Delhi District Court
State vs 1] Nanhey on 30 April, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 47/2013
Unique ID No. : 02401R0088982013
State versus 1] Nanhey
S/o Late Sh. Jaswant
R/o Village Kisurara PO & PS
Faridpur, District Barelley, UP
2] Harender
S/o Sh. Rambir
R/o Village Gandha PS Dataganj
Chowki Samrer District Badau, UP
3] Pramod
S/o Late Sh. Raja Ram
Village and Post Tanda PS Aanwla
Barelley, UP
Case arising out of:
FIR No. : 242/2012
Police Station : Prashad Nagar
Under Section : 376 [2G]/109/511 IPC
Judgment reserved on : 21.04.2014
Judgment pronounced on : 30.04.2014
JUDGMENT
Case of the Prosecution Stating briefly, the facts of the case are that on 10.11.12 vide DD No. 19A at about 11.20 AM a PCR call was received. Upon receipt of said call, SI Gaurav and L./Ct. Sanyogita reached near 'Shouchalaya', Khalsa College, Dev Nagar, Delhi where Complainant 'T' [name withheld to protect the identity of prosectrix] was present alongwith her husband. Statement of Complainant was got recorded under Section 161 CrPC. The Complainant alleged that companions/associates of her husband i.e. Accused Nanhey, Pramod and Harender used to have food at her house since last few days. She alleged that Nanhey used to tell her for marriage from 23 months but she had scolded him.
Complainant 'T' alleged that on 06.11.12 her husband had gone to drop her sister in law at Mainpuri, UP and on 07.11.12 at about 8 AM, Accused Pramod and Harender came to her house and on the pretext of securing a job they took her to Inderlok Metro Station where Accused Nanhey was already waiting. All of them sat in an Auto rickshaw and took her to a house at Bapa Nagar, Karol Bagh and took her to a room at second floor of that house. Complainant alleged that when she asked them as to why they have brought her there as there is no one present in the room, all of them told her to wait in the said room. Thereafter, at about 56 PM in the evening, all three of them came in the room and bolted the door from inside despite her refusal and resistance, Accused Pramod and Nanhey raped her one after the another and Accused Harender attempted to rape her.
Thereafter, on the morning of 08.11.12, all three insisted her to go to Barelley alongwith them but after her refusal, they dropped her at her house at Inderlok.
Complainant alleged on 10.11.12 when her husband came home, she narrated all the incident to him who took her to PS Bapa Nagar, Karol Bagh and made a call to police. Police arrived at the spot and her statement was recorded under Section 161 CrPC.
On the basis of the aforesaid complaint, a case under Section 376 [2G] IPC was registered. During the course of investigation, the Prosecutrix was got medically examined at LHMC hospital vide MLC No. 1012/12. Exhibits were seized and taken into police possession. Crime Team inspected the place of incident. Site plan was prepared at the instance of the Prosecutrix. Exhibits were lifted from the spot and taken into police possession after sealing the same. Prosecutrix was given counselling by NGO. During the course of further investigation, on the pointing out of husband of Complainant, Accused Pramod was arrested from Barelley. He was got medically examined and exhibits were collected and deposited in malkhana. Accused Pramod was produced before Court. The statement of Prosecutrix was recorded by Ld. MM under Section 164 Cr.PC. 02 days PC remand of Accused Pramod was taken. Remaining Accused persons were searched but they could not be traced.
On 01.12.12 NBWs of Accused Nanhey and Harender were obtained from court of Metropolitan Magistrate. On 04.12.12 Accused Harender surrendered in the court of Metropolitan Magistrate. Accused Harender was interrogated and his disclosure statement was recorded thereafter, he was arrested and he was sent to J/c.
On 21.12.12 Accused Nanhey surrendered before court of Metropolitan Magistrate and he was interrogated. His disclosure statement was recorded and he was arrested. One day PC remand of Accused Nanhey was obtained and he was medically examined. Exhibits were seized and taken into police possession. On 22.12.12 he was sent to J/c.
On 24.12.12 exhibits were deposited in FSL. Age proof of Accused Pramod and Nanhey was collected from school records as per which date of birth of Accused Pramod is 05.07.1972 and date of birth of Accused Nanhey is 20.10.1989. No document regarding age proof of Prosecutrix 'T' could be obtained and accordingly, age determination test of Prosecutrix was got conducted at LHMC.
Charges After committal of case, on the basis of material on record, Accused Nanhey and Pramod are charged for offence under Section 376 [2G] IPC while accused Harender was charged for offence under Section 109 IPC r/w Section 376 [2G] IPC and Section 376 [2G]/511 IPC. Prosecution Evidence To prove the guilt of Accused persons, Prosecution examined twenty four [24] witnesses on record.
PW1 Prosecutrix 'T' correctly identified all the Accused persons when produced in court. She deposed that about for days prior to the date of incident i.e. 07.11.12, her husband had also got a job of white wash for the Accused persons. He had also asked to serve food to the Accused persons and they had their meals at her house for the aforesaid four days. She deposed that Accused Nanhey had teased her on two three occasions and he also asked her to marry her but she did not take it seriously.
PW1 deposed that two days prior to 07.11.12, her husband had gone to drop his sister at her matrimonial home at Pundri. At about 8.30 AM, Accused Pramod and Harender came to her house and took her alongwith them on the pretext of securing a job for her. They took her to Inderlok Metro Station where Accused Nanhey was already waiting. Accused Nanhey and Harnder discussed something and took her to a house at Bapa Nagar in a TSR. She deposed that they left her in that house in a room, locked the door from outside and went away. They returned in the night. She inquired from Harender and Nanhey as to why they have brought her here. Nanhey told her that he wants to do court marriage with her. She deposed that Nanhey and Harender were under influence of liquor and they started misbehaving with her. Accused Pramod tried to stop them but they did not pay any heed. Thereafter, Nanhey and Harender raped her forcibly, despite her refusal. Accused Pramod also tried to rape her. Accused Harender also broke the sim of her mobile phone as she was trying to receive the call of her mother in law.
PW1 'T' further deposed that on the next morning, all three Accused tried to take her to Barelley with them. Accused Nanhey also threatened her by saying that he will not leave her even if he is jailed. But she asked them to leave her and they left her at the house of maternal aunt of her husband. She did not disclose about the incident to anyone due to fear that her husband would leave her if he comes to know about the incident.
On 10.11.12 where her husband returned home, he inquired about the incident from her, after learning from his Mama that she remained out of the house throughout the night. Upon inquiry from her husband, she narrated the entire incident to him and he made a call at 100 number. Police recorded her statement which is Ex. PW1/A. Prosecutrix further deposed that she was taken to the hospital and was medically examined there and her clothes were taken by the doctor. She also led the police to the house where the offence was committed and police recovered her broken bangles and empty half liquor bottle and her hair. She had also shown the place of incident to the police and the police prepared the sketch of the said place at her instance which is Ex. PW1/B. She deposed that she was also produced before one Judge who recorded her statement which is Ex. PW1/C. PW2 Dr. Keerti Patel medically examined the Prosecutrix vide MLC Ex. PW2/A. PW3 Shiv Kumar deposed that about 22 ½ years ago, he had worked as carpenter at the house of Raju at Hardyan Singh Road and knew him since then. He was having one room in Bapa Nagar which he wanted to let out. PW3 deposed that he wanted to take the said room on rent but due to his busy schedule, he could not contact Raju and take the same on rent.
He deposed that on 07.11.12 he received a telephone call from Raju who asked him that some persons have come to him and saying that they have been sent by him for taking the room on rent but he refused as he did not send anyone there. Police recorded his statement.
PW4 Durvesh deposed that he is white washer by profession and sit on labour chowk in search of work. He correctly identified all three Accused when produced in court as they also used to meet him there at the chowk. He deposed that wife of Raju came at the labour chowk and told that they have a room which they want to let out and if anyone interested in taking on rent, he can contact her. PW4 further deposed that Accused Nanhey asked him that he is interested in taking room on rent and asked him to get the same. He alongwith Nanhey went to the house of Raju and he took on rent. PW4 deposed that it was in the year 2012 but he did not remember the date correctly as he is illiterate. Police recorded his statement.
PW5 HC Pratap Singh is Duty Officer who recorded FIR Ex. PW5/B. PW6 Dr. Chandrashu Kumar deposed that on 21.12.12 he examined Accused Nanhey vide MLC Ex. PW6/A and samples were collected and handed over to Ct. Raj Singh with sample seal.
PW7 Ct. Vinod Kumar collected the exhibits from MHC[M] vide RC No. 116/21/12 and deposited the same at FSL, Rohini and handed over the receipt of FSL to MHC[M].
PW8 Ct. Amit Kumar deposed that on 12.11.12, he took Accused Pramod to LHMC for his medical examination and after medical examination, doctor handed over one sealed pullanda alongwith sample seal which he seized vide seizure memo Ex. PW8/A. PW9 HC Devender Singh deposed that on 10.11.12 SI Gaurav deposited three sealed pullanda alongwith sample seal in the malkhana and he made entry to this effect in register No. 19 at Sr. No. 2293. Photocopy of same is Ex. PW9/A. On the same day, SI Veena deposited three sealed pullandas sealed with the seal of 'VS' in the malkhana and relevant entry in this regard is at Sr. No. 2294. Photocopy of same is Ex. PW9/B. PW9 deposed that on 12.11.12 SI Gaurav deposited one sealed pullanda sealed in the malkhana and relevant entry in this regard is at Sr. No. 2300. Photocopy of same is Ex. PW9/C. On the same day, SI Prakash Roy deposited personal search of Accused in the malkhana and relevant entry in this regard is at Sr. No. 2301. Photocopy of same is Ex. PW9/D. On 21.12.2012 ASI Prabha deposited two sealed pullandas alongwith sample seal in the malkhana and relevant entry in this regard is at Sr. No. 2334. Photocopy of same is Ex. PW9/E. PW9 further deposed that on 14.11.02 on the instructions of IO, he handed over 07 sealed pullandas alongwith sample seal to Ct. Ajit Singh [PW20] vide RC No. 105/21/12 for depositing the same at FSL, Rohini and returned to PS and handed over receipt to him. Photocopy of RC is Ex. PW9/F. On 24.12.12, PW9 handed over two sealed pullandas alongwith sample seal to Ct. Vinod Kumar vide RC No. 116/21/12 for depositing the same at FSL, Rohini. He returned to thte PS and handed over the receipt of FSL to him. Photocopy of RC is Ex. PW9/G. PW10 Dr. Manoj deposed that on 12.11.12, he medically examined Accused Pramod vide MLC Ex. PW10/A. PW11 'M' [name withheld to protect the identity], husband of Prosecutrix deposed that that he is working as painter and on 06.10.12 had gone to drop her sister at Mainpuri and returned home on 10.10.12.
PW11 deposed that when he reached home, his wife informed him that Pramod and Nanhey had taken her alongwith them on 07.10.12 by saying that they will arrange some work for her. She further told him that they took her to Inderlok Metro Station where Accused Nanhey also met there. PW11 correctly identified all three Accused when produced in court as they also do the work of Beldaari which he was also doing earlier. She also told him that all three of them were roaming with her in a TSR and at about 78 PM, they took her at second floor of house at Bapa Nagar, Karol Bagh where the three of them consumed liquor and thereafter, Harender and Nanhey raped her. PW11 deposed that she told him that Pramod had asked both of them not to do so despite hwich they committed raped upon her and on the next day, they dropped her at the house of her Mama.
PW11 further deposed that he made a call at 100 number. Police recorded statement of his wife and took her for medical examination at LHMC. PW11 deposed that he could get the Accused arrested as he knew their addresses. He accompanied the police to Barelley at the house of Accused Harender but he was not found present there. Then they went to the house of Accused Pramod. Pramod was found present at his house and he was apprehended by the police at his instance and was arrested vide arrest memo Ex. PW11/A and his personal search was conducted vide memo Ex. PW11/B. Thereafter, they came back to Delhi alongwith Accused Pramod.
PW12 SI Dhan Singh deposed that on 10.11.12 he was posted as Incharge, Crime Team, Central District. On that day, on receipt of information from Control Room, he alongwith other members of Crime Team reached at PS Prasad Nagar and from there with IO/W. SI Veena and Prosecutrix reached at the scene of crime i.e. H. No. 16/379, Second Floor, Hardyan Singh Road, Bapa Nagar, Delhi. HC Inderjeet Singh, Photographer took photographs of scene of crime from different angles. ASI MS Bisht, Fingerprint Expert [PW15] developed and lifted the chance prints from empty half liquor bottle lying on the scene of crime. PW12 inspected the scene of crime where broken bangles and hair were lying on the floor. The piece of evidence i.e. empty half liquor bottle, broken bangles an broken hair were lifted and seized by IO from scene of crime. He prepared report Ex. PW12/A. IO recorded his statement.
PW13 HC Inderjeet Singh is Photographer who took photographs of scene of crime on the directions of SI Dhan Singh, Incharge, Crime Team. The said photographs are Ex. PW13/A1 to Ex. PW13/A10 and negatives are collectively Ex. PW13/B. IO recorded his statement.
PW14 Raju deposed that he is owner of first floor of H. No. 16/379H, Bapa Nagar, Hardayan Singh Road, Karol Bagh, Delhi. On 07.11.12 one Durvesh came to his house alongwith three boys and one lady. Durvesh told him that has been sent by Shiv Kumar and that they want to take a room on rent in his house. PW14 deposed that he made a call to Shiv Kumar who told him that he does not know any Durvesh. Witness correctly identified all three Accused when produced in court.
PW14 deposed that as he wanted to let out the room on rent, he asked those boys for identity proof and they told him that they have not brought it but they would bring it in the morning. He deposed that Accused Nanhey told him that he has had some dispute with his brother and requires the room for himself and his wife. The lady who was accompanied them was referred to as his wife by Nanhey. He showed the room on second floor to them which they agreed to take on rent.
Upon being court questioned by the witness that how did he show room on second floor when you were only owner of first floor, the witness replied that second floor is owned by his cousin who was not at home as he had gone for work and he had authorised him to let out one room of his floor on rent.
PW14 further deposed that they stayed in the room saying that the will bring their belongings on next day. He left from there and when he returned to the room at about 11 PM, he saw Nanhey, the said lady and two other Accused persons who were still present in the room. He enquired as to why the other two persons were still there. They requested him to allow them to live there by saying that their landlord does not permit them to enter their tenanted house after 11 PM. Thereafter, he returned to his house at first floor.
PW14 further deposed that on the next morning at about 8.309 AM, he again went upstairs and asked them for rent and identity proof. They assured him that they will bring the same in the evening. Thereafter, all the aforesaid three Accused persons and the said lady left his house after closing the door of the said room and told him that they will return in the evening. However, none of them returned.
On 10.11.12 police came to his house alongwith said lady. Then he narrated all the facts to the police. Police recorded his statement.
PW16 W. Ct. Sanyogita deposed that on 10.11.12, on receipt of DD No. 19A, he alongwith SI Gaurav and Ct. Monu [PW17] reached at the spot i.e. near Shauchalaya nera Khalsa College. The Prosecutrix 'T' alongwith her husband 'M' met them. SI Gaurav made inquiries from Prosecutrix and recorded her statement and prepared a rukka and handed over it to Ct. Monu and sent him to PS for getting the FIR registered. In the meantime, PSI Rekha also reached at the spot. Prosecutrix was taken to LHMC for her medical examination by her, SI Gaurav and PSI Rekha. PW16 remained in the hospital during the medical examination of Prosecutrix alongwith PSI Rekha.
PW18 Ct. Kishan Pal deposed that on 11.11.12 he alognwith IO/SI Prakash Roy [PW21], HC Raghu Raj and Complainant 'M' went to village Tanda PS Alva District Barelley, UP in search of Accused Pramod. First they reached at PS Avla and took assistance of local police and then went to village Tanda but Accused Pramod was not found present at the house. On the same day at about 6 PM, they were going to Barelley Tanda Road, one person who was also going on the same road was pointed out by Complainant to be Accused Pramod. He was apprehended and on interrogation was arrested vide arrest memo already Ex. PW11/A and his personal search is conducted vide memo Ex. PW11/B. IO recorded disclosure statement of Accused Pramod Ex. PW18/A. They also made search for Accused Nanhey but he could not be traced. They came back to Delhi. IO recorded his statement.
PW19 SI Prabha deposed that on 21.12.12, this case was assigned to her for further investigation. She alongwith Ct. Raj Singh came at Tis Hazari Courts where Accused Nanhey had surrendered in court. With the permission of court, after interrogation, she arrested Accused Nanhey vide arrest memo Ex. PW19/A and his personal search was also conducted vide memo Ex. PW19/B. She recorded disclosure statement of Accused Nanhey which is Ex. PW19/C. She also joined SI Amit in the investigation who took Accused Nanhey on PC remand. Accused Nanhey was medically examined vide MLC Ex. PW6/A and doctor handed over some exhibits which she seized vide seizure memo Ex. PW19/D. PW19 recorded the statement of witnesses. On next day, Accused was produced in court from there he was sent to judicial custody.
PW20 deposed that on 04.12.12 on the directions of Duty Officer, he came at Court No. 341, Tis Hazari Courts and joined the investigation with IO/SI Veena Sharma. Accused Harender had surrendered in the court. IO interrogated him with the permission of court and thereafter arrested vide arrest memo Ex. PW20/A and also conducted his personal search vide memo Ex. PW20/B. PW22 SI Veena Sharma deposed that on 10.11.12 she was posted as SI at CAW Cell, PS Kamla Market, Delhi. On that day, she was called at PS Prashad Nagar. She went there and after the registration of FIR, investigation of this case was assigned to her. She made enquires from husband of Prosecutrix Tinki, who was present in PS. A team was constituted under the supervision of SI Prakash Roy and the team left the PS for Barelley, UP for arrest of Accused persons. In the evening at about 7.15 PM, SI Gaurav alongwith Prosecutrix , PSI Rekha and Ct. Sanyogita came in the PS and met her. SI Gaurav handed over the MLC of Prosecutrix to her and exhibits were deposited in malkhana. She interrogated the Prosecutrix and recorded the statement of witnesses.
PW22 further deposed that Crime Team was called at PS. She alongwith Crime Team and Prosecutrix reached at second floor of H. No. 16/379H Bapa Nagar, Delhi. There Prosecutrix pointed out a room in the said house stated to be the place of incident. She prepared site plan Ex. PW22/A. Crime Team also inspected the spot and took the photographs. Crime Team officials lifted pieces of broken bangle, empty half bottle of liquor and some strands of hair from the spot at the instance of Prosecutrix. She converted the same into separate three pullanda and sealed with the seal of 'VS' and seized vide seizure memo already Ex. PW15/A. Seal after use was handed over to SI Dhan Singh of Crime Team. She recorded the statement of landlord Raju and Crime Team officials. Crime Team officials were relieved at the spot. They came back to PS. She recorded the statement of Prosecutrix. Exhibits were deposited in malkhana. Prosecutrix was given counselling from NGO. Prosecutrix was sent to her house. She recorded the statement of one Durvesh and Shiv Kumar who had helped the Accused in taking the room on rent. Accused Pramod was arrested by team led by SI Prakash Roy.
On 14.11.12 exhibits were sent to FSL, Rohini through Ct. Ajit. PW22 further deposed that on 01.12.12 NBWs were got issued against Accused Harender and Nanhey.
On 04.12.12 Accused Harender surrendered before court. Accused Harender was formally arrested with permission of court vide arrest memo already Ex. PW20/A and she interrogated the Accused and recorded his disclosure statement Ex. PW22/B. Accused Nanhey was arrested by ASI Prabha as she was on leave. During investigation, ossification test of Prosecutrix was got done and she was opined to be between 1922 years.
On 24.12.12 exhibits were sent to FSL through Ct. Vinod. She completed the investigation, prepared the chargesheet and filed it in court.
PW22 deposed that she also collected the FSL result and DNA examination report and filed in court. FSL result is Ex PW22/C and DNA examination report is Ex. PW22/D. [running into 02 sheets each.] I also collected the chance print report and filed it in court. The said report is Ex. PW22/E. PW23 Ms Seema Nain, Sr. Scientific Officer [Biology] FSL, Rohini, Delhi deposed that she examined the exhibits of case FIR No. 242/12 PS Prashad Nagar and prepared detailed biological report which is already Ex. PW22/C and report of DNA analysis which is already Ex. PW22/D. PW24 SI Gaurav deposed that on 10.11.12, on receipt of DD No. 19A already Ex. PW5/A, he alongwith Ct. Monu reached at public toilet near Khalsa College where Prosecutrix met them alongwith her husband. He recorded her statement which is already Ex. PW1/A and prepared rukka Ex. PW24/A and handed over same to Ct. Monu and sent him to PS for getting the FIR registered.
PW24 deposed that he called L./Ct. Sanyogita and W. SI Rekha at the spot. They took Prosecutrix to LHMC for her medical examination. After the medical examination, the examining doctor handed over some sealed exhibits with sample seal which he seized vide seizure memo Ex. PW24/B. Exhibits were deposited in malkhana. The case was assigned to SI Veena for further investigation.
SI Gaurav further deposed that on 12.11.12 SI Prakash Roy came at PS from outstation after arresting the Accused Pramod and he produced the Accused before him. He alongwith Ct. Amit took the Accused Pramod to LHMC for his medical examination. After the examination, the examining doctor handed over some sealed exhibits with sample sale which he seized vide seizure memo already Ex. PW8/A. Exhibits were deposited in malkhana. SI Veena recorded his statement.
Plea of the Accused:
Accused Pramod and Harender pleaded that on the day of incident they were at their respective places of work and Prosecutrix has falsely implicated them. Accused Pramod further pleaded that Prosecutrix has implicated him at the instance of her husband as he had refused to lend him money two days prior to the alleged incident. While Accused Nanhey pleaded that Prosecutrix herself voluntarily came to the aforesaid room. No physical relations were established between Prosecutrix, himself or any of the other coAccused. She was having some differences with her husband. She wanted to take her alongwith him to his house but he refused for the same. He pleaded innocence and false implication.
All Accused persons chose not to lead any evidence in their Defence. Arguments, Analysis and Findings:
As discussed above, Accused Harinder was charged for having abetted coAccused Nanhey and Pramod to commit rape upon the Prosecutrix and was thus facing trial for charge under Section 109 r/w Section 376 [2G] IPC. In addition thereto, on the basis of allegations made by the Prosecutrix 'T', Accused Harender is also facing trial for having attempted to commit rape upon the Prosecutrix 'T' and was accordingly, charged for offence under Section 376 [2G]/511 IPC. Further, Accused Pramod and Nanhey are facing trial for offence under Section 376 [2G] IPC on the allegations of the Prosecutrix that both of them committed rape upon her on the intervening night of 07.11.12 and
08.11.12.
However, when the Prosecutrix 'T' stepped into the witness box as PW1, there was a marked change in her stand. She deposed that Nanhey and Harender raped her forcibly despite her refusal. Pramod tried to stop them and she further deposed that Pramod also tried to rape her.
In this context, it was strongly argued by Defence that testimony of Prosecutrix is in complete contradiction to the case of the Prosecution . Prosecutrix thus being an unreliable witness, cannot be believed and the Accused be acquitted on this score itself.
My attention is also drawn to the testimony of the Prosecutrix 'T' wherein she admitted that she was having mobile phone with her during the time she remained confined in that room alone. She further deposed that there was no balance in her mobile phone and also she did not receive any phone calls on her mobile phone during this period.
Ld. Defence Counsel argued that this deposition of the Prosecutrix is false. Apparently, she remained in the room taken on rent by the Accused persons till evening. It has also been deposed by the Prosecutrix that Accused persons left her in that room and bolted the door from outside despite which Prosecutrix did not make any attempt to escape or to make noise by beating door of the said room or to draw attention of nearby residents or public persons to seek any help from them.
Ld. Defence Counsel, hence, argued that case of the Prosecution has not been proved beyond reasonable doubt.
The next contention of the Defence is that room in question was taken on record by the Accused persons in presence of the Prosecutrix. She made no hue and cry as to why the room was being taken by Accused persons, particularly when they had asked her to accompany them by saying that they will arrange a job for her.
Moreover, the FSL result Ex. PW22/C and the DNA analysis report Ex. PW22/D do not show anything incriminating against any of the Accused persons. The mere presence of hair of the Pramod being recovered from the place of occurrence cannot be said to be sufficient evidence to prove the case of the Prosecution .
On the basis of the aforesaid submissions, Ld. Defence Counsel prayed that Accused be acquitted.
The Prosecution on the other hand submitted that testimony of PW1 'T' is categorical and consistent with respect to Accused Nanhey. She has deposed that Nanhey committed rape upon her. She also deposed that even on an earlier occasion, Accused Nanhey had done "cherkhani" with her. She also deposed that on one occasion while she was sleeping n the roof at night, Accused Nanhey woke her up on the pretext of taking water and she had complained about this behaviour of Accused to her mother in law but she did not take it seriously.
I have considered the aforesaid submissions and gone through the evidence on record.
The Accused persons in their statement recorded under Section 313 CrPC have pleaded innocence and claimed that they have been falsely implicated in this case.
The Prosecution in order to prove its case relied upon the testimony of the Prosecutrix, who is undoubtedly the most important witness in the present case.
The Prosecutrix PW1 'T' apparently changed her version from her initial version when she stepped into the witness box. A bare perusal of her deposition would show that although in her complaint Ex. PW1/A, the Prosecutrix 'T' alleged that she was raped by Accused Pramod and Nanhey while Accused Harender tried to stop them, when she appeared into the witness box, her stand changed. She deposed that in fact Accused Harender and Nanhey had committed rape upon her and Pramod had tried to stop them and Accused Pramod attempted to commit rape upon her. She was declared hostile by the Prosecution on this point. Despite being crossexamined by Ld. APP, she failed to support the case of the Prosecution in this regard. She denied that Accused Pramod also committed rape upon her. Rather, she admitted that she had stated to police in her statement Ex. PW1/A as well as Ld. MM under Section 164 CrPC Ex. PW1/C that Accused Pramod also raped her. However, she offered no explanation as to why she had levelled the said allegations against Accused Pramod in her earlier statements Ex. PW1/A and Ex. PW1/C. In view of the apparent shift in the stand of the Prosecutrix, I find that she cannot be treated as a reliable or trustworthy witness. The allegations levelled by the Prosecutrix against Accused persons are extremely gave in nature. There can be no doubt that woman who is raped by two men and there is an attempt to rape by third man, would never, in her life forget the incident or the persons who have have committed such acts with her unless it is her stand that due to darkness or some other reason, she was unable to identify any of those persons. In the present case, Prosecutrix 'T' has nowhere claimed that initially she had named Accused Pramod as one of the persons who had raped her due to any confusion or misunderstanding. Rather, upon stepping into the witness box, Prosecutrix simply changed her version without offering any explanation for the same and claimed that she was in fact raped by Harender and Nanhey and Accused Pramod had merely attempted to commit rape upon her. This claim of the Prosecutrix, to my mind, certainly makes it extremely difficult to believe her deposition or to treat her as a trustworthy witness.
I find myself unable to subscribe to the argument of the Prosecution that since her version with respect to Accused Nanhey remained unchanged, the allegations against Accused Nanhey stand established on record. To my mind, the testimony of Prosecutrix cannot be read on a piecemeal basis and must be considered as a whole. Upon going through her deposition in its entirety, I am unable to find any credit in her deposition. I also find that conviction of Accused Nanhey also cannot be based upon such unreliable deposition of the Prosecutrix.
It is also noteworthy that since initially case of the Prosecution was that Prosecutrix 'T' had been raped by Accused Pramod and Nanhey, the exhibits sent to FSL were only of Accused Pramod and Nanhey and no opinion was sought with regard to Accused Harender. Hence, there is also no scientific evidence against Accused Harender to connect him with the commission of alleged offence. The testimony of the Prosecutrix, as aforesaid, cannot be relied upon in view of the complete change in her version, as discussed above.
Moreover, the DNA result Ex. PW22/D merely indicates that hair recovered from the place of occurrence belong to Accused Pramod. The semen sample of Accused Pramod and blood sample of Accused Nanhey was not found to be accounted in allelic date of DNA profile from the source of Ex.'2b (Petticoat of victim)'. Thus, as per DNA report Ex. PW22/D, no scientific evidence was found with respect to Accused Pramod and Nanhey to substantiate the case of the Prosecution .
Besides the aforesaid, I also find that entire conduct of the Prosecutrix also makes her testimony questionable and difficult to rely upon. It is pertinent to note that it is claim of the Prosecution that on 07.11.12, Accused Pramod and Harender came to her house and took her alongwith them on the pretext of securing a job for her. They took her to Inderlok Metro Station where Accused Nanhey was waiting. Thereafter, they took her to a house at Bapa Nagar in a TSR and left her in a room in that house, locked the door from outside and went away and thereafter, they returned at night.
The Prosecutrix apparently made no effort whatsoever to escape from that room during entire day. There is no reason as to why she would continue to remain in that room throughout day and not even try to raise an alarm by knocking the door or to draw attention of nearby residents of that building, particularly she had been told by Accused persons that she was being taken with them in order to secure a job for her. In these circumstances, there was no reason for her to sit quietly in that room without making any noise whatsoever. PW1 further claimed that she questioned from Accused Harender and Nanhey as to why they have brought her there and Nanhey told her that he wants to do court marriage with her. Harender also allegedly broke the SIM of her mobile phone when she tried to receive a call of her motherinlaw. On the next morning, Accused persons tried to take her to Barelley with them. Accused Accused Nanhey also threatened her by saying that he will not leave her even if he is jailed. There is, however, no reason as to why the Prosecutrix remained in the said room throughout night with Accused persons despite knowing intentions of Accused Nanhey who told her that he wants to do court marriage with her. It is not the case of the Prosecution that she was threatened in any manner by any of the Accused persons to remain in that room with them throughout the night, nor is it her claim that she made any attempt to draw attention of nearby residents or to make an effort to escape from that room.
It has also come on record in the deposition of PW4 Durvesh that on 07.11.12 in the evening, Accused Nanhey came to see a room and he accompanied him and on the way near Mandir, one lady and Accused Harender were standing and they also accompanied them. Thus, apparently, the Prosecutrix was with Accused persons when the room in question was taken on rent and in these circumstances, the claim of the Prosecutrix that she was kept confined in that room by the Accused persons or that rape had been committed upon her by them, cannot be believed. It is also pertinent to note that PW14 Raju deposed that Accused Nanhey told him that he has had some dispute with his brother and required the room for himself and his wife. The lady who was accompanied them was referred to as his wife by Accused Nanhey. He also deposed that he showed the room on second floor to them which they agreed to take on rent. He also deposed that he went to their room at 11 PM and saw Nanhey, the said lady and two other Accused persons. They requested him to allow them to live there till next morning. He again went to that room on the next morning at 8:309 AM and asked them for rent and identity proof. They assured him that they will bring the same in the evening. Thereafter, all of them left his house after closing the door of the room and did not return thereafter.
It is thus borne out from the testimony of PW14 that Prosecutrix was very much present when the room was taken on rent. Despite the fact that PW14 visited the room twice i.e. at about 11 PM on 07.11.12 and again at 8:309 AM on the next morning, the Prosecutrix made no attempt to seek any help from Raju. It may be noted that it is not her claim that she is threatened in any manner by Accused persons. There is nothing which would prevent her from seeking help of Raju or even tried to escape from that room when Raju came there.
The Prosecutrix 'T' in these circumstances cannot be treated as a trustworthy witness. In the light of the aforesaid, I find that Prosecution has failed to prove its case against any of the Accused persons beyond reasonable doubt. Consequently, all the three Accused persons are hereby acquitted. They be released forthwith, if not wanted in any other case.
File be consigned to Record Room.
Announced in the Open Court on 30.04.2014 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
State Vs. Nanhey etc.
FIR No. 242/12
PS : Prashad Nagar
SC No. : 47/13
30.04.14
Present : Sh. Mohd. IqrarLd. APP for the State.
All three Accused produced in J/c.
Vide judgment announced of even date on separate sheets, all the three Accused persons are hereby acquitted for the offences with which they have been charged.
All Accused are directed to furnish bail bond to the tune of Rs. 15,000/ with one surety in the like amount in terms of Section 437A CrPC.
At this stage, all Accused persons seek time for engaging surety.
At request, personal bonds of all Accused persons are accepted till 01.05.14.
(Kaveri Baweja) Additional Sessions JudgeSFTC (Central) Tis Hazari Courts: Delhi.
State Vs. Nanhey etc.
FIR No. 242/12
PS : Prashad Nagar
SC No. : 47/13
01.05.14
Present : Sh. Mohd. IqrarLd. APP for the State.
All three Accused in person.
Personal bonds of all three Accused are extended till 06.05.14, as requested.
(Kaveri Baweja) Additional Sessions JudgeSFTC (Central) Tis Hazari Courts: Delhi.
State Vs. Nanhey etc.
FIR No. 242/12
PS : Prashad Nagar
SC No. : 47/13
06.05.14
Present : Sh. Mohd. IqrarLd. APP for the State.
All three Accused in person.
Surety bond of all three accused furnished and accepted. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeSFTC (Central) Tis Hazari Courts: Delhi.