Delhi District Court
Supreme Court In The Case Of Pratap Misra ... vs Mehkoolal Accused on 8 April, 2011
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 175/08
State
Vs.
1. Mehkoolal Accused
S/o Shri Richpal
R/o Village Nangla Samer
PSBichwa, Distt. Mainpuri
UP.
2. Ram Dulare Accused
S/o Shri Siddarth
R/o H. No. 1350
Gali no. 7, Ist Sangam Vihar
Delhi.
3. Ram Kumari PO
W/o Gulab
R/o Village Brijpur
PSBichawa, District - Mainpuri
UP.
FIR No. : 21/06
P.S. : Sangam Vihar
U/S :363/366/34 & 376 (G) IPC
FIR No. : 21/06 1
Date of Institution : 22102008
Date of Judgment : 08042011
J U D G M E N T
1. Both the accused have been charged with and have faced trial for having committed offence under section 363/366/34 IPC and u/s 376(G) IPC.
2. In brief the case of the prosecution is that on 050106 complainant Ashok Kumar, had lodged a missing report in the PS about his daughter Lalita having gone missing from home. DD no. 15B was recorded for the same. On 090106, the complainant went to the PS and informed that he had received a telephone call from PSBichwa, District - Mainpuri in respect of his daughter. Accordingly, one police constable went with the complainant to district - Mainpuri in search of the prosecutrix. On 100106, the prosecutrix was produced in the PS by the complainant and the FIR No. : 21/06 2 constable and her statement was recorded. She stated that on 050106, she was going towards her house from the rear galli from the side of pahari at around 7.00 pm, when two boys pressed her mouth and forcibly put her in a car and made her drink a bottle of juicelike substance forcibly. After sometime she fell asleep and woke up at night when she was in the car and the boys were taking her away; that when she shouted they threatened her and these boys reached their house in village Nangla Mewat, District - Mainpuri at around 6.00 am in the morning. There they locked her in a room and against her wishes they committed rape upon her. Thereafter two more boys came there and committed rape upon her one after another and the maternal aunt of those boys was also there. These persons used to commit wrong act i.e. physical relations FIR No. : 21/06 3 with her everyday and used to beat her if she raised any noise; that lady used to keep an eye on her during the day. One day that lady had gone out for some work, so she ran away from the house, however, two boys came to take her back and were taking her back forcibly when a Mullaji met them on the way and questioned, so she narrated the entire incident to that Mullaji, who then brought her to his house and called his sister. That night the father of the prosecutrix came to the house of the Mullaji and brought her back.
3. FIR was registered on this statement of the prosecutrix U/s 328/363/376/34 IPC. The medical examination of the prosecutrix was got conducted at AIIMS and the medical exhibits were sealed and sent to FSL.
4. The prosecutrix gave a supplementary statement on FIR No. : 21/06 4 110106, in which she stated that one of those boys used to sell vegetables on rehri near the house of Pushpa in her neighbourhood. He had lured her away on 040106 and then took her to LBlock, Sangam Vihar and kept her at a house of Press Wala for two days. Thereafter, he took her to the house of his maternal aunt at Mainpuri, where both of those boys committed wrong act with her. That lady used to keep an eye on her during day time. One day when that lady had gone out for some work, she ran away from the house. Those two boys tried to take her back; she shouted and Mullaji saved her from the clutches of boys.
5. On 120106, prosecutrix identified the person who used to sell vegetables on rehri as accused Mehkoolal. He was apprehended by the public persons and was arrested in this case. On his disclosure and on the identification of the FIR No. : 21/06 5 prosecutrix, other accused Ram Dulare was arrested. The prosecutrix informed that she was kept in the house of Ram Dulare for two days and then Ram Dulare had taken her to his maternal aunt at Mainpuri. Both the accused persons were arrested; their medical was got done and their medical exhibits were seized and sealed. The clothes worn by the prosecutrix at the time of the incident were also seized. Statement of the prosecutrix was also got recorded on 170206 (after more than a month of her recovery). The third accused Ram Kumari, maternal aunt of accused Ram Dulare could not be traced and was declared PO. The date of birth of the prosecutrix as per school record was 010292. The provisions of section 376(2) (G) IPC were included in the FIR. The provisions of section 328 IPC were dropped. After completion of investigation challan was prepared and FIR No. : 21/06 6 filed in the court.
6. In view of the allegations against the accused persons in the charge sheet, charge under section 363/366/34 IPC and u/s 376 (G) IPC was framed against them, to which they pleaded not guilty and claimed trial.
7. In support of its case prosecution has examined 10 witnesses.
8. PW1 is WASI Nirmala, who had recorded the statement of the prosecutrix in the PS, when produced by her father and constable Ishwar after being brought to the PS from Mainpuri. She has proved the statement of the prosecutrix as Ex.PW1/A and her endorsement on the same as Ex.PW1/B. She has also proved the medical exhibits of the prosecutrix as Ex.PW1/C.
9. PW2 is the prosecutrix herself who has deposed on the FIR No. : 21/06 7 lines of the prosecution case. Her statement would be discussed at length at the appropriate stage.
10. PW3 is Ved Prakash, the neighbour of the prosecutrix who had allegedly gone with the father of the prosecutrix and the police party to the village Rangla Bhagat, District - Mainpuri, from where the prosecutrix was recovered. However, the witness turned totally hostile and stated that he did not know anything about this case.
11. PW4 is Mohd. Israr, the Mullaji who had saved the prosecutrix from the boys on 090106 and had take her to his house. He testified that on 090106 in the evening time he saw two small boys taking a girl forcibly; he scolded them and then he took that girl to his house and informed the parents of the girl on telephone. In the night of 9/100106 the father of the girl along with police official came from PS FIR No. : 21/06 8 Sangam Vihar to his house and he handed over Lalita (prosecutrix) to them.
12. PW5 is constable Ishwar Singh, in whose presence whom both the accused persons were arrested vide memo Ex.PW2/B and Ex.PW2/C respectively. Clothes of the prosecutrix were also seized by the IO in his presence.
13. PW6 is HC Jawahar Lal, who was duty officer on 100106 and had recorded the FIR on the basis of rukka. He has proved the FIR as Ex.PW6/A.
14. PW7 is Ms. Vrinda Kumar, the Ld. MM who had recorded the statement of the prosecutrix u/s 164 Cr.PC and had proved the same as Ex.PW7/A duly signed by the prosecutrix on Ex.PW2/A at point A.
15. PW8 is Dr. Arvind Kumar, who had medically examined both the accused persons vide MLC Ex.PW8/A FIR No. : 21/06 9 and Ex.PW8/B respectively.
16. PW9 is Shri Ram Dayal Meena, Principal, MCD School, who had brought the school record. According to the said record the date of birth of the prosecutrix was 010292. He proved the certificate issued by him in this respect as Ex.PW9/A.
17. PW10 is SI Ram Sahay, the IO of the case. He has deposed on the lines of the prosecution case.
18. In their respective examination u/s 313 Cr.PC all the incriminating evidence was put to the accused persons which they denied and stated that they were innocent and had been falsely implicated in this case.
19. In his defence accused Ram Dulare produced one Chhotey Lal as DW1 who was his neighbour. He had testified that he knew accused Ram Dulare since 1995 and FIR No. : 21/06 10 he was honest and innocent person. Prosecutrix was also residing in the neighbourhood. The father of the prosecutrix used to beat the children under the influence of liquor. He further testified that accused Ram Dulare used to stay at home and used to do press work and he was falsely implicated in this case after being lifted by the police. He had seen prosecutrix roaming around with different boys after being beaten by her father.
20. Similarly, DW2 is Shri Chanderpal, who also used to come to accused Ram Dulare for getting his clothes ironed since the past 1012 years. He testified that he (Ram Dulare) was very nice person who had never misbehaved with any woman. He further testified that he knew the prosecutrix as she was living with her father in a rented accommodation; that her father used to beat the prosecutrix FIR No. : 21/06 11 as also his wife under the influence of liquor and prosecutrix used to roam around with other boys.
21. I have heard the Ld. Addl. PP for the State as well as counsel for the accused persons and have also gone through the record carefully.
22. Certain facts which have emerged from the investigation and evidence are :
1) The father lodged the missing report of his daughter on 050106, that his daughter was missing from his house since 6.00 pm last evening.
2) Thereafter in the PS - constable Ishwar and the father of the prosecutrix produced the prosecutrix in the PS on 100106 before the WASI Nirmala, who made inquiries from the prosecutrix and recorded her statement Ex.PW1/A.
3) FIR is registered on the statement of the FIR No. : 21/06 12 prosecutrix on 100106 who stated that she was taken to Mainpuri by two boys forcibly and then raped there continuously and then by other persons.
4) On 120106 accused Mehkoolal is caught hold off by the public persons near Aggarwal Sweets in Delhi and is then arrested by the police.
5) On his disclosure accused Ram Dulare was arrested from his house on the same day on 120106.
6) Supplementary statement of the prosecutrix was recorded on 110106 by the IO, wherein she gives a different version of how and by whom she was taken away.
7) Statement of the prosecutrix was recorded u/s 164 Cr.PC after more than a month on 170206.
23. The star witness in this case is the prosecutrix who has been examined as PW2. She had testified that on 040106 FIR No. : 21/06 13 at around 7.00 pm she was coming back home from Pahari wali galli, when two boys pressed her mouth with their hand and put her in a car and took her to a room near Kalkaji Mandir. They kept her there for two days forcibly. On third day both the accused persons present in the court took her to village at UP in a room. She testified that both the accused persons present in the court kidnapped her. She further testified that both the accused persons and two more persons belonging to UP had come to that room and had continuously raped her and all four of them i.e. two accused persons present in the court and two more persons of UP had committed rape on her for 4/5 days. That a woman was living in that room. One day she asked her to prepare food for her and she escaped from that room when that woman was away. Two boys were sent by the accused FIR No. : 21/06 14 persons to bring her back. She further testified that one Mullaji saw her being taken away forcibly by those boys. He made inquires and she told the truth to Mullaji, who then took her to his house. She gave her phone number and address to Mullaji. Then her father came to the village with police. Police recorded her statement Ex.PW1/A. She was taken to hospital and her medical examination was conducted. The doctor had seized her suit (salwar and kameej). Her statement Ex.PW2/A was also recorded before the Ld. MM.
24. The sealed parcels sealed with the seal of FSL bearing parcel no. 2 was opened in the court and it was found containing one black colour salwar and beige colour kameej. The witness identified the suit as Ex.P1 and salwar as Ex.P2. She further testified that the accused persons also FIR No. : 21/06 15 used to beat her.
25. On the other hand, it is noted that the facts are stated differently in the FIR i.e. the FIR was registered on the statement of the prosecutrix when she was brought back by her father from Mainpuri and produced before the IO at PS Sangam Vihar. At that time she stated that on 050106, she was coming back from the side of Pahari at around 7.00 pm toward her house when two boys pressed her mouth and forcibly put her in a car and made her drink some juice like substance from the bottle, after which she went to sleep. That through out the night she was in the car which was being taken away by those boys; when she raised noise they threatened her into silence and by 6.00 am in the morning they reached the house in the village of those boys at Rangla Bhagat, PSBichwa, Distt.Mainpuri, UP and there she was FIR No. : 21/06 16 kept locked in a room and raped against her wishes one after the other. Then two more boys also came and they also raped her one by one. Those boys used to commit wrong act with her everyday and had physical relations with her and they used to beat her if she raised noise. That there was a woman in that house who used to keep a watch on her; one day that woman had gone out for some work and she ran away from the said place.
26. This statement was given by the prosecutrix on 100106. Thereafter on 110106, she gave a supplementary statement where she changed her stand as to how she was kidnapped and kept by the accused persons. In that statement she states that there was a person who was selling vegetables on rehri, outside the house of one Pushpa, who was their neighbour. That on 040106 when FIR No. : 21/06 17 she had gone to buy clothes and when she reached near H. No. KII/227 Sangam Vihar, one person who used to sell vegetable outside the said house at rehri had induced her and took her to Baandh and from there he took her to L1st Block, Sangam Vihar and kept her in a house of Press wala and after two days, he left her at the house of his maternal aunt at Mainpuri. Both these boys committed wrong act with her and two other boys also committed wrong act with her.
27. One may pause with the story of the prosecutrix at this stage. It is thus noted that the prosecutrix has given a different version as to how she was kidnapped and taken away by the two boys. She had (1) not named anyone in her initial statement (on which FIR was registered) on 100106. In her statement she does not give any description of those FIR No. : 21/06 18 boys who had taken her away forcibly in the car. She does not identify those boys at all. (2) Then she is stating that she was taken away in the car straight to Mainpuri (driving through out the night). Then she gives a supplementary statement on 110106 in which she changes her stand and implicates two persons of her neighbourhood i.e. one selling vegetables on rehri and other doing the press work over there and alleging that one of them i.e. vegetable seller induced her and took her to the house of the other press wala and then press wala and the vegetable seller had raped her one after the other. This statement of the prosecutrix is a total improvement from her earlier version given by her in the FIR. If these were the persons who had kidnapped her and abducted her forcibly and then raped her one after the another, I see no reason why she did not FIR No. : 21/06 19 disclose their names or identity to the IO immediately when she was recovered from Mainpuri by her father and produced before the police. The statement that she made at that time immediately after her recovery, to the police would be considered to be correct statement as having been made immediately after her recovery. In that statement on which FIR was registered, she had not identified those two boys who had taken her away in a car or had kept her at Mainpuri or had raped her.
28. These two boys i.e. the accused persons were living in the neighbourhood and were known to her and had she been kidnapped and raped by them against her wishes, she would have definitely named them in that FIR. The very genesis of the case thus becomes doubtful. Her statement is thus to be read with the utmost caution specially in view of the fact FIR No. : 21/06 20 that immediately thereafter i.e. on 110106 she takes a total somersault and identifying by name and discription of the accused who had induced her and the other accused in whose house in Sangam Vihar itself, she had been kept by them and raped by them, both of who were known to her.
29. In the FIR she has stated that when she was going home at around 7.00 pm, two boys pressed her mouth and forcibly put her in a car and made her drink juice like substance and when she woke up she found that she was being taken away in that car by those boys. When she shouted they threatened her and they reached village Nangla Mewat, District - Mainpuri by 6.00 am i.e. she has stated in the FIR that she was whisked away by these two boys in the car and the car was driven from the spot of abduction to Mainpuri by those two boys. Whereas, in the FIR No. : 21/06 21 supplementary of the prosecutrix recorded on 110106 she has stated that she has stated that she was kept for two days in the neighbourhood by those two boys (only one of whom had induced her) and that she was raped. These two statements are in sharp contrast to each other and cannot coexist. If she had really gone through the trauma of being kidnapped against her wishes and forcibly confined and being raped, it is not possible that she could have forgotten the facts and mad such two different contradictory statements about how she was taken away and where and how she was kept for the first two days after abduction.
30. There is no explanation given by the IO as to why he decided to get her statement recorded u/s 164 Cr.PC before the Ld. MM after more than a month of her recovery.
31. The statement of the prosecutrix in the court thus does FIR No. : 21/06 22 not inspire confidence as it is different from what she stated in the statement on which FIR was recorded. It is to be seen that these persons who have been arrested have been identified or named by the prosecutrix only in her supplementary statement recorded on 110106 and immediately thereafter on the next day these accused persons were arrested from the neighbourhood. Thus, I do not feel it safe to rely only on the statement of the prosecutrix to hold accused persons guilty.
32. It is further noted that the prosecutrix has not been recovered from Mainpuri from the house where she was allegedly kept by the accused persons or where she was raped by them and other persons. She has been allegedly recovered by her father from the house of Mulla ji and then produced before the IO at PSSangam Vihar. No evidence FIR No. : 21/06 23 had been collected by the IO to identify the spot or the house where the prosecutrix was kept confined and raped by the accused persons. IO has not bothered to go to the said place at Mainpuri where she was kept confined or to make any investigation or to record the statement of the witnesses at that spot. The only evidence produced is of PW4 Mohd. Israr, Mullaji who had stated that on 090106 in the evening time he saw two small boys taking a girl forcibly; he scolded them and then he took that girl to his house and informed the parents of the girl on telephone. In the night time the father of the girl along with police official came from PSSangam Vihar to his house and he handed over Lalita (prosecutrix) to them.
33. Statement of this witness does not inspire confidence either. The prosecutrix had stated in her statement that it FIR No. : 21/06 24 took an overnight journey in a car to reach said Mainpuri in UP i.e. she was kidnapped by these accused persons at around 7.00 pm and then on the next morning at around 6.00 am they had reached Mainpuri. But this witness Mullaji states that he informed the parents of the prosecutrix in the evening on 090106 about their girl being in his house and her father came to his house with the police in the night of 9/100106 itself and took her back.
34. As per the statement of the prosecutrix she was produced before WASI Nirmala, PSSangam Vihar in the morning on 100106. How was it then possible that the father of the prosecutrix was informed in the evening of 090106 about the whereabouts of the prosecutrix; he went to the PS; took the help of the local police and then went to District - Mainpuri at the house of Mullaji that night itself FIR No. : 21/06 25 and returned that night itself with his daughter and produced her in the PSSangam Vihar, covering the distance in less than half the time taken by prosecutrix to reach there by car (as alleged by her in FIR).
35. That aside, it is also seen that the other witness who had allegedly gone with the father of the prosecutrix i.e. PW3 Ved Prakash, had turned totally hostile and had stated that though he knew Lalita (prosecutrix) was missing, he had not gone with them in the night to district Mainpuri to recover Lalita (prosecutrix) from the house of Mullaji. He categorically denied the statement alleged to have been made by him before the police.
36. The police official stated to have gone with the the father of the prosecutrix is constable Ishwar Singh, who has been examined as PW5. Even this witness has not stated FIR No. : 21/06 26 anything to this effect i.e. though he talks about the arrest of the accused but he does not say that he had gone with the father of the prosecutrix to Mainpuri and had brought back the prosecutrix from the house of Mullaji. Only WASI Nirmala before whom the prosecutrix was produced by her father has testified that on 100106, constable Ishwar Singh and the father of the prosecutrix had brought the prosecutirx from Mainpuri and they had produced the prosecutrix before her but that is only a hearsay evidence in her mouth. Not only this even the father of the prosecutrix i.e. Ashok Kumar has not been examined in this case. Thus we do not have any witness at all to say that the prosecutrix was recovered from Mainpuri and brought to Delhi and produced before the IO WASI Nirmala in the PSSangam Vihar on 100106.
FIR No. : 21/06 27
37. The medical examination of the prosecutrix in this case was done on 100106 i.e. immediately after her alleged recovery. It is seen that during the examination by the doctor at AIIMS i.e. Ex.PW10/E she had given the history of having been kidnapped by strangers after consuming some drink on 050106. She does not say about having been kept by two unknown persons for two days at Sangam Vihar and then being taken to Mainpuri to the said doctor. It thus appears on the face of it that this naming and identification of both accused was an after thought by the prosecutrix when she decided to give the supplementary statement on 110106 and implicate both the accused persons.
38. In the said medical examination i.e. Ex.PW10/E the doctor had noted that she had given the alleged history of being raped by four persons since 050106. However, it was FIR No. : 21/06 28 observed that there was no evidence of any injury or bruise. The hymen was ruptured with the vagina allowing two fingers. The doctor had herself noted that the prosecutrix had history of sexual contacts several times over the past two years. This only corroborates the statement of the defence witnesses as regarding nature, behaviour and conduct of the prosecutrix in the past.
39. My attention is drawn to the judgment of Hon'ble Supreme Court in the case of Pratap Misra and Ors. Vs State of Orissa, 1977 (3) SCC 41, wherein it was held that where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix version is credible, then no corroboration is necessary. But if the prosecutrix version is not credible then there would be need for corroboration. FIR No. : 21/06 29
40. In the present case even the MLC does not support the prosecutrix. She is stated to be of tender age of 13/14 years and alleges that she was kidnapped on 050106 and was raped by stranger (four boys) for five days. She still does not have any injury or bruise at any internal part or otherwise. The doctor notes that prosecutrix had history of several sexual contacts in the past two years. The case of the prosecution thus becomes harder and harder to believe.
41. In these circumstances as discussed above, I am of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt that it was infact these two accused persons who had kidnapped the prosecutrix on 040106 and raped her against her wishes for two days at the house of Press Wala at Sangam Vihar and then take her to Mainpuri, UP and raped her there. Thus, giving the FIR No. : 21/06 30 benefit of doubt to the accused persons, I acquit both accused persons of the charges levelled against them. Announced on 08th April, 2011.
(R. Kiran Nath) ASJ01/South New Delhi.
FIR No. : 21/06 31 State Vs Mehkoo Lal & Ors.
FIR no.21/06
PSSangam Vihar 08042011 Present: Ld. Addl. PP for the State.
Both accused present from JC along with counsel. Vide separate judgment of the date, the accused persons are acquitted of the charges levelled against them. In terms of section 437A Cr.PC accused persons are directed to furnish the bail bond in the sum of Rs.10,000/ each with one surety each in the like amount.
Bail bonds furnished by the accused persons and are accepted. File be consigned to record room.
(R. Kiran Nath) ASJ01/Saket Court 08042011 FIR No. : 21/06 32