Delhi District Court
State vs . 1. Vijay Bhatia @ Goldy S/O Sh. Raj Kumar on 31 October, 2012
Page No. 1
IN THE COURT OF SH. YOGESH KHANNA,
ASJ-02 : SAKET COURTS: NEW DELHI
Date of Institution : 10.01.2011
Judgment reserved for orders on : 15.10.2012
Date of pronouncement : 31.10.2012
SC No. : 02/2011
FIR No. : 198/2010
U/s. : 376(2)(g) & 323/34 IPC
PS : Mehrauli
State V/s. 1. Vijay Bhatia @ Goldy S/o Sh. Raj Kumar
2. Neeraj Bhatia S/o Sh. Raj Kumar
Both R/o : R/o H. No. 156, Ward No. 2,
Gharwal Colony,
Mehrauli, New Delhi.
JUDGMENT:
1. The investigation started on 01.06.2011 on registration of DD No. 48A at PS Mehrauli, New Delhi at about 12.56(night). It was handed over to ASI Satyavir Singh, who reached flat no. 10, Anupam Enclave, Saidulajab, New Page No. 2 Delhi. It belong to one Sonu Punjaban. ASI Satyavir found Ms. Nagma Khan and Ms. Ruksana Sheikh in an injured condition in the said flat. Both were taken to AIIMS hospital for their medical check up. Later the prosecutrix Ms. Nagma was brought to the police station where she made the following complaint :
" I am resident of C-1/21, 2 nd floor, Sivalik, Malviya Nagar, New Delhi. On 31.5.2010 at about 11pm, I received a call from Vijay @ Goldy who abused me. When I reached at his flat at Anupan Enclave, the said Goldy@Vijay and Neeraj, were present and they started abusing me. Vijay @ Goldy had beaten me and I fell on the floor. Vijay @ Goldy then lay upon me, whereas Neeraj caught hold of my hands and pressed my mouth. Then Vijay @ Goldy raped me. I telephoned at number 100. Vijay @ Goldy ran away from the spot. When my friend Rukshana Sheikh came to Page No. 3 my rescue, Vijay @ Goldy and Neeraj had also beaten her. I disclosed these fact to a doctor at the government hospital while being medically examined. Both of them had beaten me and that Neeraj helped Vijay @ Goldy to rape me."
2. On the basis of above complaint, FIR No. 198/2010 u/s. 376/323/34 IPC was registered at police station Mehrauli, New Delhi.
3. The accused were arrested. On completion of investigation, charge sheet was filed. The case was committed to the Session's Court, being a Session's triable case.
4. On 04.03.2011, charge u/s. 376(2)(g)/ 323 IPC was framed against the accused. They pleaded not guilty and claimed trial.
5. The prosecution examined 11 witnesses in its support. The statement u/s. 313CrPC of accused were recorded thereafter.
6. Before proceedings further, it would be appropriate to state in brief, the statements made by the prosecution witnesses.
PW-1, is the prosecutrix.
PW-2, is her friend.
Page No. 4PW-3, L/Ct. Manohari deposed that on 1.6.2010, she took the prosecutrix and her friend Ruksana Sheikh to AIIMS Hospital for their medical examination. The pulandas given to her by the doctor were handed over by her to the investigating officer; seized vide memo Ex. PW-3/A. PW-4, HC Parmal Singh on 23.07.2010, took sealed pulandas from MHCM and deposited it in FSL, Rohini.
PW-5, HC Prem Singh, registered FIR No. 198/2010 Ex. PW-5/A, and recorded DD No. 48A Ex. PW-5/B. PW-6, Dr. Kamlesh Kumar, examined accused Vijay Bhatia @ Goldy vide MLC Ex. PW-6/A. PW-7, SI Vishal Singh on 23.6.2010 took accused Vijay Bhatia for his medical examination. The doctor gave him sealed pulandas along with sample seal which he handed over to the investigating officer; seized vide memo Ex. PW-7/A. PW-8, HC Rakesh Kumar, the MHCM, proved the relevant entries Ex. PW-8/A & Ex. PW-8/B of the register no. 19 qua deposit of case property. The pulandas were sent to FSL for examination vide RC No. 41/21 on Page No. 5 23.7.2010. The road certificate is Ex. PW-8/C. PW-9, SI Pratibha Sharma, the investigating officer, proved the investigation conducted by her. She recorded statement Ex. PW-1/A of the prosecutrix ; prepared tehrir Ex. PW-9/A; got the FIR registered; seized the exhibits given by the doctor vide memo Ex. PW-3/A; prepared the site plan Ex. PW-9/B; arrested accused Vijay Bhatia @ Goldy on 23.6.2010 vide arrest memo Ex. PW-9/C, conducted his personal search vide memo Ex. PW-9/D and recorded his disclosure statement Ex. PW-9/E; got him medically examined and seized exhibits given by the doctor vide Ex. PW-7/A. Another accused Neeraj Bhatia surrendered in the court on 19.07.2010 and he was arrested vide memo Ex. PW-9/F ; his disclosure statement Ex. PW-9/G was recorded; she sent exhibits to FSL, Rohini and proved FSL report as Ex. PW-9/H and Ex. PW-9/H1.
7. After the examination of these witnesses, the statement of accused were recorded and they alleged Page No. 6 false implication. They produced DW-1 Preeti Arora as their defence witness, who rather deposed that on 31.5.2010 , she was working as a maid servant in the flat of Ms. Sonu Punjaban and that at the time of incident there were 9-10 boys and 3 -4 girls namely Neha, Neelu, Nidhi, Geeta and other servants present in the flat, when prosecutrix started abusing accused Vijay Bhatia @ Goldy and raised her hand to slap accused Vijay Bhatia and later left saying that she would teach him a lesson. Even Rukshana, the friend of prosecutrix was present with her.
8. Since on perusal of case history, while hearing arguments, I found a letter and statement given to the investigating officer, stating inter-alia, that no incident of rape ever happened in the flat. Despite such letter and a statement being placed in the police file, were not produced by the investigating officer, during her evidence. Hence to bring the truth, the investigating officer PW-9, on 09.10.2012 was reexamined, wherein she deposed that such letters Ex. PW-9/X-1 and Ex. PW-9/X-2 were not filed due to inadvertence and also Page No. 7 due to enmity between the parties.
9. On the basis of above evidence, the Ld. Addl. PP prayed for the conviction of the accused person and whereas the accused claimed acquittal on grounds of contradictions in the statement of PW-1 and her friend PW-2.
10.To find out the truth, let me examine the depositions of the prosecutrix and her friend.
PW-1, the prosecutrix, deposed that one day at about 11.30pm, she and her friend PW-2 were roaming in the area of Saket in her car. She received a telephone call from accused who abused her on telephone and after some conversation, the accused called her to their flat in a friendly manner. The prosecutrix and her friend PW-2 reached at the flat. After some conversations, there arose a quarrel between two girls and the accused person and then both the accused started beating them with iron rod. Accused Vijay Bhatia Page No. 8 forcibly removed her clothes in the presence of his associates and committed rape upon her. Another accused Neeraj Bhatia also caught hold of her during the rape and had also beaten her. When her friend PW-2 came forward to save her, she was also beaten by the accused person. PW-1 was slapped and her hairs were pulled by both the accused. When she tried to contact police at no. 100 both the accused ran away. Police reached the spot and her statement Ex. PW-1/A was recorded. She was taken for her medical examination, where her undergarments were seized. She identified her undergarments as Ex. P-1 and P-2.
During her cross examination, she was confronted with her statement Ex. PW-1/A qua the fact that the associates of accused person were present in the flat or that she was slapped or her hairs were Page No. 9 pulled. She deposed that statement Ex. PW-1/A was not written by her husband but was written by her friend PW-2. She denied of giving different facts to the doctor who had examined her. She admitted that case FIR No. 344/06 and No. 309/11 of PS Civil Line and of PS Saket, under ITP Act are pending against her. She also admitted that she was declared a proclaimed offender and was arrested by PS Mehrauli in case FIR No. 344/06. She further deposed that accused person are relatives of her friend Nisha but she had no knowledge if the Nisha is also involved in sex racket or in cases of ITP Act. She deposed that the flat where the incident took place belongs to one Ms. Sonu Punjaban, sister in law of Nisha and that during the incident of rape, 10-12 person were present in the flat along with Page No. 10 Ms. Sonu Punjaban. In fact, Ms. Sonu Punjaban had instigated the accused to commit rape upon her. She denied if there were any other girl in the flat and she did not see Kashish, Anjali and Preeti in the said flat at that time. She deposed that accused Vijay Bhatia had raped her by using a condom. She denied that she had come to the said place after attending a customer at a hotel, though she admitted of having gone to a hotel for taking food. She denied that she has falsely implicated accused to teach them a lesson.
Similarly PW-2 deposed saying that PW-1 received a call and they both reached the flat of Ms. Sonu Punjaban, where several boys were present.
Accused Vijay @ Goldy did jabardasti with the prosecutrix and that PW-1 was made naked and was raped by accused Vijay Bhatia @ Goldy forcibly, by using a Page No. 11 condom. PW-2 tried to save the prosecutrix but was beaten by the accused. Police was called but accused ran away.
During her cross examination, she was confronted with her statement Ex. PW-2/DA of the fact that PW-1 was made naked and was raped by accused Vijay Bhatia by using a condom, though, it was mentioned in Ex. PW-2/DA that prosecutrix was raped. She denied of pendency of cases under ITP against her at PS Preet Vihar, though she admitted of being involved in case FIR No. 147/2009, PS Saket under ITP Act , wherein she pleaded guilty and paid a fine of Rs. 1500/-. She admitted of a case against her at PS Preet Vihar, Delhi, wherein she gave her name as Nidhi. She is on bail in case of PS Preet Vihar and her surety is Page No. 12 the maternal uncle of accused Vijay@ Goldy. She denied of running a sex racket with prosecutrix.
A bare perusal of the statement made by both these witnesses would show that both PW-1 & PW-2 are involved in cases under Immoral Traffic Act, so much so, the prosecutrix PW-1 was even declared a proclaimed offender in one of cases pending against her and has suffered imprisonment. It is also admitted that both PW-1 and PW-2 were roaming in the area of Saket on the night of incident at about 11.30pm when they were called by the accused person at the flat of Sonu Punjaban. They both went there and it is alleged that accused Vijay Bhatia, using a condom, committed rape upon the prosecutrix(PW-1) and whereas accused Neeraj caught hold of her. An effort of PW-2 to save PW-1 was floored by the accused person. However, both the prosecutrix and PW-2 admitted that several person and Ms. Sonu Page No. 13 Punjaban were present in the flat, at the time of incident.
Now if so many person including girls, were present in the flat, would it be possible for the accused to rape a woman, by using a condom, as alleged, in the presence of all such person.
Here, I would also like to refer to MLC Ex. PW-10/A of the prosecutrix (PW-1) wherein alleged history of sexual assault and manhandling; pulling of her hairs and being forcibly raped in front of servants, is given. However, it is alleged that she was raped by accused Neeraj and not by accused Vijay Bhatia @ Goldy, who only manhandled her. However, blunt injuries on both her lower limbs, arms and hands, scratches and injuries on her face and neck were found on the person of PW-1.
Such a statement, as contained in MLC Ex. PW-10/A, was given by the prosecutrix(PW-1) before a doctor of a Govt. Hospital, is at total variance with her statement given to the police and her deposition in the court, wherein she leveled charges of rape Page No. 14 against accused Vijay Bhatia @ Godly & not against accused Neeraj.
Admittedly, accused person were known to the prosecutrix from prior to the incident as they all were part of some sex racket, hence it seems strange that PW-1 would give the name of accused Neeraj, as a person who had committed rape upon her to a doctor, instead of accused Vijay Bhatia @ Godly. The doctor had no motive to record a wrong name of rapist. Further, the deposition that accused Vijay Bhatia @ Godly took out a condon, prior to rape and then be raped PW-1, in presence of 10 to 12 persons also appear to be strange.
Admittedly, such 10-12 person, including Ms. Sonu Punjaban, were never examined by the investigating officer. Why ? Rather she concealed their statement / letter Ex. PW-9/X-1 and Ex. PW-9/X-2 lying in police file and did not file it in the court, pleading that it was done inadvertently.
A question was asked to the investigating officer by the Ld. defence counsel as to if she ever made any Page No. 15 inquiry from such person, present at the spot, at the time of incident, her answer was in negative.
I fail to understand, firstly, why she did not record the statements of Ms. Sonu Punjaban or other person, present at the spot and secondly why she denied having received a letter or complaint Ex. PW-9/X1 and Ex. PW-9/X2 by Ms. Sonu Punjaban or by other girls / boys, present at the spot, at the time of incident. This creates a serious doubt on the theory of rape.
No doubt there was a quarrel between the parties, leading to a scuffle / fight between the accused person and the two ladies i.e., prosecutrix PW-1 and her friend PW-2, but the possibility of exaggeration cannot be ruled out in view of MLC Ex. PW-10/A and statements Ex. PW-9/X1 and Ex. PW-9/X2. The statement Ex. PW-9/X-1 of Ms. Kaushish, not filed earlier, aptly clarify that only scuffle took place between the parties and no incident of rape ever happened.
10.Thus, the theory of rape, in view of such contradictions and due to withholding of evidence by the Page No. 16 investigating officer, do not appear to be convincing.
11.The moot question is why such complaints Ex. PW-9/X-1 and Ex. PW-9/X-2 were never investigated or why those were withheld by the investigating officer, especially when accused have been pleading, from day one, that they had not committed rape. The job of the investigating officer is not only to see that the offender get punished, but also to act fairly. Admittedly, the incident took place in the presence of various person, including ladies, but the silence on the part of the investigating officer qua recording of their statements, create a serious doubt in the story of the prosecution, more specifically, when the prosecutrix and PW-2, are themselves involved in sex racket with accused.
12. I am also reminded of DW-1 Preeti Arora who also admitted about the presence of 9-10 boys and girls, present at the flat of Ms. Sonu Punjaban and deposed that the prosecutrix rather left the flat abusing the accused saying that she would teach a lesson to accused.
Page No. 1713. Hence, false implication of accused in a rape case by the prosecutrix cannot be ruled out in the given circumstances. The FSL report Ex. PW-9/H and Ex. PW-9/H1 though show semen stains on the undergarments of PW-1, but admittedly by PW-1, accused used condom, so even otherwise, such semen could not be of accused.
14. Thus, in the circumstances, the accused though is entitled to benefit of doubt for the offence u/s. 376(2)
(g) IPC & hence stands acquitted of the said offence, but are convicted u/s. 323/34 IPC, in view of the injuries suffered by both PW-1 and PW-2 in a scuffle, per MLC Ex. PW-10/A and Ex. PW-11/B.
15.To come up for argument on sentence on 07.11.2012.
Announced in Open Court (Yogesh Khanna)
on 31.10.2012 ASJ-02 / South
Saket Courts / New Delhi