Delhi District Court
State vs . 1 Manoj Kumar S/O Late Sh Surender Singh on 25 January, 2012
1
IN THE COURT OF SHRI H.S.SHARMA, DISTRICT
JUDGE/ASJ, NEW DELHI
S.C. No.65/10
State Vs. 1 Manoj Kumar S/o Late Sh Surender Singh
R/o RG22/ Gurupreet Nagar,
Old Uttam Nagar, Delhi 59
2 Sudhir Singh Gahlot
S/o Sh Dharampal Singh
R/o A110, Gulab Bagh,
Uttam Nagar, Delhi59
FIR No. 98/10
PS: Connaught Place
U/Ss 376G/323/342/365/379/411/34 IPC
Present: Ms.Usha Mann, Chief P.P for the State
Sh. Hemender Singh, Adv for accused Manoj.
Sh. Sumit Sarna, Adv for accused Sudhir.
Date of institution of the case : 11.08.2010
Date on which it was received in this court: 11.08.2010
Date of hearing arguments : 06.01.2012
Date of announcement of judgment : 25.01.2012
DJ/ASJ/ND
25.1.2012
State Vs. Manoj etc. 1 of 29
2
J U D G E M E N T :
1 Accused Manoj and Sudhir have been charged u/ss 376(G), 323/34, 342/34 and 506/34 IPC. Both of them have pleaded not guilty to the charges.
2 Accused Manoj is working as a Constable in Delhi Police. In May, 2010, he was posted in Traffic Police. 3 The judgment is being written in an unconventional style. Since the statement of the victim is decisive, therefore, I am mentioning the facts as deposed by her as PW5, in the court. 4 About one month prior to 23.5.2010, Ms S N (PW5) ( hereinafter referred as " the victim")(name withheld) , who used to work as Advisor/Agent with Max New York Life Insurance, had met accused Manoj near India Gate.
5 On that day, the victim was waiting for a vehicle at about 7.00PM. She was asked by an old person as to where she was to go. On being told that she was to go to Lajpat Nagar, that old aged person advised her to seek guidance from accused Manoj. After changing the dress, accused Manoj came there. He enquired from her as to where she was to go. That old person DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 2 of 29 3 also told accused Manoj to take her to the bus stop from where she could get the bus. Accused Manoj then enquired from her about her job. She told accused Manoj that she was working in Max New York Insurance Co and had come from Orissa in connection with enhancement of her job. She asked accused Manoj to get insured. She deposed that accused Monoj told her that he would get himself insured later on as he was already insured. Accused Manoj took her on his bike to the bus stop and dropped her there. She had taken mobile phone number of Manoj. He had also taken her mobile phone number. There used to be conversation between her and accused Manoj regarding the insurance work. In this manner, accused Manoj became acquainted with her.
6 She further deposed that on 23.5.2010, she had received a telephone call at about 10 or 11 AM. Accused Manoj told her that he wanted to meet her. She enquired as to whether he had not gone on duty on that day. Accused Manoj told her that he had performed his duty. She told accused Manoj that in case she needs her (the victim) she would, at public place, only talk regarding the insurance work. She asked accused Manoj to DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 3 of 29 4 reach either at Pizza Hut or at Mac Donald, Connaught Place, where she would wait for him. At about 12 Noon, she reached Connaught Place. It was Sunday. She waited for accused Manoj till 4.00PM. Accused Manoj did not reach there. She contacted him on phone to find out as to whether he was coming there or not. She had made repeated calls during this period. Accused Manoj told her that he was searching for the place as he had never visited Pizza Hut. She, after waiting till 4.00PM, returned to her house. Accused Manoj did not reach there. 7 She received a telephone call from accused Manoj intimating her that he had reached there. She informed Manoj that she had already reached her residence, after waiting for him. She told accused Manoj that she had already taken food. Accused Manoj told her that he had reached Connaught Place and would meet her. Accused Manoj enquired from her as to where was her residence. She disclosed that her residence was in Lajpat Nagar. Accused Manoj told her that he would reach her residence. She asked him (accused Manoj) not to come to her residence as her landlord, where she was staying as a paying guest, would think otherwise. She told accused Manoj as to DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 4 of 29 5 whether he could reach at Mac Cafe, Lajpat Nagar. Accused Manoj told her that he was in Nehru Place. She told him that since he was getting late, there was no necessity to meet her. However, accused Manoj had insisted to meet her as he had searched her at various places. Accused Manoj told her that he had already crossed Nehru Place and would meet her. Accused Manoj told her that he would reach Lajpat Nagar and enquired the way to reach Lajpat Nagar. Accused Manoj had kept on contacting her on phone to reach Lajpat Nagar. By that time, it was already 8.00PM. When accused Manoj had insisted repeatedly to meet her, she told him ( accused Manoj) to reach Mac Cafe.
8 When accused Manoj enquired from her about Mec Cafe, she told him that she will not come and he should go after taking eatables. Accused Manoj had enquired the way, he told him to reach Shani Mandir, a known place. 9 Accused Manoj met her at Shani Mandir at about 9.00PM. He had reached there in a car. He told her to sit in the car and he would leave her near her residence. She did not agree. Accused Manoj told her to trust him as he was in traffic DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 5 of 29 6 police and there was no reason to fear.
10 She sat in the car. Instead of dropping her near her residence, accused Manoj took her in the car at some distance on the pretext that he had to take food in some good hotel. 11 She had been sitting on the front seat of the car. When she turned back, she saw that one more person was sitting on rear seat of the car. That person was sleeping silently. She enquired from accused Manoj as to who was sitting in the car. Accused Manoj told her that that person was his brother and would not interfere and was sleeping silently. When she again enquired as to whether he ( accused Manoj) had come with his brother, accused Manoj replied that he ( the person on the rear seat) was his friend. Thereafter the said person had opened his eyes and told that he and Manoj were friends and there was nothing to fear.
12 Accused Manoj took her at some further distance and told her that he ( Manoj) would have her at her residence, where there was some turn. She insisted that she be dropped. However, instead of dropping her, accused Manoj took her in the car to one hotel Jafrani near Chanakyapuri. There they alighted DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 6 of 29 7 from the car. Accused told her to have something. She told them that she would take nothing as she had already taken food. Accused Manoj went inside the hotel Jafrani to bring something. 13 The victim further deposed that the accused Sudhir, now present in the court today was the person who was present on the rear seat of the car. Accused Sudhir told her to accompany him to get some snacks. Thereafter, accused Sudhir took her inside hotel Jafrani. He (Sudhir) purchased two packets of snacks/namkeen.
14 They (victim and accused Sudhir) came back to the car.
15 Accused Manoj also came back after about 1 or 1 ½ hours. He had brought some chicken, beer etc. She enquired from accused Manoj as to why he had reached there after 1 or 2 or 2 ½ hours. Accused Manouj told her that he had got the best preparations.
16 She asked them (accused ) to leave at her residence as it was already 12 night. Accused told her that they would leave her only after eating snacks etc. 17 Thereafter, accused Manoj took her in the car. From DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 7 of 29 8 there, she sat on the front seat of the car. Accused Sudhir was sitting on the rear seat of the car. Accused took her to Vishwa Yuva Kendra, Chanakyapuri. She enquired from the accused as to why they had brought here there. They parked the vehicle there and told that they would take their snacks with them there. They played music and started eating snacks etc inside the car. They also offered her to eat.
18 When they (accused) forced her to eat, she took a little bit.
19 Accused persons then took out liquor/beer which they had brought with them. They offered it to her and asked her to consume. She refused to do so. Accused told her that it was just beer and since she was an educated woman, she should not mind consuming beer. Accused again insisted her to take beer otherwise they would not leave her. She again refused. Thereafter accused persons had forced her to consume some liquor/beer forcibly.
20 From there, accused brought her in the car to the main road. Accused Manoj had sat in the car on the rear seat. She was on the front seat of the car.
DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 8 of 29 9 21 At Vishwa Yuva Kendra, she had expressed her
desire to go to the toilet. Accused then told her not to go there. 22 On that, she had alighted from the car. When she was trying to come inside the car, the door of the car was locked. The accused told her to sit on the rear seat of the car. She went to the rear seat of the car.
23 When she opened the door, she saw that accused Manoj was sitting on the rear seat of the car. When the accused persons had brought the car at the round about of the main gate near Vishwa Yuva Kendra, accused Manoj started outraging her modesty. He (Manoj) also started giving beatings. She became fearful. She lost her consciousness. Thereafter, the accused persons took her in the car at various places in Connaught Place., Australian Embassy and ultimately left her at Lajpat Nagar at about 3.00AM (night).
24 She further deposed that the accused persons had perhaps taken her mobile or perhaps it had fallen inside the car. 25 She came to her residence while weeping. She was mentally disturbed. She thought over the incident and decided to go to PS. DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 9 of 29 10 26 On the next day, she had reached the police station at about 2.00 PM. She lodged her report Ex. PW5/A. 27 Police had enquired from her as to whether she could identify the accused persons. She had replied in affirmative. 28 Thereafter, police officials had taken her in the vehicle and brought her to that place where accused Manoj was on duty. She identified him. He was apprehended. His arrest memo and personal search memo were prepared.
29 After enquirying the facts from accused Manoj and getting address of accused Sudhir, he ( Sudhir) was also arrested. His arrest memo Ex. PW 5/D was prepared. 30 She was got medically examined. Her consent was taken.
31 Her clothes were seized after preparing pullanda. 32 Her statement was recorded by the Magistrate. 33 Her mobile phone number was 9990345094. She was unable to recollect mobile phone number of accused Manoj. She further stated that on the rear glass of the car "Trushi" was written. However, she was unable to recollect the number of that car.
DJ/ASJ/ND
25.1.2012
State Vs. Manoj etc. 10 of 29
11
34 The prosecution, in order to substantiate the charges
has examined 17 witnesses in all.
35 H.Ct. Devi Dayal (PW1) was the MHC(M) in the PS.
He had been handed over the sealed exhibits on different dates. He had made entries in register no. 19. The copies of the relevant entries are Ex. PW 1/A. 36 Ct. Mukesh (PW2) had handed over sealed pullandas on 25/5/2010 to the Investigating Officer vide memo Ex. PW 2/A. He had collected these pullandas from the CMO, Dr. RML Hospital, New Delhi.
37 Ct. Umesh (PW3) has deposed that on 28/5/2010 he had taken the photographs Ex. PW 3/A1 to PW 3/A7 of the Alto Car bearing no. DL 8 CP 1218 and two mobile phones. 38 It is the case of the prosecution that accused Sudhir had brought his Alto car in the PS. There the photographs were taken by PW3.
39 Ct. Devender (PW4) had taken eight sealed pullandas from the MHC(M) and deposited them in the office of FSL. 40 I have already mentioned the statement of PW5.
41 Dr. Meenu Chaudhary (PW6) had examined accused DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 11 of 29 12
Manoj and Sudhir vide their respective MLCs Ex. PW 6/A and PW6/B. She had also taken their blood and semen samples. 42 Ct. Rakesh (PW8) had taken out the print outs of the mobile phone no.'s 9968426050 and 9990345094 of the period from 20/5/2010 to 25/5/2010. The copies of the call details of these two phone are respectively Ex. PW 8/A1 to PW 8/A12 and PW 8/B1 to 8/B3. Work sheet of these mobile phone numbers are Ex. PW 8/C1 to 8/C4.
43 It is clarified that mobile phone no. 9990345094 is of the victim and 9968426050 is that of the accused Manoj. He has admitted the fact that mobile phone no. 9968426050 (Ex. P5) belonged to him. He admitted this fact in reply to question no. 135 put to him u/s 313 Cr.P.C.
44 Sh. Pritam Singh (PW9), Ld. MM had recorded statement u/s 164 Cr.P.C, (Ex. PW 9/A), of the victim on 28/5/2010.
45 Dr. Archana Mishra (PW10) has proved the MLC Ex. PW 10/A of the victim.
46 W.Ct. Jyoti (PW11) and Ct. Nagender (PW12) had joined the investigation with Insp. Ravi Kant, (PW16).
DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 12 of 29 13 47 Pawan Singh (PW13) has proved the call details Ex.
PW 13/A of mobile phone number 9990345094 from 20/5/2010 to 25/5/2010. He had also compared the call details Ex. PW 8/B1 to B3. The same had matched with the certified copy produced by him.
48 Sh. Ram Hari Singh (PW14) has proved the certified copies of the call details Ex. PW 14/A to A6 of mobile phone no. 9968426050 i.e., of the accused Manoj. He had compared these call details with the call details Ex. PW 8/A1 to A12 proved by PW8. According to him these call details had matched with the call details produced by him.
49 SI Kusum Dhama (PW15) has deposed that on 24/5/2010 the victim had come to her at 7.00 pm. She had informed that Ct. Manoj who was in the traffic police and his friend Saurabh had indulged in "galat kaam". She wanted to make a complaint. She (witness) got the statement Ex. PW 5/A of the victim written by Insp. Ravi Kant as she (witness) was having some problem in her right hand. It was recorded on the dictation of the victim. She got endorsement Ex. PW 15/A made on statement Ex. PW 5/A. She got the FIR registered.
DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 13 of 29 14
Thereafter, the investigation was entrusted to Insp. Ravi Kant. However, she had also joined the investigation. 50 Insp. Ravi Kant (PW16) is the Investigating Officer. 51 H.Ct., Ranbir Singh (PW17) had on 24/5/2010 taken sealed pullandas from doctor of Lady Harding Medical College and had handed over the same to Insp. Ravi Kant. These were seized vide memo Ex. PW 11/A. 52 After closure of the evidence of the prosecution, the accused were examined u/s 313 Cr.P.C., 53 Accused Manoj has put forth the following defence: On 23.5.2010 I was on duty. I had informed my colleagues (police officials) that I shall be reaching the place of my posting a bit late. During those days my place of posting was near Teen Murti circle, South Avenue side.
On 23.5.2010 I was on my duty.
Ms.Sunanda had contacted me on phone -
sometimes from her mobile phone and
sometimes from STD MTNL phones. She
had kept on insisting and requesting me to get atleast three or four persons insured through her as she was an Insurance Agent. The talks had taken place through out the day. At about 9 p.m on 23.5.2010 I had had a programme with my coaccused Sudhir as we DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 14 of 29 15 had decided to go to Central Market, Lajpat Nagar for shopping. Since my duty hours were upto 9 p.m, therefore, I had asked Sudhir to meet me at 9 p.m. During this period Ms.Sunanda had also contacted me on phone. She had reiterated her request to get 3 - 4 persons insured. I told her that on that day it was not possible. I and Sudhir had gone to Central Market, Lajpat Nagar and had gone to few shops. The shops had been closed by 9.30 p.m. I asked Sudhir to take me to Teen Murti round about as my motor cycle was lying there and I was to attend my duty in the morning. From Lajpat Nagar, I and Sudhir came to Teen Murti round about. I was left near Teen Murti round about. From there I had gone to my house and slept. My duty hours were from 8 a.m to 9.p.m. I attended my duty from 8 a.m and was on duty till 5 p.m when I was picked by Insp. Ravi Kant. He was in plain clothes, He had alighted from the gypsy.
He told me that he was Insp. From PS Connaught Place. He took me in the gypsy to PS Chanakyapuri. Inspector Ravi Kant told me that I had been with Ms.Sunanda during the night and had teased her. I replied in the negative. I told him that I had been with my friend Sudhir. Insp. Ravi Kant told me that I was lying. I denied the same and told Insp. Ravi Kant that I can call my friend Sudhir to confirm this fact. Insp.Ravi Kant allowed me tocall Sudhir. Sudhir was called. He reached DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 15 of 29 16 PS Chanakyapuri at about 6 or 6.30 p.m on 24.6.2010. Sudhir corroborated my claim. However, Insp. Ravi Kant kept on saying that the girl was not lying. I told him that the girl was lying. I also told him that the girl had telephoned me to collect insurance work for her. I had told her that I cannot collect the work right now. She had misbehaved with me on phone. (Isne mujse Bad tameesi se phone par baat ki thi). I also told Insp. Ravi Kant that the girl had told me on phone that I do not know her and she was capable of getting anything done. I had told her that she need not talk with me on phone. Insp.Ravi Kant did not accept my version and told me to give some amount to her. I refused to give any amount to her. Thereafter I was falsely implicated in this case.
54 Accused Sudhir had denied the prosecution evidence and had put forth the following defence:
"I and Manoj decided that on 23.5.2010 after the duty hours of Manoj, we shall go to Central Market, Lajpat Nagar. At about 9.30 p.m I and Manoj had gone to Central Market, Lajpat Nagar. However, almost all the shops were found closed. I and Manoj came back to a place near Teen Murti where bike of Manoj was lying parked. I left Manoj there. From there I DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 16 of 29 17 had gone to my residence. On 24.5.2010 at about 5 p.m I received a telephonic call from Manoj. He told me that he was in PS Chanakyapuri and it is being alleged against him (Manoj) that he had teased some girl. He (Manoj) had called me . I went to PS Chanakyapuri. Manoj asked me to tell the I.O that he and me were together. Thereafter I was made to sit in the PS for a long time. Thereafter I was asked to leave. Manoj was taken to PS Connaught Place. I contacted Manoj on phone at about 8.30 p.m. I was told by Manoj that money is being demanded from him. Manoj asked me to again come to PS Connaught Place and to tell that they (Manoj and me) were together in Central Market, Lajpat Nagar. I along with my two friends went to PS Connaught Place in the Alto car. We reached there at about 11 p.m. I told the IO that I was prepared to give my statement to explain as to where were we (Me and Manoj). The IO took key of my car. He told me that he does not want any explanation from me. He further told me that he would implicate me in this case. Thereafter I was falsely implicated in this case."
55 Accused Manoj has produced H.Ct. Prahlad (DW1), Ct. Amit Kumar (DW2) and H.Ct. Sumer Singh (DW3).
DJ/ASJ/ND
25.1.2012
State Vs. Manoj etc. 17 of 29
18
56 I have heard ld. Chief Public Prosecutor for the State
and Ld. Counsels for the accused. I have also gone through the file and the memo of arguments submitted on behalf of the accused.
57 I have already reproduced statement made by the victim before the court.
Delay In Lodging The FIR:
58 It has been submitted that the occurrence had allegedly taken place on the intervening night of 23/2452010 in between 9.00 pm to 2.30 am. However, the victim had approached the police at about 2.00 pm. His statement Ex. PW 5/A was recorded at about 9.15 pm. Thus there was a delay in lodging the FIR.
59 It is well settled that delay in lodging the FIR in all cases is not always fatal. Every case has its own facts. 60 The victim had come from Orissa. She might have faced such a situation for the first time in her life. 61 In Harpal Singh Vs. State of Himachal Pradesh 1981 SC 361, where there was a delay of 10 days in lodging the FIR in a rape case, it was not held to be fatal to the prosecution.
DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 18 of 29 19 62 The victim in her statement has clarified as to why
there had been a delay. She was mentally disturbed. She had though over the incident. Otherwise also, there was no inordinate delay in lodging the FIR.
Contradictions And Improvements:
63 Ld. Counsels for the accused have pointed out that the victim had made material improvements. Infact, Ld. Counsel for accused Manoj has placed on record a chart wherein he has incorporated as to what improvements have been made by the victim.
64 Section 145 Evidence Act reads as under: " Crossexamination as to previous statements in writing A witness may be crossexamined as to previous statements made by him in writing or reduce into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. "
DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 19 of 29 20 65 It lays down that if a witness is intended to be contradicted, his attention must be drawn to those parts of the writing. In this regard reliance can be placed on B.K.Singh Vs. State AIR 1997 SC 322 and Malket Singh Vs. State of Punjab 1992 (1) CCC 1 (SC).
66 In the present case I have already reproduced the examination in chief of the victim.
67 The cross examination of the victim is very brief.
Therefore, it is being reproduced in its entirety. It reads as under:
"XXXX by Sh. M.S.Sisodiya, Ld. Counsel for accused Manoj It is wrong to suggest that accused Manoj did not tease me at all at any time or never outraged my modesty. Prior to the incident accused Manoj had never misbehaved with me and that he never teased me. It is wrong to suggest that I am not sure accused Manoj had not teased me inside the car at that time. It is wrong to suggest that I had given false statement to that effect.
XXXXX by Sh. Sumit Sarna, counsel for accused Sudhir.
Nil. Opportunity given. "
68 Thus, it was not suggested to the victim by the accused DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 20 of 29 21 Sudhir that he was not with Manoj or that he was not in the car or that he had not heard the conversations between the victim and Manoj.
69 It is well settled that if a fact stated by a witness in his examination in chief is not challenged in the cross examination, it has to be taken that the opposite party accepts the version of the witness, as stated by him in his examination in chief.
I would like to add that right from beginning both the accused are being represented by their private counsels and their counsels were present on 26/11/2010 on which date statement of PW5 (the victim) was recorded.
Details of the calls proved by PW13 and PW 14. 70 Ld. Counsels of the accused have vehemently argued that the call details produced by the prosecution do not establish the movements of the accused and the victim. Thus, according to them, the prosecution has failed to prove its case. 71 Although lengthy arguments on this particular aspect had been advanced yet I need not discuss the same in detail in view of the fact that the victim had not been cross examined on material particulars by the accused.
DJ/ASJ/ND
25.1.2012
State Vs. Manoj etc. 21 of 29
22
72 The victim was known to accused Manoj. I repeat
that not even a single question with regard to the incident had been put to the victim (except a few bald suggestions) to discard her statement of the victim. Call details were only corroborative in nature. In any case these call details in no way establish that the victim had not been contacted by accused Manoj. The Evidence Of Defence Witnesses:
73 Accused Manoj has examined three witnesses in his defence.
74 H.Ct. Prahlad (DW1) was summoned to produce and prove the CCTV footage from 20/5/2010 to 27/5/2010 of PS Chanakyapuri. This witness has deposed that since no recording had been done for the last three years, therefore, the question of producing the CCTV footage of the above period does not arise.
This witness was examined on 26/9/2011. 75 Ct. Amit (DW2) has deposed that on 23/5/2010 at about 7.30pm a friend of accused Manoj had come there. Thereafter, accused Manoj had told that he was going with his friend for shopping.
76 H.Ct. Sumer Singh (DW3) has proved the DDR entries DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 22 of 29 23
dated 23/5/2010, 24/5/2010 and 25/5/2010. In the cross examination he admitted that the entries had not been made by him and he has no personal knowledge.
77 Now so far as the deposition of Ct. Amit (DW2) is concerned, it does not substantiate the defence. 78 No such defence was put to the victim. She was the best person to give the reply. Similarly no such defence was put to Insp. Ravi Kant (PW16) (IO). Thus, the evidence of DW2 is inconsequential.
79 Accused Manoj has put forth the defence that his refusal to get him insured through the victim had enraged her to such an extent that he has been falsely implicated in this case. This defence, on the face of it, is unacceptable. No woman would like to make allegations of rape only on the ground, as put forth by accused Manoj.
NonHolding of TIP of Accused Sudhir:
80 It has been submitted by Ld. Counsel for accused Sudhir that this accused was not known to the victim from before. Therefore, in the absence of prior judicial Test Identification Parade (in short TIP), the identification of this accused by the DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 23 of 29 24 victim for the first time in court is inconsequential. 81 I do not agree with the Ld. Counsel for the accused. Why TIP is required?
82 It is to be borne in mind that purpose of TIP is to have corroboration to the evidence of the eye witnesses in the form of an earlier identification and that substantiative evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by Test Identification would not be in any way material. Further where reasons for gaining and enduring impression of the identity on the mind and memory of the witness are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion. (See State of Maharashtra Vs. Suresh 1999 X AD SC 29). 83 The object of conducting a TIP is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. (See Daya Singh Vs. State 2001 II AD SC 310).
DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 24 of 29 25 84 In our case the occurrence had taken place on the
intervening night of 23/2452010. It had continued for hours together. The accused Sudhir was very close to the victim. The victim had had sufficient time and opportunity to see the accused. The Investigating Officer had in his own way, got, accused Sudhir called through his coaccused Manoj by getting him called on his phone. Accused Sudhir had been arrested in the presence of the victim. When the victim had appeared before the court and had substantiated the allegations, not even a single question had been put to the victim for and on behalf of accused Sudhir. Therefore, now accused Sudhir can't be allowed to say that since no judicial TIP had been conducted, therefore, the evidence of his identification by the victim in court be rejected. 85 Since accused Sudhir is shown to have been arrested in the presence of the victim, therefore, there would not have been any justification for holding the judicial TIP. Had the judicial TIP been held, it would have been argued on behalf of accused Sudhir that the holding of the TIP was a farce as he had been arrested in the presence of the victim.
86 The evidence of the victim is reliable. She has DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 25 of 29 26
narrated the facts in detail. The defence put forth by the accused is unacceptable. The evidence of the defence witnesses is of no help to accused Manoj. The argument that the victim, as per the report on the summons of the official of the insurance company, was not employed, therefore, should not be believed, is devoid of merits. The victim has no where claimed that she was a regular employee of the insurance company. It was not inquired from her as to where was she employed. The record of the agents of the insurance companies are not kept at one place. The victim was from Orissa and had never claimed that her office was in Delhi. What Offences Have Been Committed By The Accused:
87 As mentioned earlier the accused have been charged u/ss 376(G), 323/34, 342/34 and 506/34 IPC. 88 I have already reproduced substantial portion of the examination in chief of the victim. When my Ld. Predecessor found that the victim (PW5) was not stating anything about her having been raped by the accused, a court question was put to her. I am reproducing the court question and the answer thereof:
"Court Q. If any rape etc., took place DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 26 of 29 27 with you inside the car?
Ans. I do not recollect exactly as I was under fear and had become unconscious. Perhaps it had taken place."
89 Thereafter, the victim was cross examined by the Ld. APP (so far as the allegations of rape are concerned). 90 The victim however deposed that she was not sure as to whether she got it recorded in her statement Ex. PW 5/A that the accused persons had committee rape on her in the car. She was duly confronted with the portion B to B of Ex. PW 5/A where it was so recorded. She was confronted with other portions of her earlier statement (Ex. PW 5/A) recorded by the police wherein she had made allegations concerning the rape. Thus, the charge u/s 376 (G) IPC has not been substantiated by the victim. In this regard I would like to add that when the statement Ex. PW 9/B of the victim was recorded on 28/5/2010 by PW9 she had, in the last line stated that "she has already been maligned/defamed and she wants to take the case back". It is a fact that the victims of rape, invariably, for various reasons, do not substantiate the allegations. In the present case also the victim had, before the DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 27 of 29 28 Ld. MM, while making the statement u/s 164 Cr.P.C given the reason of her withdrawing the case.
91 Although in her statement u/s 164 Cr.P.C she had made allegations of rape against both the accused yet before the court she had not asserted it in the manner in which it was required to be done by her. I have already reproduced the reply to the court question.
92 Ld. Chief PP has submitted that this reply is sufficient to held that the accused had committed rape on the victim. 93 I do not agree with her.
94 As mentioned earlier the victim had been duly confronted with her statement Ex. PW 5/A recorded u/s 161 Cr.P.C. Her attention was not drawn to the statement Ex. PW 9/B recorded u/s 164 Cr.P.C. The evidence of the victim, so far as the charge of rape is concerned, is shaky and I am not inclined to convict the accused for this particular offence on the basis of shaky evidence.
95 The FSL report Ex. PW 16/C also does not help the prosecution. As per the FSL report the samples of blood and semen were found to be putrified. However, I am inclined to DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 28 of 29 29 convict accused Manoj u/s 354 IPC as the victim has categorically stated that her modesty had been out raged by accused Manoj. This particular claim of victim finds necessary corroboration from the MLC Ex. PW 10/A. In the MLC the doctor had, on examination, found a love bite on the right side of her beast.
96 The victim has made categorical assertion of her modesty having been outraged by accused Manoj. Except a bald suggestion, no material has been brought on record to reject the testimony of the victim.
97 In view of the above discussion, accused Manoj is convicted u/ss 354/323/342/506 IPC. Accused Sudhir is convicted u/ss 342/506 IPC. Both of them are however acquitted of the charge u/s 376 (G) IPC.
Announced in open court dated 25/1/2012 ( H S SHARMA ) DISTT.JUDGE/ ADDL. SESSIONS JUDGE/ NEW DELHI All pages signed 25/1/2012 DJ/ASJ/ND 25.1.2012 State Vs. Manoj etc. 29 of 29