Delhi District Court
2006 Cri. L.J. (Noc) 494 (Gau.) Titled As ... vs . on 1 October, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 17/09
PS: Sadar Bazar
U/s: 376/506/34 IPC
S.C. No.: 19/09
Case ID No.02401R0130142009
In the matter of:
State
Versus
1. Rahul Kumar Saini
S/o Vijay Kumar Saini
R/o H. No.1177, Street No.11,
Sadar Bazar, Delhi.
2. Rohit Kumar Saini
S/o Prakash Kumar Saini
R/o H. No.1070, Bartan Market,
Gali No.11, Sadar Bazar, Delhi.
Date of receiving in Sessions Court : 22.04.2009
Arguments Heard : 28.09.2011
Date of Judgement : 01.10.2011
JUDGEMENT
Case Of Prosecution:
1. On 27.1.2009, prosecutrix (name withheld to keep her identity FIR No.: 17/09 1/14 confidential) alongwith her grand mother and friend Nisha came to police station Sadar Bazar and the grand mother of the prosecutrix showed suspicion of rape upon the prosecutrix. ASI Ajeet Singh took the prosecutrix to Hindu Rao hospital for her medical examination where she refused for her gynae examination. Subsequently prosecutrix agreed for her gynae examination and gave her statement that on 26.1.2009 she alongwith her friend Nisha had gone to meet her Mausi Chanchal at house no. 1168, Gali no. 11, Sadar Bazar, Delhi but as her Mausi was not present at her house, therefore she alongwith her friend Nisha was going back to her home. At the corner of gali no. 11, accused Rahul Kumar Saini and Rohit Saini met her and on the pretext of meeting her with her Mausi, they took her at Khatta near Basti Harphool where accused Rahul forcibly raped her and accused Rohit kept surveillance while standing at the corner of gali. On the basis of statement of prosecutrix, case u/s 376/506/34 IPC was registered against both the accused persons and during the investigation of the case, IO prepared site plan at the instance of prosecutrix, arrested both the accused persons, got recorded the statement of the prosecutrix u/s 164 Cr. P.C, sent the exhibits to FSL for expert opinion and after completion of investigation, filed chargesheet u/s 376/506/34 IPC against both the accused persons in the court.
2. Since offence u/s 376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
FIR No.: 17/09 2/14
Charge Against The Accused:
3. Prima facie case u/s 366A/506/376 (2) (G)/34 IPC was made out against both the accused persons. Charges were framed against them to which they pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 22 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses:
6. PW3 Ct. Krishan Kumar is the duty constable of Hindu Rao hospital who handed over the sealed pullandas alongwith sample seals given to him by the concerned doctor to IO of the case.
7. PW4 is Ct. M.A. Khan who was with the IO during the arrest and medical examination of accused persons.
8. PW5 Ct. Govind Singh is the duty constable of Hindu Rao hospital who handed over the sealed pullandas and sample seals of accused Rahul Kumar Saini and Rohit Kumar Saini given to him by concerned doctor to IO of the case.
9. PW6 is ASI Ajeet Singh who took the prosecutrix to Hindu Rao hospital for her medical examination and stated that prosecutrix had refused for her gynecological examination.
FIR No.: 17/09 3/14
10. PW7 HC Rajeev Kumar is the MHC (M) who made entry in register no.19 regarding deposition of case property in the malkhana and proved the same as Ex. PW7/A.
11. HC Om Prakash (who again inadvertently has been examined as PW8) is the duty officer who registered the FIR and proved the same as Ex. PW8/A.
12. PW9 Smt.Pampi is the bua of prosecutrix who has stated both the accused persons were arrested from Sadar Bazar on the pointing out of prosecutrix. She went to the hospital alongwith the prosecutrix for her medical examination where she was medically examined.
13. PW15 is Sh. J. P. Nahar, Ld. MM who recorded the statement of prosecutrix u/s 164 Cr. P.C and proved the same as Ex. PW1/B.
14. PW19 is Ct. Narender Singh who took the exhibits of this case to FSL, Rohini and deposited the same there.
15. PW20 is Ct. Yashvir who stated that he does not remember anything and had not joined the investigation of this case at any stage.
16. PW21 is Smt. Geeta, mother of PW Nisha, the friend of prosecutrix. She has stated that about one and half years back, her daughter and her friend had gone for shopping at Sadar Bazar. Her daughter came back to home but the friend of her daughter did not reach at her house. Bua of Prosecutrix namely Pampi came to her house in search of prosecutrix and she alongwith her daughter and Pampi went to FIR No.: 17/09 4/14 the house of Chanchal for the search of prosecutrix but she was not there. Later on prosecutrix came to the house of her mausi in night hours and her daughter alongwith the prosecutrix were taken by the police for their medical examination but her daughter refused for her medical examination.
Material witnesses:
17. PW1 is the prosecutrix (name withheld to keep her identity confidential) who has duly supported the case of the prosecution and has also identified both the accused persons present in the court.
18. PW8 Nisha is the friend of the prosecutrix who has also stated about the incident of rape committed upon the prosecutrix by accused Rahul.
19. PW2 is HC Swati Yadav who joined the investigation with IO and arrested both the accused persons. She proved the arrest memos of accused persons as Ex. PW2/A and Ex. PW2/B and personal search memos as Ex. PW2/D and Ex.PW2/C.
20. PW16 SI Sanjeev Verma is the initial IO who recorded the statement of the prosecutrix, got registered the FIR and arrested both the accused persons at the instance of prosecutrix.
21. PW17 W/ASI Shakun is the second IO who on receipt of investigation conducted the further investigation of the case and proved the memos in this regard.
FIR No.: 17/09 5/14 Medical witnesses:
22. PW10 is Dr. Ritu Kaushik, CMO (Gynae) Hindu Rao Hospital, Delhi who proved the MLC of prosecutrix prepared by Dr. Satyamvada Pandey and Dr. Harsha Jain as Ex. PW10/A.
23. PW11 is Dr. Ashima Vohra, GDMOII (Anaesthesia), Hindu Rao Hospital, Delhi who proved the MLCs of Rahul Kumar Saini and Rohit Kumar Saini prepared by Dr. Sanjeev Kumar Shrivastava as Ex. PW11/A and Ex.PW11/B.
24. PW12 is Dr. Neelesh Dange, Senior Resident, Department of Forensic Medicines, Hindu Rao Hospital, Delhi who proved the MLCs of Rohit Kumar Saini and Rahul Kumar Saini prepared by Dr. Pramod Kumar as Ex. PW12/A and Ex.PW12/B.
25. PW13 is Dr. P.K. Jain, Radiologist, Hindu Rao Hospital, Delhi who examined Xray plates of prosecutrix for determination of her age. He further proved the report as Ex.PW13/A and also proved the Xray plates as Ex. PW13/B1 to B4.
26. PW14 is Dr. Manisha, Senior Resident, Hindu Rao Hospital, Delhi who gave her observation on the MLC Ex. PW14/A of prosecutrix prepared by Dr. Pradeep and proved the same Ex. PW14/B.
27. PW18 is Dr. Om Prakash, SMO, Department of Surgery, from Hindu Rao Hospital, Delhi who has proved the MLC of prosecutrix and PW Nisha prepared by Dr. Pradeep as Ex. PW18/A and Ex.PW14/A.
28. Statements of accused U/s 313 Cr.P.C. were recorded wherein FIR No.: 17/09 6/14 they denied the case of prosecution and stated that they have been falsely implicated in the present case. Both the accused persons further chose not to lead any evidence in their defence.
29. I have heard Ld. defence counsels for the accused persons and Ld. APP for the State and have carefully perused the record. CONCLUSION:
30. Prosecutrix in the present case has been examined as PW1. During her examination in the court in October2009 she has given her age as 16 years. There was no birth certificate or the school record of the prosecutrix available with IO and therefore her bony age examination was got conducted by the IO. As per the bony age report Ex. PW13/A, the age of the prosecutrix is in between 17 to 18 years. Even after giving two years margin on both sides, the age of the prosecutrix can not be less than 16 years on the date of incident. The prosecutrix in her statement u/s 164 Cr. P.C. recorded by Ld. MM in January 2009 herself has given her age as 17 years. Thus, a doubt is created regarding the age of the prosecutrix, the benefit of which must go the accused.
31. Prosecutrix has further stated that both the accused persons were standing in the corner of street no. 11 and they asked her that they will leave her at the house of her maternal aunt Chanchal. Her friend left for her house but both the accused persons took her inside the street in the dark where accused Rahul raped her and accused Rohit was guarding the street. Though the incident is stated to have been taken place in the area FIR No.: 17/09 7/14 of Sadar Bazar at about 8.00 p.m. in the evening and during that time it is not possible that any of street in the area of Sadar Bazar could be deserted. She stated that she remained standing in the street due to fear and thereafter her grandmother, her bua and her parents came there and took her to the house of her mausi. She disclosed the fact of rape to her grandmother. Thereafter her parents took her to the police station from where she was taken to Hindu Rao hospital for her medical examination. She further stated that she initially refused for her internal medical examination but subsequently she agreed for her medical examination. She further stated that accused Rahul threatened her that if she will disclose the fact of rape to anybody, he will put acid on her person. This witness in the present case is around 16 years of age at the time of commission of offence but it seems that while she was being raped in a street, she did not raise any hue and cry for any help. In the month of January at about 8.00 p.m. prosecutrix started from her house to go to the house of her maternal aunt alongwith her friend. She herself has stated that when the accused met her then her friend left for her house. It seems that her friend, when accused met the prosecutrix and took her away also did not make any complaint to anybody regarding taking away of prosecutrix in the street by the accused persons. The prosecutrix it seems did not raise any hue and cry even after the commission of rape. As per her own version due to fear she kept standing in the street which is highly unbelievable. The area of Sadar Bazar is so much thickly populated and it FIR No.: 17/09 8/14 is not possible that till 3 .00 to 4.00 a.m the prosecutrix was not noticed by any person. In her cross examination she has stated that accused Rahul lives in the same gali where the house of her maternal aunt is situated and accused told her that they will take her to the house of her maternal aunt but when the prosecutrix was not taken to her maternal aunt's house by the accused persons still at that time the prosecutrix did not raise any hue and cry. She has admitted that in the narrow gali in which she was taken, there was houses but it seems that she did not raise any hue and cry for any help at the time of commission of rape. She herself has admitted in cross examination that at the time of commission of rape she did not raise any alarm.
32. In her statement u/s 164 Cr. P.C. before Ld. MM she has stated that accused took her in a hotel where she was raped but in the court she has taken a complete uturn and stated that she was raped in a gali. Even as per the case of the prosecution, the prosecutrix was not raped in hotel but in a gali. In her statement u/s 164 Cr. P.C. Ex.PW1/B, the prosecutrix has stated before Ld. MM that it was around 11.00 to 12.00 p.m. in the night. She was coming from Jhandewalan Mandir alongwith her friend and when they reached at Paharganj at gali no.8 then both the accused persons met them and asked her to come alongwith them to see Mandir nearby and they went alongwith those boys. After returning from Mandir they went to a park situated near Palika Bazar. She alongwith her friend and two accused reached in the park around 1.00 p.m. in the night. They FIR No.: 17/09 9/14 sat in the park and thereafter accused Rahul asked her to come to hotel as he had to talk something with her. Accused Rohit went away with her friend and she remained alone in the park with accused Rahul. Accused took her forcibly to a hotel where the room of the hotel was on the first floor and in that room accused Rahul forcibly raped her from 1.00 a.m. to 3.00 p.m. She did not cry for any help and thereafter accused left her at her house at 4.00 a.m. in the morning. This statement given by the prosecutrix to Ld. MM is in complete contradiction to what she has stated in the court or to the IO. In her statement u/s 161 Cr. P.C. given to the IO she has not taken the name of any hotel and during investigation also neither the name of the hotel came on record nor IO has done any such investigation on these grounds. In her cross examination, prosecutrix has stated that she did not raise any alarm after the incident. From this conduct of the prosecutrix it seems that she was consenting party to the whole incident. Before Ld. MM she has told different story than what she has stated in the court. Even if her both the stories are believed still the question remains that she is a young girl of 16 years. She was taken to Palika Bazar Park and also to the hotel or in the gali and it seems that when accused was taking her to these different places, she did not cry for any help. Even when accused committed rape upon her, she did not cry for any help. In her statement before Ld. MM, she has stated that accused Rohit went away with her friend but in the court she has stated that accused Rohit kept standing and guarding the street where accused Rahul FIR No.: 17/09 10/14 was committing rape upon her. Not only for accused Rahul there are so many contradictions in the testimony of PW1 which makes the whole case of the prosecution doubtful but for the accused Rohit also the testimony of prosecutrix does not inspire any confidence. Reliance is placed upon 2006 CRI. L.J. (NOC) 494 (Gau.) titled as The State of Assam vs. Mintu Paul wherein it has been held that: "Penal Code (45 of 1860), Ss 366, 376--Kidnapping and rape Proof Allegations that accused maternal uncle of victim enticed her and took away with him and committed rape on her Victim was more than 18 years old at time of alleged occurrence Evidence of victim that she had not been kept at one place and that she had been made to move from one place to another No evidence showing that victim had made any attempt to either run away or raise cries for help It could be said that victim went out with accused willingly Belated assertions of victim before police to the effect that accused forcibly had sexual intercourse with her is not reliable Guilt of accused not proved beyond reasonable doubt--Acquittal of accused,proper".
33. Reliance is also placed upon 2005 CRI. L.J. 2457 titled as Sukhbir Kabul Singh vs. State of Haryana wherein it has been held that: "Penal Code (45 of 1860), S. 376 Rape -Proof Accused allegedly allured prosecutrix to marry him, abducted her and committed rape on her Prosecutrix was aged more than 16 years on date of occurrence--She went along with accused from place to place in van, bus and train But she did not protest to anyone that she was being abducted Her statement that she was threatened with pistol appeared to be fanciful story Letters and photographs on record showed that accused and prosecutrix were having love affairs and she was happily going from place to place with accused on her own free will--Statements FIR No.: 17/09 11/14 of prosecutrix and her father did not corroborate on materials aspects Prosecutrix was consenting party--Accused is therefore entitled to be acquitted".
34. Reliance is further placed upon AIR 1998 Supreme Court 2694 titled as Kuldeep K. Mahato vs. State of Bihar wherein it has been held that: "Penal Code (45 of 1860), S. 375 Rape Proof Accused alleged to have kidnapped prosecutrix and committed rape on her Concurrent finding that prosecutrix was below 18 years of age Medical evidence showing no injuries on person of prosecutrix including her private part--Conduct of prosecutrix showing that she was a consenting party to sexual intercourse Not a case of prosecutrix that she was put in physical restraint Conviction of accused for offence of rape, not proper".
35. PW8 is Nisha, the friend of prosecutrix who was alongwith the prosecutrix as per the prosecutrix at the time of incident. She has stated that she alongwith prosecutrix was going to the house of mausi of prosecutrix in Sadar Bazar. She further stated that when they reached at house, it was found locked and they started returning back to their house, in the mean time both the accused persons met them. This witness stated that accused met them and told that they will take them to meet with maternal aunt of prosecutrix. Thereafter prosecutrix went with accused Rahul and accused Rohit raped her. She further stated that after rape by accused Rohit, she went to her house and did not lodge any complaint against Rohit. It may be mentioned that this witness never lodged any FIR No.: 17/09 12/14 complaint against accused Rohit previously but suddenly in the court she has stated that she was also raped by accused Rohit. Even if her testimony is taken to be true but it seems that she was also a consenting party to the whole incident. She also did not raise any hue and cry at the time of commission of rape by accused neither cried for any help and like PW1 it seems that she went with the accused at about 12 midnight. There are also many contradictions in the testimony of PW1 and PW8 as PW1 has stated that they could not reach the house of her maternal aunt whereas PW8 has stated that they reached the house of maternal aunt of prosecutrix but it was found locked. PW8 further stated that there was no elder in their home at that time but PW1 has given different version and stated that her grandmother, parent and her bua came for her search.
36. As per MLC of the prosecutrix proved on record as Ex. PW10/A, the prosecutrix herself has stated to the doctor that she had sexual contact with her friend with mutual consent and this was the fourth time. Even on local examination, the hymen had old tears. This MLC of the prosecutrix itself proves the fact that prosecutrix before the doctor admitted this fact that she had sexual intercourse with accused even prior to that with her mutual consent and also her hymen had old tears.
37. So far as the MLC of PW8 is concerned, then she refused for her internal medical examination before the doctors. Prosecutrix initially also refused for her internal medical examination but subsequently she agreed for the same but PW8 never agreed for the same. Thus from the FIR No.: 17/09 13/14 testimony and conduct of the prosecutrix and also from her MLC, it is clear that prosecutrix was a consenting party to the whole incident.
38. PW21 is the mother of PW8 and this witness has not stated anything against the accused Rahul Kumar or that her daughter was also raped by accused Rohit. She has only stated that prosecutrix came to the house of her mausi in the night hours and thereafter her daughter and prosecutrix were taken to the police station and from there they were taken to the hospital for medical examination where both the girls refused for their internal medical examination.
39. In view of above said discussion, it cannot be said that prosecution has been able to prove its case against the accused persons beyond the shadow of doubt. Both the accused are, therefore, acquitted of the offence. They are on bail. In view of the new amended section 437A of Cr.P.C., the bail bond already furnished by the accused are extended for a period of 6 months with the condition that they shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 01.10.2011. FIR No.: 17/09 14/14