Delhi District Court
"State Of Karnataka Vs. Puttraj 2004 (1) ... vs . on 31 July, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 11/2016
Case No. 27433/2016
Assigned to Sessions. 19.02.2016
Arguments heard on 23.07.2018
Date of Judgment 31.07.2018
FIR No. 692/2015
State V Satpal Singh @ Talwar s/o Balwant
Singh, R/o. 552, Mukimpura, Subzi
Mandi, Delhi.
Police Station Roop Nagar
Under Section 342/376 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Roop Nagar had
filed a challan vide FIR No..692/2015 dated 31.10.2015 u/s. 342/376 IPC for
the prosecution of accused Satpal Singh @ Talwar in the court of ld.
Metropolitan Magistrate. After compliance of the requirement of section 207
Cr. P.C. the case was sent to this court being the designated Special Fast Track
Court for trial of the offences of sexual assault against the women through the
Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi.
Keeping in view of section 228 (A) IPC and directions of Supreme court in
"State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs.
State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being
disclosed in the judgment.
Case No.27433/2016
State Vs. Satpal Singh @ Talwar 1/27
BRIEF FACTS OF THE CASE:
2. In this case criminal law was set into motion on the basis of statement of prosecutrix recorded by police on 31.10.2015 and FIR No.692/2015 u/s 376/342 IPC was registered. In her statement prosecutrix stated that 20 days prior to 31.10.2015 she was going to Chandni Chowk from Seelampur to buy some articles by Metro. On unknown lady, who was sitting besides her started conversing with her. During her conversation with her she asked her if there is any shop for running a beauty parlor. That lady gave her the mobile number of the accused i.e. 9818884758. She further stated that after about two days she called the accused on his aforesaid mobile number and inquired if there is any vacant shop for running the beauty parlour. Accused told her that he has one shop which was about to be vacated. He further asked her to come there to see the shop. Thereafter, accused started talking to her on her mobile phone and used to pay her to come and see the shop.
3. She further stated that on 31.10.2015 at about 12:00 noon, she received a called from the accused asking her to come there to see the shop and one that day at about 4:00 p.m. she reached at shop No.5/3, 41 block, Singh Sabha Road, Shakti Nagar and accused met her in a shop. Accused discussed about the shop for about two hours. She further stated that during the course of discussion while she was having her phone in her hands, accused took her phone and kept in his pocket and clung with her. She further stated that she tried to get released from the accused and during that course she sustained injuries on her back and he committed rape on her while making her laying on the floor. Thereafter, accused returned her mobile phone and she immediately called the police at 100 number from her mobile phone number. Police reached at the spot. The investigation was done by W/SI Veena Kumari who visited the spot and Case No.27433/2016 State Vs. Satpal Singh @ Talwar 2/27 prepared site plan. During investigation, statement of prosecutrix u/s 164 Cr.P.C. was also recorded on 02.11.2015 wherein she had again reiterated the same facts and circumstances against the accused. She was medically examined in Hindu Rao Hospital and exhibits regarding her medical examination were preserved.
4. Thereafter, on 24.11.2015, I.O. arrested the accused on identification of prosecutrix, he was also medically examined in Hindu Rao Hospital and blood sample of accused was preserved. Potency test of accused was also conducted on 09.12.2015 wherein it was opined by doctor that "there is nothing to suggest that accused is incapable to perform sexual intercourse."
5. During the course of investigation, exhibits were sent o FSL Rohini and charge sheet was filed in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. During course of trial, I.O. of the case has also filed the FSL report.
CHARGE:
6. On the basis of material available on record, this court vide order dated 23.02.2016 framed charges against accused Ishwar Singh for the offence punishable u/s 342/376 IPC to which accused did not plead guilty and claimed trial.
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PROSECUTION WITNESSES:
7. In order to prove its case prosecution has examined 16 witnesses namely PW1 HC Veer Pal Singh, PW2 Prosecutrix 'R', PW3 Ct. Devi Sahay, PW4 HC Raj Kumar, PW5 ASI Bahadur Singh, PW6 Ct. Ram Karan, PW7 Ct. Anil Kumar, PW8 Dr. Dileep Kumar, PW9 ASI Bharat Sharma, PW10 Sh. Surender Kumar, PW11 Dr. K. Sharda, PW12 Ms. Anita Chhari, PW13 Dr. Varun Garg, PW14 Sh. Pawan Singh, PW15 HC Khushhal Singh and PW16 W/SI Veena Kumari.
8. PW1 HC Veer Pal Singh was the Duty Officer. He has proved recording of FIR vide Ex.PW1/A. He has also proved the DD No.27A vide Ex.PW1/E.
9. PW2: Prosecutrix 'R' is the material witness being victim and complainant.
She testified that she is 9th Standard pass. She deposed that 20 days prior to 31.10.2015 she was going to Chandni Chowk from Seelampur to buy some articles by Metro and that one lady, who was sitting besides her started conversing with her. She did not know her. She further deposed that during her conversation with her she asked her if there is any shop for running a beauty parlor and that lady gave her the mobile number of the accused and now she does not remember that mobile number, same is mentioned in her complaint.
10. PW2 further deposed that after two days she called the accused on his aforesaid mobile number and inquired if there is any vacant shop for running the beauty parlor. Accused told her that he has one shop which was about to be vacated. He further asked her to come there to see the shop. Thereafter, accused started talking to her on her mobile phone and used to say her to come and see the Case No.27433/2016 State Vs. Satpal Singh @ Talwar 4/27 shop but she did not go to see the shop. During that period she also called the accused on his mobile phone but she do not know as to how many times she had called him on his phone.
11. PW2 further deposed that on 31.10.2015 at about 12.00 noon, she received a called from the accused asking her to come there to see the shop and that on that day at about 04.00 pm she went to Pulbangash Metro Station and from there she called the accused to find out the address of the shop. She gave her mobile phone to the Rickshaw Wala who in turn talked to the accused and he told the address of his shop to the Rickshaw Wala, Rickshaw Wala taken to her to the area of Amba Cinema Wali Gali and dropped her there. She cannot tell the name of the locality where Rickshaw Wala had dropped her. She reached the shop of the accused at about 04.00 pm.
12. PW2 further deposed that accused met her in a shop like an office and the shutter of the office was opened and that accused took her to a hall behind the aforesaid office where some scrap material was lying and made her sit on an iron drum and a table was also lying there in that hall and that accused discussed about the shop for about two hours. PW2 further deposed that no one else was present there except her and accused and at during the course of discussion while she was having her phone in her hands, accused took her phone and kept in his pocket and clung with her. She tried to get released from the accused and during that course she sustained injuries on her forehead and on her back from the iron material lying there. She further deposed that she could not get herself released from the accused and he committed rape on her while making her laying on the floor of the hall and she got scared. She put on her salwar which accused had removed before committing the rape. Thereafter, Case No.27433/2016 State Vs. Satpal Singh @ Talwar 5/27 accused returned her mobile phone and she immediately called the police at 100 number from her mobile phone number 7065161484. She again said she does not know the mobile phone number from which she had called the police at 100 number. Her mobile phone was having two SIM cards.
13. PW2 further deposed that after about 5/7 minutes two/three police official came there and they inquired the matter from her and as soon as she called the police accused fled away from the place of incident. She had made written complaint on a paper sheet given to her by the police to the police at the spot. She has proved the same vide Ex.PW1/A. She has also proved her MLC vide Ex.PW2/A. She has proved arrest memo of accused vide Ex.PW4/A.
14. PW2 further deposed that she does not remember the colour of the towel which was used by the accused for committing offence with her. She cannot identify the towel and bed sheet used by the accused while committing offence with her. She deposed that she was wearing suitsalwar on that day and suit was of wooden colour and Salwar and Chunni was of orangepeele rang ka dikh raha tha. She has proved her statement u/s 164 Cr.P.C vide Ex.PW2/B. She has correctly identified one panty of Maroon colour, one bra of white colour, one peach colour salwar, one duppatta of peach and orange colour and one yellow colour embroidered golden colour shirt vide Ex.P6.
15. Court observation: Wearing clothes of the prosecutrix produced by the MHC(M), Salwar is of light brick colour and duppatta is of mix of light brick colour and golden colour. Suit is of golden colour with flowers embroidery. The clothes produced by the MHC(M) are not the same as witness has submitted in her examination in chief.
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16. On being cross examined by Sh. Hari Krishan, Ld. counsel for accused, she deposed that she did not ask the name of said lady with whom she had spoken in Metro. She admitted that the aforesaid lady had given her the mobile phone number of the accused. She did not ask from the lady about her relation with accused. She did not take mobile phone number of the aforesaid lady. She never did the job of beauty parlour. She stated that she cannot tell the date of journey when she was traveling in Metro between Seelampur to Chandni Chowk. This witness admitted that there are many other shops situated near the said shop of accused and the area was thickly populated. She stated that she does not remember the time when she had called the accused on his mobile phone. There was a sign board in the name of Talwar at that shop but she can not tell the number of the shop even today. She further stated that shops around the shop of the accused were opened and it was day time of about 04:00 p.m. She stated that she remained at the shop of the accused for about 23 hours. During this time neither customer nor neighbouring shopkeeper had come at the shop of the accused. It was a hall and some scrap material was lying therein. Accused came out from the shop after about 12 hours after committing rape with her. Shutter of the shop was opened when she entered in the shop. Shutter of the shop was opened when accused had committed rape with her. Road was situated at the distance of 10 steps from the shutter of the shop. Road was situated at the distance of 25 steps from the place of rape. She stated that she had raised alarm and no one came there. She further stated that she had raised alarm even after coming out of the shop of the accused but no one came there to help her. She had called police on number 100 from my mobile phone at about 06:00 p.m. This witness had denied to the suggestion that she was not intending to get registered the present case or that same has been registered on the suggestion of counselor.
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17. She stated that she had not informed her husband that she was going to see a shop for her beauty parlour. She had told her husband about the incident but he did not ready to become a witness. She admitted that she was living separately during the days of incident from her husband due to some temperament. Again said, since the case was registered her husband was living separately from her. This witness had denied to the suggestion that in order to extort money from the accused she had got registered the present case against the accused or that no incident of rape was done by the accused with her as stated by her in the court or that she has deposed falsely.
18. PW3 Ct. Devi Sahay has deposed that on 11.12.2015, Smt. Surjeet Kaur, wife of accused, had produced an electricity bill to the IO at police station and IO took the same into possession and seized the same vide seizure memo Ex.PW3/A. He has proved original electricity bill placed by Ld. Addl. PP for the state on record vide Ex.PW3/B. In his presence, on 24.12.2015, wife of the accused, Smt. Surjeet Kaur had produced one Scooter make Bajaj vide its Registration No. DL5SF3237. IO had taken the same into possession and seized the same vide seizure memo Ex.PW3/C..
19. PW4 HC Raj Kumar is the witness of arrest of accused. He has proved arrest memo of accused vide Ex.PW4/A and his personal search memo vide Ex.PW4/B and proved disclosure statement of the accused Ex.PW4/C. He deposed that medical examination of the accused was got conducted from Hindu Rao Hospital. The examining doctor of the accused had handed over to him blood sample gauze of the accused along with sample seal which he handed over to the IO vide seizure memo Ex.PW4/D. Case No.27433/2016 State Vs. Satpal Singh @ Talwar 8/27
20. PW5 ASI Bahadur Singh is the incharge of PCR Van. He deposed that on 31.10.2015 he was deputed as Incharge on PCR Van S57 and on that day the said PCR was stationed at Ghanta Ghar, Delhi and at about 06.25 pm a called was received from a lady informing that she was confined in a shop, her mobile phone was also snatched and she was subjected to "Badtamizi". Immediately after receiving the call he along with his Gun Man reached the place of incident i.e. shop no. 5/3, Block No.41, Singh Sabha Road, Near Ghanta Ghar, Delhi, where a lady/prosecutrix was found present.
21. He further deposed that she disclosed to him that she had come there to take a shop belonging to accused Satpal on rent and he made to sit her inside the shop for long time, started talking in obscene language and also started doing "badtamizi" with her. He further deposed that prosecutrix further disclosed to him that while she was making call to the police accused shut down the shop and ran away from there.
22. PW6 Ct. Ram Karan deposed that on 02.11.2015 he was posted as Ct. at PS Roop Nagar, Delhi. On that day IO of this case namely W/SI Veena Kumari had deputed him at the place of incident i.e. Shop No.5/3, Singh Sabha Road, Near Ghanta Ghar, Shakti Nagar, Delhi to preserve the same. At about 02.30 pm - 03.00 pm a team from FSL comprising 4/5 officials came at the spot. They broke open the lock of the shop and inspected the shop. During the inspection FSL team recovered one piece of raxin, one bed sheet, cover of a mattress, towel and one piece of cloth and one polybag containing 10 pieces of condoms in sealed condition in a packet. In his presence, they handed over the aforesaid articles to the IO, who converted the same into parcels, seized them with the seal of 'DK' and took them into possession. He has proved the seizure Case No.27433/2016 State Vs. Satpal Singh @ Talwar 9/27 memo qua condoms vide Ex.PW6/A and seizure memo qua remaining other articles vide Ex.PW6/B. He further deposed that the broken lock of the shop was also taken into possession by the IO and was seized vide seizure memo Ex.PW6/C bearing his signature at point A. This witness has identified the piece of raxin which was recovered from the shop in question vide Ex.P1, towel vide Ex.P2 and piece of cloth which was recovered from the shop in question vide Ex.P3. This witness has correctly identified bed sheet and piece of cloth which were recovered from the scene of crime by the crime team, FSL vide Ex.P4. This witness has also correctly identified the broken lock which was taken into possession from the scene of crime vide Ex.P5.
23. On being cross examined by Sh. Hari Krishan, ld. Counsel for accused, this witness stated that no public witness was present at the time of seizing of bed sheet and cloth by FSL team from the scene of crime. He stated that lock Ex.P5 was broken by their team. I.O. had taken photographs of the aforesaid lock before breaking the same.
24. PW7 Ct. Anil Kumar had taken the custody of parcels containing exhibits pertaining to this case in sealed condition alongwith sample seal from MHC(M), PS Roop Nagar, carried them to FSL Rohini vide Road Certificate Ex.PW7/A. He has proved the acknowledgement of the same vide Ex.PW7/B. He stated that so long as the exhibits remained in his custody, the same were not tampered with in any manner.
25. PW8 Dr. Dileep Kumar has proved MLC of prosecutrix vide Ex.PW2/A on behalf of Dr. Abdul Bari.
Case No.27433/2016State Vs. Satpal Singh @ Talwar 10/27
26. PW9 ASI Bharat Sharma has deposed that on 31.10.2015, he was on emergency duty from 08.00 am to 08.00 pm. and pursuant to a call received vide DD no.27A, he went to place of incident i.e. Shop No.5/3, Block 41, Singh Sabha Road, Shakti Nagar, Delhi, whereon prosecutrix was found present. He has proved written complaint of prosecutrix vide Ex.PW1/A. He went to PS Roop Nagar and got the present FIR registered. He returned to place of incident and handed over the copy of FIR and rukka to W/SI Veena. He deposed that in the night he along with the IO took the prosecutrix to H.R. Hospital and got her medical examination conducted vide MLC Ex.PW2/A. In his presence, IO had also taken into possession the exhibits pertaining to the prosecutrix which was given to her by the doctor and seizure memo Ex.PW9/A was prepared in this regard which bears his signature at point A.
27. On being cross examined by Sh. Hari Krishan, ld. counsel for accused, this witness deposed that date of proceedings in his statement Ex.PW9/DA is inadvertently mentioned as 01.12.2015 instead of 01.11.2015. He deposed that IO had asked the public persons to join the proceedings but they left the spot by showing their personal excuses.
28. PW10 Sh. Surender Kumar proved the certified copy of CDR of mobile number 9818884758 01.10.2015 to 13.11.2015 running into 6 pages vide Ex.PW10/A. He has also proved the certified copy of customer application form alongwith the proof of ID i.e. voter ID card of subscriber vide Ex.PW10/B, cell ID chart vide Ex.PW10/C and the certificate under section 65 of the Evidence Act vide Ex.PW10/D.
29. PW11 Dr. K. Sharda has proved MLC of accused vide Ex.PW11/A on behalf Case No.27433/2016 State Vs. Satpal Singh @ Talwar 11/27 of Dr. Brajesh Kumar Rai.
30. PW12 Ms. Anita Chhari, SSO (Biology), FSL, Rohini, Delhi has proved has proved FSL report vide Ex.PW12/A.
31. PW13 Dr. Varun Garg has proved endorsement at point 'A to A' on the MLC Ex.PW11/A qua the potency test of the accused conducted by Dr. Abhishek Pachauri on 09.12.2015 in sexual assault examination accused proforma, which is Ex.PW13/A on behalf of Dr. Abhishek Pachauri.
32. PW14 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd., has proved the certified copy of CDR of mobile number 7065161484 for the period from 01.10.15 to 13.11.15 running into 11 pages vide Ex.PW14/A. He has also proved the certified copy of customer application form alongwith the proof of ID i.e. aadhaar card of subscriber vide Ex.PW14/B. He had also given certificate under section 65 B of the Evidence Act qua the CDR of mobile number vide Ex.PW14/C. He has also proved the cell ID chart of Idea cellular company pertaining to Delhi and NCR region vide Ex.PW14/D.
33. PW15 HC Khushhal Singh has brought the original register no. 19 of Malkhana and as per entry no. 2159 dated 02.11.2015 W/SI Veena Kumari had deposited the sealed exhibits of this case. He has proved copy of relevant entry vide Ex.PW15/A.
34. PW16 W/SI Veena Kumari was the investigating officer. She deposed on the lines of investigation. She has proved DD No.22A vide Ex.PW1/E. She obtained complaint of prosecutrix vide Ex.PW1/A, on this she prepared rukka Case No.27433/2016 State Vs. Satpal Singh @ Talwar 12/27 Ex.PW16/A. She gave rukka to HC Bharat who went to police station for registration of FIR. Then she prepared site plan vide Ex.PW16/B at the instance of prosecutrix. She has taken the prosecutrix to Hindu Rao Hospital where she was medically examined vide MLC Ex.PW2/A. Her internal medical examination was also done. Doctor had prepared sexual assault kit and sealed the cloths of the prosecutrix which were given to her in sealed condition alongwith sample seal which she seized vide seizure memo Ex.PW9/A.
35. This witness has proved statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW2/B. She further deposed that she alongwith Ct. Ram Karan and team of FSL Officials reached at the spot of incident where shop was found locked. Its lock was broken and lock was sealed in a pullanda with the seal of DK and prepared its seizure memo vide Ex.PW6/C. FSL team had collected one bed sheet, one piece of rexine and one cover of bed mattress which were all sealed in separate pullandas with the seal of DK and handed over to her which she seized vide seizure memo already Ex.PW6/B. She further stated that the search of the shop was done where 10 pieces of unused condoms were found in the drawer of table in the said shop which she taken into possession and sealed the same with the seal of DK and converted the same into a cloth parcel and memo already Ex.PW6/A. She proved the site plan vide Ex.PW16/E.
36. She further deposed that accused was arrested vide arrest memo Ex.PW4/A, his personal search was conducted vide personal search memo Ex.PW4/B and his disclosure statement was recorded vide Ex.PW4/C. She got accused medically examined vide MLC Ex.PW11/A. Blood sample of accused in gauge was taken and sealed by the doctor which was given to her alongwith sample seal which she seized vide seizure memo Ex.PW4/D. Potency test of accused was Case No.27433/2016 State Vs. Satpal Singh @ Talwar 13/27 conducted vide MLC Ex.PW13/A.
37. She further deposed that she had sent request through DCP office for obtaining the call details record of the mobile phone number of prosecutrix, 7065161484 of Idea company and of accused, 9818884758 of Airtel company. She further stated that on 11.12.2015 she had visited the house of accused alongwith Ct. Devi Sahai and obtained electricity bill of the shop which was seized vide seizure memo already Ex.PW3/A.
38. She further deposed that on 24.12.2015 she alongwith Ct. Devi Sahai reached at the house of accused in Satyawati Colony, Janta Flat, Ashok Vihar, Delhi from where scooter of accused on which he had run away from the spot was seized vide seizure memo already Ex.PW3/B. She has proved FSL result vide Ex.PW16/H and crime scene report of the FSL team vide Ex.PW12/A.
39. On being cross examined by Sh. Hari Krishan, Ld. counsel for accused, she deposed that she had not examined any independent witness in this case. This witness admitted that place of incident is situated in a thickly residential area. She admitted that there were other shops situated adjacent to the shop of accused. She stated that she did not give any written notice to any shopkeeper in the area to join the investigation. She admitted that prosecutrix had residing separately from her husband.
40. She stated that she had recorded the statement of the wife of the accused and one relative namely Surjeet Singh and wife of accused and Surjeet Singh had not been cited as a witness in this case. She stated that she did not enquire in the area if the accused was running a beauty parlour in his shop earlier and that Case No.27433/2016 State Vs. Satpal Singh @ Talwar 14/27 no beauty parlour products or items were found in the shop when she inspected it from inside. She did not get the photographs of the shop from inside. This witness admitted that she had not mentioned in site plan already Ex.PW16/E that shop has two sides opening. She further admitted that she had not put her signature on the document prepared by crime investigation team. She stated that there was a shutter in the back portion of the shop which she had not mentioned in the site plan already Ex.PW16/E. This witness had denied to the suggestion that she did not investigate the matter properly or fairly or that present case is a false case or that she has deposed falsely in connivance with the prosecutrix.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
41. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused claimed that some pehalwans who resides nearby his shop were intended to grab his shop situated on the main road and aforesaid pehalwans in connivance with the prosecutrix had got registered the present case against him. He further claimed that he is innocent person of aged about 66 years and he cannot do any sexual act at this age. Prosecutrix had defamed him by lodging the present false case against him. Accused has preferred to lead defence evidence.
DEFENCE EVIDENCE:
42. Accused has examined defence evidence i.e. DW1 Smt. Surgeet Kaur.
43. DW1 Smt. Surgeet Kaur deposed that there are three wrestlers who used to create nuisance at their shop in the year 2015 and they wanted to grab the shop of her husband. She further deposed that one of their neighbour Sh. Nehra was Case No.27433/2016 State Vs. Satpal Singh @ Talwar 15/27 in conspiracy with these wrestlers namely Pawan, Anil and Satish. Her husband/accused had also lodged complaint against them. The prsoecutrix was sent at their shop to implicate her husband in this case. Her husband is innocent. She deposed that he had not done any rape with the prosecutrix on 31.10.2015, nor confined in the shop.
44. On being cross examined by ld. Addl. PP for the State, this witness stated that she was in hospital on 31.10.2015 and when she returned home she came to know about her husband's false implication. She had denied to the suggestion that accused had raped the prosecutrix by falsely calling her at his shop or that she has deposed falsely to help her husband who is accused in this case. Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
45. Ld. counsel for accused argued and submitted that there are charges u/s 342/376 IPC against the accused and 16 prosecution witnesses have been examined in the present case.
46. Ld. counsel for accused further submitted that prosecution is totally failed and could not prove the case against the applicant/ accused as per the prosecution's story the prosecutrix met a lady in the Metro Train and provided the Mobile Number of the accused involved in this case but the prosecution did not make the witness in the present case who introduced the prosecutrix to the accused person and the statement of the prosecutrix U/s 164 Cr.P.C. recorded before the Ld. Magistrate Ms. Rashmi Gupta, M.M., Tis Hazari Court, Delhi, and recorded the statement before the Session trial court is totally different and She could not give any satisfactory reply before the court at the time of her cross Case No.27433/2016 State Vs. Satpal Singh @ Talwar 16/27 examination and her statement is totally vague, absurd and not reliable.
47. Ld. counsel for accused further submitted that that prosecutrix has already given the contradictory statements at every times and all the versions of the Prosecutrix Statements are contradictory to each other and in these hard circumstances her husband is not supporting to her and her relations with her husband are not good.
48. Ld. counsel for accused further submitted that prosecution did not make any material witness in the abovesaid case to prove the case and at the time of incident, Police officials did not arrange any eye witness to see the incident was happened with the prosecutrix and the prosecutrix did not raise any alarm at the time of incident and no hue and cry was made at the time of incident and she could not identify the place of incident, the accused was not arrested from the place of incident as the accused was not arrested by the concerned Police till one month and he himself surrendered before the concerned Ms. Rashmi Gupta, M.M., Tis Hazari Court, Delhi, at that time and after that Police officials take the case in their custody because the accused did not flee from the place of incident as well as his residence.
49. Ld. counsel for accused further submitted that prosecutrix could not identifying the exact colour of her Under Garments wearing at the time of incident and She is totally confused that how many documents were prepared at the spot by the Police as well as crime team (FSL) and prosecution could not produce any trustworthy and reliable witness to prove its case and there is no any material was produced before this Hon'ble court to prove the case against the accused. Her medical examination is not supporting the prosecution story Case No.27433/2016 State Vs. Satpal Singh @ Talwar 17/27 and the same is suspicious and prosecution recovered the condom Packets from the spot of incident but the packet was completely sealed and was not used condom was recovered by the Police at the spot and the alleged rape allegations are totally vague, wrong and baseless leveled by the prosecutrix against the applicant/accused.
50. Ld. counsel for accused further submitted that in these circumstances, the applicant/accused is entitled for acquittal the abovesaid charges in the above noted case because the applicant/accused is a Senior Citizen and is aged about 68 Yrs. and he is not capable to perform the sexual intercourse with anybody/woman and the Prosecution has falsely implicated the applicant/accused in the abovesaid case due to the reason some vagabond type of persons like Pehalwans who are residing in Chandgi Ram Akhara, Delhi, and they want to grab the property/Shop of the accused by involving the applicant/accused in heinous cases and resulting which the present case has been registered against the applicant. The applicant/accused has already filed a written complaint to the SHO of P.S. Roop Nagar, and ACP, DCP concerned but they did not take any action against the culprits and the Prosecutrix is in connivance with the associates who are Pehalwans by hatching a conspiracy with the prosecutrix and involved the applicant/accused in the abovesaid false case. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
51. On the other hand, Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution. She has deposed about her complaint Ex.PW1/A and she had identified the accused as the same person against whom she lodged complaint of rape.
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52. Ld. Addl. PP for the State further submitted that prosecutrix has supported the case of prosecution on all counts. She has given a graphic narration of the events which led to her being raped by the accused. She has specifically named accused in her complaint given to police.
53. Ld. Addl. PP for the State further submitted that there is no delay in lodging the report with the police, she has called police on 100 number by using her mobile phone and DD No.27A Ex.PW9/E was registered in this regard. The prosecutrix was also found at the spot of incident to the police officials of PCR who reached at the spot before of reaching of local police and I.O.
54. Ld. Addl. PP for the State further submitted that the version of the prosecutrix is also corroboated by the testimony of PW5 ASI Bahadur Singh who was incharge of PCR and on 31.10.2015, he had reached at the spot and met prosecutrix.
55. Ld. Addl. PP for the State further submitted that prosecutrix had identified and her cloth in the court Ex.P6 and from the version of IO PW16 W/SI Veena it is clear that it was the accused who had committed rape with the prosecutrix that there is no any kind of explanation is coming forward fromt he side of accused as to why prosecutrix has named him and why he has left from the spot.
56. As such, considering the testimony of prosecutrix, case against accused is proved and he may be convicted.
PERUSAL OF RECORD:
57. Arguments heard. Record perused. On perusal of record, it is revealed that on Case No.27433/2016 State Vs. Satpal Singh @ Talwar 19/27 the written complaint of prosecutrix vide Ex.PW1/A, present FIR Ex.PW1/B was registered against the accused.
58. It is further revealed that prosecutrix was medically examined through police in a government hospital vide MLC Ex.PW2/A; her statement Ex.PW2/B under section 164 Cr.P.C. was also recorded.
59. It is further revealed that PW2 prosecutrix also identified her wearing clothes Ex.P6 i.e. one panty of Maroon colour, one bra of white colour, one peach colour salwar, one duppatta of peach and orange colour and one yellow colour embroidered golden colour shirt which she was wearing at the time of incident.
60. It is further revealed that on 31.10.2015 DD no.22 A Ex.PW1/E was recorded in PS Roop Nagar on the basis of information received from PCR and IO PW16 W/SI Veena Kumari reached at the spot i.e. Shop No. 5/3, Block 41, Singh Sabha Road, Shakti Nagar, New Delhi and met with prosecutrix and PW9 ASI Bharat Sharma (then HC) there.
61. It is further revealed that IO PW16 W/SI Veena Kumari produced PW2 prosecutrix before the Counselor, Ms. Mehndiratta in Mukherjee Nagar and obtained counseling report; then PW2 prosecutrix was taken to Hindu Rao Hospital for her medical examination, where Dr. Abdul Bari examined her vide MLC Ex.PW2/A which MLC was proved by PW8 Dr. Dileep Kumar. PW16 W/SI Veena Kumari seized the exhibits of examination of PW2 prosecutrix prepared by the doctor vide seizure memo Ex.PW9/A which were deposited in the Malkhana by her with MHC(M) vide entry of register, Ex.PW15/A. Case No.27433/2016 State Vs. Satpal Singh @ Talwar 20/27
62. It is further revealed that on 31.10.2015 PW1 HC Veer Pal Singh, Duty Officer registered the FIR Ex.PW1/B on the basis of rukka received from PW9 ASI Bharat Sharma (then HC); he also made his endorsement Ex.PW1/C on the rukka and issued a certificate Ex.PW1/D under section 65 B of the Evidence Act regarding correct contents of computerized copy of FIR. IO PW16 W/SI Veena Kumari seized the broken lock Ex.P5 vide seizure memo Ex.PW6/C.
63. It is further revealed that on 02.11.2015 the FSL officials while examining the spot of incident collected one bed sheet Ex.P4, on towel Ex.P2, one piece of raxine Ex.P1, piece of cloth Ex.P3, one cover of bed mattress which were sealed in pullandas vide seizure memo Ex.PW6/B.
64. It is further revealed that on 02.11.2015 IO PW16 W/SI Veena Kumari at the time of examination of the shop found a table there and in its drawer 10 pieces of unused condoms were found in a polythene which were sealed by the IO in a pullanda and seized vide seizure memo Ex.PW6/A.
65. It is further revealed that on 03.11.2015 PW16 W/SI Veena Kumari again joined PW2 prosecutrix in the investigation of the case and reached at the shop which was found opened; PW2 prosecutrix pointed out the place of incident inside the shop and site plan Ex.PW16/E was prepared.
66. It is further revealed that accused was arrested in the case vide arrest memo Ex.PW4/A and his personal was conducted vide personal search memo Ex.PW4/B. Case No.27433/2016 State Vs. Satpal Singh @ Talwar 21/27
67. It is further revealed that PW16 W/SI Veena Kumari produced accused in Hindu Rao Hospital and he was examined by Dr. Brajesh Kumar Rai. His blood sample was taken; MLC Ex.PW11/A was prepared; his blood sample was seized by the IO PW16 W/SI Veena Kumari vide seizure memo Ex.PW4/A and MLC Ex.PW11/A was proved by PW11 Dr. K. Sharda.
68. It is further revealed that Dr. Abhishek Pachauri has conducted potency test of accused vide Ex.PW13/A which report was proved by PW13 Dr. Varun Garg.
69. It is further revealed that PW7 Ct. Anil Kumar had taken the sealed pullandas of this case from MHC(M), PS Roop Nagar vide RC Ex.PW7/A and deposited there; he also obtained acknowledgement Ex.PW7/B from the office of FSL.
70. It is further revealed that PW10 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. produced the certified copy of call details of his mobile phone number 9818884758 of the period from 01.10.2015 to 13.11.2015, Ex.PW10/A; he also produced the customer application form with ID proof, Ex.PW10/B; he also produced cell ID chart Ex.PW10/C and gave certificate under section 65 B of the Evidence Act, Ex.PW10/D in this regard.
71. It is further revealed that PW14 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. produced the certified copy of call details of his mobile phone number 7065161484 of the period from 01.10.2015 to 13.11.2015, Ex.PW14/A. He also produced the customer application form with ID proof, Ex.PW14/B, He also produced cell ID chart Ex.PW14/D and gave certificate under section 65 B of the Evidence Act, Ex.PW14/C in this regard.
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72. It is further revealed that on 02.11.2015 PW12 Ms. Anita Chhari, Sr. Scientific Officer, FSL Rohini, Delhi on the request of police alongwith other FSL officials namely Sh. Veer Singh, Lab Attendant (Biology) and Sh. Anil Kumar, SSA (Photo) reached at the shop of incident i.e. Talwar Travels, 5/3, Singh Sabha Road, Delhi and she prepared her inspection report Ex.PW12/A. She directed the IO PW16 W/SI Veena Kumari to lift the exhibits and send the same to office of FSL for examination.
73. Before reaching at any conclusion, let the relevant sections i.e. u/s: 342/376 IPC be reproduced, which is as under: Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and Case No.27433/2016 State Vs. Satpal Singh @ Talwar 23/27 shall also be liable to fine.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 342 IPC:
Punishment for wrongful confinement. Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with find which may extend to one thousand rupees, or with both.
FINDINGS:
74. Arguments heard. Record perused. On perusal of record, it is revealed that present case was registered on the statement of prosecutrix Ex.PW1/A. Prosecutrix has been examined as PW2. During her deposition before the court prosecutrix stated that she was going to Chandni Chowk from Seelampur to buy some articles by Metro and one lady who was sitting besides her started conversing with her and she did not know her and further deposed that during her conversation she asked her if there is any shop for running a beauty parlour then she get mobile number of accused but prosecutrix did not disclose the name of that lady. It is very strange to digest that one person may go to some person on the information of some unknown person.
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75. Further, prosecutrix deposed that after two days, she called accused on his mobile phone and prosecutrix could disclose the mobile number of the accused on which she talked to him. CDR Ex.PW14/A shows that prosecutrix had telephoned accused various times before the day of incident i.e. on 02.10.2018, 08.10.2018 and 21.10.2018. Hence, implication of accused in the present case by the prosecutrix is not ruled out.
76. She deposed that some other lady has given mobile number of accused to the prosecutrix why she did not disclose that she had been talking terms with the accused prior to the date of incident also.
77. Further, chargesheet shows that prosecutrix had given her mobile phone number at later stage. It means that mobile phone form which talk has been made to accused was being used by some other person and same had been given to the prosecutrix after registration of the case. Possibility of false implication of accused cannot be ruled out.
78. Further, prosecutrix has deposed about the facts of the case but her testimony is not free from doubt as she has not been able to explain as to why she has not mentioned the name of accused in the information given to police on number 100 which was recorded as DD No.27A.
79. MLC shows that she has also not mentioned the name of accused and the manner of committing rape to the doctor who medically examined her.
80. The version of prosecutrix also comes under shadow of doubt when she had promptly called the police at the place of incident and the exhibits prepared by Case No.27433/2016 State Vs. Satpal Singh @ Talwar 25/27 the doctor regarding sexual assault were preserved. I.O. had also collected the exhibits in the shape of raxin, bed sheet, cushion cover, towel, piece of clothes but when these exhibits along with the blood sample of accused were sent to FSL and examined there, no semen could be detected on the exhibits of prosecutrix which were her clothes seized by the doctor which could not have been possible as it would have been natural that some traces of semen etc. would be found on the clothes of accused so there is no corroboration of the version of prosecutrix with the scientific evidence on record in the shape of FSL report as the prosecutrix had promptly called the police and the scene of crime was also examined by the I.O. without any delay.
81. The case of prosecution is also weak as there is no corroboration of the incident from any independent source. The I.O. failed to examined public person of the locality who could have stated regarding the activity of prosecutrix when she called the police at the spot and what investigation was done at the spot, so non joining of PW also creates doubt in the manner of investigation of the case.
82. On physical appearance of accused, it appears that he is walking with the help of stick and is aged about 66 years. Even MLC of accused shows that he is capable of performing sexual intercourse. During his physical appearance court is of the opinion that he cannot walk properly. It is possible the he could not ran away from the spot.
83. Prosecutrix in examination in chief has deposed that she had met with accused for the first time whereas CDR reflects there was conversation between accused and prosecutrix at various occasions which shows that both prosecutrix and accused were known to each other. Hence, deposition of prosecutrix is not Case No.27433/2016 State Vs. Satpal Singh @ Talwar 26/27 believable.
84. Considering the facts and circumstances, testimony of prosecutrix has not inspired the confidence of this court, hence, prosecution has been failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Satpal Singh @ Talwar acquitted from the charges u/s 342/376 IPC.
85. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs. 25,000/ with one surety in the like amount.
86. Since prosecutrix has misused the due process of law, hence, no compensation is awarded to her.
87. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 31.07.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Digitally signed by RAMESH KUMAR RAMESH Date:
KUMAR 2018.08.01
16:01:24
+0000
Case No.27433/2016
State Vs. Satpal Singh @ Talwar 27/27