Delhi District Court
State vs . 1. Preetam Yadav, on 22 May, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 09/13.
Unique Case ID No. 02405R0040182012.
State Vs. 1. Preetam Yadav,
S/o Sh. Vikram Singh Yadav,
R/o H. No.458, Near Village Chaupal,
Kapashera,
New Delhi.
2. Manoj Kumar Yadav @ Golu,
S/o Sh. Ramanand Yadav,
R/o H. No.727, Mandirwali Gali,
Village Kapashera,
New Delhi.
Date of Institution : 31.1.2012.
FIR No.192 dated 04.11.2011.
U/s. 342/323/376(G)/506 IPC.
P.S. Kapashera.
Date of reserving judgment/Order : 10.5.2013.
Date of pronouncement : 22.5.2013.
JUDGMENT
1. The above named two accused had been chargesheeted by the police for having committed the offences punishable u/s.376(2)(g)/323/342/506/201 IPC.
2. It is the case of the prosecution that the prosecutrix namely 'A' (real name withheld in order to protect her identity) had gone to the shop of accused Preetam Yadav and got her SC No.9/13. Page 1 of 27 mobile phone recharged. She enquired from the accused if he was aware about any room available for rent. The accused told her that he resides in village Kapashera and would get her a room on rent. He gave his mobile phone no.9716488303 to the prosecutrix. Thereafter they had been talking to each other and the accused had taken her to show her some rooms which were available for rent. On 03.11.2011 prosecutrix received a telephonic call from accused Preetam Yadav at 7 p.m. saying that he would show her a flat. The accused came to the residence of the prosecutrix in his white colour Maruti 800 car bearing registration no.DL 9CE 9415 and made the prosecutrix sit in the car. He took the car upto a Dhaba near Kapashera Chowk on Bijwasan Road and got some food packed from the Dhaba. Thereafter he took the prosecutrix to a flat on the first floor near Blue Dart Company and closed the door. Thereafter the accused started teasing the prosecutrix, who resisted his acts. Accused Preetam slapped her and threatened her that she would be killed in case she would not remain quiet. Thereafter he raped her. Then the accused Preetam Yadav took her near Fun & Food Village in his car where accused Manoj was waiting in his Hyundai Verna car of white colour and having registration no.--------2112 on its rear number plate. The prosecutrix had seen and met accused Manoj at the shop of accused Preetam. Accused Preetam asked the prosecutrix to sit quietly in the car of accused Manoj. As she had become terrorised, she obeyed accused Preetam. Thereafter accused Preetam took the car upto a secluded place where he got down from the car and accused Manoj raped the prosecutrix inside the car. Thereafter both the accused brought the prosecutrix to Mahipalpur in the car of Manoj and dropped her there. They SC No.9/13. Page 2 of 27 threatened her that they would kill her if she disclosed the incident to anybody.
3. It is further the case of the prosecutrix that she had herself reached the police station on 04.11.2011 where her statement was recorded by SI Kamal Singh. On the basis of her statement, FIR was got registered. Prosecutrix was got medically examined in Safdarjung Hospital vide MLC No.32186/11. The clothes which she was wearing were seized by the doctor. Thereafter the further investigation of the case was entrusted to SI Saroj Bala. She got the spot of incident i.e. Flat No.1, First Floor, Chaitnya Apartment, near Blue Dart Company, inspected by Crime Team South West District. The crime spot was also photographed. The IO prepared the rough site plan of the spot and seized the bedsheet lying on the double bed in the flat at the instance of the prosecutrix. Thereafter the prosecutrix also identified another spot where she had been raped by accused Manoj. The IO prepared rough site plan of that spot also. Both the accused came to be arrested. They are stated to have made disclosure statement admitting their involvement in the incident. Potency tests of both the accused were got conducted. The prosecutrix was produced before the concerned Ld. Magistrate who recorded her statement u/s.164 Cr.PC wherein she reaffirmed her statement given to the police. Both the Maruti 800 car of accused Preetam and Hyundai Verna car of accused Manoj were seized by the IO. All the exhibits including Hyundai Verna car were sent to FSL for forensic examination. The IO also obtained the call details record of the mobile phone nos.8285210313 and 919716488303.
SC No.9/13. Page 3 of 274. After completion of the investigation, Charge Sheet was laid before the concerned Magistrate, who thereafter committed the case to the court of Sessions.
5. Upon committal of the case to the court of Sessions, both the accused were charged with having committed the offences u/s.342/34 IPC, u/s.376(2)(g) IPC, u/s.323/34 IPC, u/s. 506/34 IPC and u/s.201/34 IPC. The accused pleaded not guilty to the aforesaid charges and accordingly prosecution was called upon to lead evidence. The prosecution has examined 24 witnesses to bring home the guilt of the accused. Ld. APP also tendered in evidence the FSL reports dated 19.12.2011 and 12.4.2012 which are collectively Ex.PY. The accused were examined u/s.313 Cr.PC on 23.3.2013 wherein they denied all the incriminating facts and circumstances of the case put to them and claimed false implication. Accused Manoj further stated that on the date when the incident is alleged to have happened i.e. 03.11.2011, he was alongwith his wife, daughter, Bhabhi, niece and nephew and he neither met accused Preetam nor the prosecutrix Aarti on that day. According to him, they had left their house in his Hyundai Verna car, watched a movie 'Ravan' at Big Cinema, Ansal Plaza, Palam Vihar, Gurgaon. Thereafter they had dinner at M/s. Om Sweets, Sector-23, Gurgaon, at about 9.15 p.m. They reached home at about 10.15 p.m. on that day.
6. Accused Manoj has also produced three witnesses in his defence. DW1 is the employee of M/s. Om Sweets, Sector-23, Gurgaon. DW2 is the Cashier at the said restaurant and DW3 is his Bhabhi Smt. Suman.
SC No.9/13. Page 4 of 277. I have heard Ld. APP for State, Sh. V.K. Sharma, Advocate for accused Preetam, Sh. Vikas Padora, Advocate for accused Manoj and have perused the entire oral as well as documentary evidence on record.
8. Ld. APP submitted that even though there are minor discrepancies in the testimony of the prosecutrix yet she has broadly supported the case of the prosecution and there is nothing on record to disbelieve her testimony. According to her, both the accused are liable to be convicted of having committed the offences for which they have been charged.
9. Ld. Defence Counsels submitted that there are material contradictions between the testimony of the prosecutrix and her earlier statement given to the police and she has deposed quite contrary to the case of the prosecution in her cross examination. It is submitted that the story put forward by the prosecution is absolutely false and untrustworthy for the reason that when the prosecutrix was allegedly dropped near her home by the two accused, she makes call to the PCR firs at 10.44 p.m. saying that a quarrel has taken place. In this call, she does not mention that she has been raped. Thereafter she called to somebody at mobile no.9811151433 at 10.53 p.m. to whom she talks for about one minute and thereafter makes another call at telephone no.100 at 10.55 p.m. saying that she has been raped by the two persons. It is submitted that as per the case of the prosecution, the accused has dropped prosecutrix near her home at about 9.30 p.m. and there is no explanation from the side of the SC No.9/13. Page 5 of 27 prosecutrix why she did not make call at PCR till 10.44 p.m and why she made the first call to PCR about a quarrel and not about rape. It is also submitted that the call made by the prosecutrix at mobile no.9811151433 in between the two calls to telephone no. 100 show that she has been dancing to the tunes of somebody else, who was interested in getting the two accused falsely implicated in this case. Ld. Counsel further argued that the medical evidence on record do not support the allegation that the prosecutrix had been raped by the two persons. It is submitted that the MLC of the prosecutrix Ex.PW2/A shows that no injury was found on her private part or any other body part and as per FSL report no semen stains were found on the bed-sheet on which accused Preetam is alleged to have raped the prosecutrix twice, on the leather seat cover of the car of the accused Manoj in which he has raped the prosecutrix and underwear as well as Bra of the prosecutrix, which she was wearing at the time of the incident and the underwear of the accused.
10. On behalf of the accused Manoj, it was also argued that the prosecutrix has herself admitted during cross examination that she has implicated him on the asking of police officials and she had not seen him any time before. It is submitted that even otherwise, the testimony of DWs demonstrates that he was alongwith his family members throughout the evening of 03.11.2011 and had no occasion to meet either the prosecutrix or accused Preetam.
11. In the cases involving offence of rape, the testimony of the prosecutrix is the most crucial and relevant piece of evidence.
SC No.9/13. Page 6 of 27The statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration and the court may convict the accused on her sole testimony. However, as held by the Supreme Court in Udai Vs. State of Karnatka AIR 2003 SC 1639, even in case of rape, onus is always on the prosecution to prove affirmatively, all the ingredients of the offence, which seek to establish and such onus never shifts. It is not the duty of the defence to explain as to how and why the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take the support from the weakness of case of the defence. However, the great the 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 an 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. In the instant case, following witnesses have been examined by the prosecution :
(1) PW1 is the Prosecutrix Ms. 'A', whose evidence would be discussed in detail herein-below :
(2) PW2 is Const. Parveen, who was photographer in the Crime Team and took photographs of the first floor of accused Preetam in Chaitnaya Apartment where accused Preetam is alleged to have raped the SC No.9/13. Page 7 of 27 prosecutrix.
(3) PW3 is Const. Virender, who delivered sealed pullindas in FSL, Rohini, on 21.12.2011. (4) PW4 is Const. Ajay Kumar, the Supervisor of M/s.
Chaitnaya Apartment. He confirms that accused Preetam had visited his flat in Chaitnaya Apartment on the date of incident i.e. 03.11.2011, but he does not say whether the accused was accompanied by the prosecutrix. He also brought alongwith him Hard Disk containing the footage of CCTV Camera installed at the main gate of the apartment which is Ex.P7.
(5) PW5 is Dr. Savita Verma, who had conducted medical examination of the prosecutrix and found that her hymen was torn but no semen was seen inside the vagina. She also found pubic hairs, labia majora and labia minora of the prosecutrix normal.
(6) PW6 is Vikram Singh Yadav, the registered owner of Maruti 800 car bearing registration no.DL-9CE-9415. He is the father of accused Preetam and had got the aforesaid car released in his favour on superdari. (7) PW7 is Smt. Anshu Yadav, the wife of accused Manoj and registered owner of Hyundai Verna car bearing registration no.HR-29U-2112. According to her, she alongwith her husband i.e. accused Manoj, her sister- in-law (Jethani) and her children had left the house in the said car on 03.11.2011 at 6.30 p.m. and returned home at about 10 p.m. after watching movie 'Ravan' at Big Cinema Hall, Ansal Plaza, Palam Vihar, Gurgaon and having dinner at M/s. Om Sweets, Sector-23, SC No.9/13. Page 8 of 27 Gurgaon.
(8) PW8 is ASI Khazan Singh, the Incharge Mobile Crime Team, who had visited the flat no.F-1, Chaitnaya Apartment, Ist Floor, and had inspected as well as photographed the same.
(9) PW9 is the Nodal Officer of M/s. Vodafone Mobile Services Limited and proved the call details record of mobile phone no.9711478988.
(10)PW10 is the Nodal Officer of M/s. Aircel Ltd. and proved the call details record of mobile phone nos. 9716488303 and 8285210313.
(11)PW11 is Lady Const. Mamta, who had taken the prosecutrix to Safdarjung Hospital for medical examination.
(12)PW12 is Sh. Tarun Chandiok, Ld. Magistrate, who had recorded the statement u/s.164 Cr.PC of the prosecutrix.
(13)PW13 is HC Aamir Khan, who had recorded DD No. 57A. On 03.11.2011 at 10.46 p.m. regarding quarrel at Gali No.9, Mahipalpur, Big Apple.
(14)PW14 is HC Devi Ram, who had recorded the DD No. 5A at 12.44 a.m. in the night intervening between 03.11.2011 and 04.11.2011 regarding the rape of caller by the two boys near Big Apple Reliance Shop, Gali No.9, Mahipalpur.
(15)PW15 is Const. Ganga Ram, who had taken the
seized Hyundai Verna car bearing registration
no.HR-29U-2112 to FSL Rohini for forensic
examination.
SC No.9/13. Page 9 of 27
(16)PW16 is SI Nirmala, who alongwith HC Sanjiv and Const. Josh had taken the two accused to Safdarjung Hospital for medical examination.
(17)PW17 is SI Rajbir Singh from P.S. Vasant Kunj, who had met the prosecutrix first of all after receipt of DD No.57A and the prosecutrix had told her that Preetam Yadav had committed rape upon her.
(18)PW18 is HC Naresh Kumar, who alongwith SI Kamal had reached Gali No.9, Mahipalpur, to attend the PCR call but did not find the caller there. Thereafter they went to the spot of incident i.e. Chaitnaya Apartment, where the prosecutrix showed them the flat, in which she had been raped. Statement of the prosecutrix was also recorded in his presence in the police station. (19)PW19 is Const. Josh Kumar, who was associated in the investigation of this case alongwith SI Saroj Bala and HC Sanjiv. Both the accused were arrested from their residences in his presence.
(20)PW20 is Dr. Mukul Kumar Mangla, who had conducted medical examination of the two accused. (21)PW21 is HC Sanjiv Kumar, who was associated in the investigation of this case alongwith SI Saroj Bala and Const. Josh on 04.11.2011. Both the accused were arrested in his presence and both the vehicles were also seized in his presence.
(22)PW22 is SI Kamal Singh, to whom DD No.5A was entrusted for action.
(23)PW23 is Dr. Chetan Kumar, who had come to depose in place of Dr. Atul Gupta, who had conducted potency SC No.9/13. Page 10 of 27 test of the two accused.
(24)PW24 is WSI Saroj Bala, who was the Investigating Officer of this case.
13. The prosecutrix appearing as PW1 has deposed that she knew accused Preetam Yadav before the date of incident dated 03.11.2011 as she used to go to his shop for getting her mobile phone recharged. At that time, she was residing at Flat No.L-31, Gali No.9, Near Big Apple, Mahipalpur Extension, New Delhi, and accused was running a mobile phone shop at Kapashera. Around five months before the aforesaid date, she had asked accused Preetam to arrange a room on rent for her. Preetam had shown her one or two rooms but they were not to the her liking. They used to contact each other on telephone. On 03.11.2011 she received a call from accused Preetam telling her that he would be coming to pick her up and would show her 2/3 rooms. Thereafter accused Preetam came to Bagga Link Showroom in his Maruti 800 car of white colour having number.......94..... She boarded the car of the accused. On the way, accused got some meal packed from a shop near Kapashera Chowk and then took her to a flat at first floor in Chaitnaya Apartment. Before reaching there, accused had shown her a room, which was well furnished. They had meals and thereafter accused removed his shirt saying that he wanted to take rest and then touched her neck. Accused told her that he likes her. She objected the acts of the accused Preetam. As she was standing, the accused pulled her shirt from behind, due to which her shirt got torn from behind. Then accused Preetam slapped her and pushed her on to the bed. He kissed her, removed her clothes and SC No.9/13. Page 11 of 27 after taking out condom from beneath the mattress, committed rape upon her twice. Then she alongwith accused went near Fun & Food Village, Kapashera, where another accused Manoj was present in his Verna car. She was forcibly shifted into the Verna car and accused Manoj took the car to some isolated place like jungle, where accused Preetam got down from the car while threatening her and asking her to do same act with Manoj which she had done with him. Both the accused threatened her that they would kill her if she would not obey their directions. Then accused Manoj committed rape upon her. Thereafter accused took her to Mahipalpur in the said Verna car and dropped her near Big Apple. Then she made a call at telephone no.100 but the call could not be connected. Thereafter she again made a call by placing '0' before No.100 and this time call went through. After 10 - 15 minutes police came and she narrated the whole incident to police officials. She was taken to police station where her statement Ex.PW1/A was recorded. From the police station, she was taken to hospital where her medical examination was conducted. Initially, police officials from P.S. Vasant Kunj had come but since the matter was coming under the jurisdiction of P.S. Kapashera, so finally police officials from P.S. Kapashera reached there. She shown the place of occurrence to police. The doctor had seized her wearing clothes. She also deposed that she was taken to the spot by the police officials where a photographer took the photographs and the IO seized the bedsheet vide seizure memo Ex.PW1/B. Police tried to trace the condom but the same could not be found as the accused has flushed the same in the toilet. She further stated that at about 8 a.m. on the next morning, accused Preetam was apprehended from his house and at about 9 a.m. accused Manoj SC No.9/13. Page 12 of 27 was apprehended from his house. Both were brought to the police station and were arrested in her presence vide memos Ex.PW1/C and Ex.PW1/D. The cars of both the accused were also seized by the police in her presence. On the same day, she was brought to the court by the police officials where her statement was recorded by the Ld. Magistrate, which she proved as Ex.PW1/G. She identified her jeans, pant, shirt, inner, underwear and brazerie, which she was wearing at the time she was ravished by the accused and which were seized by the police official. She also identified the bedsheet which was seized by the police official from the flat of accused Preetam.
14. In the cross examination, she deposed that she landed in Delhi for the first time in March, 2010 when she was 19 years old and was prearing for 12th class examination in UP Bagpat. She passed her 12th standard examination in the year 2011 from UP and then got her first job in Delhi at airport as a receptionist in GMR Company. Thereafter she joined another company in Mahipalpur as receptionist and then she worked as a Customer Service Associate in M/s. Devyani Group. Her mother used to visit her at Delhi. Her father visited her only once when she was ill. She disclosed her mobile no.8285210313. She further deposed that she had conveyed to her parents about the incident of rape after two or three days. Her mother and her brother had come after getting the information. However, her father did not come even after becoming aware about the incident. She got acquainted with accused Preetam Yadav after about one and a half years of her stay in Mahipalpur. She had visited his shop 10 - 12 times. She admitted that she had gone to the shop of accused Preetam Yadav SC No.9/13. Page 13 of 27 alongwith a girl namely Naina, who was of her age. However, she had not talked to Naina regarding the incident of rape. She further deposed that she had given first call to PCR from her mobile phone after being dropped near Big Apple on 03.11.2011 around 10.46 p.m. and police reached there and met her. She could not say whether another call was made by her to PCR from her mobile phone at 12.44 a.m. Initially, the officials of P.S. Vasant Kunj had come and she was taken to P.S. Vasant Kunj where her statement was recorded. Thereafter officials of P.S. Kapashera reached ther around 12 midnight and she was handed over to them. Her statement was again recorded in P.S. Kapashera. She admitted that she did not make any call to her parents and did not send them any message either from police station or from the hospital about the incident of rape.
15. She also deposed that between 10.46 p.m. to 12.44 a.m. She made a telephonic call to a friend namely Shri Sandeep, who resides near Meerut. At first, she stated that she does not know any person by the name Ashwini but immediately added that when she made a call on the mobile phone of Sandeep, it was switched off and therefore she made a call at Ashwini's mobile phone number which she knew as Sandeep had made call to her from Ashwini's mobile number. She knew the fact that the mobile number on which she made a call belongs to Ashwini, friend of Sandeep, but was not knowing that he was a resident of village Kapashera. She also added that she had talked to Sandeep on that mobile number and not to Ashwini.
16. In further cross examination, she admitted that she SC No.9/13. Page 14 of 27 had been friendly with accused Preetam since she had met him and also had gone alongwith him to watch movie. She admitted that she had celebrated her birthday in the year 2011 with accused Preetam in the same flat at Chaitnaya Apartment. She also admitted that she had visited the said flat at Chaitnaya Apartment 3 - 4 times before 03.11.2011 and accused Preetam had financially helped her on few occasions when she was in the need of money. She further admitted that she had physical relations with accused Preetam prior o 03.11.2011 also. She also admitted that she had made a telephonic call at No.100 telling them a fight has taken place between her and accused Preetam. She further deposed that on that day i.e. 03.11.2011 she had left her place at about 7 p.m. and remained with accused Preetam Yadav at Chaitnaya Apartment till 9 p.m. or 9.30 p.m. She had told the accused that she was getting late and on that account, she became annoyed with the accused, as a result of which she had made a call of 'Jhagara' (fight) to PCR.
17. In further cross examination, she deposed that she never happened to know Manoj named by her in this case. According to her, she had seen accused Manoj for the first time in the police station and came to know about his name from the police officials. She further deposed that accused Manoj Yadav was shown to her in the police station and the police officials told her that this Manoj used to remain with Preetam. She did not know from where and when accused Manoj was apprehended and brought to the police station. She admitted that she has involved accused Manoj in this case on the asking of police officials. She admitted that she was carrying her mobile phone having no.
SC No.9/13. Page 15 of 278285210313 on the date of incident i.e. 03.11.2011. Now she admitted that she had talked to person namely Ashwini on his mobile no.9811151433 for about 139 seconds and she was outside in the car with accused Preetam at that time. She admitted that thereafter also she talked to Ashwini for about 42 seconds from her mobile phone. She added that she had not talked to Ashwini but to her friend Sandy. She admitted that she did not make any call to police till 10.43 p.m. She had gone to her house for wearing clothes prior to making calls to the police as it was getting cold. She denied the suggestion that she had changed her clothes. She admitted that she had given the statement u/s.164 Cr.PC after due deliberation with the IO and as per their version she was told to make such statement.
18. It would not require Solomon's wisdom or any kind of special judicial acumen to discern from the aforesaid testimony of the prosecutrix that she has levelled totally false allegation against the two accused and there is not an iota of truth in her testimony. The prosecutrix has herself admitted in her cross examination that she had developed friendship with accused Preetam Yadav, had visited his flat at Chaitnaya Apartment 3 or 4 times before 03.11.2011 and also had physical relations with him many a times before that date. It is therefore evident that the prosecutrix was a sex partner of accused Preetam and they had been regularly enjoying sex with each other in the flat of accused Preetam at Chaitnaya Apartment. I find no reason why accused Preetam would commit rape upon the prosecutrix on 03.11.2011 in the aforementioned flat, when the prosecutrix herself had been submitting her body to the accused. According to the prosecutrix, SC No.9/13. Page 16 of 27 she had received a call from accused Preetam on 03.11.2011 telling her that he would be coming to pick her up and would show her 2 or 3 rooms which are available for rent. Thereafter accused Preetam met her at Bagga Link Showroom. She boarded his car and on the way, accused got packed meals from a shop and near Kapashera Chowk. Thereafter accused took her to the aforesaid flat on the first floor in Chaitnaya Apartment where they had meals. She has also stated that before reaching the aforesaid flat, accused had shown her a room, which was available for rent. This sufficiently indicates that the meeting of the prosecutrix with the accused on 03.11.2011 was not merely for visiting the room to be taken on rent by her. Had this been the only purpose the prosecutrix would have left after having a look a the room. However, she remained with the accused thereafter also and voluntarily accompanied him to the aforesaid flat at Chaitnaya Apartment where she had earlier also engaged in sexual intercourse with him. The prosecutrix knew or atleast realised that she has to spend considerable time with the accused in the said flat at Chaitnaya Apartment and for this reason, she did not object when the accused got meals packed on the way and took her to the aforesaid flat. The prosecutrix has nowhere mentioned that on that day she did not intend to engage in sexual intercourse with the accused and that she had communicated her intention to the accused beforehand. The conduct of the prosecutrix after the incident also makes her story unreliable and untrustworthy. Even if it is to be assumed for the sake of argument that she was raped by accused Preetam then atleast she was not expected to accompany him in his car from the said flat at Chaitnaya Apartment to somewhere else. She should have parted ways with the accused at SC No.9/13. Page 17 of 27 that very juncture and either called police or some other person whom she trusted for help. To the contrary, she went alongwith accused Preetam Yadav in his car to Fun & Food Village, Kapashera where she alleges to have been raped by accused Manoj in his car, which allegation shall be dwelled upon in the later part of the judgment.
19. It is manifest beyond doubt from the conduct of the prosecutrix that she had voluntarily accompanied accused Preetam Yadav to his aforesaid flat at Chaitnaya Apartment. There is no allegation that accused Preetam had forced her to accompany him to the aforesaid flat or from there he forced her to accompany him to Fun & Food Village. The prosecutrix has deposed that accused Preetam, after having meals in the aforesaid flat at Chaitnaya Apartment, pulled her shirt from behind due to which the shirt got torn. She has not handed over the said torn shirt to the police officials. She has not produced the said torn shirt before this court as well which would imply that it is a totally bald allegation levelled by the prosecutrix only to provide some support to her otherwise false allegation of rape. It is further deposed by the prosecutrix that after her shirt had got torn, accused Preetam slapped her and pushed her on to the bed, whereafter he kissed her. As noted herein-above, they were not stranger to each other. They were friends and also sex partners. Therefore it is very difficult to believe that the accused would straightaway slap the prosecutrix and push her on to the bed. The accused was sitting in his flat with a girl, with whom he had committed sexual intercourse earlier also, so he would first cajole her into participating into the sexual encounter and would gently SC No.9/13. Page 18 of 27 try to touch and caress her body. There was no occasion for the accused Preetam to slap and push the prosecutrix on to the bed.
20. So far as the allegation that accused Manoj also raped the prosecutrix in his Hyundai Verna car in some jungle area near Fun & Food Village is concerned, it may be noted that she has herself admitted in her cross examination that she has involved accused Manoj in this case on the asking of police officials. She has deposed that she never knew accused Manoj as named by her in this case. She had seen accused Manoj for the first time in the police station when he was shown to her by the police officials telling that he used to remain with Preetam. In her statement to the police Ex.PW1/A on which FIR is founded in this case, she had specifically taken the name of Manoj stating that he had met her at the shop of accused Preetam many a times. In her aforesaid deposition before the court, she has deposed absolutely contrary to what she has stated to the police. It is therefore evident that in fact, prosecutrix is not the author of the FIR in this case and she has levelled false allegation against accused Preetam and accused Manoj at the behest of somebody else, who wanted to settled the score with these two accused.
21. Now as per the case of the prosecution, prosecutrix has made first call to PCR at 10.46 p.m. on 03.11.2011, which call was transferred to P.S. Vasant Kunj South and recorded as DD No. 57A. This call had been made by the prosecutrix from her mobile phone no.8285210313. This is the first call made by her to PCR after she was allegedly raped by the two accused. However, interestingly, she does not mention about rape in this call. She has SC No.9/13. Page 19 of 27 informed PCR that a quarrel has taken place at Gali No.9, Mahipalpur near Big Apple. This cannot be believed that a girl who has been raped by the two boys would make a call to the police saying that a quarrel has taken place. Pertinent to mention here that at the time of making this call, she was alone as the two accused had left after dropping her near Kapashera. There is no explanation from the prosecutrix as to why she made call of quarrel instead of call of rape. On the other hand, in her cross examination conducted on 07.11.2012, she deposed that on 03.11.2011 she had left her accommodation at 7 p.m. to meet accused Preetam Yadav and remained with him at his flat at Chaitnaya Apartment till 9 p.m. or 9.30 p.m. She further admitted that she objected to her long stay in the flat as she was getting late, on account of which she got annoyed with accused Preetam and made a call of 'Jhagara' (fight) to PCR. This deposition of prosecutrix clearly demonstrates that no incident of rape had taken place and only some dispute had arisen between her and accused Preetam. The prosecutrix then makes second call to PCR at 12.44 a.m. in the night, in which she discloses that she has been raped by the two boys and they are threatening to kill her. This call has also been made by the prosecutrix from her mobile phone no.8285210313 and has been recorded in P.S. Kapashera as DD no.5A dated 04.11.2011. She has not mentioned the names of the rapists in this call and there is nothing on record from her side to explain the delay of about two hours in making the second call to PCR, in which the allegation of rape is made. More important fact which is borne out from the call details record of the mobile phone of the prosecutrix Ex.PW10/D is that she has made calls to one mobile phone no.9811151433 four times between 9.30 p.m. SC No.9/13. Page 20 of 27 and 11 p.m. on 03.11.2011. She has made call to the aforesaid number at 9.31 p.m. and the call lasted for 139 seconds. The second call was made to her on this number at 9.41 p.m. which lasted for 42 seconds and the third call was made by her to the said number at 10.53 p.m. which lasted for 59 seconds.
22. The prosecutrix has not come out clearly as to whose mobile phone no. is 9811151433 and to whom was she talking on the same after being allegedly raped. Sometimes, she says that she talked to Sandeep, sometimes she says that she talked to Ashwini and sometimes she says that she talked to Sandy. According to her, they are her friends. What then intrigues this court is why she did not tell them that she has been raped. Moreover her making such calls to her friends goes against the theory of rape. A girl being subjected to rape would not be allowed by the assailant to make any call from her mobile phone during the time she is with her and even if she gets an opportunity to use her mobile phone, she would either call police or somebody else for her help and would not have a long chat with a friend without talking him about her plight. The conduct of the prosecutrix in making these three calls at mobile no.9811151433 demonstrates that she had not been sexually assaulted at all and she was discussing with somebody how to frame the two accused and what kind of statement to give to the police.
23. Now if the medical evidence is looked at, it also does not support the allegation of rape. According to the prosecution case, the prosecutrix has been raped by the two accused on 03.11.2011 between 8 p.m. to 10 p.m. She was taken to SC No.9/13. Page 21 of 27 Safdarjung Hospital for medical examination at 4.30 a.m. in the night intervening between 03.11.2011 and 04.11.2011. This implies that she was medically examined after about 6/7 hours after she had been raped. She was examined in the hospital by PW5, who has deposed that she found pubic hairs, labia majora and labia minora of the prosecutrix normal. Hymen was torn but no semen was seen. There was no bleeding through vagina. If the allegation of the prosecutrix that she was raped by the two persons, are to be believed, her public hairs could under no circumstances have been in normal position. There would have been definitely some laceration etc. on the labia majora and minora. She has further stated that accused Preetam had committed intercourse with her once while using condom and once without using condom and accused Manoj has committed intercourse with her without using any condom. Therefore semen should have been seen in her vagina during her medical examination, which is not the case here. It is not the contention of the prosecutrix that the two accused did not ejaculate inside her vagina.
24. According to the FSL result, no semen was found on the brazerie of the prosecutrix, combing and clubbing of her pubic hairs, bedsheet seized from the flat at Chaitnaya Apartment and leather car seat cover of Hyundai Verna car. These findings also demolish the prosecution case. If, in fact, the prosecutrix had been raped by accused Preetam on the aforesaid bedsheet, which was seized from the bed lying in flat at Chaitnaya Apartment and by accused Manoj on the rear seat of Hyundai Verna car, there would have been semen stains on the bedsheet and the car seat SC No.9/13. Page 22 of 27 cover as also on the pubic hairs of the prosecutrix. Since no semen was found during forensic examination of any of these, it leads to only conclusion that the allegation of rape is absolutely false.
25. Turning to the arrest of the two accused, it is the case of the prosecution that the accused Preetam Yadav was arrested from his house on 04.11.2011 at 8 a.m. and accused Manoj was arrested from his house on the same day at 9 a.m., both at the instance of the prosecutrix. It may be noted here that the prosecutrix had nowhere mentioned in her statement Ex.PW1/A which is the basis of the FIR, that she can show to the police the house of the two accused. The prosecutrix in her deposition before this court has stated that both the accused were apprehended from their respective houses by the police in her presence. PW19 who had gone alongwith IO PW24 and other police officials for the arrest of the two accused, has deposed in his cross examination that the house of accused Preetam and accused Manoj were identified by the prosecutrix and the two accused were also identified by her. However, PW24 in her cross examination has deposed that she was having the address of accused Manoj and they came to know about the house of accused Manoj on making inquiries from the passers-by in the gali. She has further deposed that the house of accused Preetam was shown to them by accused Manoj. It is totally a mystery as to how was the IO aware about the address of accused Manoj when the prosecutrix had not told her so either orally or in her statement. The mystery deeper than this is who identified accused Manoj at first instance, when he was arrested as according to the prosecutrix in her cross examination, she had seen accused Manoj for the first time in the police station SC No.9/13. Page 23 of 27 and he was identified to her by the police officials. She has further clearly stated that she does not know from where and when accused Manoj was apprehended and was brought to the police station. Therefore the testimony of PW19 and PW24 gets falsified completely and it becomes manifest that the two accused were not arrested from his residence and in the manner as mentioned in the Charge Sheet. Apart from this, PW22 who had recorded the statement Ex.PW1/A of the prosecutrix and got the FIR registered, has deposed that after registration of the FIR, he alongwith Lady Const. Mamta took the prosecutrix to Safdarjung Hospital for medical examination and from there they returned to the police station in the afternoon of the next day. Therefore, according to his deposition, the prosecutrix was with him in the hospital till the afternoon of 04.11.2011. This also belies the deposition of PW19 and PW24 that the two accused were arrested on the identification of the prosecutrix in the morning of 04.11.2011 from their residence.
26. From the testimony of PW7 as well as DW1, DW2 & DW3, it is evident that accused Manoj alongwith his Bhabhi (DW3) his wife (PW7), his daughter and the children of his brother left their residence on 03.11.2011 at 6.30 p.m. in their Hyundai Verna car and straightaway reached Ansal Plaza, Palam Vihar, Gurgaon, where they watched movie 'Ravan' from 7 p.m. to 9 p.m. and from there they reached Omax Mall where they had dinner at M/s. Om Sweets Restaurant and from there they returned home and reached there at about 10 p.m. Therefore manifestly accused Manoj was enjoying the evening with his family members as it was the birthday of his daughter on that day. His false implication in SC No.9/13. Page 24 of 27 this case is quite evident in view of the cross examination of the prosecutrix also, which has been noted and discussed herein- above. The Investigating Officer appearing as PW24 has also deposed in her cross examination that a look at CCTV footage of the camera installed at the gate of M/s. Om Sweets, Gurgaon, reveals that accused Manoj alongwith his wife and Bhabhi entered into the shop after parking the car in front of the shop. She has also obtained the bills from that shop regarding food items consumed by accused Manoj and his family. She proved the covering letter accompanying these bills from the Manager of M/s. Om Sweets as Ex.PW4/D1 and the bills are hereby marked as Mark-A to Mark-D. It is thus manifest beyond doubt that it was revealed during the course of investigation itself that accused Manoj was neither with accused Preetam nor with the prosecutrix in the evening of 03.11.2011 but was enjoying alongwith his family.
27. Overall analysis of the evidence lead by the prosecution and defence would reveal that the prosecutrix has made a false complaint of rape against the accused and in fact no incident of rape had taken place. There is absolutely no truth in the allegations of rape raised by the prosecutrix and she has manipulated a false story of rape for some ulterior motives and she was assisted by somebody else in this whole episode.
28. What pinches more is that the Investigating Officer SI Saroj Bala has not conducted a fair and proper investigation in this case. It appears she lacks basic investigation techniques and does not possess a specific skill in investigating rape cases. She SC No.9/13. Page 25 of 27 appears to have either colluded with the prosecutrix in false implication of the two accused in this case or on account of her inefficiency ignored the evidence produced by the two accused regarding their innocence. She has overlooked the evidence regarding the presence of accused Manoj in M/s. Om Sweets, Gurgaon, alongwith his family in the late evening hours of 03.11.2011, which she admittedly had collected during investigation. Why and how did she arrest the two accused, particularly accused Manoj, is not discernible from the record. From the testimony of the prosecutrix herself and in view of the deposition of PW22, it is manifest that the two accused were not arrested at her instance. There is lot of ambiguity in the testimony of PW19 and PW24 with regards the manner in which the two accused were arrested. Both have deposed in stark contrast to each other in this regard. This clearly demonstrates that the two accused were somehow called to the police station, arrested and implicated in this case.
29. It is very regrettable that a trend has set in now-a- days where the investigating officers dance to the tunes of the girl complaining of rape, completely throwing to winds their duties and responsibilities. The duty of the investigating officer is not only to collect evidence against the accused but also to consider and act upon the evidence produced by the accused to support their claim of innocence. It is appalling to note the alibies put forward by the accused, even in serious cases of rape, are overlooked with impunity and the evidence produced in support thereof ignored. Resultantly many innocent persons are compelled to face the ignominy and ridicule of having been arrested and tried on false SC No.9/13. Page 26 of 27 charges of rape. It is almost impossible to restore the lost honour and dignity to them, even after their acquittal in the case.
30. The two accused are acquitted of all the charges.
31. Let a copy of this judgment be sent to Commissioner of Police, New Delhi, and to the DCP South West, New Delhi, with the hope that the officers investigating the rape cases are sensitised and properly trained to conduct investigation in such cases with an open mind without treating the statement of the prosecutrix as a gospel's truth.
Announced in open (VIRENDER BHAT)
Court on 22.5.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.9/13. Page 27 of 27