Delhi District Court
State vs . 1. Karambir @ Kapil S/O Satbir Singh on 3 July, 2013
1
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 15/13
Unique Case ID No.02405R0456322010
State Vs. 1. Karambir @ Kapil s/o Satbir Singh
R/o H.No.RZF-905/8, F Block,
Near Church, Raj Nagar-II,
Palam, Delhi.
2. Anish Yadav @ Mintu s/o Gangaram Yadav,
R/o H.No. RZF-760/49, Gali NO.2,
F Block, Raj Nagar-II, Palam, Delhi.
Date of Institution :06.12.2010.
FIR No. 240 dated 07.09.2010.
U/s. 365/376(G)/341/506/328/34 IPC.
P.S. Sec.23, Dwarka.
Date of reserving judgment/Order :06.06.2013.
Date of pronouncement :03.07.2013.
JUDGMENT
1. The above named accused have been facing trial for having committed offences punishable u/s 341/366/376 (2)
(g)/506/328/34 IPC.
2. The case of the prosecution is that on 7.9.2010, the prosecutrix namely 'P' (real name has been withheld in order to conceal her identity) came to the Police Station at 9 pm alongwith SC No.15/13 Page 1 of 26 2 her sister Vandana Rao with a complaint of having been raped. Her statement was recorded by ASI Urmila. The relevant portion of her statement is reproduced herein below:-
"..........About 15 days ago, I had received some obscene text messages as well as calls on my mobile phone NO. 9911493685 from Mobile Phone No. 8800328208. The caller disclosed his name as Karamveer @ Kapil and made an offer of friendship to me. I refused his offer but he did not pay heed to my refusal and continued to send text messages and also continued to make calls to me. On 31.8.2010, I had gone to Sector-6 Dwarka Market for some work. At about 11.20 am, a person came in my way and told that he is Kapil @ Karamvir, I tried to save myself from him but he caught hold of my hand and made me to sit in the nearby parked Wagon-R car of silver colour. Some other boy was driving the car. I tried to raise alarm but Karamvir gagged my mouth and threatened that I would be killed if, I raised alarm and committed sexual intercourse with me forcibly. Thereafter Karamvir called one another boy who was tall and lean and he also raped me while I was being taken here and there in the car. From the conversation between the three I came to know that driver's name is Sumit and the other boy is named Anish @ Sonu. At about 2 pm, they dropped me at Sector-9 Dwarka and ran away. However, before that Sumit, who was driving the car, fetched a tablet from SC No.15/13 Page 2 of 26 3 a chemist shop, gave it to Kapil in the car and Kapil administered the same forcibly to me. With great difficulty I reached home on a cycle rickshaw and became unconscious. I am residing alongwith my father and, therefore, did not tell anybody anything. Today I had gone to the house of my sister Vandana and narrated the incident to her. My sister had brought me to the Police Station. The aforesaid two boys have committed rape upon me and the third boy named Sumit helped them in this act......"
3. On the basis of the aforesaid statement of the prosecutrix, FIR was got registered and the investigation was commenced by ASI Urmila. She prepared the site plan of the spot of incident at the instance of the prosecutrix and got the prosecutrix medically examined. The exhibits handed over by the doctor were sealed. The underwear and creme colour brassiere worn by the prosecutrix at the time of incident was produced by her and seized by the IO. The prosecutrix was got counselled from an Official of NGO. Accused Karamvir @ Kapil came to be arrested and his mobile phone of Nokia was seized. Wagon-R car bearing registration No. DL-9CL-2959 was also seized. At the instance of accused Karamvir another accused namely Anish Yadav @ Mintu was also arrested. They were got medically examined and the clothes worn by them at the time of incident were seized. Both are stated to have made disclosure statement admitting their guilt. Both were kept in muffled faces and produced for Test Identification Parade but both refused to take part in the same. The statement of prosecutrix u/s 164 Cr.P.C. was got recorded.
SC No.15/13 Page 3 of 26 4Thereafter, the third accused namely Sumit came to be arrested on 10.9.2010. He turned out to be a juvenile and accordingly, was produced before JJB-II, Delhi Gate. Exhibits of the case were sent to FSL Rohini for forensic examination. After the completion of the investigation, charge sheet was laid before the concerned Magistrate and the case was thereupon committed to the Court of Sessions for trial.
4. Before the court of Sessions, the accused Karamvir @ Kapil was charged with having committed offences punishable u/s 341/366/376(2)(g)/506/328/34 IPC on 14.1.2011. On the same date, accused Anish Yadav was charged with for having committed offences punishable u/s 376 (2)(g)/506/328/34 IPC. Both the accused pleaded not guilty to the aforesaid charges and accordingly the trial was held. The prosecution has examined seventeen witnesses to prove the charges against the accused. The statement of accused u/s 313 Cr.P.C. was recorded on 7.10.11 wherein they denied all the incriminating facts and circumstances put to them and claimed false implications. They denied having committed rape upon the prosecutrix. Accused Karamvir further stated that on 7.9.2010, one girl namely Puneet had called him and asked him to meet her at Sector-6, Dwarka. On his refusal to meet her, she threatened to lodge a police complaint against him. On 21.3.2012, supplementary statement u/s 313 Cr.P.C. was also recorded. The accused have examined 6 witnesses in their defence in order to establish their innocence.
5. I have heard ld. APP, ld. Counsels for accused and have perused the entire documentary as well as oral evidence on SC No.15/13 Page 4 of 26 5 record.
6. It is submitted by the ld. APP that the prosecutrix has fully supported the prosecution case and her statement finds corroboration from the testimony of her sister PW-14 as well as the medical evidence on record. She submits that the electronic evidence on record in the shape of call detail records of the mobile phone of accused Karamvir also supports the case of the prosecution. He further submits that accused have deliberately refused to take part in TIP in order to avoid identification by the prosecutrix at the very first instance. She submits that prosecution has been successful in establishing the guilt of the accused and the both the accused are liable to be convicted.
7. On the other hand, ld. Counsel for the accused submitted that there is a delay of about 9 days in reporting the incident to the Police, which delay has remained to be explained by the prosecution. It is further submitted that the sister of the prosecutrix, PW-14 is a police official and she is instrumental in registration of this false case against the two accused. It is further submitted that it has come in cross examination of PW-14 that she had come to know about the incident on 31.08.2010 itself but had given no reason why she did not take her sister i.e. the prosecutrix to the Police Station till 07.09.2012 for registration of the FIR. It is further submitted that there are various inconsistencies and contradictions in the testimony of the prosecutrix (PW-3) and her sister (PW-14) which make the case of the prosecution highly improbable, unreliable and un-trust worthy. It is further submitted that the testimony of the defence witnesses also establishes the SC No.15/13 Page 5 of 26 6 innocence of the accused. Both the ld. Counsels urged this court to acquit the accused.
8. In cases involving the offence of rape, the testimony of prosecutrix is the most vital and material piece of evidence. Her statement if found to be worthy of credence and reliable, requires no corroboration and court may convict the accused on her sole testimony. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtable and competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. In case involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. While evaluating evidence, the court must remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour. At the same time, it is also settled position that if for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. If the court of facts finds it difficult to accept the version of the prosecutrix at its SC No.15/13 Page 6 of 26 7 face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (See- State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, State of U.P. vs. Pappu @ Yunus and anr., AIR 2005 SC 1248, State of Punjab vs. Gurmit Singh and Ors., AIR 1966 SC 1393).
9. It would also be useful to keep in mind the following observations of the Supreme Court made in Raju vs. State of M.P., (2008) 5 SCC 133 :
"12. Reference has been made in Gurmit Singh's case to the amendments in 1983 to section 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that sections 113A and 113B too were inserted in Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."SC No.15/13 Page 7 of 26 8
10. It can be aptly said that in cases involving sexual assault upon women, the evidence of the victim should be of sterling quality as the fate of the case depends upon the quality and face value of her testimony. Who can be termed as a 'Sterling Witness' has been dealt with by the Supreme Court in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, 2012 (131) DRJ 3 (SC) wherein the quality of the testimony of the prosecutrix, which can be made as a basis to convict the Appellant, was considered in detail and it was so held:
"15.In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any SC No.15/13 Page 8 of 26 9 length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime, should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."SC No.15/13 Page 9 of 26 10
11. It also needs mention here that the Supreme Court in Udai Vs. State of Karnataka AIR 2003 SC 1369, has held that even in cases of rape, the onus is always on the prosecution to prove affirmatively all the ingredients of the offence which it seeks to establish and such onus never shifts. It is not the duty of the defence to explain as to why and how the victim and the other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and it cannot take the support from the weakness of the case of defence. However, the great suspicion against the accused and however strong the moral belief and the conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legally admissible evidence and the material on record,the conviction cannot be ordered. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
12. Keeping in view the aforesaid golden principles, laid by the Supreme Court, in mind, let me proceed to scrutinize the testimony of prosecutrix and other witnesses in this case. Prosecutrix has been examined as PW-3 and her sister Vandana has been examined as PW-14.
13. PW-3 has deposed that on 31.08.2010,when she was present at Sector 6, Dwarka at about 11.20 am, a boy named Kapil (i.e. the accused) suddenly came in front of her and asked her about some address. She told him that she does not know the said SC No.15/13 Page 10 of 26 11 address. But he blocked her way and assaulted her on her head with his hand. He forcibly dragged her into a silver colour Wagon-R car. Thereafter he telephoned a boy named Sumit, who sat on the diver seat of the car and started driving the car. She kept on shouting but accused Kapil threatened to kill her and dragged her inside the car. She banged on the car door from inside but accused Kapil held her hand. Thereafter they took the car out of Dwarka and accused Kapil raped her inside the car. The accused then, made a telephonic call to another boy namely Anish. (accused Anish). Anish reached there and sat on the rear seat of the car and he also raped her inside the car. When she pleaded them to let her go, accused Anish threatened her that they would kill her if she disclose about the rape to anybody. The accused Anish beat her with his hands and fists on her face and chest, due to which her entire face got swollen. Her mobile phone was also got snatched by accused Anish and he gave the same to accused Kapil. At about 2 pm they dropped her near some forest area in Sector-9, Dwarka and she went home. No one was present at home at that time as her father had gone to his office. She remained unconscious for 2-3 days and thereafter went to the house of her sister namely Vandana Rao and informed her about the incident. Vandana Rao took her to the Police Station where her statement Ex. PW3/A was recorded. She took the police to the place wherefrom she was kidnapped and pointed out the same to them. Then she was taken to DDU Hospital, where her medical examination was conducted. She was also produced in the Court where her statement was recorded by the ld MM which she proved as Ex. PW3/B. She was declared hostile by the ld. APP on certain points and in her cross examination, she admitted that she had SC No.15/13 Page 11 of 26 12 received some obscene SMSs and a telephonic call on her mobile phone no. 9911493685 from mobile phone number 8800328208 and the caller had introduced himself as Karamvir @ Kapil and also gave her an offer of friendship. She had asked accused Karamvir not to call her. She also admitted that before throwing her out of the car, Sumit had brought a tablet from a chemist shop which was administered to her forcefully in the car by accused Kapil with the water. She also admitted that she alongwith her sister had gone to the Police Station on 07.09.2010 and had pointed out the place of kidnapping to the Police officials on 08.09.2010. She also admitted that on 09.09.2010, when she had come to Dwarka Courts, she had seen accused Kapil and Anish in the custody of IO and had identified both of them. She also admitted that thereafter when she went to the Police Station, she identified the Maruti Wagon R Car bearing Registration No. DL9CL-2959 which was lying parked there to be the same in which she was kidnapped and raped by the accused. She also admitted that the accused persons had broken her mobile phone and thrown away the sim card. She also admitted that the IO had prepared the site plan of the place of kidnapping at her instance.
14. In the cross examination on behalf of accused, she deposed that her full name is Puneeta Rao and her family comprises of herself, her father, her elder brother and younger brother. None of them is married. All of them are living together on the first floor of the address given by her. Her father has retired from services as Senior Draftsman in the year 2001-2002 and on the date of incident, he had gone to his office to meet his friends. His younger brother is a property dealer and elder brother is not SC No.15/13 Page 12 of 26 13 employed. She did not remember the date when she had received the first telephonic call from accused Kapil. She had gone to Sector-6, Dwarka Market on 31.8.2010 at 11 am to purchase household items and admitted that it is generally a very crowded market. She admitted that a PCR van used to remain in the market but added voluntarily that on that day, PCR van was not present in the market. She had not done any shopping before she was kidnapped. She admitted that she did not know the names of those three boys before that date and their names were told to her by the Police officials after their arrest. When accused Anish reached there pursuant to a telephonic call made by accused Kapil, the car was in a lane and she could not see anyone in the lane as accused had gaged her mouth and pushed her face downward. She was wearing a jeans and a top on that day as well as a black colour underwear and brassiere with white strips. She did not know the name of the chemist from where the accused Sumit had brought the tablet. According to her, she was raped in the moving car. She further deposed that when she was left in the jungle of Sector-9, Dwarka by the accused, she crossed the road and took a rickshaw to her home. It took her 10 minutes to reach her home. She became unconscious after reaching home. No family member as present in the house at that time and none of them came to the house during those 3-4 days when she remained unconscious. She did not remember after how many days her family members had returned to the house. She also did not remember where they had gone. Her father and elder brother had left home on the day of incident before she left for market. Her younger brother used to live with her cousin sister Vandana Rao and not with them. She was unconscious, so she did not call her SC No.15/13 Page 13 of 26 14 father or brother during those 3-4 days. Her father and brother also did not make any telephonic call to her during those 3-4 days. She intimated the incident to Vandana when she personally visited her home. She admitted that in her statement u/s 164 Cr.P.C., she has stated that after regaining consciousness, she had telephoned Vandana, who came to her house. She did not remember the date or time when she telephoned Vandana or when Vandana had come to her house. In further cross examination, conducted on 08.06.2011, she deposed that she did not know when her father returned to the house as she had gone to the house of her cousin sister Vandana Rao on that day. Her sister had come and taken her in her car. She had telephoned her sister but she did not remember the telephone number from which she had called her. She did not know that her sister had reached there as she was unconscious. When her sister Vandana had come to her house, she was alone. Her sister Vandana is a Sub-Inspector in Delhi Police and she resides at Vasant Enclave, Delhi with her family consisted of her husband and two daughters. She did not inform her brothers regarding the incident. Rickshaw puller had dropped her at the bus stand opposite Dada Dev Temple and from there she went her home on foot. It took her about 15 to 20 minutes in reaching Dada Dev Temple from the spot from where she was dropped by the rickshaw puller. She had given Rs. 50/- to the rickshaw puller. She further deposed that her cousin Vandana Rao took her to the police station on the day of incident itself. Her statement was recorded by the IO on the same date and her medical examination was also conducted on the same date at about 3 am during the night. She had told Vandana on the day of incident itself, the names of her abductors as Kapil and Sonu. She further deposed SC No.15/13 Page 14 of 26 15 that when she reached home at about 2 pm, she was feeling sleepy because of tablet given to her by the accused and thereafter she slept for 3-4 hours. She did not remember as to for how many days, she stayed in the house of Vandana after the incident. She did not know whether her father and brothers have made any inquiries from Vandana about her whereabouts during that period. She did not tell about the incident to her father and brothers as she was scared. Vandana is the daughter of her uncle (chacha). She had not handed over her jeans and top to the police official as they did not demand the same. Further she denied all the suggestions put to her by the cross examining Counsels.
15. PW-14 is Vandana Rao. She has deposed that on 31.8.2010, she was residing at house No. 310, Vasant Enclave. On that day, her father telephoned her from Raj Nagar, Palam that her younger sister Puneeta was ill. She left for Raj Nagar in the evening and saw her sister in a vey bad condition being unable to speak. She tried to talk to her but Puneeta did not response and she stayed there for some time and thereafter left. On 7.9.2010, at 9.30 am Puneeta told her that someone had abducted her forcibly from Dwarka Market on 31.8.2010 in a Wagon R Car in which there were two boys and both of them raped her. Thereafter she took Puneeta to Police Station Dwarka whereas her statement was recorded. In her cross examination, she deposed that she used to talk to her sister Puneeta on telephone between 31.8.2010 and 7.9.2010. When she had reached the house of Puneeta on 31.8.2010, only her father was present there. Puneeta was not taken to any doctor between 31.8.2010 and 7.9.2010. Even though she was unconscious and in a very bad condition. In her SC No.15/13 Page 15 of 26 16 further cross examination, she deposed that she alongwith Puneeta and her husband had gone to the Police Station on 7.9.2010 at about 7 pm for the registration of the case. Her sister Puneeta had told her the name of one of the accused namely Sonu between 31.8.2010 and 7.9.2010. She came to know about the names of the accused persons on the day, when they were arrested.
16. Scrutiny of the deposition of the aforesaid two star witnesses of the prosecution would reveal that they have contradicted each other on vital aspects thereby rendering the prosecution case untruthful and unreliable. The testimony of the prosecutrix (PW-3) is replete with inconsistencies and improbabilities which makes her an unreliable witness. Her deposition appears to be far from being creditworthy and trustworthy. She has contradicted herself in her cross examination which leads to the only conclusion that the allegations of rape have been concocted by her for some ulterior reasons best known to her.
17. According to prosecutrix (PW-3), accused Kapil met her on the date of incident i.e. 31.08.2010 in the busy market of Sector 6, Dwarka at 11.20 am., assaulted her and dragged her inside a silver grey wagon R car. Then he telephone another boy namely Sumit, who came there, started the car and drove it. She kept on shouting and barged the door of the car from inside. She admitted in her cross examination that market of Sector-6, Dwarka is a busy market and a PCR van used to remain in the market. However, she voluntarily added that on that day, PCR van was not SC No.15/13 Page 16 of 26 17 present in the market. I find it improbable and difficult to believe that a girl in her mid twenties would be abducted from a busy market place in broad day light by a youth single handedly. Had PW-3, offered any resistance, accused Kapil would not have succeeded in his designs. Moreover people would have definitely seen the accused Kapil dragging the prosecutrix upto and inside the Wagon R Car. It would have taken a while for him to drag the prosecutrix upto the car, open its door and throw her inside the same. Certainly this would not have remained unnoticed by the public and some person or other would have raised alarm and informed the PCR. It is also evident from the testimony of prosecutrix that accused waited in the car alongwith her till his associate Sumit came and started driving the car. Till that time she kept on banging the car door from inside. This would have, for sure, alerted the public in the market and public persons would have surrounded the car, even for the sake of curiosity as to what was happening inside the car. All this did not happen which demonstrates that either no such abducting incidence did take place or the prosecutrix voluntarily accompanied the accused.
18. The allegations that prosecutrix was raped by the two accused Kapil and Anish in a moving car in broad day light on 31.8.2010 are too improbable to inspire any confidence. There is no evidence on record that the car had tinted windshields. Neither prosecutrix nor any other witness including the IO has said so. It is almost impossible to have forcible sexual intercourse with a girl in a moving car with transparent windshields and remain un-noticed throughout the period of about two and a half hours.
SC No.15/13 Page 17 of 26 1819. It is pertinent to note here that the Wagon-R car bearing registration No. DL9CL-2959, alleged used in the commission of offence, was seized by the Police and sent to FSL for forensic examination. It was examined by PW-10, Senior Scientific Officer (Biology) and according to her report Ex. PW10/A, no biological clue material like blood, semen, hair etc. could be detected in the said car. The report clearly demonstrates that the said car had not been used in the commission of offence of rape. If infact the prosecutrix had been subjected to forcible sexual intercourse by the two accused on the rear seat of the said car, some semen or blood stains would have fallen on the seat and on an account of struggle, some hair strands of the prosecutrix would also have got stuck to the seat. Since this did not happen, it cannot be believed that the prosecutrix had been raped by the two accused in the said car.
20. Now according to the prosecutrix she was thrown by the accused near some forest area in Sector-9, Dwarka at about 2 pm, after the incident of rape. She went home and nobody was present there at that time. Her father had gone to his office. She remained unconscious for 2 -3 days and thereafter she went to house of her sister Vandana Rao and informed her about the incident. She reiterated the same in her cross examination also while further adding that after she was dropped by the accused, she took a rickshaw to reach home. She opened the door herself and thereafter became unconscious . She also deposed that none of her family members was at home during those 3-4 days when she was lying unconscious. As per her own deposition, her family comprises of her father and two brothers and all are living SC No.15/13 Page 18 of 26 19 together on the first floor of the house. Her mother had expired two years ago. Vandana Rao is not her real sister but a cousin. Her younger brother is a property dealer and elder brother is unemployed. She did not remember after how many days had her family members returned to the house. She did not remember where they had gone. At another place in cross examination she states that her younger brother used to live with her cousin Vandana. Her father had gone to the office on that day and she did not know where her brother had gone. During those 3-4 days, her father and brother did not telephone her.
21. The aforesaid portion of the deposition of the prosecutrix clearly manifests that she is telling a blatant lie. It seems from the further portion of her deposition that she had been administered a tablet by the two accused before dropping her from the car. What that tablet was and whether or not it had sedative effect and if so, to what extent, is not clear from the record. No investigation appears to have been done in this regard by the Police. No effort has been made by the investigating officer to trace out the chemist from whom the accused had purchased the tablet. Even if it be assumed that the said tablet made the prosecutrix unconscious after reaching home, but there is no evidence on record to suggest that the tablet could have caused unconsciousness for 3-4 days altogether. There is also no evidence on record that any such tablet is available in market with the chemists which can cause unconsciousness for a period of 3-4 days at a stretch. It is certain that there is no such tablet available in the market, which would make a person unconscious for such a long period of 3-4 days.
SC No.15/13 Page 19 of 26 2022. Assuming that the prosecutrix is true in deposing that she remained unconscious for about 3-4 days after the date of incident, then also it is difficult to take that all her family members remained out of home during those days and they were totally unaware about her unconsciousness. She says that her father had gone to his office on that day (31.8.2010) to meet his friends. Therefore, he must have returned home in the evening and witnessed his daughter in unconscious state. She had given evasive statements about where her brothers had remained during those days. Pertinent to mention here that her elder brother is married having children. He has not been joined in the investigation of the case by the police at all. No enquiry has been made from him regarding the present case. Interestingly he has been examined by the accused in their defence as DW-6. According to him, he was informed about the incident of rape by the husband of Vandna and he himself knew nothing about the same. Important portion of his deposition is that his younger brother Raju is a kidney patient, suffering from both kidney failure for the last 4-5 years and usually remains at home. Thus the deposition of the prosecutrix that none of her family members was at home during those 3-4 days when she was unconscious, is not true.
23. Apart from this, the prosecutrix has contradicted herself in this regard in his further cross examination conducted on 8.6.2011. Aforesaid portion of her testimony reveals that she visited the house of Vandana Rao after about 2-3 days of the incident when she regained consciousness. However, in her cross SC No.15/13 Page 20 of 26 21 examination dated 8.6.2011 she has deposed that she doesn't know when her father returned home on the date of incident as she had gone to the house of her cousin Vandana on that day itself. Her sister had come and taken her in her car. She had made a telephonic call to Vandana but did not remember from which telephone number. Thus the prosecutrix has herself falsified her statement in court that she remained unconscious at her home for 2-3 days after which she went to the house of Vandana. It is now evident that she had called Vandana on the date of incident itself upon which Vandana came to her house to take her to her (Vandana's) house.
24. The prosecutrix further goes on to say in the cross examination dated 8.6.2011 that Vandana Rao took her to the Police Station on the day of incident itself. Only she and Vandana had gone to police station where her statement was recorded by the IO and her medical examination was got conducted on the same night. This completely demolishes the prosecution case, according to which Vandana had brought the prosecutrix to the Police Station for the first time on 07.09.2010 for lodging a report regarding rape. It becomes manifest that Vandana had taken the prosecutrix to Police Station on 31.8.2010 itself where her statement was recorded and she was got medically examined. What happened thereafter is a mystery. It may be that the medical examination did not support the allegation of gang rape and hence the complaint was dumped and no further action was taken. The matter was then deliberately reported to Police for the second time after one week, knowing fully well that the medical examination of the prosecutrix after one week of the incident SC No.15/13 Page 21 of 26 22 would be immaterial and the statement of prosecutrix would be believed.
25. The testimony of the PW-14 is totally different to that of PW-3. She has neither supported the version of PW-3 fully nor has contradicted it completely. She has made concerted attempt to stick to the prosecution case but her conduct turns out intensely doubtful. As per her deposition she had received a telephonic call from her father on 31.8.2010 saying that 'P' is ill. She went to house of 'P' in the evening of that day and saw 'P' in a very bad condition, unconscious and unable to speak. Her father alone was present there at that time. She tried to talk to 'P' but 'P' did not respond and after sometime she returned home. As would be seen, this is in stark contrast to the deposition of PW-3 who has stated that her father was not present in home on that day and she herself had made call to PW-14 who had come and taken her alongwith to her room.
26. As per the deposition of PW-14, the father of 'P' was present in his home on the date of incident thus he was the first person to see the prosecutrix 'P' after the incident. So, he was a material witness with regard to the condition in which 'P' reached home on that day and when. However, it appears that no inquiries were made from him by the IO. His statement has not been recorded and he has not been produced as prosecution witness. Therefore, adverse inference has to be taken against the prosecution in this regard and it shall be presumed that this witness, if produced before Court, would have deposed against prosecution.
SC No.15/13 Page 22 of 26 2327. PW-14 has further stated in her deposition that the prosecutrix came to her house on 07.09.2010 at about 9.30 am and told her that she was abducted and raped by two boys in a Wagon-R car on 31.8.2010. In cross examination she stated that she used to talk to 'P' on telephone between 31.7.2010 and 07.09.2010. She nowhere explains whether she had asked 'P' during those telephonic talks about the reason of her unconsciousness on 31.8.2010 and if so, what 'P' had said in reply. PW-14 has admitted in her cross examination that 'P' was not taken to any doctor during the period between 31.8.2010 and 07.09.2010. This intrigues me intensely. According to PW-14 herself, the condition of 'P' was very bad in the evening of 31.8.2010, when she had gone to see her. Why did not she advise her father to take 'P' to a doctor or herself do the same. She simply returned home after leaving 'P' in the in the bad condition in which she was. What further intrigues this court is that PW-14 neither informs the father nor the brother of 'P' about the rape incident and did not seek their help in reporting the matter to Police. It is also intriguing as to why P's father apprised only PW-14 about the condition of 'P' and not his sons. It is not the case of prosecution that the relations between P's father and her brothers were not cordial. To the contrary, the prosecutrix has herself deposed that she alongwith her father and brothers were residing together on the first floor of the house.
28. Coming to the mobile phone call detail records of the prosecutrix as well as accused Kapil. In fact the basis of the prosecution case is the unwanted phone calls made by and text SC No.15/13 Page 23 of 26 24 messages sent by the accused Kapil to the prosecutrix. Admittedly, the prosecutrix was using mobile phone No. 9911493685 and the accused Kapil was using mobile phone No. 8800328208. The prosecutrix has herself mentioned these two mobile phone numbers in her complaint to the police and in her deposition before this court. Call detail records of both these mobile phone numbers have been proved by the prosecution as Ex. PW11/A and Ex. PW5/A respectively. Both these documents show that calls have been exchanged between these two mobile numbers on 31.8.2010 from 10.47 am onwards. First call was made by accused Kapil to 'P' at 10.47 am and the call lasted for 34 seconds. Then 'P' called him at 11.17 am and they talked for just one second. Immediately accused Kapil called her back and they talked for 22 seconds. The accused then called her again at 11.28 am and 11.31 am and calls lasted for 75 seconds and 51 seconds respectively. The prosecutrix has maintained an eerie silence about these calls dated 31.8.2010. These calls demonstrate that the accused did not meet her in the market, all of a sudden. These indicate that the meeting was pre planned and both were in touch with each other before the meeting. Moreover, when as per the testimony of the prosecutrix she was abducted by the accused at 11.20 am on that day, where was the occasion for the accused to call her at 11.28 am and 11.31 am.
29. It is also noticed from the deposition of the prosecutrix that the accused had broken her mobile phone and thrown away her sim card. This statement is falsified by the call detail records of her mobile phone 9911493685 Ex. PW11/A which show that she had received two text messages from two different phone SC No.15/13 Page 24 of 26 25 numbers at 12.14 pm and 1.52 pm respectively. This implies that no damage had been caused to her mobile phone till around 2 pm when she was allegedly released by the accused. Therefore, she could have easily dialled either telephone no. 100 or the number of her cousin Vandana or her brothers/father etc. apprising them about the rape incident but her choosing not to do so goes on to indicate that no incident of rape had ever taken place.
30. The testimony of the prosecutrix turns out to be most unconvincing and fraught with contradictions and embellishments. It does not inspire any confidence and is far from being creditworthy or reliable. Her testimony does not find any corroboration from that of her sister PW-14, who, infact has contradicted the prosecutrix on most vital points. More importantly, the delay in reporting the matter has not been properly explained. Varied versions have come on record as to when the prosecutrix apprised her sister PW-14 about the incident. The prosecutrix has given different versions about her physical condition after the incident. She has kept her father and brothers in dark about the incident which, I consider is total unnatural conduct. It would be against the well settled legal principles to rely upon the deposition of such a prosecutrix.
31. The evidence produced by the prosecution is extremely doubtful and untrustworthy. The witnesses have contradicted each other on material points and the case put forward seems to be highly improbable. The prosecution has failed to lead cogent, credible and unimpeachable evidence to establish the charges against the accused.
SC No.15/13 Page 25 of 26 2632. In view of the same, both the accused are liable to be acquitted and are hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 03.07.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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