Delhi District Court
State vs Rakesh Chauhan on 8 March, 2013
:1:
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeSpl. FTC2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 21/13
UID No. 02401R1275102006
State versus Rakesh Chauhan
S/o Sh. Dhir Singh
Chauhan
R/o RZ101/70, Mohan
Nagar,
Pankha Road, PS Dabri
West Sagarpur, Delhi
Case arising out of:
FIR No. : 80/2004
Police Station : Mayapuri
Under Section : 365/354/342/324/376 (2) (g) IPC
Judgment reserved on : 27.02.2013
Judgment pronounced on : 08.03.2013
JUDGMENT
Case of the Prosecution The brief facts of the case as borne out from the chargesheet are that on 22.3.04 on receipt of DD No. 25A, SI Bhoop Singh reached at :2: RML Hospital emergency ward where he met SI Vijay Kumar of PS Connaught Place who recorded statement of Prosecutrix 'A' [name withheld to protect the identity of the Prosecutrix.] As per the chargesheet, the said statement was also signed by her mother Smt. 'K' and father Sh 'G'. MLC of Prosecutrix bearing No. 33040/04, was obtained. As per record, one report bearing DD No. 19A dated 21.3.04 had already been lodged regarding missing of Prosecutrix 'A'.
In the complaint recorded by SI Vijay of PS Connaught Place, the Prosecutrix 'A' stated that she is a resident of T419, Dayal Park, West Sagarpuri, Delhi. She stated that she is a President of NGO in which Accused Rakesh Chauhan is also a member. She stated that she found some documents of Accused Rakesh Chauhan. She alleged that on 20.3.04 at around 1.30 PM while she was in her Beauty Parlour at Lajwanti Chowk, one boy whom she identified by face came to her and told that Accused Rakesh Chauhan was calling her. At this she went along with the said boy to meet Rakesh Chauhan. She alleged that Rakesh Chauhan made her sit in a car and took her to a house where Accused Rakesh Chauhan and one other boy locked her inside the room :3: and beat her mercilessly.
She further alleged that thereafter Accused Rakesh Chauhan went away without giving her food and both of them assaulted her on different parts of body with a blade. They also assaulted on her breast with the help of blade and made cuts marks and Accused Rakesh Chauhan continuously demanded the documents from her. She further stated that finding an opportunity, she managed to escape and reached Connaught Place, but does not know as to how she reached there.
On the complaint of Prosecutrix 'A' case under Section 365/342/354/324/34 IPC was got registered against Accused Rakesh Chauhan. Investigation of the case was marked to SI Bhoop Singh. During the course of investigation, site plan was prepared, statements of witnesses were recorded and seizure memo of suit salwar was prepared and seized articles were sent to FSL for examination and re examination of Prosecutrix was also got conducted at RML Hospital regarding self inflicting of cut marks. After examination, a board of Senior surgeons reported that 'There are altogether 25 scars. Out of which cut on leg is skin deep. All others are cuticle deep. Scars are :4: symetrical and are made in a designer fashion. In view of the number of scar and symmetry self infliction of scar is unlikely.' During the course of investigation, Accused was arrested and his 03 days police custody remand was obtained. An application was also moved before court for statement of Prosecution under Section 164 CrPC. In her statement under Section 164 CrPC Prosecutrix levelled allegations of rape against Accused and moved application before court for her reexamination which were dismissed vide order dated 05.4.04 and 07.4.04. After investigating the matter further, Section 376 (2) (g) IPC was later added. On completion of investigation, chargesheet was filed in court. It is pertinent to mention that as per the chargesheet, the associates of Accused, his car and the place where Prosecutrix was allegedly confined could not be traced.
Charges Pursuant to committal of case charge under Section 342/365/324/376 (2) (g) IPC was framed against Accused vide order dated 14.8.06. Accused pleaded not guilty and claimed trial when the charges were read over and explained to him.
:5:Prosecution Evidence And Arguments Prosecution examined 17 witnesses to bring home the guilt of Accused.
Insp. Vijay Kumar who was posted at PS Connaught Place on 22.3.04 was examined as PW5. He deposed that he received call at about 6 PM on 22.3.04 to the effect that one lady was lying unconscious at A Block Connaught Place. On reaching there, he came to know that PCR had taken one lady to RML Hospital. Thereafter, he went to hospital where Prosecutrix 'A' was admitted and her parents were also present there. He recorded the statement of Prosecutrix 'A'. He handed over MLC of the victim to SI Bhoop Singh along with her statement. It was revealed during the testimony of PW5 that the original tehrir is not on the judicial record. However, the factum that statement of Prosecutrix was recorded by Insp. Vijay Kumar is not in dispute.
The Prosecutrix 'A' was brought into the witness box as PW3. She deposed that she was running a boutique at Lajwanti Chowk under the name and style of 'Walia Boutique' and on 20.3.04 at about 1.30 PM, while she was going to Boutique on her scooty, when she reached :6: at Lajwanti Chowk and stopped her scooty near her boutique, a boy who was also on his scooter and was following her also stopped there. He told her that Rakesh Chauhan was calling her to his office. She gave her mobile to her employee Arti to charge the same and left her boutique after telling her that she will be back after sometime. She deposed that when she went to the office of the Accused, he was sitting in a white colour car on the rear seat and the boy who had called her from the boutique was sitting in front of the seat by the side of the driver and Accused asked her to sit in the car so she sat beside him in the rear seat. She deposed that the moment she sat in the car, Accused kept a piece of cloth on her mouth and she became unconscious and when she regained consciousness, she found herself in a room with its lights on.
PW3 further deposed that Accused Rakesh Chauhan gave her beatings and asked her to hand over other documents which consisted of photographs of a lady, the letters written by the Accused to some lady and medical reports. She further deposed that about 02 months :7: back, she had gone to meet someone at Uttam Nagar along with Accused as they were running NGO. On the way, Accused had opened his briefcase and took out some papers and went to a reporter of Dainik Jagran and when he opened the briefcase, she saw the identity card of a boy namely Lucky coming out of the envelope. She deposed that when Accused had gone to the reporter, she took out that envelope from the briefcase and while she was looking into the contents of the envelope, the Accused had returned and she immediately kept the envelope in her purse. She further deposed that these were documents which the Accused was demanding from her on the day of the incident.
During her deposition, the Prosecutrix produced the said document i.e. I card in the name of Sahni Jasvir Singh, photocopy of the same is Ex. PW3/A and the original was seen and returned. She also deposed that it is Sahni Jasvir Singh @ Amrit Pal Singh Bhasin @ Lucky who had committed rape upon her in 1998. She also deposed that the envelope which she had taken from the briefcase was found containing 34 photographs of one lady, medical report of one lady namely Asha and some letters written by Accused, certified copy of the :8: letters is Ex. Pw3/B. She deposed that after registration of the case, she gave photographs and medical report to SI Bhoop Singh.
Prosecutrix also exhibited written apology Ex. PW3/D stating that it was written by Accused while they were working in Sanstha called 'Kadam'.
With regard to the incident of 20.3.04, Prosecutrix further deposed that when she had regained her consciousness in the unknown room and the Accused and a boy were present there, Accused demanded those documents and gave her beatings by leg and fist and stated that 'Aaj mein tera sara adhyakspana nikal dunga.' She further deposed that when she refused to hand over the documents to the Accused, he asked another boy to teach a lesson by removing her clothes and on this that boy removed her kurti from her body and thereafter Accused Rakesh Chauhan had taken out one object, knife type, from his pocket and gave the same to that boy and asked him to give continuous cut mark, by knife, on her breast till she hand over those documents to Accused and at the direction of Accused Rakesh Chauhan, that boy gave 24 knife cuts on her both the breast and by :9: doing so he was asking her to hand over the documents.
Prosecutrix also deposed that two other boys also came there. They also caught hold of her from her hair and asked her to hand over the documents to Rakesh Chauhan and Rakesh Chauhan asked those two boys and third boy to wait outside and the Accused thereafter had raped upon her. She also deposed that due to the influence of the substance which had made her unconscious, she was not in a position to use force against Accused. PW5 also deposed regarding continuous ill treatment at the hands of the Accused stating that she managed to escape from that room after 03 days and some how reached at Connaught Place. The Prosecutrix also deposed that her statement under Section 164 CrPC Ex. PW3/E was got recorded, upon which correctly identified her signatures and also identified Accused present before the court. She also identified her Salwar and Kurti which she was wearing at the time of the incident. To prove her statement recorded under Section 164 CrPC, Prosecution also examined Ms Nivedita Anil Sharma, the then Ld. MM/Delhi as PW7. The doctor who had examined the Prosecutrix at RML Hospital on 23.3.04 was :10: examined as PW1 who deposed one 23.3.04, he examined Prosecutrix 'A' who was brought to hospital by ASI Bhopal Singh of PCR and on local examination, following injuries were found:
1) Clean cut and incised would 4 cm long on the medical aspect of shin of right leg. Injury was two days old.
2) Cut on both breats about 12 cm in size radially arranged.
3) P/s and P/v not done as she is unmarried.
PW1 also deposed that injuries were sharp and simple in nature and his detailed MLC is Ex. PW1/A. Dr. Vandana Sharma who was examined as PW2 deposed that on 22.3.04 she examined Prosecutrix 'A' who was brought to hospital with alleged history of assault by the police and on examination, there was no complaint of any genitillia area and there was complaint of cuts on both breast. PW2 deposed that on examination she found few cuts present on both breast about 12 cm in size radially arranged and P/v examination was not done because she was unmarried.
PW6 HC Krishan Pal is Duty Officer who registered the FIR on the basis of tehrir produced by SI Bhoop Singh, copy of which is Ex. :11: PW6/A. ACP Pratima Sharma was brought into the witness box as PW10. She deposed that on reaching the hospital, she found Prosecutrix 'A' admitted in the hospital. SI Vijay Singh also met there and he recorded statement of Prosecutrix in her presence. The injuries found on the breast of Prosecutrix were examined by Board of Surgeons.
Prosecution examined PW11 Dr. K. N. Srivastava who deposed that on an application of the IO, Dr. Dr. U. C. Biswal of RML Hospital constituted a Board of Surgical Specialists consisting of himself, Dr. P. K. Ganguly and Dr. Neeraj Saxena to examine the patient and report and accordingly, they examine Prosecutrix 'A' on 24.3.04 and gave opinion which is Ex. PW2/A. As per the report, there were 25 scars, as depicted in the diagram given in the report, out of which , cut on the leg is skin deep and all other are cuticle deep. PW11 also deposed that scars are symmetrical and are made in a designed fashion and in view of the number of scars and symmetry, selfinfliction of scars is unlikely.
Dr. Neeraj Saxena and Dr. P. K. Ganguly who were also Members of the Board were examined as PW12 and PW13 :12: respectively.
MLC of the Accused Ex. PW17/A was proved by PW17 Dr. Udai Kumar Singh.
Prosecution also examined Arti as PW15 who as per contention of the Prosecution had given her mobile phone by the Prosecutrix to charge the same while she was leaving to meet the Accused in his office on the day of the incident. The witness Arti, however, turned hostile and failed to support the case of the Prosecution despite being cross examined at length by Ld. Prosecutor. She denied that on 21.3.04 at about 1.30 PM Prosecutrix 'A' came to the shop on her scooty and gave her mobile phone to her and asked her to put the same on charging.
PW9 SI Bhoop Singh deposed that on 22.3.04 while he was posted at PS Maya Puri, Duty officer gave him copy of DD No. 19A dated 21.3.04 and on receipt of the same, he along with one Ct. and SHO Insp. Rai Singh went to RML Hospital where SI Vijay Singh of PS Connaught Place met him. He deposed that SI Vijay Singh gave him MLC of Prosecutrix and her statement was also recorded by him. :13: PW9 deposed that he returned to PS and discussed the matter with the senior officers and made endorsement on the original statement of Prosecutrix which was given to him by SI Vijay Singh and produced original tehrir to the Duty Officer Mayapuri and accordingly present case was registered. He deposed that after registration of the case, the investigation was assigned to him and he made enquiries and recorded the statement of the witnesses and prepared site plan of hte place where Prosecutrix parked her scooty. The same is Ex. PW9/A. PW9 further deposed that on 24.5.04 he arrested the Accused from Gatta Factory, Nangal Raya and he prepared his personal search memo and arrest memo vide Ex. PW9/C and PW9/D respectively. Accused Rakesh Chauhan was produced before the concerned court and three days police custody remand vide application Ex. PW9/D was obtained.
SI Bhoop Singh deposed that on 24.3.04 Prosecutrix produced one ladies suit and same was sealed with the seal of 'BS' and taken in to possession vide memo Ex. PW3/C and medical examination of Prosecutrix 'A' was got conducted and he moved an application for :14: medical opinion Ex. PW9/E. He deposed that a Board was constituted and he obtained opinion of the Board which is already Ex. PW2/A. On 25.3.04 an application was moved before concerned Ld. MM vide Ex. PW9/F for recording statement of Prosecutrix 'A' under Section 164 CrPC.
PW9 further deposed that on 01.4.04 statement of Prosecutrix was recorded by Ld. MM and he obtained copy of the same vide application Ex. PW9/G. On 11.5.04 semen sample of Accused were taken by doctor of DDU Hospital and doctor gave a sealed parcle and one sample seal and he produced the same before Insp. Ranveer Singh who had taken the same in his possession vide memo Ex. PW4/A. He deposed that on 07.4.04, investigation of this case was handed over to Insp. Ranveer Singh and he deposited the case property in malkhana.
On the basis of aforesaid deposition of the Prosecution witnesses, it was contended by Ld. APP that charges against Accused have been duly proved on record and he be convicted for the same. Plea of the Accused, Defence Evidence and Arguments Per contra, Ld. Defence Counsel opposed the case of the :15: Prosecution on various grounds. In statement under Section 313 CrPC, Accused pleaded innocence and stated that he has been falsely implicated in this case.
Accused examined 11 witnesses in his Defence.
DW1 Arun Kumar deposed that he is Managing Director of Aakriti Plastic Products Pvt. Ltd and on 20.3.04 at around 1.30 PM, he went to meet Rakesh Chauhan who is his vendor and who used to supply corrugated boxes. He further deposed that as some of his known/customers came at his factory and requested for home made lunch, he had gone to the factory of Rakesh Chauhan as some of the boys working with Rakesh Chauhan used to prepare food and one lady used to prepare home made lunch. DW1 further deposed that Rakesh Chauhan called that lady and ordered her to prepare lunch for three persons and thereafter, he came back to his factory and at about 1.451.50 PM, Rakesh Chauhan came along with lunch box and he remained in his factory for about 1015 minutes. Affidavit of DW1 to this effect is Ex. DW1/A. DW2 Pinki Marwa deposed that on 20.3.04 at about 1.30 PM, she :16: received a telephone call from Rakesh Chauhan asking her to prepare one lunch box and at about 1.45, the lunch box was supplied by her son Shivam Marwa. She deposed that police officials enquired from her and she stated the same facts before the police officials. Her affidavit in this regard is Ex. DW2/A. DW3 Shivam Marwa deposed that he supplied the lunch box at the factory of Rakesh Chauhan but he did not remember whether it was on 20.3.04. He identified his affidavit Ex. DW3/A. DW4 Ajay Mehta deposed that at about 2.30 PM, he received a call from Rakesh Chauhan as he used to supply him carton and at about 2.45 PM, he came to meet him regarding carton. DW4 deposed that accused Rakesh Chauhan remained with him for about 15 minutes and thereafter he left from his office and in the night, he received a call from PS Mayapuri and they asked him regarding the same. He further deposed that he gave affidavit in this regard which is Ex. DW4/A. DW5 Ram Parkash deposed that in March, 2004, he went at PS Mayapuri in the night with regard to the case of Rakesh Chauhan. He further deposed that on 20.3.04, accused Rakesh Chauhan came at his :17: office at Patel Nagar at about 3.15 PM and he remained in his office for 15 minutes and thereafter, he went from there. He further deposed that he gave his statement in writing to the police official after signing the same.
DW6 Anil Chauhan deposed that on 20.3.04 at about 2.302.45 PM, accused Rakesh Chauhan came at his residence and he dropped his two children and his wife at his residence and thereafter, he left from his residence. He deposed that at about 3 PM, he made a call for lunch but accused did not come and further made a call at 3.15 PM but accused did not come. He further deposed that accused came at his residence at about 3.45 PM and had a lunch and in the evening, he along with accused Rakesh Chauhan went to Basai Darapur with regard to some work and thereafter they came back and thereafter, at about 8 PM, accused along with his family members left his residence.
DW7 Poonam Sharma, UDC, Record Room, Patiala House Courts, Delhi produced the summoned record of case FIR No. 349/04 under Section 354/506 IPC PS Tilak Marg as per which Prosecutrix 'A' was the Complainant and Accused Rakesh Chauhan had been acquitted :18: in this case by judgment dated 12.7.10 by Ms Gitanjali Goel, the then Ld. MM. Photocopy of the judgment is Ex. DW7/A. DW8 Sunil Kumar, Reader in the court of Ld. SEM, West District, Moti Nagar, Delhi brought the order bearing No. 02/R/SEM dt. 08.1.05 vide which record regarding DD No. 21A dt. 06.12.13 has been destroyed. Copy of same is Ex. DW8/A. DW9 Ravi Shankar, Ahlmad in the court of Dr. Jagminder Singh, LD. MM/Dwarka, Delhi brought the summoned record of case file bearing FIR No. 351/99 under Section 448/506 IPC PS Dabri as per which one Sangeeta Rani was the Complainant of the case and Arun Kumar, Kailaso Devi, Gyan Chand Walia, Ritu @ Shimla and Prosecutrix 'A' have been acquitted in this case.
PW10 Ravi Shankar Kumar, LDC Record Room (Civil) THC brought the original judicial file of Suit No. E119/2004 titled as Gopal Krishan Verma Vs Gyan Chand. The petition was decided by Sh. V. K. Goel, Ld. Rent Controller vide order dated 07.2.05 wherein order was passed against Gyan Chand to get vacated the rented premises/shop. Appeal against said order was also dismissed by the court of Sh. S. M. :19: Chopra, LD. ARCT on 01.9.05. Certified copies of both the orders are Ex. DW10/A and DW10/B respectively.
DW11 Jaivir Singh, LDC Record Room (Criminal) Rohini, Delhi brought the original judicial file of case FIR no. 397/98 PS Janakpuri under Section 328/376/294/506/120B/34 IPC and as per record the said FIR was lodged by Prosecutrix 'A' against Accused Surender Singh, Amrit Pal, Ashok Kumar and Subhash Singh and all the Accused persons were acquitted by the court of Sh. Bharat Parashar, the then Ld. ASJFTC vide judgment dated 24.11.06, certified copy of the same is Ex. DW11/A. I have heard detailed arguments advanced by Ld. Defence Counsel as well as Ld. APP for the State. I have also gone through the written arguments filed on behalf of Accused. It was contended by Ld. Defence Counsel that original tehrir is not on record. However, it is admitted that the contents have been reproduced in the chargesheet.
It was further contended that as per first statement of the Prosecutrix recorded at RML Hospital on 22.3.04 by SI Vijay Kumar, :20: there is no allegations of rape in the said statement. It was further contended that ASI Bhopal Singh who got Prosecutrix admitted in RML Hospital has neither been cited nor examined as a witness by Prosecution. Admittedly, the place where Prosecutrix was allegedly confined could not be ascertained during the entire course of investigation.
Ld. Defence Counsel also contended that story of the Prosecutrix does not seem believable and the MLC Ex. PW1/A does not find mention about the fact as to whether Prosecutrix was in unconscious condition at the time of her medical examination or not. Further, the parents of the Prosecutrix who as per SI Vijay Kumar were present at the time of recording of her statement have not been examined as witnesses. Moreover, it creates a doubt as to how they reached the hospital when the statement of the Prosecutrix was recorded in their presence.
It was further contended that PW15 Arti failed to support the case of the Prosecution and Prosecution has not been able to prove its case against Accused who deserves to be acquitted.
:21:Analysis and Findings The Prosecutrix undoubtedly is the most important witness in the present case. The chargesheet reveals that SI Vijay Kumar of PS Connaught Place recorded her statement on 22.3.04 at RML Hospital. The said statement forms part of report under Section 173 CrPC. A perusal of the said statement of the Prosecutrix clearly reveals she did not allege that Accused had raped her when her said statement was recorded by SI Vijay Kumar on 22.3.04. The only the allegations in the said statement, as per the chargesheet, were that she was confined in a room by Accused Rakesh Chauhan and one other boy who gave her beatings and that she was not given anything to drink to eat. She also alleged in the said statement that Accused assaulted her on various parts of her body and they also gave cut marks on her breast with a blade, while Accused Rakesh Chauhan was continuously asking for documents from her.
Apparently, the allegations of Accused having committed rape with her surfaced for the first time when the statement of the Prosecutrix was recorded under Section 164 CrPC on 01.4.04. It is :22: also noteworthy that PW2 Dr. Vandana Sharma who medically examined the Prosecutrix 'A' on 22.3.04 vide MLC Ex. PW1/A deposed in her crossexamination 'The patient had not made any history of sexual assault to me at the time of making of MLC...' Thus, apparently, the Prosecutrix did not allege that Accused had committed rape upon her on 22.3.04 even before doctor who medically examined her. It thus appears that the allegations of rape surfaced for the first time on 01.4.04 when her statement under Section 164 CrPC was recorded.
It is also borne out from the record of the case that the original statement of the Prosecutrix is not available on record, though the same is not disputed. It ha also been borne out from the testimony of PW5 Insp. Vijay Kumar that the said statement of Prosecutrix was recorded in presence of her parents which was signed by her as well as by her parents.
Interestingly, however, the parents of the Prosecutrix, who could have been the best witnesses of the condition of the Prosecutrix and her recovery were not brought into the witness box by the Prosecution. :23:
I also find myself in agreement with the submissions of Ld. Defence Counsel that MLC of the Prosecutrix Ex. PW1/A is totally silent as regards condition of the Prosecutrix at the time of her medical examination. In other words, the MLC Ex. PW1/A does not indicate at all as to whether Prosecutrix was conscious, oriented or in unconscious state though it is the case of the Prosecution that Prosecutrix was found lying unconscious in Connaught Place and taken to RML Hospital by PCR official ASI Bhopal Singh, who also was not examined as a witness by the Prosecution.
It thus appears that the witnesses who were relevant and whose testimony could have thrown some light on the condition of Prosecutrix immediately pursuant to her alleged recovery, were not examined, thus, leading to drawing of an adverse inference against the case of the Prosecution.
As aforesaid, it is the case of the Prosecution that on 20.3.04 one boy, who as per Prosecutrix, used to work in the factory of Accused and who could not be traced during entire length of investigation, came to call her from her Boutique. She went along with the boy while handing :24: over her mobile to her employee Arti for charging. The said Arti who was examined as PW15, however, failed to support the case of the Prosecution and denied that the Prosecutrix asked her to charge her mobile phone or that she went on her scooty on 20.3.04.
It is further the case of the Prosecution that Prosecutrix was taken to office of the Accused where he was sitting in a car and that he made her unconscious by keeping a piece of cloth on her mouth. She was then taken to an unknown room where she was given beatings by Accused and one other boy. She was given cut marks and was also allegedly raped by Accused.
At this juncture, it would again be relevant to revert to the chargesheet wherein it has been alleged that Accused was present in the room with only one boy. However, when the Prosecutrix stepped into the witness box, she improved upon her earlier version and deposed that two more boys came into the room and gave her beatings.
She also alleged in her complaint that she was given cut marks on her breast by other boy and Accused Rakesh Chauhan and in the meantime, Accused Rakesh Chauhan was continuously demanding :25: documents from her. However, when the Prosecutrix testified before the court, she stated that other boy removed her kurti and Accused Rakesh Chauhan took out a knife type object from his back pocket and gave the same to that boy and asked him to give continuous cut marks, by knife, on her breast till she hand over those documents to Accused and at the direction of Accused Rakesh Chauhan, that boy gave 24 knife cuts on her both the breast and by doing so he was asking her to hand over the documents. In her examination in chief, she further deposed that the moment while she was being given knife cuts on her both the breasts by the boy, Accused Rakesh Chauhan got folded her both the hands at her back and holding her hands.
The deposition of the Prosecutrix is clearly at variance from her original stand wherein she had stated that Accused along with other boy had assaulted with blade on her breast.
Interestingly, in her statement under Section 164 CrPC Ex. PW3/E, though the Prosecutrix alleged that she was given cut marks by the Accused and the other boy, she did not state anything regarding cut :26: marks allegedly given on her breast, but only stated that she was given cut marks on various places on her body.
Further, as per the testimony of the Prosecutrix, when the cut marks were allegedly given by other associate of the Accused on breast of the Prosecutrix, only Accused and that said boy were present and to other boys came in the room later on.
On going through her testimony, her initial complaint and the statement under Section 164 CrPC, I find that they are clearly at variance with each other.
The Prosecutrix also testified before the court that due to the said act, blood started oozing out. However, the 'Kurti' which she again wore after the incident and which was seized vide memo Ex. PW3/C was not having any blood stains as per record. Further, though, it is her testimony before the court that after all the three other Accused persons went outside the room, Accused Rakesh Chauhan put off her clothes. She also deposed that Accused Rakesh Chauhan got folded her both hands behind her back and held them which was also a new fact which emerges for the first time during her testimony. :27:
It is also a matter of record that Prosecutrix is law graduate, despite which her statement varied from time to time with regard to alleged weapon which was used for giving her cut marks. In her testimony, she called it merely "knife type object" whereas in statement recorded under Section 164 CrPC, she referred to the object as "chhoti se lambi se cheez", while in her complaint she alleged that she was assaulted with the help of blade. Admittedly, the alleged object with which cut marks were given never recovered during the course of investigation.
It is also not disputed that no investigation was conducted with regard to the scooty of the Prosecutrix which allegedly remained parked outside the office of the Accused for 03 days. Moreover, no public person was joined by the Investigating Agency at the time of recovery of the Prosecutrix from the area of Connaught Place.
It is also pertinent to note that as per the Prosecutrix, Accused Rakesh Chauhan wanted certain documents from her which were in her possession. Prosecutrix deposed before the court that she handed over the documents to the IO, however, no such documents were filed on :28: record by the Investigating Agency along with chargesheet. Rather, the photocopies of the documents were brought on record by the Prosecutrix herself during the course of her deposition.
Ld. Defence Counsel also highlighted during the course of arguments that the Prosecutrix had lodged another case being FIR No. 397/98 PS Janakpuri under Section 328/376/294/506/120B/34 IPC against Surender Singh, Amrit Pal, Ashok Kumar and Subhash Singh which was decided by Ld. Session Court vide its judgment Ex. DW11/A. In the said case, all the Accused including main Accused Amrit Pal who had allegedly raped the Prosecutrix were acquitted on 24.11.06 Ex DW11/A. It was contended that Prosecutrix is habitual of making false allegations against various persons and the allegations against present Accused are also false.
It was further pointed out by Ld. Defence Counsel that present Accused was falsely implicated by the Prosecutrix in another case being case FIR No. 349/04 under Section 354/506 IPC PS Tilak Marg and in which case he was acquitted vide judgment Ex. DW7/A. My attention was further drawn to the crossexamination of IO/SI :29: Bhoop Singh (PW9). In his crossexamination, he deposed before the court that call details of mobile phone of Accused and Prosecutrix were taken by him and he had annexed the same along with judicial record. The same are Mark A/PW4 which were taken by him from the service provider namely SR Telecom. He also deposed before the court that he did not make any efforts to clarify the location, presence and position of the Accused persons as well as of the Prosecutrix as per the CDR collected by him from the concerned telecom authority. He also deposed that he did not verify the call details from 20.3.04 to 22.3.04 in respect of the telephone calls made by the Accused as well as the Prosecutrix. He further stated before the court that he did not investigate the matter in respect of the presence of the Accused on 20.3.04, 21.3.04 and 22.3.04 nor any investigation was carried out by his senior officals in this regard.
Ld. Defence Counsel relied upon testimony of DW1 to DW6 who deposed before the court as per whom the Accused was with them on 20.3.04 from 1.30 PM till 3.45 PM. DW1 to 4 also stated that they had filed affidavit in this regard before the court of concerned Ld. MM :30: being Ex. DW1/A, DW2/A, DW3/A and DW4/A. DW1 to 6 also deposed that they had given their statements in writing to the police during the course of investigation regarding presence of the Accused with them on 20.3.04 during the aforesaid time and period.
The testimony of DW1 to DW6 thus stands corroborated from the aforesaid crossexamination of IO/SI Bhoop Singh (PW9) who despite having seized the CDRs of mobile phone of Accused and Prosecutrix did not verify the same to ascertain their location. It is a matter of record that the place of alleged incident remained a mystry during entire enquiry, investigation and trial of the case. What prevented the Investigating Agency to trace the alleged place of incident with the aid of call details of Accused and Prosecutrix which were very much available, is certainly an obvious guess.
Apparently, no plausible explanation has been brought on record by Investigating Agency as to why the CDRs of the Accused and the Prosecutrix which were admittedly obtained/procured during the course of investigation, were not looked into to in order to verify the location of the Accused and the Prosecutrix. Consequently, this fact must again :31: lead to drawing of an adverse inference against the Investigating Agency for having deliberately withheld material evidence from the Court.
This deliberate omission to my mind can only mean that any enquiry into the CDRs regarding location of the Accused and the prosecturix could have been contrary to the case of the Investigating Agency.
Ld. Defence Counsel contended that CDRs of mobile phone of the Prosecutrix and Accused filed along with chargesheet indicate different locations of Accused and Prosecutrix on 22.3.04 at the relevant time i.e. 1.30 PM and rather, corroborated the deposition of the aforesaid Defence witnesses regarding the presence of Accused with them at the time of alleged incident.
Lastly, neither the alleged weapon of offnce nor even palce of incident could be ascertained during the course of entire investigation. The testimony of the Prosecutrix does not seem credible in the light of the above discussion. No evidence whatsoever has been brought to support her claim that she was recovered from the area of Connaught :32: Place in an unconscious condition.
Further, although as per MLC Ex. PW1/A, the Prosecutrix was found having cut marks on her breast. As per opinion of Board of Surgeons the said cut marks could not have been self inflicted, yet keeping in view the fact that medical report does not throw any light on the duration of the said cut marks as to when said cut marks were inflicted, also makes the case of the Prosecution doubtful. In addition thereto, it is relevant to note that though Prosecutrix deposed before the court that she put on her clothes after the incident in question and her deposition that blood was oozing out from her cut marks, there is nothing on record to show that there was presence of blood stains on her kurti, which she was wearing at the time of alleged incident.
It has also been established on record by the Accused that Prosecutrix had also implicated him in another case wherein he was acquitted vide judgment Ex. DW7/A. The Defence has also brought on record that she had levelled allegations of rape against four other persons in case FIR No. 397/98 PS Janakpuri wherein all the Accused were acquitted vide judgment Ex. DW11/A. :33: DWs 1 to 6 have also from their respective depositions establish that Accused was with them on the date and time of the incident. This fact as aforesaid corroborated from the fact that Investigating Agency despite having seized of the CDRs of the Accused as well as Prosecutrix of the relevant time made no efforts to verify the same.
In the light of the above discussion and the evidence on record, I find that the allegations against Accused have not been proved on record. The Prosecution has failed to establish that Prosecutrix was abducted by Accused or wrongfully confined, as alleged. It has also not been proved that the Prosecutrix was raped on 20.3.04 to 22.3.04 by the Accused along with one other boy or that Accused along with his accomplice caused any cut marks upon the person of Prosecutrix.
In the light of the aforesaid, I find no ground to convict the Accused for the offences with which he was charged.
Consequently, Accused is hereby acquitted for offences punishable under Section 342/365/324/376 (2) (g) IPC. His bail bonds cancelled. Surety discharged.
File be consigned to Record Room.
:34:Announced in the Open Court on 08.3.2013 (Kaveri Baweja) Additional Sessions JudgeSpl. FTC (Central) Tis Hazari Courts: Delhi.
:35:State Vs. Rakesh Chauhan FIR No. 80/2004 PS : Mayapuri SC No. : 21/13 08.3.13 Present : Sh. Rakesh Mehta Learned APP for State.
Accused on bail with Counsel.
Vide judgment announced of even date on separate sheets, Accused is hereby acquitted for offences punishable under Section 342/365/324/376 (2) (g) IPC. His bail bonds cancelled. Surety discharged.
Accused is directed to furnish bail bond to the tune of Rs. 20,000/ with one surety in the like amount in terms of Section 437A CrPC.
Bail bond furnished and accepted.
File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:36: