Delhi District Court
State vs Alok Choudhary 1 Of 36 on 23 April, 2018
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE/SPECIAL FAST TRACK COURT:ROHINI
DELHI
Sessions Case No : 58423/16
Old S.C. No. : 103/15
STATE
V/S
ALOK CHOUDHARY,
S/O. BRIJPAL SINGH,
R/O. 1131, MUKHERJEE
NAGAR, DELHI.
2ND ADDRESS:
VILLAGE - NANGLA PAHARI,
PO MURVAR,
DISTRICT - ALIGARH,
U.P.
FIR No : 563/15.
Police Station : MUKHERJEE NAGAR.
Under Sections : 376/506 IPC
STATE VS ALOK CHOUDHARY 1 of 36
Date of Committal to Sessions Court : 23.07.2015
Date on which Judgment reserved : 27.03.2018 & 23.04.2018
Date on which Judgment announced : 23.04.2018
J U D G M E N T
1.In the present case, charge in respect of offences u/s. 376 and 506 IPC was framed against accused by ld. Predecessor on 10.09.2015. The allegations against the accused were that during the period w.e.f. 23.11.2014 to 19.04.2015 at unknown time at H.No.1131, Mukherjee Nagar, Delhi, he committed rape upon the prosecutrix without her consent on the false pretext of marriage. It was also alleged that he threatened the prosecutrix to defame her by uploading her obscene video on Facebook and Internet and to kill her family members.
2. Accused pleaded not guilty to the said charge and claimed trial.
3. To bring home the guilt of the accused, prosecution has examined nineteen witnesses.
4. PW1 is SI Jagdish Chand. He got recorded the FIR Ex.PW1/A on the basis of tehrir, brought by W/ct. Neelam and sent by W/SI Mithlesh Yadav.
5. PW2 is Dr. Sandeep Kumar. He has conducted the Potency Test of the accused, on 20.04.2015, vide MLC Ex.PW2/A
6. PW3 is Dr. Avnish Tripathi. He has deposed that on 14.05.2015, the prosecutrix was examined by Dr. Manish, JR, under his supervision vide MLC, Ex.PW3/A bearing his signature at point B and of STATE VS ALOK CHOUDHARY 2 of 36 Dr. Manish at point A.
7. PW4 is HC Deepak. He was MHC(M) at the PS. He has deposed that on 19.04.2015 WSI Mithlesh Yadav deposited some sealed pullandas sealed alongwith sample seal and he made entries in register no.19. He has further deposed that on 07.05.2015, on the instructions of IO, exhibits of the case were handed over to Ct. Jasbir Singh for depositing the same in the FSL, Rohini, vide RC No.44/21/15. After depositing the exhibits in the FSL, Ct. Jasbir deposited the acknowledgment receipt of the pullandas with him. The entries in register no.19 & 21 are Ex.PW4/A and Ex.PW4/B respectively. The acknowledgment receipt is Ex.PW4/C.
8. In crossexamination by ld. Counsel for accused, he has admitted that there is overwriting at point X on Ex.PW4/A but has volunteered that overwriting is there, as by mistake digit 4 was written in place of digit 5. He has denied that entries in register no.19 are not in his handwriting.
9. PW5 is Ct. Jasbir. He took the exhibits from the MHC(M) on 07.05.2015 and deposited the same in the FSL, Rohini.
10. PW6 is Ct. Vijay Malik. He was the DD Writer at PS - Mukherjee Nagar. He has deposed that on 19.04.2017 at about 3:25 P.M. wireless operator told him that four months ago rape was committed upon the prosecutrix. He (PW6) recorded the information vide DD No.45B and intimation in that regard was given to SI Bhagat telephonically. The DD No. 45B is Ex.PW6/A. STATE VS ALOK CHOUDHARY 3 of 36
11. In crossexamination by ld. Counsel for accused he has deposed that he mentioned the particulars in the DD in the manner, as were received by him.
12. PW7 is Dr. Gopal Krishna. He has deposed that on 19.04.2015 at about 1:23 P.M., the prosecutrix was brought in the hospital by W/SI Mithlesh Yadav for medical examination. Under his supervision Dr. Prashant medically examined the prosecutrix vide MLC Ex.PW7/A. After medical examination, the prosecutrix was referred to Senior Gynae for further examination and investigation.
13. PW8 is Dr. Suminder Kaur, Senior Forensic Chemical Examiner (Assistant Director) DNA Finger Printing Unit Biology Division, FSL, Delhi. She has examined the exhibits of the case, vide her report Ex.PW8/A. She has also prepared the DNA genotypic data, which is Ex.PW8/B.
14. PW9 is Ms. Rajni Ranga, ld. MM. She has recorded the statement of the prosecutrix u/s. 164 Cr.P.C., which is Ex.PW9/B.
15. PW10 is Dr. Samvedna (Gynae) Hindu Rao Hospital. She has identified the handwriting and signatures of Dr. Rita Paresh Bang, who had examined the prosecutrix in Gynae Department, vide MLC Ex.PW10/A.
16. In crossexamination by ld. Counsel for accused, she has admitted that no injury was found in the overgenital area of the patient. As per MLC, it cannot be said that any symptoms of rape were present on the body of the patient and finding, in that regard, could be STATE VS ALOK CHOUDHARY 4 of 36 given after the FSL Result.
17. PW11 is SI Bhagat Singh. He is first IO of case. He has deposed that on receipt of DD No. 18A, Ex.PW11/A, he went to the spot i.e. H.No.1231, Mukherjee Nagar alongwith W/SI Mithlesh and W/Ct. Neelam, where the prosecutrix met them. W/SI Mithlesh made an inquiry from the prosecutrix and recorded her statement. Thereafter, he left the spot. His statement was recorded by the IO.
18. In crossexamination by ld. Counsel for accused, PW11 has deposed that prosecutrix and her mother met him in front of their house. He did not enter the house. He has admitted that no proceedings were conducted by the IO, W/SI Mithlesh Yadav, in his presence.
19. PW12 is Smt. Indu Devi. She is the mother of prosecutrix. She has deposed that she alongwith her sons and daughter/prosecutrix used to reside at Jhuggi No.146, Munshi Ram Colony. On 19.04.2015, she was working at Batra Cinema. At about 11:00 a.m./12:00 noon, she received a telephonic call from her daughter, who informed her that she was present in the room of Alok Chaudhary. She (her daughter) was weeping and told her to come soon. She went there and found that the door of room of accused was bolted from inside. She knocked the door. After ten minutes, the door was opened by accused. She entered the room and noticed that her daughter / prosecutrix was weeping and standing by the side of bed. She asked the accused, as to why her daughter was weeping. Then her daughter told her that accused had made a video and loaded the same in his laptop. Accused started misbehaving with STATE VS ALOK CHOUDHARY 5 of 36 her. She tried to catch hold the accused, who twisted her hand and made a call to someone. Thereafter, she immediately made a call to her brothers, who advised her to make a call at 100 number. So, she made a call at 100 number. In the meanwhile, Sunil Pandey, the friend of the accused came and took away the laptop and mobile of accused.
20. She has further deposed that, in the meanwhile, her brothers and police also came there. Police recorded her statement. Police took her, her daughter and accused to the police station Mukherjee Nagar. Thereafter, her daughter was taken to BJRM Hospital for her medical examination but no doctor was available in the hospital. Therefore, her daughter /prosecutrix was referred to a hospital at Rohini. But, her daughter was taken to Hindu Rao Hospital, where her medical examination was conducted at 4:00 p.m. Thereafter, they came at the police station, where police recorded statement of her daughter, which is Ex.PW12/A. After two days, her daughter was produced by the IO, W/SI Mithlesh before the Judge at Kingsway Camp. Thereafter, her daughter was produced in Rohini Court, where the statement of her daughter was recorded by ld. MM.
21. In crossexamination by ld. Addl. PP, PW12 has deposed that accused was arrested by the IO in her presence vide arrest memo Ex.PW12/B.
22. In crossexamination by ld. Counsel for accused she has deposed that she was working as a cook in the boys hostel at Mukherjee Nagar. She had received the call on her mobile number 9650514774 STATE VS ALOK CHOUDHARY 6 of 36 from mobile of her daughter but she does not remember the mobile number of her daughter. She has admitted that she made a call at 100 number from her mobile number 9650514774. At that time, she was cooking food in house No. 840, Mukherjee Nagar. At that time, student were present in that house.
23. She has further deposed that she cooked the food for accused for 15 days, as his cook had gone to native village. She has admitted that she cooked the food for accused on the asking of Athar Alam. She had been knowing Athar Alam, for a period of four years, prior to the incident. She has denied that she did not make the call at 100 number and the call was made by Athar Alam. She was using the the mobile number 9910800682 at that time. She has denied that the number 9910800682 belongs to Athar Alam. She does not remember the mobile number of her brother Vishal. She does not know as to whom the mobile number i.e, 7042771971 belongs. She has denied that the mobile number i.e, 7042771971 belongs to her brother Vishal. She does not remember as to how many papers were signed by her in the PS. She has denied that she along with her brothers snatched the mobile phone, laptop, one gold chain and Rs.9,500/ from accused Alok Chaudhary. She has volunteered that before the coming of the PCR Van, accused Alok Chaudhary had called Sunil Pandey and handed over his laptop and mobile to him. She has denied that Vishal is working at Fitcity Gym. She has further denied that she along with her daughter and Athar Alam had concocted a story and falsely implicated the accused just to grab the gym of STATE VS ALOK CHOUDHARY 7 of 36 accused. She has further denied that no such incident of rape had happened with her daughter and she conspired with Athar Alam to falsely implicate the accused in order to grab his gym.
24. PW13 is the Prosecutrix. She has deposed that she alongwith her mother, three sisters and two brothers has been residing at Jhuggi No. 146, Munshi Ram Colony, Mukherjee Nagar. She used to take training from the Beauty Parlour of Poonam at Batra Cinema, Mukherjee Nagar. Her mother alongwith Alok Choudhary and Athar Alam had opened the Jim at Mukherjee Nagar on 23.11.2014. She alongwith her family attended the opening ceremony of Jim, where Alok Choudhary and Alam met her. Alok Choudhary gave his mobile number to her and she started talking with him. Alok Choudhary asked her to meet at Park, as he wanted to talk with her urgently. Alok Choudhary came to the parlour in a car and asked her to accompany him. Alok Choudhary, firstly, took her in a park, from where he took her to his room at Mukherjee Nagar. He told her that he liked her and wanted to marry her. Thereafter, accused, present in court, tried to commit sex with her forcefully and told her that he would marry her, after consulting her mother.
25. She has further deposed that after one week, accused again came to her parlour in a car and asked her telephonically to come out the parlour. He again took her to his room and tried "jor jabardasti" and committed sex with her. Thereafter, she came back to her house.
26. She has further deposed that on 15.12.2014 in the noon time, accused came in the parlour and took her to his room and committed sex with her forcibly. She told him that he had to talk to her mother regarding STATE VS ALOK CHOUDHARY 8 of 36 their marriage and sexual intercourse was not good before the marriage. Accused committed rape upon her several times, but she cannot tell the exact dates and month.
27. She has further deposed that since the talks regarding her marriage were going on in her house, she went to room of accused and asked him for the marriage but accused flatly refused for the marriage. He stated that she was not fit for the marriage and he was playing with her. He also stated to her that she was not known to him and he could do anything with her and her family members. He prepared her video film and stated that he would download the same on the Internet. Accused used to establish physical relations with her forcibly and whenever she refused, he used to threat that if she did not obey his order, he would upload her video on net.
28. She has further deposed that after 23 days, she went to the room of accused and asked him to talk with her mother for marriage. She also requested him to delete all the pictures from laptop and mobile. Thereafter, accused forcibly tried to establish physical relations with her. She made a call to her mother on her mobile phone. Her mother came there but accused did not allow her to open the door. She (the prosecutrix) forcibly opened the door and her mother came in the room. She told the facts to her mother that accused established physical relations with her after threatening her. The accused caught hold the hand of her mother and twisted (Maroda) it. She (her mother) made a call on 100 number. PCR came. Accused made a call to Sunil Pandey, who came there, before reaching the PCR and accused handed over the laptop and mobile phone to Sunil Pandey, who ran away from there.
STATE VS ALOK CHOUDHARY 9 of 36
29. She has further deposed that her maternal uncle (Mama) also reached there. PCR took her maternal uncle and accused to the police station. She told the incident to police. Police recorded her statement.
30. When the statement dated 19.04.2015 Ex.PW12/A was shown to the prosecutrix, she did not recognize her statement, but identified her signatures at point X.
31. She has further deposed that police took her to BJRM Hospital, but no doctor was available on that day. Thereafter, she was referred to Hindu Rao Hospital, where she was medically examined. Her undergarments were seized by the doctor. Thereafter she alongwith her mother came back to her home.
32. She has further deposed that 23 days, thereafter, she went to the police station, from where she was taken to Rohini Court. Thereafter, she was sent to Observation Home. On the next date, she was produced before ld. MM in Rohini Court, where her statement Ex.PW9/B was recorded. Except her clothes, nothing was seized by the IO in her presence. Her statement was recorded by the IO.
33. In crossexamination by ld. Addl. PP, she has admitted that she pointed out the place of occurrence and site plan, Ex.PW13/A was prepared by the police at her instance. She has further admitted that bedsheet was seized from the room, by the IO, vide seizure memo Ex.PW13/B.
34. PW13 has identified her clothes i.e. legging, one lady's shirt, one underwear and one brassier as Ex.P1 (collectively) and deposed that her STATE VS ALOK CHOUDHARY 10 of 36 clothes were seized by the doctor at the time of her medical examination. However, she did not identify the bedsheet by deposing that the bed sheet was not seized by the police in her presence and other bedsheets were seized.
35. In crossexamination by ld. Counsel for accused, PW13 has deposed that her mother is doing the job of cooking food for the students in PG Hostels. She does not know as to whether her mother cooked food for the accused. She has been knowing Attar Alam for the last 45 years, as he was friend of her eldest maternal uncle (Vishal). Athar Alam used to visit her house alongwith her maternal uncle (Mama). She cannot tell the house number, where the gym was situated. She cannot tell the date, when the said Gym was started. The said Gym was in the tenanted premises, owned by one Sardarji. She has volunteered that she has no concern with the said Gym. She does not know the house number, where she was learning the course of beautician. She cannot tell the number of the mobile phone, she was carrying at the time of incident. She also cannot tell the mobile phone number of her mother, which she was using at the time of incident. She has denied that her mother had snatched the laptop, chain and Rs.9,500/ from accused. She does not remember the date, when accused took her to his room, from beauty parlour, but he used to take her to his room in noon time. She has denied that Athar Alam made a call to the police from his mobile phone. She has further denied that her mother used to cook food for accused or that she never visited the room of the accused. She cannot tell the house number in which accused was residing, STATE VS ALOK CHOUDHARY 11 of 36 but the same was situated near Shiv Mandir. She has denied that she alongwith her mother and Athar Alam concocted the story and falsely implicated the accused just to grab his gym. She can sign only in Hindi. She has denied that she came to know the accused through Athar Alam but has volunteered that she came to know about the accused at the time of inauguration of gym. She has further denied that she concealed her actual age, at the instance of Athar Alam, in order to falsely implicate the accused. She has further denied that the mobile phone number 9910800682 is in the name of Athar Alam. She has volunteered that the said mobile phone pertains to her mother. She has further denied that Athar Alam made a call on 100 number. She has further denied that accused never took her to his room and she concocted the false story at the instance of Athar Alam just to falsely implicate the accused in the present case. She has further denied that she lodged the false case against accused and no such incident of rape had occurred or that she alongwith Athar Alam and her mother falsely implicated accused, just to grab his gym.
36. PW14 is W/Ct. Neelam. She has deposed that on 19.04.2015, she alongwith W/SI Mithlesh went to the spot i.e. H.No.1131, Mukherjee Nagar, where prosecutrix and her mother met them. They took the prosecutrix to BJRM Hospital but no doctor was available in the hospital and therefore, they took the prosecutrix to Hindu Rao Hospital. IO recorded the statement of the prosecutrix and prepared the rukka and handed over the same to her for registration of the FIR. After getting the FIR registered, she came back at the spot and handed over the copy of FIR and original rukka to the IO. IO took into possession the bedsheet, whereon the occurrence STATE VS ALOK CHOUDHARY 12 of 36 had taken place. The bedsheet was seized vide seizure memo, Ex.PW13/A, which bears her signature at point B. Thereafter, accused was taken to the BJRM Hospital by Ct. Om Prakash for his medical examination.
37. She has further deposed that after medical examination of the prosecutrix, the doctor handed over sealed parcels and sample seal to the IO, which were seized by her vide seizure memo, Ex.PW14/A. She has identified the bedsheet as Ex.P2 by deposing that the same was seized by IO from the room of accused.
38. In crossexamination by ld. Counsel for accused, PW14 has deposed that she did not go through the DD No.18A and on the asking of the IO, she went to the spot. She does not remember the address of the spot, but it was in the jurisdiction of PS Mukherjee Nagar. She was present in the room alongwith prosecutrix, therefore, she cannot say as to whether IO made inquiry from the residents of the adjoining rooms. IO recorded the statement of the prosecutrix at spot. She took the Tehrir to PS from Bara Hindu Rao Hospital. IO did not prepare any document except rukka in her presence.
39. PW15 is ASI S.R. Sanjay. He has deposed that on 19.04.2015 at about 10:45 a.m., he received information from wireless operator that a rape was committed upon a lady at H.No.1231, Mukherjee Nagar, Shiv Mandir. He reduced that said information vide Daily Diary No.18A, the attested copy of which is Ex.PW11/A. He handed over the DD No.18A to SI Bhagat Singh, who alongwith W/SI Mithlesh and W/Ct. Neelam left for spot.
STATE VS ALOK CHOUDHARY 13 of 36
40. PW16 is HC Om Prakash. He has deposed that on 19.04.2015 at about 10:45 a.m. on the receipt of DD No.18A, he alongwith SI Bhagat Singh went to the spot, but he does not remember the address of the spot. The prosecutrix, her mother and accused were present there. The prosecutrix told about the committal of rape. SI Bhagat Singh informed the duty officer. After 1015 minutes W/SI Mithlesh came at the spot alongwith W/Ct. Neelam and took the victim to hospital. Custody of the accused was handed over to him. After 1½ hour, IO came back at the spot alongwith prosecutrix and W/Ct. Neelam. Thereafter, he took the accused to the BJRM Hospital for medical examination. After medical examination doctor handed over sealed pullandas and sample seal to him, which were handed over by him to the IO, who took the same into possession vide seizure memo, Ex.PW16/A. Accused was arrested vide arrest memo Ex.PW16/B. His statement was recorded by the IO and accused was taken into custody.
41. In crossexamination by ld. Counsel for accused, he has admitted that there were many rooms, adjacent to the room of the accused and SI Bhagat Singh made inquiry from them but he does not remember as to whether IO noted down the names of those persons. IO SI Mithlesh did not make any inquiry from the landlord and other tenants in his presence. IO prepared the site plan in his presence. IO seized the bedsheet and took the same into possession, but he does not remember the initial on the same. He has admitted that seizure memo Ex.PW16/A (blood sample and undergarments of accused) belongs to case FIR No.433/15. He has STATE VS ALOK CHOUDHARY 14 of 36 further admitted that Ex.PW12/B (arrest memo of accused) bears his signature at point B, but no FIR number has been mentioned on the memo. He has denied that he did not join the investigation and his signatures were obtained in the police station by the IO.
42. PW17 is Ct. Sanjay. He has deposed that on 03.05.2015 on the instructions of the IO, he went to the District Chhapra for collecting the documents of the prosecutrix. He met the Head Master of Madhya Vidyalaya, Pachbhinda, Village Niwari, PS - Taraiya and made inquiry but no record regarding the admission of the prosecutrix was found. The Head Master, Sushil Kumar Paswan, gave in writing that no record of the prosecutrix was available, as she was never admitted in the school. The letter of the Head Master is Ex.PW17/A.
43. PW18 is HC Bijender Singh. He has deposed that on 19.04.2015, he alongwith Ct. Om Prakash went to the hospital and got conducted the medical examination of accused. After medical examination the doctor handed over sealed parcels and seal of hospital to Ct. Om Prakash, who handed over the same to IO W/SI Mithlesh.
44. In crossexamination by ld. Counsel for accused, he has denied that he did not take the accused to BJRM Hospital alongwith Ct. Om Prakash and Ct. Narender got examined the accused in the hospital. When the MLC of accused, Ex.PW18/DA bearing the name of Ct. Narender, was shown to PW18, he has denied that he deposed falsely at the instance of IO. He has further denied that he never jointed the investigation and no proceedings were conducted in his presence and all memos and documents were prepared while sitting in the PS. STATE VS ALOK CHOUDHARY 15 of 36
45. PW19 is IO W/SI Mithlesh. She has deposed that on receipt of DD No.18A, Ex.PW11/A, she alongwith W/Ct. Neelam went to H.No.1131, Mukherjee Nagar, where prosecutrix and her mother met her. She recorded the statement of the prosecutrix, which is Ex.PW12/A. Accused Alok Choudhary was also present there. She called Ct. Om Prakash at the spot and the custody of the accused was handed over to him. Thereafter, she alongwith prosecutrix and her mother went to BJRM Hospital and got conducted the medical examination of the prosecutrix. After medical examination doctor handed over one sealed parcel and sample seal, which were taken into possession by her vide seizure memo Ex.PW14/A. She made an endorsement on the rukka, which is Ex.PW19/A and handed over the same to W/Ct. Neelam for registration of FIR. She prepared the site plan Ex.PW13/A. In the meanwhile, W/Ct. Neelam came back and handed over the original rukka and copy of FIR to her. She took the accused to the BJRM Hospital and got conducted his medical examination. Doctor handed over two sealed parcels and one sample seal, which were taken into possession vide seizure memo Ex.PW16/A. Accused was arrested vide arrest memo Ex.PW12/B. Personal search of accused was conducted vide memo Ex.PW19/B. Thereafter, they came back to the police station and case properties were deposited in the malkhana. Accused was put behind the lock up.
46. She has further deposed that on 20.04.2015, she got conducted the Potency Test of accused. She also got recorded statement of prosecutrix under section 164 Cr.P.C., vide her application Ex.PW19/C. On her instructions, MHC(M) handed over the exhibits to her and Ct. Jasbir. She STATE VS ALOK CHOUDHARY 16 of 36 alongwith Ct. Jasbir went to the FSL and deposited the exhibits there. Ct. Jasbir obtained the acknowledgment receipt and handed over the same to MHC(M). She tried to collect the age proof of the prosecutrix, but no documentary proof was obtained by her and, therefore, she got conducted the Ossification Test of the prosecutrix. After completion of the investigation, she filed the chargesheet.
47. In crossexamination by ld. Counsel for accused, she has admitted that the house mentioned in the DD No.18A Ex.PW11/A is 1231, Shiv Mandir, Mukherjee Nagar. She has further admitted that information regarding DD No.18A was given by mobile number 9910800682. She did not make any inquiry regarding the ownership of said mobile number and about the SIM and, therefore, she can not tell as to whether the said mobile belonged to Athar Alam, who used to reside at H.No.828, Mukherjee Nagar. She does not remember as to who accompanied her to spot, after receiving the DD No.18A. She received the call from PS Mukherjee Nagar with regard to DD No.45B and duty officer informed her that the information regarding committal of rape was repeated. She has further admitted that she did not make inquiry about mobile number 7042771971 by which the information regarding DD No.45B was given and, therefore, she cannot say as to whether the said SIM belongs to one Vishal. She has further admitted that there were two partners of Fitcity Gym, but she cannot say as to whether Athar Alam was the partner.
48. She has further admitted that site plan Ex.PW13/A does STATE VS ALOK CHOUDHARY 17 of 36 not bear FIR number. She has further admitted that seizure memos Ex.PW14/A, Ex.PW13/B and Ex.PW16/A bear the FIR number 433/15 but has volunteered that she has mentioned the said FIR number, inadvertently. She has further admitted that the arrest memo Ex.PW12/B and personal search memo Ex.PW19/B were not bearing the FIR number at the time of supplying the copy of chargesheet to accused. She does not remember if she collected the CDRs and CAF of Mobile numbers 9650514774 and 9958339687 of the prosecutrix. She has further denied that after receiving the DD No.18A, she did not visit the spot and complainant was produced in the police station and at that time the mother of the prosecutrix was present alongwith Advocates. She has denied that she has falsely implicated the accused under the pressure of Advocates. She has further deposed that she made inquiry from the mother of the prosecutrix, regarding the age of prosecutrix and mother of prosecutrix told her that her daughter had studied at her native village. She has further admitted that she had sent the constable to collect the age proof of the prosecutrix from her first attended school i.e. Madhya Vidyalaya, Panchbindha, Nirari, District - Chhapra, Bihar, vide her notice u/s. 91 Cr.P.C., Ex.PW19/DA. She has admitted that she did not collect the CDR, CAF and Location Chart of the mobile phones of the prosecutrix and accused but again said that she collected the CDR, CAF and Location Chart of mobile phones No.995833968, 9958968474 and 8470001732. But, when the CDR of the said mobile phones were shown to her, she deposed that there was no name and address of the subscriber on the CDRS. She has admitted that she did not verify as to whether accused used to talk with STATE VS ALOK CHOUDHARY 18 of 36 prosecutrix. She has admitted that accused is the owner of Fitcity Gym situated at Mukherjee Nagar. She cannot say if Athar Alam, the partner of accused got registered the present case, in conspiracy with prosecutrix and her mother in order to grab the gym of the accused. She does not remember if accused made a complaint in that regard from Jail.
49. She has admitted that she made inquiry regarding DD No.68B dated 22.12.2016, DD No.44B dated 08.01.2017 and prepared her report Ex.PW19/DC. She has denied that she did not conduct the fair and proper investigation and accused was falsely implicated in this case.
50. Statement of accused u/s. 313 Cr.P.C., has been recorded separately, wherein he has denied allegations of the prosecution. He has stated that he is innocent and has been falsely implicated in this case. He alongwith Athar Alam opened the Fitycity Gym, in house No.289, Ground Floor, Mukherjee Nagar on a monthly rent of Rs.1 lakh and said premises was owned by one Manjeet Singh. He invested all the money and purchased all the equipments of the gym. Athar Alam had promised that he would not take his share of profit, unless the amount invested by him was not paid to him. The gym was opened on 23.11.2014. After 23 months, thereafter, Athar Alam started demanding his share of profit. He asked Athar Alam that since he did not pay his share of investment, as to why he was demanding his share of profit. Due to said reason, a quarrel took place between him and Athar Alam. He has also stated that Athar Alam was already present in his room. Thereafter, PW12, PW13 and other relatives forcibly entered his room. Athar Alam asked him that he STATE VS ALOK CHOUDHARY 19 of 36 had to take money from him. Thereafter, Athar Alam told the mother of prosecutrix that they had already planned and she should call the police Thereafter, the mother of the prosecutrix made a call on 100 number from the mobile phone of Athar Alam. The brother of PW12 snatched his mobile phone, laptop, gold chain and Rs.9500/. In pursuance of the conspiracy between prosecutrix, her mother and maternal uncle, a false case has been registered against him. Athar Alam occupied the gym, when he was falsely arrested in the case and he (Athar Alam) is obtaining all the earnings of the gym.
51. Accused has preferred not to lead any evidence in his defence.
52. I have heard arguments from ld. Counsel for accused, who has prayed for acquittal of accused by submitting that as per MLC no rape was committed upon the prosecutrix. FSL result is also in favour of the accused. The site plan, arrest memo and personal search memo of accused do not bear the FIR number. The wrong FIR number has been mentioned on the memos /documents prepared by the IO. There are contradictions in the testimony of the Pws. The prosecutrix is relative of Athar Alam, who wanted to grab the gym of accused, without paying his share of investment in the Gym.
53. On the other hand, ld. Addl. PP has submitted that the prosecutrix and other material witnesses have supported the prosecution story. There is sufficient material on record to convict the accused.
54. It is settled law that accused can be convicted on the sole STATE VS ALOK CHOUDHARY 20 of 36 testimony of the prosecutrix provided her testimony is trustworthy and reliable.
55. In Abbas Ahmad Choudhary Vs. State of Assam I (2010) CCR 402(SC), it has been observed that in a matter of rape, the statement of the prosecutrix must be given prime consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and statement of prosecutrix cannot be treated as gospel truth. The Apex Court has held as under: "We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
56. It was also observed by our own Hon'ble High Court in Crl.A.1059/2015 & Crl.M.B.7901/2015 decided on 28.07.2016 as under: "Appellant's conviction is primarily based upon the sole testimony of the prosecutrix 'X' which has not been corroborated by any other independent source. Needless to say conviction can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case, the court has reasons not to accept the STATE VS ALOK CHOUDHARY 21 of 36 version of the prosecutrix on its face value, it may look for consideration."
57. It was further observed that: "It is significant to note that Evidence Act, 1972 does not provide that any particular number of witnesses should be examined in proof of any fact. A conviction can be based on the solitary testimony of a single witness provided that the witness is believed by the Court".
58. In 1980 Rajdhani Law Reporter 126 (133) it was held that: "in arriving at the conclusion of guilt upon testimony of a single witness the evidence is bound to be honest and trustworthy and does not suffer from infirmities.
59. In Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr, 2006 (1)) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of prosecutrix, if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony, when the entire case is improbable and unlikely to have happened. This what has been stated: "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or that whole surrounding circumstances are highly improbable and belie the case set up by the STATE VS ALOK CHOUDHARY 22 of 36 prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
60. In the present case, after going through the testimony of prosecutrix, I am of the considered view that her testimony is not trust worthy and reliable and does not inspire confidence.
61. In the present case, the prosecutrix has stated in her complaint to police Ex.PW12/A that accused made physical relations with her for first time on the pretext of marriage, when he had taken her to his room. But in her testimony recorded on 30.07.2016, she has deposed that after the attending the inauguration of the Gym on 23.11.2014, accused gave his mobile number to her. She started talking with accused. Accused asked her to meet him at the park, as he wanted to talk to her urgently. He came to her parlour and took her to a park, from where he took her to his house. He stated to her that he liked her and wanted to marry her. Thereafter, he tried to commit sex with her by telling that he would marry her after consulting with her mother. In other words, no rape was committed upon her and accused only tried to commit sex upon her.
62. She has further deposed that after one week, thereafter, he again took her to his house and committed sex with her. On 15.12.2014 also accused took her to his room and committed sex with STATE VS ALOK CHOUDHARY 23 of 36 her. But no such facts have been stated by her in her complaint Ex.PW12/A.
63. Further, in her complaint Ex.PW12/A she has stated that on 19.04.2015 she was called by accused to his room, where he committed galat kaam against her will and from the room of accused she called her mother by making a phone call. In other words, on 19.04.2015, Galat Kaam was committed upon her by accused against her will and she called her mother to the room of accused.
64. But, in her testimony recorded on 30.07.2016 and on 30.09.2016 she has deposed that since the talks of her marriage were going on in her house, she went to the room of accused and asked him for marriage, but accused refused to marry with her by saying that she was not fit for marriage and he was playing with her. He had prepared her video. He used to call to his room and establish the physical relation with her and whenever she refused, he used to threat her that she if she did not obey his order he would upload the video on net. She has further deposed that two/three days thereafter, she again went to home of accused and asked him for marriage. She also requested him to delete the pictures and videos from his laptop and mobile phone. Thereafter, accused tried to establish physical relations with her. She made a call to her mother, who came there. In other words, on that day when prosecutrix called her mother from the room of accused, he (the accused) only tried to establish physical relation with her and did not commit rape upon her.
STATE VS ALOK CHOUDHARY 24 of 36
65. It is worth noting that the mother of the prosecutrix i.e. PW12 has also nowhere stated that her daughter told her that accused has committed rape upon her. She (PW12) has only deposed that her daughter told her that accused had prepared her video and uploaded the same in his laptop.
66. Further, PW13 (the prosecutrix) has deposed that accused used to take her to his room and maintain the physical relation with her forcibly but in crossexamination by ld. Counsel for accused she could not tell even the house number of the accused, where he was residing.
67. Moreover, as per the testimony of Dr. Samvedna (Gynae) (PW10), no injury was found over the genital area of the prosecutrix, as per the MLC Ex.PW10/A. It is significant to note that PW10 has clearly deposed that as per the MLC Ex.PW10/A no symptom of rape were present on the body of the patient and finding in that regard could be given after the preparation of FSL result. It is also noteworthy that as per MLC Ex.PW10/A the prosecutrix had not changed her inner clothes and did not pass urine and did not take sponge bath after the episode.
68. It is note worthy that as per the FSL result, Ex.PW8/A prepared by PW8 Dr. Suminder Kaur, semen was not detected on the legging, lady shirt, underwear and brassier of the prosecutrix and the bedsheet, on which rape was alleged to have been committed by the accused.
69. Further, as per DNA result, no male DNA Profile could be generated from the source of exhibit lj (cotton wool swab), iki (cotton STATE VS ALOK CHOUDHARY 25 of 36 wool swab) and ik2 (micro slides), hence, no comparison could be drawn with the DNA Profile of Ex.P4 (blood sample on gauze piece of accused Alok).
70. Further, the prosecutrix (PW13) did not depose about the recovery of the bedsheet and categorically deposed that nothing except her clothes, was seized by the IO in her presence. But, in her cross examination by ld. Addl. PP, she has admitted that bedsheet was seized by the IO from the room and the seizure memo Ex.PW13/B bears her signature at point A. But, when the bedsheet was shown to her, she (the prosecutrix) did not identify the bedsheet by saying that the said bedsheet was not seized by the police in her presence and other bedsheets were seized.
71 I am of the considered view that the testimony of PW13 in this regard cannot be relied upon.
72 It is significant to note that PW14 W/Ct. Neelam who had accompanied the IO W/SI Mithlesh Yadav on 19.04.2015 has categorically deposed that IO had taken into possession the bedsheet upon which the occurrence had taken place. Now, a perusal of the seizure memo Ex.PW13/B shows that the bedsheet was seized by the IO on 19.04.2015 in the presence of W/Ct. Neelam (PW14) and the prosecutrix has also signed the seizure memo at point A. It is further significant to note that it is not the case of prosecutrix that IO obtained her signatures on the seizure memo.
73. Further, PW13/prosecutrix has not even recognized her STATE VS ALOK CHOUDHARY 26 of 36 statement Ex.PW12/A, on the basis of which the present FIR has been registered. She has only identified her signatures at point X on the said statement. Since, no explanation has been furnished by the prosecutrix in this regard, the possibility of lodging the false case by prosecutrix cannot be ruled out.
74. Further, the testimony of PW13/prosecutrix that her mother was a partner in the Gym also does not seem trustworthy.
75. PW13/prosecutrix has deposed that her mother alongwith accused and Athar Alam had opened the Gym at Mukherjee Nagar. But the mother of the prosecutrix (PW12) Indu Devi has nowhere stated that she was a partner in the Fitcity Gym, which was opened by accused Alok Choudhary and Athar Alam. PW12 has categorically deposed that she used to cook food for the students, who were staying as Paying Guest in the hostels. It is significant to note that PW13 has also deposed that her mother was doing the job of cooking food for student in PG Hostel. Further, IO W/SI Mithlesh (PW19) has admitted in her cross examination that there were two partners in the Fitcity Gym. She has further admitted that accused is the owner of Fitcity Gym.
76. It is noteworthy that during pendency of the trial, the prosecutrix moved an application for cancellation of bail of accused. Alongwith the application, she enclosed two DDs No.68B dated 22.12.2016 and DD No.38B dated 25.12.2017. At the time of hearing arguments on the said application, ld. Counsel for complainant placed on record the other DD No.44B dated 08.01.2017. It is significant to note STATE VS ALOK CHOUDHARY 27 of 36 that all the three DDs lodged by the victim and her counsel were verified and it was reported by the IO that no threat was ever given by the accused to victim/ prosecutrix.
77. Further, in the reply submitted by accused to the application, he (accused) also enclosed DD No.59B dated 22.12.2016, which was lodged by him against the prosecutrix, her mother and maternal uncle, wherein he had requested the SHO, PS - Mukherjee Nagar to lodge the complainant against Athar Alam, Vishal, (Mama of the prosecutrix) and the mother of the prosecutrix for conspiring and lodging the false complaint against him in order to grab the Fitcity Gym.
78. It is significant to note that it an admitted case of the prosecutrix (PW13) that she can sign only in Hindi language, as deposed by her in her crossexamination recorded on 06.07.2017. But a perusal of the DD No.68B dated 22.12.2016 and DD No.44B dated 08.01.2017 shows that both DDs are signed by the prosecutrix in English. It is noteworthy that no explanation was furnished by prosecutrix in that regard.
79. Further, the statement of Manjeet Singh, the owner of the premises, in which the said Gym was opened by the accused was also recorded during the pendency of application for cancellation of bail of accused, wherein he clearly stated that he had given the ground floor of his house to accused to run a gym in the name and style 'Funcity Gym' on a monthly rent of Rs.1 lakh. He has further stated that accused had given the rent to him till March 2015 and after March the rent was given STATE VS ALOK CHOUDHARY 28 of 36 to him by Athar Alam upto August 2016. Thereafter, the rent was not paid. He asked Athar Alam to clear the rent otherwise to vacate the premises. Till today the Gym is on rent.
80. Since, no action was taken by police against accused on the DDs lodged by the complainant and her counsel, the application moved by the prosecutrix for cancellation of bail of accused was dismissed, as very cogent and overwhelming circumstances are necessary for cancellation of bail of accused as per the Judgment of Hon'ble Supreme Court in Bhagirath Singh Judeja VS State AIR 1984 SC 372.
81. Further, there are certain material infirmities in the prosecution case.
82. From the testimony of the PW8, it is not clear, as to who opened the door of the room of the accused after commission of alleged rape by him.
83. PW13/the prosecutrix has deposed that her mother came to the room of the accused but accused did not allow her to open the door. She (the prosecutrix) forcibly opened the door and her mother came in the room and she told all the facts to her. In other words, the door of the room of the accused was opened by the prosecutrix. But, PW12 Smt. Indu Devi, who is the mother of the prosecutrix has deposed that on 19.04.2015, she received telephonic call from her daughter. After receipt of the same, she went to the room of the accused and found that the door of the room was bolted from inside. She started knocking the door. After ten minutes, the door was opened by accused Alok Choudhary. In other STATE VS ALOK CHOUDHARY 29 of 36 words, the door was opened by accused and not by the prosecutrix.
84. Further, as per the testimony of PW15 ASI S.R. Sanjay, he received an information through wireless operator on 19.04.2015 at about 10:40 a.m., that rape was committed upon a lady at H.No.A1231, Mukherjee Nagar. He recorded that information vide DD No.18A and handed over the same to SI Bhagat Singh to take necessary action, who alongwith W/SI Mithlesh and W/Ct. Neelam left for the spot. SI Bhagat Singh, who has been examined as PW11 has also deposed that on receipt of DD No.18A Ex.PW11/A he alongwith W/SI Mithlesh and W/Ct. Neelam went to spot i.e. H.No.1231, Mukherjee Nagar. The prosecutrix met them and W/SI Mithlesh made an inquiry and recorded her statement. But in his crossexamination by ld. Counsel for accused, PW11 has deposed that the prosecutrix alongwith her mother met him in front of their house. He did not enter the house. It is significant to note that H.No.1231, Mukherjee Nagar neither belongs to accused nor to the prosecutrix and her mother, as accused is resident of House No.1131, Mukherjee Nagar and the prosecutrix and her mother are residents of Jhuggi No.146, Munsi Ram Colony, Mukherjee Nagar.
85. But, PW19 W/SI Mithlesh, IO of the case deposed differently in this regard. She has deposed that on receipt of DD No.18A Ex.PW11/A, she alongwith W/Ct. Neelam went to the spot i.e. H.No.1131, Mukherjee Nagar, where prosecutrix and her mother met them. She recorded the statement of the prosecutrix which is Ex.PW12/A. Accused Alok Choudhary was also present there. In other STATE VS ALOK CHOUDHARY 30 of 36 words, as per testimony of PW19 W/SI Mithlesh, she went to the H.No.1131, Mukherjee Nagar, where prosecutrix, her mother and accused were present.
86. It is significant to note that in her crossexamination by ld. Counsel for accused, PW19 has admitted that as per DD No.18A, Ex.PW11/A, the house was 1231, Shiv Mandir, Mukherjee Nagar. But, no explanation has been furnished by IO, as to why she did not visit house No.1231, Mukherjee Nagar, when the DD Ex.PW11/A was pertaining to that house. Moreover, IO has gone to the extent and deposed that she does not remember as to who had accompanied her to the spot after receipt of DD No.18A. Thus, from the testimony of Pws it is not clear as to where the alleged offences were committed by the accused.
87. Further, from the testimony of PWs, it is not clear as to how many police officials went to the spot on receipt of DD No.18A.
88. PW16 HC Om Prakash has deposed that on 19.04.2015 at about 10:45 a.m., SI Bhagat Singh received DD No.18A. He alongwith SI Bhagat Singh went to the spot but he does not remember the address of the spot. The prosecutrix, her mother and accused met them. Prosecutrix told about committal of rape upon her. SI Bhagat Singh informed the duty officer and after 1015 minutes IO W/SI Mithlesh came at the spot alongwith W/Ct. Neelam. In other words, as per testimony of PW16 HC Om Prakash, he alongwith SI Bhagat STATE VS ALOK CHOUDHARY 31 of 36 Singh visited the spot. But, PW11, SI Bhagat Singh has nowhere stated so.
89. However, PW19, W/SI Mithlesh, IO of the case has deposed differently. She has deposed that on receipt of DD No.18A Ex.PW11/A, she went to the spot alongwith W/Ct. Neelam, where prosecutrix and her mother met them. She has nowhere deposed that SI Bhagat Singh and HC Om Prakash accompanied her. She recorded her statement. Thereafter, she called HC Om Prakash at the spot. The custody of the accused Alok Choudhary was handed over to him. In other words, as per the testimony of PW19 W/SI Mithlesh, HC Om Prakash did not visit the spot alongwith SI Bhagat Singh and she herself called PW16 HC Om Prakash for handing over the custody of accused.
90. Further, from the testimony of PW12, Smt. Indu Devi, it is not clear that as to which mobile number she was possessing when she received the call from the prosecutrix
91. It is significant to note that PW12 has deposed in her cross examination that she received a call on her mobile phone number 9650514774 from the mobile of her daughter, the number of which she does not remember. She made a call on 100 number from her mobile number. In other words, the call to police was made by PW12 by mobile number 9650514774. But at the same time, PW12 has deposed that she was using the mobile phone 9910800682 at that time. She has denied that the mobile number 9910800682 belonged to Athar Alam. However, in her crossexamination she has admitted that she had been STATE VS ALOK CHOUDHARY 32 of 36 knowing Athar Alam for five years prior to the incident. She has denied that no incident of rape had happened with her daughter or that she conspired with Athar Alam to falsely implicate the accused just to grab the Gym of the accused. Further, PW13/prosecutrix has also admitted in her crossexamination that she had been knowing Athar Alam for the last 45 years, as he was friend of her eldest maternal uncle (Mama). Moreover, PW13 could not tell the number of her mobile phone, which she was carrying at the time of the incident as well as the number of the mobile phone of her mother, which she was using at the time of incident. She has categorically denied that the mobile number 9910800682 is in the name of Athar Alam or that Athar Alam made a PCR call through his mobile phone.
92. But, as per DD No.18A, Ex.PW11/A, the call was received by Ct. Sachin, No.1886, PCR from Mobile number 9910800682. Moreover, PW19 IO W/SI Mithlesh has also admitted in her cross examination by ld. Counsel for accused that the information regarding DD No.18A was sent through mobile number 9910800682. She did not make inquiry regarding that mobile number and, therefore, she cannot tell as to whether the said mobile phone belonged to Athar Alam.
93. In these circumstances, the defence taken by accused that the mother of prosecutrix made a call on 100 number from the mobile phone of Athar Alam, in order to falsely implicate accused, just to grab his gym, seems to be plausible.
94. Further, from the testimony of Pws it is not clear as to STATE VS ALOK CHOUDHARY 33 of 36 who took accused to the hospital for his medical examination.
95. PW16 HC Om Prakash has deposed that on 19.04.2015 he alongwith SI Bhagat Singh went to the spot on receipt of DD No.18A, where prosecutrix told them about committal of rape upon her. SI Bhagat Singh informed the duty officer and within 1015 minutes W/SI Mithlesh came at the spot alongwith W/Ct. Neelam and they took the victim to the hospital. He has further deposed that the custody of the accused was handed over to him. He has further deposed that after 1½ hours, W/SI Mithlesh came back alongwith prosecutrix and W/Ct. Neelam. Thereafter, he took the accused to the BJRM Hospital for his medical examination. After medical examination doctor handed over sealed pullandas and sample seal to him, which were handed over by him to IO. In crossexamination by ld. Counsel for accused, PW16 HC Om Prakash has denied that he did not join the investigation and IO obtained his signatures in the PS on the proceedings.
96. Further, PW18 HC Bijender Singh has also deposed that on 19.04.2015 he alongwith Ct. Om Prakash took the accused to BJRM Hospital for his medical examination. After medical examination doctor handed over sealed pullandas and sample seal to Ct. Om Prakash. They came back to the police station and HC Om Prakash handed over the sealed pullandas to the IO. In crossexamination by ld. Counsel for accused, PW18 has also denied that he and HC Om Prakash did not take the accused to the BJRM Hospital and Ct. Narender got medically examined the accused at hospital. In other words, as per testimony of STATE VS ALOK CHOUDHARY 34 of 36 PW16 & PW18 accused Alok Choudhary was taken to the hospital by them
97. But, as per the MLC of the accused, Ex.PW18/DA, accused was brought to the hospital by Ct. Narender No.2580, NW. It is significant to note that the MLC of the accused Ex.PW18/DA was also shown to PW18 by ld. Counsel for accused, wherein the name of the Ct. Narender was mentioned as the person, who brought the accused in the hospital for his medical examination, but despite that he did not furnish any explanation in that regard and categorically denied that he deposed falsely at the instance of the IO or that he never joined the investigation of this case or that the proceedings were not conducted in his presence and documents and memos were prepared while sitting in the police station.
98. In these circumstances, I am of the considered opinion that this is a serious infirmity in the prosecution case, which cannot be ignored.
99. Further, the site plan prepared by PW19, IO, W/SI Mithlesh does not bear the FIR Number.
100. Further, the seizure memo of the exhibits of the prosecutrix Ex.PW14/A and seizure memo of bedsheet Ex.PW13/B and seizure memo of blood sample and clothes of the accused Ex.PW13/B are bearing the wrong FIR number i.e. FIR No.433/15.
101. Moreover, PW19 IO W/SI Mithlesh has admitted in her crossexamination that the personal search memo of accused STATE VS ALOK CHOUDHARY 35 of 36 Ex.PW19/B was not bearing the FIR Number at the time of supplying the copies of chargesheet to accused.
102. In these facts, I am of the considered view that this is a serious lapse on the part of the IO, which cannot be ignored.
103. Since, the testimony of the prosecutrix is not trustworthy and there are serious infirmities in the prosecution case, I am of the considered view that prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt.
104. Accordingly, accused Alok Choudhary is acquitted of the offence, he was charged with. The personal bond and surety bond of accused are hereby cancelled. His surety is discharged.
105. However, in terms of Section 437 (A) Cr.PC, accused has furnished fresh personal bond in the sum of Rs.10,000/ with one surety of the like amount, which are accepted for a period of six months with the directions to appear before higher court, in the event, he receives any notice of appeal or petition against this judgment.
File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on this 23rd day of April, 2018 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
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