Delhi District Court
State vs . on 5 June, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.83/10
FIR NO. 237/08
U/S 376/506 IPC
PS Alipur
Unique Case ID No. : 02404R0009772008
State
Vs.
Pawan Kumar s/o Jai Bhagwan
r/o Village and PO Singhu, Nahar Wali Gali,
Delhi110040.
Date when committed to the court of Sessions :08.12.2008
Date when case reserved for judgment : 30.05.2012
Judgment pronounced on : 05.06.2012
JUDGMENT:
1. The case of the prosecution in brief is that ob 21.09.2008, ASI Dharambir Singh, after receiving DD No.34A with regard to a rape committed with the prosecutrix (name withheld for secrecy reasons), along with Ct. Kashmiri Lal reached the spot at Village Singhu, near hospital, at the rented premises of the prosecutrix (address not disclosed for secrecy reasons, as mentioned in the charge sheet) SC No.83/10 Page 1/19 where the prosecutrix met him, stated to be aged about 14 years and got recorded her statement.
2. As per statement of the prosecutrix, she was permanent resident of a Village at District Samastipur, Bihar and was residing at the said rented premises and was a household worker and that on 21.09.2008, at about 7 p.m, she had gone to fetch water from the hand pump installed in front of shop of accused Pawan Kumar and when she was coming back, suddenly accused came from behind, caught hold of her hand and dragged her inside the shop and when she was raising alarm, her mouth was gagged by him and thereafter the shutter of the shop was closed and she was made to lie on the ground and thereafter he opened the string of her salwar and committed rape upon her forcibly and threatened to kill her if the said incident was disclosed by her to anyone and thereafter she came back to her house and narrated the incident to her mother, who gave a phone call to the police and on the basis of the said statement, ASI Dharambir got registered the FIR.
3. During investigation, said ASI sent the said prosecutrix along with her mother to BJRM hospital for her medical examination and accused, in the custody of Ct. Kashmiri Lal, was also taken to the said hospital and thereafter the investigation was entrusted to W/ASI Raj Bala and the exhibits from the hospital given by the doctor were SC No.83/10 Page 2/19 seized, site plan was prepared and accused Pawan was sent to judicial custody and the prosecutrix was produced for bony age X ray and a date was fixed for the same but despite repeated visits of W/ASI Raj Bala at the premises of the prosecutrix, she could not be found and as such, bony age Xray could not be carried out and the charge sheet was filed and the FSL result was filed subsequently.
4. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 17.12.2008, framed charge against the accused u/s 376/506 IPC, to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, has produced as many as 11 witnesses, relevant of which have been discussed below.
6. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and examined Sh. Sandeep Kumar and Sh. Navin Kumar as DW1 and DW2 in his defence.
7. I have heard Ld. APP for the state, Sh. Mukesh Kalia, Advocate for the accused and perused the record.
8. PW1 is the prosecutrix, who proved her statement as narrated above, on the basis of which FIR was registered, as Ex.PW1/A and also proved the arrest memo of the accused as Ex.PW1/B and her SC No.83/10 Page 3/19 statement recorded u/s 164 Cr.PC as Ex.PW1/C and she identified her salwar as Ex.P1 and she deposed her age at the time of incident as 14 years and one year has lapsed at the time of deposition from the said incident. The facts mentioned in the said statement Ex.PW1/A were improved by her in her deposition before the court wherein she deposed that she had gone to fetch the water from the said hand pump as her younger sister was feeling thirsty and when she did not agree to lie down on the ground and started crying, the accused threatened her with knife and threatened her not to disclose anything to anyone and the accused closed the shutter from inside, which are certainly material improvements not mentioned in her previous statement Ex.PW1/A.
9. In her cross examination on behalf of the accused, she gave the names of her three sisters and two brothers and that her grand father was also residing with them and that she was the eldest child of her parents. She did not know as to how many days are there in a month or how many months are there in a year. She admitted that in the premises of her landlord there were other tenants who were residing there along with their families and family of her landlord was also residing in the said premises and the rate of rent was Rs.500/ per month. She knew that there were other family members of the accused living with him in the said village and name of the father of the accused was Jai Bagwan and accused had one SC No.83/10 Page 4/19 brother by the name of Kukkoo and she knew that family of accused had many shops in the market of Village Singhu and the said shops were adjacent to the shop where the incident had taken place and she knew that Village Singhu is in Delhi. She admitted that previously they were residing at Village Dera, Bankepur, District Sonepat, Haryana and they had come to Sonepat from Bihar first. She knew that her father was given a piece of land to reside at Sonepat by Gram Panchayat and name of the Sarpanch was Ami Lal, who gave the said piece of land to their family. She knew one Mahender Chauhan, who was Sarpanch of the said Village at Sonepat and said Mahender Chauhan made them to vacate the said piece of land after beating them. She admitted that her parents filed a case in a court of law against Mahender Chauhan for his said act. She knew that said Mahender Chauhan took a decision and announced in the Panchayat that whoever would give shelter to them, would be fined with Rs.500/. She admitted that the place from where they were dragged out by Mahender Chauhan was situated within the jurisdiction of PS Kundli. She knew Dhanraj, resident of said Village Sonepat as his father was working in her fields and said Dhanraj did not pay labour charges of Rs.2100/ to her father. She knew one Tejpal, resident of the said Village at Sonepat where they established a hut in his plot after they were removed from the said piece of land by the said Mahender Chauhan. She did not know any person by the name of SC No.83/10 Page 5/19 Karma, Kartar Sethi and Sodhi. She replied that her brother Suraj was residing with them at the said premises at Sonepat and that they had a long quarrel with Mahender Chauhan and others over the said piece of land. She knew that her mother had made a complaint on 18.05.2007 at PS Kundli against Mahender Chauhan and others. She did not know if her mother, at that time, had lodged a complaint against Mahender Chauhan, Rampal, Sethi and Karma for her (the prosecutrix) abduction and rape. She admitted that when the police of PS Kundli made inquiries from her regarding her abduction and rape, she denied her abduction and rape by the said persons before the police. She replied that thereafter the Panchayat assembled in which she along with her mother was called and in the said Panchayat, her mother had admitted that the real dispute was over the said piece of land and she named those persons for her rape and abduction mistakenly. She replied that the Panchayat directed them to go out of the said village and accordingly they left the village and that she along with her mother had put thumb marks on the decision of the Panchayat reduced to writing and thereafter accepting the same as correct, they voluntarily left the village and that her family gave the assurance to the Panchayat not to return to the said village again and they went to Village Singhu thereafter.
10. In her further cross examination on behalf of the accused, she admitted to have known one Sona, who was the lady teacher and SC No.83/10 Page 6/19 was resident of Village Bhera Bajipur, Sonepat, Haryana and they resided at a government school at Bhera Bajipur after the said incident at the said village. She further replied that said Mahender Chauhan was also the Sarpanch of the area where the said government school was situated. She did not know one Kuldeep, the son of Mahender Chauhan and that her mother may be knowing about him. She replied that she had filed a complaint against lady teacher Sona and others for her rape at PS Kundli about 2 or 2¼ years ago but she could not say as to whether it was on 09.02.2008. She further answered that prior to the said complaint of rape on the previous night at 10 p.m, she lodged a complaint at PS Kundli that said lady teacher Sona had come along with Kuldeep and they had pushed her mother and the said lady teacher gave beatings to her (the prosecutrix) and her mother. She answered that she had not stated in her said complaint that said lady teacher Sona along with Kuldeep had removed her towards fish pond and the said teacher remained sitting in the vehicle and Kuldeep made her to come out of the vehicle and after opening string of her salwar, he raped her. She further replied that she had not stated in the said complaint that both the said lady teacher and Kuldeep left her alone near the said pond and went away and she kept on weeping. She admitted that she had got lodged the said report at the instance and asking of her mother, against lady teacher Sona and Kuldeep. She further admitted that SC No.83/10 Page 7/19 her mother had directed her to tell the police of PS Kundli at that time about her rape by the said Kuldeep and accordingly, obeying her mother, she had narrated the said incident of her rape by Kuldeep in the said circumstances. She answered that she was taken to the hospital at Sonepat for her medical examination and after that she reported the said incident of rape by Kuldeep. She admitted that her mother was annoyed with the said lady teacher and Kuldeep as they were not supporting their claim of plot and for this reason her mother told her to lodge a complaint of rape against them and later on, she apologized to the said lady teacher and Kuldeep for lodging a false case of rape against them. She answered that her mother had told about the facts of lodging false complaint to the police of PS Kundli. She further answered that she herself had also informed the police of PS Kundli about lodging a false complaint against them.
11. In her further cross examination on behalf of the accused, she replied that she was born in Bihar and they came from Bihar about 20 years back. She did not know the date, month and year of her birth and similarly she could not tell the date, month or year or date of birth of any of her sisters and brothers and that she was the eldest amongst all her brothers and sisters. She is aware that the litigation with regard to plot at Kundli is still going on and that her mother used to go to Kundli. She admitted that near the shop in question of accused Pawan, there were other shops of grocery, general SC No.83/10 Page 8/19 merchants etc. and market where the shop of accused Pawan was situated, used to remain open till 9 or 9.30 p.m. and that in the shop of accused Pawan, his father and 4/5 employees used to work at that time and it was a shop/godown of cement where the cement was kept. She answered that the hand pump was at a long distance from the shop of accused Pawan and there were number of shops and houses situated in between the shop of accused Pawan and the hand pump in question and other villagers also used to take water from the said hand pump and that she had come to take water in a jug and other people came there to take water in glass at that time and were drinking water. She had also seen people taking water in small buckets at that time. She had seen the house of Kashmiri, which is adjacent to her rented premises and one hand pump was installed outside the house of Kashmiri and people also used to take water from the said hand pump.
12. In her further cross examination on behalf of accused, she replied that shop of accused Pawan, in question was at a long distance from the house in which she was residing at that time and it takes about one hour on foot to reach at the shop of accused Pawan from her said rented house. She further answered that when accused had come to the hand pump to take her to his shop, she first had gone to her house to leave the jug and then came at the shop of accused Pawan. She answered that she had not made any complaint SC No.83/10 Page 9/19 or raised alarm at that time, when accused Pawan had come and dragged her inside the shop. She did not make any complaint to the father of the accused and 4/5 said employees and nearby shopkeepers against accused Pawan at that time. She remained in the shop of accused Pawan for a considerable time for about 1½ hour and her clothes, at that time, got stained with cement lying on the floor. She had not raised any alarm or made complaint to anyone till the time she reached her home and that her mother was maintaining a mobile phone at that time. She further answered that there was a hospital by the name of Singhu Hospital near her house and there was a temple also near to the said hospital where people used to visit the hospital and the temple till late night. She further replied that from the shop of accused Pawan, she had first gone to the temple for worship after purchasing offerings and flowers before starting worship and the priest of the temple and other devotees were present at that time and she herself had done the worship and she remained in the temple for about 10/15 minutes and that her parents were also present in the temple at that time. She answered that from the temple, she along with her parents, had gone to Singhu hospital where she remained for 2/3 hours and her mother had also got herself medically examined in the said hospital. She further answered that she also used to wear clothes of her mother. She further replied that police met her at the PS and she was SC No.83/10 Page 10/19 accompanied by her father to the PS and police also came at her house in the night. She replied that her mother had told her as to what statement she had to make before the police and she narrated the incident to the police as she was told by her mother.
13. In her further cross examination, she admitted to have known one Somnath, resident of the said village, who was not on visiting terms with them. She knew one Sandeep s/o Jai Kishan, resident of the same village and one Naveen s/o Narain Singh, also the resident of the same village. She admitted that about few months before the incident, accused Pawan got annoyed and objected to the visit of Somnath at their house and that when Pawan was objecting to the visit of Somnath, at that time said Naveen Kumar and Sandeep, along with few neighbours had also gathered there and that her mother, at that time, had intervened and promised that Somnath would not come again to their house. She answered that said Somnath used to give money to her mother and he used to give Rs.100/ to her mother and he used to come to meet her mother. She admitted that at that time said Somnath had admitted in front of persons that he had come to meet her. She replied that accused Pawan had told them to leave the village as bad persons were coming to visit their house and accused Pawan had also said that they (the prosecutrix and her family) were indulging in bad acts, on which she herself and her mother felt insulted at the hands of SC No.83/10 Page 11/19 accused Pawan and that because of that incident, they (the prosecutrix) had to leave that village and that she and her mother developed a grudge against accused Pawan and decided to take revenge of the said incident by creating circumstances whereby the accused and his family could be insulted.
14. In the last portion of her cross examination on behalf of the accused, she admitted that in order to take revenge from accused Pawan, she had lodged this false complaint of rape against him at the instance and in connivance with her mother. She further replied that she had also apologized to accused Pawan for falsely implicating him in the present case. She answered that even on the date of deposition, her mother outside the court, told her to make statement against accused Pawan as her mother wanted punishment of accused Pawan on the basis of her false deposition. She admitted that no incident of rape, as deposed by her, had taken place and that she had earlier deposed falsely at the instance of her mother.
15. I have deliberately reproduced the said deposition of the prosecutrix which require no further inquiry with regard to its reliability in view of her categorical admission that it is a false case registered by her at the instance of her mother against the accused and she has admittedly got registered two false cases of rape against the said persons, as admitted by her.
SC No.83/10 Page 12/19
16. There are circumstances on the record from the said deposition from which it can be safely inferred that possibility of the prosecutrix being of major age cannot be ruled out. Admittedly, at PS Kundli for earlier alleged rape with her, it was the case of "abduction" and not of "kidnapping" registered at her complaint taking her to be a major. She admitted in her cross examination that her birth was at Bihar and they had come from Bihar to Sonepat and thereafter to Delhi about 20 years ago. She is the eldest child among six brothers and sisters of the family. She did not make herself available for her bony age determination despite repeated efforts of the IO and the said circumstance must be read in favour of the accused and against the prosecutrix. Thus, the possibility of the prosecutrix being of major age can safely be deduced from the said circumstances in view of the fact that no cogent or reliable evidence is on the record with regard to her age. Even the mother of the prosecutrix, who appeared as PW10, could not tell date, month and year of birth of any of her six children and she also could not tell about her date of birth although she was born at Bihar and was married in Bihar also. In these circumstances, even if it is taken for the sake of argument that a sexual intercourse had taken place with the prosecutrix, the circumstances narrated by her that she did not make complaint to anyone after the incident though the father of the accused and 4/5 employees were present at the time of incident at SC No.83/10 Page 13/19 the spot and there were other shopkeepers nearby, the circumstance that from the spot of alleged incident she had gone to the temple, prayed there and thereafter she visited to the hospital along with her parents and not narrating the incident to them and prior circumstance that before accused Pawan could take her to the shop where the alleged incident had taken place, she had gone to her house to keep the water jug in her hand and thereafter she herself had gone to the shop of accused, as alleged by her in her cross examination, speak of volumes of her consent and in these circumstances, it is sufficient to hold that accused is not guilty at all of any offence much less the offence charged against him.
17. Even otherwise, PW10, the mother of the prosecutrix, in her examination in chief and in her cross examination has contradicted the prosecutrix on each and every point right from paying any rent to the landlord of the said premises where they were residing up to the facts of knowing any person by the name of Mahender Chauhan, Kuldeep, lady teacher Sona, said Naveen Kumar and Sandeep Singh, Somnath coming to their house and thus, either uprooted herself or demolished the story of the said prosecutrix and in these circumstances, both are not reliable witnesses at all.
18. The said deposition of PW1 regarding false case registered against accused Pawan and the said other persons, is also proved on SC No.83/10 Page 14/19 record by documentary evidence. The subsequent IO PW7, W/ASI Raj Bala, deposed in her examination in chief that on 22.09.2008, she was entrusted with the further investigation after ASI Dharambir Singh and she got recorded the statement of the prosecutrix u/s 164 Cr.PC which is Ex.PW7/A and she deposited the exhibits to FSL vide receipt Ex.PW7/C and the result is Ex.PX and Ex.PY. However, in her cross examination, she admitted that at the direction of the concerned ASJ, dealing with the bail application of accused, she had visited PS Kundli, District Sonepat, Haryana, in order to verify if the prosecutrix of present case had already filed two complaints at the said PS and it came to her knowledge and which she submitted also before the said court of Ld. ASJ that the said two complaints were regarding rape/gang rape committed with the prosecutrix by different persons. The said IO further admitted that the said two complaints to the said PS, the police registered an FIR only on one complaint and not on the other as the police came to the conclusion that it was a false complaint and as such, no FIR was registered. She further admitted that in the other complaint, on which the FIR was registered, the police of the said PS filed a cancellation report as the said case was also found false during investigation. She admitted that she had recorded the statement of Sandeep s/o Jai Kishan r/o Village Singhu on 23.10.2008, from where she came to know that said Sandeep knew the prosecutrix as SC No.83/10 Page 15/19 well as the accused prior to the incident and the prosecutrix and her mother were the tenants in the house of accused for about 4/5 months prior to 23.10.2008 and said Sandeep disclosed that he had seen an incident of prostitution being committed by the prosecutrix with a customer named Somnath and said Sandeep apprehended the prosecutrix also and said Sandeep also disclosed that said prostitution was being committed at the instance of mother of the prosecutrix and this was the bone of contention between the prosecutrix and her mother on the one hand and accused Pawan on the other hand and said Sandeep also narrated in his statement that prosecutrix and her mother used to falsely implicate different persons in cases of rape. Said subsequent IO further admitted in her cross examination that she had also recorded the statement of one Naveen Kumar s/o Narain Singh resident of the said Village, who also narrated the same facts, as disclosed to her by the said Sandeep, with regard to prosecutrix and her mother, as mentioned above. She further admitted that said Naveen also narrated in his statement that accused Pawan asked the mother of the prosecutrix to vacate his house as tenant, against which the mother of the prosecutrix threatened him of teaching a lesson to the accused and she proved the said statements as Ex.PW7/DA and Ex.PW7/DB and she further proved her report given to the Ld. ASJ dealing with the bail application, after visiting the PS Kundli, as Ex.PW7/DC, which is SC No.83/10 Page 16/19 annexed with ten photocopies of the documents from the said PS. She further replied that as the prosecutrix was not available, her bony age could not be determined by proper medical test and she could not admit or deny the suggestion if in the said two cases at PS Kundli, no bony age medical test in the said cases could be conducted as the prosecutrix was also not available there. She admitted that the said two complaints before the said PS Kundli were pertaining to the dates 18.05.2007 and 09.02.2008.
19. Similarly, the initial IO PW11, ASI Dharambir Singh, admitted in his cross examination that he did not record the statement of any independent public witness and he came to know about the pendency of other rape cases at the instance of the said prosecutrix later on.
20. The said deposition of the prosecutrix with regard to visit of Somnath at the said rented premises, objected to by the accused, and as such it was found during investigation by the IOs of the case and that is why some statements of the public persons of the village were recorded, was further corroborated by the two defence witnesses and said Sandeep Kumar appeared as DW1 who proved his statement Ex.PW7/DA recorded by the said subsequent IO and said Naveen Kumar appeared as DW2 and proved his statement Ex.PW7/DB recorded by the same IO and nothing could be elicited by the Ld. SC No.83/10 Page 17/19 Addl. PP in their respective cross examination of the said two DWs that they got recorded their statements falsely or were having any ulterior motive against the prosecutrix or her mother. Similarly, the photocopies of the documents, admittedly placed by the said subsequent IO at the time of hearing of the bail application of the accused, go to establish that said two cases of rape were also found false and all these circumstances are making it evident that neither prosecutrix nor her mother have any regard for the truth and they seems to be in the habit of getting false cases registered either with a view to grab the property of other persons or for carrying out some other illegal design in their minds, best known to them. Regarding the FSL result, although the semen was found present on the salwar, allegedly of the prosecutrix Ex.P1, but its grouping could not be established as that of the accused and the said report cannot be used as a corroboration because of the specific admission of the prosecutrix in her cross examination that she used to wear clothes of her mother and thus, the said report also leads us to nowhere in the said circumstances. No person from the village was examined nor the landlord of the prosecutrix, no shopkeeper and even the father of the prosecutrix did not appear in the witness box nor was examined in the case by the IOs. These are the other weaknesses of the prosecution case.
21. In view of my aforesaid discussion, the prosecution has SC No.83/10 Page 18/19 miserably failed to bring home the guilt of the accused from any point of view and hence, the accused is acquitted of the charges u/s 376/506 IPC. The PB and SB of accused are hereby discharged. The file be consigned to the Record Room.
(Announced in the open court on 05.06.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.83/10 Page 19/19