Delhi District Court
State vs Upender Bahadur @ Kanchha on 5 September, 2014
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IN THE COURT OF SHRI YOGESH KHANNA,
ADDITIONAL SESSIONS JUDGE - SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique ID No. 02406R0276582011
SC No. : 43/2013
FIR No. : 150/2011
U/s. : 376 IPC
PS : Sarita Vihar, New Delhi.
State
(Govt. of NCT of Delhi)
........................ Complainant.
Versus
1. Upender Bahadur @ Kanchha
S/o Shri Ram Bahadur
R/o Village Mathiyo
P.O Pohal, P.S Boriyo,
District Sahebganj,
Jharkhand.
2. Rajeev Yadav
S/o Shri Indal Singh Yadav
R/o Village Sihawali, P.O Gauuhat,
P.S Hayat Nagar, District Muradabad,
Uttar Pradesh.
3. Bhootla
S/o Shri Birsa Lakhwar
R/o Village Partta Guttoo,
P.O Pottari Khaman, P.S Karmunda,
District Sunder Garh,
Orissa.
.........................Accused person.
Date of Institution : 8-1-2013
Judgment reserved for orders on : 28-8-2014
Date of pronouncement : 5-9-2014
SC No. : 43/2013
State v. Upender Bahadur @ Kancha and others Page No. 1
FIR No. : 150/2011
PS : Sarita Vihar, New Delhi.
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JUDGMENT
1. On 17-7-2011 the prosecutrix "A" ( name and address given in the complaint - Ex.PW3/A ) had lodged a complaint with police of P.S Sarita Vihar, New Delhi, stating, interalia, that :
"I am a permanent resident of Orissa. On 17-7-2011, thursday, I had reached Delhi along with my cousin brother Kanchan to fetch my cousin sister, prosecutrix "G" daughter of Shri Kaka, a resident of Sundergarh, Orissa, who was working as a maid servant at house no. 6/15, second floor, Model Town, Delhi. On 15-7-2011 at about 10:30 AM I along with my sister, prosecutrix "G"
and brother Kanchan reached Nizamuddin Railway Station. We could not purchase tickets of the train due to heavy rush and hence we missed the Utkal train. We stayed at the railway station on that day. On 16-7-2011 at about 8 AM we purchased the ticket of Utkal train and were waiting for it at Platform No. 2 when at about 9 AM one SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 2 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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boy came near us and told his name to be Rajeev. He said that he is also going to Raurkela and that he would join us. We talked with each other for about two hours. At about 11 AM two more boys, namely, Bhootla and Upender Bahadur came near us and started talking with Rajeev @ Mama. At about 12:20 PM, Utkal train reached at Platform No. 2 but we could not board the train due to heavy rush. These boys also could not board the train. Upender Bahadur then told us that his sister's house is nearby and that we should accompany them there and he would make us board the train next morning. At about 1 PM all the three boys took all of us from the Nizamuddin Railway Station to his sister's house at Madanpur Khadar, New Delhi. At about 5 PM Rajeev Yadav and Bhootla brought me and my brother Kanchan, to Nizamuddin Railway Station market leaving behind my sister, prosecutrix "G" at Madanpur Khadar for purchasing sleepers for my brother Kanchan. We roamed here and there for sometime and during this period SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 3 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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Kanchan got separated from us. We searched for him for quite some time but he could not be located. Then Rajeev took me to a room of Bhootal as it was night time and said that we would search Kanchan in the morning. At about 8 PM we reached at the room of Bhootal and after taking dinner, Bhootal went upstairs on the roof but Rajeev brought me inside the room of Bhootal. At about 1 AM, in the night, Rajeev committed rape upon me. On 17-7-2011, at about 7 AM, Rajeev brought me to Madanpur Khadar where I met my sister, prosecutrix "G" who also told me that Upender Bahadur had committed sexual intercourse with her, thrice, during the night. Thereafter we came to police station and lodged this complaint."
2. On the basis of the above complaint, FIR bearing no. 150/2011, under section 376 IPC was registered at P.S Sarita Vihar, New Delhi. During investigation both the accused were arrested and the statements of both the prosecutrix(s) "A" and "G" were recorded under section 164 SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 4 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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Cr.P.C by the Ld. M.M. After completion of investigation the charge sheet was filed.
3. Since it is a Session's triable case, it was committed to this court. On 19-1-2012, separate charges under 376 IPC were framed against both the accused person. Both the accused pleaded not guilty and claimed trial. However, accused Bhutal was discharged vide order dated 16-1-2012.
4. In order to prove its case, the prosecution had examined as many as 22 witnesses and thereafter statements of both the accused person were recorded under section 313 Cr.P.C wherein they denied all the incriminating facts and stated that they are innocent and have been falsely implicated in this case by the prosecutrix(es).
5. Before proceeding further let me state in brief the statements made by the prosecution witnesses.
PW1 HC Sanjay Kumar, the Duty Officer, had recorded the FIR SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 5 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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Ex.PW1/A and made endorsement Ex.PW1/B on the Rukka.
PW2 HC Amar Singh, on 17-7-2011, along with W/Ct. Sudesh had taken both the prosecutrix to AIIMS for their medical examination. The doctor had handed over sealed pullandas to W/Ct. Sudesh who gave it to PW2, seized vide memo Ex.PW2/A. PW3 is prosecutrix "A"
and PW4 is prosecutrix "G".
PW5 Shri Dharmender Bidhuri deposed that in January, 2011 one Kamleshwar Nayak took on rent a room at the first floor in his house. On 15-7-2011 one girl came to him and told that accused Upender Bahadur had committed rape upon her. He took accused Upender Bahadur to police station where he was arrested.
As he was not able to recollect the events due to lapse of time so the Ld. Addl. P.P for the State cross examined him. During cross examination he admitted that the SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 6 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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prosecutrix had disclosed to him that the accused along with his friend had brought her, her sister and her brother on 15-7-2011 to the room of Kamleshwar Nayak from Nizamuddin Railway Station and whereas one girl and her brother was taken to the market by accused Rajeev. In his presence a blanket was also seized from the said room.
PW6 Lady Ct. Sudesh in the intervening night of 16th /17th July, 2011 had taken the prosecutrix "A" and prosecutrix "B" to AIIMS along with the investigating officer and HC Amar Singh (PW2) for their medical examination and the exhibits given to her by the doctor, were seized by the Investigating Officer.
PW7 Smt Vinita deposed that about one year or one year three months prior to the recording of her statement, accused Upender Bahadur came to her house with two unknown girls and a boy. At about 1:30 - 2 PM accused told her that those girls were residents of his native village. He SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 7 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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told PW7 that he want to stay for about an hour along with those girls in her house. However, despite her request, neither accused Upender Bahadur nor his friends left her house. In the evening accused Rajeev along with one girl and a boy left their house to purchase sleepers and whereas Upender Bahadur and one girl stayed at her house.
However, PW7 deposed that girl who stayed with them did not disclose her about the rape committed upon her by accused Upender but PW7 admitted that police seized a blanket from her house on which Upender slept on the night.
PW8 HC Rattan Lal, on 18-7-2011, had taken accused Upender Bahadur to the AIIMS and got him medically examined. The doctor had handed over the sealed parcels along with sample seal to him, seized by the Investigating Officer vide memo Ex.PW8/A. SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 8 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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PW9 Ct. Suresh in the year 2011 was posted at police post Madanpur Khadar, New Delhi. One person, namely, Dharmender Bidhuri came to police post along with two girls and a boy, namely, Upender Bahadur and alleged that accused Upender Bahadur had raped one of the girls. PW9 took all of them to P.S Sarita Vihar where the Investigating Officer recorded the statement of both the prosecutrix(es) and then the FIR was registered. The Investigating Officer then went to the place of incident and seized the blanket after sealing it with the seal of JK vide seizure memo Ex.PW3/G. Accused Upender Bahadur was arrested vide memo Ex.PW3/B ; his personal search was conducted vide memo Ex.PW9/A and he made disclosure Ex.PW9/B. PW9 identified the said blanket as Ex.P1.
PW10 Ct. Brijesh deposed that in his presence the Investigating Officer along with the prosecutrix had gone to Nizamuddin Railway Station SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 9 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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from where accused Rajeev was
arrested vide arrest memo
Ex.PW3/D. Accused Rajeev was got medically examined at Trauma Centre, AIIMS. The personal search of accused Rajeev was carried out vide memo Ex.PW10/A and his disclosure Ex.PW10/B was recorded. PW10 further admitted that on 23-7-2011 he had gone to house no. A-46, Village Sarai Kale Khan, New Delhi and a bed sheet of chocolate colour was recovered, sealed with the seal of JK and seized vide memo Ex.PW3/E. The exhibits given by the doctor were also seized vide memo Ex.PW10/C. PW11 Ct. Rajesh Kumar, on 17-7-2011, had taken accused Upender Bahadur to AIIMS. After his medical examination the doctor had handed over to him four sealed parcels with sample seal which he deposited with the MHC(M).
PW12 Ct. Mukesh Dalal is a witness of arrest of accused Rajeev Yadav. He admitted that a bed sheet SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 10 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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was seized from the room of accused Rajeev Yadav.
PW13 Dr. Momita, on
18-7-2011, had examined the
prosecutrix "A", aged 20 years, vide MLC Ex.PW13/A and prosecutrix "G", aged 19 years vide MLC Ex.PW13/B. The exhibits were prepared, sealed and then along with the sample seal were given to the police official(s) accompanying the prosecutrix(es).
PW16 Lady Ct. Anuradha, on 23-9-2011, had collected the sample pullandas containing the exhibits / case property along with sample seal vide RC No. 109/21/2011 dated 23-9-2011 ( Ex.PW16/A ) and went to the FSL, Rohini and deposited it there. She brought the acknowledgment Ex.PW16/B and gave it to the MHC(M).
PW17 Ms. Mona Tardi Kerketta, Ld. MM, on 19-7-2011, had recorded the statements Ex.PW3/A and Ex.PW4/A of both the prosecutrix(es) and gave the SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 11 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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correctness certificates.
PW18 Dr. Sudhin had proved the bone-age X-ray report Ex.PW18/A of the prosecutrix(es) prepared by Dr. Charanjiv.
PW19 HC Vijay Kumar had proved the relevant entries of Register no. 19 pertaining to the deposit of the case properties and sending them to the FSL. The said entries are running into six pages and the same are Ex.PW19/A. He also proved the Road Certificate No. 109/21/2011 Ex.PW16/A and acknowledgment Ex.PW16/B of the FSL.
PW20 Dr. Davender Singh Jaggi is the person with whom the prosecutrix "G" was working as a domestic servant. He deposed that in the evening of 14-7-2011 one prosecutrix "A" along with her brother Kanchan came to his house to take prosecutrix "G" to their native village. He gave Rs.15,000/- to them as they wanted to catch the train next morning. On 20-7-2011 he SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 12 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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received a call from prosecutrix "G" that both the prosecutrix(es) have been raped. He went to police station where his statement was recorded.
During his cross examination he could not produce any written record of employment of both the prosecutrix or payment of their salary.
PW21 Shri Kaleshwar Nayak deposed that in the year 2011 he was residing as a tenant in the house of Dharmender Bidhuri at Madanpur Khadar. On 17-7-2011 the accused person had brought two girls and a boy who were from the village adjoining to their native village and they came at his house at about 3 PM. The accused told him that the girls had missed their train and they intend to stay at their place on that night. One of the girls had stayed at his house on that night. PW21 deposed that the girl who had stayed at his house did not report to him about rape allegedly committed by accused Upender Bahadur. He admitted that the blanket was SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 13 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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recovered from his house.
During his cross examination PW21 deposed that the prosecutrix slept with his wife and children on the said blanket and whereas accused Upender slept in the another room.
PW22 W-SI Josepha Kujur, the Investigating Officer, deposed that she had recorded the statement Ex.PW3/A of the prosecutrix ; made endorsement on it and got the present FIR registered ; prepared the site plan Ex.PW22/A ; recovered a blanket; seized it vide memo Ex.PW3/G. She also arrested accused Upender vide memo Ex.PW3/B ; conducted personal search vide memo Ex.PW9/A ;
recorded his disclosure Ex.PW9/B. She also arrested accused Bhootal vide memo Ex.PW3/C at the instance of the prosecutrix from Hazarat Nizamuddin Railway Station ; conducted his personal search vide memo Ex.PW22/B ; recorded his disclosure Ex.PW22/C. PW22 also SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 14 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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got conducted the medical examination of accused Upender and Bhootal at Apollo Hospital vide MLCs Ex.PW22/D and Ex.PW22/E. She also got both the prosecutrix examined vide MLCs Ex.PW13/A and Ex.PW13/B ; collected the exhibits pertaining to both the prosecutrix from their examining doctors. PW22 also got accused Upender examined qua his sexual potency vide MLC Ex.PW14/A ; collected his exhibits from the doctor and seized it vide memo Ex.PW8/A ; arrested accused Rajeev Yadav at the instance of prosecutrix vide memo Ex.PW13/D ; got conducted his personal search vide memo Ex.PW10/A and recorded his disclosure Ex.PW10/B. Accused Rajeev got recovered a printed bed sheet from house no. A-46, Satish ka Makan, Sarai Kale Khan, Delhi and after converting it into a pullanda it was seized vide memo Ex.PW3/F. She also prepared a site plan Ex.PW22/F. PW22 also got accused Rajiv Yadav medically examined qua SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 15 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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his sexual potency vide memo Ex.PW15/A ; collected the exhibits pertaining to him vide memo Ex.PW10/F ; got conducted the bone age X-ray of both the prosecutrix(es) vide report Ex.PW18/A and Ex.PW22/G ; got recorded the statements Ex.PW3/E and Ex.PW17/B under section 164 Cr.P.C of both the prosecutrix(es) vide her application Ex.PW17/A ; obtained the copies of such fresh statements vide her application Ex.PW17/D. On 23-9-2011 PW22 also got sent the exhibits to FSL Rohini through L/Ct Anuradah vide RC Ex.PW16/A and proved its acknowledgment Ex.PW16/B ; also seized three platform tickets of dated 15-7-2011 vide memo Ex.PW22/H ; proved the FSL result Ex.PW22/J and her application Ex.PW22/K in this regard.
6. I have heard the arguments and have perused the material available on record.
SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 16 FIR No. : 150/2011
PS : Sarita Vihar, New Delhi.
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Before giving any opinion it would be appropriate to look into the deposition of both the prosecutrix(es).
Prosecutrix "A" was examined as PW3 and she has deposed as under :
Prosecutrix "G" is my
cousin sister. About 8 month from
now, on 15th of a month, I with my cousin brother Kanchan and "G" had reached Nizamuddin Railway Station to take a train for our native village but could not get the train tickets and had to stay on the platform at night. Next day at about 8 AM when we were waiting for the train, accused Rajeev came to us and said that he also hails from Orissa and he started talking to us. After sometime accused Bhootal and accused Upender Bahadur also reached there and they also started talking to us saying that they are also the residents of Orissa and are going by train. At about 12:20 PM, train arrived at the platform but we could not board it due to heavy rush. At about 1 PM all the three boys enticed us and took us SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 17 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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to a house at Madanpur Khadar, New Delhi saying that their sister resides there. After sometime these boys asked us to purchase sleepers for my cousin brother Kanchan as he was wearing ladies sleepers. At about 5 PM the said boys took me and my brother Kanchan to Nizamuddin Railway Station but Kanchan was lost in the crowd there. We searched for Kanchan but we could not locate him. Accused Rajeev Yadav then took me to the room of Bhootal where we took food and then I lay on the bed. At about 1 am, accused Rajeev Yadav forcibly put of my clothes and committed sexual intercourse against my wishes. I raised alarm but none came to help me and that accused Rajeev kept on committing sexual intercourse with me ignoring my cries. After about 1-2 hours, accused Rajeev again committed forcible sexual intercourse with me. In the morning I asked accused Rajeev Yadav to take me to my sister. At about 7 AM accused Rajeev brought SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 18 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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me to Madanpur Khadar where my sister "G" also disclosed to me that accused Upender Bahdaur had committed sexual intercourse with her thrice on the same night against her wishes. I then disclosed the incident to the landlord of the house and the said landlord brought us to the police station where the police recorded my statement Ex.PW3/A and then took both of us to the hospital for our medical examination. I narrated the incident and handed over my underwear to the said doctor. All the three accused person were also arrested in my presence. My statement Ex.PW3/E was also recorded under section 164 Cr.P.C by the Ld. MM.
Since the prosecutrix "A" (PW3) was resiling from her earlier statement she was cross examined by the Ld. Addl.
P.P and she admitted that police seized a bed sheet from a room where she slept that night and also a blanket from the room at Madanpur Khadar, New Delhi where prosecutrix "G"SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 19 FIR No. : 150/2011
PS : Sarita Vihar, New Delhi.
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had slept in the night ; vide memos Ex.PW3/F and Ex.PW3/G respectively.
During her cross examination by the ld. counsel for the accused she deposed that :
"she was working in Delhi for the last about six years. She did not hand over the tickets to the Investigating Officer as those were lost somewhere. She was also confronted as to if the said lady (PW7) was the sister of all or one of the accused . She further deposed that as the accused told her to be the residents of Orissa so she and her sister believed them and had accompanied them. She further deposed that accused Rajeev and accused Bhutal had accompanied her and her brother Kanchan to Nizamuddin Railway Station for purchasing the slippers. She admitted that there were several houses adjoining the room where she was kept by accused Rajeev but she deposed that she went to that room as she was compelled by the accused and that she had rather requested SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 20 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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the accused to take her to the place where her sister was staying. PW3 admitted that she went to Madanpur Khadar, New Delhi in an auto rickshaw with accused Rajeev and she did not disclose the incident to any public person on the way and also to the auto rickshaw driver as was under fear at that time. She also admitted that prosecutrix "G" had also not disclosed the offence to anyone till she had reached there.
Prosecutrix "G" was examined as PW4 and she deposed as under :
"I was working as a maid at house no. 6/15, second floor, Model Town, Delhi for the last about three years. Prosecutrix "A" and Kanchan, my brother came to take me to Orissa. We reached Nizamuddin Railway Station but we could not board the train due to heavy rush and hence we stayed on the platform in the night. Next morning we purchased the tickets and kept on waiting at the platform. Accused SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 21 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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Rajeev Yadav came there and introduced himself to be a resident of Orissa and he started talking to us. In the meanwhile, accused Bhootal and accused Upender Bahadur also reached there and saying that they too are the residents of Orissa, started talking to us. We missed our train yet again due to heavy rush. Then they told us that their sister is residing at Madanpur Khadar, New Delhi and they asked us to accompany them to her house. We agreed having faith upon them. Prosecutrix "A" and Kanchan then left for Nizamuddin Railway Station with Bhootla and accused Rajeev for purchasing sleepers for Kanchan. However, Kanchan was lost in the said market. I remained in the house at Madanpur Khadar, New Delhi with accused Upender Bahadur. I stayed in a separate room and whereas the sister of accused and her husband slept in another room. Accused Upender had also gone to another room but at about 12 am (night), SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 22 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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accused Upender Bahadur came to my room and gagged my mouth. I raised alarm but he forcibly put off my clothes and committed sexual intercourse with me. I tried to stop him but he kept on committing the sexual intercourse with me. He committed sexual intercourse with me thrice that night. On the next morning, prosecutrix "A" came there and then I disclosed the incident to her. She also told me that accused Rajeev had committed rape upon her. We then informed the landlord of the house about this incident, who took us to police station along with accused Upender Bahadur. We narrated the incident to police and the present FIR was lodged. We were got medically examined. The police seized a blanket from the room where I slept that night vide seizure memo Ex.PW3/G. Accused Upender Bahadur was arrested. I also made a statement Ex.PW4/A under section 164 Cr.P.C before the Ld. Metropolitan Magistrate. Police also seized a bed SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 23 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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sheet in this case.
During her cross examination, prosecutrix "G"
deposed that :
"at 10 AM the next day, prosecutrix "A" had returned to Madanpur Khadar, New Delhi from Nizamuddin Railway Station, New Delhi. PW4 admitted that she did not disclose the incident to anyone including the sister of accused or her husband till prosecutrix "A" had reached there. She deposed that the house where she stayed that night was surrounded by other houses and that the landlord of the house was residing in the neighbourhood. PW4 denied that she ever consented for sexual intercourse though she admitted that she voluntarily had gone to Madanpur Khadar, New Delhi with the accused person to stay with their sister and was never compelled by accused."
7. On the basis of above evidence, the Ld. Prosecutor argued that the prosecution has proved its case beyond SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 24 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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reasonable doubt and hence the accused person be convicted for the offence under section 376 IPC each but whereas the ld counsel for the accused argued that accused person be acquitted as they are innocent and were falsely implicated.
8. Now both the prosecutrix(es) have admitted that on 15-7-2011 they along with their brother Kanchan had gone to Nizamuddin Railway Station to board a train for Orissa. On that day they could not get tickets and stayed on the Railway Station. Next day at about 8 AM they met accused Rajeev Yadav at the platform who told them that he hails from their native place and is also returning to Orissa. After some time two other person, namely, Bhootla and accused Upender Bahadur, reached there. They were the friends of accused Rajeev and also told the prosecutrix(es) to be the residents of Orissa and were returning there. It is also unanimously deposed by both the prosecutrix(es) that they could not board the train even on that day due to heavy rush and hence were allured by the accused person to stay at their sister's house at Madanpur Khadar, New Delhi and thus these accused took the prosecutrix(es) and their brother at Madanpur Khadar, SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 25 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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New Delhi.
It is also unanimously deposed by both the prosecutrix(es) that in the evening accused Rajeev had taken prosecutrix "A" and her brother Kanchan to Nizamuddin Railway Station on the pretext of purchasing slippers for Kanchan. However, the said Kanchan was lost in the crowd and could not be located. In such event the prosecutrix "A"
was brought by accused Rajeev to the room of Bhootla near Nizamuddin Railway Station. Though Bhootla went upstairs to sleep but accused Rajeev entered the room of prosecutrix "A"
and committed sexual intercourse with her on that night.
PW3 tried to raise alarm but accused threatened her not to raise voice. Next morning the prosecutrix "A" was brought by accused Rajeev in an auto to the Madanpur Khadar, New Delhi where prosecutrix "G" had stayed the earlier night.
It is also being unanimously deposed by prosecutrix "G" (PW4) that when prosecutrix "A" and their brother Kanchan had left with accused Rajeev Yadav and Bhootla for Nizamuddin Railway Station to purchase sleepers, she was left alone at Madanpur Khadar, in the house of sister of accused and she kept on waiting for her sister "A" and her SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 26 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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brother but both did not return that night. Hence, she slept in one of the rooms where accused Upender Bahadur committed sexual intercourse, thrice, with her against her will and without her consent.
It is also unanimously deposed by both the prosecutrix(es) that they did not report this matter to anyone due to fear but when they shared their experiences with each other the next morning, it was only thereafter they got courage to reach the landlord of the said house, namely, Shri Dharmender Bidhuri (PW5) who then took both the prosecutrix(es) along with accused Upender Bahadur to the police station and the FIR was registered.
The deposition of both the prosecutrix(es) is corroborative and further find due support from PW5 Shri Dharmender Bidhuri, the landlord of the said house at Madanpur Khadar, where the prosecutrix "G" was raped by accused Upender Bahadur and PW5 also confirms that in the morning both the prosecutrix(es) approached him and had reported about rape committed upon prosecutrix "G" by accused Upender. He then took both the prosecutrix(es) to the police station and got the present FIR registered.SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 27 FIR No. : 150/2011
PS : Sarita Vihar, New Delhi.
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Further the prosecution also gets support from the deposition of PW7 Smt Vinita, sister of accused and PW21 her husband, who both admit that two girls and a small boy were brought to their house by the accused person on 15-7-2011 and then in the evening accused Rajeev and accused Bhootal took Prosecutrix "A" and the small boy to Nizamuddin Railway Station Market for purchase of sleepers for Kanchan and that prosecutrix "G" stayed overnight in their house.
Though PW7 the sister of accused and her husband PW21 deposed that prosecutrix "G" did not report the incident to them but this fact has already been explained by both the prosecutrix(es) that they did not disclose the incident of rape to any public person including the sister and jija of accused due to fear and that it was only after they meet each other and had exchanged their experiences both got courage to report the matter to the landlord Shri Dharmender Bidhrui (PW5) who then took both of them to the police station and got recorded the present complaint.
Though, the Ld. Amicus Curie cried for false implication, but it is pertinent to mention that both the SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 28 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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prosecutrix(es) are poor girls, not from a good background, were about 19 years of age at the time of incident and per their depositions these young girls claim to have been lured by the accused person to a place at Madanpur Khadar, New Delhi and later were deliberately separated from each other by these accused person and they then committed rape upon both of the prosecutrix(es) at different places.
Since both the prosecutrix(es) were separated from each other by the accused person so even if they did not raise any hue or cry at the time of incident, I feel that both acted naturally in the given circumstances as both found themselves separated in a city like Delhi, under the clutches of unknown boys, hence even if they did not raise voice due to fear it would hardly affect the case of prosecution. It is needless to mention that both these girls being from a village background may not have mustered enough courage due to fear but once they were together and shared their experiences both raise voice(s) against the offence committed by these accused person and then without any loss of time, both reported the matter to the landlord and then to police.SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 29 FIR No. : 150/2011
PS : Sarita Vihar, New Delhi.
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Hence, I am of the opinion that prosecution had duly proved its case through the deposition of the prosecutrix(es) which appears to be natural, that both were raped after being separated from each other by the accused Rajeev Yadav and by accused Upender Bahadur. Their deposition are duly corroborated even by their statements given to police and to the Ld. M.M. and also with the testimonies of PW5, PW7 and PW21.
Though it was argued by the ld Amicus Curie on behalf of both the accused that these prosecutrix had willingly accompanied the accused, I disagree. It has already came on record that both these accused and their friend Bhootal had met the prosecutrix(es) at the Nizamuddin Railway Station, took them into their confidence by telling them that they do belong to their native places and thus believing the accused, these poor young girls accompanied accused to the house of their sister and then cleverly these accused got both of these girls separated from each other so that accused can easily commit the crime by putting them under fear and by taking advantage of their circumstances. One can not expect from these poor young village girls, working in Delhi as maid SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 30 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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servants to have raised hue and cry after finding themselves alone in a city like Delhi, their brother having been lost in the crowd and finding no other place to go and no other person to rely upon.
Thus, looking at the facts and circumstances of the case, I am of the considered opinion that both the prosecutrix(es) acted naturally and that once both these girls came together they immediately reported the matter to police without delay.
Lastly, on plea of false implication I would say that per the deposition of prosecutrix(es), they have met the accused person for the first time and hence both these prosecutrix(es) do not have any clear motive with them to falsely implicate the accused person in this case. Rather, the FSL report Ex.PW22/J do show semen in the vaginal slide of one of the prosecutrix.
Hence, in totality of the circumstances I am of the considered opinion that the prosecutrix(es) have proved their case against the accused person beyond reasonable doubt and hence both the accused person are liable to be held guilty for the commission of offence punishable under section SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 31 FIR No. : 150/2011 PS : Sarita Vihar, New Delhi.
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376 IPC each. Thus, both the accused Rajeev Yadav and accused Upender Bahadur are convicted under section 376 IPC.
Now to come up for arguments on sentence. Announced in the open court today i.e. 5-9-2014 ( Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi.
SC No. : 43/2013 State v. Upender Bahadur @ Kancha and others Page No. 32 FIR No. : 150/2011
PS : Sarita Vihar, New Delhi.