Delhi District Court
Fir No. 296/04 , P.S Gokal Puri , ... vs Om Pali on 13 January, 2010
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FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI
IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL
SESSIONS JUDGE:3 NE DISTRICT: KKD DELHI.
Case ID Number 02402R0 741512006
Session Case No. 83/09
Assigned to Sessions 21/08/06
Arguments heard on 11/01/10
Date of order 13/01/10
FIR NO. 296/04
Police Station Gokal Puri
Under Section 365/366/368 IPC
Out come of decision Acquitted.
IN THE MATTER OF:
STATE VS. SMT. OM PALI W/O RAM CHANDER
R/O H.NO. 2/33,RAMA PARK, JOHRI
PUR, DELHI.
SMT. KAMLA DEVI W/O RAJENDER
SINGH R/O BEGUM PUR, P.S DEV
BAND, DISTT. SAHARAN PUR, UP
PRESENT: Ms. Neelam Narang, Ld. Addl. PP for State.
Sh. Naresh Kumar Advocate on behalf of accused person.
JUDGMENT
1. On 2.7.04 a case u/sec. 363/366/376/328/342/34 IPC was registered at P.S Gokal Puri vide FIR No. 296/04 on the basis of complaint/statement 1 2 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI made by Kumari Reena Malit d/o Sh.Charan Singh r/o D-2/45 Rama Bai Mohalla, Gali No.2, Johri Pur, Delhi against Tersam @ Raju s/o Sh. Sukhvir Singh, r/o Gali no.1, Rama Bai Mohalla, Johri Pur, Delhi and Ram Chander s/o Jeet Singh and Om pali w/o Ram Chander r/o H.NO. 2/33,Rama Park, Johri Pur, Delhi and Smt. Kamla w/o Rajender Singh r/o Begum Pur, P.S Dev Band, Distt. Saharan Pur, UP.
2. Brief facts arising out of this case are that Kumari Reena Malit had been living with her parents at the aforesaid address and was studying in B.A first year. One boy Tarsem was also living in the house of Ram Chander her neighbourer, tried to gain intimacy with her and used to write letter to her for the last about 8/10 months depsite of her objection.
3. On 14.6.04 at about 10 p.m after taking meal Kumari Reena Malti was moving in a gali, in the mean time Smt. Om Pai w/o Ram Chander called her at her house and Tarsem @Raju and Rajender were already siting there. Om Pali forced her to take tea and after taking she felt 2 3 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI giddiness. When she regained partial consciousness, she could sense that Tarsem brought one TSR and took her along with Om Pali. Thereafter she lost her complete sense. On next day at about 12/12.30 noon she found herself at Saharan Pur Rly. Station along with Tarsem. On enquiry Tarsem told her that Om Pali left us after leaving them to board the rail. Tarsem took her to various places and then to Jagadari and kept her in a hotel for 2-3 days and committed rape on her. From Jagadari he took her to SaharanPur where they stayed in hotel for one day and from Begum Pur Saharan Pur, Tarsem took her to his brother in law's house and there kept her for eight days and committed rape on her continuously for 2-3 times daily. Kumari Reena Malti also disclosed these facts to the sister of Tarsem namely Kamla who told her that she would got married her with Tarsem and she was not allowed to come out of the house.
4. Prior to recording this statement on 15.6.04 a missing report was also lodged vide DD No. 6A. She was searched at different places. Charan Singh father of the prosecutrix/victim Reena informed the police that 3 4 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI Tarsem had taken away his daughter and he along with his daughter would be returning a girl from Saharanpur and on receipt of this information, police apprehended them at Delhi UP boarder and the aforesaid statement of Ms.Reena was recorded.
Accused Tarsem was arrested on 2.7.04 and Ram Chander was arrested on 17.7.04, co-accused Om Pali and Kamla could not be arrested. Both the accused Tarsem and Ram Chander against whom the challan was filed earlier have been acquitted vide order dt. 24.5.07. NBW against Om Pali and Kamla were obtained but both these accused were directed to be released on anticipatory bail, therefore, they were formally arrested. Statement of witnesses were recorded and after completion of all the necessary investigation challan u/s 173 Cr.P.C for the offences u/sec. 365/366/328IPC was presented against accused Om Pali and for the offence u/sec. 368/342 IPC against accused Kamla to the court of Ld. MM.
5. Ld. M.M after taking cognizance of the offences u/sec. 365/366//368/328/342 34 IPC against the accused persons, supplied 4 5 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI the copies of the report u/sec. 173 Cr.P.C to the accused, as required u/s 207 IPC committed the case to the court of Sessions and on turn allocated to this court for trial therefore, case was fixed for consideration of charge.
6. Arguments on the point of charge heard. After hearing arguments and on perusal of the material placed on record and the statements of witnesses recorded by the IO a prima facie case u/sec. 365/366/368 IPC was made out against the accused Om Pali and Kamla. However charge u/sec. 365/366 IPC was framed against Om Pali and charge for the offence u/sec. 368 IPC against Kamla by the then Ld. ASJ vide order dt. 01/12/06 to which they pleaded not guilty and claimed trial, therefore, case is fixed for prosecution evidence.
7. Prosecution examined Const. Pawan Veer as (PW.1), Dr. Deveder Kumar CMO GTB Hospital as (PW.2), H.C Ravinder as (PW3) and Retired SI Vikram Singh as (PW4). After their examination and during the course of proceedings Ld. counsel for accused submitted that all the nine witnesses in the present case have already been examined 5 6 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI during the trial of co-accused Ram Chander and Tarsem by the prosecution to prove the guilt of the accused and two defence witnesses were examined by the accused in their defence and Ld. counsel for accused has raised no objection in adopting the testimonies of all the witnesses who have already been examined by the prosecution during trial of co-accused Ram Chander and Tarsem. In view of the admission by the accused on the point of adoption the testimonies of all the witnesses already recorded, prosecution evidence was closed and case was fixed for recording the statement of accused u/sec. 313 Cr.P.C.
8. Brief testimonies of all the witnesses are as follows:
i) PW 1 is the prosecutrix who supported the prosecution case and proved her statement u/sec. 161 Cr.P.C as Ex.PW 1/A, her MLC Ex.PW 1/B and also her statement u/sec. 164 Cr.P.C as Ex.PW 1/C.
ii) PW 2 is the father of the prosecutrix who testified that he 6 7 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI joined the investigation with the police and from village Begum Pur, his daughter was got recovered and statement of his daughter was recorded on 30.6.04 and thereafter she was brought to Delhi along with Tarsem on 2.4.04. He has also been cross-examined by Ld. Addl.PP for the state on certain points.
Iii) PW3 is Dr. Seema Sharma and proved the MLC Ex.PW 3/A and also endorsement Ex.PW 1/B( regarding obtaining willingness).
iv) PW 4 H.C Ravinder Kumar who remained associated with the investigation of this case and helped to support the prosecution version with regard to recovery of prosecutrix from Delhi UP Border. He also got the FIR registered. He also deposed that Const. Pawan bir and one lady constable were summoned at the spot by the IO. Accused and Reena/victim were sent to hospital for their medical examination in their respective custody.
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FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI
v). PW5 deposed that he had taken the prosecutrix Reena to GTB hospital for medical examination and after medical examination of Reena Malti, doctor had handed over one swab slide sealed parcel with the seal along with MLC of Reena and he also handed over the MLC of Reena, swab slide parcel and sample seal to the IO/ASI Tara Dutt vide memo Ex.PW 5/A
vi) PW.6 Sh. M.C Gupta ADJ, who proved the factum of recording of statement u/sec. 164 Cr.P.C of the prosecutrix and he proved the relevant proceedings i.e application moved by the IO, Ex.PW 6/A, statement of prosecutrix Ex.PW 6/B and the application of the IO for taking copy of statement of prosecutrix as Ex.PW 6/C. Vii) PW 7 SI Vikram Singh proved the copy of FIR Ex.PW 6/A, recorded by him.
Viii). PW 8 Const. Pawan Veer who had taken the accused Tarsem to GTB hospital an doctor had also given him the semen and blood 8 9 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI sample parcel which he handed over to the IO and IO took the same into possession vide memo Ex.PW 8/A.
ix) PW 9 is ASI Tara Dutt who is the investigating officer of this case and proved the relevant documents and the endorsement on the statement of Reena, arrest memo of Tarsem and RamChander and personal search memo Ex.PW 9/B and Ex.PW 9/C. The report of CFSL was also filed and factum of arrest and filing of FSL report is not denied by the accused persons as they had already adopted the testimonies of all the witnesses who have already been examined.
x) PW 10 is Dr.Devender Kumar who had no role to prove any document against any of the accused persons as the supplementary challan filed against both the present accused only as they had examined accused Tarsem. After conclusion of the evidence, both the accused were examined u/sec. 313 Cr.P.C wherein all the incriminating evidence adduced on behalf of prosecution were put to them but they both individually pleaded their innocence and submitted that they were 9 10 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI falsely implicated in this case. However they have not denied that they were formally arrested and were released on anticipatory bail.
9. It is further submitted that co-accused Tarsem was her tenant and he along with his brother Manish were residing on the first floor of her house and they both demanded Rs. One lac from her husband for vacating the house and also extended threat that in case her husband would not mak the payment, they both will be falsely implicated in criminal cases and when they failed to make payment as demanded by the accused and his brother, they both in connivance Reena falsely implicated them in this case. They did not desire to lead any defence evidence and therefore case was fixed for final arguments.
10. I have heard Ld. counsel for both the parties. Ld. counsel for accused submitted that before convicting the accused under any penal law, it is the duty of the prosecution to prove its case against the accused beyond reasonable doubt and in the present case, credibility of the 10 11 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI testimony of all the witnesses have also been assessed during trial of other co-accused namely Tarsem and Ram Chander and they both were acquitted vide order dt. 24/5/07 of the then Ld. ASJ-KKD Delhi and in the said order it is observed that Kumari Reena Malit alleged that she was made to drink tea as a result of which she felt giddiness and was taken to Saharan Pur by train but it does not appeal to sense that during the entire time when she remained unconscious i.e from 10 p.m on 13.6.04 till 12.30 P.M on 14.6.04 when she found herself at Saharan Pur Railway station, she could have been made to travel by train without the help of stretcher or that she did not go to attend the natural calls for such a long duration or did not have the meal. She has also not alleged that accused Tarsem had intoxicated her even at the hotel at Saharan Pur where he raped her. It is further observed that when she was taken from Saharan Pur to Jagadari, by train she could not make a complaint of her kidnapping and committing rape on her to any co- passenger as she was semi conscious appears to be a blatant lie. It was also observed that her testimony does not inspire confidence and on the basis of her testimony both the accused were acquitted. 11 12 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI
11.It is further alleged that on perusal of the report of CFSL, no constitutants of any intoxicants were brought on record.
12.In view of the aforesaid discussion and also on the basis of the observations given by the then Ld.ASJ in order dt. 24.5.07 Ld. counsel for accused requested for acquittal of the accused.
13.On the contrary Ld. Addl. PP for the state submitted that prosecution has produced sufficient incriminating corroborative evidence against the accused persons and the prosecutrix specifically stated that accused Om Pali forced her to take tea and Tarsem was also sitting there, therefore it cannot be said that co-accused has not taken part in commission of the offence with other co-accused Tarsem and Ram Chander. There are sufficient evidence against Kamla as she provided shelter to the accused and the prosecutrix in her house and also extended assurance of getting married of prosecutrix with Tarsem. 12 13 FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI
14.After hearing the arguments and taking into consideration the facts and circumstances and the evidence adduced by the prosecution and the documents placed on record which has already been exhibited I am of the considered view that prosecution case stands demolished due to unbelievable testimony of PW1. Therefore, both the accused namely Kamla and Om Pali are hereby acquitted for the offences as alleged against them
15.Accordingly accused Om Pali is acquitted for the offence u/sec. 365/366 IPC and accused Kamla for the offence u/sec. 368 IPC. Their bail bonds are cancelled, sureties be discharged. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 13th day of Jan 2010.
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FIR NO. 296/04 , P.S GOKAL PURI , U/SEC.365/366/368 IPC ST. VS OM PALI ...
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