to them were their co-victims. They also named five school teachers of J D Tytler school who also used to assault them. They also named one another taxi driver named Jeeta, two brothers of Lalit Ratawal, one uncle and aunty on the first floor of {Name-redacted}'s house and one school security guard. Complainant also produced J D Tytler School magazine with numerous persons encircled with ink, by the children as either the co-victims or assailants. One address 14A/96 IInd Floor Karol Bagh was mentioned by the children on the school magazine as the place where they were used to be taken for sexually abuse. She also provided two mobile numbers, out of which one mobile number 9256048241 belonged to the alleged accused Pawan and the another mobile number 9811154851 according to her belonged to JCL {Name-redacted}. According to complainant, the alleged dirty SMS received on her mobile number 9560348070 had been sent by {Name-redacted} from his mobile number 9811154851.
(xxv) That Investigation revealed that the alleged premise i.e. 14A/96 IInd Floor, Karol Bagh, Delhi belonged to one Maya Niranjan Gada. The premise was being used as a paying guest accommodation and 7 girls, all except one, were preparing from Vajirao Institute for civil services examination, had been living together for the last several months. All occupants were verified. During investigation it was found that {Name-redacted} or his family had nothing to do with said premises.
(xxvi) That investigation was also conducted into the allegation that the other children of the school were also sexually abused. However, SC No. 03/13 Page 10 of 76 State Vs. Lalit Ratawal nothing was found to substantiate these allegations. Moreover, the parents of the alleged co-victims felt greatly offended and refused to give consent for medical examination of their wards.
(xxvii) That the two victims Y and Z were examined on different occasions at the Lady Hardinge Medical College and LNJP hospital on 17.9.2010, 22.9.2010 and 27.9.2010 respectively and medical examination of both the victims did not reveal any finding which might corroborate the history of sexual abuse in this case.
(xxviii) That on 21.10.2010 certified copies for the medical treatment in respect of admission of victim X, Y and Z in Lok Nayak Jai Parkash hospital from 22.9.2010 to 18.10.2010 were collected in compliance to suggestion from the Chemistry Division, FSL, Rohini at the time of deposition of blood samples of the above said victims. After 18.10.2010 the children were again admitted at IHBAS hospital in Shahdara till 10.11.2010.
(xxix) That on 26.10.2010 exhibits were deposited in the Chemistry and Biology Division of FSL, Rohini for examination.
(xxxii) That the representatives of two NGOs, namely Shakti Vahani and Swanchetan had counselled and evaluated the victims X, Y and Z and the complainant. Their respective reports are placed on file. It is pertinent to mention here that the NGO Shakti Vahani reported the following observations in its report:-
(a) That during the counselling session on 17.9.2010 the NGO observed that Vijay came and influenced complainant in the police station SC No. 03/13 Page 11 of 76 State Vs. Lalit Ratawal after which she became violent and refused to go to the Child Welfare Committee. She ran out of the police station and gave her byte to the media outside stating that she was not satisfied with the legal proceedings.
(b). That during the counselling session on 20.9.2010 the NGO Shakti Vahani observed that the home environment was not favourable to the children. There were 5 members in the family including the so called son Vijay. All were living in a single room. The neighbourhood said that the role of the so called son, Mr. Vijay in the family was fictitious. His role was very negative in the family so it should be investigated. One shop owner told that the mother frequently beat the children. It was not clear that why the visit of the accused to the victim's house remained unnoticed to the tenants. The neighbourhood also said that they heard the sound of children crying in the midnight.
(xxxiv). That scrutiny of the Call detail records of complainant mobile phone number 9560348070 revealed that during the relevant period, the most of SMS sent and received by her, were from mobile number 9555989901, which as per the Reliance Mobile Company Records belonged to one Vijay s/o Phool Singh r/o 16/560, H Block, Hardyan Singh Road, Bapa Nagar, Karol Bagh, Delhi.
(xxxv) That Vijay was made to join the investigation of this case on 10/11/12.11.2010 and 15.11.2010. On 14.11.2010 a notice from the court of Sh. Sunil Chaudhary, Ld. ACMM along with a complaint filed by the complainant was received wherein she claimed that Mr. Vijay was liked her son and he was being unnecessarily harassed by the investigating agency.
However, during investigation she had never spoken about Mr. Vijay prior to this complaint nor Vijay had ever come forward to join investigation in this SC No. 03/13 Page 12 of 76 State Vs. Lalit Ratawal case. The learned ACMM ordered for a report to be filed on 18.11.2010.
(xxxvi) That on 18.11.2010 the learned ACMM directed the IO to use Audio/Video recordings as per amended provisions of Cr.P.C while examining the witnesses of the case. The court further directed the complainant to furnish the report of IHBAS to the investigation agency. The report is yet to be received. Complainant has not joined investigation of the case despite the discharge of her three children from IBHAS.
(xxxvii). That during investigation, the mobile phones having number 9560348070, 9871481428, 9212150034, 9811154851, 9256048241, 9811909488, 9811619003, 7838245086, 9810102645 were seized. The CDRs of these mobile members had been obtained and on scrutiny of the CDRs no evidence to corroborate the version of the complainant came on record.
6. Main challan was filed with the following conclusion:-
(i) That during the investigation conducted so far, the statement of the complainant and her children recorded under Section 164 Cr. P.C corroborated to each other. However other than these statements, no other evidence was found which may support the allegations of the complainant.
However, keeping in view the seriousness of the allegations, charge-sheet against accused Lalit Ratawal was being filed. Further investigation into the remaining issues would continue under Section 173(8) Cr. P.C. Final report qua both the JCLs were filed before the JJB-1 Kingsway Camp, Delhi.
(ii) That the identification of the alleged remaining accused including Pawan and Anup could not be established so far. The exhibits of SC No. 03/13 Page 13 of 76 State Vs. Lalit Ratawal the case had been sent to CFSL Chandigarh and FSL Rohini for analysis. The results were awaited. The treatment report of victims from IHBAS and MLCs report from LHMC and Smt. S.K. hospital and LNJPN hospital were also awaited.
7. Supplementary challan was filed with the following findings:-
(i) That victim Y had gone missing second time from his home after he had been rescued and restored to his mother (complainant) the first time.
(ii) That the allegations against Sanjeev @ Pawan and Rohit that they had kidnapped victim Y and had also sexually assault the three victims could not be substantiated. The Polygraphy Test had shown that Sanjeev and Rohit had been truthful.
(iii) That victim X pointed out two different premises as the places where she along with her brothers had been taken and sexually assaulted.
Investigation had ruled out the possibility of either places being used for the purpose as alleged by the victim X.
(iv) That the FSL results from the Chemistry Division did not find any ethyl alcohol, alkaloids, barbiturates, cannabinoids, amphetamines and tranquillizer in the exhibits deposited with the FSL. The results do not support the allegations of drugging of any of the victims during their alleged confinement and sexual assault.
(v) That the complete absence of all data inside the mobile phone belonging to complainant seemed strange. The phone did not carry SC No. 03/13 Page 14 of 76 State Vs. Lalit Ratawal any contract or other retrievable data which was found in all other phones except her phone. Hence, the factum of offending SMS received in her phone could not be established by the experts while examining her phone.
8 After completing investigation, challan was filed against the accused before the Court of learned Additional Chief Metropolitan Magistrate.
9. After complying with the provisions of Section 207 Cr.P.C, case was committed to the Court of Sessions on August 30, 2011. Thereafter, the case was assigned to the Court of Ms. Kaveri Baweja, the then learned Additional Sessions Judge on September 8, 2011. Vide order dated January 10, 2013, case file was assigned to this Court. Accordingly, case was registered as SC No. 03/2013.
10. Vide order October 31, 2011 a charge for the offence punishable under Section 376 (2) (g)/506 IPC and under Section 377 read with Section 34 IPC was framed against the accused by the Court of Ms. Kaveri Baweja the then learned Additional Sessions Judge to which he pleaded not guilty and claimed trial.
11. In order to bring home the guilt of accused, prosecution has examined as many as following 26 witnesses:-
PW1 Victim X
PW2 Dr. Ankur Srivastava, proved the MLC of
victims Y and Z
PW3 Dr. Manisha Bhagat, medically examined the
victim X
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State Vs. Lalit Ratawal
PW4 Complainant/mother of victims
PW5 Victim Z
PW6 Const. Jugal Kishore, member of investigating
team
PW7 Const Jitender, member of investigating team
PW8 Dr. Rattan, examined all the victims
PW9 Dr. Rukya, examined victim Y
PW10 HC Vikas, MHC(M)
PW11 Dr. S. K. Satrawal, formal witness
PW12 ASI Puran Chand, formal witness
PW13 HC Pratap Singh, duty officer
PW14 SI Balbir Singh, initial investigating officer and member of investigating team PW15 Insp. Satyabir Singh, formal witness PW16 Dr. Raghunath, formal witness PW17 Const. Dabu, formal witness PW18 SI Chanchal, 2nd investigating officer PW19 Dr. Radhika, examined all the victims PW20 SI Sharad Kohli , member of investigating team PW21 Insp. Arvind Kumar, third investigating officer PW22 Dr. Dhruv Sharma, Asstt. Director, FSL, formal witness PW23 Sh. Amar Pal Singh, Sr. Scientific Officer, (Chemistry) formal witness PW24 Ms. Asha Pahwa, Sr. Scientific Officer, FSL, formal witness PW25 Dr. Sumit Kumar Gupta, Asstt. Professor of SC No. 03/13 Page 16 of 76 State Vs. Lalit Ratawal Psychiatric, PW26 Insp. Arti Sharma, investigating officer
12. Name of victim Y was dropped from the list of witnesses as his whereabouts were not traceable.
13. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he refuted all incriminating evidence led by prosecution except that the victims used to go in his school van but stated that victim X had discontinued his van in the month of April, 2010 as she had changed her school from J. D. Tyler School to Salwan School. It was further submitted that PW4 (complainant) had lodged a false FIR against him in collusion with one Vijay and his in-laws i.e. brother-in- law, Rajesh, Rajender, Vinod, Ram Pyari, Cheten @ Vicky, Rocky, Raj Kumari and Vijay Kumar Kaushal as he had some matrimonial dispute with his wife Anuradha and his wife had lodged a complaint in Women Cell as well as in the police station. Since, Vijay is the friend of his brothers-in-law Rajesh and Vinod, they all threatened him at the time of divorce that they would take revenge and would falsely implicate him. It was further submitted that complainant had given a contract to his brothers-in-law Rajesh and Rajender for reconstruction of her house No. 11850/9, Sat Nagar, Karol Bagh and one portion of the said house had been sold by them. It was stated that he had been framed in this case and further stated that complainant and his in-laws and Vijay tutored PW1 and PW5 to make the statement against the accused. It was further submitted that the name of his brother-in-laws. Rajesh and Vinod are mentioned in Ex. PW8/B, PW8/D and Ex. PW25/B which shows the conspiracy between them. It was stated that Vinod was his cousin father-in-law and Rajesh was cousin brother of his wife and Ram Pyari is the mother of Vinod and his grand SC No. 03/13 Page 17 of 76 State Vs. Lalit Ratawal mother-in-law. It was further submitted that before taking him into custody, media persons were called by Rajesh, Rajender and Vinod in the police station and even some media persons were also called at their house. It was further submitted that he had some dispute with the complainant regarding the fee of his school van as accused refused to take the victim X to Salwan school and complainant failed to make the payment of van charges qua her two children, accordingly, some altercation had also taken place between him and complainant. It was submitted that complainant and Vijay, who was residing in the house of complainant threatened him for dire consequences with the connivance of his ex-wife and his above relatives, had lodged a false complaint against him. It was further submitted that he was arrested by the police officials of police station Prasad Nagar at about 12.30 PM on September 17, 2010 from Government quarters and his vehicle was also taken into custody and it was parked outside the police station. He was beaten by public persons as well as police officials during custody but police had shown his arrest in the evening at about 7 PM and shown that vehicle was seized on September 20, 2010 whereas his van was lying in the police station w.e.f September 17, 2010. It was submitted that he had done nothing wrong with the children of complainant; rather her children deposed against him under the threat of their mother and Vijay as they were also used to be beaten by them. In order to prove his innocence accused examined two witnesses i.e. Smt. Chander Kala as DW1 and accused examined himself as DW2.
14. It was sagaciously contended that the matter was investigated in detail on relevant aspects by PW26 Insp. Arti Sharma and she had filed a charge-sheet against the accused concluding that no corroborative evidence was found during the intensive investigation which might corroborate any of the allegations levelled by the complainant and her SC No. 03/13 Page 18 of 76 State Vs. Lalit Ratawal children against the accused. It was contended that the testimony of PW26 is suffice to prove the innocence of the accused as well as to show that accused had been framed in this case falsely with some ulterior motive.
(i) It was astutely contended that through prosecution has examined as many as 26 witnesses, yet, prosecution case is based on the testimony of three witnesses i.e. PW1, PW4 and PW5. It was argued that PW4 is not an eye witness of any of the incidents as she had come to know about the alleged incidents through her children i.e. PW1 and PW5, thus her testimony is not otherwise relevant to bring home the guilt of accused. However, her testimony is relevant to prove the innocence of the accused as he had changed her deposition from time to time as per her convenience and made several improvements in her deposition. She had even deleted all the data of her mobile phone before giving the same to the police, which strengthen the defence version that he had been falsely implicated in this case. It was further contended that PW4 had set up a case that PW26 had given note books to her children asking them to write whatever happened to them but PW26 did not depose so. It was contended that PW4 pressurized her children to write against the accused in the note books with ulterior motive to implicate the accused in this case falsely. It was sagaciously contended that PW1 during her cross-examination admitted that most of the contents of the note books prepared by her are false to her knowledge. This further shows that accused had been framed in this case. It was further argued that it is admitted case of complainant that her son PW5 is a mentally retarded child and he is slow in learning. Despite that PW5 had also written a note book making certain false allegations against the accused which further shows that the note book was prepared at the behest of PW4. It was further argued that though PW5 is a slow learner child but when he appeared in the witness box he narrated all the facts on SC No. 03/13 Page 19 of 76 State Vs. Lalit Ratawal the line of deposition of his mother and sister which further shows that he was well tutored before coming to the Court.
(ii) It was sagaciously argued that during the investigation no medical or scientific evidence was found to corroborate any of the allegations. Though during investigation PW26 had visited the premises where the victims were allegedly sexually assaulted/exploited but during the investigation nothing was found which may corroborate the allegation. Though it was alleged that the premises No. 14A/96 2nd floor, Karol Bagh, Delhi belonged to co-accused {Name-redacted} but during investigation it was found that the said premise does not belong to him.
(iii) It was vigorously argued that in the instant case complainant with the help of her children did not even hesitate to implicate each and every person of the school including students of second standard, security guards, swimming coach, badminton coach despite the fact that there was no badminton coach and swimming coach in the school. The complainant had also implicated some other persons but during investigation, no evidence was found against them which shows that the complainant was impleading the persons at the behest of someone with some ulterior motive.
(iv) It was further energetically contended that no doubt during the medical examination of victim X, her hymen was found torn but no adverse inference can be drawn on this mere ground as it is well settled principle of law that hymen can be torn by numerous causes and in the instance case PW1 categorically admitted that she used to participate in different games including aerobatic and gymnastic and also used to do cycling. Thus, it cannot be said that her hymen was torn due to any sexual activity.
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(v) It was sagaciously contended that though in a sexual offence case conviction can be recorded on the sole uncorroborated testimony of victim, but in the instant case no reliance can be placed on the testimony of victims as their testimonies do not inspire any confidence and the same are not trustworthy and during the investigation no corroborative evidence whatsoever was found to support the allegations levelled by the victims.
(vi) At last, it was contended that accused had some matrimonial dispute with his wife and their marriage was dissolved but his in-laws had a grudge with the accused. It was submitted that one of the brothers-in-law of the accused had constructed the house of complainant and he was friend of alleged foster son of complainant named Vijay and accused had also some altercation with the complainant on the point of payment of van charges. It was contended that in order to teach a lesson to the accused, his brothers-in-laws with the help of alleged Vijay Kumar instigated the complainant to lodge a false complaint by using her children and in this way accused had been framed in a false case.
(vii) In support of his contentions, learned counsel relied upon the following judgements:-
(i) Atender Yadav vs. State Govt. of NCT of Delhi (Delhi), 2013 (4) JCC 2962;
(ii) Sanjeev Kumar & Another. vs State of Haryana, 2013 (8) LRC 421(P&H);
(iii) Ramkesh vs. State of Rajasthan, 2013 (2) LRC407 (Rajasthan),
(iv) Radhu vs. State of M. P. , 2007(4) LRC 15 (SC);
SC No. 03/13 Page 21 of 76State Vs. Lalit Ratawal
(v) Mohd. Tarikh @ Ruffi & Another vs. State, 2011 (6) LRC 219 (Del) (DB);
(vi) State vs. Vicky & Ors, 2012 (6) LRC 177 (Delhi);
(vii) Lakhmu vs. State of Chhattisgarh 2006(4) RCR Crl. 866;
(viii) Vimal Suresh Kamble vs. Chaluverapinake Apal S.P & another AIR 2003 Supreme Court 818;
(ix) Rajoo & others vs. State of M. P. AIR 2009, Supreme Court 858;
(x) State of Orissa vs. Daman Mahanta 2007 (3) LRC 322 (Ori);
(xi) Pappu vs. State of Delhi, 2009 (3) LRC 44 (Del) (DB);
(xii) Narender Kumar vs. State of NCT of Delhi (Supreme Court on acquittal in Criminal cases 1995-2013) Page No. 2342
(xiii) State of Haryana vs. Ram Singh, 2002 CAR 105(SC)
15. On the contrary, learned Additional Public Prosecutor for the State refuted the said contentions by arguing that there is no reason to disbelieve the testimony of PW1, PW4 and PW5. It was submitted that their testimony can not be discarded mere on the ground that during investigation investigating officer failed to get any corroborative piece of evidence. It was urged that it is a well settled law that conviction can be recorded in sexual offences even on the uncorroborated testimony of victim but in the instant case the testimony of victim X is fully corroborated by PW4 & PW5, thus there is no reason to disbelieve their testimony. It was further contended that no mother would file a false case of such a nature by using their kids of tender age, this further shows that the accused is the real SC No. 03/13 Page 22 of 76 State Vs. Lalit Ratawal culprit.
16. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
17. Before analysing the evidence led by prosecution, I deem it appropriate to refer some case laws on the point how the testimony of victims should be analysed in sexual offences matter.
18. In Attender Yadav vs. State of Govt of NCT (supra) High Court of Delhi summarised the case law on the aspect how the testimony of child witness should be appreciated. The relevant paras are 32 to 36 and same reads as under:-
"32. The legal position relating to evidence of child witness has been dealt with by the Apex Court in a catena of judgments while interpreting section 118 of the Indian Evidence Act. All persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender age, extreme old age, disease, whether of body or mind, or any other cause of the same nature. No particular age has been specified in Section 118 of the Indian Evidence Act as to at what age a person would be considered of a tender year, as a whole test is whether the witness has sufficient intelligence to depose and in a position to give rational answers to the questions asked.
33. In Suryanarayan Raina v. State of Karnataka reported in 2001 (9) SCC 129, the Apex Court took a view that evidence of a child witness is not to be rejected per se, but the court as a rule of prudence resolved to consider such evidence with close scrutiny and only on being convinced about the quality thereof and its reliability may record conviction SC No. 03/13 Page 23 of 76 State Vs. Lalit Ratawal based thereon.
34. In Dattu Rama Rao Shakare vs. State of Maharashra reported in 1997 (5) SCC341, it was held as under:
"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness."
35. In State of Karnataka vs. Shantappa Madivalappa Galapuji and others, reported in JT 2009 (5) SC 660, it was held as under:-
"This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
36. In Acharaparambath Pradeepan and another vs. State of Kerala reported in (2006)13SCC643, it was held as under:
"Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. Age of the witness during examination was taken to be about 10 years. Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand SC No. 03/13 Page 24 of 76 State Vs. Lalit Ratawal questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States. The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
Indisputably, certain factors are required to be considered as regards reliability of the testimony of the child witnesses but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of child witnesses."
(emphasis supplied)
19. In Narender Kumar v. State of (N.C.T. Delhi) (supra) Apex Court had summarized the case law on the point how the deposition of a rape victim is required to be looked into. Relevant paras are 16, 17, 23 and 24 and same are reproduced as under:
16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.
Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the SC No. 03/13 Page 25 of 76 State Vs. Lalit Ratawal prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818; and Vishnu v. State of Maharashtra, AIR 2006 SC 508).
17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide:
Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)
23. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003 SC 1639).
SC No. 03/13 Page 26 of 76State Vs. Lalit Ratawal
24. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
20. In case Radhu vs. State of M. P. (supra) it was held by the Apex Court that where the testimony of prosecutrix is full of discrepancies and does not inspire confidence and version is not corroborated by medical evidence, no reliance can be placed on such testimony. The relevant para is 15 and same reads as under:-
"15. The evidence of the prosecutric when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutric was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had SC No. 03/13 Page 27 of 76 State Vs. Lalit Ratawal failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt.
(emphasis supplied)
21. Similar, view was taken by High Court of Delhi in case Mohd. Tarikh @ Ruffi & Anr. vs. State (supra). The relevant paras are 35 to 40 and same reads as under:-
35. No doubt a prosecutrix is not an accomplice and her testimony does not require corroboration, but the same is subject to the testimony inspiring confidence and there being no possibility of tutoring and especially when the victim is a child.
36. That Ghulam Mohd. had put something in the mouth of the prosecutrix when he made the statement Ex. PW-2/A at a time when the prosecutrix was unconscious and being picked up unconscious, having just no occasion to tell anything to her father, and in the said statement Ghulam Mohd. naming the appellants as the accused coupled with Ghulam Mohd.
having a motive to falsely implicate the appellants or there being a possibility that Allah Noor took advantage of this animosity and fed him false information, and having so falsely stated something to the police; Ghulam Mohd. tutoring his daughter to sing a song in harmony with him cannot be ruled out. After all, 'N' was of an impressionable age and would be susceptible to be tutored by her father.
37. Since both learned Trial Judges have ignored as afore-noted by us and have overlooked very vital and relevant evidence and circumstances, we are constrained to hold that a fairly shoddy job has been done by the learned Trial Judges whose opinions give us an impression of nursery rhymes being recited by rote and without an understanding. The principle of law of a prosecutrix not being an accomplice and hence SC No. 03/13 Page 28 of 76 State Vs. Lalit Ratawal her testimony not requiring corroboration and the opinions by Judges that in the Indian society no father would expose his daughter to a false charge of rape have been applied as young children recite nursery rhymes.
38. Sh. Pawan Sharma, learned Standing Counsel (Criminal) urges against appellant Mohd. Tulay that his act of absconding shows his guilt.
39. We put the converse. Appellant Mohd.Tarikh was arrested the next day from his house and can it be argued that if there was credible evidence against him, his act of not absconding proved his innocence? The answer would be 'No'; for conduct, though admissible, is weak evidence because of the reason based on conduct presumptions are drawn of guilt or otherwise and presumptive evidence by its very nature is weak evidence. Inasmuch as people flee from justice being guilty of an offence, many flee out of fear of false implication. Similarly, a crafty criminal may feel so confident of having left no trace of himself at the scene of the crime that he is found cocooned in the comforts of his house and merely because soon after the crime or the day next he is found relaxing in his house would be no circumstance of innocence.
(emphasis supplied)
22. Question of the relevancy of hymen torn was also dealt with by the Hon`ble High Court in detail in para No. 55 to 63 in Atender Yadav case (supra) and same read as under:-
55. It is by far well recognized position that the condition of hymen being torn of the prosecution may not necessarily lead to infer previous sexual intercourse and conversely being hymen not torn also does not necessarily mean that there was no sexual intercourse. Dealing with the subject of hymen torn and size of vaginal introituses, Justice Verma Committee in their report has given the following observations:-SC No. 03/13 Page 29 of 76
State Vs. Lalit Ratawal "10. It is crucial to underscore that the size of the vaginal introituses has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. On the basis of this test observations/conclusions such as habituated to sexual intercourse' should not be made and this is forbidden by law.
11. Routinely, there is a lot of attention given to the status of hymen. The "finger test" is also conducted to note the dispensability of the hymen. However it is largely irrelevant because the hymen can be torn due to several reasons. An intact hymen does not rule out sexual assault, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual assault. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, oedema etc.) are to be documented.
56. Modi's Medical Jurisprudence, 11th Edition, Chapter XVII, page 475 has dealt with this subject in the following orders:- Page 503:
"In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually ruptured, having one or move radiate tears."
"Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes."
Page 504:
"In small children, the hymen is not usually ruptured, but may become red and congested with the inflammation and bruishing of the labia. If considerable force is used, there is often laceration of fourchette and perinaeum."
In the present case, no injury either healed or having any old scar marks etc. was present either on fourchette or on perinaeum."
SC No. 03/13 Page 30 of 76State Vs. Lalit Ratawal
57. In the Journal of the Forum of Medical Ethics Society since 1993 in the editorial "Moving from evidence the care: ethical responsibility of health in responding to sexual assault", it has been opined as under:-
"this is a contrary scientific evidence that the presence of an intact hymen does not rule out sexual assault, and the fact of a torn hymen does not prove previous sexual intercourse, as the hymen can be torn due to many other activities like cycling, horse-riding, masturbation etc."
58. The Division Bench of this court in the case of Pappu vs. State of Delhi, reported in 2010 (1) Cri. LJ 580 Delhi was also dealing with similar medical condition of the prosecutrix of six years of age whose hymen was also found torn and her vagina admitted two fingers easily and no injury was found on private part, and the Division bench after placing reliance on the medical jurisprudence (5th Edition by Dr. R.M. Jhala and B.B. Raju) held as under:-
"The reason is obvious. medical jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The medical jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia and such blows lead to contusion because of looseness and vascularity. The feature of such contusion is revealed against the pink background of the mucous membrane dark red contusion being evident to the naked eye."
59. The above judgment of the Division Bench was also dealing with the case of false implication of the accused by the father of the prosecutrix who believed that the accused had an illicit relationship with his wife.
SC No. 03/13 Page 31 of 76State Vs. Lalit Ratawal
60. It would also be useful to refer here the following extracts taken out from the Medical Jurisprudence & Toxicology (Law practice and procedure) authored by Dr. K.S. Narayan Reddy where the author has observed as under:-
"As the age and size of the infant increases, the pattern of injury will become less marked but the circumferential tears of the vestibular m mucosa ucoas are found up to the age of six years or more. Full penile penetration produces bruising of the vaginal walls and frequently tears of the anterior and posterior vaginal walls. Anterior tears can involve the bladder and the posterior tears the anorectal canal. Vaginal vault may rupture, and there may be vaginal herniation of abdominal viscera. The hymen may be entirely destroyed or may show lacerations. Blood may be oozing from the injured parts or clots of blood may be found in the vagina. There may be mucopurulent discharge from the vagina. In digital penetration of the infant vagina, there is frequently some scratching or bruising of the labia and vestibule, but the circumferential tears are absent. The hymen shows a linear tear in the posterior or posterolateral quadrant, which may extend into the posterior vaginal wall and on to the skin of the perineum and may involve the perineal body. Ano-rectal canal is rarely involved. Bruising in the margins of tear and of anterior vaginal wall are common, but vaginal vault injury is rare. Any attempt to separate the thighs for examination causes great pain, because of the local inflammation. The child walks with difficulty due to pain. The absence of marks of violence on the genitals of the child, when an early examination is made is strong evidence that rape has not been committed."
61. The prosecutrix in the facts of the present case, has alleged her being repeatedly raped by her father during the period of November - December 2006 and complaint to this effect was lodged with the police on the morning of 30th May 2007 i.e. after a gap of 6 months. With such a wide gap, there could not have been any fresh evidence of commission of the rape through medical examination of both the prosecutrix and the accused as well as through other evidences SC No. 03/13 Page 32 of 76 State Vs. Lalit Ratawal including undergarments of both of them and therefore, the only evidence available is the said MLC of the prosecutrix (Ex.5/A) and MLC of the appellant (Ex.5/B). In the MLC of the prosecutrix, no injuries on the private part or any kind of inflammation were found. As per the Modi‟s jurisprudence, frequent intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissues, which are called carunculae hymenealis or myrtiformes. However no such small tags were detected even on a gynaecological examination of the prosecutrix.
62. We are completely at loss and rather anguish to find that the prosecutrix who has alleged repeated sexual intercourse by her father at no stage had complained about her suffering any injury in her private part, any kind of bleeding, or any vaginal discharge or suffering any kind of pain, which could have call for urgent medical attention or in upsetting her regular schooling. Nothing of this sort has surfaced and this creates doubt in our mind to suspect the prosecution case set up at the instance of prosecutrix backed by her mother. We cannot lose our attention from the fact that the father of the prosecutrix is after all a grown up and physically able bodied man and if such a man commits sexual intercourse with a small child of 11 years, then there is every likelihood that prosecutrix will suffer some injury on her private part or there may occur some kind of tear in the vaginal canal which is usually quite narrow in the case of minor child or at least suffering of a severe pain by such a minor child, but nothing of this kind had happened to the prosecutrix. The PW-4 in her cross-examination admitted the fact that her daughter „P‟ was around 4-5 years when she started cycling and she used to do swimming as well. PW-8 Dr. Deepti Goel on her cross- examination also stated that the hymen can be torn on account of many reasons like injuries from cycling or sports and if we look at the entire set of circumstances discussed above, possibility cannot be ruled out that the hymen of the prosecutrix may have been torn on account of activities like cycling and swimming and not because of the alleged sexual assault by her father. So far as the opinion of the doctor in the MLC i.e. „introituses with two fingers with difficulty‟ is concerned in a recent judgment of the Apex Court in Lillu @ Rajesh and Anr. vs. State of Haryana, reported in AIR2013SC1784 the view taken was that the fact of SC No. 03/13 Page 33 of 76 State Vs. Lalit Ratawal admission of two fingers and hymen rupture does not give a clear indication that the prosecutrix was habitual to sexual intercourse. Relevant paragraph of the said judgment is reproduced as under:-
"Fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear. The factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to the hymen."
63. In the light of the above discussion, we are not persuaded to agree with the finding of the learned trial court that the appellant had raped his own daughter during the period of November - December 2006.
(emphasis supplied)
23. The issue of false implication in sexual offences was also dealt by the Hon`ble Court in Atender Yadav case in para No. 74 to 77 and same reads as under:-
74. The desire to take revenge is an evolved outgrowth of our human sense of unsatisfied reciprocity. We can trace innumerable instances of revenge in the history and also in our Hindu mythology. The feeling of revenge destroys the rationale and a common sense even in an otherwise wisest person. At times the feeling of revenge is so strong that the avenger himself also fails to realise the impact of his deeds and easily get swayed by his emotions to wreck vengeance. In order to take revenge he does not even mind doing gravest of act.
An avenger may use various means to take revenge.
SC No. 03/13 Page 34 of 76State Vs. Lalit Ratawal One such means can be process of law i.e. by false implication of the aggressor.
75. The present case is based on somewhat similar facts. In this case the mother of the Prosecutrix, driven by the feeling of revenge, has gone to the extent of falsely implicating her husband for the rape of their daughter, being completely ignorant of the shame she has brought to her entire family including herself, her daughter and her husband by her such derogatory, disgraceful, intolerable and unacceptable conduct. At the first blush of this case, it appeared to us that the father has really committed such a heinous offence with his own daughter, however a deep scrutiny of all the evidences taken together gives an altogether different picture. Although such cases of false implication in offences especially like rape are rare but they are not uncommon. In the matter of Radhu vs. State of Madhya Pradesh reported in 2007CriLJ4704, the Hon‟ble Apex Court took a view that a false charges of rape are rare and there have been also rare instances where the parents have persuaded a colourable and obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. Relevant paragraph of the judgment is reproduced herein below:-
"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
76. In the matter of Rajoo and Ors. vs. State of Madhya Pradesh reported in AIR2009SC858 the Hon‟ble Apex Court held as under:
"It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved."SC No. 03/13 Page 35 of 76
State Vs. Lalit Ratawal
77. In the matter of Tameezuddin @ Tammu v. State of NCT of Delhi reported in (2009)15SCC566 the Hon‟ble Apex Court held as under:
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable."
(emphasis supplied)
24. Before proceeding further, I also prefer to refer the family back ground of the victims.
25. PW4 (complainant) is the widow having three children i.e. two sons age about 13 years (missing) and 7 years (PW5) and one daughter aged about 12 years (PW1). PW5 is a slow learner and he used to suffer fits since the age of 2-3 years and getting regular treatment. PW4 did not have any source of income except income from rent. PW4 claimed that Vijay aged about 20 years is like her son and he used to visit her house almost daily and she also used to talk with him almost daily and she also used to talk with him on mobile phone several times in a day and they go to Mandir for Sewa regularly.
26. Since, the alleged entire episode was unearthed on receipt of an SMS on the mobile phone of complainant, which complainant allegedly received in the mid-night and SMS was "I am waiting for my wife", and on receipt of the said SMS, complainant had made an inquiry from her children and during inquiry PW1 and PW5 broke down and narrated all the incidents SC No. 03/13 Page 36 of 76 State Vs. Lalit Ratawal to the complainant, thus firstly I shall deal with the said SMS.
(i). PW4 in her examination-in-chief deposed that in the month of September 2009 she had seen an SMS on her mobile phone and same was in English that "I was waiting for my wife." Accordingly, she asked her daughter PW1 to read the said SMS as she knew a little English. She further deposed that since her eldest son i.e. victim Y (missing son) had gone to Haridwar to take Kawar, she tried to contact him on phone to enquire about the SMS but she could not contact him. On September 8, 2009, her eldest son returned to Delhi. Accordingly, she had shown the mobile phone to him but by that time the SMS had been deleted. On being asked PW1 told that she had deleted the SMS and prior to that she also told the complainant that the said SMS had come from 4-5 digit number and the said number begins with digit 5. Accordingly, PW4 suspected that something was wrong. On being asked PW1 told her that {Name-redacted}, son of her music teacher came to their house and he had called PW1 down stairs and while she was standing in the stair case {Name-redacted} had touched her and had taken her photographs from her mobile phone but she failed to state as to who had sent the said SMS. In her examination-in-chief, she further deposed that she took her daughter (PW1) to J D Tytler School where Principal called {Name-redacted} and his father named Sanjay (music teacher) and made inquiry from them but they did not give any reply to the queries of Principal as PW1 herself stated before the Principal that she had told wrong facts to her mother (PW4) as PW4 was making inquiry from her, thus, she had became scared. Accordingly, Principal scolded PW1. She further deposed that Principal was trying to make an inquiry from PW1 but she denied about any such incident. Accordingly, they returned to home. Thus, it becomes clear that PW4 in her examination-in-chief admitted that the said SMS was deleted by PW1 herself and before the Principal she herself SC No. 03/13 Page 37 of 76 State Vs. Lalit Ratawal admitted that she had told wrong facts to her mother (PW4.)
(ii). In her cross-examination, PW4 deposed that she visited the Principal of J D Tytler School because she had received dirty SMS on her mobile phone. As already discussed that since PW1 had already admitted before the Principal that she had told wrong facts to her mother, the visit of PW4 to the office of Principal lost the significance. Further, in her cross- examination she admitted that she had not shown the said SMS to the Principal because PW1 had told the Principal that she had no problem but swiftly added that PW1 had not told anything about the SMS. She further deposed that she did not recollect from which number the said SMS was sent except that the first digit of the said mobile number was 5. She denied the suggestion that the said SMS was sent to her by Vijay, her so called foster son.
(iii) The testimony of PW4 is not even supported by PW1 as PW4 deposed that the said SMS was received in September 2009 and categorically deposed that she had shown the mobile phone to his eldest son on September 8, 2009 to check the said SMS but surprisingly PW1 in her examination-in-chief deposed that the said SMS was received in August 2010 and further deposed that she deleted the SMS as she knew that the same was sent by accused {Name-redacted} and she was afraid from him because {Name-redacted} and others had already prepared her video film and threatened her that they would upload the same on internet. She further deposed that though her mother made an inquiry from her as to who had deleted the SMS, yet she did not disclose to her anything whereas on the contrary PW4 categorically deposed in her examination in chief that PW1 told her that she had deleted the said SMS.
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(iv). During investigation, it was revealed that Ms. Jennifer Tytler, Principal of school, called the student {Name-redacted} to make inquiry about the said SMS. But he got shocked and confused and at that time PW1 confessed that she had told a lie to her mother about the SMS as she wanted to come back to J.D. Tytler School because she did not like any other school. This fact is mentioned in the charge-sheet. This shows that during investigation the theory of SMS was found totally false.
(v) During investigation, PW26 also interrogated Ms. Jennifer, Principal of the school who informed the investigating officer that complainant had approached her in the end of August 2010 with a request to take her daughter (PW1) back to the school. Accordingly, she asked why complainant had withdrawn her daughter from the school. At that time, complainant told her that she had taken her daughter from the school because of an SMS sent by student named {Name-redacted}. It was concluded by the investigating officer that complainant in her complaint alleged that she had received the dirty SMS in the month of Sawan i.e. July/August, 2010 whereas she had taken her daughter from the J D Tytler School in the month of April 2010, thus, Principal of the school did not corroborate the version of complainant that she had received the SMS in the month of Sawan.
(vi). During her cross-examination, PW4 clarified that mobile phone number 9560348070 belonged to her whereas mobile phone number 9555989901 belonged to her foster son named Vijay. During investigation, it was revealed that she had received maximum calls from her so called son and when Vijay was summoned by the investigating SC No. 03/13 Page 39 of 76 State Vs. Lalit Ratawal officer for the purpose of investigation, complainant moved an application before the Court of learned ACMM alleging that Vijay was liked her son and he was being unnecessarily harassed by the investigating agency. This shows that even complainant did not intend that Vijay be interrogated by investigating officer.
(vii). Further, PW1 in her cross-examination deposed that the alleged SMS was received at the mobile phone of her mother and the said phone was used to be remained with her mother only and she never used the said phone except for the purpose of checking SMS and setting of alarm as her mother only knew to make and attend calls. But she swiftly added that the SMS was received from the number of accused {Name-redacted} but this was not his mobile number. Rather he had used his computer to send the said SMS. She further deposed that she knew this because earlier also {Name-redacted} used to send the messages and he had sent 9-10 messages but all were jokes. But it is seldom to digest the testimony of PW1 because if the said phone used to be remained with the mother of PW1 why {Name-redacted} would send message/SMS to PW1 on the said phone as she categorically deposed that she never used the said phone except for the purpose of checking SMS and setting alarm. Moreover, assuming that the SMS/jokes were sent through computer, even then there should be at least 8 digit number because internet connection is required to send a message through computer. Thus, it is not feasible to send any SMS from computer by using 4-5 digit number phone.
(viii). It is also undisputed fact that during the investigation, investigating officer had seized the mobile phone of all the concerned parties including the complainant but surprisingly no data was found in the SC No. 03/13 Page 40 of 76 State Vs. Lalit Ratawal mobile phone of complainant. As per the supplementary, charge-sheet, SIM-2 belonged to the complainant. The retrieved data revealed that there was no contact in her mobile phone. It was further highlighted that the complete absence of all data inside the mobile phone of complainant looked strange. The said phone did not carry any contact or other retrievable data which were found in all other phones. Thus, the factum of receiving the alleged offending SMS could not be established by examining her phone. It is pertinent to state that in her deposition PW4 categorically admitted that she used to make several calls to her foster son Vijay in a day and PW1 also deposed that {Name-redacted} had earlier sent 9-10 jokes. Despite that absence of all data in the phone shows that before handing over the same to the police, all data were got deleted even from the hardware of the mobile phone. This shows that the complainant did not intend that her data could be retrieved on examination. This casts a grave suspicion over the alleged so called offending SMS.
27. From the above discussion, it can safely be culled out that the theory of SMS propounded by the complainant is incredible and does not inspire any confidence. In other words, the foundation of the entire case is too weak to build any edifice thereon.
HYMEN TORN:-
28. Since, the hymen of victim X was found torn, an effort was made by learned Additional Public Prosecutor to show that it was because of sexual exploitation of victim X. In this regard the testimony of PW1 and PW3 are relevant.
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29. PW3 examined the victim and she in her examination-in-chief deposed that on local examination, no local injuries, hymen was found torn, annular admits one finger, vagina normal, no laceration or tear were found. In her cross-examination, she admitted that in case of continuous rape with a child age about 13 years some injuries may be possible.
30. PW1 deposed that she used to participate in sports, music, yoga and also used to participate in annual day function. She further clarified that in sports, she used to participate in aerobatic and racing and also used to participate in swimming etc. curriculum activities at Salwan Senior Secondary School also. Thus, it becomes clear that PW1 used to participate in several activities including aerobatic and racing, thus the possibility that her hymen was torn during the said activities can not be ruled out.
31 From the testimony of PW8 Dr. Rattan, it becomes clear that no injury was found even at the anus of both the male victims.
32. In view of the law laid down by the High Court of Delhi in Atender Yadav (supra), no inference can be drawn against the accused mere on the ground that hymen of PW1 was found torn during medical examination. Mere torn hymen does not ipso facto proves that she was subjected to sexual intercourse/sexual exploitation.
Note Books:-
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33. Prosecution has set up a case that three note books Ex. PW1/DB, PW4/C and PW4/D were seized by the police and in the said note books, the victims had recorded the entire incidents which not only show the involvement of arresting accused but also proves the involvement of other persons too. In this regard, the testimony of PW1, PW4 and PW26 are relevant.
34. As per main charge-sheet complainant had handed over three note books to the investigating officer on October 10, 2010 alleging that the same were written by the three victims wherein they had named numerous other persons including about a dozen other school mates who according to them were their co-victims. They also named five school teachers of J. D. Tytler School who used to assault them. They also named one taxi driver named Jeeta, two brothers of accused Lalit, one uncle and aunty residing on the first floor of accused {Name-redacted}'s residence, one school security guard. Complainant also produced the school magazine of J. D. Tytler wherein faces of numerous persons were encircled with ink indicating them either co-victims or assailants. Victim also mentioned premise No. 14A/96, second floor, Karol Bagh in the school magazine as the place where they were taken for sexual abuse.
(i). PW4 in her examination-in-chief deposed that her children were got admitted in the hospital by the then Health Minister of Government of NCT of Delhi. She further deposed that on September 22, 2010 investigating officer (PW26) came to the hospital and informed her that the matter had been transferred to Crime Branch and PW26 made inquires from her children and asked them to tell true facts about the incidents. She also told them to take their own time and note down about all facts in a SC No. 03/13 Page 43 of 76 State Vs. Lalit Ratawal notebook. Accordingly, her children had written all the facts in separate notebooks and she further deposed that on October 10, 2010 those note books were handed over to the investigating officer and the same were seized by investigating officer vide memo Ex. PW4/B.
(ii). By deposing so PW4 intended to say that her children had recorded the note books on the suggestion of investigating officer but her testimony does not get any support from PW26. PW26 in her examination in chief deposed that the investigation of the case was assigned to her on September 24, 2010, thus there was no occasion for PW26 to visit the hospital on September 22, 2010 and asked the victims to note down all the facts in the note books. She further deposed that she visited the hospital on September 25, 2010 to collect the blood sample of the victims. Thereafter on September 27, 2010 she received an intimation from the hospital that all the victims had absconded from the hospital on September 26, 2010 and they were got re-admitted in the hospital on September 27, 2010. Accordingly, she reached the hospital to collect the MLC of all the victims. Surprisingly, PW4 did not depose all these facts. From the testimony of PW26 it becomes clear that she neither visited the hospital on September 22, 2010 nor she met with the victims; nor she asked them to write the incidents in the note books. PW26 further deposed that on October 10, 2010 when she visited the hospital, complainant had handed over three note books which were written by the victims wherein victim had narrated the incidents and their trauma, accordingly she seized the said notes books. She further deposed that on that day complainant had also handed over one school magazine wherein faces of four persons were encircled by the victims as their co-victims and they had also mentioned the address as 14A/96, Karol Bagh where the said victims were allegedly assaulted.
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35. Now question arises at what time the said note books were written by the victims?
(i) PW4 in her cross-examination deposed that the note books were written by her children in hospital when she used to sleep and clarified that since she was unwell she used to sleep in the hospital itself. Thus, by saying so PW4 intended to say that her children had written the note books of their own and not at her instance. On the other hand, PW1 in her cross- examination deposed that she had taken 7-8 days time in completing the note book and categorically deposed that she had written the said note book in the presence of her mother and she used to write the same in night. This falsifies the testimony of PW4 that victim had written the note books when she used to sleep. This itself casts a grave suspicion over the said note books.
36. Now question arises whether any reliance can be placed on such note books or not? In this regard the testimony of PW1 is quite relevant.
(i) PW1 in her cross-examination deposed that she had mentioned the name of badminton coach, swimming coach and driver named Jeeta in the note book because when she was in the hospital, some people came to the hospital and they were looking at her in order to eliminate the victim and due to fear she had written the name of said persons in her copy. She further deposed that she had encircled the faces of 15 school children in the school magazine but she had not disclosed their name to the school Principal. She further deposed that she had SC No. 03/13 Page 45 of 76 State Vs. Lalit Ratawal wrongly encircled their faces in the school magazine and mentioned their name. She further deposed that she had also mentioned the name of security guard in her copy but she never made any complaint before the school authority. She further deposed that she had wrongly mentioned his name in her copy. When attention of witness was drawn towards the note book Ex. PW1/DB, she deposed that she had wrongly mentioned the name of aforesaid persons but swiftly added that the name of uncle of accused, Sanjay sir, {Name-redacted}, {Name-redacted}, Anup and his friend Rahul were correctly mentioned. She further deposed that some of the contents of the note books are true whereas some are false.
(ii). In her cross-examination she further deposed that portion X to X, X1 to X2 are false. Similarly, portion X3 to X4 and X5 to X6 at page no. 14 are also false. She also admitted that portion Y to Y at page no. 13 is also false and further deposed that all the contents of Page no. 10 and 11 are false except that Sanjay Bhardwaj used to teach them music and also used to mark her attendance as correct and name of Anup and {Name-redacted} are also correctly mentioned therein. She further deposed that she had falsely mentioned the same in the note book because unknown person came to the hospital to kill her, thus she became scared but swiftly added that the said person did not talk to her but swiftly added that this fact was told to her by a nurse and she also informed the police. Indisputably, no such information was ever given to PW26. She further deposed that she had falsely mentioned in the note books that Sanjay Bhardwaj came to her house on 5-6 occasions but swiftly added that he visited her house once or twice but did not remember the date of his visit and further deposed that she did not inform her mother that Sanjay had pressed the neck of her brother as mentioned at page no. 22. She further admitted that contents at portion mark X7 to X12 at page no. 33 and 34 are false. Similarly, contents SC No. 03/13 Page 46 of 76 State Vs. Lalit Ratawal X13 to X14 at page no. 41 are also false except the name of Pawan and his friend. Similarly, contents of X15 to X16 at page no. 42 and X17 to X18 at page no. 43 are also false. She further deposed that she had falsely mentioned the name of Sardarjee due to fear. She also admitted that the contents of X19 to X20 at page no. 43 and X21 to X22 at page no. 46 are also false. She further deposed that she did not recollect why she had written remaining portion at page no. 46 and 47. She also admitted that portion X23 to X24 at page no. 8 & 9 are also false. Similarly, portion X25 to 26 at page no. 46 are also false except the name of Pawan and his friend and name of Reema and Chirag were falsely mentioned in the note book. The portion X43 to X44 is also false and Y15 to Y16 and Y17 to Y18 are also false. She also admitted that portion X27 to X28 is also false. When a question was asked whey she had written the said note books, she deposed that police asked her to note down whatever facts she was aware of. As already discussed that PW26 never deposed that she ever asked the victims to write the note book.
(iii). From the above testimony of PW1, it becomes clear that most of the facts mentioned in the note book Ex. PW1/DB are false and she failed to give any just and reasonable explanation for mentioning incorrect and false facts in the note books. This shows that the note books were prepared at the instance of someone with some ulterior motive to create an incriminating evidence against the accused persons.
(iv). Though PW4 deposed that her son( PW5) had also recorded the note book, but PW5 in his deposition no where deposed that he had prepared any such note book. Thus, no reliance can be placed on the note book allegedly prepared by PW5. The another note book was allegedly SC No. 03/13 Page 47 of 76 State Vs. Lalit Ratawal prepared by the missing son of PW4 but he failed to appear in the witness box.
(vi) From the foregoing discussion, it becomes clear that prosecution failed to establish that the said notebooks were prepared at the suggestion of the PW26 as claimed by PW1 and PW4. Further, it is proved that most of the facts mentioned in the notebooks are incorrect and false. PW1 and PW4 concealed the fact from the court that the victims were absconded from the hospital without informing the hospital authorities. It is not clear who used to visit the hospital to eliminate the victims. When victims could write most of incorrect facts in the notebooks under the fear of such unknown person, how can it be said that the rest of its contents are not recited falsely at the behest of any other persons. In these circumstances, I am of the considered opinion that no reliance whatsoever can be placed on the said notebooks.
Substantial improvements made by victim in her deposition:-
37. PW1 in her examination-in-chief deposed that accused also used to make the victims inhale fumes of some powder like substance after keeping it on a piece of paper and by lighting a match stick underneath the paper. By deposing so, PW1 intended to show that the victims were used to be made either unconscious or semi-conscious before exploiting them sexually. However, the said portion of her deposition was got confronted during the cross-examination from her previous statements Ex. PW1/A and Ex. PW1/DA. Similarly, the testimony of PW1 to the extent that she used to feel pain in her head as accused used to pull her by hair and she had also swelling in her hand was also got confronted during her cross-examination.SC No. 03/13 Page 48 of 76
State Vs. Lalit Ratawal During her examination-in-chief PW1 also deposed that Anup is also known as Akshey. But her testimony to that extent is also got confronted during cross-examination. In her cross-examination, she deposed that she had told the police "Kapde uttar kar wo mere saath zabardasti shaaririk sambadth banata tha". But deposed that police did not record the same in her statement. By deposing so, PW1 wanted to prove that police had not recorded her statement properly. But surprisingly the factum of making Zabardasti shaaririk sambadh is also not mentioned in her statement got recorded under Section 164 Cr. P. C.
(i). No doubt all types of variations in the statement of a witness is not fatal to the prosecution case. It is well settled law that the subsequent improvements in the deposition which may have effect on the core of prosecution case are liable to be ignored or discarded and if the improvements are in the nature of explanation, then such improvements do not cause any dent in the prosecution case. To my mind, in the instant case, first variation is a substantial in nature as it affects the core of prosecution case. Similarly, the omission of zabardasti shaaririk sambadth banta tha is also substantial in nature as it also affects the core of prosecution case. The rest of two improvements are not of a such a nature which may cause any dent in prosecution case. It is also pertinent to state that PW1 failed to give any reasonable explanation for the said omissions in her previous statements. These improvements shows that victim did not hesitate to make fresh allegations against the accused by making substantial improvements in her deposition. Thus, her testimony requires close scrutiny and above improvements are liable to be discarded.
(ii) It is pertinent to state that in the complaint, it was alleged that at the first occasion, accused had given one toffee to the victim and after SC No. 03/13 Page 49 of 76 State Vs. Lalit Ratawal eating the same, victim became unconscious and at another occasion, accused compelled the victims to take liquor but surprisingly PW1 in her deposition did not depose so.
Sequence of picking up victims by the school cab and the period till when victims used the school cab of the accused:-
38. During investigation, it was surfaced that all the three victims used to travel in the van of accused Lalit Ratawal from their residence to J.
D. Tytler School and he charged ` 1100/- to ferry the victims. It was also revealed that accused used to carry a total 12 children including victims daily in his Maxi cab. Since last 7 months, victim (PW1) had not been going in his van as she had left J. D. Tytler School and joined Salwan Girl's Government School and complainant used to pay ` 800/- per month for the transportation of her both the sons to the accused. It was further revealed that victims were the last to be picked up and the first to get down from his van, as they lived nearest to the school and {Name-redacted} and {Name-redacted} did not travel in his van.
(i) Thus, two facts become clear that since victims used to be picked up in the last and dropped first, it was not feasible for the accused to take the victims anywhere without getting in the notice/knowledge of the other children. During investigation, none of the other children corroborated the version of victims that accused used to take them at any other place after dropping them at the school. Secondly, that PW1 was not using the cab of accused for the last seven months as she had changed her school. No doubt this fact is disputed by PW1 and PW4 but PW5 corroborated the version of prosecution that PW1 was not using the cab of accused since she changed her school. During trial, complainant failed to produce any SC No. 03/13 Page 50 of 76 State Vs. Lalit Ratawal cogent evidence which may impel the Court to disbelieve the conclusion arrived at by the investigating officer.
(ii). PW1 in her examination-in-chief deposed that she and her siblings were using the cab of accused since 2008 when her father was hospitalized. Besides them, 10-12 other children were also using his cab and all children were the students of J.D. Tytler School. But swiftly added that sometimes, accused also used to pick up some boys of other schools and some girls of Salwan School. She further deposed that she had joined Salwan School on 19th or 20th April 2010. She further deposed that even after changing the school, she continued the van of accused for about two months and thereafter she changed the school cab but she did not remember the name of said cab driver. She further deposed that she stopped the new van since August 2010 as cab driver was asking for high fare. Since, then her mother used to drop and pick her by her from the school. PW4 corroborated the version of PW1 that she was using the cab of accused since 2008 and she continued to go to her new school till summer vacation. But PW5 did not support their testimony to the extent that after changing her school PW1 continued to use the cab of accused. PW5 deposed that after joining the Salwan School, his sister was used to go to school separately and he and his brother used to go separately. Further, it is on record that the timings of both the schools was same, thus, it was otherwise not feasible for the students of Salwan School to commute in the van of accused. Though PW1 deposed that some girls of Salwan School also used to commute in the van of accused but she did not tell their names. It is pertinent to state that initially PW1 deposed that all children were the students of JD Tytler School but swiftly added that sometimes accused also used to take the students of some other school and some girls of Salwan School. In other words, PW1 intended to say that besides SC No. 03/13 Page 51 of 76 State Vs. Lalit Ratawal 10-12 children, accused sometimes used to carry some boys of other school and some girls of Salwan School. But her testimony to that extent does not appear trustworthy because in school van, kids are fixed for a particular session. It is not possible either for the cab driver or for the students to change the cab for a particular day (s).
(iii). In the absence of any cogent evidence, version of PW1 and PW4 that PW1 continued to use the cab of accused till summer vacation even after changing her school does not inspire any confidence.
Number of incidents and place of incidents:-
39. As per complaint lodged with police, three incidents had taken place with the victims and all the said incidents had taken place about 1 ½ years ago prior to lodging of the FIR. Since, the FIR was lodged on September 17, 2010, it means that the alleged incidents had taken place sometimes in the month of February and March 2009.
(i) As per the complaint, at the time of first incident, accused took the victim X to the house of his co-accused {Name-redacted} (juvenile) after giving a toffee and when she consumed toffee, she became unconscious. After dropping other children at school, accused took the PW1 to the house of {Name-redacted}. On that day her two sons did not go to school. At that time, PW1 was raped by accused and {Name-redacted}. It was also alleged that accused had also prepared a video of the PW1 and threatened her that they would upload on the internet. Second incident had taken place after 3-4 days of the first incident and at that time, accused had taken all the three victims to the house of {Name-redacted} where they were compelled to consume liquor and thereafter they were sexually assaulted by three persons i.e. accused, SC No. 03/13 Page 52 of 76 State Vs. Lalit Ratawal {Name-redacted} and {Name-redacted} (both juvenile). After a week of the second incident, third incident had taken place and the said incident had also taken place at the house of {Name-redacted} but this time besides the above three persons, two more persons namely Pawan and Anup also sexually exploited all the victims.
(ii) Thus, as per complaint, all the three incidents had taken place at the house of {Name-redacted}. No doubt, during investigation victims and complainant had made certain other allegations and disclosed that they were also sexually exploited at some other places, which shall also be discussed at appropriate stage.
(iii) It is pertinent to state that as per allegations all the victims were sexually exploited while going to school. It means that on the day of incidents, neither the victims nor the accused could have attended their classes. As already stated that as per complaint, the alleged incidents had taken place sometimes between February and March 2009. During investigation, investigating officer had analysed the attendance record of all the victims and accused persons and prepared a chart and same is reproduced in the charge-sheet.
(iv) During investigation, it was revealed that there were only two occasions when all children i.e. victims and accused {Name-redacted} and {Name-redacted} were absent from the school. Firstly they were absent on 10 th September 2009. Perusal of the class attendance records shows that a large number of children were absent in the class of victim Y on 10 th September 2009.
Similarly, a large number of students missed the school from the class of victim X on September 10, 2009. It was revealed that Nain, who is {Name-redacted}'s twin sister and studied in the same class and section was also SC No. 03/13 Page 53 of 76 State Vs. Lalit Ratawal absent on September 10, 2009. Second date is September 13, 2010, when victim Y, victim Z, {Name-redacted} and {Name-redacted} were absent from their school J. D. Tytler School and victim X was studying at Salwan Government Girls School and she was marked leave/absent continuously from 1st September 2010 till October 30, 2010. It is pertinent to mention that on September 13, 2010, a large number of students missed school along with victim Y. Victim Z missed school almost the entire month of September 2010 except on September 2, 2010, September 7, 2010 and September 9, 2010. Similarly, a large number of students also missed the school on September 13 2010 in {Name-redacted}'s class including {Name-redacted}.
(v) It is pertinent to state that as per complaint, victims were sexually assaulted sometimes in the month of February and March 2009 and not in the month of September 2009 and September 2010. Further, as per complaint, three incidents had taken place within two weeks, thus, it can safely be culled out the alleged incidents had not taken place in either on September 10, 2009 or September 13, 2010.
(vi) Perusal of chart prepared by the investigating officer reveals that {Name-redacted} and {Name-redacted} attended the school regularly in the month of January, May, August 2009. Besides that {Name-redacted} also attended the school regularly in the month of October and November 2009. In the month of March 2009, there were examination days of {Name-redacted} and {Name-redacted}. Thus, during these period, it was not possible for either {Name-redacted} or {Name-redacted} to sexually exploited any of the victims. Chart further reveals that PW1, and victim Y regularly attended their school in the month of March, April, May, July, 2009. Thus, during these months also, it was not possible for the accused persons to sexually assaulted any of the victims. In the month of February 2009 accused and victims were not found absent on the same SC No. 03/13 Page 54 of 76 State Vs. Lalit Ratawal day. In the month of November 2009, PW1 and victim Y and {Name-redacted} did not attend the school on 13.11.2009 and on November 9, 2009 victim Y and victim Z did not attend the school. Since, there is no allegation that accused {Name-redacted} had sexually assaulted the victims alone; rather as per allegation {Name-redacted} used to be present at all the occasions, thus, it was also not possible that any of the victims was sexually assaulted/exploited either on 09.11.2009 or 13.11.2009. Similarly, as per chart, PW1 and PW5 did not attend the school on December 7, 2009 and accused {Name-redacted} was also absent on that day. But his absence also does not prove anything because as per allegation PW1 and PW5 were never sexually assaulted/exploited together; rather as per allegation at one occasion PW1 was sexually exploited alone and thereafter she along with her both the siblings. Similarly, the absence of victim Y and {Name-redacted} on 17.12.2009 does not prove anything. Their absence could be a co-incidence.
(vii) Similarly, in the month of March, May and July 2010 both the accused namely {Name-redacted} and {Name-redacted} had attended their school regularly. Besides that accused {Name-redacted} attended the school regularly in February 2010, {Name-redacted} attended the school regularly in the month of April 2010. Thus, it was not feasible for the accused to sexually assaulted the victims in these months. In the month of January and February 2010, victims and accused were not found absent on any common day. In the month of March, victims and both the accused attended the school regularly. In the month of April and August, accused and victims were not found absent on common days. It is pertinent to state that PW1 had changed her school in the month of April 2010, thus, it was otherwise not feasible for the accused {Name-redacted} and {Name-redacted} to know about her movements.
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(viii) Thus, it is limpid that the analyse of the chart of attendance register of victims and accused {Name-redacted} and {Name-redacted} also rules out the possibility of any such incidents.
(ix) Scrutiny of attendance sheet of Salwan Government School shows numerous instances of absenteeism of PW1 since July 2010. Salwan Girl's School authorities have confirmed that they had written two letters firstly on September 6, 2010 and secondly on 16.9.2010 about the regular absent of PW1. However, during investigation, complainant had neither revealed this important fact to the police nor she had produced the two letters which she might have received from victims' school. It was also revealed that complainant had also not been very forthcoming about stating the mode of transport that PW1 used to take to reach Salwan Girl's School every day. This further shows that the complainant did not co-operate to the investigating officer during investigation.
(x) From the attendance record of Salwan School, it becomes clear that victim X was not attending the school since 01.09.2010. This also rules out the possibility of taking away the victim X by the accused in his van. In other words, this further rules out the possibility of any sexual exploitation about 15 days prior to lodging the FIR as alleged in the MLC.
(xi) In the complaint, it was alleged that at the time of first incident accused had given some toffee to the PW1 and after consuming the same, she lost her consciousness and thereafter she was sexually exploited and it was also alleged that victims were used to be compelled to take liquor but surprisingly PW1 in her deposition did not depose so. On the contrary, she deposed a new fact first time in the court that accused used to ask them to inhale fumes of some power like substance after lighting a match stick SC No. 03/13 Page 56 of 76 State Vs. Lalit Ratawal underneath such paper. In other words, PW1 even did not support the allegations levelled in the complaint.
(xii) As per the complaint, alleged incidents had taken place at the house of {Name-redacted} and as per charge-sheet the address of {Name-redacted} is 6485 Gali No. 4 Block 8, Dev Nagar, Karol Bagh. During investigation, victims also disclosed some other addresses where they were allegedly taken and sexually exploited. During investigation, all premises were checked. As per charge-sheet, the premises no. 14A/96, 2nd floor Karol Bagh, Delhi belonged to one Maya Niranjan Gada. The said premise was being used as a paying guest accommodation and 7 girls, all except one preparing from Vajirao Institute for Civil Services examination, had been living there since the last several months. All the occupants were verified. During investigation it was revealed that neither {Name-redacted} nor his family had any concerned with the said premises.
(xiii) During investigation, victims also identified another premises i.e. 2251/4A Guru Nanak Nagar, New Ranjeet Nagar, Delhi. During investigation, it was revealed that the said house belonged to Nagra brothers who lived therein in a joint family for the last 40 years. In the said joint family 26-28 persons including 10 ladies and children resided therein and investigation ruled out any possibility of sexual exploitation of the victims at the said premises.
(xiv) During investigation, victims also identified another premises i.e. 4050 Gali No. 36, Regar Pura, Karol Bagh, Delhi. On investigation, it was revealed that same belonged to the mother of Om Parkash and he started to use the same about 2 years back after the death of his mother. He had been using it only in the evening to sell cooked meat in evening SC No. 03/13 Page 57 of 76 State Vs. Lalit Ratawal hours and during investigation nothing was found to corroborate the allegations levelled by the victims.
(xv) Thus, it becomes clear that during investigation it was revealed that there was no substance in the allegations of the victims that they were ever taken at the above premises or they were ever sexually exploited there.
(xvi) PW1 in her cross-examination even deposed that she never led the police team to the premises 14A/96, 2nd floor, Karol Bagh, Delhi. However, PW4 admitted that they visited the said premises but disputed that the same belonged to Maya Niranjan or any girls hostel was found being run. On the contrary she deposed that the said premises was lying vacant. But in view of the finding of the PW26 in the charge-sheet, I do not find any substance in the deposition of PW4.
(xvii) Though PW1 deposed in her cross-examination that she visited the premises located at Guru Nanak Market, yet deposed that she did not know whether the family resided therein related to the accused in any manner or not. PW4 also admitted that in the said premises Nagra brothers were residing in a joint family as earlier stated. PW4 also admitted that they also visited the house at Regar Pura and it belonged to Om Parkash. She further deposed that she could not say that the above premises had any connection with any of the accused persons or not.
(xviii) If accused persons had taken the victims at any of the above premises, it means that any of the accused must have some connection with the said premises otherwise it would not be feasible for them to take three victims at an unknown premises and to sexually exploit SC No. 03/13 Page 58 of 76 State Vs. Lalit Ratawal them repeatedly. This further creates a substantial dent in the allegations levelled by the complainant and her kids.
Non-recovery of any video clipping of any of the victims:-
40. Victims had also made allegations that accused persons had prepared video clipping of the victims at the time of sexual exploitation but during investigation no substance was found in the allegations. During the investigation, police had seized the mobile phones of all the accused persons and same were sent to FSL for examination but surprisingly no objectionable material was found in any of the mobile phones. On the contrary, no retrievable data was found in the mobile phone of the complainant. Even no contact was found in her phone which shows that before handing over the phone, all data were deleted from the hardware of the phone. Since, no objectionable material was found in the mobile phones of the accused persons, it also falsifies the allegation of any such video clippings etc. Role of PW4:
41. As per para 10 of the charge-sheet, the role of PW4 towards her children was not good. As per the charge-sheet, victims told to the doctors that they were beaten by their mother i.e. PW4. When victims were again examined on September 19, 2010, PW1 had shown right black eye and burn mark on right hand. Both of her brothers were also found sustaining multiple bruises. Though doctor advised for the admission of victims, yet, PW4 took away the victims from the hospital against the medical advice after giving in writing. Thereafter, victims were again examined on September 22, 2010. Their MLCs show that victims had SC No. 03/13 Page 59 of 76 State Vs. Lalit Ratawal sustained extensive injuries. PW1 was found sustaining contusion on her right knee and left thigh in addition to the right black eye. Victim Y was also found sustaining contusion over both scapular regions. Victim Z was also found sustaining contusions over right thigh. This shows that the victims were again beaten during the period period September 19, 2010 to September 22, 2010. As per chronological examination of MLCs of victims shows a distinctly rising incidence of injuries to all the three victims, which according to the medical records had been inflicted by their mother i.e. complainant.
(i). During investigation, victims were counselled through NGO named Shakti Vahani and Swanchetan and they observed in their report that when counselling session was going on September 17, 2010, Vijay ( so called foster son of PW4) came and influenced complainant in the police station after which she became violent and refused to go to the Child Welfare Committee. Complainant ran out of the police station and gave her byte to the media outside stating that she was not satisfied with the legal proceedings. It was further observed by the NGO on September 20, 2010 that the home environment was not favourable to the children. There were 5 members in the family including the so called son Vijay. All were living in a single room. On inquiry from the neighbourhood, it was revealed that the role of the so called son, Mr. Vijay in the family was fictitious. His role was very negative in the family so it should be investigated. It was further recited by the NGO in its report that one shop owner told that the mother of victims frequently beat the children and the suspicion was raised how the visit of accused to the victim's house remained unnoticed to the tenants. The neighbourhood told that they heard the sound of children crying in the midnight. This further shows that the role of PW4 was not friendly or cordial with the victims and the role of alleged Vijay was quite suspicious.
SC No. 03/13 Page 60 of 76State Vs. Lalit Ratawal
(ii) PW4 in her cross-examination took the plea that she took the children from the hospital because doctor told her that children were suffering from only fever and they were being given only crocin. However, her testimony to that extent does not getting any support from any other corner. PW19 Dr. Radhika in her cross-examination deposed that she recommended for admission of the victims but their mother PW4 refused for admission and in this regard she made an endorsement vide Ex. PW19/D. Similarly, PW25 Dr. Sumit Kumar Gupta in his cross-examination deposed that patient was discharged at the request of his mother and further clarified that if there would be no request from the mother of victim, probably he would not have recommended for discharge of the victim on that day. He further deposed that on November 10, 2010, PW4 had given in writing that she wanted to seek discharge of her children and sought discharge on her responsibility. Her request letter is already Ex. DW25/D1. He further deposed that victim Y was again discharged on December 31,2010 at the request of his mother and clarified that if his mother had not made a request of his discharge, probably he would not have discharged the patient either on October 10, 2010 or December 31, 2010. He further deposed that on December 24, 2010, PW4 made a request in writing that her son should not be allowed to meet with anyone except Vijay and herself and further admitted that PW4 used to make complaints against the attendant and security guard posted in the ward where patient was admitted and further deposed that due to said complaints no one was permitted to enter the room/cabin except doctor and staff who were involved in the treatment and the attendant i.e. PW4 and Vijay and siblings.
(iii) Thus, it becomes clear that the victims were subjected to the cruelty by PW4 and she used to take discharge against the medical advice and she also did not use to get victims admitted in the hospital despite SC No. 03/13 Page 61 of 76 State Vs. Lalit Ratawal medical advice. Even she did not like that any other person may meet with her children except herself and her so called foster son named Vijay. All these are sufficient to cull out that the relationship between the victims and PW4 were not cordial and victims were used to be beaten by PW4 frequently. In these circumstances the possibility that victims were tutored or forced to make statement can not be any ruled out.
(iv). As per the complainant, victim Y was aged about 13 years. PW4 deposed that when she had received so called dirty SMS, at that time her son i.e. victim Y had gone to Haridwar to take Kawar. It is quite improbable that the boy of tender age of 13 years would go to Haridwar to take Kawar. She further deposed that she did not remember when her son had gone to take Kawar but deposed that he returned to home on 8 th day of month of Sawan. Admittedly, Sawan comes in the month of July or August whereas the FIR was lodged in the month of September 2010. She further deposed that her son had taken 4-5 days leaves from the school for going to take Kawar and in the leave application he had mentioned that his mother (PW4) was ill and swiftly added that at that time she was admitted in Ganga Ram hospital and deposed that when she was admitted in the hospital her children used to remain with her in the hospital and they did not go to school during that period. It looks quite confusing as on the one hand, she deposed that during her illness her children were used to be remained in the hospital with her but on the other hand she deposed that her eldest son had gone to Haridwar despite that she was admitted in the hospital. It is quite improbable that any sincere or loving mother would permit her child of such a tender age to go to Haridwar alone to take Kawar. Similarly, it is also quite improbable that any obedient son would go to Haridwar to take Kawar despite the fact that his mother is admitted in the hospital. If there is any substance in the deposition of PW4, it shows that the relationship SC No. 03/13 Page 62 of 76 State Vs. Lalit Ratawal between PW4 and her eldest son was not cordial. It is also pertinent to mention here that after registration of FIR her son was found missing from the home. Consequently, PW4 lodged an FIR and raised suspicion that her son had been kidnapped by one Sanjeev @ Pawan but during investigation no substance was found in the allegation. Though the victim Y was found on December 20, 2010 but again he absconded from his house and till date his whereabouts are not traceable. This again shows that his relations with PW4 were not cordial.
Conduct of victims:-
42. It is admitted case of prosecution that victims were repeatedly sexually exploited by more than one persons. As per complaint, initially, PW1 was sexually assaulted by two persons; then second time by three persons; third time by five persons; and thereafter by multiple persons from time to time. Since, PW1 and other victims were of tender age, then victims must have sustained some injuries at their private parts. As the offence of sexual exploitation not only causes injuries on the body of victims but also on the minds too, thus it was not possible for the victims of such a tender age to remain normal in their behaviour and activities, particularly for PW1, who may need medical help after such incidents. But despite that none of the victims deem it appropriate to make any complaint to any person in whom they had faith. Further, when the complainant raised suspicious after seeing the so called dirty SMS, none of the victims came forward to tell the truth; rather they disclosed the alleged incidents when complainant had beaten them. Similarly, the eldest son of the complainant dared to go alone to Haridwar to take Kawar but could not dare to tell their sufferings to his mother; particularly sufferings of his sister. The court is not oblivious about the threat and alleged video clippings as deposed by the victims. But Court SC No. 03/13 Page 63 of 76 State Vs. Lalit Ratawal has to see whether there was any substance in it or same has been taken as tool to justify their abnormal conduct. Since, all the victims and complainant were residing in a single room and there was none in the family with whom victims could share their woes and weal, thus it is unbelievable that complainant could not observe any change in the activities of victims particularly PW1 who must have needed her help after such incidents. It is also pertinent to mention here that during investigation nothing objectionable was found in the mobile phone of any of the suspected persons including accused before this Court. This conduct of the victims also raises suspicious about the happening of any such incidents.
Defence version:-
43. In the absence of cogent admissible evidence on record, it is seldom to hold the defence version that complainant had implicated the accused in the instant case due to his strained relations with his ex-in-laws.
But non-proof of defence version does not mean that prosecution version is trustworthy. So far the defence version that accused was arrested along with his school van and van was lying in the police station from the date of arrest is concerned, same appears to be trustworthy and it will be discussed a little later.
(i) In view of the observations of higher courts as discussed earlier, I do not find any substance in the contention of learned Additional Public Prosecutor that prosecution version is trustworthy as no mother would use her kids of such a tender age to implicate the accused falsely in such a heinous crime.
SC No. 03/13 Page 64 of 76State Vs. Lalit Ratawal Summary of discussion:-
44. Mulling over the ongoing discussion, following facts are emerged:-
(I). Theory of SMS propounded by prosecution is incredible.
(ii) Notebooks prepared by victims are not trustworthy.
(iii) Torn hymen does not prove that PW1 was subjected to sexual exploitation.
(iv) Victims did not sustain any injury during the alleged incidents, which is quite improbable.
(v) Whatever injuries were found on the bodies of victims were caused by the complainant.
(vi) School attendance records of the victims and juvenile accused rules out any occasion of any such incidents.
(vii) Premises identified by the victims during investigation proves that accused had no concern with the said premises and there was no possibility for the accused to take the victims at the said premises to satisfy their lust.
(viii) No medical evidence was found to corroborate the version of victims.
(ix) That no scientific evidence of any nature was found to corroborate the victims' version. Rather, FSL report qua mobile phones rules out of any SMS and videography of any such episode. Report of chemical division also does not corroborate the victims' version.
(x) That complainant was not interested that her so called foster son be interrogated by the police.
(xi) That principal of J D Tytler School did not support the complainant's version.SC No. 03/13 Page 65 of 76
State Vs. Lalit Ratawal
(xii) That companions of victims who used to go in the cab of accused also did not support the victims' version.
(xiii) That conduct of victims is quite suspicious as they did not make any complaint to anyone despite having opportunities.
(xiv) That atmosphere of the house of victims was not found conducive to the victims.
(xv) That relations between complainant with her kids were not cordial.
(xvi) That relations of complainant with so called foster son Vijay are not beyond doubtful.
Outcome of discussion:-
45. Now question arises as to whether in view of aforesaid discussion, conviction can be recorded on the basis of testimony of PW1, PW4 and PW5?
(i) In view of the law laid down in the judgements (supra), I am of the considered opinion that no reliance can be placed on the uncorroborated depositions of PW1, PW4 and PW5; rather in view of surrounding circumstances in my opinion their depositions are totally incredible, untrustworthy and insufficient to record any conviction. Accordingly, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused Lalit Ratawal for the offences punishable under Section 376 (2) (g)/506 IPC and under Section 377 read with Section 34 IPC, thus, I hereby acquit accused Lalit Ratawal from all the charges.
SC No. 03/13 Page 66 of 76State Vs. Lalit Ratawal Role of PW18 SI Chanchal and PW26 inspector Arti Sharma:-
46. Before parting, I deem it appropriate to discuss the role of both the investigating officers.
(i) Indisputably, PW26 had investigated the matter intensively with due dedication, sincerity and impartially, which rendered immense help to the Court to arrive at a right conclusion, thus, PW26 inspector Arti Sharma deserves appreciation for performing her duties in accordance with law. In fact, this is one of the rare cases where the investigating officer has conducted the investigation fairly, impartially and intensively otherwise investigators of Delhi Police prefer to file charge-sheet just after recording the statement of complainant without making any effort to ensure whether there is any circumstance to corroborate the complainant's version or not and they do not dare to bring a circumstance on record, which may prove the innocence of the accused; rather they prefer to hide the same. In my view, Delhi Police needs the investigators like inspector Arti Sharma.
(ii) On the contrary, PW18 had not only investigated the matter in most callous and irresponsible manner but also deposed in the Court in the same fashion. Firstly, when she entered the witness box, she was not prepared, accordingly, she was permitted to refresh her memory. After refreshing her memory, she deposed that on receipt of a call from ACP, she reached directly to Lady Hardinge Hospital where SI Balbir met her, who handed over three MLCs, 3 pullandas, original rukka and copy of FIR.
Thereafter, she recorded the statements of the victims. In her cross- examination, she deposed that when she received the call, she was in Karol Bagh Market and she received the call in the afternoon. She further deposed that on receipt of call she reached PS Karol Bagh and met with SC No. 03/13 Page 67 of 76 State Vs. Lalit Ratawal ACP and told him that she was a patient of cataract and asked him to assign the investigation to some other police official but ACP told her that it was a matter of only two days. She further deposed that due to cataract her vision was blur and further deposed that she had investigated only one case during the period 1987 to 2009 as during her entire career she acted as duty officer. This itself shows how efficient, sincere and diligent police officer was deputed to investigate such a heinous crime. From her above deposition, it becomes clear that on receipt of call from ACP she did not rush to hospital directly as deposed in her examination-in-chief; rather she went to the PS Karol Bagh to make a request not to assign this case to her and thereafter she went to hospital. During cross-examination, when a question was asked at what time she had received the call from ACP, she deposed that she received the call in the afternoon and for her afternoon means 12 noon to 4 PM and she can not tell whether she received the call at 12 noon or 4 PM. But admitted that she did not make any arrival or departure entry when she left for hospital from PS Karol Bagh. In other words, PW18 even failed to depose at what she had received the call.
(iii) In her examination-in-chief PW18 deposed that from the hospital she went to PS Prasad Nagar. In her cross-examination, she deposed that she reached police station in the evening and further deposed that for her evening means 4 PM to 7 PM but she could not tell whether she reached the police station at 4 PM or 5 PM. She further deposed that she had left from the police station after 12 mid night and at that time she had made an entry in the roznamcha register but she did not remember its number. Admittedly, no such DD was placed on file.
(iv) Though PW18 deposed about the arrest of accused in her examination-in-chief but she remained silent about the disclosure statement SC No. 03/13 Page 68 of 76 State Vs. Lalit Ratawal of the accused and recovery of school van at his pointing out. Though there are several other instances in her deposition to show how callously she had handled the case, yet I do not want to refer the same as same has no bearing on the merit of the case. However, I deem it appropriate to highlight the alleged so called disclosure statement made by the accused before PW18.
(v) Prosecution has set up a case that after arrest, PW18 interrogated the accused and recorded his disclosure statement and same is Ex. PW6/F. PW6 constable Jugal Kishore in his examination-in-chief deposed that after interrogation, I.O. i.e. PW18 had recorded the disclosure statement and same is Ex. PW6/F. Perusal of Ex. PW6/F reveals that the same is running into only 11 lines. According to the Ex. PW6/F, accused used to drive maxi cab bearing registration number DL 1K 6380 and he used to pick up victims from their house and used to drop them at JD Tytler School and also dropped them at their house. He further disclosed that accused {Name-redacted}, Pawan, {Name-redacted} and Anup were also studied in the said school and he also picked up them from their houses and dropped them at school and thereafter at their houses. He further disclosed that they all maintained physical relations with female victim and done unnatural sex with male victims. He further disclosed that he knew all of them and he could get them arrested. This itself shows how casually the said disclosure statement had been recorded by the PW18 in the presence of PW6. No effort was made when he had committed the alleged rape and unnatural sex with male victims. No effort was made where he had committed the same. No effort was made how many children used to commute in his maxi cab. No effort was made to elicit the approximate date and time of the alleged incidents. It is pertinent to state that during investigation conducted by PW26 it was revealed that accused {Name-redacted} and {Name-redacted} did not use to SC No. 03/13 Page 69 of 76 State Vs. Lalit Ratawal commute in the maxi cab of the accused. Anup was a student of 2nd standard and Pawan was not studying in the school. In these circumstances when accused alleged that he had not made any disclosure statement and his signatures were obtained on blank paper after giving beating to him appears more plausible.
(vi) Prosecution has also set up a case that the maxi cab bearing registration no. DL 1K 6380 was got recovered by the accused on September 20, 2010 from near Shiv Mandir, opposite the wall of double storey parking, Arya Samaj Road, Delhi and same was seized vide memo Ex. PW6/G. Thus, according to prosecution case accused was arrested on 17.09.2010 and his maxi cab was recovered on 20.09.2010. PW6 in his examination-in-chief deposed that accused was apprehended from Arya Samaj Road near the parking at the pointing out of complainant, accordingly, he was arrested. He further deposed that maxi cab was recovered on 20.09.2010 at the pointing out of accused from near Shiv Mandir, in front of double storey parking, Arya Samaj Road. It means that as per prosecution version the said maxi cab was not in the police station till it was got recovered by the accused.
(vii) During trial accused examined himself as DW2 and categorically deposed that he was lifted by the police officials from the house of Smt. Chander Kala (DW1) on 17.09.2010 between 12/12.15 noon. At that time, police officials had also snatched the keys of his maxi cab and they took him to the police station on a motor cycle at about 12.30 PM. He further deposed that his maxi cab was parked in front of police station Prasad Nagar. He further deposed that though police officials had shown that his maxi cab was seized on 20.09.2010, but in fact it was taken on 17.09.2010 and further deposed that a news item was published in SC No. 03/13 Page 70 of 76 State Vs. Lalit Ratawal Hindustan (Hindi Edition) dated 19.09.2010 wherein his photo along with maxi cab and police officials appeared in the news item which falsifies the claim of police that the said maxi cab was got recovered by him on 20.09.2010. The news item is exhibited as Ex. DW2/A.
(viii) Perusal of Ex. DW2/A reveals that when public persons came to know that the school cab of accused was parked outside the police station, crowd rushed to the said cab and damaged the said cab. From news item it further reveals that the picture of said maxi cab was also published in the news item along with accused. In the photo, four police officials are also visible; one is seated in the driver seat of said maxi cab; another is standing near the cab; one police official caught hold the accused by arm and another is behind the said police official. From Ex. DW2/A it becomes crystal clear that the said maxi cab was in the custody of police prior to 19.09.2010 when the news item appeared in the news paper. Thus, the seizure memo Ex. PW6/G depicting that the maxi cab was seized on 20.09.2010 at the pointing out of accused is totally false and fabricated document and no reliance can be placed on such fabricated document.
47. Now question arises as to whether the act of PW6 and PW18 showing by preparing the memo Ex. PW6/G attract any penal provision or not?
(i) In this regard Section 192 IPC is relevant and same reads as under:
192. Fabricating false evidence.--Whoever causes any circumstance to exist or makes any false entry in any book or record, [or electronic record] or makes any document [or electronic record] containing a false statement, intending that such circumstance, false entry or false statement may SC No. 03/13 Page 71 of 76 State Vs. Lalit Ratawal appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence".
Illustrations
(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z's handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the police are likely to search. A has fabricated false evidence.
(emphasis supplied) (ii) The object of preparing Ex. PW6/G was to establish in the
judicial proceedings against the accused that the maxi cab in which accused used to take the victims was got recovered at the pointing out of accused on 20.09.2010. Thus, PW6 and PW18 prepared the said memo (Ex. PW6/G) with an intention to use the same against the accused during trial. Thus, prima-facie act of PW6 and PW18 attracts the provision of Section 192 IPC.
(iii) Act of fabricating false evidence attracts Section 193 IPC which reads as under:-
SC No. 03/13 Page 72 of 76State Vs. Lalit Ratawal
193. Punishment for false evidence.--Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
(iv) Giving of false evidence is defined under Section 191 IPC and same reads as under:-
191. Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
Illustrations
(a) A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on a trial that he heard Z admit the justice of B's claim. A has given false evidence.
(b) A, being bound by an oath to state the truth, states that he believes a certain signature to be the SC No. 03/13 Page 73 of 76 State Vs. Lalit Ratawal handwriting of Z, when he does not believe it to be the handwriting of Z. Here A states that which he knows to be false, and therefore gives false evidence.
(c) A, knowing the general character of Z's handwriting, states that he believes a certain signature to be the handwriting of Z; A in good faith believing it to be so. Here A's statement is merely as to his belief, and is true as to his belief, and therefore, although the signature may not be the handwriting of Z, A has not given false evidence.
(d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular place on a particular day, not knowing anything upon the subject. A gives false evidence whether Z was at that place on the day named or not.
(e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a statement or document, which he is bound by oath to interpret or translate truly, that which is not and which he does not believe to be a true interpretation or translation. A has given false evidence.
(emphasis supplied)
(v) PW6 constable Jugal Kishore made a statement in the judicial proceeding that the maxi cab was recovered at the pointing out of accused on 20.09.2010 from in front of wall of double storey parking, near Shiv Mandir, Arya Samaj Road knowingly well that the same was not got recovered by the accused, thus his act also prima-facie attracts the provisions of Section 191 and 193 IPC.
48. Now dilemma before the Court is as to whether to proceed under Section 340 Cr. P.C against the both the police erring police officials or not as there is every possibility that both the said erring police officials might have acted at the instructions of their immediate officer i.e. SHO.
SC No. 03/13 Page 74 of 76State Vs. Lalit Ratawal Thus, real culprit may not get any punishment. But the proceedings against the above erring police officials will certainly convey a loud and clear message to all the police officials that if their fabrication is established in the Court, they could also be liable for illegal acts, which shall certainly demoralise them to fabricate false evidence against any person. It is pertinent to state that the object of investigation is to find out truth by searching admissible evidence during investigation as done by PW26 and not to create false evidence to prove the guilt of the accused as done by PW6 and PW18. Thus, in order to make the investigation more transparent, impartial and free from any bias, I am of the view the Court should proceed against both the erring police officials in terms of Section 340 Cr. P. C. In view of the above discussion, I am also of the opinion that no further inquiry is required to proceed with the matter against both the erring police officials.
(i) Since, no law permits any police official to fabricate false evidence or to give false evidence to prosecute a person; rather on the contrary law does not permit anyone to do so and also casts a duty on the police officials to investigate a matter in accordance with law without fear and favour, thus to my mind no previous sanction is required to prosecute the above erring police officials.
49. In the view of the above discussion, this Court authorises and directs Mr. Amit Sharma, Reader of the Court to file a complaint under Section 195 Code of Criminal Procedure against PW6 constable Jugal Kishore and PW18 SI Chanchal for the offences punishable under Section 193/34 IPC read with 192 IPC for fabricating false evidence i.e. creating a false circumstance against the accused that the maxi cab was got SC No. 03/13 Page 75 of 76 State Vs. Lalit Ratawal recovered by the accused on 20.09.2010 from opposite wall of double storey parking near Shiv Mandir, Arya Samaj Road, Karol Bagh, Delhi by preparing seizure memo Ex. PW6/G while the said cab was stationed outside the police station as mentioned in Ex. DW2/A and for the offence punishable under Section 193 IPC read with Section 191 IPC against PW6 constable Jugal Kishore for giving false evidence in respect of Ex. PW6/G. Conclusion:-
50. Epitome of ongoing discussion is accused Lalit Ratawal stands acquitted from all the charges and a complaint under Section 195 Cr. P. C shall be filed by Mr. Amit Sharma on behalf of this Court against PW6 constable Jugal Kishore No.1334C and PW18 SI Chanchal No.5080D as stated above. Reader Mr. Amit Sharma is directed to file the complaint within four weeks from the date of judgement.
Announced in the open Court on this 7th day of October, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI/sv SC No. 03/13 Page 76 of 76