Delhi District Court
33. In The Case Of State Of Punjab vs Gurmeet Singh on 23 November, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
SC No : 124/13
FIR NO : 95/13
PS MOTI NAGAR
U/S: 109/328/376/506/34/120 B IPC
State
Versus
1. Rakesh Chabra @ Nitu Chabra
son of late Sh Bhagwan Dass Chabra
resident of House No. 8, Ground Floor
DDA Flats, Shivaji Enclave
Rajouri Garden
New Delhi.
Permanent resident of
WZB32, Sharda Puri
New Delhi.
2. Ms Sonu Suri
d/o late Sh Khairati Lal
resident of House No. 671, 4th story
Vishal Enclave, Rajouri Garden
New Delhi.
3. Harbinder Singh @ Walia Mama
son of Sardar Harbans Singh
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resident of C1A/93C, Janakpuri
New Delhi.
Office Address:
148B, Shivaji Enclave
Rajouri Garden, New Delhi15.
Date of receipt of case
after committal :23/07/2013.
Date of judgment : 23.11.2016
"To call the woman the weaker sex is a libel; It is
man's injustice to woman. If by strength is
meant brute strength, then, indeed, is woman
less brute than man. If by strength is meant
moral power, than woman is immeasurably
man's superior. Has she not greater intuition,
is she not more selfsacrificing, has she not
greater powers of endurance, has she not
greater courage? Without her, man could not
be. If nonviolence is the law of our being, the
future is with woman. Who can make a more
effective appeal to the heart than woman?"
Mahatma Gandhi
JUDGMENT
1. Accused Rakesh Chabra, Sonu Suri and Harbinder Singh have been charge sheeted by Police Station Moti Nagar, Delhi for the commission of offences under sections 120B/328/376/506 of the Indian Penal Code (hereinafter
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referred to as the IPC) on the allegations that prior to 03.03.2013 at unknown time in Delhi accused Rakesh Chabra along with coaccused Sonu Suri and Harbinder Singh @ Walia Mama had entered into a criminal conspiracy to take the prosecutrix to Amritsar from Delhi as accused persons were involved in illegal supply of drugs and also to commit sexual assault upon the prosecutrix. Accused persons took the prosecutrix to Amritsar and had administered some intoxicating substance in her cold drink and made the prosecutrix drink that cold drink and subsequently had committed rape upon her and threatened the prosecutrix.
2. After hearing arguments, vide order dated 31.07.2013 , charge for offences under section 120B/328/376/506 IPC was framed against the accused Rakesh Chhabra and charge u/s 120B/328/109/376 IPC was framed against accused Sonu Suri and Harbinder, to which they pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined 20 witnesses in all.
4. PW1 Dr Manjeet Kumar has proved the MLC of accused Rakesh as Ex.PW1/A.
5. PW2 SI Rameshwar Oraon was the duty officer. He has deposed that on 30/03/2013, on the basis of rukka, he had registered the FIR (Ex.PW2/A) of the present case.
6. PW3 Ct Bheem Singh took the pulandas vide RC No.
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44/21/13 from MHCM and deposited the same at FSL Rohini.
7. PW4 Ct Prem Chand took the pulandas vide RC No. 53/21/13 from MHCM and deposited the same at FSL Rohini.
8. PW5 HC Virender Kumar was the MHCM in PS Moti Nagar at the relevant time. He has deposed that on 30.03.2013 WSI Sumitra had deposited 17 sealed pulandas with sample seal of Acharya Bikshu Hospital. He had made entry in register no.19. The photocopy of the relevant extract is Ex.PW5/A. On 02.04.2013 Ct.Bheem Singh received the aforesaid sealed pulandas from Malkhana and deposited the same with the office of FSL Rohini vide RC No.44/21/13. After depositing the same Ct. Bheem Singh came back to Malkhana and handed over copy of the RC and the acknowledgment from the office of FSL. The copy of RC is Ex.PW5/B and copy of acknowledgment is ExPW5/C. Witness has further deposed that on 13.04.2013 WSI Sumitra had deposited one sealed parcel and one sample seal of DDU Hospital. He had made relevant entry in register no.19 .The photocopy of the relevant extract is Ex.PW5/D. On 16.04.2013 Ct.Prem Chand received the aforesaid sealed pulandas from Malkhana and deposited the same with the office of FSL Rohini vide RC No.52/21/13. After depositing the same Ct. Prem Chand came back to Malkhana and handed over copy of the RC and the acknowledgment from the office of FSL. The copy of RC is Ex.PW5/E and copy of
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acknowledgment is ExPW5/F.
9. PW6 Dr Biswajit Dass has proved the MLC of prosecutrix and proved the same as Ex.PW6/A.
10. PW7 Mr Rajeev Ranjan, Nodal Officer has proved the CDR of mobile phone no. 9212443758 for the period 19.02.2013 to 06.03.2013 as Ex.PW7/A. He has also proved CDR of mobile phone no. 9211221713 for the period 19.02.2013 to 06.03.2013 as Ex.PW7/C. The photocopy of customer application form of the mobile phone 9212443758, which was issued in the name of Mr. Harvinder Singh S/o Harbans Singh, is Ex.PW7/D. The attested copies of election card and driving license are Ex.PW7/E1 and Ex.
PW7/E2. The witness has also proved application form of the mobile phone 9211221713 , which was issued in the name of Mr. Tapan Jana S/o Atul Jana as Ex.PW7/F. The attested copies of election card and PAN card are Ex.PW7/G1 and Ex. PW7/G2 respectively. The location chart of the aforesaid cell ID 9212443758 and 9211221713 of the aforesaid period is Ex.PW7/H.
11. PW8 Mr Israr Babu, Nodal Officer has proved the CDR of mobile phone no. 9999514313 for the period 19.02.2013 to 06.03.2013 as Ex.PW8/A. Witness has also proved the CDR of mobile phone no. 9582150212 for the period 19.02.2013 to 06.03.2013 as Ex.PW8/C. Witness has also proved customer application form of the mobile phone
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9999514313, which was issued in the name of Ms. Sonu Suri d/o Mr. Kharati Lal Suri as Ex.PW8/E. The attested copy of election card are Ex.PW8/E1. He has also proved customer application form of the mobile phone 9582150212 , which was issued in the name of Mr. Avinash Singh S/o Mr.Kulwant Singh as Ex.PW8/F. Photocopy of election card is Ex.PW8/F1.
12. PW9 Ct Pramod Kumar had taken accused Rakesh for his medical examination to DDU hospital.
13. PW10 Ct Monu Kumar had taken accused Harbinder Singh Walia for his medical examination to DDU hospital.
14. PW11 L.Ct Laxmi had taken accused Ms Sonu Suri for her medical examination to DDU hospital.
15. PW12 Dr Ritu has proved the MLC of prosecutrix and proved the same as Ex.PW12/A.
16. PW13 Mr Iqbaljit Singh has deposed that about 23 months back a lady police official from Delhi came to the Guru Gobind Singh NRI Yatri Niwas. He has deposed that as per the record on 03.03.2013 room no.408 was allotted in the name of Mr. Harpreet Singh, on 04.03.2013 in the name of Mr. Parkoor Singh son of Mr. Bhag Singh, Raikot, Ludhiana and NRI from Canada and on 05.03.2013 in the name of Mr. Gurcharan Singh son of Mr. Lala Singh, Durby, U.K. As per the record, room no.408 was not booked w.e.f 03.03.2013 to 05.03.2013 in the name of any accused persons. Copy of the
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relevant record is Ex.PW13/A.
17. PW14 Ms Aditi Garg, Ld Metropolitan Magistrate has recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the same as Ex.PW14/C.
18. PW15 is the prosecutrix. She has deposed that she knows accused Sonu Suri and Walia Mamaji for the last about 1 ½ years prior to the incident. On 19.02.2012 accused Sonu Suri telephoned her & told her that she was going to Vaishno Devi with her relatives and asked her to accompany them. She had refused for the same, due to her financial condition. Accused Sonu Suri ensured her that she would bear her expenses for going to Vaishno Devi. Thereafter, accused Sonu Suri asked her to give the phone to her husband as she wanted to talk to him. She had given the mobile phone to her husband and accused Sonu Suri had a talk with her husband telling him that he should allow her to go to Vaishno Devi for 23 days, for which her husband agreed. Her husband had asked her to take their daughter along with her to Vaishno Devi. On 22.02.2013, she along with her daughter went to the house of accused Sonu Suri and accused Walia Mama in Shivaji Enclave near Rajdhani College for visiting Vaishno Devi. From there she along with her daughter, accused Sonu Suri along with her three relatives (all women) and accused Walia Mama went to New Delhi Railway Station in Innova car. When they were waiting
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for the train at New Delhi Railway Station, accused Rakesh Chhabra @Nitu Chhabra along with two others came there and accused Sonu Suri told her that they would also go to Vaishno Devi with them. At Katra two rooms were got booked by all the three accused persons. At Katra, accused Rakesh Chhabra had given one revolver to accused Sonu Suri in her presence. After seeing the same she immediately inquired from accused Sonu Suri, to which accused Sonu Suri replied that she need not worry about it, if something happened, she will receive the bullets and nothing would happen to the prosecutrix. While going from Katra to Vaishno Devi, accused Sonu Suri asked her to walk alongwith accused Rakesh Chhabra accompanied by her daughter, while three other fatty persons including accused Walia Mama and two other ladies would walk behind them in another group. She refused to walk with accused Rakesh Chhabra, on which accused Sonu Suri told her that Rakesh Chhabra was like her brother and he would not do anything wrong with her. She further stated that if accused Rakesh Chhabra misbehaved with her then she should slap him. Thereafter, accused Sonu Suri handed over one bag to her for carrying the same up to Vaishno Devi. After some distance on the way, accused Sonu Suri took back that bag from her . On the way to Vaishno Devi from Katra, they stopped for sometime in a hotel to have tea where accused Sonu Suri took
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out one bundle from the bag and gave the same to accused Rakesh Chhabra. She inquired from accused Sonu Suri regarding that bundle, to which she replied that there were clothes of accused Rakesh Chhabra. Thereafter, accused Nitu Chhabra and accused Sonu Suri decided to follow two different routes saying that few persons would go from the normal way and few others would go from stairs up to Vaishno Devi and accordingly she kept on walking from the normal way with accused Rakesh @ Nitu Chhabra and her daughter. After performing prayer at Vaishno Devi, they came back to Delhi on 26.02.2013.
19. After 12 days of 26.02.2013, accused Rakesh Chhabra telephoned her and informed her that Vaishno Mata had given him very good work and he would pay Rs.11,000/ to her for visiting Vaishno Devi. He asked her to go to Amritsar as well, for which he offered Rs.11,000/ to her . He further told her that if any of her friends were interested in going to Amritsar, they could also go. Accused Rakesh Chhabra asked her to have talks with accused Sonu Suri and Walia Mama regarding this. Thereafter, she had talked to her friend namely Ms. Suman, who agreed to accompany her to Amritsar. On the same day in the evening accused Sonu Suri telephoned her and asked her if she was willing to go to Amritsar. She told her that she along with her friend Ms. Suman were interested for the same. Thereafter, accused
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Sonu Suri got the tickets booked for 03.03.2013. One day prior to 03.03.2013 she telephoned Ms. Suman and told her the timings of the train. Ms. Suman told her that she would not be in a position to go to Amritsar. On 03.03.2013 it was Sunday, her husband dropped her at New Delhi Railway Station at about 6.00am, where all the three accused persons were there. On the same day, they reached Amritsar at about 3.304.00pm. In Amritsar, accused persons booked one room in a hotel. There were two double beds in the room, which were big in size. She along with accused Sonu Suri and Walia Mama went inside the room, whereas accused Rakesh Chhabra had gone some where saying that he was going to collect some payments. After some time, she told accused Sonu Suri that she was feeling nervous and wanted to go to Delhi. At about 9.00pm accused Rakesh Chhabra came to that room and thereafter all three accused persons started conversing with one another. She asked them as to what was the work, they were doing for which they had offered Rs.11,000/ to her and to others for coming to Amritsar.
Accused Sonu Suri and Nitu Chhabra informed her that they were involved in the work of drugs and they choose to visit places of pilgrimage, projecting themselves to be the part of a family. After hearing this, she felt giddiness. She lost consciousness and regained it when the accused persons sprinkled water on her face. Thereafter, accused Walia Mama
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asked to give her Limca. Accused Walia Mama and Nitu Chhabra brought Limca with disposable glasses and accused Sonu Suri asked her to bring one jug of water from water dispenser which was outside the room. She went out of the room to get the jug of water and thereafter, when she came back to room, accused Sonu Suri offered her a glass having Limca and she asked her to drink the same at once. She drank the same and felt nervous. After she consumed the entire glass of Limca, she started feeling sleepy and had some blurred vision. She fell unconscious after that. Next morning when she regained her consciousness, she found herself on a bed in a naked condition and accused Rakesh Chhabra was beside her on the same bed in a naked condition. On the other bed, accused Walia Mama and Sonu Suri were lying together and both of them were also without clothes. She woke up accused Rakesh Chhabra and asked him as to what had been done to her. She also woke up accused Sonu Suri, who told her that since she had come to know each and everything about them, therefore it was necessary for them to prepare her video in this condition. Thereafter, accused Rakesh Chhabra threatened her to kill her daughter and husband. As soon as she picked up her mobile phone to contact her husband, accused Rakesh Chhabra snatched it from her and took out the SIM card from it. When she had seen herself and accused Rakesh Chhabra
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without any clothes on the same bed, she could understand that some thing wrong like rape has happened with her. Thereafter, accused Rakesh Chhabra tied a duppatta around her neck and accused Walia Mama asked her to talk to her husband from his mobile phone. She was instructed by them that she should tell her husband that she was well here and would come back to Delhi on that day as she was to board the train from Amritsar. Thereafter, accused Rakesh Chhabra assured her that he would give her Rs.11,000/ for visiting Vaishno Devi and Rs.11,000/ for visiting Amritsar. Accordingly, she talked to her husband from the mobile phone of accused Walia Mama as per their instructions. At about 12.00 noon on 04.03.2013 they left the hotel and went to Railway Station from where they came back to Delhi. In Delhi they got off the train at Subzi Mandi Railway Station and from there she was dropped at a short distance from her house by the accused persons. She had reached her house at about 11.00pm. Next morning she told her husband everything that had happened with her at Amritsar including about all the accused persons dealing with drugs, "she being made to take a laced Limca etc except for the rape. Thereafter, her husband called a family friend Mr. Karamvir Tyagi to their house and told him everything, which she narrated to her husband. Thereafter, Mr. Karamvir Tyagi telephoned accused Walia Mama, who was
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known to him and accused Walia Mama said that he was somewhere in Punjab on the occasion of death of someone and after 34 days he would come back to Delhi and talk to him(Karamvir Tyagi). After 34 days, her husband along with Mr. Karamvir Tyagi went to the house of Walia Mama at Shivaji Enclave and had a talk with him. Accused Walia Mama did not disclose the true facts and rather he concocted a story and told it to her husband. Thereafter, her husband and Mr. Karamvir Tyagi came back to residence. Then she told her husband about the incident of rape and he advised her to lodge a FIR against the accused persons. After 12 days, accused Nitu Chhabra came to her residence. On seeing him, she got scared. He asked her as to whether she had told about the incident to anyone and she replied that she had not told about incident to any one. Thereafter accused Nitu Chhabra asked her to hand over one photograph of her husband along with his ID proof and account number of the bank so that he could deposit the money in his account. Accordingly, she gave one passport size photograph of her husband, photocopy of his PAN card as his ID Proof. She did not give the account number as her husband did not have the bank account. Accused Rakesh Chhabra told her that he would open a bank account for her husband and deposit the money in the same. Thereafter, accused Nitu Chhabra left her residence. He did not get any account opened in the name of
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her husband and did not deposit any money. He also did not give her the money, which he had offered for going to Vaishno Devi and Amritsar. After 1520 days, she went to PS Moti Nagar with her husband and Mr. Karamvir Tyagi where she gave complaint to police. The same is Ex.PW15/A. She was medically examined and her samples were taken by the doctor. Her statement u/s 164 Cr.P.C was recorded by Ld Metropolitan Magistrate, which Ex.PW14/A.
20. PW16 Mr Karambir Tyagi has deposed that he knows prosecutrix as her husband is known to him since he was having some dealings with him. On 08.03.2013 Mr. Manish Sharma, husband of prosecutrix came to his residence and told him that his wife along with his daughter had gone to Vaishno Devi with Rakesh Chhabra, Sonu Suri and Walia Mamaji. After some time his wife again went to Amritsar with the above named persons. He further informed him that after coming back from Amritsar, his wife had told him that she had been raped by Rakesh Chhabra. Since Sonu Suri and Walia@ Mamaji were known to him so on 08.03.2013 i.e on the same day he visited their office located at Shivaji Enclave to confirm about the above said incident. He had a talk with both the accused persons, who stated that something wrong had taken place but the entire mistake was not on the part of accused persons & there was some fault of prosecutrix also. Either on the same day or on
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the next day he accompanied by Mr. Manish Sharma again visited the above said office and had conversation with both the accused persons i.e Sonu Suri and Walia @ Mamaji . They both stated that prosecutrix was also at fault and they further told them each and every talk related to the journey from Delhi to Vaishno Devi and Delhi to Amritsar. Later on he had come to know through Mr. Manish Sharma and his wife that accused Rakesh Chhabra was involved in the business of supply of drugs.
21. PW17 Mr Manish Kumar Sharma is husband of prosecutrix. He has deposed in detail on the same lines as deposed by prosecutrix.
22. PW18 Baby Ekta is daughter of prosecutrix. She has deposed that last year she had gone to Vaishno Devi with her mother, Sonu aunty, her brother and her mamaji. It was during the winter season. They stayed there for three days and returned to Delhi by train. After 45 days of their return from Vaishno Devi, her mother went to Amritsar with Sonu aunty. She returned after three days.
23. PW19 WSI Rajesh has deposed that on 12.04.2013 while she was posted as ASI in PS Moti Nagar, further investigation of this case was marked to her. On 30.06.2013 she had gone to Amritsar with SI Sumitra Sharma & Ct.Rajat along with the prosecutrix, in a private taxi to conduct investigation at NRI Guest House. SI Sumitra Sharma had
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given an application to the Manager and thereafter she had checked the records of the guest house of 34 days and had taken the photocopies of the records. SI Sumitra Sharma had prepared the site plan at the instance of prosecutrix. The same is already exhibited as Ex.PW15/G.
24. PW20 SI Sumitra Sharma has deposed that on 30.03.2013 on the direction of ACP Rajouri Garden, she went to PS Moti Nagar. Complainant along with her husband Mr.Manish Sharma was present at PS Moti Nagar. Her written complaint (Ex.PW15/A) was marked to her for necessary action by the SHO PS Moti Nagar. She had made an endorsement on the same and prepared rukka, same is Ex.PW20/A and handed over the same to the duty officer for registration of the FIR.
25. Witness has further deposed that prosecutrix was medically examined. After the medical examination of the prosecutrix, doctor handed over MLC and 16 pulandas sealed with the seal of ABGH along with sample seal to her, which were seized vide seizure memo Ex.PW20/B. On 02.04.2013 statement u/s 164 Cr.P.C of prosecutrix was recorded by Ld Metropolitan Magistrate. On 13.04.2013, all the three accused persons namely Rakesh Chhabra @ Nitu Chhabra, Sonu Suri and Harbinder Singh were present at PS Moti Nagar. She interrogated all the three accused persons. She called the prosecutrix (PW15) to PS Moti Nagar, who
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reached there along with her husband. On the identification of the prosecutrix, she had arrested all the accused persons vide arrest memo as Ex.PW15/D, Ex.PW15/E and Ex.PW15/F. Their personal search were conducted vide personal search memo Ex.PW9/A, Ex.PW10/A and Ex.PW11/A. She had recorded the disclosure statement of accused persons, which are Ex.PW20/C, Ex.PW20/D and Ex.PW20/E. On 28.06.2013 she had sought permission from ACP Rajouri Garden to visit Amritsar for inspecting the place of occurrence. In the month of May, 2013 prosecutrix was not available in Delhi as she had gone to Bihar to her native place so she could not visit Amritsar during that period. In view of the permission given by ACP, she along with ASI Rajesh and one more Constable of PS Moti Nagar, accompanied by prosecutrix went to Amritsar on 29.06.2013. They first reached the Golden Temple as the prosecutrix had told them that she can take them to the guest house from Golden Temple. It was the land mark which she remembered. From Golden Temple, prosecutrix took them to Guru Gobind Singh NRI Yatri Niwas, which was at a walking distance from Golden Temple. Next morning she had given an application to the Manager of the above said Yatri Niwas requesting him to provide her the documentary proof/record pertaining to the stay of the accused persons along with the prosecutrix, if any, during the period of 03.03.2013 to 05.03.2013. After
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checking the record, Manager had informed her that no persons in the name of Rakesh Chhabra @ Nitu Chhabra, Sonu Suri , Harbinder Singh and Prosecutrix (name withheld to protect her identity) had stayed in his Yatri Niwas during the above said period. She requested the Manager to provide her the photocopy of the relevant record of register of the above said period but he refused to give her the same and he further stated that he would produce the same in the Court, if required. The Manager had further informed her that such records is maintained by the Sewadaar. She had prepared the site plan (Ex.PW15/G) at the instance of proseuctrix. During investigation she had also collected the call details records of the mobile phones of all the three accused persons Rakesh Chhabra @ Nitu Chhabra, Sonu Suri and Harbinder Singh as well as the mobile phone of prosecutrix. After completing the investigation , charge sheet was prepared and submitted before the Court.
26. Thereafter prosecution evidence was closed.
27. Statement of accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations. They have submitted that they have been falsely implicated in the present case. Accused had stated that they want to lead evidence in defense. But no such evidence was led by accused Rakesh Chhabra, hence defense evidence was closed.
28. I have heard arguments from Ms Madhu Kalia, Advocate
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on behalf of accused Rakesh Chhabra and Sh Devender Kumar, Advocate on behalf of accused Sonu Suri and Harbinder Singh Walia as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
29. On behalf of accused Rakesh Chhabra, Ms Madhu Kalia, Advocate has argued that there are material contradictions in the case of the prosecution, as place of incident is not clarified. CDR of the phone of both prosecutrix and accused persons do not show their presence in Amritsar on the alleged time of incident. Even the registers of NRI Guest Houses, where accused persons are alleged to have taken the prosecutrix, did not show the presence of accused persons there. As regards the allegation of rape, Ld counsel for accused Rakesh Chhabra had argued that prosecutrix was examined after one month of the alleged incident, therefore, no sample of prosecutrix were taken, hence there is no scientific evidence to prove the case of rape against the accused. It is also argued by Ld defense counsel that there is delay in lodging the present FIR, which has not been properly explained by the prosecution. It was also emphasized by Ld defense counsel that although, it is alleged by the prosecutrix that she was taken to Vaishno Devi and Amritsar but tickets of trains have not been seized from the prosecutrix by the IO nor any such inquiry has been made by the IO. The persons, who had accompanied the prosecutrix to Vaishno Devi have not
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been examined. There is no evidence of the offence u/s 328 IPC, as prosecutrix was medically examined after one month of the alleged incident. In defense, it has been stated by Ld counsel that there was dispute of money between the prosecutrix (PW15) and accused persons, due to which, accused persons have been falsely implicated in the present case. With these submissions, it is prayed by Ld defense counsel on behalf of accused Rakesh Chhabra that accused be acquitted.
30. On behalf of accused persons ie Sonu Suri and Harbinder Singh Walia @ Mama, Sh Devinder Kumar, Advocate had argued the matter. He has also argued on the similar lines as argued by Ld defense counsel for accused Rakesh Chhabra.
He has also argued that address of the prosecutrix has not been established as she is having voter I card issued to her at different address, where she had never stayed. Ld defense counsel for accused Sonu Suri and Harbinder Singh had also argued on the point of delay in lodging the FIR and CDR of phone of the accused and prosecutrix for coming together or that they were not shown to be present in Amritsar at the alleged date nor any recovery was effected from the accused persons. The complaint as lodged by the prosecutrix to NGO has not been proved nor the copy of the same was taken by the IO. Even the NGO officials have not been examined by the prosecution. With these submissions, it is prayed by Ld
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defense counsels that accused persons be acquitted in the present case as prosecution has failed to prove its case against accused persons beyond reasonable doubt.
31. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had submitted that prosecution has been able to prove the case beyond reasonable doubt against all accused persons to the effect that criminal conspiracy was hatched between accused persons of taking the prosecutrix from Delhi in order to show that a family was travelling to the religious places and in the garb of pilgrimage, accused persons were doing the business of drugs and when prosecutrix came to know about the business of accused persons, they tried to silence the prosecutrix by committing rape upon her. It is further submitted by Ld Additional P.P that testimony of the prosecutrix has been fully corroborated by the testimony of her daughter and husband. It has been proved by the prosecution that prosecutrix had travelled with the accused persons to Vaishno Devi and Amritsar. Just after returning from Amritsar, she had narrated the incident to her husband and due to fear of being rejected by her husband, she did not disclose the incident of rape specifically to her husband but lateron she gathered courage about the incident of rape also, only thereafter present FIR was lodged against accused persons. It is further submitted by ld Additional P.P that accused persons have not been able to prove their defense as
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no Defense Evidence has been led by accused persons. As regards the submissions of Ld defense counsels regarding the location of the mobile phone of accused persons and the prosecutrix, it is argued by Ld Additional P.P that it is settled preposition of law that location of mobile phone does not necessarily show the location of the person and even otherwise, it was submitted by Ld Additional P.P that in the entire evidence of prosecution, defense never raised the question about the specific mobile phone no. being used by the accused persons at the relevant time. Therefore, it cannot be said that the incident had not taken place or that the case of the prosecution has not been proved beyond reasonable doubt against accused persons. With these submissions, it is prayed by ld Additional P.P that accused persons be convicted for the offences, they are charged with.
32. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
33. In the case of State of Punjab vs Gurmeet Singh reported in 1996 Cr.L.J 1996, Crl. L J 172, the Hon'ble Apex Court took a view that the courts dealing with the rape cases shoulder a greater responsibility and they must deal with such cases with utmost sincerity. Relevant para of the said judgment is reproduced as under:
"...It is an irony that while we are celebrating women's right in all spheres. We show little
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or no concern for her honour. It is a said reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assaultit is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female."
34. Thus, as per Gurmeet Singh's case ( mentioned above), it is the duty of the courts dealing with rape cases to ensure that within the parameters of law, specially Evidence Act, the dignity and honour of the victim should be maintained and this type of cases should be dealt with great sensitivity. In a series of judgments, Hon'ble Supreme Court has held that the testimony of the prosecutrix should not be treated as the testimony of accomplice. Rather it is to be treated at par with the testimony of victim or injured. Minor discrepancies and insignificant contradictions in the statement of the prosecutrix, which are not fatal in nature, should not be given undue weightage to throw out an otherwise reliable prosecution case. By this judgment, Hon'ble Supreme Court has held that if the testimony of prosecutrix inspires confidence, it must be relied upon and in such like case, there is no necessity of seeking corroboration of statement of the
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prosecutrix in material particulars. Seeking guidance from these judgments of Hon'ble Supreme Court, I will now discuss the present case in hand.
35. In the present case, allegation against accused persons ie Rakesh Chhabra, Sonu Suri and Harbinder Singh are that accused Sonu Suri was known to the prosecutrix and she offered the prosecutrix to visit Vaishno Devi with them and she also told prosecutrix that all the expenses for visiting Vaishno Devi will be borne by the accused persons. Accordingly, prosecutrix along with her daughter, as per the case of the prosecution, visited Vaishno Devi with all three accused persons. Although, no incident had taken place during this visit, but prosecutrix had noticed that a revolver was given to accused Sonu Suri by accused Rakesh Chhabra during the said visit. Due to which prosecutrix got afraid but accused Sonu Suri ensured her by saying that "agar kuch hua toh goli mai khaongi, tumehe kuch nahi hoga".
36. After returning from visit of Vaishno Devi, prosecutrix received a call from accused Rakesh Chhabra, by which he told prosecutrix that since accused Rakesh Chhabra had a profit during the visit of Vaishno Devi, he will give Rs.11,000/ to the prosecutrix for the said visit and again prosecutrix was asked to visit Amritsar with him and was promised that Rs.11,000/ will be further given to her after this visit. Prosecutrix could not resist the temptation of
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visiting religious places along with getting the amount of Rs.22,000/, without any expenses paid. Thus, she accompanied the accused persons to Amritsar on 03/03/13.
37. As per the case of the prosecution, during the stay at Amritsar, prosecutrix came to know on inquiry from accused Sonu Suri that accused Rakesh Chhabra is dealing in drugs and after knowing that, she became nervous and wanted to come back home. In order to stop the prosecutrix from creating problems for accused persons, prosecutrix was served with Limca having intoxicating substance, due to which she lost her consciousness and in the morning, when she got up, she found that she had been raped. It was also told to her by accused Sonu Suri that they have made her video, so that she will not be able to tell the facts to anybody. It is also the case of the prosecution that prosecutrix was threatened by accused Rakesh Chhabra of killing her husband and daughter, as they were the persons who know that the prosecutrix had come to Amritsar with them. Thereafter prosecutrix returned to Delhi with accused persons and after reaching Delhi, she informed her husband about the incident except the incident of rape. Admittedly amount of Rs.22,000/ was also not paid to the prosecutrix by accused Rakesh Chhabra. Husband of prosecutrix, PW17, Sh Manish Kumar, believing it to be breach on the part of the accused persons met accused persons, Sonu Suri and Harbinder Singh, where they
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admitted about some wrong happening in Amritsar but they put the burden on the prosecutrix. Without knowing about the incident of rape, her husband (PW17) made the complaint to NGO of Ms Kiran Bedi and as per the case of the prosecution, persons from NGO had informed the prosecutrix to lodge the complaint to PS after knowing the entire incident of rape allegedly taking place with the prosecutrix in Amritsar. Thereafter present FIR was lodged on 30/03/2013 by the prosecutrix. After investigation, charge sheet was filed and trial of the case begin.
38. In order to prove the case of the prosecution apart from the medical evidence of doctors, various police officials have been examined by the prosecution, who are witnesses to the different stage of investigation carried out by the police officers. PW7 Mr Rajeev Ranjan, Nodal Officer Tata Teleservices and PW8 Sh Israr Babu, Nodal Officer of Vodafone had proved the Customer application forms and CDR. Only four witnesses are the public witnesses, i.e. PW15 is the prosecutrix, PW16 is Sh Karambir Tyagi, PW17 is Sh Manish Kumar and PW18 is Baby Ekta daughter of prosecutrix.
39. As opposed to the case of the prosecution, accused persons have not led any defense evidence but defense taken by the accused persons has varied at different stages of trial. Accused persons have taken three types of defenses at three different
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stages. In the cross examination of the public witnesses, defense taken by the accused persons is that prosecutrix had filed false case against accused persons in order to extort money from them. At the stage of recording of statement of accused persons u/s 313 Cr.P.C, the defense taken by the accused persons is that they have seen the prosecutrix with Mr Karamvir Tyagi with whom they had some political enmity since accused persons are involved in politics and social work, Mr Tyagi has made the prosecutrix levell false allegation against them in order to sabotage his political career. At the time of advancing final arguments completely different defense has been taken by accused persons by saying that since the mobile phone's location of the accused persons and the prosecutrix is not matching ie was not found at same place and also it is not found showing that their mobile phones were at Amritsar on the relevant dates, therefore, it has not been proved by prosecution that accused persons ever took the prosecutrix to Amritsar or Vaishno Devi.
40. In the present case, the entire case of the prosecution revolves around the testimony of the prosecutrix, PW15. It is settled preposition of law that corroboration of the testimony of the prosecutrix is not required and if the testimony of the prosecutrix is cogent,specific and inspires confidence, it can be the sole basis of the conviction of accused persons. But adding advantage to this case is the fact that the testimony of
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prosecutrix had been corroborated in this case, in all material particulars by the testimony of PW17 Sh Manish Kumar and PW18 Baby Ekta. On the other hand, defense taken by the accused persons has neither been proved by accused persons, by leading any evidence, nor it appears to be cogent defense taken by the accused persons at different stages of trial, as they have frequently changed their defense but have not been able to prove any of them.
41. Much stress was given by the defense in favour of the accused persons, on the point that, the CDR of mobile phones of accused persons does not show the location of the mobile phone of the accused persons on the relevant date and time in Amritsar or Vaishno Devi. Further, it does not even show the presence of prosecutrix and accused persons at the same place, therefore, they have inferred that accused persons have never travelled with prosecutrix to Amritsar and hence it was termed by them that the case is false case. Before discussing the merits of the statement of prosecutrix, I consider it important to say that as per settled preposition of law, mobile phone location does not necessarily show the location of the holder of mobile phone. In the present case, in the entire lengthy cross examination of the prosecutrix, PW 15 & PW17, husband of the prosecutrix, at no place, the mobile phone no. of the prosecutrix or mobile phone of the accused persons, which they carried with them at the time of
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alleged incident, has been proved or asked by accused persons. In the cross examination of the prosecutrix about the mobile no. of the accused and prosecutrix, she has replied that in the complaint filed by her, mobile phone no. mentioned as 9211443758 was of accused Harbinder Singh, Phone no. 95821501212 was of Rakesh @ Nitu Chhabra and mobile phone of Sonu Suri is 9999514313. But she has not stated nor she was asked whether these were the mobile phone numbers, which all of them were carrying during their visit to Vaishno Devi or Amritsar or not. It has not come in the evidence of prosecutrix, at any stage, what was the mobile phone no, which accused persons were carrying at Amritsar or what was the mobile phone no. of accused Harbinder Singh through which prosecutrix was made to call her husband. Even the mobile phone no. of the prosecutrix or of her husband had not been brought on record by accused persons at any point of time. It is also clear from the evidence of the prosecution witnesses that although, in the evidence, PW15 has stated that she was using the mobile phone no. 9211221713, but PW18 Baby Ekta d/o prosecutrix had stated in her evidence that prosecutrix took the mobile phone no. 7503916665 to Vaishno Devi. No investigation has been carried out by the IO in respect to this mobile phone no. It also shows that prosecutrix was having two mobile phone no. at that time, ie one no. given by the PW18 in her statement
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and other no. 9211221713, which prosecutrix had mentioned in her evidence to have taken to Vaishno Devi. But no question was put to the prosecutrix, PW15, to tell about the phone no. which she was carrying to Amritsar. Further, there was no investigation carried out by the IO regarding the phone no. 9716489583, which as per PW17, was his mobile number and about phone no. 7503916665, which as per PW18, Prosecutrix took to Vaishno Devi. Similarly, there is no explanation or investigation carried out by IO regarding mobile no. 7503882527. Thus, these are lapses in investigation on the part of the IO. Unless it is established during evidence as to which mobile number was carried by prosecutrix, it cannot be ascertained conclusively that the prosecutrix was not present at Amritsar during the alleged date of incident. It was the duty of the defense ie accused persons to prove that accused persons were not present with the prosecutrix at the relevant date, time and place, which they have failed to do. No such suggestion was given to PW15, prosecutrix that accused persons had never travelled with her to Vaishno Devi or to Amritsar.
42. As per the settled principle of law, burden is discharged by the prosecutrix of proving the alleged incident, when she has coherently and cogently stated about the occurrence of incident and there is no lacuna in the testimony of the prosecutrix. After the incident has been narrated and proved
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by the prosecutrix on record, it is the duty of the defense to disprove the existence of facts narrated by the prosecutrix in her statement, which in my opinion, accused persons have failed to do.
43. In the present case prosecutrix examined as PW15 had specifically stated that she was lured by accused Sonu Suri, on telephone to come along with them for visit to Vaishno Devi. It has also been specifically stated by the prosecutrix that she tried to avoid it by saying that her daughter has exams and even topic of expenditure was brought during the conversation but accused Sonu Suri assured her that entire expenditure of trip to Vaishno Devi will be borne by them. In order to ensure that prosecutrix travels with them, accused Sonu Suri even had conversation with the husband of prosecutrix and made him promise the prosecutrix to travel with accused Sonu Suri to Vaishno Devi. At that time, prosecutrix took her minor daughter PW18 with her to Vaishno Devi. The testiony of prosecutrix in regard to travelling to Vaishno Devi has been corroborated by the testimony of PW18. It has been specifically stated by prosecutrix, during her examination in chief, that while travellling to Vaishno Devi, when they were in Katra, accused Rakesh Chhabra gave one revolver to accused Sonu Suri, whereby prosecutrix was frightened but accused Sonu Suri assured her safety by saying that nothing will happen to her.
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It is also important to consider that prosecutrix was cross examined at length by Ld defense counsels, but no suggestion was given, on behalf of any of the accused persons to the prosecutrix, that, accused Rakesh Chhabra was not carrying any revolver or that any revolver was not given by him to accused Sonu Suri. The only question asked from the prosecutrix in respect to the presence of the revolver is regarding the presence of police on the way and frisking/checking of the vehicle done by the police on way to Vaishno Devi. It is common knowledge that persons dealing in illegal arms and drugs or the persons of criminal intention observe many means and ways to pass on their criminal activity without being noticed by the police. Though it is admitted fact that police was frisking the persons, but there is no evidence nor any suggestion has been given by accused persons to the prosecutrix that each and every article of lugguage was opened and checked. Even otherwise it is not possible to check every single article of the luggage being carried out by the tourist and imagining this would be ideal condition to prevail in the society. Practical situation in this regard is known to everyone. Hence it cannot be considered that it was impossible for accused persons to carry revolver. It is also important to mention here that prosecutrix had only seen the accused giving revolver to accused Sonu Suri, but she has not told anywhere in her examination in chief nor she
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was asked during cross examination as to from where the revolver was brought by accused Rakesh Chhabra. The same could have been received by accused Rakesh Chhabra at that place itself from somebody. Hence much importance cannot be assigned to this fact. No incident had allegedly happened during the trip of Vaishno Devi.
44. It is the case of the prosecution that after returning back from Vaishno Devi, accused Rakesh Chhabra had called her (PW15) and informed her that since accused Rakesh Chhabra had earned profit in business during Vaishno Devi trip, he is ready and willling to give Rs.11,000/ to the prosecutrix for such trip. In the entire cross examination of prosecutrix, no suggestion has been given by Ld counsel for accused persons that no such promise was made by accused Rakesh Chhabra regarding giving of Rs. 11,000/ to her. There is absolutely no cross examination of the prosecutrix on this aspect, which again raises doubt about the defense taken by accused persons. Rather, it proves the case of the prosecution.
45. As per the case of the prosecution, it was also stated by accused Rakesh Chhabra to PW15 that they were now travelling to Amritsar and prosecutrix will be given Rs.11,000/ again for travelling with them to Amritsar. Even, at the cost of repitition, it is important to mention here that on this aspect of offering Rs. 11,000/ again to the
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prosecutrix, there is no cross examination conducted by any of the accused persons in this regard. In the cross examination, PW17 Manish Kumar, husband of the prosecutrix had specifically stated that in February 2013, he was earning Rs.5,0006,000/ per month. There is no cross examination or suggestion given to the witness that he was not earning this much amount of Rs. 5,0006,000 per month, during the period of February 2013. It is understandable that when offer of getting Rs. 22,000/was given to them i.e PW15 and PW17, only by travelling to Vaishno Devi and Golden Temple, Amritsar, without paying any money for those trips, the prosecutrix would have agreed voluntarily & this would have prompted the prosecutrix to visit Amritsar with the accused persons without considering the repercussions of the same. As it is common knowledge that people tend to forget 'reasoning', while trusting a known person, more specifically earning profit from them, without spending single rupee.
46. Thus, it is deemed to have been admitted by accused persons that they have offered money to the prosecutrix to travel to Amritsar and VaishnoDevi with them. This in itself shows the malafide intention on the part of the accused persons, as otherwise no person would agree to spend money on the travelling of some other person and over and above offer, voluntarily, to pay Rs. 11,000/ for the visit to that
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person, unless the accused persons were earning illegal money out of said trip. It is not the case of the accused persons that they were into charity business of arranging trips to different religious places.
47. The testimony of the prosecutrix is cogent, confident and coherent in all the material particulars of the case. The prosecutrix had specifically stated that in Amritsar they had stayed in some Guest House, which was near to Golden temple but she did not remember the name of the Guest House. She also did not remember the room no. but she has specifically stated that the room was situated on the third floor and it was having last digit as 8. The defense has placed much reliance on the fact that IO had taken the prosecutrix to room no 408 and as per the testimony of PW13 Sh Iqbal Singh, on the relevant dates i.e. from 03/03/13 to 05/03/13 in room no 408, none of the accused persons were found staying as per regilster Ex.PW13/A. However, it is admitted by PW13 that no. of the occupants in room no. 408 were four. In this case after considering the facts and circumstances of the case and the investigation carried out by the IO, I am of the opinion that there are material lapses committed by the IO in the present case during investigation. The IO had not taken the copies of identification documents of the persons, who were allegedly staying in room no 408 of NRI Guest
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House. It has not been explained by the IO that how they have got the information about room no. "408" being the place of incident as the prosecutrix has not stated the room no to be 408 in any of her statement. The prosecutrix had specifically stated that room was on the third floor and last digit of room no. was 8. The IO had not taken any step to ensure whether the room no 408, document of which they have tried to put on record was situated on third floor or not. The IO had not tried to take the prosecutrix to third floor, in the room, ending with digit 8, by which it could have been established as to in which room the prosecutrix had allegedly stayed, nor original register of Ex.PW13/A was kept on record or seized by the IO at the time of investigation. These are material lacunas in the investigation carried out by the IO. But as per the settled principle of law, benefit of these lacunas cannot be given to the accused persons.
48. My view gets support from the judgment of Hon'ble Supreme Court in Dhanaj Singh @ Shera and others vs State of Pubjab AIR 2004 Supreme Court 1920 wherein, Hon'ble Apex Court has laid down:
"Accused cannot be acquitted solely on account of defective investigation. To do so would tantamount to playing into hands of Investigating Officer if Investigation is designedly defective".
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49. Similary view was taken by Hon'ble Apex Court in Leela Ram (D) through Duli Chand vs State of Haryana and anotherAIR 1999 Supreme Court 371 (1) wherein it has been laid down:
" Criminal P. C (2 of 1974), S. 156 Investigation Any irregularity or even an illegality during investigation should not be treated as a ground to reject the prosecution case.".
50. Similarly in State of UP vs Hari Mohan and others AIR 2001 Supreme Court 142 it has been held that Defective investigation cannot be made a basis for acquitting Accused Moreso when a case is made out against all or any one of the Accused persons.
51. Therefore, I am of the opinion that although it has not been proved by the prosecution conclusively as to in which room no, prosecutrix was taken by the accused persons and where exactly offence of rape was committed but testimony of prosecutrix coupled with the testimony of PW20 SI Sumitra and PW19 WSI Rajesh, who had gone to Amritsar with the IO had specifically proved on record that prosecutrix had stayed in NRI Guest House near Golden Temple. Admittedly the prosecutrix had never travelled out of Delhi, till the filing of the present case, therefore, it would not have been possible for the prosecutrix to tell the exact location of the Guest
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House, when she had travelled with the IO to point out the Guest House.
52. It is clear from testimony of PW19 WSI Rajesh and PW20 SI Sumitra, that prosecutrix, PW15 had specifically asked IO to take her to Golden Temple at Amritsar, as PW15 was knowing the way of guest house from Golden Temple only, which was at a walking distance from Golden Temple. No cross examination of PW19 and PW20 was conducted on this aspect that PW15 has shown the guest house only after reaching the Golden Temple, nor any suggestion was given to PW19 and PW20 to deny this fact. Thus, it proves that PW15 prosecutrix was taken to NRI Guest House, at Amritsar, which she was able to point only when she was taken to Golden Temple. As per prosecution, PW15 had visited Golden Temple many times, for taking langar there, this is the reason that PW15 was able to show the way to guest house only from Golden Temple & as she had never travelled out of Delhi, prior to filing of this case, she was not aware of the exact location of any place at Amritsar.
53. It has also come in evidence of the prosecutrix that she along with accused Sonu Suri used to bring tea from the Tea Stall, which was situated just outside the NRI Guest House. Even this fact has been corroborated by the testimony of PW 19 WSI Rajesh. The prosecutrix had also stated that NRI
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Guest House was within the walking distance of Golden Temple. This fact has also been proved by the testimony of PW19 and PW20. The testimony of PW17 Manish Kumar had also corroborated the fact that prosecutrix had travelled with the accused persons to Amritsar by the train "Shane Punjab" as he had specifically stated that he had dropped the prosecutrix to Railway station at about 6.a.m and she had travelled by "Shane Punjab". This fact is also stated by the prosecutrix in her examination in chief and in cross examination although she had stated that she does not remember the name of the train. No cross examination of the husband of the prosecutrix was done in respect to the dropping of prosecutrix at railway station for travelling with accused persons on 03/03/13 by train, "Shane Punjab". Hence this fact also stands proved against accused persons.
54. Once the factum of going to Amritsar with accused persons is proved by the prosecution, then, from the testimony of PW15, PW17and PW18, the only point to be considered is about the alleged incident. It is the case of the prosecution that at Amritsar, prosecutrix was alone with the accused persons. The prosecutrix had stated in detail about the events, which took place at Amritsar. She had specifically levelled the allegations that she was asked to drink Limca and after drinking that Limca, she lost her consciousness and even
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before finishing Limca, she found the taste of Limca to be different, but thereafter accused Sonu Suri had forced her to consume it in one go by assuring her that she will feel better after consuming Limca. It is the case of the prosecution that after consuming Limca, which was mixed with some intoxicating substance, prosecutrix lost her consciousness and she woke up, next morning and found herself without clothes on the same bed, as of the accused Rakesh Chhabra, who was also present at that time without clothes. There is no cross examination conducted of the prosecutrix on the truthfulness of these facts. Prosecutrix has been thoroughly cross examined by the accused persons on various aspects but material point about the offence have not been touched upon by them. Ld counsel for accused Rakesh Chhabra had confronted the testimony of prosecutrix qua the statement given by her u/s 164 Cr.P.C. But even at that time very relevant aspect was over looked by Ld defense counsel that it is not necessary for the prosecutrix to verbatim reproduce her complaint in her statement u/s 164 Cr.P.C. The court is supposed to consider the testimony of prosecutrix with sensitivity. Considering the three statements of prosecutrix ie complaint Ex.PW15/A, statement u/s 164 Cr.P.C, Ex.PW14/A and the statement of the prosecutrix recorded before the court, it is clear that in all three statements, the testimony of prosecutrix is strong, confident and has not been shaken
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despite lengthy cross examination conducted by Ld counsels for accused persons. Prosecutrix had specifically stated in all three statements that she was firstly taken to Vaishno Devi and then to Amritsar by accused persons. She had also stated that she was promised Rs.11,000/ per trip to be given to her by accused Rakesh Chhabra. She had also stated that at Amritsar, she was given Limca by accused persons and after drinking that, she lost consciousness and found her self naked in the next morning with accused Rakesh Chhabra. It is also stated by PW15 that she came to know that some "galat kaam" had taken place with her. Thus, I am of the opinion that testimony of PW15 is cogent, coherent and specific in all material particulars.
55. Ld counsels for accused persons have raised the argument that no tickets for travelling to Vaishno Devi or Amritsar was taken by the IO from prosecutrix nor the same was filed by the prosecutrix. At this stage, it is important to mention that travel expenses of both these trips were borne, as per the case of the prosecution, by the accused persons. It is also the case of the prosecution that tickets and hotels were booked by the accused persons and none of the reservation were made by the prosecutrix. Therefore, the question of filing of tickets in court by the prosecutrix does not arise. The tickets could have been in possession of the accused persons
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only as they were booked by them as per the case of the prosecution and hence non production of the tickets by the prosecution cannot be read against the prosecution.
56. As regards the arguments of Ld defense counsels on the point of delay in lodging the FIR, it has been held in case in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render
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prosecution version brittle.
57. It has also been stated by Hon'ble Supreme Court in catena of judgments that delay in lodging the FIR would be fatal only if the prosecution is not able to explain the delay.
In this respect, after considering the testimonies of prosecutrix PW15, PW16 and PW17, I am of the opinion that delay in lodging the FIR in present circumstances has been sufficiently explained by the prosecution. As per the case of the prosecution, prosecutrix returned to Delhi on 05/03/13 and the FIR was lodged by her on 30/03/13 i.e. there was a gap of 25 days. This delay has been explained by the prosecution by saying that after returning from Amritsar, prosecutrix did not inform her husband about the incident of rape but had only informed about the other aspects. Since the husband of prosecutrix i.e. PW17 was not aware of any incident of rape having been committed against his wife, he was waiting for the money to be given to them, as promised by accused Sonu Suri on behalf of accused Rakesh Chhabra. But since the same was not given, he along with PW16 Karamvir Tyagi met with accused Sonu Suri and Harbinder Singh, who tried to build up the concocted story against prosecutrix, and then the complaint was lodged by husband of prosecutrix and prosecutrix before NGO of Ms Kiran Bedi. Although the prosecution was not able to explain the entire circumstances of proceedings before that NGO, but PW16,
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Karamvir Tyagi, and PW17, husband of prosecutrix, had specifically stated about the complaint being filed by the prosecutrix before NGO of Ms Kiran Bedi. It has also been stated by PW16, Karamvir Tyagi, that accused Sonu Suri and Harbinder Singh and he were asked to appear before NGO and accused Rakesh Chhabra did not appear despite being asked to appear by the NGO. During proceedings before the NGO in respect to the complaint lodged by the prosecutrix, fact of commission of rape came to the knowledge of the NGO persons and to the knowledge of PW16 and PW17, and only thereafter matter was brought to the knowledge of the police and FIR was lodged. Here, it is important to consider that as per the case of the PW17, even after lodging of complaint, police of PS Moti Nagar did not take any action on their complaint and he had to meet senior police officers to get the case properly investigated.
58. It is clear from the testimony of above mentioned public witnesses that there are some discrepancies and gaps in the testimonies of PW15, PW16, PW17 and PW18 in respect to the name of the hotel & no. of room & the date of filing of complaint before NGO, but I am of the opinion that all the material particulars like factum of prosecutrix travelling to Amritsar and Vaishno Devi with accused persons, her stay in the Guest House near Golden Temple and the occurance of
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this incident have been proved by prosecution, against accused persons, beyond reasonable doubt.
59. As regards the arguments advanced by Ld defense counsel, that, prosecutrix had not raised any alarm or made complaint to any person when she was in Amritsar and had visited the Golden Temple, after the alleged offence, I am of the opinion that in order to appreciate these circumstances, conduct of a person in distress has to be seen. The prosecutrix had specifically stated in her evidence that when she came to know in the morning that she had been raped by accused Rakesh Chhabra, she started crying, then accused Sonu Suri had told her that it was necessary to do this, because prosecutrix had come to know that accused persons were doing the business of drugs and at that time accused Rakesh Chhabra had threatened her that her husband and daughter, who are alone in Delhi, would be killed, if she dared to speak anything against the accused persons. It is impossible for a lady, who is alone in a different city with some persons who have committed wrong against her to raise voice against them in an unknown city to unknown people, knowing fully well, that, her husband and minor daughter are there in the city and accused persons are mighty persons, who can cause harm to her daughter and husband. No mother would ever try to take risk against the life of her child in such
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like circumstances. The behavior of the prosecutrix in not telling anything to any person at Amritsar or during trip is explainable and in my opinion is the natural human conduct, nothing wrong can be inferred from this.
60. Even after coming back to Delhi, prosecutrix could not gather the courage to lodge the complaint against accused persons immediately as she was aware of the fact that accused Rakesh Chhabra was having revolver and was capable of doing any offence against her. It is only after the complaint was lodged before NGO and entire facts were disclosed to them, she could gather courage to file complaint before the police and then matter came to light. The entire testimony of prosecutrix coupled with the testimony of PW17 & PW18 inspire confidence & provide sufficient corroboration to the testimony of Prosecutrix, although no such corroboration was legally required. I find no lacuna or discrepancy or contradictions in the evidence, led by prosecution, which could afffect the root of the case.
61. On the other hand, defense taken by accused persons in order to disprove the case of prosecution is full of contradictions and had not been proved properly. During the cross examination of prosecution witnesses, the defence taken by the accused persons was that prosecutrix had filed false case to "extort money" from accused persons. Despite giving
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such suggestion, no facts or reason of such alleged 'extortion' by prosecutrix was proved by accused persons. At no place, defense had tried to prove or show as to why prosecutrix would try to 'extort money' from them. Thus, I am of the opinion that defense taken by accused is half hearted & not proved by them in their favour.
62. During statement of accused persons, recorded under section 313 Cr.P.C, accused persons Sonu Suri and Harbinder Singh had tried to put the defense that accused Sonu Suri was having political enmity with PW16 Karamvir Tyagi & at the instance of Karambir Tyagi, she had been implicated in this case and since accused Harbinder Singh Walia is related to accused Sonu Suri , hence he had also been falsely implicated in this case by PW15 at the instance of PW16, Karamvir Tyagi. At this stage, it is very relevant to point out, that though accused persons had alleged enmity with Karambir Tyagi, but no such suggestion had been given to PW15 (prosecutrix), PW16 Karambir Tyagi and PW17 Manish Kumar, husband of prosecutrix by any of the accused persons.
PW15, PW16 and PW17 were never cross examined on the aspect that PW16 had any political enmity with accused Sonu Suri. Hence even this defense has not been proved by accused persons. Even if it is believed that there was any enmity between accused Sonu Suri and PW16 Karambir
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Tyagi, then also it had not been explained by accused persons that why the PW15, prosecutrix would implicate accused Rakesh Chhabra for the offense of rape and not do so against accused Harbinder Singh? Accused Rakesh Chhabra has no where alleged that he had been prosecuted due to any enmity, but had stated that PW15 and PW17, wanted to extort money from him. There is no explanation tendered by accused Rakesh Chhabra, as to why PW15 & PW17 would want to extort money from him, as admittedly, he was not known to Prosecutrix or her husband prior to visit of Prosecutrix to Vaishno Devi. As discussed by me above, this allegation has not been explained or proved by accused Rakesh Chhabra.
63. Third defense taken by the accused persons is that at the relevant date and time as per the location of the CDR of their mobile phones, they were not present at Amritsar or at Vaishno Devi with prosecutrix. Even if it is believed that the CDR of mobile phones of accused persons were showing their actual location, then also the pertinent question, which defense had failed to answer is , why the accused persons have not given any suggestion to PW15 that they had not gone to Amritsar with her or that why accused persons have positively not put to PW15 in cross examination that they were present at different locations, by citing the name of
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place on relevant dates, and were not present at Amritsar. Mere fact that accused persons had not put any questions/suggestion to PW15, PW16 and PW17 in their cross examination that accused persons were not present at Amritsar, but on all such dates, they were present in Delhi, shows that defence taken during final arguments, was taken only for the sake of argument and even accused persons did not believe the same. Further, CDR of accused Rakesh Chhabra is totally blank, no call has been clearly made by him from that mobile phone during 03/03/13 to 05/03/13. Thus, even the presence of accused Rakesh Chhabra at any other place than Amritsar, has not been proved by accused persons. Hence, I am of the opinion that defense taken by accused persons has not been proved by them, it is taken only half heartedly, just to dispute the case of prosecution, but without any conviction.
64. In view of my above discussion, I am of the opinion that prosecution has proved its case beyond reasonable doubt that accused Rakesh Chhabra along with coaccused Sonu Suri and Harbinder Singh had entered into a criminal conspiracy to take the prosecutrix to Amritsar from Delhi as all accused persons were involved in illegal supply of drugs and also to commit sexual assault upon prosecutrix. It has also been proved by prosecution that all accused persons had taken the
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prosecutrix to NRI Yatri Niwas, Amritsar, where they administered some intoxicating substance in the cold drink ie Limca and made prosecutrix to drink the same and accused Rakesh Chhabra had committed rape upon prosecutrix and threatened her of dire consequences. Prosecution has also proved that accused Sonu Suri and Harbinder Singh had abetted the offence of rape committed by coaccused Rakesh Chhabra @ Nitu upon the prosecutrix. Hence the accused Rakesh Chhabra is convicted for the offence u/s 328/376/506 read with section 120 B IPC. Accused Sonu Suri and Harbinder Singh @ Walia Mama are convicted for the offence u/s 120B IPC, section 328 read with section 120 B and section 109/376/120 B IPC.
Announced in the open Court on (SHAIL JAIN) this 23rd November, 2016. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi
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