Delhi District Court
State vs Shyamveer//Sc No.57504/16//Fir ... on 6 March, 2017
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE/SPECIAL FAST TRACK COURT:ROHINI
DELHI
Sessions Case No : 65/15.
CIS No. : 57504/16.
STATE
VERSUS
SHYAMVEER
S/O. SHRI RANGEE LAL,
R/O. A63, GALI NO.4,
MUKUNDPUR, PARTI,
DELHI.
FIR No :209/15.
Police Station : BHALSWA DAIRY.
Under Sections :376/376(D)/452/506/34 IPC.
Date of Committal to Sessions Court :19.05.2015
Date on which Judgment reserved :27.02.2017
Date on which Judgment announced :06.03.2017
STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 1 OF 13
J U D G M E N T
1.In the present case, charge was framed against accused on 10.07.2015 Ld. Predecessor in respect of offences u/s.452 r/w. Section 34 , Section 376 D and Section 506 IPC with the allegations that on 28.03.2015 at about 4:30 a.m., at A28, Gali No.4, Vir Bazar road, Mukand Pur, Part1, Bhalswa Dairy he in furtherance of his common intention with coaccused Ravinder (juvenile) committed house trespass by entering the house of prosecutrix and committed gangrape upon her, without her consent and also criminally intimidated the prosecutrix to kill her child and husband, if she disclosed the incident to anyone.
2. Accused pleaded not guilty to the said charge and claimed trial.
3. To bring home guilt of the accused, prosecution has examined twelve (12) witnesses.
4. PW1 HC Vinod was MHC(M) at PS - Shahbad Dairy. He has deposed that on 04.04.2015, 10.04.2015 and 25.04.2015, W/SI Vidya Rawat handed over to him some parcels for depositing in the malkhana. He made entries in that regard in register no.19, which are Ex.PW1/A to Ex.PW1/C respectively. He has further deposed that on 08.04.2015, on the instructions of IO, he handed over one sealed parcel with the seal of hospital, alongwith sample seal to Ct. Mahesh for depositing the same in FSL, vide RC, Ex.PW1/D. Ct. Mahesh deposited the parcels in FSL and obtained acknowledgment receipt, Ex.PW1/E. He (PW1) has further STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 2 OF 13 deposed that on 22.04.2015 on the instructions of IO, he handed over another sealed parcel to W/SI Vidya Rawat vide RC, Ex.PW1/F and W/SI Vidya Rawat obtained the acknowledgment receipt, which is Ex.PW1/G.
5. PW1 has further deposed that on 29.04.2015 on the instructions of the IO, he handed over another sealed parcel to Ct. Jaiveer vide RC, Ex.PW1/H for depositing the same in FSL. Ct. Jaiveer deposited the pullandas in FSL and handed over the acknowledgment receipt, Ex.PW1/I to him.
6. PW2 Dr. Saurabh Singh has initially examined the prosecutrix, vide MLC, Ex.PW2/A. Thereafter, she was referred to Senior Gyane for further examination.
7. PW3 Dr. Shweta Sinha has conducted the gynecological examination of the prosecutrix on 04.04.2013, vide Portion 'Y' to 'Y1' on MLC, Ex.PW2/A .
8. PW4 HC Mohar Singh was the duty officer on 04.04.2017 at PS - Bhalswa Dairy. He got registered the FIR, Ex.PW4/A, on the basis of Tehrir, handed over to him, by W/SI Vidya Rawat.
9. In crossexamination by ld. Defence counsel he (PW4) has denied that the FIR was manipulated at the instance of IO .
10. PW5 is W/Ct. Deepak Kumari. She has joined the investigation with W/SI Vidya Rawat and Ct. Anuj and took the prosecutrix to BJRM Hospital for her medical examination. After medical examination, the doctor handed over one sealed box, sealed with STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 3 OF 13 the seal of Hospital alongwith sample seal to W/SI Vidya Rawat, which were taken into possession by her vide seizure memo Ex.PW5/B. Thereafter, they went to Mukundpur from where, accused Shyamveer, present in court, was arrested vide, memo Ex.PW5/B. The personal search of accused was conducted vide memo Ex.PW5/C. IO has prepared the site plan at the instance of the prosecutrix. Thereafter, they came back to the PS. Accused was put inside the lock up. The case properties were deposited in the malkhana. Her statement was recorded by the IO.
11. In crossexamination by ld. Counsel for accused, PW5 has denied that she did not join the investigation, in the manner, she deposed. She has denied that accused was not arrested, in the manner, she deposed or that the signatures of the accused were taken on blank papers and same were converted into incriminating documents.
12. PW6 Dr. Gopal Krishna has deposed that on 25.04.2015 at about 2:45 p.m. JR, Dr. Jagdeep medically examined the patient Shyamveer under his supervision, vide MLC, Ex.PW6/A.
13. PW7 Dr. Jagdeep has deposed that on 25.04.2014 under the supervision of Dr. Gopal Krishna, CMO, he medically examined the accused Shyamveer S/o. Rangeela vide MLC, Ex.PW6/A.
14. PW8 Dr. Munish Wadhawan has conducted the Potency Test of accused vide MLC Ex.PW8/A.
15. PW9 Ms. Sadhika Jalan, ld. MM has recorded the statement of the prosecutrix u/s. 164 Cr.P.C., which is Ex.PW9/B.
16. PW10 is the prosecutrix. She has deposed that in the year STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 4 OF 13 2015, she alongwith her husband and son used to reside at A28, Gali No.4, Veer Bazar Road, Mukundpur, Delhi. Her husband used to sell vegetables at Kamla Nagar. He used to leave the house at about 4:00/5:00 a.m. and come back at about 10:00/11:00 p.m. On 12.03.2015 Ravinder, who used to tell his name as Shyamvir entered her house and committed galat kaam with her, without her consent. Ravinder threatened her not to disclose the incident to anyone, otherwise, he would kill her son. She did not disclose that fact to anyone, due to fear. After getting some courage, she disclosed the incident to her husband, who on hearing the incident, came under tension. She alongwith her husband went to PS and lodged the report Ex.PW10/A. Police took her to BJRM Hospital and got conducted her medical examination. Her cloths were also taken into possession by the doctor. Her statement u/s. 164 Cr.P.C. was also recorded before ld. MM., which is Ex.PW9/B. Accused Ravinder @ Shyamvir, who committed rape upon the prosecutrix is not present in Court. The person, present in the Court, is Shyamveer, who is the son of her landlord and police has wrongfully arrested him by taking him Ravinder @ Shyamvir.
17. Since, the prosecutrix has not supported the prosecution story, she has been cross examined by ld. Addl. PP, wherein she has deposed that in Ex.PW10/A, Ravinder and Shyamveer have been separately named. The name of her landlord was Rangee Lal, who was having two sons. The name of one of his sons was Shyamveer and the name of other son, she does not recollect.
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18. She has further deposed that she had not stated in her statement, Ex.PW10/A that on 28.03.2015 at about 4:30 pm Ravinder alongwith his associate Shyamveer, who was the son of her landlord, came to her room and they one by one committed galat kaam with her and that Shyamveer, son of her landlord, threatened to kill her husband and son, if she disclosed the incident to her husband.
19. She has further deposed that she had stated in her statement u/s. 164 Cr.P.C., Ex.PW9/B that on 28.03.2015, two persons committed rape upon her and that her husband had gone to his job and at about 4:00/4:30 a.m., one Ravinder, who used to reside in her neighbourhood and Shyamveer who was the son of her landlord came to her room and both committed Jabardasti with her and threatened her that if she disclosed the incident to anyone, they would kill her child and her husband. She does not recollect, on whose asking she got prepared the affidavit Ex.PW10/B. Her husband knows Shyamveer as son of his landlord, Rangee Lal.
20. PW10 has not identified her signature on the personal search memo of accused Ex.PW5/C and categorically denied that the personal search memo of accused, Ex.PW5/C, bears her signature at point 'C' and she intentionally not identified her signature at point C. She has denied that she knows accused Shyamveer, present in court, and he was arrested by police on her identification. She has further denied that she is concealing true and actual facts, in order to save the accused. She has denied that she has compromised the matter with the accused. She has STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 6 OF 13 further denied that she has been won over by the accused.
21. In crossexamination by ld. Counsel for accused, she has deposed that she was the tenant of landlord Rangee Lal. The person Shyamveer, present in the court, who is the son of her landlord Rangee Lal, did not come to her tenanted room. She has admitted that she made the statement voluntarily and without any threat, pressure, coercion or inducement. The person, Shyamveer, who had committed galat kaam with her, is not present in Court. She has admitted that affidavit, Ex.PW10/B, was filed by her in court, after getting it prepared, from her advocate.
22. PW11 is Naresh. He is the husband of the prosecutrix. He has also not supported the prosecution story. He has deposed that in the year 2015, he alongwith his wife used to reside at H.No.A28, Gali No.4, Vir Bazar Road, Mukundpur, Delhi. He is a vegetable vendor. Accused Shyamveer, present in the court, was the son of his landlord.
23. On 28.03.2015, he went to his job. At about 10:00 p.m. He came to his house. His wife told him that Ravinder @ Shyamveer committed rape upon her. On 04.04.2015 he alongwith his wife went to the police station, where the statement of his wife Ex.PW10/A, was recorded. After recording her statement she was taken to BJRM Hospital, where she was medically examined. Thereafter, accused was arrested from his house. His personal search was conducted. His statement was recorded by the IO.
24. In the crossexamination by ld. Addl. PP, PW11 has denied STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 7 OF 13 that arrest memo Ex.PW5/B and personal search memo Ex.PW5/C of accused respectively bear his signature at point 'C'.
25. In crossexamination by ld. Counsel for accused PW11 has deposed that accused, present in court, had not committed rape upon his wife. He has volunteered that he came to know, later on, that son of his landlord, Shyamveer was lifted by the police. He has further deposed that Ravinder, who used to reside in his gali had committed rape upon his wife.
26. Since, PW11 has improved his version regarding the identity of accused he has been reexamined by ld. Addl. PP, wherein he has deposed that Ravinder @ Shyamveer, who used to reside in his locality, had committed rape upon his wife. He has volunteered that accused Shyamveer has not committed any rape upon his wife.
27. PW12 is Ct. Anuj Kumar. He has joined the investigation of the case alongwith W/Ct. Deepak Kumari and W/SI Vidya Rawat and took the prosecutrix to BJRM Hospital for her medical examination and was also present at the time of arrest of accused.
28. In crossexamination by ld. Counsel for accused PW13 has denied that he did not join the investigation and all the proceedings were done by the IO in the PS.
29. Statement of accused Shyamveer has been recorded separately, wherein he had denied the allegations of the prosecution. He has submitted that he is innocent. He has been falsely implicated in the case by the police by taking him Ravinder. His name is Shyamveer S/o.
STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 8 OF 13 Rangee Lal. He does not know the prosecutrix and never met her.
30. Accused has preferred not to lead any evidence in his defence.
31. I have heard arguments from ld. Counsel for accused, who has prayed for acquittal of the accused by submitting that prosecutrix and her husband have not supported the prosecution story and FSL result is in favour of the accused.
32. On the other hand, ld. Addl. PP has submitted that, testimony of the Pws are cogent and reliable. The prosecutrix and her husband initially supported the prosecution story, but, later on they have been won over by the accused.
33. It is settled law that prosecution has to prove its case beyond reasonable doubt. In Balraj Singh Vs. State of Punjab, 1976 Cri. LJ 1471 (DB) (Punj), it has been held that:
"The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on the record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole the prosecution may be true but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 9 OF 13 reliable and unimpeachable evidence before an accused can be convicted."
In Mousam Singha Ray & Ors. Vs. State of West Bengal, 2003 (3) J.C.C. 1358, it was held by the Supreme Court that:
"The burden of proof in a criminal trial never shifts, and it is always the burden of prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. The law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone."
34. In the present case, out of 12 witnesses, PW10 is the star witness of the case being the prosecutrix. However, she has not supported the prosecution story either in examinationinchief or cross examination by ld. Addl. PP. She has categorically deposed that one Ravinder @ Shyamveer had committed galat kaam with her and threatened her not to disclose the incident to anyone, otherwise, he would kill her son. She has categorically deposed that accused Ravinder @ Shyamveer, who had committed rape upon her is not present in Court. She has categorically deposed that the person, present in the court, is the son of her landlord and police wrongly arrested him by taking him Ravinder @ Shyamveer.
35. In crossexamination by ld. Addl. PP also PW10 has denied the contents of her statements, Ex.PW10/A, she has not identified her signatures on the personal search memo of accused Ex.PW5/C. She has STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 10 OF 13 categorically denied that accused Shyamveer, present in court, was arrested by police on her identification. She has denied that she has concealed the true and actual facts in order to save the accused and she has been won over by the accused or that she has compromised the matter with the accused.
36. In crossexamination by ld. Counsel for accused she has admitted that accused Shyamveer, present in court, did not come to her house and the person Shyamveer, who had committed galat kaam with her, is not present in the Court.
37. Moreover, in the Affidavit, Ex.PW10/B also PW 10/prosecutrix has stated that Ravinder, who was the friend of her husband came to her house on 28.03.2015 and tried to commit rape upon her, but in the meantime, son of her landlord came to collect rent and he (son of landlord) saw them (prosecutrix and Ravinder) and, after that, he got angry and started abusing them. He (son of landlord) also threatened to vacate the house as they (she and her husband) had not paid the rent for several months. In the evening, when her husband came to the house, she narrated the whole incident and also told that Shyamveer had threatened her to vacate the house. Thereafter, they informed the police, who told her to name the accused Shyamveer, otherwise, she would be implicated in the case. After some days, she came to know that Shyamveer was in Jail, without doing any wrong to her. She visited the police station many times and requested them to record her true statement but in vain. On 16.06.2016, she filed an application to DCP STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 11 OF 13 North West and narrated true story.
38. Thus, the affidavit Ex.PW10/B is also in favour of accused.
39. Moreover, the husband of the prosecutrix i.e. PW11 has also not supported the prosecution story. He has deposed that on 28.03.2015 his wife told him that Ravinder @ Shyamveer had committed rape upon her. In crossexamination by ld. Addl. PP, he has denied that arrest memo Ex.PW5/B and Personal Search memo of accused Ex.PW5/C bear his signature at point 'C'. In crossexamination by ld. Counsel for accused he has categorically admitted that accused Shyamveer, present in court, had not committed rape upon his wife and it was accused Ravinder, who used to reside in the gali, had committed rape upon his wife.
40. Moreover, the FSL result, lying on record, which is per se admissible u/s. 293 Cr.P.C. is also in favour of accused as semen could not be detected on the breast swab, pubic hair, cervical mucus collection and washing from vagina of the prosecutrix.
41. Moreover, as per the DNA analysis no Male DNA profile could be generated from the swab of cervical mucus collection, vaginal secretion and rectal examination of the prosecutrix.
42. In the present case, the prosecutrix has supported the prosecution case in her statement u/s. 164 Cr.P.C. Ex.PW9/C. It is significant to note that statement u/s. 164 Cr.P.C. is not substantive piece of evidence and an accused cannot be convicted only on the basis of that statement and the statement can be used only for limited purpose, as is STATE VS SHYAMVEER//SC NO.57504/16//FIR NO.209/15//PS BHALSWA DAIRY Page No. 12 OF 13 provided u/s. 145 of the Indian Evidence Act. (See Criminal Appeal No.1368/15, titled as Rajesh Vs State, decided on 01.08.2016 by Hon'ble Delhi High Court).
43. Since, star witness of the case i.e. prosecutrix and her husband have not supported the prosecution story and FSL Result is also in favour of accused, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against accused.
44. Accordingly, accused is acquitted of the offence, he was charged with. His personal bond and surety bond are hereby cancelled. His surety is discharged.
45. However, in term of Section 437 (A) Cr.PC, accused has furnished fresh personal bond in the sum of Rs.10,000/ with one surety of the like amount, which are accepted for a period of six months with the directions to appear before higher court, in the event, he receives any notice of appeal or petition against this judgment.
File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on this 06th of March, 2017 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
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