Delhi District Court
State vs . 1. Surender Singh S/O Jeet Singh, on 8 December, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.189/13
Unique Case ID No.02405R0286512013
State Vs. 1. Surender Singh S/o Jeet Singh,
R/o House No.336A,
Mundka, Delhi.
2. Vijay Goyal S/o Om Prakash,
R/o WZ-252, Palam Village,
New Delhi.
Date of Institution :26.09.2013.
FIR No.391/11, dated 01.12.2011.
U/s. 376/342/379/506/34 IPC
P.S. Dabri.
Date of reserving judgment/Order :01.12.2014.
Date of pronouncement : 08.12.2014.
JUDGMENT
1. The two accused Surender Singh and Vijay Goyal had been charge sheeted by the prosecution for the offences u/s. 342/376/379/506/34 IPC.
2. The FIR in this case has been registered pursuant to order dated 28.11.2011 of the ld. MM passed on the complaint filed by prosecutrix 'M' (real name withheld in order to conceal her identity) u/s 200 of Cr.P.C. The FIR has been registered on 01.12.2011. The gist of the contents of the complaint submitted by SC No.189/13 Page 1 of 29 the prosecutrix in the court of Ld. M.M. is as under:-
"I have been fighting cases against my husband and one of them was pending before the court of Sh. Umed Singh Grewal, ld. ASJ, Delhi. The case was fixed for 30.9.2009 and was then adjourned for pronouncement of order to 01.08.2009 at 2 pm. The accused Surender Singh came to my residence on the pretext of having a look at the title documents of my property and started showing sympathy towards me. As it was raining heavily, he asked me to give him an umbrella. When I went to my bedroom, to bring umbrella, he came behind me, caught hold of me from the back, pushed me on to the bed, took off my clothes. When I showed resistance, he threatened me that he would narrate this to my daughter and my son and then committed rape upon me. Accused Surender called me on 1.8.2009 and asked me to reach the residence of accused Vijay Goyal at 12 noon alongwith the title documents saying that he has arranged a meeting with the perspective buyer. I reached the house of accused Vijay Goyal where accused Surender was present alone. He took the certified copy of the Will and photocopy of GPA, Agreement to Sell, Affidavit and the Receipt dated 26.8.1994 in respect to property No.RZH-4/6A, Mahavir Enclave, New Delhi. Thereafter he took me forcibly to the drawing room, pushed me on the sofa, again committed sexual intercourse with me forcibly. He threatened me that he would humiliate SC No.189/13 Page 2 of 29 me. I was shocked to see that accused Vijay Goyal also entered into the drawing room having a camera in his hand and both threatened me that if I did not follow their directions, they will make a MMS from the CD, would make it public and would also sold the CD in the market. She realised that she has been trapped by bad persons who were running a racket. Accused Surender Singh again came to my residence on 3.8.2009 and stated that now since the case filed by my husband has been dismissed by the court on 1.8.2009, it is time to enjoy. He directed me to handover to him an election I card of myself as well as my son which I did. He had threatened me that he would expose my video and directed me to reach the Sub-Registrar Office alongwith passport size photograph. Both the accused reached my house on 4.8.2009 at about 8 am. My son was present in the house at that time. The accused Surender Singh came into the kitchen and asked me to accompany him to the Sub-Registrar Office and threatened me that in case I did not reach the office of Sub-Registrar, Kapashera, alongwith my son, they would show the aforesaid CD to my son. Finding no option, I accompanied them to the Sub-Registrar Office. On the way accused told me that they are going to get the sale deed in respect of my property registered and I would have to say yes to all the questions put to me by the Sub-Registrar in respect of receipt as well as three cheques. On account of pressure and threats of the two accused, I had to SC No.189/13 Page 3 of 29 follow their commands. They snatched the three cheques from me which they had handed over to me in front of Sub-Registrar, Kapashera. Thereafter accused Surender Singh has been committing forcible sexual intercourse with me once or twice in a week under the threats of making my video public and uploading the same on the internet. Accused Surender Singh neither paid the sale consideration of the plot to me nor had returned the registered sale deed to me even though the physical possession of the plot of land has not been handed over by me to him. I have come to know that accused Surender is trying to sell the property to some other person. Accused Surender again entered my house forcibly on 6.9.2011 at about 10 pm and tried to manhandle me and have forcible intercourse with me but I resisted the same. He became angry and gave beatings to me. He also snatched my mobile phone and ran away. I followed him and tried to catch him but he disappeared in the darkness. He switched off his mobile phone. I had made a complaint to the SHO, PS Dabri and also to higher authorities on 22.9.2010 but no action has been taken on the complaint."
3. After the registration of the FIR, the investigation was entrusted to SI Pushpa, who interrogated both the accused. Thereafter the investigation of this case was transferred to DIU, S/W District on 10.2.2012 and was marked to SI Virender Singh. The prosecutrix, handed over to him a CD containing the SC No.189/13 Page 4 of 29 telephonic conversation between her and accused Surender which he seized. He also obtained the call detail records of mobile phone No.9312742492 of accused Surender Singh. He made inquiries from both the accused as well as the prosecutrix's husband Raj Kumar Gautam. Accused Surender told him that he knew the prosecutrix through his Advocate Navin Tyagi and the prosecutrix had sold to him the property of her husband on the basis of forged documents and when he came to know about the forgery, he demanded back the sale consideration of Rs. 28,64,000/- from the prosecutrix, as a result of which she lodged a false complaint of rape against him. He also told the IO that on his complaint, FIR No. 407/11 u/s. 420/468/471/120B IPC has been registered against the prosecutrix in PS Dabri. Accused Vijay Goyal told the IO that he is the friend of accused Surender and had stood witness to the sale documents executed by the prosecutrix in favour of accused Surender. He reaffirmed what accused Surender had told the IO. Raj Kumar Gautam told the IO that he and the prosecutrix had been residing separately for the past 8 years. He further stated that his wife had prepared forged documents in respect of the property No. RZH-4/6A, Mahavir Enclave, New Delhi, Palam, New Delhi and sold the same to accused Surender.
4. Further investigation of the case was entrusted to ASI Veena Sharma. She came to know from the perusal of the file that the prosecutrix had been sent to DDU Hospital on 27.3.2012 for medical examination but she did not give consent for her gynecological examination. On 30.11.2012, prosecutrix handed over to her one handkerchief and certain other articles saying that the handkerchief was used by the accused Surender to wipe off SC No.189/13 Page 5 of 29 semen from his body after committing rape upon her. She got the medical examination of accused Surender conducted and his blood sample was preserved for DNA profiling. She came to know during the course of investigation that the prosecutrix had got registered FIR No.726/06 u/s 406/498A IPC against her husband Raj Kumar Gautam in PS Dabri. It also came to be known that Raj Kumar Gautam had purchased property No.RZH-4/6A, Mahavir Enclave, New Delhi in the year 1994. He had got the GPA of the said property prepared in the name of his sister Daisy and the will prepared in the name of prosecutrix. But the prosecutrix prepared a forged GPA in her name and sold the property to accused Surender on the basis of the said forged GPA. When accused Surender came to know abut the forgery of the GPA, he demanded back his money from the prosecutrix. The FSL report also shows that the GPA is forged and accordingly, accused Surender got registered FIR No.407/11 against the prosecutrix and Raj Kumar Gautam got registered FIR No.409/11 against his wife and the two accused. The prosecutrix got registered another FIR No.402/11 against her husband Raj Kumar Gautam and his sister Daisy u/s 420/468/471/120B IPC in PS Dabri.
5. It has further been mentioned in the charge sheet that the prosecutrix was again got medically examined on 13.7.2012 on which date, her gynecological examination was also conducted. The prosecutrix handed over to the IO a ladies handkerchief on 30.11.2012. It was found during the course of investigation that the 80 years old aged mother of accused Vijay Goyal alone resides in a room on the first floor of the house of Vijay Goyal wherein the prosecutrix had been allegedly raped on 01.08.2009 and her MMS SC No.189/13 Page 6 of 29 was prepared. After the completion of the investigation, charge sheet was prepared by the IO and submitted to the concerned Ld. M.M.
6. Upon committal of the case to the court of Sessions, charge u/s 376 (2) (g) IPC, u/s 506 IPC read with Sec. 34 IPC and u/s 379 IPC read with Sec. 34 IPC was framed against both the accused on 21.12.2013. Further charge u/s 376IPC and u/s 342/37/452 IPC was also framed against accused Surender on the same date. Both the accused denied the charges and accordingly, trial was held.
7. Prosecution has examined 8 witnesses including the prosecutrix to bring home the guilt of the accused. Ld. APP also tendered in evidence the DNA result Ex. P-A. The accused were examined u/s 313 Cr.P.C. on 28.10.2013 wherein they denied the prosecution case and claimed false implication. Accused Surender maintained that the prosecutrix had sold the plot No.RZH-4/6A, Mahavir Enclave, New Delhi to him vide a registered sale deed for a sum of Rs. 28,64,000/- which he paid to her in cash at her request and he had sold the same to one Manoj Bhati in the year 2010 but when he came to know that prosecutrix's husband Raj Kumar Gautam is claiming to be the owner of the said plot, he demanded back the money from the prosecutrix which she avoided to pay and lodged a false complaint of rape against him in order to avoid to pay Rs. 28,64,000/- to him. He denied that he committed rape upon the prosecutrix on any date as alleged against him.
SC No.189/13 Page 7 of 298. I have heard ld. APP, ld. Counsels for both the accused and have perused the entire material on record. I have also gone through the written submissions filed on behalf of the prosecutrix.
9. The most vital and material witness for the prosecution is the prosecutrix herself. She as deposed in her examination in chief as under:-
"I got married to Raj Kumar Gautam in the year 1983. We have been blessed with three children i.e. two sons and one daughter. My two sons are 30 years and 26 years of age respectively. My daughter is 28 years old and she is already married. The relations between myself and my husband were not cordial right since the marriage as he used to be involved with some other women. Meanwhile my husband got transferred to Nasik in the year 1998 and we shifted to Nasik. He was employed in Directorate of Printing, Govt. of India. There also he got involved with a woman. He used to tell me that he would divorce me. Without informing me, he had once come to Delhi in the year 2009 and filed a petition for divorce against me. He kept me totally in dark regarding the proceedings of the said divorce petition.
In the year 2005 I had filed a petition for grant of alimony against my husband and the same was pending disposal in Tis Hazari Court. In February, 2009 I had decided to change my lawyer and accordingly I went to the chamber of Sh. Naveen Tyagi, Advocate, in Tis SC No.189/13 Page 8 of 29 Hazari Court to handover my case file to him. Accused Surender was present in the chamber of Mr. Tyagi, Advocate, at that time. He overheard the whole conversation between myself and Mr. Tyagi regarding my case. Thereafter, whenever I visited the chamber of Mr. Tyagi, Advocate, I found accused Surender present there but I didn't know him that time. After a few visits, accused asked my name and address and I disclosed the same to him. That time, I was staying in house no.RZ-G-27, Mahavir Enclave, Palam, New Delhi. Accused told me that his relative Vijay Goyal also resides in the same area. I told him that I do not know any Vijay Goyal. Thereafter, accused Surender started visiting my house to enquire about the welfare of my children. He started sympathizing with me and I thought that he is a good person and started trusting him.
The divorce case file by my husband against me was pending disposal in the court of Sh. Umed Singh Grewal, Ld. ADJ, Delhi, and was slated for 30.7.2009. In the evening of 30.7.2009, accused Surender came to my house and started enquiring about the aforesaid case. It was raining heavily at that time and the umbrella of the accused had got broken down. While leaving my house, the accused demanded an umbrella from me. At that time, I was present alone in my house. When I went inside my bedroom and opened my bed to take out the umbrella from it, the accused also followed me inside the room and committed rape upon me. He had bolted the door of the room from inside and did not SC No.189/13 Page 9 of 29 allow me to go out. He had also gagged my mouth and did not allow me to raise alarm. Thereafter, the accused left while leaving his broken umbrella at my house. On that day, I did not lodge any complaint against the accused as I felt that I may be humiliated in the all area and also because of my strained relations with my husband.
Next day i.e. 01.8.2009, accused Surender alongwith accused Vijay Goyal came to my house at about 10 a.m. or 11 a.m. At that time, I was about to leave for Subzi Mandi. Accused Surender asked me to show him the papers of my plot of land bearing no.RZH-4/6, Bengali Colony, Mahavir Enclave, which was in my name. I scolded him as to why he had come in my house. The accused told me that they would sell my aforesaid plot and give the money to me. I told them to leave my house. The accused told me that they would not leave my house unless I showed the papers of plot to them. They further told me that I can also show them the papers at the house of Vijay Goyal. Thereafter, they left my house. They told me that Vijay Goyal is staying alongwith his family.
At about 12 noon on the same day, I visited the house of Vijay Goyal alongwith photocopies of the papers of the aforesaid plot. When I entered the house of Vijay Goyal, I found accused Surender present there alone. I started coming out of the house, accused Surender stood up and started pulling me inside the house. Meanwhile accused Vijay Goyal had come SC No.189/13 Page 10 of 29 downstairs. He was handicap by one hand. Accused Surender took me inside the room and again committed rape upon me. Accused Vijay Goyal had filmed the rape act by a camera. I was crying and shouting but the accused did not pay heed to my cries. Thereafter I returned to my home in weeping condition.
On 03.8.2009 accused Surender came to our house at about 9.30 p.m. or 10 p.m. I was present alone in the house at that time. He was having a black bag with him which contained numerous typed papers. He forced me to sign those papers. These were around 100 typed papers. He did not disclose the nature of papers to me despite my repeated requests.
On 04.8.2009 accused Surender and accused Vijay Goyal came to my house at about 10 a.m. asking me to accompany them to the office of Sub Registrar. I declined to accompany them. The accused Vijay Goyal threatened me that in case I did not accompany them to the office of Sub Registrar, they would show my obscene film to the whole world and would also send a copy of the same to the matrimonial home of my daughter. Compellingly, I had to accompany the two accused. They took me towards Najafgarh to the office of Sub Registrar in the car of accused Surender. They threatened me that if the Sub Registrar asked me about money, I should admit the receipt of money. Accordingly, I was constrained to admit before the Sub Registrar that I have received Rs.28 Lacs from accused Surender in lieu of the sale of my aforesaid plot to him.SC No.189/13 Page 11 of 29
The accused Surender gave me three cheques before the Sub Registrar, which he later on snatched from me. Thereafter, the accused Surender got the sale deed of the aforesaid plot registered in his name without giving any money to me.
My husband took advantage of this situation and submitted before the matrimonial court that I have received Rs.28 Lacs in lieu of sale of my plot of land. On the basis of the same, the court stopped payment of alimony to me by my husband. My landlord also came to know about the said fictitious transaction and starting asking me to vacate his house.
Thereafter the accused Surender used to visit my house after every couple of days and used to commit rape upon me. This continued for about two years. I was not in a position to show resistance to the acts of the accused Surender or to lodge a complaint against him. Whenever I demanded money in respect of the aforesaid plot of land from him, he used to tell me that he would give money to me as soon as he sells that plot of land.
On 06.9.2011 accused Surender came to my house again at about 8 p.m. I was present alone in my house at that time. At that time also, he tried to have forcible sexual intercourse with me but I showed resistance. However, the accused beat me severely and then again had forcible sexual intercourse with me. I was having my mobile phone in my hand which was snatched by the accused. Thereafter the accused ran SC No.189/13 Page 12 of 29 away alongwith my mobile phone. I followed him in order to catch him but he disappeared in the darkness. A lady residing in neighbourhood namely Usha had seen me following the accused Surender. She asked me why I was chasing the accused and I narrated the whole incident to her. She advised me to consult my children in this regard.
Meanwhile, I came to know that the accused Surender had already sold my plot of land to somebody else. I demanded money from him but he avoided paying any money to me in respect of said plot of land.
On 07.9.2011 I received a call from my daughter and I narrated the whole incident to her. She encouraged me to lodge complaint against the accused. Thereafter I visited P.S. Dabri and submitted a written complaint to the SHO. The accused was summoned to the police station but the FIR was not registered. Accordingly, I was constrained to file an application u/s. 156(3) Cr.PC before the concerned Ld. M.M. in the month of October, 2011 and it was pursuant to the directions of the Ld. M.M. that the FIR was registered.
After the registration of the FIR, the investigation of the case was transferred to DIU. ASI Veena Sharma of DIU had taken me to DDU Hospital where I was medically examined. I had handedover to ASI Veena Sharma, the handkerchief, spectacles, an umbrella of the accused as well as my hair strands which had fallen on the ground during the scuffle. The same were seized by her vide seizure memo Ex.PW6/A bearing my SC No.189/13 Page 13 of 29 signature at point A. I also handed over to the IO a CD and its transcript containing the conversation between myself and accused Surender which were seized by her vide seizure memo Ex.PW6/B. I had also handed over to the IO another handkerchief of the accused, which he had used to wipe off semen from his body after raping me. It was seized by the IO vide seizure memo Ex.PW6/C bearing my signature at point A."
10. She further deposed that after the registration of FIR, she came to know that accused had also sold her plot of land in Mahavir Enclave, Bengali Colony to somebody else and thereafter accused Surender had been coming to her house to create ruckus and to threaten her to withdraw the complaint. She proved the CD, which she handed over to the IO, as Ex. PW6/C and transcript of the conversation contained in the CD is Ex. PW6/D.
11. In the cross examination she admitted that Sh. Navin Tyagi Advocate is her counsel in several cases and the complaint in the present case Ex. PW6/E was also filed by Sh. Navin Tyagi on her behalf before the ld. Magistrate. Mr. Tyagi had read over the contents of the complaint Ex. PW6/E to her before she signed it. She admitted that she had filed a complaint u/s 200 Cr.P.C. against her husband and accused Surender alleging offence u/s 420/468 IPC and pursuant to that complaint, FIR has been registered. She stated voluntarily that accused Surender pressurized her to file the said complaint. She admitted that she had met accused Surender in the chamber of Sh. Navin Tyagi in the last week of July 2009. She deposed that she is the owner of plot of land bearing SC No.189/13 Page 14 of 29 no.RZH-4/6, Bengali Colony, Mahavir Enclave, New Delhi admeasuring 250 sq. yds having purchased the same from Bhisham Bhambri for Rs. 1,15,000/-. She stated that the receipt issued by Sh. Bhisham Bhambri is in the custody of her husband Raj Kumar and denied that Sh. Bhisham Bhambri has executed only the Will dated 26.8.1994 in respect of the said plot of land in her favour. She stated voluntarily that Bhisham Bhambri had executed all the sale documents like agreement to sell, GPA, possession letter, affidavit etc. regarding the said plot in her favour.
12. She further deposed that she had attended the court of Sh. Umed Singh Grewal, Ld. A.D.J., Tis Hazari Courts, on the date of pronouncement of order in her divorce case. She could not tell the distance between her residence at Mahavir Enclave and Tis Hazari Court. According to her it takes one hour by bus to reach Tis Hazari Court from Mahavir Enclave. She could not admit or deny that it takes 1 hour and 45 minutes by bus to reach Tis Hazari court from Mahavir Enclave. She did not recollect the mode of transport by which she had reached Tis Hazari Court. She did not recollect the time when the Ld. Judge pronounced the order. She, however, stated that the order was pronounced perhaps in the post lunch session. She did not recollect the time when she left Tis Hazari Court on that day and when she reached back home.
13. She admitted that on her complaint, FIR No.726/06 was registered in PS Dabri against her husband and her in-laws regarding dowry harassment and cruelty and during the hearing of anticipatory bail application of her husband, in that FIR, she had SC No.189/13 Page 15 of 29 told the ld. ASJ Sh. A.S. Yadav that the documents executed by Bhishm Bhambri in her name in respect of the aforesaid plot of land are in possession of her husband Raj Kumar. She admitted that ld. ASJ directed Raj Kumar vide order dated 8.8.2006 to return all the original documents to her and Raj Kumar had assailed that order in the High Court by way of criminal revision petition No. 558-68/06 which was disposed off vide order dated 23.8.2006. She admitted that the High Court had directed that Raj Kumar would keep all the original documents in his custody subject to the undertaking that he would not sell or alienate the said plot of land without the permission of the court. She admitted that she had executed the registered sale deed dated 3.8.2009 in respect of the aforesaid plot of land in favour of accused Surender in the Office of Sub-Registrar Kapashera. She stated voluntarily that she did so under the threats of accused Surender but did not lodge any complaint against him before any authority regarding those threats.
14. She could not say whether accused Surender had applied for purchase of stamp papers in the sum of Rs. 1,71,850/- from Corporation bank, New Janak Cinema, Janak Puri, New Delhi on 1.8.2009 at 10 am and the same were made available to him at about 5.51 pm. She admitted that accused Vijay Goyal is witness to the sale deed dated 3.8.2009 executed by her in favour of accused Surender. She admitted that the accused Surender had approached her in May, 2010 saying that there are certain discrepancies in the sale deed dated 3.8.2009 and she will have to accompany him again to the Office of Sub-Registrar, Kapashera. She admits that she alongwith her son accompanied the accused SC No.189/13 Page 16 of 29 Surender to the Office of Sub-Registrar Office Kapashera on 26.5.2010 and a rectification deed was executed by her on that date in favour of accused Surender and got registered in the Office of Sub-Registrar, which was signed by her son Nikhil also. She stated voluntarily that accused Surender had forced herself and her son to accompany him to the office of Sub-Registrar on that date and he had taken their signatures on the rectification deed. Admittedly, her son Piyush and Nikhil were having a mobile phone in the month of August and July 2009 and her daughter Priyanka had got married in the year 2008 before which she was doing a course in Pharmacy in Modern College, Pune from the year 2002 to 2007. She denied having received a sum of Rs. 18,64,000/- in cash and Rs. 10 lacs by way of three cheques from accused Surender as sale consideration of the aforesaid plot. She deposed that she has not filed any suit against accused Surender and the recovery of the sale consideration of Rs. 28,64,000/- regarding the plot of land. She admitted that she had not filed any suit for cancellation of sale deed dated 3.8.2009 and registered rectification deed dated 26.5.2010.
15. In further cross examination, she deposed that the house No.RZG-27, Mahavir Enclave, Palam, New Delhi where she was staying as a tenant in first floor is situated in densely populated area and there are residential houses as well as shops. There are shops on the ground floor of the said house also. One of the shop is occupied by the cyber cafe and in another there was an Archies Gallery. She deposed that she did not raise any hue and cry at the time of incident. She further deposed at that time she was wearing a saree and her clothes had not got torn during SC No.189/13 Page 17 of 29 struggle with the accused. She admitted that she did not narrate the incident of rape to anybody. She did not lodge a complaint with the police against the accused regarding the rape incident between 4.8.2009 and 13.10.2011. She lodged the complaint for the first time in the month of Septembe, 2011 upon which no action had been taken and accordingly she lodged the complaint Ex. PW6/E before the ld. Magistrate on 13.10.2011. She was confronted with the complaint Ex. PW6/B wherein she had not mentioned that the accused had committed rape upon her on 06.09.2011. She admitted that the writing from point X to X on her MLC Ex. PW5/A is in her handwriting and bears her signatures at point B. However, she stated she wrote the same on the pressure of ASI Veena. She deposed that she does not know how to record a conversation on mobile phone and the conversation contained in Ex. PW6/C was recorded by her son Nikhil on the mobile phone and its transcript Ex. PW6/D was prepared by her sons Nikhil and Piyush. She admitted that her son Nikhil is a graduate and is 24 years old. In the year 2010, he was doing a course in Hotel Management. She deposed that on 1.8.2009, accused Surender had taken her to the house of accused Vijay Goyal in Mahavir Enclave. When her attention was drawn at her examination in chief wherein she stated that she visited the house of accused Vijay Goyal on 1.8.2009 at 12 noon alongwith photocopies of the papers of land and on entering the house she found accused Surender present there alone, she stated that whatever she has stated in her cross examination herein above, is correct. She did not recollect whether she had mentioned in her statement u/s 161 Cr.P.C. dated 12.12.2011 that she had gone to the court on 1.8.2009 and met her lawyer and accused Surender had overheard SC No.189/13 Page 18 of 29 her conversation with her lawyer and then committed rape upon her, in her house. She was confronted with the statement u/s 161 Cr.P.C. dated 12.12.2011 wherein it is so mentioned. She did not have knowledge that old aged parents of accused Vijay Goyal also reside with him in his Mahavir Enclave house. She did not know whether the stairs of the house are from outside and not from inside. She could tell the position of various rooms or kitchen or the bathroom in the said house. She deposed that she visited the house of Vijay Goyal for the first time on 1.8.2009. She did not know the exact location of his house before that date. She admitted that she has mentioned the address of the house as WZ-252, Palam Village, New Delhi in her complaint Ex. PW6/E. She stated voluntarily that accused Surender had taken her to the said house in Palam Village on one occasion and committed rape upon her but she did not remember the date. She deposed that it happened before 30.7.2009 but could not tell how much time before. She stated again that it happened after 4.8.2009 but she did not lodge any complaint regarding that incident. In further cross examination, she identified the handkerchief Ex. P5 to be the same which she had handed over to the IO.
16. As per the testimony of PW8 IO SI Veena Sharma, she took the prosecutrix to DDU Hospital again on 13.7.2012 where her gynecological examination was conducted. She further deposed that prosecutrix called her to her house on 30.11.2012 and handed over to her one umbrella, one spectacles, some hair strands, one torn handkerchief which she seized vide memo Ex. PW6/A. Prosecutrix had also handed over to her another handkerchief saying that it had been used by the accused SC No.189/13 Page 19 of 29 Surender during the commission of rape upon her which she seized vide memo Ex. PW6/C. She identified all these articles, when shown to her during her testimony. These are Ex. P1, P2, P3, P4 and P5. Ex. P5 is a handkerchief which had been used by the accused Surender during the commission of rape, as stated by the prosecutrix.
17. In her cross examination, she deposed that the CD which had been submitted by the prosecutrix to previous IO SI Virender was not sent to FSL for voice verification. She had not obtained the voice sample of prosecutrix as well as the accused Surender. She had not heard the conversation contained in the aforesaid CD. She did not make any inquiry from the children of the prosecutrix in this regard.
18. Upon over all scrutiny of the testimony of the prosecutrix, it appears that the version given by her is neither probable nor credible and the defence raised by the accused that she has implicated him falsely in this case in order to avoid return of Rs. 28,64,000/- to accused Surender which she had received from him as sale consideration of plot of land bearing No. RZH-4/6, Bengali Colony, Mahavir Enclave to which she had no right or title.
19. The prosecutrix has stated that accused Surender raped her for the first time in her house on 30.7.2009. It is evident from her testimony that she neither offered any resistance at that time nor did she raise any hue and cry. It has come in her evidence that she was residing on the first floor of a house in Mahavir Enclave which was situated in densely populated area and SC No.189/13 Page 20 of 29 there were shops on the ground floor of the house. She has nowhere deposed that the accused had threatened her to submit to his lust and not to raise any alarm. She could have raised alarm in order to attract the attention of the neighbourers including the shopkeepers on the ground floor. She has deposed that the accused Surender had gagged her mouth which I find unbelievable for the reason that it is not possible to commit rape upon a lady while keeping one hand upon her mouth. She has admitted in her cross examination that her clothes did not get torn during the incident. Moreover, she has not mentioned about this incident in her statement u/s 161 Cr.P.C. dated 12.12.2011. She did not apprise her children about the incident and did not lodge any complaint.
20. In her complaint Ex. PW6/E and in her testimony before this court, prosecutrix has stated that the accused Surender raped her again in the house of accused Vijay Goyal on 1.8.2009 in the evening. Whereas in her statement u/s 161 Cr.P.C. dated 12.12.2011, she has mentioned that the accused had raped her in her house on 1.8.2009 in the evening. These contradictory statements affect the credibility and trustworthiness of the prosecutrix seriously. Such kind of contradiction or inconsistencies regarding the rape incident cannot be ignored as it goes to the root of the prosecution case and creates serious doubts in it.
21. The rape incident dated 01.8.2009 seems to be totally fabricated. According to the prosecution, she was raped by accused Surender on 01.8.2009 in the afternoon in the house of accused Vijay Goyal. In her examination in chief, she has deposed SC No.189/13 Page 21 of 29 in this regard that on 01.8.2009 both the accused came to her house at 10 a.m. or 11 a.m. and asked her to show them the papers of her plot of land bearing no.RZH-4/6, Bengali Colony, Mahavir Enclave, New Delhi, saying that they would sell the said plot and give her the money. She asked them to leave her house but they told her that they would not leave unless she showed them the papers of the plot. They then told her that she can show them the papers at the house of accused Vijay Goyal and left. She has further deposed that she visited the house of Vijay Goyal on the same day at 12 noon alongwith the photocopies of the papers of the aforesaid plot and when she entered the house, she found accused Surender present there alone. She started retreating but Surender pulled her inside the house and committed rape upon her. Meanwhile, Vijay Goyal came downstairs and had filmed the rape act by a camera. Thereafter she returned home in weeping condition.
22. In Ex.PW6/E filed by the prosecutrix before the Ld. ACMM, she has stated that Sh. Umed Singh Grewal, A.D.J., Tis Hazari Court, had posted her divorce case for orders to 01.8.2009 at 3 p.m. As already noted herein-above, the prosecutrix, in her cross examination, has deposed that she had attended the court of Sh. Umed Singh Grewal, Ld. A.D.J., Tis Hazari Court, on the date of pronouncement for order in her divorce case and had reached Tis Hazari Court directly from her Mahavir Enclave residence. In her examination in chief, she has not stated that after the rape incident in the house of accused Vijay Goyal, she had reached the Tis Hazari Court to find out the order passed in the divorce case. She has stated that from the house of Vijay Goyal, she returned to SC No.189/13 Page 22 of 29 her home in weeping condition. In her statement u/s.161 Cr.PC dated 12.12.2011, the prosecutrix has stated that accused Surender came to her house in the evening of 01.8.2009 after she had returned from the court and committed rape upon her. Further in the examination in chief, she has deposed that she herself reached the house of Vijay Goyal on 01.8.2009 at 12 noon alongwith the papers of the plot of land. However, in the cross examination, she has deposed that accused Surender had taken her from her house to the house of Vijay Goyal. When she was asked as to whether her statement in the examination in chief in this regard is correct or her statement in the cross examination is correct, she deposed that whatever she has stated in the cross examination is correct.
23. The aforenoted contradictions and embellishments in the testimony of the prosecutrix certainly indicate that no rape incident, as stated by the prosecutrix, had taken place on 01.8.2009. It appears that she was present in Tis Hazari Court to hear the order to be passed in a divorce case passed by Sh. Umed Singh Grewal, Ld. A.D.J., in the afternoon of 01.8.2009. It also seems to be highly improbable and unbelievable that the prosecutrix would have visited the house of Vijay Goyal on the aforesaid date on the asking of accused Surender. On one hand, she claims that accused Surender had raped her in her house the previous day i.e. 30.7.2009 and on the other hand, she states that she went to the house of Vijay Goyal alone in the afternoon of 01.8.2009 alongwith papers of her plot of land. It does not appeal to any reason why did not she show the papers to the two accused when they had come to her house in the morning of 01.8.2009 and SC No.189/13 Page 23 of 29 why did she visit the house of accused Vijay Goyal alone later on alongwith these papers. Further it is also not discernible from her testimony as to why did the two accused want to see those property papers and why did she go to the house of Vijay Goyal to show them these papers. Her conduct in visiting the Tis Hazai Court on that day and remaining there till evening does not indicate that she had been raped.
24. From the testimony of the prosecutrix, it appears that she had sold the plot of land bearing no.RZH-4/6, Bengali Colony, Mahavir Enclave, to accused Surender for a sum of Rs.28,64,000/- and received the whole amount in cash from him. It is also manifest from her testimony that she had accompanied accused Surender and accused Vijay Goyal to the office of Sub Registrar on 04.8.2009 where she executed a registered Sale Deed in respect of the aforesaid plot in the name of accused Surender. She, however, states that she did so forcibly on account of the threat of the accused that they would expose her obscene film. I find that the evidence on record does not show that she was under any such threat. When the alleged rape incident dated 01.8.2009 has to be disbelieved, as noted herein above, there was no occasion for accused Vijay Goyal to prepare any obscene film of the prosecutrix. The whole story appears to be an imagination of the prosecutrix's mind and nowhere near the truth. The prosecutrix has also admitted in her cross examination that she alongwith her son accompanied the accused again to the office of Sub Registrar Kapashera on 26.5.210 and executed a Rectification Deed in his favour as there had been some discrepancies in the Sale Deed dated 03.8.2009. She again states that accused Surender had SC No.189/13 Page 24 of 29 forced her as well as her son to accompany him on that day and took her signatures also on the Rectification Deed forcibly. What kind of force was exerted by accused Surender upon her as well as her son has nowhere been explained. It may be noted here that her son Nikhil was 21 years old in the year 2010 and was doing a course in Hotel Management. Therefore, it would not have been easy to force a young man like him to sign the Rectification Deed.
25. Importantly, the prosecutrix has not challenged the Sale Deed dated 03.8.2009 or the Rectification Deed dated 26.5.2010 in any court. She has not filed any application before the concerned Sub Registrar to say that her signatures on these two documents have been taken forcibly by accused Surender. The conduct of the prosecutrix indicates that she had sold the said plot of land to the accused Surender and had executed the sale deed as well as rectification deed voluntarily in his favour. The sale of plot of land by prosecutrix to the accused Surender on 03/04.08.09 (i.e. just three or four days after the rape incidents) too makes the prosecution case very doubtful. It is inconceivable that a woman would sell her land to her rapist soon after the rape and would not report the rape to the police.
26. It was vehemently contended by the Ld. Counsel for the accused that the prosecutrix was not authorized to sell the said plot of land to the accused as it belonged to her estranged husband, who had purchased it from its previous owner Sh. Bisham Bhambri and at his instance only a registered Will dated 26.8.1994 had been executed by Sh. Bhisham Bhambri in the name of the prosecutrix whereas the G.P.A. had been executed in SC No.189/13 Page 25 of 29 favour of the sister of the prosecutrix's husband. It also appears that the prosecutrix was not in possession of any document relating to said plot of land when she sold it to the accused Surender. She had herself admitted that the High Court vide its order dated 23.8.2006 passed in Criminal Revision Petition No. 558-68/06 had directed her husband Raj Kumar to keep all the original documents in his custody subject to the undertaking that he would not sell or alienate the said plot of land without the permission of the court. There is no evidence on record to show that there had been any modification of the aforesaid order of the High Court thereafter. Hence the prosecutrix appears to have sold the plot of land to accused Surender without the permission of the court and without having been in possession of any title documents in her favour.
27. It is when accused Surender came to know that he has been cheated by the prosecutrix, he demanded back the sale consideration of Rs.28,64,000/- from the prosecutrix, who, in order to avoid repaying of the such money to the accused, fabricated a false rape case. Accused Vijay Goyal has been arraigned as an accused only for the reason that he had stood as a witness to the Sale Deed ated 03.8.2009.
28. The prosecutrix has asserted that she had not received the sum of Rs.28,64,000/- from accused Surender and she was forced to admit before the Sub Registrar that she has received this money. She has, however, admitted that she did not file any suit against the accused for recovery of the said amount. She has deposed that her husband submitted before the SC No.189/13 Page 26 of 29 matrimonial court during the course of divorce proceedings that she has received Rs.28 Lacs in lieu of sale of plot of land and taking that into account, the court stopped payment of alimony by her husband to her. There is no evidence that she later on filed an application before the Matrimonial Court saying that she had been cheated and in fact she had not received the said sum of Rs.28 Lacs from the buyer of the plot. Therefore, she has failed to substantiate her condition that she did not receive the sale consideration of Rs.28,64,000/- from accused Surender.
29. The prosecutrix has further deposed that accused Surender used to visit her house after every couple of days and used to commit rape upon her and this continued for about two years. She has stated that she was not in a position to show resistance to the acts of the accused or to lodge a complaint against him. It seems highly improbable that accused Surender would continue committing rape upon the prosecutrix for a period of two years and she would not resist or lodge any complaint against him. As already noted herein-above, both the sons of the prosecutrix were major and her daughter had been married. She did not narrate her ordeal to any of her children and did not take their help. It has come on record that many criminal complaints had been filed against each other by the prosecutrix, her husband and accused Surender. She did not mention to any police official during the course of investigation of these cases that she is being raped by accused Surender.
30. The prosecutrix claims that she has recorded the conversation between her and accused Surender on a CD Which SC No.189/13 Page 27 of 29 she had handed over to the IO and has been proved on record as Ex.PW6/C. In her cross examination, she has deposed that she does not know how to record conversation on the mobile phone and the conversation contained in the aforesaid CD was recorded by her son Nikhil and its transcript Ex.PW6/D was also prepared by her sons Nikhil and Piyush. However, Nikhil and Piyush have not been examined as witnesses in this court. It is Nikhil, who had recorded the conversation and prepared the transcript. He was the competent witness to prove the CD as well as the transcript. If he would have been examined as a witness, the accused would have got an opportunity to cross examine him. IO had also deposed in her cross examination that she had not heard the conversation contained in the aforesaid CD and did not make any inquiry from the children of the prosecutrix in this regard. The CD has not been sent to FSL for voice verification. In view of the same, no reliance can be placed upon the conversation contained in the CD and the same ought to be rejected outrightly.
31. According to the prosecutrix, the handkerchief Ex.P5 was used by the accused to wipe off semen from his body after committing the rape upon her. The said handkerchief had been sent to FSL for forensic examination and DNA profiling. The DNA report Ex.PA shows that no semen could be detected on the said handkerchief. Here it be also pointed out that when the prosecutrix had been taken to DDU Hospital on 27.3.2012, after the registration of FIR, she did not give her consent for gynecological examination.
32. The aforesaid discussion on the evidence led by the SC No.189/13 Page 28 of 29 prosecution shows that there is no iota of truth in the allegations levelled against the two accused. The prosecutrix lodged a false complaint of rape in order to avoid repaying the amount of Rs. 28,64,000/- to accused Surender, which she had received from him as sale consideration in the plot of land bearing no.RZH-4/6, Bengali Colony, Mahavir Enclave, which she was not authorized to sell. Accused Vijay Goyal has been arraigned as an accused as he had stood as a witness to the registered Sale Deed dated 03.8.2009. The medical evidence as well as forensic evidence also do not support the allegations of rape.
33. In view of the same, both the accused are hereby acquitted of all the charges.
Announced in open (VIRENDER BHAT)
Court on 08.12.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.189/13 Page 29 of 29