Delhi District Court
State vs . Harish Chander Etc. on 25 October, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 57980/16
State
Versus
1). Harish Chander
S/o Sh. Sita Ram
R/o H. No. 282, Gali No. 8,
Chandan Park, Libaspur,
Delhi110042.
2). Lalji Yadav
S/o Sh. Sita Ram
R/o H. No. 282, Gali No. 8,
Chandan Park, Libaspur,
Delhi110042.
Also at:
Village Kadipur, PS Chanda,
District Sultanpur, U.P.
FIR No. : 71/12
Police Station : S.P. Badli
Under Sections : 376(2)(G)/506/109/174A/34 IPC
Date of Committal to Sessions Court : 02.12.2013
Date on which Judgment reserved : 28.09.2019
Date on which Judgment announced : 25.10.2019
State Vs. Harish Chander etc.
SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 1 of 15
JUDGMENT
1. Husband and Jeth have been forwarded to face rape trial.
2. Prosecution version is that the victim lady was residing separately from her husband accused Lalji Yadav since August 2011, with her three years old son Shubham Yadav. Matrimonial dispute between husband and wife was due to nonpayment of money. The victim had filed complaint against husband in Woman Cell, Rohini and in retaliation, he had filed divorce case. In the night intervening 23/24.02.2012, her son was suffering from bad cold and he answered the call of nature in diaper. He gave the child some medicines and thereafter, opened the door in order to clean the diaper and found her husband Lalji Yadav and Jeth Harish Chander standing outside armed with a knife. She was pushed inside the house by Harish Chander and it was he who first raped her. Thereafter, she was raped by her husband. On one side of her house, there was a factory and on the other deep inside, there was room of the landlord and due to that reason, her voice was not heard by anybody.
3. On 06.08.2014, charge U/s 376(2)(g)/506/34 was framed against accused Harish Chander and on 16.09.2015 charge U/s 376(2)
(g)/506/34 IPC & 174A IPC was framed against accused Lalji Yadav. Both accused persons pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined 12 witnesses.
State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 2 of 15
5. PW7 Smt. Kamla Devi is the wife of landlord of the victim. She deposed that she alongwith her husband and two sons used to reside in H. No. 240A, Gali No. 6, Chandan Park, Libaspur on the ground floor. Another room on the ground floor had been rented to the victim. She could not recollect date, month and year but she speculated that it was about two years ago when the victim knocked at her door due to which she got up and then the lady told her that she was going to the police station as her husband had visited her house. She next deposed that police came next morning and enquired about the victim. She next deposed that she told police officials that she did not see any person coming in and going out of the house. She next deposed that when the police came to her house, the victim told that her husband and Jeth had come in the night and raped her.
6. PW6 Dr. Richa identified the handwriting and signature of Dr. Shaina Kansal, S.R. Gynae who had conducted internal medical examination of the victim. She deposed that she was acquainted with the handwriting and signature of Dr. Shaina Kansal as she had seen her signing and writing during the course of official duties. After going through MLC No. 121/12, she deposed that the victim lady was brought in the hospital by W/Ct. Renu with the history of physical and sexual assault and she was examined by Dr. Shaina Kansal, who had prepared MLC Ex.PW6/A, bearing her signature at pointA and collected samples as mentioned in portion A to A1 on the MLC and the same State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 3 of 15 were handed over to W/Ct. Renu.
PW4 ASI Baljeet Kaur had registered case FIR Ex.PW4/A on 24.02.2012 at 11 am.
PW5 Ld. MM Sh. Jagmohan Singh recorded statement U/s 164 Cr.P.C. Ex.PW5/B of the prosecutrix on 28.02.2012.
7. PW10 Ct. Satish Kumar deposed that he alongwith ASI Sajni Devi reached H. No. 282, Gali No. 8, Chandan Park, Delhi on 28.02.2012 and found SI Vinay, Ct. Ramesh and prosecutrix there. Accused Harish Chander was arrested on the pointing out of the prosecutrix, vide arrest and personal search memos Ex.PW10/A and Ex.PW10/B respectively. His disclosure statement Ex.PW10/C was recorded.
PW9 Ct. Sandeep Kumar was with ASI Sajni Devi when accused Lalji Yadav was arrested on 26.03.2012 on secret information from Burari Chowk, vide arrest and personal search memos Ex.PW9/A and Ex.PW9/B respectively. Thereafter, he got the accused medically examined in BSA Hospital. He deposed that he alongwith Ct. Dhananjay took the accused to BSA Hospital next day for further examination and after examination, doctor handed him over three sealed pullandas and one sample seal of the accused to Ct. Dhananjay who handed over the same to the IO.
8. PW3 Dr. Vijay Dhankar identified the handwriting and signatures of Dr. J.V. Kiran and Dr. Kaustuv Kiran as they had left the State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 4 of 15 services of the hospital and their recent whereabouts were not known. He deposed that he was acquainted with the handwriting and signatures of Dr. J.V. Kiran and Dr. Kaustuv Kiran as he had seen them signing and writing during the course of official duties. Accused Harish Chander was brought in BSA Hospital on 28.02.2012 with the history of sexual assault. He was examined by Dr. Kaustav Kiran, who, after preparing MLC Ex.PW3/B referred him to Forensic Medicine Department where he was examined on the same day by Dr. J.V. Kiran Kumar who made endorsement from portion X to X on MLC Ex.PW3/A. Infact, MLC Ex.PW3/A is potency report of accused Harish Chander.
PW3 next deposed that the second accused Lalji Yadav was medically examined in the same hospital on 26.03.2012 by Dr. Kaustav Kiran who prepared MLC Ex.PW3/C and referred him to forensic medicine department where he was examined on 27.03.2012 by Dr. J.V. Kiran Kumar who made observation on the MLC that there was nothing to suggest that he was unable to perform sexual intercourse.
PW2 Ct. Raj Kumar deposited case property in FSL on 12.04.2012.
PW1 Dr. Dhruv Sharma examined the exhibits biologically and serologically and prepared DNA report Ex.PW1/A.
9. PW8 ASI Virender Singh deposed that after receipt of proceedings U/s 82 Cr.P.C. against accused Lalji Yadav, he went to his State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 5 of 15 house no.982, Gali No. 8, Chandan Park, Libaspur, Delhi on 20.07.2013 and met Vidyawati W/o Harish Chander and Vijay S/o Harish Chander Yadav who told that Lalji Yadav was earlier residing in their house but later started residing in village Kadipur, PS Yanda, District Sultanpur, U.P. He pasted copy of the proceedings on the main gate of that house and other copy on the notice board of the court. He relied upon statement of those persons as Ex.PW8/A and Ex.PW8/B respectively.
10. PW11 SI Vinay Kumar is the first IO. He deposed that on receipt of DD No. 9B Ex.PW11/A on 24.02.2012, he alongwith Ct. Trishul reached the spot i.e. H. No. 240, Street No. 6, Chandan Park, Libaspur, Delhi where prosecutrix met him. He called lady Ct. Renu there who took her to BSA Hospital for medical examination. After examination, doctor handed over sexual assault evidence collection kit and sample seal to Ct. Renu who gave the same to him which were seized vide seizure memo Ex.PW11/A1. Thereafter, he recorded statement Ex.PW11/B of the prosecutrix, prepared rukka Ex.PW11/C, returned to the police station and got the case FIR registered. Thereafter, further investigation was assigned to ASI Sajni Devi. He alongwith ASI Sajni Devi and the prosecutrix again went to the spot where IO prepared the site plan. The prosecutrix handed over cover of mattress and towel to the IO which were seized vide seizure memo Ex.PW11/D. He next deposed that accused Harish Chander was arrested from his house on 28.02.2012. He was medically examined in State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 6 of 15 BSA Hospital and after examination, doctor had handed over five sealed pullandas and sample seal to the IO which she seized vide seizure memo Ex.PW11/E. He identified towel as Ex.P1 and the mattress cover as Ex.P2.
11. Testimony of PW12 ASI Sajni Devi, second IO, is repetition of the evidence of first IO. Additionally, she deposed that the place of occurrence was pointed out by accused Harish Chander, pursuant to which, she prepared pointing out memo Ex.PW12/B. She took the prosecutrix to Rohini Court, moved application Ex.PW12/C upon which statement of the prosecutrix U/s 164 Cr.P.C. was recorded. She obtained copy of the proceedings vide application Ex.PW5/E. She next deposed about the arrest of accused Lalji Yadav on 26.03.2012. She sent exhibits to FSL through Ct. Raj Kumar on 12.04.2012. She handed over case file to MHC(R) on 04.05.2012 as the investigation was transferred to Inspector Sanjeeta who filed the chargesheet. She identified towel as Ex.P1 and mattress cover as Ex.P2.
12. On 16.07.2018, accused Harish Chander admitted following statements/documents U/s 294 Cr.P.C.: S. Name of the documents Admitted Denied Exhibited No.
1. Statement of W/Ct. Renu Yes - Ex.PX1 U/s 161 Cr.P.C.
2. Statement of Anuradha Yes - Ex.PX2 NGO official u/s 161 Cr.P.C.
State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 7 of 15
3. Statement of Ct. Trishul u/s Yes - Ex.PX3 161 Cr.P.C.
4. Statement of HC Satbir u/s Yes - Ex.PX4 161 Cr.P.C.
5. Statement of Ct. Sandeep u/s Yes - Ex.PX5 161 Cr.P.C.
6. Statement of Ct. Dhanjay u/s Yes - Ex.PX6 161 Cr.P.C.
7. Record Clerk PCR Form Yes - Ex.PX7 no.1
8. Statement of SI Satbir Singh Yes - Ex.PX8 from CAW Cell, Outer District u/s 161 Cr.P.C. who prepared the final report
13. Under section 313 Cr.P.C., both accused persons took the plea of false implication. Accused Lalji Yadav admitted that the prosecutrix was his wife. On 08.10.2011, she filed a complaint in the office of Commissioner of Police regarding cruelty against him, his father Sita Ram Yadav, mother Smt. Parabu, elder brother Harish Chander and his wife and against elder brother Amrit Lal Yadav alleging that they had sold her house and threw her from the house after beating.
Accused Harish Chander stated that dispute started when they came to know about FIR No. 429/10, PS Mahim, Mumbai, Maharashtra, U/s 420 IPC registered against prosecutrix and that she had to attend the hearing of that complaint in police station twice a month. Dispute between his brother and prosecutrix arose due to that State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 8 of 15 reason. He further stated that written compromise dated 20.08.2011 had taken place between his brother and the prosecutrix in which he was a witness in which it was decided that a sum of Rs. 3,50,000/ was to be given to prosecutrix by his brother pursuant to which his brother gave a cheque bearing no. 737270 to her payable at SBI, Napada Branch, Mumbai. But she forged the cheque amount as Rs. 8,50,000/ from Rs. 3,50,000/ and sent a legal notice dated 10.10.2019.
14. Both accused did not examine even a single witness in defence.
15. Ld. defence counsel argued that the prosecution failed to prove rape charge as the prosecutrix was untraceable and hence, she was not produced in the witness box. Regarding evidence of PW7 Kamla, he submitted that she is a hearsay witness and her evidence is not admissible. He next submitted that the prosecution has failed to prove charge U/s 174A IPC also as the proceedings were not published properly.
On the other hand, ld. additional PP argued that the rape charge has been duly proved by the prosecution. Proceedings U/s 82 Cr.P.C. were duly and properly published by PW8 ASI Virender Singh.
16. ASI Sajni Devi deposed as PS1 on 08.11.2017 that on her instructions, Ct. Vinod went to the house of the prosecutrix for service of summons for 08.11.2017 but she was not available there. A person namely Hari Om S/o Raj Lal and told that no lady by the name of State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 9 of 15 prosecutrix was residing in that house. Ct. Vinod recorded his statement Ex.PS1/A and prepared report Ex.PS1/B. She next deposed that she tried to trace the location of the prosecutrix from her mobile phone. For that purpose, she had applied for CDRs but the concerned telecommunication company did not provide the same with the plea that the same was more than one year old. She concluded the statement saying that the prosecutrix was untraceable despite best efforts.
The net result is that the prosecution failed to produce prosecutrix in evidence.
17. On rape charge, there are two sets of evidence. First is in the form of document i.e. FSL report and the second is in the form of statement of public witness i.e. PW7 Kamla.
As per FSL report, DNA profile generated from the blood sample of accused Lalji Yadav was found to be accounted in the main DNA profiles generated from cervical swab, vaginal swab and smear of the prosecutrix, stall and mattress cover. The report suggests that there was definitely sexual intercourse between accused Lalji Yadav and the victim in the night intervening 23/24.02.2012 but the report does not prove that the sexual intercourse was without consent of the prosecutrix.
18. On rape, PW7 Kamla deposed that after arrival of police next day, the victim told her that her husband and Jeth had raped her in previous night. But her testimony to that effect cannot be taken into account being hearsay. This conclusion of the court is supported by the State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 10 of 15 judgment titled as Ripen Kumar vs. Department of Customs, decided on 12th October 2000: 2001 CriLJ 1288, wherein it was held: "9. By the impugned order the learned Additional Sessions Judge surprisingly came to the conclusion that even the said incomplete statement of PW1 should have been read in evidence. It ought to have been looked into as a supporting evidence to the statement recorded under Section 108 of the Customs Act. This observation of the learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements"
include the examinationinchief as well as the cross examination and subject to the permission re examination also. It is only when the witness is permitted to be crossexamined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been crossexamined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be crossexamined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part crossexamination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination inchief and crossexamination. That statement alone will form evidence. In the present case petitioner had been deprived to crossexamine PW1 thereby dislodge his testimony. Hence incomplete statement of PW1 in the absence of cross examination could not be treated as evidence nor the same could be relied upon. Therefore, the observation of learned ASJ that incomplete statement could have been the basis of deciding the State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 11 of 15 question of charge is contrary to law. Part statement of PW1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under section 108 of the Customs Act stood proved.".
It has been held in Zafar Umar Khan @ Jafar Umar vs. State (Govt. of NCT of Delhi), Criminal Appeal No. 1143/2011, 2013 SCC Online Del 1032 : (2013) 2 DLT (Cri) 559:
"4. To proved and establish the action which led to the alleged seizure and arrest of the appellant, as noticed above, the prosecution relies upon statements of Head Constable Hiral Lal (PW6), SI Umesh Sharma (PW9), ASI Ishwar Singh (PW12) and Inspector Kulbhushan Sharma (PW32). Another member of the raiding party, SI Surinder Prakash was examined as PW13 but his crossexamination remained incomplete and therefore, his statement cannot be referred to".
19. In view of above discussion, it is held that the prosecution has failed to prove that accused Lalji Yadav had done sexual intercourse with victim without her consent. It is further held that the prosecution has failed to prove that accused Harish Chander had done sexual intercourse with the victim.
20. On 174A IPC, argument of ld. defence counsel is that accused Lalji Yadav, who at the time of arrest, used to reside with his brother i.e. coaccused Harish Chander in H. No. 282, Gali No. 8, Chandan Park, Libaspur, Delhi, had some dispute with his brother and State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 12 of 15 started residing separately from him. The court did not send notice, summons, bailable warrants, NBWs and process U/s 82 Cr.P.C. on the changed address. Next argument is that proclamation was not properly published because it was issued on 07.06.2013 and accused Lalji Yadav was to appear in the court on 27.07.2013. It was published only on 20.07.2013 and only seven days were given to the accused for appearance. Actually, the period should not be less than 30 days.
21. At the time of arrest of accused Lalji Yadav on 26.03.2012, his address was H. No. 282, Gali No. 8, Chandan Park, Libaspur, Delhi. He was granted bail and bail bonds were accepted on 11.04.2012. Till that date, same was his address. After filing of the chargesheet, notice was issued to him on that address. Bailable warrants, NBWs and process U/s 82 Cr.P.C. were also issued on that address. Accused Lalji Yadav never intimated the police or the court about his new address. So, the counsel is not justified to argue that the court did wrong by not sanding process on the changed address of the accused.
As per Section 82 Cr.P.C., the accused cannot be directed to appear at a specified time not less than 30 days from the date of publishing of such proclamation. Perusal of process U/s 82 Cr.P.C. shows that it was issued on 07.06.2013 and was returnable for 27.07.2013. But the executing official was very lax and he executed the process only on 20.07.2013 and in this way, reduced the period of appearance as seven days which should not be less than 30 days. But State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 13 of 15 the arguments of ld. defence counsel on this point cannot be appreciated for several reasons. The first is Section 82(3) Cr.P.C. in which it is mentioned that if a statement in writing has been made by the court that proclamation was duly published on a specified day in the specified manner, it shall be conclusive evidence that requirement of section 82 Cr.P.C. has been complied with and that the proclamation was published on such day. There is ordersheet dated 27.07.2013 passed by the then Ld. MM Sh. Chanderjit Singh to the effect that process U/s 82 Cr.P.C. issued against accused Lalji Yadav had been received back after publication. That ordersheet is a conclusive proof that the requirement of section 82 Cr.P.C. has been complied with.
The second reason for not acting upon the arguments of ld. defence counsel is that the proclamation was published in a newspaper 09.10.2013. The accused was declared proclaimed offender on 28.11.2013. It is not the case of anybody that the accused had appeared in the court before 28.11.2013. If there was any deficiency in publishing the publication, the same was rectified by publication in the newspaper.
The third reason of not appreciating the arguments of ld. defence counsel is that the application of accused for setting aside proclamation U/s 82 Cr.P.C. was dismissed by the then Ld. MM Sh. Virender Singh vide order dated 10.09.2014 and the accused did not file any revision against that order. That order has become final.
State Vs. Harish Chander etc. SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 14 of 15 Hence, it is held that accused Lalji Yadav has definitely committed the offence U/s 174A IPC.
22. In view of above discussion, accused Harish Chander is acquitted of the offences, he was charged with. Accused Lalji Yadav is acquitted of the charge U/s 376(2)(g)/506/34 IPC but he is convicted U/s 174A IPC.
23. The personal and surety bonds of accused Harish Chander are hereby cancelled. His surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
14. However, in terms of Section 437(A) Cr.P.C., accused Harish Chander has furnished the fresh personal bond in the sum of Rs. 10,000/ with one surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
Digitally signed UMED by UMED
SINGH GREWAL
SINGH Date:
GREWAL 2019.10.30
12:09:32 +0530
Announced in the open Court (Umed Singh Grewal)
On this 25th October 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State Vs. Harish Chander etc.
SC No. 57980/16; FIR No. 71/12, PS S.P. Badli Page No. 15 of 15