Delhi District Court
St. vs Cancellation on 17 October, 2015
IN THE COURT OF SH. SHARAD GUPTA
ADDL.CHIEF METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, NEW DELHI.
St. Vs.Cancellation
FIR no. 150/10
P S Seemapuri
U/S 376(2) G IPC
ORDER
17.10.2015 Pr: Ld Subsitute APP for the state None for the complainant Cancellation in FIR no. 150/10 u/s 376(2)G IPC PS Seemapuri is pending adjudication. Complainant/prosecutrix has already filed protest petition. Submissions have already been heard. Record perused.
ALLEGATIONS OF THE PROSECUTRIX IN BRIEF :
1 FIR no.150/10 was registered on complaint of complainant Ms.Kavita Pawaria who alleged that she had been raped by four persons on 21.5.10. The gist of statement of the prosecutrix is as under:
" I have been residing at this address (D562, Dilshad Garden, Delhi) since the last about three months. I had met Amit Modi s/o Gokul Chand Modi and Pushpash Agarwal about one one and half months ago and requested them for giving me employment. They got me a job (in their company) and Amit Modi started frequenting my house. On 21.5.10, at about 8 p.m, Amit Modi came to my State vs Cancellation 1/19 house on the pretext of discusing some office work. After some time he rang up Sunil Totlani and called him, Jai Kishore and Pushpash Agarwal to my house. By 8.15 p.m, the trio also came to my house. Then, Amit Modi started molesting me and when I freed myself his clutches, Sunil Totlani whipped out his revolver and threatened me of dire consequences if I made any noise. I got frightened. First, Amit Modi raped me against my wishes and then Sunil Totlani raped me".
The PCR call was made at about 11.09 PM. The time of the incident is thus between 8.15 and 11.04 PM on 21.05.2010.
INVESTIGATION CONDUCTED DURING THE COURSE OF INVESTIGATION.
2 The complainant was got medically examined, was put in touch with Women Helpline, CAW Cell, Nanakpura, CAW Cell/NE , District , DCW and NGO. Exhibits were collected from GTB Hospital. Crime team was called for spot investigation. The bed sheet and broken pieces of bangles were seized. Place of occurrence was videographed and photographed. Site plan was prepared. Inquiry was conducted at ABA Builders. Vistors register, attendance register and Wages payment register of ABA builders were seized. Exhibits were deposited in FSL, Rohini. Complainant's blood sample was taken for DNA profiling alongwith blood samples of accused Amit Modi and Sunil Totlani. All four accused were interrogated. CCTV footage of Moti Mahal restaurant & Fun Cinema , Cross River Mall was obtained. Call detail records of mobile phones of all accused were obtained and analysed. Statements of witnesses were recorded u/s 161 Cr.PC and 164 Cr.Pc. Search was made for one Sandeep Sindhu, boy friend of complainant, State vs Cancellation 2/19 Sunil Sharma & one Kuldeep. Thereafter, cancellation was filed.
GROUNDS FOR CANCELLATION 3 The complainant had told the police that she was employed by the accused persons and working for them in their office at Indra Puram. However, from the statements of the employees of the company and the records seized therefrom, it has been established that she has never been an employee of that company. Her name does not appear anywhere in the attendance register seized by the IO nor she has ever received any salary from there.
4 As per the call detail records of mobile phones of the four accused persons Amit Modi, Sunil Totlani, Jai Kishore Totlani and Pushpash Agarwal, none of them were present at the place of occurrence i.e. D562, Dilshad Garden, Delhi at the time/date of the alleged incident.
5 The chart showing the locations of the accused persons at the time of incident is reproduced as under:
S.NO Alleged person Time duration on alleged Locations date Amit Modi 19.28 hrs to 21.38 hrs Preet Vihar, Swasthya 1 Vihar, Jagriti Enclave Sunil Totlani 19.04 hrs to 21.11 hrs New Seelampur, Shastri Park and 2 Kohart Enclave State vs Cancellation 3/19 S.NO Alleged person Time duration on alleged Locations date Jai Kishore Totlani 19.30 hrs to 23.06 hrs Vasundhara Enclave, Kohaet Enclave, Rani 3 Bagh Pushpash Agarwal 16.08 hrs to 21.38 hrs Noida Sector18, 4 Block A, Noida 15 A
6 As per the CCTV recording of the Moti Mahal restaurant in M2K Mall at Road no.44, Rani Bagh, Delhi, accused Sunil Totlani and Jai Kishore Totlani were having dinner in the restaurant alongwith their family at the alleged time and date of the incident from about 9 PM onwards.
7 As per the CCTV recording of the Fun Cinema, Cross River Mall, Anand Vihar, Delhi , accused Amit Modi was watching a movie alongwith his family at the alleged time and date of the incident from about 10 PM onwards. 8 On 23.5.10, one slip of paper mentioning the names of accused Jai Kishore, Amit Modi, Sunil Totlani and Pushpash Agarwal was recovered from underneath the kitchen slab of the house of the complainant suggesting that the accused had been falsely implicated.
9 One Ms.Kavita Choudhary examined who stated that she had been offered Rs.20 lacs by one Sunil Sharma to falsely implicated the accused Amit Modi and State vs Cancellation 4/19 Sunil Totlani in a rape case.
10 That Sandeep Sindhu, boy friend of complainant and Sunil Sharma to whom the complainant referred as 'Bhaiya' were sought to be traced out but they were untraceable during course of investigation. It also came to light that the accused were falsely implicated as a result of a conspiracy hatched by Sunil Sharma, Sandeep Sandhu and one Harish Nagpal whose wife Anjula is one of the directors in ABA Builders alongwith the accused persons. 11 During course of investigation, the samples i.e. the clothes of the complainant, cotton swab, bed sheet etc. was sent for DNA profiling and as per FSL result, the biological fluid present on the underwear of victim microslide, clothes of the victim, cotton swab and on the bed sheet did not belong to either of accused Amit Modi or accused Sunil Totlani.
12 My Ld.Predecessor was pleased to direct further investigation of the case and the CCTV footage of Moti Mahal Restaurant & Fun Cinema , Cross River Mall was sent for FSL examination. Supplementary chargesheet was filed alongwith the FSL result which ruled out any tampering in CCTV footage either of Moti Mahal Restaurant or of Fun Cinema ,Cross River Mall.
ARGUMENTS OF THE COMPLAINANT 13 Complainant has filed protest petition interalia on the ground that the State vs Cancellation 5/19 investigation was tainted and biased and that she had been complaining to various authorities regarding the same.
14 That the entire final report is based on plea of alibi of the accused which can not be taken into consideration at this stage.
15 That the evidence relied upon by the police in the final report is in nature of electronic evidence which is admissible u/s 65 B Evidence Act and can not be accepted unless it is proved in court of law.
16 That the final report is supported by few statements recorded u/s 164 Cr.Pc which were obtained under duress and affidavits of some of the witnesses have been attached with the protest petition. That the other witnesses whose statements have been recorded are employees of the accused and their statements are motivated and partisan.
17 Other legal grounds were also taken in the protest petition summarizing the courses open to the court once a final report has been filed and it was submitted that court is not bound to agree with the final report and can even take cognizance of the offences from the final report itself. It was again reiterated that the final report was filed on basis of opinion of the police officials and inadmissible evidence. It was also urged that the medical evidence of the prosecutrix can not be over looked. That the complainant was detained in PS , at her Dilshad Garden house and the approach of the police in producing the prosecutrix in the court are State vs Cancellation 6/19 continuous offence eminating from the principal offence of gang rape. It was also urged that different section of police is investigating the illegal detention of the complainant.
ARGUMENTS OF THE COMPLAINANT 18 During course of arguments, two main points were urged by Ld.Counsel for the complainant.
(i) It was urged that this court can not accept the cancellation in a Sessions triable case. It was urged that effect of acceptance of cancellation report would be discharge of the accused in Sessions Triable case. Reliance was placed in this regard on pronouncement of Hon'ble Apex Court in " Ajay Kumar Parmar Vs State of Rajasthan" AIR 2013 SC 223 and of our own Hon'ble High Court in " Neha Monga Vs State " 2012 (4) JCC 3131.
In Ajay Kumar(Supra), a chargesheet had been filed in a Sessions triable case and the committal court discharged the accused. It was held that committal court could not have considered the application for discharge of the accused and such application was to be considered by the Sessions Court only. It was further held that committal court had no power to discharge the accused.
(ii) It was further urged on behalf of the complainant that cancellation had been filed on the basis of alibi of the accused. It was urged that the first ground for cancellation was that one accused was watching a movie and another was having dinner but both the alibis were for different period of time. That there is no evidence to suggest that the accused were not present in Dilshad Garden on the State vs Cancellation 7/19 time of incident. That the CDRs and the CCTV footage of Moti Mahal Restaurant and Fun Cinema, Cross River were not supported by appropriate certificates u/s 65 B Indian Evidence Act. It was also urged that the final report was not supported by any cogent evidence and even the statements u/s 161 & 164 Cr.Pc could not be relied upon at this preliminary stage. Lastly, it was urged that the investigation of the case is tainted and the complainant was even confined illegally and the protest petition in this regard is on record.
REASONS FOR DECISION OF THE CASE 19 It can first be seen if this court has the authority to accept cancellation filed in a sessions triable case. In the present case a chargesheet has not been filed but rather a "final report" or a "cancellation report" has been filed. The terms final reprt and chargesheet have not been defined anywhere in the Cr.PC, however, it is understood in the police manuals of different states that a report under section 169 Cr.PC is understood to be a final report while a report under section 170 Cr.PC is considered to be a chargesheet. The ratio in Minu Kumari Vs State of Bihar AIR 2006 SC 1937 can be adverted to on this point. A report under section 169 Cr.PC is commonly understood to be a report to the effect that the Officer in charge of a police station upon investigation finds no sufficient evidence or reasonable ground to send the accused for trial. This distinction assumes significance in face of the first argument of the prosecutrix that this court has no power to accept the cancellation in a sessions triable case as to do so would imply discharge of the accused. In Ajay Kumar(Supra), a chargesheet had been filed in a Sessions triable State vs Cancellation 8/19 case and the committal court discharged the accused. In this background, it was held that committal court could not have considered the matter for discharge or acquittal of the accused and such order was to be passed by the Sessions Court only. Coming to the factual matrix of this case, a cancellation report ( & not a chargesheet) has been filed by the police to the effect that there were no reasonable grounds to send the accused for trial. The ratio of Ajay Kumar Parmar (supra) though undisputed is thus not applicable to the facts of the case. In Neha Monga supra the order of discharge of accused passed by the Sessions court was set aside as the accused had been discharged on the ground that their names were not mentioned in the initial FIR. It has been observed that the ratio of Neha Monga also though undisputed is of no help to the complainant and is not applicable on the facts of the case as even in that case chargesheet had been filed and cognizance of the offences had been taken.
20 The courses open to a court once cancellation report has been filed have been beautifully enumerated by the Hon'ble Apex Court in M/s India Carat Pvt. Ltd. Vs the State of Karnataka AIR 1989 SC 885 (also rellied upon by the prosecutrix). It was held in India Carat (supra) that in case a report is placed before a Magistrate stating that no offence appears to have been committed, the Magistrate has the option of adopting one of the three courses open i.e., firstly, he may accept the report and drop the proceedings; or secondly he may disagree with the report and take the view that there is sufficient ground for proceeding further and may accordingly, take congizance of the offence and issue process; or thirdly State vs Cancellation 9/19 he may direct further investigation by the police under section 156(3) CrPC. 21 It is thus the settled proposition of law that a court of magistrate can in its discretion accept a cancellation or proceed further as per law. Having settled the propostion that this court has the jurisdiction to deal with the present cancellation report, now the factual proposition emerging from the investigation and the protest of the prosecutrix thereto can be considered.
22 The very first assertion of the prosecutirx is that the cancellation has been filed on the basis of the plea of alibi of the accused. It has been urged that alibi is to be established by the accused at the trial of the case and cannot be considered as a ground for cancellation. As regrds the argument of the complainant that the cancellation has been filed on the basis of alibi of accused, it is also the settled proposition of law that an investigating officer has to take the investigation of a case to its logical end. By a necessary corollary, the investigating officer also cannot ignore any piece of evidence that shows that the offence even might not have been committed. In case it comes to light that the manner in which the offence is alleged to have been committed is improbable because the accused were not present at the spot, the IO is duty bound to collect such evidence and to produce it before the court and once such material has come to light it has to be considered in the facts and circumstances of the case. It is also the settled proposition of law that the burden of proving alibi undoubtedly lies on the accused ; but even so the burden of proving the case against the accused is on the State vs Cancellation 10/19 prosecution irrespective of whether or not the accused made out a plausible defence. The ratio in Gurcharan Vs State AIR 1956 SC 460 can be adverted to on this point. At the risk of sounding trite, it has been observed that firstly, the prosecution has to discharge its initial onus and show atleast the commission of offence from the material on record after which the onus would shift on the accused to discharge his burden. In the facts of the present case, the material collected by the IO shows that the accused were not present at the spot of incident and this fact impeaches the credit of the assertion of the prosecutrix that she had been raped by the accused persons. There is thus no bar in considering the material unearthed during investigation showing that the accused were not present at the spot of the incident and the said material can be considered by this court. 23 It has been further urged that the evidence of the alibi of accused as collected in the form of CDRs of all the four accused, the video footage of Fun Cinema Karkardooma and Moti Mahal are all unsupported by requisite certificates under section 65 B of the evidence Act and cannot be considered by this court. It has also been urged that the court cannot rely on the statements of witnesses recorded under section 161 or 164 Cr.PC to accept the final report. Reliance in this regard has been placed on the pronouncement of Hon'ble Apex Court in Vijender Singh Vs State of Delhi (1997) 6 SCC 171.
24 Both these arguments are to the effect that the material collected during State vs Cancellation 11/19 investigation is not evidence and cannot be relied upon and further that the evidence in form of CDRs and video footage is not admissible in absence of requisite certificate under section 65 B Evidence Act.
25 As regrads the requirement for certificate under section 65 B Evidence Act, it would be appropriate to refer to the pronouncement of the Hon'ble Apex Court in P.V.Anwar Vs P.K.Basheer(2014) 10 SCC 473 where the true import of section 65 B Evidence Act was enunciated. It was held that certificate under section 65 B Evidence Act was mandatory to ensure the authenticity of the electronic record. It was further held that in a situation where the original electronic record had been seized, there would be no requirement of a certificate under section 65 B of the Evidence Act (emphasis supplied). Coming to the factual matrix of this case, the investigating agency has seized the original video footage from Moti Mahal Restaurant while the original CCTV footage of Fun Cinema Karkardooma has been preserved. Furthermore, both the videos were sent to FSL and the report of FSL indicates that there was no tampering in either of the said video recordings and that both the videos show the presence of the accused Amit Modi and Sanjeev Totlani repectively in PVR and Moti Mahal Restaurant. The reports themselves are admissible under section 293 Cr. PC and both the reports point to the authenticity of the video recordings in terms of ratio of P.V.Anwar supra and there is no bar to considering the said recordings. Furthermore, the opinion of the experts themselves is relevant & is State vs Cancellation 12/19 admissible u/s 45 of the Evidence Act.
26 As regards the second argument of the complainant that the statements of witnesses cannot be considered for accepting final report, the said argument is neither here nor there. In terms of M/s India Carat supra this court has either to take cognizance or decline cognizance of the offences from the chargesheet and the material forwarded alongwith the chargesheet. The material forwarded is in the form of the statements recorded under section 161 and 164 Cr.PC and the CDRs and FSL result etc. In case this argument of the complainant is taken at its face value, the effect would be that the material cannot be considered either for taking cognizance or for declining congnizance and the legal proposition laid down by M/s India Carat supra would be rendered nugatory and redundant. There is thus no merit in this argument of the complainant.
27 Now the factual matrix of the case as emerging from the investigation can be considered. It has come in the investigation as follows:
(i) The complainant had told the police that she was employed by the accused persons and working for them in their office at Indra Puram. However, from the statements of the employees of the company and the records seized therefrom, it has been established that she has never been an employee of that company. Her name does not appear anywhere in the attendance register seized by the IO nor she has ever received any salary from there.
(ii) As per the call detail records of mobile phones of the four accused State vs Cancellation 13/19 persons Amit Modi, Sunil Totlani, Jai Kishore Totlani and Pushpash Agarwal, none of them were present at the place of occurrence i.e. D562, Dilshad Garden, Delhi at the time/date of the alleged incident.
(iii) The chart showing the locations of the accused persons at the time of incident is reproduced as under:
S.NO Alleged person Time duration on alleged Locations date Amit Modi 19.28 hrs to 21.38 hrs Preet Vihar, Swasthya 1 Vihar, Jagriti Enclave Sunil Totlani 19.04 hrs to 21.11 hrs New Seelampur, Shastri Park and 2 Kohart Enclave Jai Kishore Totlani 19.30 hrs to 23.06 hrs Vasundhara Enclave, Kohaet Enclave, Rani 3 Bagh Pushpash Agarwal 16.08 hrs to 21.38 hrs Noida Sector18, 4 Block A, Noida 15 A
(iv) As per the CCTV recording of the Moti Mahal restaurant in M2K Mall at Road no.44, Rani Bagh, Delhi, accused Sunil Totlani and Jai Kishore Totlani were having dinner in the restaurant alongwith their family at the alleged time and date of the incident from about 9 PM onwards.
(v) As per the CCTV recording of the Fun Cinema, Cross River Mall, Anand Vihar, Delhi , accused Amit Modi was watching a movie alongwith his State vs Cancellation 14/19 family at the alleged time and date of the incident from about 10 PM onwards.
(vi) During course of investigation, the samples i.e. the clothes of the complainant, cotton swab, bed sheet etc. was sent for DNA profiling and as per FSL result admissible u/s 293 Cr.Pc, the biological fluid present on the underwear of victim microslide, clothes of the victim, cotton swab and on the bed sheet did not belong to either of accused Amit Modi or accused Sunil Totlani (emphasis supplied).
28 It can now be considered if cognizance of offence u/s 376 (2) G IPC can be taken from the material on record. The settled proposition of law on this point is that there is no rule of law or practice that the evidence of the prosecutrix can not be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. However, the same holds true only if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence. 29 In the facts of the present case, even as per the complainant all the accused had gathered in her house at around 8.15 p.m after which accused Amit Modi and Sunil Totlani had raped her one after the other. PCR call in this regard was made at 11.09 hours. The time of the incident is thus between 8.15 p.m and 11.09 p.m. As per the material collected on record, the accused Amit Modi was present at PVR, Cross River Mall, Karkardooma from 10 p.m onwards and accused Sunil Totlani and Jai Kishore were present at Moti Mahal Restaurant, Rani Bagh, State vs Cancellation 15/19 Pritampura, Delhi from 9 p.m onwards ( the original recording of Moti Mahal Restaurant was seized thereby negativing the requirement for certificate u/s 65 B Evidence Act) . Even as per the CDR, none of the accused was present in the area at the time of the incident. The CDR chart at risk of repetition is reproduced below: S.NO Alleged person Time duration on alleged Locations date Amit Modi 19.28 hrs to 21.38 hrs Preet Vihar, Swasthya 1 Vihar, Jagriti Enclave Sunil Totlani 19.04 hrs to 21.11 hrs New Seelampur, Shastri Park and 2 Kohart Enclave Jai Kishore Totlani 19.30 hrs to 23.06 hrs Vasundhara Enclave, Kohaet Enclave, Rani 3 Bagh Pushpash Agarwal 16.08 hrs to 21.38 hrs Noida Sector18, 4 Block A, Noida 15 A 30 Furthermore, the biological fluids obtained from the clothes of the complainant , vaginal swab and the bed sheets seized from the spot were sent for DNA comparison to FSL. As per FSL result, the biological fluids recovered from the spot and clothes of the complainant & the vaginal swab did not belong to either Amit Modi or Sunil Totlani.
State vs Cancellation 16/19 31 The material on record has thus impeached the testimony of the complainant and there is no material for taking cognizance of offence u/s 376(2) G IPC. In the facts of the present case, the DNA profiling has shown that the biological fluids on the clothes of the complainant, bed sheet and the vaginal swab did not belong to either accused Amit Modi or accused Sunil Totlani thus negativing their invovlement in the commission of the offence. Furthermore, none of the accused was even present near the spot of the incident on the date of incident.The evidence of the prosecutrix in this case is not of such quality as inspires confidence and there is no other evidence on record which may even lend some assurance, sort of corroboration that she is making a truthful statement. The Courts have consistently put an end to criminal proceedings which are an abuse of process of court. In taking this view, I am fortified by the pronouncement of our own Hon'ble High Court in Ramesh Thakur vs State (Nct Of Delhi) & Anr. on 24 May, 2013 on similar facts. Thus, there is no material before this court on the basis of which cognizance of offence u/s 376(2) G IPC can be taken. 32 The grievance of the complainant is that the investigation is tainted and biased. The protest petition mentions that the complainant had been illegally confined. My attention has been brought in this regard to order of Ld.Predecessor dt.11.6.10. The said order however, merely records the allegations of the complainant and further directs that the complainant is free to live where ever she wants. There is no finding in the said order that the complainant had been illegally confined. Interestingly, the protest petition also mentions that inquiry regarding the State vs Cancellation 17/19 allegations of the complainant was being conducted by an independent agency. The result of the said inquiry has not been produced before this court. However, the IO through State had submitted that the allegations of the complainant could not be found correct after inquiry and the report in this regard is on record. The said report also negatives the assertions & allegations of the complainant. There is nothing before this court to assume that the investigation of this case has not been properly conducted or that the complainant was illegally confined. 33 The affidavits of Kavita Choudhary, Anuradha @ Anu, Sunil Sharma and Ashok Kumar have been appended with the protest petition. However, none of the said witnesses was a witness of the incident. Rather all the said witnesses had been examined by the IO to show that there was a conspiracy to falsely implicate the accused persons. The affidavits of the said witnesses also do not support the version of the complainant regarding her rape. None of the said persons is a witness to the effect that the accused were present at H.No 562, B pocket, Dilshad Garden, Delhi or that the accused Amit Modi was not present in PVR, Karkardooma or that accused Sunil Totlani was not present in Moti Mahal Restaurant, Rani Bagh, Delhi at the time of the incident. As already observed , even the affidavits of the said witnesses do not have any bearing on the assertions of the complainant. In the above circumstances, even posting the matter for evidence of the complainant would not serve any useful purpose. State vs Cancellation 18/19 34 In passing, it has been observed that the IO has moved a complaint u/s 195 Cr.Pc for initiating action u/s 182 IPC against the complainant herein. Perusal of the final report shows that material has come on record to show that the complainant herein in conspiracy with other known and unknown persons had sought to falsely implicate the accused persons. The exact roles and identities of the said persons are yet to be ascertained. I deem the present case to be fit for exercise of jurisdiction u/s 155 (2) of the Cr.Pc as further investigation is to be conducted for ascertaining the exact roles and identities of the said persons. SHO, P.S concerned is accordingly, directed to conduct further investigation in terms of section 155(2) Cr.Pc. It is clarified that IO will be at liberty to arrive at his own conclusions and it is further clarified that in case commission of any other offence comes to light, the IO will be at liberty to proceed as per law. 35 There is no material before this court to take cognizance of offence u/s 376 (2) G IPC. There are no grounds to proceed further. I am satisfied with the investigation of the case. The conclusion arrived at by the IO appears to be bonafide.The cancellation is accepted and protest petition is without any merit and is dismissed. Copy of this order be sent to P.S concerned for information and necessary compliance. File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN COURT ON SHARAD GUPTA
17 OCTOBER, 2015
th
ACMM/ NE/ KKD COURTS/DELHI
State vs Cancellation 19/19
State vs Cancellation 20/19