Delhi District Court
State vs 1. Rajesh (In Judicial Custody) on 30 August, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD.
ADDL.SESSIONS JUDGE03, SE: NEW DELHI
Sessions Case No. 262/12
Computer ID No. : 02406R0038642012
State Vs 1. Rajesh (in judicial custody)
S/o Shri Ramji Harle
R/o Village Uruli Kanchan,
Taluka Haveli, District Pune,
Maharashtra.
2. Gopi (in judicial custody)
S/o Shri Katu Bhai Chauhan
R/o Village Uruli Kanchan,
Taluka Haveli, District Pune,
Maharashtra.
FIR No : 340/11
P.S. : Hazrat Nizamuddin
U/s. : 376G/323/343/366 IPC
DATE OF INSTITUTION : 13.03.2012
JUDGMENT RESERVED ON : 28.08.2012
DATE OF DECISION : 30.08.2012
JUDGMENT:
1. Prosecution case in brief is that on 23.11.2011 prosecutrix Kalpana State Vs. Rajesh etc, SC No. 262/12 page no. 1 of 33 aged around 22 years came to PS and alleged that she was raped, thereafter, SI Kamini Gupta called one NGO Parivartan from where one counsellor Rajni Partyal came and in her presence statement of prosecutrix Kalpana was recorded.
2. Prosecutrix Kalpana in her statement alleged that she is resident of village Bandapur, West Mumbai and 23 days back she had quarrel with her mother then she left her home on 19.11.2011 and went to Jajuri Railway station to go at the house of her mausi where she met accused Rajesh, who asked her to accompany him to Delhi for visit with promise of job and marriage. Thereafter, she alongwith Rajesh and his maternal brother Gopi came to Delhi through Jhelum Express. She further alleged that at Delhi she was kept in Baba Guest house and on 21.12.2011 accused Rajesh took her to Majnu Ka Tilla at her sister's house and she did not feel good there, thereafter, she came back with Rajesh and Gopi. She further alleged that on 21.11.2011 accused Rajesh and Gopi had tied her hands and further beaten her and thereafter committed rape on her without her consent and somehow she managed to escape from that place and on the way she met some uncle who left her at this PS. After recording of her statement, medical examination of prosecutrix Kalpana was conducted thereafter FIR u/s 323/343/366/376/34 was registered.
3. During investigation at the instance of prosecutrix site plan of place of incident was prepared. Further statement of witnesses were State Vs. Rajesh etc, SC No. 262/12 page no. 2 of 33 recorded and accused Rajesh and Gopi were arrested. Further, statement of prosecutrix u/s 164 Cr.P.C was also got recorded through concerned Metropolitan Magistrate.
4. Prosecutrix in her statement u/s 164 Cr.P.C stated that she is resident of Mumbai and living with her mother and younger brother and used to work at Mamta Nursing Home, Kalyan. She further stated in her statement that on 05.11.2011 her mother scolded her thereafter, in state of anger she left her home and went to her sister Alka at Pune where she stayed for about 10 days thereafter on 13.11.2011 she tried to go to her mausi's house at Sholapur when she reached Pune Railway station for going to Sholapur, she met one girl in the name of Sunita and told her that she is going to her mausi's house to Sholapur because of quarrel with her mother. Then, Sunita asked her to accompany to her home and assured that she will make arrangement for her marriage. Thereafter she accompanied to her house where she met Rajesh and Gopi. She further stated that Rajesh told her that he will take her to Delhi and there he will marry and arrange good job for her. She further stated that on 15.11.2011 she took train with Rajesh and Gopi and came to Delhi on 17.11.2011 at around 10 pm in the night. Thereafter they both took her to Baba guest house where they stayed for around 3 days and on 4 th day accused Rajesh took her to his sister's house at Majnu Ka Tilla for the purpose of some job, however when she refused Rajesh brought State Vs. Rajesh etc, SC No. 262/12 page no. 3 of 33 back her to guest house. She further stated that at guest house Rajesh asked her why she do not want to stay at his sister's house then she told him that she do not want to stay at her sister's house, then Rajesh got angry and at that time Gopi was not present. Thereafter, he forcefully removed her clothes and by wrongfully confining committed rape on her. She further alleged that she felt pain and thereafter started crying and he further threatened her that she cannot leave that place and again committed rape with her. She further alleged that this incident took place at around 9 pm and at around 10 pm Gopi also came back but he had not committed any act with her, however at around 4 am in morning, he came on her bed and removed her clothes and when she resisted Rajesh also woken up and asked Gopi to commit rape with her. Thereafter, Rajesh beaten her and tied her hands and legs and when she hit Rajesh with her legs then he slapped her and then Gopi tried to rape her forcefully, however, she did not let them to commit rape. Thereafter, both left her.
5. She further alleged that Rajesh committed rape upon on her several times, once in Pune thereafter in Delhi for four days. She further stated that at around 10.00 a.m. in the morning when Rajesh tried to take her to her younger sister's home, she refused then Rajesh told her to take her to Mumbai. She further stated that when Rajesh went out to take some articles, she left that place secretly and met an State Vs. Rajesh etc, SC No. 262/12 page no. 4 of 33 uncle and asked him about police station, then said uncle called police and police taken her from there.
6. After completion of investigation, chargesheet was filed. On committal charges u/s. 323/376G IPC were framed against accused Gopi and charges u/s. 323/343/366/376G were framed against accused Rajesh and both pleaded not guilty and claimed trial. Both the accused are in judicial custody since day of their arrest i.e, 24.11.2012.
7. Prosecution for substantiating charge examined 14 prosecution witness. Prosecutrix Kalpana is examined as PW1. Summary details of their depositions are as follows.
8. PW1 Kalpana (prosecutrix) deposed that in the year 2011 she was residing with her mother and younger brother at village Badlapur West Mumbai and on 19.11.2011 she had a quarrel with her mother , therefore, she left the house for going to house of her mausi and when she reached railway station she met one Sunita who took her to her house at Pune by stating that she will get her married and both accused brought her to Delhi on 29.11.2011 and took her to one guest house. And on same day accused Rajesh forcefully took out her clothes and committed rape on her and Gopi also committed rape without her consent. She further deposed that Rajesh and Gopi had beaten her and caught hold her hands while committing rape.
State Vs. Rajesh etc, SC No. 262/12 page no. 5 of 33 She further deposed that when accused tried to take her for meeting to somebody on 23.11.2011, she managed to flee from their custody and outside guest house, she met one Uncle who brought her to PS H.N.Din where Ct. Manju and Kamini Gupta made inquiries from her and recorded her statement and thereafter took her for medical examination. She further alleged that doctor prepared her MLC and took her undergarments into possession. Thereafter, she was left at Prayas where some lady also inquired about her, further stated her statement was also recorded by one lady Magistrate at Saket.
9. In cross examination deposed that she was working in some hospital in Kalyan and never went out of house without telling her mother and her mother had not come to Delhi to take her back. And she was taken after incident to Mumbai by IO Kamini Gupta. She further deposed that she reached the PS in the morning at around 1011 am on 23.11.2011 and remained in PS till evening and police recorded her statement prior to taking her to hospital and further stated that she had not met Sunita at railway station and came to know about name of father and accused persons in PS and IO Kamini Gupta told those names and addresses to her and at that time accused were also present in PS as they came alongwith her. She further deposed that she told police that she met Rajesh only at Jajuri railway station and from Jajuri she came to Delhi alongwith accused Rajesh. She further deposed that she did not tell the police that Sunita took her to her State Vs. Rajesh etc, SC No. 262/12 page no. 6 of 33 house when met on railway station. However stated that she told the police that Rajesh and Gopi met her at house of Sunita (confronted with her statement Ex. PW1/A).
10. She further deposed that she reached Delhi on evening of 20.11.11 and thereafter accused persons took her to guest house and thereafter accused persons took her to Majnu ka Tilla on 21.11.2011 at their sister's house. She further deposed that she came to Delhi on 20.11.2011 and on that night accused persons had done nothing to her and on 21.11.2011 only accused Rajesh committed wrong acts with her however she had given the name of both the accused to the police by stating the both had committed wrong acts with her on 21.11.2011. She further deposed that she told police that when accused were talking of taking her to some other place for meeting somebody then she ran away from their custody. She further deposed that she was sent to NGO Prayas on 23.11.2011 and their her statement was also recorded by one Salima Madam and her statement was also recorded by Magistrate u/s 164 Cr.P.C. she further deposed that she had told Magistrate that because her mother scolded her she went to house of her sister Alka without tell her mother. Thereafter came to Pune railway station on 13.11.11 to go to Sholapur however stated that she had not told that she had met Sunita at Pune railway station on 13.11.2011. She was further confronted with her statement U/s 164 Cr.P.C wherein stated that State Vs. Rajesh etc, SC No. 262/12 page no. 7 of 33 she took the train with accused on 15.11.2011 and came to Delhi on 17.11.2011. She further stated that she told Magistrate that she remained in Baba guest house for 3 days and on 4th day accused Rajesh took her to his sister's house at Majnu Ka Tillafor some job but she refused and came back with Rajesh. She further stated that she told Magistrate that on seeing her alone at guest house accused Rajesh tried to commit wrong acts with her and further denied that Gopi tried to commit wrong act with her in the morning. She further stated that Rajesh alone tried to commit wrong acts with her in morning and confronted with her statement recorded by Magistrate. She further deposed that both accused tried to commit rape upon her on 22.11.11 however confronted with statement given to police and magistrate on this point.
11. She further deposed that she remained in Baba guest house for 4 days. And during that period she had not told any person of guest house that accused committed rape on her and also made no cries on being raped by accused persons. She further deposed that she had also told doctors that accused committed rape prior to 23.11.2011 also however confronted on this point with MLC Ex. PW1/B. She further deposed that she was married in year 2006 however her husband had performed second marriage and left her and denied suggestion that no rape has been committed upon her.
12. PW2 Dr. Murli deposed that on 23.11.2011 he examined State Vs. Rajesh etc, SC No. 262/12 page no. 8 of 33 prosecutrix Kalpana and prepared her MLC and prepared four slides from vaginal and vulva and also seized inner garment and other clothes. And further found contusion injury on upper lip and on local examination found hymen was torn at 3 O' clock and 9 O' clock position and edges were tender. In cross examination he deposed that he noticed no injury on front and both limbs and injury on lips are non specific injuries and could be caused due to fall or strike against some hard surface.
13. PW3 Kundan Saini deposed that on 21.11.2011 accused Rajesh came alongwith one lady stated her to be his wife and accused Gopi was also accompanying them and they stayed in room no. 301 of their guest house and left on 23.11.2011 at 10 pm. However due to some computer problem entry regarding their stay could not be made. In cross examination he deposed that he is employee of guest house and further stated that he had not taken documents of identification of accused Rajesh as he had come earlier also one or twice in guest house. He further deposed that their computer repaired on 22.11.11 and accused checked out on 23.11.2011 and he retained with him the duplicate copy of bill but he do not remember whether he had given it to police or not and bill was issued on paper written in ink. He further deposed that none of the waiters reported anything abnormal happening in room and on 23.11.2011 when accused checked out with girl she was in normal condition and had State Vs. Rajesh etc, SC No. 262/12 page no. 9 of 33 not complained anything.
14. PW4 Rajni a counsellor from Pryatan NGO deposed that she was called by IO at PS H.N.Din for counselling prosecutrix Kalpana on 23.11.2011 and she counselled prosecutrix Kalpana. She stated that prosecutrix told her that accused persons brought her to delhi for providing job and to marry her thereafter she came to Delhi alongwith them and on 21.11.2011 she was brought by accused at Majnu Ka Tilla, then they came back to guest house Nizamuddin she further deposed that prosecutrix Kalpana was examined at AIIMS, thereafter they came back and IO recorded statement of prosecutrix in her presence. In cross examination she deposed that she was informed about incident at around 67 pm and IO was talking to prosecutrix and recorded her statement when she reached the PS. However stated that same was not faired. She further stated that she do not know at what time prosecutrix came to PS. And she remained with police and prosecutrix till 1011 pm.
15. PW5 Ct. Manju deposed that on 23.11.2011 she alongwith SI Kamini Gupta, Counsellor Rajni and prosecutrix went to hospital where medical examination of prosecutrix was conducted. Thereafter doctor handed over three sealed pulandas to her which she handed over to IO. In cross examination she do not know the DD entry of departure and she did not notice the seal impressions over the samples.
State Vs. Rajesh etc, SC No. 262/12 page no. 10 of 33
16. PW6 Ct. Hansraj deposed that on 25.11.2011 on instructions of IO he took Rajesh to AIIMS for examination and after medical examination doctor handed over three sealed pulandas and sample seal to him which he handed over to IO.
17. PW7 HC Ram Chander deposed that 23.11.2011 IO had deposited three sealed pulandas in malkhana and further deposited six sealed puladas on 25.11.2011 and on 28.11.2011 he handed over nine sealed pulandas and three seal sample to IO for depositing in FSL. In cross examination deposed that he stated that photocopy Ex. PW7/DA, signatures of Kamini Gupta was not there and denied suggestion that Kamini Gupta made her signatures after 28.11.2011.
18. PW8 Dr. Manish Sharma examined accused Rajesh on 25.11.2011 and on examination gave opinion that there is nothing to suggest that above mentioned persons incapable of performing sexual intercourse under ordinary circumstances. PW9 Dr. Varnit examined accused Gopi and he also opined that there is nothing to suggest that accused Gopi is incapable of performing sexual intercourse in ordinary circumstance.
19. PW10 HC Radha Krishnan deposed that he took accused Rajesh on 25.11.2011 for medical examination and coaccused Gopi was taken by HC Hans Raj for medical examination and after examination three pulandas were given by doctor to them which State Vs. Rajesh etc, SC No. 262/12 page no. 11 of 33 they handed over to the IO. He further deposed that when doctor given the pulandas he was at police station.
20. PW11 Ms. Mona Tardi Karketta, Ld. Metropolitan Magistrate recorded the statement of prosecutrix Kalpana on 26.11.2011 u/s. 164 Cr.P.C.
21. PW12 Ct. Mantu Kumar 28.11.2011 on instructions of IO he took accused Rajesh for medical examination at AIIMS hospital and in cross examination deposed that he brought accused from hospital to court directly and do not know anything about the second accused in the present case.
22. PW13 SI Kamini Gupta, Investigation Officer, deposed that 23.11.2011 prosecutrix Kalpana came to police station around 3.004.00 p.m and gave her statement and before recording her statement she called one Rajni from NGO, Prayatan and statement was recorded in her presence. Thereafter, she was taken to medical examination then dropped prosecutrix at Prayas and came back to PS and made endorsement Ex. PW13/A. She further deposed that both the accused were arrested on 25.11.2011 from Nizamuddin Railway Station, thereafter, both the accused were medically examined and during investigation they pointed out the place of occurrence and on the next day, prosecutrix also pointed out the place of occurrence, then she prepared site plan at the instance of prosecutrix. She further deposed that she brought the prosecutrix to State Vs. Rajesh etc, SC No. 262/12 page no. 12 of 33 Saket court to got her statement recorded u/s. 164 Cr.P.C.
23. In cross examination deposed that she joined duty at PS Nizamuddin on 23.11.2011 at around 3.00/4.00 p.m. after attending court and at that time prosecutrix was present alongwith 23 lady police constables and after some inquiry with prosecutrix she called one NGO and one counsellor Rajni came at around 5/5.30 p.m., thereafter she recorded statement of prosecutrix and prosecutrix in her statement had not given any description of accused person. She further deposed that she had not visited the place of occurrence on 23.11.2011 and left prosecutrix at Prayas after completion of her medical examination and taken out prosecutrix from Prayas on 26.11.2011 at around 10.00 a.m. She further deposed that she could not get any record of staying of accused persons at Baba Guest House because their computer was not working. She further deposed that she herself checked and found that computer was not working. She further deposed that guest house people could not provide her Idproof of accused persons, however, she has not seized any article from Baba Guest House. She further deposed that she recorded statement of one Kundan on 25.11.2011, however, later stated that she recoded statement on 26.11.2011. She further deposed that she had not prepared any site plan at the pointing out of accused persons and during police remand of accused persons she had not taken accused persons to the house of anybody at Majnu Ka State Vs. Rajesh etc, SC No. 262/12 page no. 13 of 33 Tilla. She further deposed that she took the photographs of prosecutrix on 23.11.2011 and called private photographer in this regard, however, neither prepared seizure memo nor recorded his statement.
24. PW14 Inspector Baney Singh deposed that on 24.11.2011 while on patrolling, on secret information, he arrested both the accused persons near the reservation counter of Hazrat Nizamuddin Railway Station. In cross examination deposed that he was present in PS between 8.00 a.m to 12 noon on 23.11.2011 but do not remember the exact duration, however during that period he found prosecutrix was present in the PS and made inquiries from her. However, not recorded her statement and her statement was recorded by SI Kamini Gupta and he made inquiries from her in the evening number of times and do not remember at what time prosecutrix came to police station. He further deposed that he went to Baba Guest house on 23.11.2011 in the evening but not seized any documents of identification of accused persons and prior to arrest of accused persons he did not have any photograph or description about accused persons and arrested accused at around 8.30/9.00 p.m. from reservation counter of Hazrat Nizamuddin Railway station and had not taken the accused persons to Baba Guest house after arrest.
25. Accused persons in their statements u/s. 313 Cr.P.c, denied all the State Vs. Rajesh etc, SC No. 262/12 page no. 14 of 33 circumstances put to them and submitted that they are implicated in the present case falsey and they do not opted to lead any defence evidence.
Material Exhibits
26. Ex. PW1/A is statement of prosecutrix recorded by IO/SI Kamini Gupta on 23.11.2011 at PS H N Din, pursuant to which rukka Ex. PW13/A was prepared and FIR was registered. Ex. PW13/C is rough site plan of the spot. Ex. PW5/A is seizure memo of pulanda and sample seal handed over to Ct. Manju from AIIMS hospital containing underwear, bra, one slide vaginal swab and sample seal. Ex. PW6/A is seizure memo blood gauze, penial swab, control swab and sample seal of accused Rajesh and Gopi. Ex. PW13/B is pointation memo of accused Rajesh and Ex. PW14/E and Ex. PW14/F are the disclosures statement of accused Rajesh and Gopi. Ex. PW14/A and Ex. PW14/B are arrest memos of accused Rajesh and Gopi. Ex. PW14/C and Ex. PW14/D are the personal search memos of accused Rajesh and Gopi showing NIL articles.
27. Ex. PW1/B is MLC of prosecutrix Kalpana with alleged history that she came to Delhi with two persons viz., Rajesh and Gopi three days back and stayed in the guest house where both the accused sexually assaulted her today at 4.00 a.m. at guest house and the assault involved complete penetration by accused persons and according to State Vs. Rajesh etc, SC No. 262/12 page no. 15 of 33 her when she shouted for help she was beaten with fist on her face. Further observed that prosecutrix had not take bath or changed clothes after this assault. On local examination hymen torn at 3 O'clock and 9 O'clock position and menstrual blood seen. Further no injury noted in vagina/anus and two fingers introduced in vagina with minimum resistance.
28. Ex. PW8/A and Ex. PW9/A are MLCs of accused Rajesh and Gopi opining that there is nothing found that both the accused are incapable of performing sexual intercourse in normal circumstances. Ex. PW1/C is statement of prosecutrix u/s. 164 Cr.P.C. recorded by Ld. MM, Mona Tardi Karketta. Ex. PW7/A, Ex. PW7/B and Ex. PW7/D are entries of malkhana register of depositing of case property. Ex. PW13/B is FSL report showing presence of semen on the underwear, vaginal swabs of prosecutrix and penial swabs of accused persons. However, group of semen stains is not certain as per serological report Ex. PW13/E.
29. Ld. counsel for the accused from DLSA submits that the accused persons are falsely implicated in the present case. Ld. counsel further submitted the prosecutrix PW1 Kalpana had given different versions of rape in FIR in her statement u/s. 164 Cr.P.C. as well as in testimony before the court. Ld counsel further submits that in statement u/s 164 Cr.P.C., she had not stated that accused Gopi had State Vs. Rajesh etc, SC No. 262/12 page no. 16 of 33 committed rape upon her. However, she improved in her statement in court and made allegations of rape against accused Gopi also. Ld counsel further submits that as per medical evidence no injury was found on the private part as well as limbs or back of the prosecutrix whereas in her statement she alleged forcible intercourse by tying of hands etc., which itself indicates that if there is any sexual intercourse then that sexual intercourse appears to be consensual in nature. Ld counsel further submits that prosecutrix in her statements stated that she shouted and cried while accused persons were committing rape upon her. However, in cross examination stated that she had not cried when rape was committed over her. Ld counsel further submits that even PW3 the employee of Baba Guest House had not stated any untoward incident during the stay at Baba Guest House.
30. Ld. counsel further submits that prosecution has shown the arrest of accused persons on secret information from reservation counter of Nizamuddin Railway Station, whereas prosecutrix in cross examination categorically stated that accused persons were present in police station at the time of recording of her statement on 23.11.2011 which falsifies the circumstance of arrest of accused persons and also falsified the stand of prosecutrix that she came to police station through some unknown person. Ld. counsel further submits that prosecution has not even examined the other necessary State Vs. Rajesh etc, SC No. 262/12 page no. 17 of 33 witnesses like, family member of prosecutrix, who during investigation had stated that prosecutrix has an history of leaving her house for number of months together without telling anybody. Ld. counsel further submits that on total consideration of evidence, the forcible intercourse is completely ruled out and even if it is presumed that the sexual intercourse took place with prosecutrix then consent of prosecutrix is apparent from the evidence on record. Ld. counsel further submits that prosecution unable to prove its case beyond reasonable doubt, hence, accused persons be acquitted from all charges.
31. Ld. Addl. P.P. on the other hand submitted that minor discrepancies in the statement of prosecutrix is of no value. Ld. Addl. P.P. further submits that prosecutrix categorically named the accused persons in committing rape upon her and same is duly corroborated with the medical evidence as semens also found in her vaginal swab. Ld. Addl. P.P. further submits that PW3 Kundan Saini, employee of Baba Guest House also confirmed the factum of stay of prosecutrix with accused persons at Baba Guest House. Ld. Addl. P.P. further submits that accused persons were found at police station with prosecutrix on 26.11.2011 and not on 23.11.2011. Ld. Addl. P.P. further submits that probative value of the statement of prosecutrix is very high and same cannot be brushed aside on the basis of minor discrepancies or on some exaggerations. Ld. Addl. P.P. further State Vs. Rajesh etc, SC No. 262/12 page no. 18 of 33 submits that prosecution able to prove its case beyond reasonable doubt.
32. Arguments heard. Record perused.
33. Briefly stated case of prosecution that prosecutrix Kalpana (PW1) left her mother's house after some quarrel. Thereafter, when she was going to her sister's house at Pune, she met accused Rajesh and on his promise to provide job and marriage, she came to Delhi with him and both were also accompanied by maternal cousin brother Gopi of accused Rajesh and at Delhi, they stayed at Baba Guest House where she was raped by both accused persons against her consent then somehow she managed to leave their custody and reported matter to the local police. Pursuant to which her medical was conducted and FIR was registered. Thereafter, accused persons were arrested on secret information from near the reservation counter of Nizamuddin Railway station.
Brief Background in what circumstances prosecutrix left her house:
34. Prosecutrix Kalpana (PW1) in her statement Ex. PW1/A before police stated that she is resident of village Badarpur West Mumbai and residing with her mother and younger brother and two three days back she had a quarrel with her mother thereafter, she left her mother's house and on 19.11.2011 came to Jajuri railway station for going to her Mausi's house where she met accused Rajesh who State Vs. Rajesh etc, SC No. 262/12 page no. 19 of 33 induced her for visit to Delhi and also assured to provide some job and made promise to marry.
35. Prosecutrix in her statement (Ex. PW1/C) u/s 164 Cr.P.C before Metropolitan Magistrate stated that on 05.11.2011 as she had not gone for work, therefore, her mother scolded her then in state of anger without telling anybody went to her sister Alka at Pune and there she stayed for about 10 days and then without telling her sister, she thought of going to her mausi's house at Sholapur and for going to Sholapur, she reached Pune Railway station where she met one Sunita and there she told her that she is going to Sholapur because she had quarrel with her mother. Thereafter, Sunita took her to her house and told her that she will get her married and at her house she met Rajesh and Gopi where Rajesh told her that he will take her for visit to Delhi, there they will marry and also provide her good job. Thereafter, they left for Delhi on 15.11.2011 and reached Delhi on 17.11.2011 at around 10 pm and at Delhi she was taken to Baba Guest House.
36. Prosecutrix in her statement before police stated that when she left her mother's house at railway station she met Rajesh and Gopi and thereafter they brought her to Delhi on promise to marry and job. But in her statement u/s 164 Cr.P.C she stated that after quarrel with her mother on 05.11.2011 first she went to house of her sister Alka, thereafter, without telling her she thought of going to the house of State Vs. Rajesh etc, SC No. 262/12 page no. 20 of 33 her Mausi and at Jajuri railway station, she met one Sunita and Sunita took her to her house with assurance of marriage and at her house she met Rajesh and Gopi. Prosecutrix thus had given different versions how she met accused persons or left her mother's house. Prosecution also not tried to examine Sunita who is material witness in these circumstances. One thing is also noticeable that this prosecutrix could not state how she know Sunita and in what circumstances she went to her house and why she made promise of marrying her and what is the background of that promise. Prosecutrix did not state how she met Rajesh and Gopi there and in what circumstances accused Rajesh made promise to marry her.
37. Prosecutrix in her statement before the court stated that she had quarrel with her mother on 19.11.2011 and she started from her house to going to her mausi's house and when she reached railway station she met one Sunita who took her to her house at Pune where she met both accused Rajesh and Gopi and both accused brought her to Delhi. Prosecutrix in cross examination was duly confronted with statement made to police where she had not stated that she met one Sunita and also confronted with her statement u/s 164 Cr.P.C where she had given all story of going to her sister's house and her plan to go to her mausi's house and in what circumstances she met Sunita.
38. The background as projected by the prosecutrix is not giving clear picture of events and it appears that she is trying to conceal some State Vs. Rajesh etc, SC No. 262/12 page no. 21 of 33 true facts. It is not also clear from her deposition that whether she knows Sunita prior to incident or not and on what basis she accompanied Sunita to her house, how she got into the trap of promise of marriage of Sunita. Prosecutrix herself is a matured lady who also stated in her statement that she was already married in 2006 but presently not residing with her husband. Prosecutrix also not stated in her testimony that accused Rajesh brought her to Delhi for promise to marry, in these background the prosecutrix's version of meeting Sunita and purpose of her visit with accused persons for marriage and job appears to be somewhat suspicious. Timings and dates of leaving the house at Mumbai and reaching Delhi:
39. Prosecutrix in her statement to police Ex. PW1/A stated that she left the house of her mother 23 days back i,e on 19.11.2011 and met accused persons at Jajuri railway station who brought her to Delhi for promise of job and marriage. At Delhi they stayed at Baba Guest house and then on 29.11.11 he took her to her sister's house at Majnu ka Tilla.
40. Prosecutrix in her statement u/s 164 Cr.P.C stated that she left the house of her mother on 05.11.2011 after some quarrel to her sister Alka's house at Pune. Then on 13.11.2011 without telling anybody she tried to go to her mausi's house at Sholapur and at Pune railway station, she met Sunita who brought her at her house for arranging State Vs. Rajesh etc, SC No. 262/12 page no. 22 of 33 marriage. Thereafter, on 15.11.2011 she accompanied Rajesh and Gopi to Delhi and they reached Delhi on night of 17.11.2011. As per testimony in the court, she stated that they left Pune on 19.11.2011 and reached Delhi on 21.11.2011.
41. The prosecutrix had given different versions in all the three statements regarding when she meet the accused persons and when she came to Delhi. Police in this regard during investigation do not try to ascertain when prosecutrix came to Delhi from railway department nor seized any railway tickets. Police neither inquired from sister of accused at Delhi nor made any inquiry with Sunita at Pune. Other family members of prosecutrix were also not made the prosecution witnesses. Police unable to seize the records of Baba Guest house where prosecutrix with accused stayed.
42. Prosecution has examined PW3 Kundan Saini of Baba Guest House with regard to factum that accused alongwith prosecutrix stayed in guest house however, stated that due to computer problem he could not give the relevant entries of their stay. IO Kamini Gupta (PW13) also stated that she checked computer entry and found computer not working and therefore could not get the relevant record. However, PW3 in cross examination stated that accused alongwith prosecutrix had left the guest house on 23.11.2011 and he had given the copy of bill and kept the duplicate copy of bill alongwith it. Police had not seized that material copy of bill to ascertain their period of stay at State Vs. Rajesh etc, SC No. 262/12 page no. 23 of 33 Baba guest house. This all point towards the fact that something is deliberately concealed about factum of reaching of accused persons and prosecutrix at Delhi and their duration of stay in Baba Guest House.
Allegations of rape levelled by prosecutrix against both accused:
43. Prosecutrix Kalpana PW1 in her statement to police Ex. PW1/A stated that she came alongwith accused persons at Delhi on 19.11.2011 and they brought her to Baba Guest House and on 21.11.2011 accused Rajesh took her to his sister's house at Majnu Ka Tilla where she didn't feel good therefore, she came back to Guest house and on 21.11.2011 both the accused Rajesh and Gopi committed rape upon her after tying her hands and beating her against her will and consent and somehow in morning of 23.11.2011 she left the guest house, thus, per her statement before the police, rape was committed by both accused persons by tying her hands on 21.11.2011 and she left the guest house on 23.11.2011. However, there is no reference of 22.11.2011 in this statement.
44. This witness in her statement u/s 164 Cr.P.C stated that they came to Delhi on 17.11.2011 and stayed at Baba guest house and on 4th day accused Rajesh took her to his sister's house at Majnu Ka Tilla for job but she refused to work their. Thereafter he brought her to guest house and in absence of accused Gopi, Rajesh removed her clothes and thereafter, forcefully committed rape upon her and started State Vs. Rajesh etc, SC No. 262/12 page no. 24 of 33 crying. Thereafter, in the night at around 10'O clock, Gopi also came but not performed any wrong act with her however, at around 4 am in morning he came on her bed and started removing her clothes and when she obstructed accused Rajesh also woke up and thereafter, Gopi also tried to rape her and Rajesh struck at her mouth, thus she received injuries on her lips, however, she had not allowed both of them to commit rape thereafter both left her and in the morning 10'O clock they decided that they will go to Mumbai and when accused Rajesh left for taking some articles, she silently went out of Hotel and reached police station with help of some uncle. In this statement u/s. 164 Cr.P.C., she categorically stated that accused Gopi had not committed rape upon her though tried the same.
45. Prosecutrix in her testimony had given another version by stating that accused Rajesh forcefully raped her on 21.11.2011 then, on 22.11.2011 accused Gopi also committed rape upon her and this witness was also confronted with her statement u/s 161 and 164 Cr.P.C., thus, her version of commission of rape is different in all statements.
46. The medical examination of prosecutrix is also conducted and as per the medical history there were no injuries found on the limbs and the private parts of prosecutrix neither any injuries were found on trunk or both the limbs. The prosecutrix in her testimony deposed of State Vs. Rajesh etc, SC No. 262/12 page no. 25 of 33 scuffle and tying of her hands by the accused persons. In these circumstances, the absence of injuries also creates suspicion over her version of forcible rape. Further in her statement u/s. 164 Cr.P.C. she categorically stated that she did not allow both of them to commit rape despite scuffle. This itself shows that prosecutrix is strong enough to defend herself and able to defend herself from forceful commission of sexual intercourse.
47. Prosecutrix in her statement u/s 164 Cr.P.C also stated that at the time of this incident of beating and rape she made shouts and cries. One thing noticeable here is that this incident took place in small guest house and as per PW3 Kundan Saini neither the waiters nor any member of the guest house had noticed any untoward incident. Further PW1 Prosecutrix in her cross examination stated that he had not made any cries when she was raped by the accused persons. She further stated that the waiter used to come for giving food etc in the room and she had not told any fact to them. These all circumstances, also do not suggest of any forcible intercourse with the prosecutrix.
48. As per the vaginal swabs taken out during the medical examination, semen stains were found. This somehow confirms that sexual intercourse had taken place with her however, mere the inference of sexual intercourse do not suggests that forcible rape was committed upon her in the manner projected by prosecution. Thus, consent State Vs. Rajesh etc, SC No. 262/12 page no. 26 of 33 element in these circumstances not ruled out.
49. Prosecutrix in her statement u/s 164 Cr.P.C also stated that accused Rajesh had committed rape number of times with her in Pune and thereafter, in Delhi which is inconsistent to her statements made in the court. Further, if accused had committed rape upon her in Pune then what is the occasion for her to come to Delhi with him and why she had not reported the same at Pune, this itself pointed towards consensual sexual relations. The prosecutrix had not stated anything about promise of marriage in her testimony before court. Circumstance of leaving the guest house by the prosecutrix:
50. As per prosecution case prosecutrix left the guest house in morning of 23.11.2011 and reached Nizamuddin PS with the help of some uncle at around 10.0011.00 a.m. However, PW3 Kundan Saini in his statement before the court stated that accused Rajesh alongwith prosecutrix and Gopi left the guest house at 10 am. This itself shows that prosecutrix had not left from the guest house clandestinely by escaping from the eyes of accused Rajesh. Prosecutrix in her cross examination stated that when she reached the PS on 23.11.2011 at around 10 to 11 am, accused persons were also at PS at that time. Therefore, this circumstance that she managed to leave the guest house or escaped from custody of accused persons and went to PS also appears to be suspicious and also dented the circumstance of arrest of accused on 24.11.11 from the reservation counter of State Vs. Rajesh etc, SC No. 262/12 page no. 27 of 33 Nizamuddin Railway Station.
Circumstance of arrest of accused persons:
51. As per testimony of PW14 Inspector Banay Singh on secret information on 24.11.2011, he alongwith SI Abhishek and other police officials arrested accused persons from counter of reservation office of Nizamuddin Railway Station, thereafter their arrest memos were prepared and disclosure statements also recorded. However, arrest memo do not mention any time of arrest. According to this witness, they were arrested from reservation counter of railway station but their personal search memos Ex. PW14/A, C and E shows recovery of 'Nil' articles. This itself create doubt on their apprehension because it is inconceivable that accused were not carrying their articles or even purse at time of their apprehension. This circumstance of arrest is also suspected because prosecutrix in cross examination categorically stated that accused persons were also present alongwith her when her statement was recorded in PS on 23.11.2011.
52. Ld. Addl. PP at this point raised a plea that as per cross examination of prosecutrix actually accused present in police station on 26.11.2011 in presence of prosecutrix and not on 23.11.2011. This contention of Addl. PP do not hold ground firstly, because the prosecutrix in her cross examination categorically stated that she reached PS at around 1011 am on 23.11.2011 and police taken her to State Vs. Rajesh etc, SC No. 262/12 page no. 28 of 33 hospital in evening and prior to taking her to hospital her statement was recorded. It is noticeable that in her statement given to police Ex. PW1/A she had not only named accused persons but also mentioned their father's names and addresses. However, she also stated in cross examination that she do not know parents name and addresses of accused, thus, when prosecutrix herself do not know the father's names and addresses of accused persons, then mentioning of father's names and addresses of accused in FIR on 23.11.2011 itself shows that the accused persons were present in PS on 23.11.11. Further prosecutrix in cross examination categorically stated that accused persons were present with her in police station on 23.11.2011.
Injuries on the lips of the prosecutrix:
53. Ld. Addl. PP vehemently argued that statement of prosecutrix coupled with the presence of semens and injury on her lips categorically indicates that she is forcibly raped by both the accused persons. The medical examination of the girl was conducted at around 9 pm in evening of 23.11.2011 and as per her statement given to doctor in MLC that both the accused had sexually assaulted her with complete penetration and when she shouted for help, she was beaten. First of all, there is inconsistency in statement of prosecutrix as already discussed about commission of rape by both accused together and as already discussed that her consent is not State Vs. Rajesh etc, SC No. 262/12 page no. 29 of 33 ruled out. The medical examination clearly suggests that except injuries on lips there is no other injury on any other part of body including private parts. Thus, injuries found on lips do not reasonably indicates that this is the result of forcible intercourse, however, an alternative inference which appears to be more plausible is that because of this injury prosecutrix tried to involve the accused persons for commission of sexual assault which otherwise do not appear to be forcible. On total consideration of facts and circumstances, consensual sex appears to be more plausible.
Suspicious circumstances associated with registration of FIR:
54. As per prosecutrix version in cross examination, she reached PS at around 1011 am and as per the cross examination of IO PW13 Kamini Gupta she was called at PS and when she was in court at around 34 pm and thereafter, she called the NGO lady PW4 Rajni PW4 Rajni deposed she came to PS at around 67 pm and before reaching her at PS, her statement was already recorded though stated it was not fair. PW4 also stated that she had not asked from Prosecutrix when she came to PS. As per FIR there is nothing mentioned at what time exactly prosecutrix given that statement and PW13 stated that she made endorsement on the statement at night after sending prosecutrix to the 'Prayas'. There appears to be considerable delay of 78 hours in recording of statement of the State Vs. Rajesh etc, SC No. 262/12 page no. 30 of 33 prosecutrix. Further, in statement of the prosecutrix name, father's names and addresses of accused persons also appeared despite the fact she do not know the parents name and addresses which itself shows accused were present in the police station at the time of recording of her statement Ex. PW1/A. In cross examination prosecutrix categorically stated that accused were also kept in PS at that time. However, as per prosecution case the accused were shown to be arrested on next day night from reservation center. In these circumstances, the recording and veracity of FIR itself become suspicious and definitely have adverse affect on the prosecution case.
55. Ld. Addl. PP in his arguments relied upon the judgment of Hon'ble Supreme court titled as 'Balwant Singh Vs. state of Punjab, 1987 CrLJ, 971" for the proposition that prosecutrix version of rape corroborated by medical evidence and presence of semen in her vaginal swab are sufficient to believe the testimony of prosecutrix and her statement is also corroborated by independent NGO witness PW4 Rajni. However, as already discussed the version of prosecutrix over the factum of rape in corroboration of medical evidence do not show forcible rape and circumstances on the other hand suggests consensual sex, if any. The mere testimony of PW4 Rajni that FIR was recorded in her presence does not make the prosecutrix version believable. This witness is not at all associated State Vs. Rajesh etc, SC No. 262/12 page no. 31 of 33 nor knows the background of the prosecutrix. The prosecution further did not try to investigate on the point when exactly she came to Delhi nor tried to examine the sister of accused at Delhi nor tried to examine Sunita and other family members of the prosecutrix.
However, when the prosecutrix was left at her house in Mumbai by the police, her family members stated that she is slightly mentally weak and is in habit of leaving houses for 2 or more months number of times but prosecution not chooses to make them the prosecution witness. In these circumstances, the above cited case is of no help to prosecution
56. On overall appreciation of evidence, the statement of prosecutrix over forcible commission of rape over her by accused persons as already discussed do not appear to be credible. The arrest of the accused persons in the manner suggested by the prosecution is not at all reliable. The injury on the lips of prosecutrix do not suggest that this injury is committed while commission of rape, however, it alternatively suggest that because of this injury she falsely implicated the accused persons in the present case. The prosecutrix version of leaving her mother's house, reaching to her sister's house and meeting to Sunita and accused persons, different in all statements. Prosecutrix in her testimony before the court even not suggested that she was induced by the accused persons to accompany them to Delhi for marriage or job, though it is case of State Vs. Rajesh etc, SC No. 262/12 page no. 32 of 33 police during investigation. Further prosecution had not examined any other material witness like Sunita and her family members, not even seized the material record of Baba Guest House or railway tickets.
57. Entire prosecution case hinges around the vacillating testimony of the prosecutrix which smacks the consent on her part for sexual intercourse with accused persons. Further, the injury on lips of prosecutrix otherwise suggests that because of this she falsely implicated the accused persons for rape. However, as this injury is not result of the rape, therefore, accused even could not be held liable for causing this injury because it is not the case of prosecution.
58. Prosecution is required to prove its case beyond reasonable doubt, but prosecution unable to do so, hence, accused Rajesh and Gopi are entitled for benefit of doubt. Hence, acquitted of all charges framed against them. Accused persons are directed to furnish personal bonds in the sum of Rs. 15,000/ each with one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 30th August, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Rajesh etc, SC No. 262/12 page no. 33 of 33