Delhi District Court
State vs . 1. Narender @ Balle, on 16 July, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 101/11.
Unique Case ID No. 02405R0210802010.
State Vs. 1. Narender @ Balle,
S/o Late Sh. Ram Chander,
R/o Village & P.O. Gorar, P.S. Kharkhoda,
Distt. Sonepat (Haryana).
2. Satish @ Jassa,
S/o Sh. Ramesh,
Village & P.O. Atail, P.S. Sapla,
Distt. Rohtak, Haryana.
3. Kapil,
S/o Sh. Parkash,
R/o Ward No.I, Gijjhi Road, Sapla,
P.S. Sapla, Distt. Rohtak,
Haryana.
4. Niranjan @ Engine @ Amit,
S/o Sh. Satpal,
R/o Village & P.O. Aasan,
P.S. Sapla, Distt. Rohtak,
Haryana.
5. Anil @ Chaman,
S/o Sh. Ram Kumar,
R/o C/o Kaptan, Village Kaloe,
Distt. Rohtak,
Haryana.
6. Rajesh @ Anil,
S/o Sh. Dharampal @ Pahlad,
R/o Ward No.1, Dev Colony,
Sampla, Distt. Rohtak,
Haryana.
Date of Institution : 15.7.2010.
SC No.101/11. Page 1 of 29
FIR No.36 dated 10.3.2010.
U/s. 365/376(g)/120B IPC.
P.S. Chhawla.
Date of reserving judgment/Order : 05.7.2012.
Date of pronouncement : 16.7.2012.
JUDGMENT
1. The abovenamed accused have been facing trial for having committed the offences punishable u/s.365/376(2)(g)/120B IPC.
2. Stated briefly, the case of the prosecution is that on 10.3.2010, on receipt of DD No.20A, SI Sudesh Pal alongwith Const. Sunil reached the spot of incident i.e. Goyala Mor, near Liquor Vend, where they met the complainant Kumari Sonia. She made a statement that she alongwith her sister Monika are studying in XIIth Class and had come to Sarvodya Co-Ed. School, Paprawat Village, for appearing in an examination. At about 1.30 p.m. when they came out of the school after finishing the paper, their mother Vimla Kumari was waiting for them in vehicle no.DL- 6CB-6137, they boarded the vehicle and started proceeding towards home. Vimla Devi was at the wheel, Monika sat on the front passenger seat, whereas Sonia sat on the rear seat. At about 1.45 p.m. when they reached the main road, near Radha Swami Satsang Bhawan, a white colour Maruti car overtook their vehicle and stopped in front of their vehicle. Two/three persons came down from the Maruti car, one of them opened the driver's side window of their vehicle and pushed their mother towards left side, another pulled out Monika from the front passenger seat and the SC No.101/11. Page 2 of 29 third one opened rear door of their vehicle and pushed Sonia out of the car from the left side. The person, who had pushed their mother towards her left side and had put a revolver on her temple. They kidnapped the mother of the two girls in her own car. The Maruti car, in which the assailants had come, was being driven in front of their car. The car of the assailants had dark tinted glasses, but some persons were present in the car. Sonia had made call at telephone no.100 from mobile phone no.9278284822 of her mother. She further stated that she can identify the assailants, if shown to her.
3. On the basis of the aforesaid statement of Sonia, SI Sudesh Pal prepared rukka and got the FIR registered u/s.365 IPC. Further investigation of the case was handed over to SI Sudesh Pal. She prepared the site plan of the spot, from which Vimla Devi was kidnapped. On receipt of an information that vehicle no.DL- 6CB-6137, in which Vimla Devi had been kidnapped is lying parked at Jharoda Bus Stand, he proceeded to that spot and on search of the vehicle, he found a countrymade revolver near the real seat. He prepared the sketch of the revolver. He called the Crime Team and got the vehicle inspected by the Crime Team. No chance fingerprints could be found on the car. SI Sudesh Kumar seized the car as well as the revolver. He also recorded the statement of other witnesses. The husband of Vimla Devi namely Karambir in his statement stated that he and his wife may have been kidnapped by accused Narender @ Balle of Village Gorar, P.S. Kharkhoda, District Sonepat, as there was enmity between the two on account of some transactions. A raid was conducted by SI Sudesh Pal alongwith SHO and other staff in the village of SC No.101/11. Page 3 of 29 Narender @ Balle but they could not find or trace accused Narender or the prosecutrix Vimla Devi.
4. It is further the case of the prosecution that on 11.3.2010 prosecutrix Vimla Devi reached police station alongwith her husband Karambir and her statement u/s.161 Cr.PC was recorded by SI Sudesh. Her statement was also got recorded u/s.164 Cr.PC by the concerned Magistrate, wherein, besides confirming what was stated to the police by her daughter Sonia, as noted hereinabove, she further stated as under :
"After kidnapping me, the assailants proceeded towards Najafgarh. The vehicle of the assailants was following her vehicle. After traversing some distance, her vehicle broke down. At that time, her face had been covered by a cloth. She was transferred to the vehicle of the assailants, which was coming from behind. At that time, she shouted and some people gathered at the spot but the assailants told them that she is their mother and being ill, she is being taken for treatment. Thereafter, the assailants proceeded in their own car. After traversing some distance, when they reached near a drain, their vehicle also broke down. Two of the assailants took me to the wheat field near the road, took off my trouser and took turn in raping me. After a long time, another vehicle was brought, I was put in that vehicle and they took me to village Gour where Narender @ Balle resides. Narender @ Balle took me to a room upstairs in his house and raped me there. After sometime, Narender put me in a vehicle and took me to the house of his sister Billo in Rohtak. There Narender beat me and obtained my signature by force on a blank paper. He also took my thumb impression by force on a paper, on which something was written and also had a revenue stamp affixed on it. In the morning on 11.3.2010 at about 5.30 a.m. Billo and her sister-in-law (Jethani) and a boy took me to bus stand Rohtak, bought me a ticket SC No.101/11. Page 4 of 29 for Nangloi and made me to sit in a us. I got down from the bus at Bahadurgarh and boarded another bus for Gurgaon, from which I got down at Deenpur. After getting down from the bus at Deenpur, I made a call to my husband from an STD Booth and thereafter, I alongwith my husband came to the police station."
5. The victim Vimla was got medically examined in RTRM Hospital, Jaffarpur. Thereafter, section 376(2)(g) IPC was added in the FIR and search for the accused was started. At this stage, the investigation of the case was entrusted to WASI Saroj Bala.
6. As per further case of the prosecution, the real brother of accused Narender @ Balle brought him to the police station on 17.4.2010 for surrender. In the meanwhile, victim Vimla Devi also came to the police station for enquiry about the progress of her complaint and she immediately identified Narender @ Balle to be the person, who had got her kidnapped and who had raped her in his house. Accused Narender @ Balle was accordingly arrested in this case. He was produced before the concerned Magistrate and taken on four days police remand. During the course of investigation of the case, another accused Satish @ Jassa was brought to the police station by his sister and brother-in-law (Jija) for surrender. At the same time, one Rajender, brother-in-law (Jija) of Vimla came to the police station alongwith Vimla for making enquiries about the progress of her complaint and he identified accused Satish @ Jassa to be the same person, who alongwith his two associates had kidnapped him on 05.3.2010. Accused Satish @ Jassa was arrested in this case and his disclosure statement was recorded. On the basis of his disclosure statement, section 120B IPC was added in the FIR. Accused Satish @ Jassa was produced SC No.101/11. Page 5 of 29 before the concerned Magistrate and he was taken on two days police remand to facilitate the arrest of the other co-accused, but they could not be traced.
7. Prosecution further alleges that during the course of further investigation, accused Kapil was arrested on 04.6.2010 pursuant to a secret information. He also made a disclosure statement admitting his involvement in the kidnapping and rape of Vimla. He was taken on two days police remand. At his instance, another accused Niranjan @ Engine @ Amit was arrested in this case. Accused Niranjan had made a disclosure statement and he was remanded to one day's police custody. Accused Kapil is stated to have refused to participate in the TIP proceeding. On the basis of his disclosure statement, section 25 of Arms Act was added to the FIR. Accused Rajesh, Anil @ Chaman, Jaidev @ Jaideep could not be arrested despite efforts and NBWs were obtained against themselves.
8. Meanwhile, Charge Sheet was laid before the concerned Magistrate against accused Narender, Satish @ Jassa, Kapil and Niranjan.
9. Later on, accused Anil @ Chaman and accused Rajesh also came to be arrested on 21.7.2010 and 26.7.2010 respectively. Accused Anil @ Chaman was arrested from his village, whereas accused Rajesh @ Anil had surrendered in the police station himself. A supplementary Charge Sheet was filed against them, which was later on clubbed with the aforesaid main Charge Sheet and all the six accused were tried jointly.
SC No.101/11. Page 6 of 2910. It may also be noted here that accused Jaidev @ Jaideep was arrested on 03.9.2011 and a supplementary Charge Sheet was filed against him. The trial against accused Jaidev is yet to commence.
11. After committal of the case to the court of Sessions, following Charges were framed against accused Satish, Kapil and Niranjan on 29.9.2010 :
"That on 10.03.2010 at about 1.45 p.m. near Radha Swami Satsang Bhawan, Deenpur, Delhi, within the jurisdiction of P.S. Chhawla, all of you alongwith your other two associates namely Jaidev and Chaman @ Anil (not arrested) in pursuance to a criminal conspiracy of you all and your above said other associates had kidnapped prosecutrix Smt. Bimla W/o Shri Karamvir in a white colour Maruti car with intention to confine her secretly and wrongfully and you all thereby committed an offence punishable U/s.365 read with Section 120B IPC and within the cognizance of this Court.
Secondly, on 10.03.2010 at about 1.45 p.m. near Radha Swami Satsang Bhawan, Deenpur, Delhi, within jurisdiction of P.S. Chhawla, all of you alongwith your other two associates namely Jaidev and Chaman @ Anil (not arrested) in furtherance of common intention of you all had criminally intimidated the abovesaid prosecutrix while and after kidnapping her on the gun point and you all thereby committed an offence punishable U/s.506/34 IPC and within the cognizance of this Court.
Thirdly, on 10.03.2010 after kidnapping prosecutrix all of you, alongwith your other two associates namely Jaidev and Chaman @ Anil (not arrested) in pursuance of a criminal conspiracy had, in fields of wheat near road committed gang rape of complainant/prosecutrix Bimal W/o Shri Karamvir and SC No.101/11. Page 7 of 29 you all thereby committed an offence punishable U/s.376(g) IPC and within the cognizance of this Court."
12. On the same day, following Charges were framed against accused Narender, Satish, Kapil and Niranjan :
"That sometime prior to 10.03.2010 at unknown place all of you alongwith your other three associates namely Jaidev, Anil and Rajesh @ Anil (not arrested) had entered into a criminal conspiracy to commit an offence of kidnapping of and committing rape of the prosecutrix Smt. Bimla W/o Sh. Karamvir in pursuance to which she was acutally kidnapped and gang raped and you all thereby committed an offence punishable U/s.120B IPC and within the cognizance of this Court."
13. On the same day, following additional Charge was framed against accused Narender :
"That on 10.03.2010 after kidnapping of prosecutrix by your co-accused persons namely Satish @ Jassa, Kapil and Niranjan alongwith other two associates namely Jaidev and Rajesh @ Anil (not arrested) in pursuance to criminal conspiracy of you all, had raped prosecutrix Bimal W/o Sh. Karamvir in a room at first floor of your house at Village Gorad, PS Kharkhoda, District Sonepat, Haryana, and you thereby committed an offence punishable U/s.376 IPC and within the cognizance of this Court."
14. On the same day, following additional Charge was framed against accused Rajesh @ Anil :
"That sometime prior to 10.03.2010 at unknown place you alongwith your co-accused persons and one Jaidev (PO) had entered into a criminal conspiracy to SC No.101/11. Page 8 of 29 commit an offence of kidnapping of and committing rape of the prosecutrix Smt. Bimla W/o Shri Karamvir in pursuance to which she was actually kidnapped and gang raped and you thereby committed an offence punishable U/s.120B IPC and within the cognizance of this Court."
15. On the same day, following additional Charge was framed against accused Anil @ Chaman :
"That sometime prior to 10.03.2010 at unknown place, you alongwith other co-accused persons and your another associate Jaidev (PO) had entered into a criminal conspiracy to commit an offence of kidnapping of and committing rape of the prosecutrix Smt. Bimla W/o Sh. Karamvir in pursuance to which she was actually kidnapped and gang raped and you thereby committed an offence punishable U/s.120B IPC and within the cognizance of this Court.
Secondly, on 10.03.2010 at about 1.45 p.m. near Radha Swami Satsang Bhawan, Deenpur, Delhi, within the jurisdiction of P.S. Chhawla, you alongwith other co-accused persons namely Satish @ Jassa, Kapil, Niranajan and your another associate Jaidev (PO) in pursuance to abovesaid criminal conspiracy had kidnapped prosecutrix Smt. Bimla W/o Shri Karamvir in a white colour Maruti Car with intention to confine her secretly and wrongfully and you thereby committed an offence punishable U/s.365 read with Section 120B IPC and within the cognizance of this Court.
Thirdly, on 10.03.2010 at about 1.45 p.m. near Radha Swami Satsang Bhawan, Deenpur, Delhi, within the jurisdiction of P.S. Chhawla, you alongwith other co-accused persons namely Satish @ Jassa, Kapil, Niranjan and your another associate Jaidev (PO) in furtherance of common intention of you all had criminally intimidated the abovesaid prosecutrix while and after kidnapping her on the gun point and you accused Anil @ Chaman had used a countrymade SC No.101/11. Page 9 of 29 firearm to threaten the prosecutrix at that time and you thereby committed an offence punishable U/s.506/34 IPC and u/s.27 Arms Act and within the cognizance of this Court.
Fourthly, on 10.03.2010 after kidnapping prosecutrix you alongwith other co-accused persons namely Satish @ Jassa, Kapil, Niranjan and your another associate Jaidev (PO) had, in fields of wheat near road committed gang rape of complainant/ prosecutrix Bimla W/o Sh. Karamvir and you thereby committed an offence punishable U/s.376(g) IPC and within the cognizance of this Court."
16. The prosecution has examined 25 witnesses to prove the aforesaid charges against the accused. The accused were examined u/s.313 Cr.PC on 12.8.2011 wherein they denied all the incriminating circumstances put to them and claimed that they have been implicated falsely in this case.
17. Accused Kapil and Narender have further stated that the prosecutrix had taken money from them for providing employment to them and their relatives in Delhi Metro and in order to avoid repayment of that money, the prosecutrix implicated them in this false case.
18. Accused Narender @ Balle has further stated that an FIR has already been registered against the prosecutrix Vimla and her husband Karambir in police station City Rohtak (Urban Estate) bearing FIR No.89/10, u/s.409, 420, 465, 467, 468, 506, 120B and 34 IPC on a complaint filed by one Rakesh Kumar, from whom also the prosecutrix had received money for employment. He further stated that another FIR No.123/09 has been registered against the SC No.101/11. Page 10 of 29 prosecutrix Vimla at P.S. Aman Vihar, u/s.420, 468, 471, 34 IPC on the complaint of Mr. Bhupender to the same effect. He also stated that the prosecutrix had issued threats to him asking him to withdraw the aforesaid complaint or otherwise, he would dire consequences.
19. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire oral as well as documentary evidence on record.
20. As per the prosecution case, at the time of incident the prosecutrix was returning home alongwith her two daughters from their school where they had gone to take their examination. The prosecutrix was driving her Maruti Car bearing registration no.DL- 6CB-6137, one of her daughters named Monika was sitting on the front passenger seat, whereas another daughter Sonia was sitting on the rear seat of the car. The prosecutrix was kidnapped in her own car in presence of her daughters and immediately when the assailants took her alongwith them, Sonia made a call to PCR on telephone no.100 from mobile phone no.9278284822, which information was recorded in P.S. Chhawla as DD No.20A and police machinery set into motion. Thus the prosecutrix and her daughters are the only witnesses to the incident of kidnapping.
21. Sonia has been examined as PW5. She deposed that on 10.3.2010, she alongwith her elder sister Monika had gone to Govt. Co-Ed. School, Paprawat, to appear in an examination of 12th Class. At about 1.30 p.m. the examination was over and she alongwith her sister came out of the school. Their mother was SC No.101/11. Page 11 of 29 present outside the school in her car bearing registration no.DL- 6CB-6137. They boarded the car. She sat on the rear seat and her sister sat on the front seat of the car. Their mother was driving the car. When they reached near Radha Swami Satsang Bhawan, one white colour Maruti car overtook their vehicle and blocked their way. Three persons got down from the Maruti car. Pointing towards accused Kapil, Anil @ Chaman and Niranjan present in the court on that day, she testified that these were the three persons, who came out of the car. Accused Kapil pushed their mother inside the car from the driving seat and sat on the driving seat of the car. Accused Anil @ Chaman pulled out her sister from the car and accused Niranjan threw her out of the car after opening the door from her side. Accused Anil @ Chaman and Kapil were having pistols in their hands. Her mother was having two mobile phones, one was make of Nokia and another make of Virgin. Her mother threw Virgin mobile phone from the car. Accused persons took away her mother in their car. She and her sister got up and informed police at No.100 from the mobile phone. Thereafter, she telephoned her father also from the mobile phone after about 10 - 15 minutes. Three/four PCR Vans came there. Police made inquiries from her and her statement Ex.PW5/A was recorded. She was taken to police station and her father met her on the way to police station. After some days, she went to police station Chhawla alongwith her mother and identified accused Anil @ Chaman to be one of the kidnappers. In answer to a leading question put to her by Ld. APP, she admitted that she had shown the place of occurrence to the police and police had prepared site plan at her instance.
SC No.101/11. Page 12 of 2922. In the cross examination, PW5 admitted that it happened so quickly when before she could understand anything, she was pulled out of the car. She further deposed that it was a Kaccha road at which she was thrown. She fell with her face towards road and got dust on her face and into her eyes, nostrils and mouth. The accused persons had taken away the car alongwith her mother before she regained her normal condition. First her sister was thrown away from the car and thereafter she was pulled out. It took them 10 - 20 seconds in getting up from Kaccha road. The face of her sister was also full of dust. She was taken to police station by police officials. She signed some documents prepared in the police station. However, she added that she did not sign any paper in the police station. She remained in the police station for 30 minutes.
23. It may be noted here that in her statement (Ex.PW5/A), PW5 had stated that the mobile phone of her mother bearing no.9278284822 was with her and from that phone she made call to PCR.
24. Monika has been examined as PW8. She has testified that on 10.3.2010 she alongwith her sister Sonia had gone to their examination centre at Sarvodya Co-Ed. School, Paprawat, for taking exams. Their examination was over at 1.30 p.m. Their mother Smt. Vimla Devi had come by her Maruti car to pick them up. She alongwith her sister boarded the car. Her mother was driving the car. She was sitting on the front seat and her sister was sitting on the rear seat. When they reached Radha Swami Satsang Bhawan at 1.45 p.m. one white colour Maruti car came SC No.101/11. Page 13 of 29 and overtook their car and blocked their way. Her mother also stopped the car. Three boys got down from the car. She identified accused Niranjan, Kapil, Anil @ Chaman present in court at that time to be the persons who had got down from the car. She further deposed that the two boys were having pistols in their hands. One of them approached the car from the side of driving seat and another came to the side where she was sitting. Thereafter, she became unconscious and does not know what happened. She stated that she does not know anyting about this case. She was declared hostile by the Ld. APP and was cross examined by him. She denied that police had recorded her statement on 10.3.2010. She also denied that accused persons had abducted her mother in their car.
25. In the cross examination conducted on behalf of the accused, this PW8 stated that she never gave any statement to the police in this case. She further stated that it was a Kaccha road and hence their car was moving at a slow speed. When her mother applied sudden brake to the car, she got a jerk but managed to support herself with hands. She became unconscious after the accused persons came to their car with pistols and threw her out of the car on the ground. She admitted that when accused persons suddenly stopped their car in front of their car, lot of dust had arisen. She did not get time to comprehend anything before the incident occurred. Her sister did not make call at No.100 in her consciousness. She specifically stated that the police recorded statement of Sonia and obtained her signature in police station. She did not know whether Sonia had signed at the instance of police or on her own.
SC No.101/11. Page 14 of 2926. As would be seen, PW5 nowhere states that her sister PW8 had become unconscious when she was thrown on the road. PW5 has stated that both of them took 10 - 20 seconds in getting up from the Kaccha road after they were pulled out of the car and thrown on the road. Their faces were full of dust and she telephoned police after about 4 - 5 minutes. PW5 has stated that when she was being taken to the police station, her father met them on the way. To the contrary, PW8 stated that her father took her to the hospital when she reached home from the police station as her father was at home at that time. This also means that their father had remained at home and did not bother to visit the spot or the police station despite having informed by PW5 from mobile phone that their mother has been kidnapped. Such unusual conduct of the father of the girls is beyond comprehension.
27. What further intrigues this court is the contradictory statements given by PW5 regarding the mobile phone. In her statement to the police Ex.PW5/A, on the basis of which FIR has been registered in this case, she stated that phone of her mother was with her. In her statement before the court, she stated that her mother threw the mobile phone out of the car, which she took up and made call to the PCR. PW8 is totally silent about the mobile phone. It may also be noted that both these witnesses have stated that the road was Kaccha and full of dust. It is therefore, apparent that the mobile phone, if it was thrown out by their mother from the car, would have disappeared in dust and was very difficult for PW5 to locate the same. When the faces of both these witnesses got covered by the dust and dust had also SC No.101/11. Page 15 of 29 entered their eyes, nostrils and ears, it is natural that the dust may have gone inside the mobile phone also through small pores in the keyboard and it could not be operated.
28. It is also apparent from the testimony of PW5 and PW8 that the statement of PW5 was recorded by the police in the police station and not at the spot, which is major departure from the normal procedure to be followed by the police and which creates a doubt in the truthfulness of the prosecution case and casts a shadow on the fairness of the Investigating Officer.
29. The most relevant and material witness in a case of rape is the prosecutrix herself. In the instant case, the prosecutrix has been examined as PW2. She deposed that on 10.3.2010, she had gone to the school of her two daughters Monika and Sonia in her Maruti Car bearing registration no.DL-6CB-6137 to bring them back. On that day, her daughter had to sit in an examination and after the examination was over at about 1.45 p.m. they boarded her car. Monika sat on the front passenger seat, while Sonia sat on the rear seat and they proceeded towards home. The prosecutrix was driving the car. After about five minutes, they reached near Swami Satsang Bhawan, Deenpur, when a small car came from behind, in which five persons were sitting. Those persons stopped the car in front of her car and consequently she also stopped her car. Three boys came down from that car. Two of them were having revolver in their hands. One boy pushed her towards left and two other boys pulled her daughters out of the car. Accused Kapil (whose name she came to know later on) sat on the driving seat of her car and another boy sat on the front passenger seat on SC No.101/11. Page 16 of 29 her left. The other two boys namely accused Anil @ Chaman and Niranjan (whose name also she came to know later on) also sat in the car. The accused drove the car towards Najafgarh. Accused Anil @ Chaman pushed her towards the back seat of the car whereas accused Niranjan covered her face with a towel, which was lying on the seat of the car. Accused Kapil hit her with a revolver on the head. After traversing some distance, her car broke down. The car in which the accused had come, was coming from behind. Two boys got down from that car, one of whom was accused Anil @ Rajesh (whose name also she came to know later on) and covered her face with one black colour blanket. They made her to sit in their car and clamped her mouth with blanket. The accused took her in a village after going alongside a drain. That car also broke down. Accused Kapil, accused Niranjan and another boy (who was present in the court on that day) took me to a wheat field and the other accused remained present near the car to keep a watch. Accused Kapil, Niranjan and three other boys committed rape upon her. Thereafter, they telephoned accused Balle and informed him that they had brought her and also that their car has broke down. They also asked accused Balle to bring a car. After about one and a half hours to two hours, accused Balle (whom she correctly identified in court) came in a big car alnogwith two other persons. She was made to sit in that car and they kept roaming on the roads. In the evening, they took her to the house of Balle in village Gorar. The mother, wife, sister and sister-in-law of Balle and other two boys were present in the house. Accused Balle took her to his room on the first floor. His wife and sister helped him in taking her to the room. His mother asked him not to take her upstairs but he kicked her. After bolting SC No.101/11. Page 17 of 29 the door of the room, accused Balle committed rape upon her forcibly. Thereafter, at about 8 to 8.30 p.m. accused persons took her to Rohtak. The accused were in a separate car while she was in a separate car with wife and sister of Balle, two other boys and Neelam, sister-in-law of Billo. The accused took her to a big house and then was shifted to another house. They were trying to kill her. Accused Balle, his wife and his sister Billo beat her in that house. Accused Balle asked her to sign on some papers as she did not know how to write her name. He asked her to see her name written as tatoo on her forearm and to write in same manner. There was a red colour ticket also on that paper. She also did not know the contents of that paper. Thereafter, accused Balle received a phone call and he ran away. Only ladies remained in the house with her. In the morning, when the ladies were sleeping, she came out of the house and went to a stall near the bus stand. She borrowed Rs.50/- from an old man and boarded the bus for Delhi from Rohtak. She got down at Bahadurgarh and took another bus for Gurgaon at about 7.30 a.m. She reached Deenpur village bus stand and also telephoned her husband therefrom. Her nephew came there to take her home. Four police officials were present in her house at that time. She narrated all the facts to them and also showed the wounds inflicted by accused Kapil on his temple with his revolver. Next day i.e. on 12.3.2010 she was taken to Jaffarpur Hospital by police officials for medical examination. Her statement was recorded after 3/4 days thereafter. She proved her statement u/s.164 Cr.PC as Ex.PW2/A.
30. The witness was declared hostile by Ld. APP on certain facts. In the cross examination conducted by Ld. APP, she SC No.101/11. Page 18 of 29 admitted that accused Balle also obtained her thumb impression on the revenue stamp of that paper. She denied having told the police that at about 5.30 a.m. Billo the sister of Balle, her Devrani Neelam, and one boy brought her to Bahadurgarh bus stand, purchased a ticket for her for Nangloi and made her sit in a bus. She was confronted with her statement u/s.161 Cr.PC where it was so mentioned. She admitted that on 17.4.2010 when she was gone to P.S. Najafgarh to know about the progress of her complaint, she saw accused Narender @ Balle in the police station alongwith his brother and she identified him. She also admitted that she signed the arrest memo Ex.PW2/C of accused Narender @ Balle as well as his personal search memo Ex.PW2/D. She has also signed his disclosure statement Mark-P2/1. She also admitted that on 11.6.2010 she again went to P.S. Najafgarh to know about the progress of her complaint and saw accused Kapil sitting in the police station and identified them. She also admitted that on 17.6.2010 also when she had come to P.S. Najafgarh to know about the progress of her complaint, she identified accused Niranjan, who was present in the police station. She also admitted that on 31.7.2010 when she again went to P.S. Najafgarh, she identified accused Anil @ Chaman, who was present in the police station. She also admitted that accused Narender @ Balle was known to her prior to the incident and that accused Narender had got her kidnapped. She denied that she had some money transactions with accused Narender @ Balle. She was confronted with he statement u/s.161 Cr.PC wherein she had stated that she has money transactions with accused Narender @ Balle.
31. From the minute scrutiny of the aforesaid examination SC No.101/11. Page 19 of 29 in chief of the prosecutrix, the involvement of the accused in kidnapping and rape of the prosecutrix becomes doubtful. It is the own case of the prosecution that none of the accused was arrested at the spot. All the accused except accused Kapil and Anil @ Chaman surrendered in the police station on their own and were arrested. Accused Kapil was arrested on the basis of a secret information. Accused Anil @ Chaman was arrested from his village, but not on the identification of the prosecutrix. None of the accused except accused Narender was known to the prosecutrix before the incident. In such circumstances, it was necessary for the Investigating Officer to conduct the test identification parade in respect of accused Satish, Kapil, Niranjan, Anil @ Chaman, Rajesh @ Anil. It appears from the testimony of the prosecutrix (PW2) that all the accused after their arrest, were present in the police station with their face uncovered. The prosecutrix came to the police station on exactly the same dates, on which the accused surrendered and were arrested and she identified them one by one. Such kind of identification is no identification at all and deserves to be called in question. Moreover, accused Satish and accused Rajesh @ Anil have neither been identified by the prosecutrix in the police station nor have been they put up for test identification parade. An identification parade is absolutely necessary in a case where the accused were not known to the victim before the incident and were not arrested from the spot. The evidence of identifying the accused at the trial for the first time, is from its very nature, inherently of weak character, valueless and inadmissible.
32. For the abovestated reasons, it is to be held at the SC No.101/11. Page 20 of 29 outset that the complicity of accused Satish, Kapil, Niranjan, Anil @ Chaman and Rajesh @ Anil in the present case is doubtful and the prosecution has failed to establish their identity as the assailants, who kidnapped and raped prosecutrix.
33. It is also relevant to point out here that as per the prosecution case, the disclosure statements made by accused Narender and accused Satish @ Jassa, who were the first to have surrendered and to be arrested, led to the arrest of other accused persons in this case. I have minutely perused the disclosure statement Ex.PW3/A of accused Narender and Ex.PW25/E of accused Satish @ Jassa. Accused Narender in his aforesaid disclosure statement has not mentioned the description or residential address of any of the accused. Accused Satish has neither admitted his own involvement in the incident of kidnapping and rape of the prosecutrix nor has disclosed the involvement of any other accused in the same. He has also not given the description or residential address of any other accused. Hence, I fail to understand that on what basis did the police arrest the accused in this case and implicated them in this case.
34. So far as, accused Narender @ Balle is concerned, he is alleged to be the mastermind behind the conspiracy to kidnap and rape the prosecutrix and is also alleged to have raped the prosecutrix in his own house when his mother, his wife Poonam, his sister Billo, her Devrani Neelam and two other boys were present in the house. Prosecutrix has further stated that the wife and sister of accused Narender did not object and in fact, helped him in taking her to the room upstairs for the purpose of rape. In SC No.101/11. Page 21 of 29 my opinion, this is simply unbelievable and beyond imagination. No wife can permit her husband and no sister can permit her brother to rape a woman in her presence. The story appears to be false from another angle also. PW2 in her statement u/s.164 Cr.PC has stated that accused Narender after raping her in his house put her in a vehicle and took her to the house of her sister Billo in Rohtak, where she was kept for the night. In the morning of the next day at about 5.30 a.m., Billo and her sister in law (Jethani) and a boy took her to a bus stand at Rohtak, bought a ticket for Nangloi and made her to sit in a bus. She got down from the bus at Bahadurgarh and baorded another bus for Gurgaon from which she got down at Deenpur. Billo had given her a sum of Rs.100/- also. She has reiterated the same in her statement dated 11.3.2010 u/s.161 Cr.PC. However, she has given a total different story in her testimony before this court where she deposed that only ladies were in that house for the night. In the morning when they were sleeping, she came out of the house, went to a tea stall near bus stand and borrowed Rs.50/- from an old man and boarded a bus for Delhi from Rohtak.
35. The abovenoted contradictions in the two statements of the prosecutrix are very material and cannot be ignored. It casts a serious doubt in the prosecution case. The prosecutrix has also not handed over the bus tickets to the police during investigation.
36. Besides the aforestated material contradictions, the prosecutrix has made marked improvements in her testimony before this court. She was confronted with her statement u/s.161 SC No.101/11. Page 22 of 29 Cr.PC and u/s.164 Cr.PC wherein she had not stated that the two boys sitting in the car were armed with revolvers; accused Niranjan covered her face with towel and accused Kapil hit her with a revolver on head; her face was covered and her mouth clamped by the accused in a black colour blanket; the accused persons took her alongside a drain; accused Kapil and accused Anil had committed rape upon her; that accused telephoned Balle saying him that they have brought her; the accused made her to sit in a big car and kept roaming in the car on the road till evening; the mother, wife, sister, her Devrani and two other boys, whom she did not know were present in the house of Balle; the wife and sister of Balle helped him in taking her to the room on the first floor of the house and that her nephew came to the bus stand Deenpur to pick up her, took her home where four police officials were already present and she narrated the incident to them and also showed her wounds to them.
37. The prosecutrix nowhere states how she came to know the house in which she was allegedly raped by accused Narender, was his own house and the other house from where she escaped was the house of Narender's sister. It nowhere appears from her deposition that she had visited these two houses earlier also. There is also nothing on record to show how did she come to know about names of ladies present in the house of Narender and their relation to Narender. She had made an attempt in her cross examination to explain this by saying that they were calling each other by name during the night and hence she came to know about their names. How did she know their relation with Narender? No answer.
SC No.101/11. Page 23 of 2938. There is no evidence on record to suggest that the accused Narender had hatched a conspiracy with other accused to kidnap and rape the prosecutrix. It cannot be disputed that there cannot be a direct evidence regarding a criminal conspiracy, but prosecution is bound to prove facts from which inference regarding hatching of a criminal conspiracy can be drawn. In the instant case, prosecution has failed to prove any such fact from which inference regarding criminal conspiracy can be drawn. There are only disclosure statements of the accused which are inadmissible in evidence. The prosecution does not state in her testimony that accused Narender bore any grudge with her or was enamoured by her or there was any sort of enmity between the two. It is not a case of instant rape. Prosecution alleges that it was a preplanned kidnap and rape. There has to be a very strong motive for such kind of kidnap and rape, which I find none in this case.
39. Most importantly, the medical evidence on record and the statements made by the prosecutrix herself to the doctor, who examined her, totally demolish the case of the prosecution, so far as rape of prosecutrix is concerned. Despite the claim of the prosecutrix that she was raped twice on the day of incident, once in the wheat fields by the two accused and then by accused Narender in his house, no injury marks were found either on the external genitalia or internal genitalia. In fact, no injury marks were found all over the body of the prosecutrix except two minor scratches on her right shoulder. PW1, the doctor who examined the prosecutrix stated in her cross examination that these SC No.101/11. Page 24 of 29 scratches could be caused by rubbing the shoulder with any object. The prosecutrix is alleged to have been raped by three persons but she gives the number of the assailants as only two to PW1, which is recorded in her report Ex.PW1/A. The prosecutrix knew the name of one of the assailants i.e. accused Narender but she does not mention the same to PW1. The report also shows that the prosecutrix had taken fluids after the sexual assault but as per her testimony, she was not given anything to eat and drink during the whole ordeal.
40. As per the aforesaid report Ex.PW1/A, the prosecutrix had told PW1 during medical examination that she had bitten the fingers of both the assailants. She has not stated so in her testimony before this court as PW2 or in her statement u/s.161 Cr.PC and u/s.164 Cr.PC. No such bite mark has been seen on the fingers of any of the accused during their medical examination. Further, the prosecutrix has deposed that accused Anil @ Chaman had hit her on the head with the pistol, as a result of which she had received injury on her temple, which she had shown to the police as well as to the doctor. However, as noted herein-above, no such injury was found on her body during her medical examination.
41. Above all, prosecution had told the doctor PW1 that assailants had only attempted to penetrate by pennis and no penetration had in fact, been done. PW1 has admitted in her cross examination that prosecutrix had told her that it was a case of attempted penetration and not completed penetration, which she had noted in first and record column appearing on page 3 of her SC No.101/11. Page 25 of 29 report Ex.PW1/A. PW1 has also deposed that she did not see any signs of forced rape in this case.
42. The statements given by the prosecutrix to the doctor (PW1) and the result of her medical examination contained in report Ex.PW1/A undoubtedly knock out the prosecution case in totality. It is manifest that the prosecutrix had not been raped at all on the day of incident. She has fabricated a totally false story about her kidnap and rape and has framed the accused falsely in this case. The prosecutrix has clearly lied to the court by deposing that she was raped by three of the accused, when she had herself told the doctor, during her medical examination that it was a case of only attempted rape and that too by two unknown assailants.
43. Even the allegation of attempted rape has not been proved. As per the medical report Ex.PW1/A, the assailants had ejaculated outside the body orifice of prosecutrix. At the same time, she has also stated that neither she nor the assailants themselves performed masturbation. Thus, when there was neither penetration nor masturbation, how did the assailants ejaculate. There has to be some stimulus for ejaculation. If it is taken to be true that the assailants had ejaculated, it cannot be ruled out that some semen drops would have fallen on the clothes of prosecutrix. It appears from the evidence of prosecutrix that she had not changed her clothes after the sexual assault till her medical examination and her clothes were seized by the police. It also appears from the evidence on record that clothes of the prosecutrix were sent to FSL, Rohini, for forensic examination. However, the FSL result has not been produced or proved on SC No.101/11. Page 26 of 29 record. Hence, the allegations about the attempted rape also must fail.
44. Now the question arises what made the prosecutrix to implicate the accused in this false case. The answer to this question is not far to seek. From the testimonies of defence witnesses DW1 and DW2, it is evident that the prosecutrix had been operating an fictitious employment racket. She used to lure innocent unemployed youth with false promises of getting them employment in Delhi Metro Rail Corporation, received huge amounts of money from them and then never repaid the money. Providing employment was out of question. DW1 and DW2 are the relatives of accused Narender. They were introduced by accused Narender to be prosecutrix saying that she can arrange employment for them. Both paid a sum of Rs.3.5 Lacs each to prosecutrix. She handed over to them appointment letters and asked them to join in an office at Barakhamba Road, New Delhi. The appointment letters turned out to be fake. They demanded back the money from the prosecutrix but she avoided doing so. DW1 then visited the residence of prosecutrix at Rohini and found some more persons present there who also had been cheated by her. When DW2 also visited the house of prosecutrix to demand his money, he found the house locked.
45. Accused Narender, in his statement u/s.313 Cr.PC, has stated that prosecutrix had received an amount of Rs.18,50,000/- from him in presence of her husband, which amount had been collected by him from his relatives. He had paid this amount to her for the purpose of getting job to his relatives in Delhi Metro.
SC No.101/11. Page 27 of 29The prosecutrix did not fulfill the promise and also refused to return the money to accused Narender.
46. it is also on record that the prosecutrix is facing charges of cheating, forgery etc. in connection with FIR No.89/10, P.S. Rohtak City (Urban Estate) u/s.409, 420, 465, 467, 468, 506, 120B and 34 IPC and FIR No.123/2009, P.S. Aman Vihar, u/s.420, 468, 471, 34 IPC. Her lavish lifestyle despite the meager monthly income of her husband indicates that she receives money from people illegally by cheating them. Prosecutrix has herself stated in cross examination that her husband's income is Rs.60,000/- to Rs.70,000/- per year meaning thereby that he earns about Rs.5,500/- per month. How can they pay rent for their accommodation, maintain their five children, own and use a car and have two mobile phones with this paltry income.
47. It is, therefore, apparent that the prosecutrix had received huge sum of money from accused Narender for providing employment to his relatives, which she was not in a position to do, and also did not want to return the money to him. Hence, she used the most potent weapon of framing him and other accused in this false case by concocting a false story of her kidnap and rape.
48. It also needs to be noted that the conduct of the husband of the prosecutrix has been highly unnatural and it appears clearly that he was not worried at all about his wife. He did not visit the spot from where the prosecutrix was allegedly kidnapped, even after he was informed about the kidnap by his daughter PW5. He remained comfortably at home and then took SC No.101/11. Page 28 of 29 PW8 to doctor. He neither made any attempt himself to trace out his wife nor asked the police to search for his wife. He did not go to see his wife at Bus Stand Deenpur, the next morning, when she called him from a STD Booth. This indicates that he knew that his wife is safe and the story of her kidnap and rape is absolutely false.
49. In view of above discussion, I conclude by saying that prosecution case stands to be utmost doubtful and far from being true. Prosecution has utterly failed to prove charges against the accused herein. All the accused are liable to be acquitted and are hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 16.7.2012. A.S.J. :Dwarka Courts
New Delhi.
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