Delhi District Court
State vs 1. Vipul Chopra on 8 May, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. : 2391/16
FIR No. : 542/15
PS : Badarpur
U/s : 354B/506/365 r.w. Section 511/
376/323/366/34 IPC
State Versus 1. Vipul Chopra
S/o Sh. Kuldeep Chopra
R/o 5J/41, NIT, Faridabad,
Haryana.
2. Anurag
S/o Sh. Jagdish Lal Mehra
R/o 5J/13, NIT, Faridabad,
Haryana.
Date of Institution : 02.06.2016
Judgment reserved for orders on : 08.05.2018.
Date of pronouncement : 08.05.2018.
J U D G M E N T
Brief facts of the case:
1.The case of the prosecution is that on 25.08.2015 DD No. 13A was received that near Badarpur Metro Station one lady has informed SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 1 of 18 that persons of I10 had taken her friend towards the Faridabad and thereafter SI Dhananjay and Ct. Khem Raj went to the spot where Complainant was not found. SI Dhananjay called at the mobile phone number 9910106937 through which call was made at PCR whereupon complainant told her name and told them she and her friend Saurabh are at Kheri Pul, Faridabad and their friend Simran was taken by two boys Vipul and Anurag in their car I10 No. HR 51 AM 8724. She told them that she has also called father of Simran there. SI Dhananjay and Ct. Khem Raj reached there where they met complainant, Saurabh, Father of Simran. Complainant and her friend Saurabh told them that Simran was forcibly taken by Vipul Chopra and Anurag in their car. SI Dhananjay called at the mobile phone number of Simran i.e. 9999107675 but nobody picked up the call. Call was also made on the mobile phone number of Vipul Chopra i.e. 99999770614 but no response was received. Thereafter, last location of both the numbers was traced which was found at NIT5, Faridabad. Father of Simran told that NIT5, Faridabad belongs to Vipul Chopra and he is disturbing her. In the meantime, brother in law of Rakesh Chawla called him and told that Vipul Chopra and his friend had manhandled the prosecutrix and Vipul had raped her and he had brought her to Escorts Hospital. SI Dhananjay along with Ct. Khemraj reached Escorts Hospital where after talking with doctor they came to know that prosecutrix has been raped, who was referred to BHK SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 2 of 18 Hospital. SI Dhananjay gave information that case is of Sexual assault vide DD No. 20A and SI Sarita along with lady staff be sent to the B.K. Hospital, Faridabad. They both reached there and MLC of prosecutrix was collected. Victim was counselled through NGO Ms. Sushma. Victim then gave her complaint that she is of 18 years of age and studying in B.A. English Hons. Ist year and for the last 23 years Vipul Chopra was troubling and threatening her and due to fear she did not tell anything to anybody. When she told her parents they asked his parents to make him understand. They also shifted their house and she also changed her phone number but despite that Vipul Chopra came to her house and snatched her mobile and when she was coming from her college then accused Vipul pulled her inside his car at Kheri Pul but she was saved by Raj uncle. Her friend Vaishali called her to meet her. When she came at Badarpur Border Metro Station she hugged her and Vipul pulled her inside his car by catching hold of her hairs and closed the door. He then started beating her. He threatened Vaishali and took her out of the car. Anurag was driving the car. They took her to 5J/41 i.e. Vipul's home and dragged her inside the house and threatened that if she would make noise, they will kill her parents and kidnap her brother and sister. They tied her with a sofa and gave beatings to her. They broke the bottles and made marks on her hand. Anurag threatened her that he is an Advocate. They told her to sign on marriage papers otherwise they will kill her by screwdriver and put SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 3 of 18 the screwdriver on her neck. Vipul Chopra send Anurag from his house and committed sexual assault upon her. He then tried to hit on her internal organ by screwdriver and tried to kill her and pressed her neck. He raped her and gave beatings on her face, back, neck and hands by screwdriver. Site plan was prepared at the instance of prosecutrix. Crime Team was called at the spot and photographs were taken. Exhibits were collected from the spot at the presence of witnesses and pullandas were prepared and taken into possession by the police. Car which was used for kidnapping the victim was inspected. CCTV /DVR of Ist Floor, 5J/41 NIT Faridabad were also taken into possession by the police. On 25.08.2015 accused Vipul Chopra was produced by his parents in the police station and he was interrogated and arrested in the case. His disclosure statement was recorded. His potency test was got conducted at the AIIMS Hospital. Phone of prosecutrix was searched but the same could not be found. On 26.08.2015 statement of victim under Section 164 Cr.P.C was got recorded by the police. On 27.08.2015 accused Anurag surrendered in the police station who was identified by victim and he was then arrested in the case. Exhibits were deposited in CFSL, CGO Complex, Lodhi Road. Chance prints and fingerprints of victim, Vipul Chopra and Anurag were sent to Finger Print CFSL CGO Complex Lodhi Road. Date of birth of Victim and accused persons was collected. CDR of victim, her friend Vaishali, Saurabh and Vipul SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 4 of 18 Chopra and Anurag was collected. After completion of investigation, chargesheet was filed under Section 365/366/342/323/376/3506 IPC against the accused Vipul Chopra and chargesheet under Section 366/342/506/34 IPC was filed against the accused Anurag in the court. Charge:
2. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 19.10.2016, prima facie case was made out against the accused Vipul Chopra for the offence u/s 354B, 506, 365 r.w. Section 511 IPC, 366/34 IPC, 376, 323 and 506 IPC and case under Section 366/34 IPC was made out against the accused Anurag. The charge was framed to which both accused pleaded not guilty and claimed trial. Prosecution Evidence:
3. To substantiate its allegations against the accused, prosecution examined the following witnesses: Material Witnesses:
4. PW1 had deposed that in September 2015, she was studying in BA first year in Mata Sundari College. She used to go to my college by Metro train with my friend Vaishali. She know the accused persons Vipul Chopra and Anurag, who are present in the Court today (correctly identified). They all were friends. Accused persons used to come to meet her and Vaishali at Badarpur Metro Station. On 25.08.2015, accused persons came at Badarpur Metro Station to meet SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 5 of 18 them. They were talking to each other. While talking, some dispute arose between her and the accused Vipul. They started quarreling. At that time, Vaishali was talking to someone on phone facing towards the other side. She and the accused persons sat in the car of the accused Anurag to sort out the dispute. They went to the house of the accused Vipul Chopra at 5J/41, NIT Faridabad, Haryana. They sat there. They had some conversation there. After sometime, her parents and her maternal uncle Ajay came. On seeing them, she got scared since she did not tell anyone about her visit to the house of the accused Vipul. One day before 25.08.2015, she fell down from the stairs and got scratch marks. Her maternal uncle thought that accused persons caused injuries to her. She could not tell them about her injury at that time since she was scared. Her maternal uncle took her to Escorts Hospital at Faridabad. Some police officials came at the Escorts hospital. They took her to B K Hospital, Faridabad where her MLC Ex.PW1/A was prepared. She alongwith her parents and her uncle returned home. A lady from an NGO with police officials came at her house. She asked her to give the complaint but she refused saying that nothing wrong happened with her. She forced her to file the complaint against the accused persons. The NGO official and the police officials obtained her signature on a blank paper. Since she was scared, she signed on the blank papers. She went inside her room. The NGO official and the police officials prepared the complaint on that SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 6 of 18 blank paper. On the same day, she was asked to read the contents of that complaint Ex.PW1/B and was directed to state the same before the Magistrate. On the next day, she was brought at Saket Court. The police officials who had come at her home with the NGO official met her at Saket Court and they again tutored her and directed her to state before the Magistrate, the contents of the complaint. Since she was scared, she reiterated the contents of the complaint Ex.PW1/A before the Magistrate. She has correctly identified her statement under Section 164 Cr.P.C Ex.PW1/C. The accused persons never took her forcibly to any place nor they committed sexual assault upon her. They never gave her beating nor threatened at any point of time. Her family members were not aware of her friendship with the accused persons. On seeing her family members in the house of the accused Vipul, she got scared and could not tell them the true facts. She does not want to say anything else. During examination Ld. Addl. PP has cross examined the witness as she resiled from her earlier statement but nothing incriminating had come out in the cross examination. Formal Witnesses:
5. PW2 father of prosecutrix had deposed that in the year 2015 she was studying in BA first year in Mata Sundri College she never told him about any incident happened with her on 21.08.2015. He know Vaishali who is friend of his daughter. On 25.08.2015 Vaishali had called him and informed him that his daughter/prosecutrix has gone SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 7 of 18 with Vipul Chopra. She further told him that she got perplexed and informed the police at Kheri Pul, Faridabad about their going together. She went to PS Kheri Pul. Vaishali was present there. Police took him to B.K. Hospital, Faridabad. One constable of Delhi Police as well as the local police officials of Faridabad and NGO officials were present in the hospital. His daughter/prosecutrix did not tell her anything. His statement was not recorded by police. He does not know anything else. During examination Ld. Addl. PP has cross examined the witness as he resiled from his earlier statement but nothing incriminating had come out in the cross examination.
6. PW3 Sh. Saurabh had deposed that on 25.08.2015 she was studying in NIC Training Center, Sector12, Faridabad. He know Vaishali. She is her friend. On 25.08.2015, she went with Vaishali to Metro Station Badarpur to drop her. It was morning hour when he dropped her at Badarpur Metro Station. After sometime, he received call of Vaishali and she asked him to come again at Badarpur Metro Station. Vaishali informed him that she called at 100 number. When he asked her about the reason of calling at 100 number, she informed him that her friend was missing. Police called him and Vaishali at Police Station. They went there and police made inquiry from Vaishali. Police noted down his name and address and relieved him. He does not know anything else except this. His statement was not recorded by the police. During examination Ld. Addl. PP has cross SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 8 of 18 examined the witness as he resiled from his earlier statement but nothing incriminating had come out in the cross examination.
7. PW4 Vaishali Juneja had deposed that she know the prosecutrix who is her friend. She also know accused Vipul who is friend of prosecutrix. She used to talk to prosecutrix on her phone. She never talked to the accused Vipul on his phone. On 25.08.2015 she along with her friend Saurabh went to Badarpur Metro Station where prosecutrix met her. She was busy calling someone. Suddenly, she saw that the prosecutrix was not present there. She then felt that someone has taken her. She called at 100 number. Police had called her and Saurabh and made enquiries from her but not recorded her statement. She does not know anything else. During examination Ld. Addl. PP has cross examined the witness as she resiled from her earlier statement but nothing incriminating had come out in the cross examination.
8. PW5 Mother of prosecutrix had deposed that on 25.08.2015 someone had called her husband and informed him that someone has taken away the prosecutrix and asked him to come at Kheri Pul. She along with her husband came there. Noone met them there. Someone informed her husband that the prosecutrix is admitted in Escorts Hospital, Faridabad. They went there and came to know that the prosecutrix was referred to B.K. Hospital. They then went to B.K. Hospital. Police met them. She does not know anything regarding SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 9 of 18 this case. Her statement was recorded by the police. During examination Ld. Addl. PP has cross examined the witness as she resiled from her earlier statement but nothing incriminating had come out in the cross examination.
9. PW6 Ajay Kumar Arora had deposed that on 25.08.2015 father of prosecutrix informed him about the presence of prosecutrix with accused Vipul Chopra. He know accused Vipul Chopra since he lives in NIT, Faribadad. He went to the house of accused. Neeraj @ golu his neighbour was also present there. Neeraj got opened the door of house of accused Vipul. Prosecutrix was present there with the accused and she was perplexed. He took her to Escorts Hospital at Faridabad and from there she was referred to B.K. Hospital at Faridabad. He informed parents of the prosecutrix about her admission in the hospital. They met him there. Police of PS Badarpur was called by him in the police station later and his signatures were obtained on some papers. He also does not know anything else. He does not want to say anything else. His statement was not recorded by the police. During examination Ld. Addl. PP has cross examined the witness as he resiled from his earlier statement but nothing incriminating had come out in the cross examination.
10. PW7 Sh. Neeraj Kumar @ golu who had deposed that he know accused Vipul Chopra. On 25.08.2015 he went to the house of accused Vipul Chopra. Ajay Kumar maternal uncle of the prosecutrix was also SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 10 of 18 present there. They got opened the door of the house of accused Vipul. The prosecutrix was present there with the accused and she was perplexed. Ajay Kumar took her to Hospital. Police of PS Badarpur called her in the Police Station later and obtained her signatures on some papers. He does not know anything else. He does not want to say anything else. His statement was not recorded by the police. During examination Ld. Addl. PP has cross examined the witness as he resiled from his earlier statement but nothing incriminating had come out in the cross examination.
11. PW9 ASI Satvir had deposed that on 25.08.2015 he recorded the present FIR. Computer generated copy of the same is Ex.PW9/A. He also endorsed the rukka Ex.PW9/B and gave certificate under Section 65B of the Indian Evidence Act Ex.PW9/C. Medical Witness:
12. PW8 Dr. B.K. Mahapatra on 07.10.2015 thirteen sealed parcels were received in their office from PS Badarpur. The seals on the parcels were intact and tallied with specimen seal forwarded. He de sealed the parcles before examination and carried out biological examination of the exhibits as per the query. The details of descriptions of the exhibits and the parcels are mentioned in my report bearing numbers CFSL 2015 B 1458A dated 24.06.2016. The details of findings is mentioned in Para 8 of his report Ex.PW8/A.
13. After examining PW9, statement of both accused are recorded SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 11 of 18 separtely wherein they have admitted the geniuneness of mobile phone numbers 9999107675, 9711815571, 9999375617, 9999770614, 9711573112, 9999926557 and 8377006811 and has also admitted the FSL result and the statement of prosecutrix recorded under Section 164 Cr.P.C. In view of their statement, Sh. Saurabh Aggarwal, Nodal Officer from Vodafone Mobile Services Ltd. who is present in the court is discharged unexamined and is dropped.
14. Ms. Manisha Khurana Kakkar, Ld. MM and B. Mangesh Krishna Ratnam, SSOII (FP), CFSL, CBI are also dropped in view of the statement of the accused.
Conclusion:
15. The essence of rape is absence of consent. The consent means intelligent and positive concurrence of woman. A woman is said to consent, only when she freely agrees to submit herself while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
16. Perusal of the file reveals that PW1 prosecutrix is the only star witness of the case. In her statement she has turned hostile and has not supported the case of the prosecution. She has deposed that the accused persons and she were friends and that accused persons used to come to meet her at Badarpur Metro Station and on 25.08.2015, SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 12 of 18 accused persons came at Badarpur Metro Station to meet them. They were talking to each other and a dispute arose between prosecutrix and accused Vipul and they started quarreling. At that time her friend Vaishali was talking on phone with someone facing towards the other side. She and the accused persons sat in the car of accused Anurag to sort out the dispute and they went to the house of accused Vipul Chopra at Faridabad. They sat there and had conversation. After sometime her parents and her maternal uncle Ajay came. On seeing them she got scared. Since she did not tell anyone about her visit to the house of accused Vipul Chopra, she got scared on seeing them. One day before 25.07.2015, she fell down from the stairs and got scratch mark. She further deposed that her maternal uncle thought that the accused persons caused injuries to her and she could not tell them about injury since she was scared. Her uncle took her to Escort Hospital from where the police had taken her to B.K. Hospital, Faridabad where her MLC was prepared. She deposed that her report was prepared by NGO and police officials and on her tutoring she reiterated the contents of the complaint to the Magistrate. She deposed that the accused persons never took her forcibly to any place nor they committed sexual assault upon her. They never gave her beatings nor threatened her at any point of time and that her family members were not aware of her friendship with accused persons and on seeing them in the house of accused Vipul, she got scared and could not tell them SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 13 of 18 the true facts. As the prosecutrix was resiling she was declared hostile and was cross examined by Ld. APP, however, nothing incriminating could come in her cross examination. In her cross examination from the side of Ld. Addl. PP she has denied all the allegations of harrassment or threats by accused Vipul for the last two year. She also denied that they vacated the house at Faridabad due to fear of the accused. She also denied the allegationos of snatching of her mobile phone by the accused. She denied that on 25.08.2015 Vipul caught hold of her hair and dragged her inside the car which was driven by accused Anurag, made her lie on the seat and had given beatings to her or that she was taken to Faridabad forcibly, was threatened to kill her parents and kidnap her siblings in case she shout or that Vipul tied her with sofa, gave injuries on her hand with broken glass bottle and threatened her continuously or forced her to sign on papers after putting screwdriver on her neck or then the accused Anurag left and accused Vipul committed rape with her forcibly or that he did not allow her to wear her clothes and she covered herself with bedsheet. She denied that vipul hit her on her neck with a screwdriver, threaten to kill her and strangulated her or that he gave injuries on her face, back, neck and hands with screwdriver. She volunteered that she received injuries one day prior to 25.07.2015 from falling down from the stairs. She denied all other facts. Nothing incriminating could come in the cross examination done by Ld. APP at length.
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17. Apart from her, the other remaining witnesses i.e. PW2 father of prosecutrix has also turned hostile. He has denied that his daugher/prosecutrix told him that accused Vipul made her sit forcibly in his car on 21.08.2015. He also denied the factum of meetings his parents. He did not identify accused Anurag. He also denied the factum of Vaishali informing him on 25.08.2015 that accused persons had taken prosecutrix forcibly from Badarpur Metro Station or that they reached at the house of accused which was found locked.
18. On the similar lines, PW3 Saurabh has turned hostile. He denied that on the day of incident Vaishali came and informed him that accused Vipul had taken prosecutrix forcibly in the car or that he made Vaishali made sit in his car and chased the car of Vipul.
19. PW4 Vaishali has also not supported the prosecution case. She stated that on the day of incident she was busy in calling someone at Badarpur Metro Station when she found that prosecutrix was not found there. She was declared hostile and in her cross examination from the side of APP she denied that Vipul asked the prosecutrix to sit in his car or that she told to PW Saurabh about the forcible taking of the prosecutrix or that they chased his car or that they informed the father of prosecutrix about this.
20. Similarly PW5 mother of prosecutrix has turned hostile stating that she does not know anything about the case. She also denied about the information given by Vaishali or their reaching the house of SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 15 of 18 accused Vipul Chopra which was found locked.
21. PW6 Ajay Arora, maternal uncle of the prosecutrix has also turned hostile. In his cross examination from the side of Ld. APP, he denied that father of prosecutrix informed him about the kidnapping of prosecutrix or he asked him to go to the house of Vipul Chopra or that he had gone there with PW Neeraj and found the noise of quarreling of prosecutrix and Vipul coming out of the house or that they pushed the door and found the prosecutrix in injured condition bleeding. He also denied the lifting of exhibits in his presence by the police from the house of accused Vipul. He also denied the seizure of the car in his presence.
22. Similarly PW7 Neeraj Kumar has also turned hostile. He denied that he heard the noise of quarreling between the prosecutrix and accused coming out from the house of accused. He also denied the seizure of articles by the police in his presence.
23. Hence the prosecutrix as well as all the public witnesses have turned hostile and have not supported the case of prosecution. Apart from these witnesses, other witnesses PW8 and PW9 are formal in nature being the FSL expert and Duty Officer.The FSL result qua the exhibits of the prosecutrix and accused is inconclusive and cannot connect the accused with the offence of rape as semen was not found on the exhibits of victim. Since the prosecutrix has denied receiving of injuries from the hands of the accused Vipul by means of screwdriver SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 16 of 18 or otherwise, the FSL result cannot prove the charge of 323 IPC, even if blood of prosecutrix is found on her clothes. Since the presence of the prosecutrix and the accused at the house of accused Vipul is admitted by her, the fingerprint of the accused on the exhibits which were lifted from the house of accused are not of much relevance.
24. As the prosecutrix has denied the factum of sexual assualt by accused, the MLC cannot prove the offence of rape by accused, hence it will be futile to record the testimony of PW Dr. Bishwanwati in view of retracted statement of prosecutrix. Apart from these witnesses who are already examined, the remaining witnesses are formal in nature. As the prosecutrix has turned hostile it will be futile to record the testimony of remaining formal witnesses as even if the statement of remaining witnesses are recorded, it cannot bring home the guilt of the accused.
25. In view of the retracted statement of prosecutrix (star witness) and public witnesses, it will be sheer wastage of the time of the court, if the statements of remaining formal witnesses are recorded. Hence, PE is closed. As there is no incriminating evidence, statement of accused u/s 313 Cr.P.C. is dispensed with.
26. In view of the above facts and circumstances, accused Vipul Chopra is acquitted of the offence punishable u/s 354B, 506, 365 r.w. Section 511 IPC, 366/34 IPC, 376, 323 and 506 IPC and accused Anurag is acquitted of the offence punishable under Section 366/34 SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 17 of 18 IPC, for which they have been charged.
27. In view of the Section 437A of Cr.P.C., both accused are directed to furnish bail bond in a sum of Rs. 30,000/ 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. File be consigned to Record Room.
Announced in the open court today i.e. 08.05.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi SC No. 2391/16 State Vs Vipul Chopra & Anr. Page No. 18 of 18