Delhi District Court
Sc No. 58/11 State vs Nisha @ Dimple Etc. Page No. 1 Of 12 on 12 November, 2013
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS:NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID No. 02406R0516802009
SESSIONS CASE No. 58/11
FIR No. 196/09
POLICE STATION : AMAR COLONY
UNDER SECTION : 376/363/366/372 IPC
STATE
VERSUS
1 NISHA @ DIMPLE
W/o SH. TARSEM MEHRA
R/O H.NO. 7B/11, PRIVATE COLONY,
SRINIWAS PURI, NEW DELHI.
PERMANENT ADDRESS: 311, PRAKASH MOHALLA,
GARHI, NEW DELHI.
2 SALIM KHAN
S/O SH. SABBIR KHAN,
R/O H.NO. 198A/30, GALI NO. 2, RAMESH MARKET,
GARHI, NEW DELHI.
3 ALAM
S/O SH. MOHD. JAMIL,
R/O H.NO. 365, MARWARI GALI, IDGAH ROAD,
SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 1 of 12
SADAR BAZAR, DELHI.
4 NASEEMUDDIN
S/O SH. NIZAMMUDDIN
R/O H.NO. E36, AZIM KI DAIRY, JAMIA NAGAR,
NEW DELHI.
5 SHEKHAR,
S/O SH. RAM SUKH,
R/O H.NO. 32/77, PRIVATE COLONY,
SRINIWAS PURI, NEW DELHI.
6 MOHD. KASIM
S/O SH. KALLU RAM,
R/O H.NO. C151, DASGARHA MOHALLA
PARKASH MOHALLAH, GARHI, NEW DELHI.
PERMANENT ADDRESS:VILLAGE DEDHOLI, PS DEDHOLI,
DISTRICT AMROHA, UP.
7 IFTEKHAR
S/O SH. SATTAR,
R/O - ROOM NO. 38, PURANA JASOLA,
SARITA VIHAR, NEW DELHI.
PERMANENT ADDRESS: VILLAGE MANALLA,
PS ASMOLI, DISTRICT MURADABAD, UP.
8 GOVERDHAN @ LATOORI
S/O SH. RAM SAHAY,
R/O H.NO. D35, GAON PURANA JASOLA,
SARITA VIHAR, NEW DELHI.
SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 2 of 12
DATE OF INSTITUTION : 14.07.2009.
DATE OF RESERVING ORDER : 12.11.2013.
DATE OF DECISION : 12.11.2013.
J U D G M E N T
Case of Prosecution:
1 On 16.04.2009 Smt. Parvati Devi W/o Late Sh. Chander Mohan lodged a report vide DD No. 23A in Police station Amar Colony stating that she works as maid and her daughter namely 'X' (name withheld to keep her identity confidential) is not traceable and made suspicion that somebody has kidnapped her daughter. On her complaint case was registered and investigation was assigned to ASI Bimla Devi. During the investigation of the case, IO / ASI Bimla Devi received an information that one lady namely Dimple @ Nisha had kidnapped and confined the minor girl 'X' in a rented house in Sriniwas Puri. Thereafter, raid was conducted and prosecutrix 'X' was recovered from the possession of accused Dimple @ Nisha. Statement under section 161 Cr.P.C of prosecutrix namely 'X' was recorded and after recording the statement of prosecutrix, sections 366A/368/372/376/34 IPC were added. Prosecutrix namely 'X' was got medically examined and her bony age examination was also conducted. During further investigation of the case, other accused persons were also arrested. They were got examined in AIIMS Hospital. Statement of prosecutrix under section 164 Cr.P.C was also got recorded. On the allegations of prostitution sections 4/5/6 ITP Act SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 3 of 12 was also added in the case. During the investigation accused Goverdhan @ Latoore and Iftekhar were arrested and were medically examined in AIIMS Hospital. Exhibits were sent to FSL for examination. Subsequently, after completion of investigation, charge sheet against accused Nisha @ Dimple under Section 363/366/366A/368/376(g)/372/109/34 IPC, 4/5/6 ITP Act, accused Alam under section 376 IPC, accused Nasemuddin under section 376(g)/34 IPC, Shekhar under section 376(g)/34 IPC, accused Mohd. Kasim under section 376 IPC, accused Iftekhar under section 376(g)/34 IPC and accused Goverdhan @ Latoore under section 376(g)/34 IPC was filed in the court.
2 Since the offence under Section 366/366A/376 IPC are exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused persons: 3 Prima facie case under Section 363/366A/372 IPC, 4/5/6 of ITP Act against the accused Dimple @ Nisha, under section 376 IPC against the accused Salim, Kasim and Alam, under section 376(2)(g) IPC against the accused Nasimuddin, Shekhar, Iftekhar and Goverdhan was made out and charge was framed upon the accused persons who pleaded not guilty and claimed trial.
Witnesses Examined:
SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 4 of 12
4 In support of its case, prosecution has examined seventeen witnesses in all. The brief summary of deposition of the prosecution witnesses is as under: Material Witnesses: 5 PW2 is prosecutrix herself. She deposed that in her family they are three sisters and one brother. Ms. Gulshan is the friend of her sister Ms. Vandana. Her sister Ms. Vandana used to know Nisha @ Dimple and she used to know accused Nisha @ Dimple through her sister Ms. Vandana. She stated that Ms. Gulshan used to take her to the house of Nisha @ Dimple. One day, date and month she do not know but it was last year, she went to the house of Nisha @ Dimple. Accused Nisha @ Dimple told her that "Yeh Kaam Kar le Nahi to Tere Bhai ko Maar Denge". Accused Nisha @ Dimple told her that she should offer herself for sex with other persons and also scolded her. One day she tried to run away from the house of accused Nisha @ Dimple but accused Nisha @ Dimple caught hold of her and confined her in her house for five days. Accused Nisha @ Dimple made me to consume liquor. After consuming liquor, I used to become unconscious and I do not know who used to visit at the house of Nisha @ Dimple and what was happening with me. Accused Nisha @ Dimple used to take her some where and used to bring her back in an Auto. She do not know where accused Nisha @ Dimple took her during these five days. Accused Nisha @ Dimple used to take her to some places and she used to offer her for sex to other persons. She do not know the names of persons who committed sex with SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 5 of 12 her. PW2 has identified the accused Nisha @ Dimple out of all the accused persons who were shown to her. She further stated that the persons who have committed rape upon her are not present in the court. PW2 further stated that daughter of accused Nisha @ Dimple told her mother that PW2 is in the house of accused Nisha @ Dimple upon which her mother reached at the place with police and brought her to police station. Police took her to AIIMS Hospital for her medical examination where she was medically examined. Her statement under section 164 Cr.P.C was got recorded. PW2 further stated that accused Nisha @ Dimple used to take her to some places and used to give her some liquid and after consuming that liquid she used to become unconscious. Ld. APP for the state has also cross examined the witness as she resiled from her statement but nothing material came out from her cross examination.
This witness was again called for further cross examination on the application of accused Nisha @ Dimple under section 311 Cr.P.C vide orders dated 02.11.2010 passed by the then, Ld. ASJ but she was not produced by prosecution for further cross examination from the side of accused Nisha @ Dimple.
6 PW4 is Ms. Parvati Devi, complainant of the case/ mother of prosecutrix namely 'X'. She deposed that in the year 2009,date and month she do not remember, five days before lodging the complaint her daughter went missing upon which she lodged a complaint in the police station. She made efforts to find her daughter and in the way she met with a girl who told SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 6 of 12 her that her mother had taken her daughter namely 'X' but she did not disclose the place where her daughter was taken. She also do not know the accused and had never met her earlier. Her daughter was recovered in the evening and she received the information from the police station . She reached the police station and came to know the name of accused as Nisha @ Dimple. Witness was cross examined by the Ld. APP for the state as she resiled from her statement but nothing material came out from her statement.
Formal Witnesses: 7 PW3 is Ms. Gulshan who deposed that she used to work as maid in houses. She do not know Vandana & Sadhna and also refused to know accused Nisha @ Dimple. She stated to police that she do not know anything about the case. Witness was cross examined by the Ld. APP for the state as she resiled from her statement but nothing material came out from her statement.
8 PW5 Sh. Kishan Kumar who deposed that he is the owner of the house and residing their since 1972. On the request of one tenant namely Chotte Lal, he had given one tin shed room on rent to accused Nisha @ Dimple. She used to reside their with her husband and children. Accused Nisha @ Dimple was shown to the witness in the court but witness stated that he is not able to recall the face of accused Nisha @ Dimple and did not identify the accused Nisha @ Dimple. Witness was cross examined by the Ld. APP for the state as he resiled from his statement but nothing material SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 7 of 12 came out from his statement.
9 PW6 is Sh. Chotte Lal a rehri vendor who deposed that he do not know anything about the accused Nisha @ Dimple as well as about the case. Witness was cross examined by the Ld. APP for the state as he resiled from his statement but nothing material came out from his statement. 10 PW7 is Sh. Kishan who deposed that on 15.07.2007 he had rented out the room to Bhura. He do not know who all visited Bhura in his tenanted premises and stated that he cannot identify any of the accused persons present in the court who visited the rented house of Bhura. Witness was cross examined by the Ld. APP for the state as he resiled from his statement but nothing material came out from his statement. 11 PW9 is Sh. Devender Kumar Jangala, Additional Rent Controller who deposed that he recorded statement under section 164 Cr.P.C of the prosecutrix namely 'X' and proved on record Ex.PW9/A to Ex.PW9/D. 12 PW10 is Sh. Tausif who stated that he was residing at premises no. 98/30, Ramesh Market, Delhi and accused Salim was his neighbour and was running a tea stall. Accused Salim used to visit his place for the purpose of supplying of tea. He do not use to apply the lock in his room and used to apply kundi only of the door. Police came to his place only then he came to know that accused Salim had committed rape in his room in his absence. 13 PW11 is ASI Dharambir Singh who deposed that he recorded DD No. 23A and FIR and proved on record the same Ex.PW4/A and SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 8 of 12 Ex.PW11/A respectively.
14 PW12 is Ct. Rajinder who deposed that on the instructions of IO he got conducted the medical examination of accused Alam at AIIMS Hospital and handed over the sealed container sealed with the seal of hospital to the IO.
15 PW13 is Ct. N. Krishnan who deposed that on the instructions of IO he collected 25 exhibits duly sealed from the MHCM vide RC No. 43/21/09 and deposited the same at FSL Rohini.
16 PW14 is Ct. Vinod Kumar who deposed that he joined the investigation with the IO, apprehended the accused persons, took the accused persons for their medical examination and proved all the exhibits in this regard.
17 PW15 is Ct. Veena who deposed that she joined the investigation with the IO, apprehended the accused Nisha @ Dimple, took the prosecutrix and accused Nisha @ Dimple for their medical examination and proved all the exhibits in this regard.
18 PW16 is Sh. Mauhsin who deposed that he do not know anything about the case and also do not identify the accused Goverdhan @ Latoori and Iftekhar. Witness was cross examined by the Ld. APP for the state as he resiled from his statement but nothing material came out from his cross examination.
19 PW17 is Sh. Salim who deposed that he own cycle rickshaws and provide the same to the rickshaw puller on hire basis. SHO PS Amar SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 9 of 12 colony had asked about the whereabouts of Mauhsin and he pointed out the room of Mauhsin. He stated that SHO then asked him to accompany Maushin to police station Amar Colony and obtained his signature on blank paper. He stated that he do not know anything else about the case. Witness was cross examined by the Ld. APP for the state as he resiled from his statement but nothing material came out from his cross examination. Medical Witnesses: 20 PW1 Dr. Reeta Mahey who deposed that he examined the prosecutrix and prepared the detailed MLC Ex.PW1/A and duly proved the same.
21 PW8 is Dr. Susheel Sharma who deposed that he had examined the accused Nasemuddin, Shekhar, Alam, Salim Khan, Mohd. Kasim, Goverdhan @ Laturi and Iftekhar and proved on record MLCs Ex.PW8/A to Ex.PW8/G. 22 Heard both sides and perused the record.
Conclusion: 23 In the present case accused Nisha @ Dimple is charged for the offences under section 363/366A/372/4, 5 and 6 ITP Act and the remaining accused persons are charged for the offence of rape upon the prosecutrix under section 376 IPC. The prosecution has examined 17 witnesses till date out of 31 witnesses. However, prosecutrix 'X' (name withheld to keep her identity confidential) was recalled for cross examination on the application moved under section 311 Cr.P.C by the accused Nisha @ Dimple vide orders SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 10 of 12 dated 02.11.2010 passed by the then Ld. ASJ. However, prosecutrix 'X' is not produced for cross examination from the side of accused Nisha @ Dimple by the prosecution despite taking several adjournments in the matter. The prosecutrix is reported to be not traceable at the given addresses. No further time to produce the witness/prosecutrix is to be granted. Since, she is not produced for cross examination from the side of accused Nisha @ Dimple her statement cannot be read in evidence against her.
It is revealed from the statement of prosecutrix that she has turned hostile on the point of identity with regard to all the accused except accused Nisha @ Dimple.
24 Apart from the prosecutrix, remaining public witnesses examined by prosecution i.e. PW3 Gulshan, PW4 Parvati Devi, PW5 Krishan Kumar, PW6 Chotey Lal , PW7 Krishan, PW16 Mohsin, PW17 Saleem have turned hostile and have not supported the prosecution case. Remaining witnesses examined are formal in nature. Apart from these witnesses, out of the unexamined witnesses all the public witnesses are formal in nature. Further, PW Rahul Shukla, Mohd. Askin and PW Rajat Jain and PW Bimla Devi have left the given addresses. PW Rakesh Kumar is reported to be paralyzed and is unable to appear in the court. Hence, these witnesses are not produced. Apart from these public witnesses, remaining witnesses are police officials only and are formal in nature. Even if the statement of these remaining public witnesses are recorded, it cannot bring home the guilt of the accused persons. It is futile to record the statement of SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 11 of 12 remaining witnesses. Seeing the facts that it is an old matter and sufficient opportunities are granted to prosecution to produce all the witnesses, prosecution evidence stands closed. Since there is no incriminating evidence against the accused, statement of accused persons is dispensed with.
25 In view of the facts and circumstances, accused Nisha @ Dimple is acquitted under Section 363/366A/372 IPC, 4/5/6 of ITP Act , accused Salim, Kasim and Alam are acquitted under section 376 IPC, accused Nasimuddin, Shekhar, Iftekhar and Goverdhan are acquitted under section 376(2)(g) IPC.
26 In view of the Section 437A of Cr.PC, all the accused persons are directed to furnish bail bond in a sum of Rs. 20,000/ with one surety of like amount for the period of six months with the condition that they shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.
27 File be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT ON 12.11.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 58/11 State Vs Nisha @ Dimple etc. Page No. 12 of 12