Delhi District Court
St. vs . Shiva Kant Tiwari & Ors. on 19 August, 2011
SC no. 40/10
FIR no. 103/07
PS Inder Puri
St. Vs. Shiva Kant Tiwari & Ors.
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 40/10
FIR No. 103/07
Police Station Inderpuri
U/Section 342/366/376(g)/506/34 IPC
Received on transfer on 09.07.2010
Reserved for orders on 04.08.2011
Judgment announced on 19.08.2011
State V/s 1. Shiva Kant Tiwari,
S/o Ram Vishal Tiwari,
R/o WZ737, Village Naraina, Delhi.
Permanent Address:
Village Tendua Aalam Gethia,
PS Khakhredu, Distt. Fateh Pur, UP.
2. Raj Karan Shukla,
S/o Shri Ram Shukla,
R/o 768/46, Lekhu Nagar,
SC No. 40/10 1 of 18 D.O.J.19.08.2011
SC no. 40/10
FIR no. 103/07
PS Inder Puri
St. Vs. Shiva Kant Tiwari & Ors.
Tri Nagar, New Delhi.
Permanent Address:
Village & Post Office & PS Khakhredu,
Distt. Fateh Pur, UP.
3. Girja Shankar Pandey,
S/o Keshav Parshad Pandey,
R/o B35/3 A, G. T. Karnal Industrial
Area, Azadpur, New Delhi.
Permanent Address:
Village Kushandas Pur,
PO Jahangir Nagar, Gohura, PS
Khakhera, Distt. Fateh Pur, UP.
J U D G M E N T
1. It is the case of the prosecution that on 21.04.2007 prosecutrix (name withheld in view of dictum of Hon'ble Apex court) filed a complaint at PS Inder Puri alleging that on 01.04.2007, accused Shiva Kant Tiwari whom she knew earlier, took her to a factory at Tri Nagar where he and his associates, namely, Raj Karan SC No. 40/10 2 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
Shukla, Girja Shankar and one Ankur (not arrested) forcibly raped her. Thereafter, all the accused persons threatened the prosecutrix not to disclose the factum of rape to anyone. Due to fear, she did not tell anyone about the rape for next 20 days. On 21.4.2007, she narrated the incident to her husband who took her to the PS and got the case registered. Medical examination of the prosecutrix was got conducted. The accused persons, namely, Shiva Kant Tiwari, Raj Karan Shukla and Girja Shankar were arrested and chargesheeted after completion of necessary investigation. However, the fourth culprit Ankur could not be apprehended.
2. After supplying copies to the accused persons as per law, arguments on charge were heard. After due deliberation, charge under Sections 342/376(g)/506/34 IPC was framed against all the accused persons. A separate charge U/s 366 IPC was framed against accused Shiva Kant Tiwari. On being served with charge, all the accused persons pleaded not guilty and claimed trial.
3. Prosecution was called upon to adduce evidence to establish its case as per law. 18 witnesses were tendered towards SC No. 40/10 3 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
prosecution evidence. On conclusion thereof, statements of accused persons were recorded under Section 313 Cr.P.C., wherein they claimed that they had contributed and given a loan of Rs.10,000/ to the prosecutrix for purchasing a plot in Haridas Colony. On their demand for repayment of loan, she implicated them in this false case to avoid payment.
4. PW1 is the prosecutrix. PW2 HC Satbir, the then Duty Officer had recorded the FIR Ex. PW 2/A. PW3 Gautam Tayal is the owner of the factory where the incident allegedly took place. PW4 Ct. Hari Ram, PW 5 Ct. Raj Kumar, PW6 Ct. Lakhvinder Singh, PW8 HC Vijay Kumar and PW9 Ct. Kawar Singh had joined the investigation with the IO. PW7 Dr. Praveen Kumar had prepared the MLC Ex. PW 7/A of the prosecutrix. PW10 HC Kishan Pal and PW18 ASI Krishan Pal were, the then MHC(M)s, with whom the case property was deposited on different dates. PW11 Dr. Meenu Choudhary had prepared the MLCs of accused Shiva Kant Tiwari, Girja Shankar Pandey and Raj Karan Shukla, Ex. PW 11/A, Ex. PW 11/B and Ex. PW 11/C respectively.
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The samples of blood, semen and pubic hair of the accused persons were handed over by Dr. Meenu Choudhary to the IO which were seized vide seizure memos Ex. PW 11/A1, Ex. PW 4/B and Ex. PW 4/B respectively. PW12 Sh. Gautam Manan, Ld. MM had recorded the statement of prosecutrix U/s 164 Cr. P. C., Ex. PW 12/B. PW13 Suresh Kumar Mishra is the husband of prosecutrix. PW14 Dr. Rajeev Sood had conducted the potency tests of the accused persons and given his opinion that all the accused persons were capable of performing sexual intercourse, on their MLCs, Ex. PW 11/C, Ex. PW11/B and Ex. PW14/D. PW15 SI O. P. Meena is the initial IO. PW16 WASI Satyawati is the main IO. PW17 Dr. R. K. Mishra, Radiologist, proved the ultrasound report Ex. PW 17/A of the prosecutrix.
5. The prosecutrix as PW1 testified in the court that on 01.04.2007 in the afternoon when she was present at her house, accused Shiva Kant Tiwari came there and took her to show a girl as the prospective bride for her son. She was taken to factory ahead of Tri Nagar where two more persons were already present. They SC No. 40/10 5 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
were introduced to her by accused Shiva Kant Tiwari as Pandey, Jija of Shiva Kant Tiwari and other one as Shukla. When the prosecutrix asked accused Shiva Kant Tiwari about the girl, he offered her lunch. She accepted and had food there, whereafter accused Shukla and Shiva Kant Tiwari went out of the room. Pandey bolted the door of the room from inside and raped her. He went out and one fat and dark complexioned person came inside and raped her. Thereafter she was raped by other accused Shukla Tiwari and then again by accused Pandey. At about 6 pm she was brought downstairs and all the accused persons threatened her not to disclose about the incident to anyone lest she and her family members would be killed. The accused Shiva Kant Tiwari then brought her to Tri Nagar on his bicycle and from there she came home in a public transport bus route no. 78. Next 15 days she was in a precarious condition and did not complain to anyone about the incident. One day on enquiry of her husband about her sickness, she disclosed all the facts to him. He took her to PS where on her complaint, case was registered. She was taken to hospital where she SC No. 40/10 6 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
was hospitalized and the police apprehended the accused persons in her absence. She was then cross examined by Ld. Addl. PP with permission of the court on the ground that she was resiling from her previous statement made to the police. On being led by Ld. Addl. PP, she admitted that her statement under Section 164 Cr.P.C. was also recorded by Ld. MM and the name of the dark complexioned fat person was Ankur. She further accepted that on 22.04.2007 she had pointed out the room at second floor of the factory where she was raped and that on her identification, accused Girija Shankar Pandey, Raj Karan Shukla and Shiva Kant Tiwari were arrested.
6. The prosecutrix was then subjected to detailed cross examination by Ld. Defence Counsel wherein numerous material discrepancies striking at the very root of prosecution case cropped up. The prosecutrix could not give her exact age in cross examination but claimed that she got married at the age of 15 years (not 20 years) and her eldest son is about 25 years old at present. She was contradicted by her husband who asserted that prosecutrix was married at the age of 20 years (and not 15 years). The SC No. 40/10 7 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
prosecutrix then averred that she has been residing in Delhi with her family for 1617 years but she does not know anything about areas of Delhi but still she could tell police that she was taken by accused Shiva Kant Tiwari to a factory at Tri Nagar. She further stated that on the day of incident she was present at home with her husband.
7. In crossexamination, prosecutrix replied that accused Shiva Kant Tiwari was a coworker of her husband and was primarily his friend. She knew him only as acquaintance of her husband. In such scenario it seems improbable that on 01.04.2007 she readily accompanied him, that too on his bicycle for seeing some girl, leaving her husband at home. This is particularly so in view of her admission that before that day she had never gone with Shiva Kant Tiwari to any place and he was not close to her. In the usual course of conduct, in such background, either husband of the prosecutrix or her son and not she should have accompanied accused Shiva Kant Tiwari to see the girl as bride for her son. Here it may be noted that 01.04.07 was a Sunday and would have been a holiday for all her three sons. Though the prosecutrix stated that SC No. 40/10 8 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
her youngest son had gone to school on the day of incident but in subsequent part of her cross examination, she could not deny that 01.04.2007 being a Sunday, the school was closed. In presence of four male members at home, obviously the lady of the house would not have gone alone with some casual friend of her husband with whom she had never ventured out previously.
8. Another glaring fact which creates a suspicion as to claim of prosecutrix that she had accompanied the accused to factory on 01.04.07 is her admission that before going out with the accused she or her husband did not enquire at all from accused Shiva Kant Tiwari about particulars of the girl for whom he was taking the prosecutrix on that day. If the girl was a future bride for her son, she should definitely have made enquiries from the accused about her name, age, parentage, education etc. as a preliminary screening to ascertain that girl was suitable for her son before proceeding to physically see her. The fact that prosecutrix and her husband did not ask even a single question from Shiva Kant Tiwari in this regard suggests that the story put forth by the prosecutrix is SC No. 40/10 9 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
false being an after thought.
9. Further, the prosecutrix in her cross examination averred that she did not have any knowledge about places in Delhi as she never went anywhere but surprisingly on being taken by accused Shiva Kant Tiwari she could immediately know that the place where she was taken was "Tri Nagar". Not only this, she even took the police to that place and pointed out the spot of alleged occurrence which considering her averment, is highly doubtful. When asked about the name, number, location and other details of the factory in question, the prosecutrix drew a complete blank. She replied that she did not notice any board outside the factory nor saw its number. She did not observe what was there on the left, right or rear side of factory. She could not say if there was any road on left and right side of factory. She did not even know whether the main gate of the factory was on the left side, right side or in the centre. She could not tell the exact number of floors in the said factory. Had she been actually taken to any such factory obviously her replies would have been more precise and definite and she would SC No. 40/10 10 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
have been aware of atleast some of the details.
10. In her examination in chief, the prosecutrix testified that names of two persons already present in the factory were told to her by Shiva Kant Tiwari implying that she did not know them earlier but in her cross examination she admitted that the accused Raj Karan Shukla had visited her house twice with accused Shiva Kant Tiwari before the incident, meaning thereby, she already knew him well. It was also stated by the proscutrix in her cross examination that the name of fat dark person who had also raped her on that day was told to her by the police but in contrast the police officials, in their cross examination, claimed that it was the prosecutrix who disclosed the name of said person as Ankur. The prosecutrix then claimed that she had never visited the house of accused Shiva Kant Tiwari or the other accused persons and was not aware of their address but again as per charge sheet it is the prosecutrix who had taken the police officials to the residence of the accused persons and got them arrested. This again falsifies her sworn deposition and creates a serious doubt as to her veracity.
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11. Even the version of the prosecutrix in respect of the main incident of rape does not inspire any confidence. She claims to have been raped five times in rapid succession for about 56 hours despite the stiff resistance purportedly offered by her to the assailants. However she still sought to convince the court that after such a traumatic (both physically as well as psychologically) experience, she first sat on bicycle of the accused for some distance and then herself boarded a bus and calmly returned home. Even when she reached home, she appeared normal to her husband and he did not notice any injuries on her face or body. Her husband in his cross examination replied that in the following days also she did all the household works in normal course. She did not go to any Doctor nor took any medical help. It is utterly unbelievable that on being so vigorously sexually assaulted five times by fully developed four persons, the prosecutrix did not sustain any physical injury nor did she feel any major discomfort. Moreover, as per statement of prosecutrix though there was a cot lying in the room where she was raped but still the accused persons had SC No. 40/10 12 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
ravished her on the floor. This is again not in consonance with normal human conduct and does not appeal to reason. Besides this, if proscutrix was raped on the floor, she should have sustained all the more injuries which actually she did not have. After gang rape, prosecutrix claims to have gone with accused Shiva Kant Tiwari on his bicycle upto bus stop. In cross examination she admitted that they passed through crowded areas and there were public and police, both, present on the way. Even on seeing the police officials, she did not make any complaint against the aggressors nor did she try to get accused Shiva Kant Tiwari apprehended there itself. Despite being specifically questioned in that context, prosecutrix failed to offer any reasonable explanation for her such conduct.
12. The prosecutrix, in her statement U/s 164 Cr. P. C. stated that she did not inform her husband about rape for 20 days after the incident because of threat advanced by the accused persons. In cross examination she admitted that after the incident, none of the accused persons contacted her personally or on phone SC No. 40/10 13 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
or renewed their threat in any manner. She had three sons besides her husband at her side. Two of her sons were grown up and were gainfully employed. It being so, it is unfathomable as to why she continued to be under threat of the accused persons for 20 long days and did not utter even a whisper to anyone about the incident. There is nothing on record to show that accused persons were armed at any point of time or had any previous criminal record causing real apprehension in mind of prosecutrix that they could actually harm her and her family. Interestingly in her complaint to the police, the prosecutrix stated that she had informed her husband about the incident because her conscience was pricking her not to be silent any more implying that she was in reality not scared of accused persons. During her testimony in the court, she came up with an entirely new version that she was precariously sick after the incident due to which she kept mum. The totally diverse stand taken in complaint, statement U/s 164 Cr. P. C. and her testimony in court by prosecutrix is unaccounted and unexplained. The delay of 20 days in lodging of FIR is also not reasonably justified. The prosecutrix SC No. 40/10 14 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
was admittedly a fully grown up married woman aged about 4550 years having a family comprising of her husband and three sons. It is unacceptable that she would have been so scared of mere verbal threats of accused persons that she elected to conceal the incident for full twenty days.
13. Shri Suresh Kumar Mishra, the husband of the prosecutrix was examined as PW13. His testimony is also at variance with deposition of the victim reinforcing the doubt as to truthfulness of the case as set up by the prosecutrix. PW13 affirmed on oath that his wife i.e. prosecutrix informed him about the names of all the accused persons including the name of fourth person as Ankur on 21.04.2007 itself whereas plea of prosecutrix is that she did not know the full names of accused Pandey and accused Shukla till their arrest and she did not know the name of fourth person as Ankur at all. Infact PW13 went to the extent of saying that he had given the name of fourth person as Ankur even to the police in his complaint which is actually not the case. PW13 further stated that on 01.04.07 when his wife returned home in the evening, SC No. 40/10 15 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
she appeared disturbed but still he did not make any detailed enquiry from her about the cause of her disturbance nor tried to find out the actual facts which again appears to be incredible. PW13 then averred that on 01.04.07 he was ill and was not even able to move. If statement of PW13 is taken as correct then there was no justification for his wife to have left him alone at home and to go with his friend to see some imaginary girl about whom they did not know anything at all. It is not the case of either prosecutrix or her husband that they were actively searching for a suitable girl for matrimony of her son or that they had ever requested accused Shiva Kant Tiwari to suggest any match for their son. If they were not desperately looking for a bride for their son, there was no urgency for the prosecutrix to have left her ailing bed ridden husband alone at home and to go out with accused Shiva Kant Tiwari to see some girl. PW13 further accepted in his cross examination that after return of his wife, he did not enquire about the girl that she was supposed to see during her visit with accused Shiva Kant Tiwari. This again suggests that victim did not go anywhere on that day to SC No. 40/10 16 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
see any girl because had she actually gone to meet the prospective bride for their son, PW13 would have certainly made detailed enquiries from the prosecutrix about the name, parentage, qualification, physical appearance, family etc. of the said girl after he return. The above detailed numerous discrepancies and material lacunae in the statement of prosecutrix and her husband are vital in nature and shake the very basis on which edifice of prosecution case is erected.
14. Consequently, I am satisfied that prosecution has failed to prove its case as per law. The accused persons are accordingly hereby acquitted. Their Bail bonds and surety bonds stand cancelled and their sureties are discharged. Original documents, if any, of sureties be returned and endorsement, if any, on the documents be cancelled.
15. The accused persons are directed to furnish bail bonds in sum of Rs. 20,000/ each with one surety each in the like amount in terms of Section 437A Cr.P.C. undertaking to appear before Appellate Court as mandated therein. The accused persons request SC No. 40/10 17 of 18 D.O.J.19.08.2011 SC no. 40/10 FIR no. 103/07 PS Inder Puri St. Vs. Shiva Kant Tiwari & Ors.
that they are poor people and cannot afford fresh sureties and they may be released on personal bond as they undertake to appear before Appellate Court in terms of Section 437A Cr.P.C. as and when required. In circumstances keeping in view the status of accused persons, they are permitted to furnish personal bonds only. Personal bonds are filed and accepted for a period of six months as provided under Section 437A Cr.P.C.
16. File be consigned to record room.
Announced in the open
court on 19.08.2011 (MAMTA TAYAL)
ADDL.SESSIONS JUDGE
DWARKA:NEW DELHI
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