Delhi District Court
State vs Channa Ram//Fir No. 368/07 on 30 August, 2011
:1:
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - 01,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 150/2008
FIR No. 368/2007
PS : Bawana
U/s. 376G/363/342/328 IPC
STATE
VERSUS
CHANNA RAM
S/o. Sh. Ganga Ram
R/o. Jhuggi No. 15/11
A-Block, Shahbad Dairy
Delhi - 110 042
permanent resident of :-
Village - Saptal, P.S. Bhigapur
Distt - Unnav, Uttar Pradesh.
Date of Institution : 03.01.2008
Date of receipt of case in this court : 02.12.2008
Arguments heard On : 24.08.2011
Order Announced On : 30.08.2011
Sh. P.K. VERMA, ADDL. PP FOR THE STATE.
Sh. A. K. DUBEY, COUNSEL FOR ACCUSED.
JUDGMENT
STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :2:
1. The name of the prosecutrix / victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 CLJ 2913.
2. In brief the facts of the case are that on 05.07.07 prosecutrix M made a statement to the police regarding commission of rape with her. Thereafter on receipt of telephonic information from PP Shahbad Dairy regarding rape ASI Anita Sharma reachedChanna Ram MB hospital where ASI Madan Lal along with Ct. Virender, prosecutrix M, mother and father of prosecutrix were also present. Prosecutrix M was medically examined at M B Hospital and statement made by prosecutrix M before the police was taken by her. Thereafter ASI Anita Sharma prepared rukka and sent Ct. Virender for registration of FIR. After registration of FIR investigation of the case was handed over to ASI Anita Sharma. During investigation ASI Anita Sharma at the instance of prosecutrix M prepared site plan and recorded statement of witnesses.
STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :3: Exhibits given by hospital were deposited in malkhana and at the instance of prosecutrix M, accused Channa Ram was arrested and was got medically examined. Statement of prosecutrix M u/s 164 CrPC was recorded by the Ld. MM. Exhibits seized in the case were deposited in FSL for opinion. Challan regarding Sonu and Pinto was filed before the Juvenile Justice Board while accused Raju and Monu could not be arrested. After completion of investigation challan against accused Channa Ram was filed before the court through SHO.
3. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
4. My Ld. Predecessor vide order dated 07.03.08 framed charge under section 363/328/376(2)(G)/506/34 IPC. Accused pleaded not guilty and claimed trial.
5. Prosecution in support of its case examined PW1 Dr. Samir Panade, PW2 Prosecutrix M, PW3 Bimla, STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :4: PW4 Sunil, PW5 HC Narinder Singh, PW6 Suresh Kumar, PW7 HC Rajkumar, PW8 Dr. Jai Kumar, PW9 Ct. Virender Singh, PW10 Dr. S. Kakkar, PW11 ASI Madan Lal, PW12 Jitender, PW13 Ct. Sushil, PW14 Ms. Barkha Gupta, PW15 V. Shankarnarayanan and PW16 ASI Anita Sharma.
6. As per statement of Addl. PP for State Sh.P.K.Verma, prosecution evidence was closed on 07.05.2011.
7. Statement of accused was recorded under section 313 Cr.P.C. Accused pleaded innocence and wished to examine witness in defence. Accused examined DW-1 Mukesh Kumar, Accountant. The defence evidence closed vide statement of accused on 15.07.2011
8. I have heard ld. Addl. PP Sh. P.K. Verma and Sh. A.K. Dubey, ld. Counsel for the accused and perused the record.
STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :5:
9. The prosecution case rests upon vital witnesses PW2 prosecutrix M, PW3 Bimla, mother of prosecutrix and PW6 Suresh Kumar, father of the prosecutrix. Apart from these three important witnesses, there are two public witnesses PW4 Sunil Gupta and PW12 Jitender. According to PW3 Bimla the incident took place when on 01.07.07 at about 10.00 a.m. Prosecutrix M left for toilet in the fields but she did not return till late night. She went to police post and lodged the missing report. On 02.07.07 at about 6.00 p.m. prosecutrix M was brought by PW4 Sunil Gupta and PW12 Jitender. PW6 Suresh Kumar was at his native village in District Pratapgarh, U.P. And on receiving the message that prosecutrix M, his daughter was missing, he immediately reached on 02.07.07. PW6 Suresh Kumar corroborated the facts stated by PW3 Bimla that two persons namely Sunil Gupta and Jitender Gupta brought their daughter at their home. According to PW6 Suresh Kumar on that day prosecutrix M did not disclose anything but on next day i.e. 03.07.07 she disclosed about the incident and involvement of STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :6: accuses Channa Ram along with co-accused Sonu, Monu, Pintu and Raju. They went to police post Shahbad Dairy but police officials advised them to forget the incident. Thereafter, they went to Ashok Vihar Police Station at DCP office. Thereafter, they went to ACP, Alipur. Thereafter, the investigation was carried out. However, PW3 Bimla has not corroborated this fact about the non-disclosure of facts by prosecutrix M on 02.07.07 and that same were disclosed on 03.07.07 and then they went to the police post and DCP office, North-West.
10. Now, come to the testimony of PW4 Sunil Gupta who testified that on 02.07.07 about 6.00-6.30 p.m. he was coming from a marriage along with PW12 Jitender Gupta and found 15-16 years old girl lying at Gupta Colony in unconscious state. He thought that she might have suffered from fits of epilepsy then they brought to her jhuggi after enquiries from residents. She regained consciousness. Parents called the police then police recorded their statements. PW12 Jitender corroborated these facts but he STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :7: testified that two-three small boys were trying to lift one girl behind Gupta Colony then one person told them that girl belongs to A Block Jhuggis. He found that girl was unconscious. They remained there and when after 1-1/2 hour she regained consciousness, she disclosed her name and also that accused Sonu, Monu and Pintu lifted her and thereafter police officials took him to police chowki and later on they got free. There are material contradictions between testimony of PW4 Sunil and PW12 Jitender. PW4 Sunil is silent about seeing two-three boys lifting one girl and those boys were residents of A Block Jhuggi and girl was also of A Block Jhuggis. He is silent about prosecutrix regained consciousness in his presence and named the accused persons Sonu, Monu and Pintu lifted her. The testimony of PW4 Sunil and PW12 Jitender is contradictory to testimony of PW6 Suresh Kumar because according to PW6 Suresh Kumar, prosecutrix disclosed the incident on next day on 03.07.07 but these two witnesses categorically stated that on 02.07.07 around 8.00 p.m. they came to know about the incident and police recorded their statement and parents called the police STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :8: at the spot. The analysis of testimony of PW3 Bimla, PW6, Suresh Kumar, PW4 Sunil and PW12 Jitender established that they are contradictory to each other and creates doubt about the time when police started investigation and discovery of prosecutrix at 6.00 p.m. in unconscious condition near Gupta Colony by PW4 Sunil and PW12 Jitender.
11. The law is well settled that statement/testimony of prosecutrix is itself sufficient to prove the charges against the accused persons. Accused Channa Ram is the major whereas remaining accused persons Sonu, Monu and Pintu are juvenile and accused Raju is proclaimed offender. During investigation police recorded statement of prosecutrix Ex.PW2/A. Thereafter, on 24.07.07, PW14 ld. M.M. Ms. Barkha Gupta recorded her statement u/s 164 Cr.P.C. Ex.PW2/B. Another statement recorded of prosecutrix as PW2 when she appeared in the court. It is necessary to analyse all the three important statements made by prosecutrix M. In the statement Ex.PW2/A she stated to the police on 05.07.07 that on 01.07.07, Sunday about 10.00 STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :9: a.m. in the morning she went to ease herself behind A Block at Gupta Colony. There accused Sonu, Monu, Pintu and Channa were roaming and she knew them prior to the incident. At 10.30 when she was returning to her home then all the four came to her and put handkerchief at her face. Consequently, she got intoxicated. Thereafter, these boys put her in a vehicle and took her to a room at abundant place. They gave her beatings. Thereafter, accused Sonu, Monu and Pintu forcibly committed wrong act. They also threatened her in case she disclose this incident to police or anybody else then they will kill her family. Accused Channa remained outside when remaining accused persons were doing wrong act. On the same day in the mid night, they again made her unconscious. On 02.07.07 around 6.30 p.m. she regained consciousness and found herself in her house. She came to no that she was lying unconscious at Gupta Colony then one Jitender Gupta and Sunil Gupta brought her to her house. She also stated that threats were given by Sonu, Monu and Pintu. This statement was recorded on 05.07.07. One explanation came for delay of four days in STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :10: giving the statement, by PW6 Suresh Kumar that police did not take action on 03.07.07 when they went upto DCP, North- West. But this explanation is contradictory because as per the testimony of Sunil and Jitender on 02.07.07 itself police was called by parents of prosecutrix and there statement was recorded. There is no proper, reasonable and plausible explanation why the statement was recorded on 04/05.07.07 midnight and investigation started. This fact is also contradictory to two vital witnesses PW4 Sunil Gupta and PW12 Jitender Gupta. One thing is more highlighted in the statement Ex.PW2/A is that accused Channa was roaming along with Sonu, Monu and Pintu and during the wrong act by them he was standing outside.
12. Now, let us peruse the statement u/s 164 Cr.P.C. This statement is Ex.PW2/B recorded on 24.07.07 after a gap of about 23 days of incident and at that time police also accompanied her. In the statement u/s 164 Cr.P.C. she stated that about 10.00 a.m. or 10.30 a.m. in the morning when she was returning after attending nature's call then STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :11: somebody came from behind and put handkerchief but she was able to tilt the handkerchief and saw four boys Sonu, Monu, Pintu and accused Channa then she became unconscious. When she regained consciousness she saw that five persons in a room. The fifth person was Raju. She further stated that all the five persons tied her hands and legs and put a tape on her mouth. She was naked when she was searching for the clothes then accused Raju and Channa started touching her body with their hands then she got frightened and sit in a corner. She further stated that all the persons threatened her in case she disclose this incident ot anybody then they will kill her family. Thereafter, accused Raju and Channa told to remaining boys that they are free to do anything or any act with her. Then firstly Sonu then Monu and lastly Pintu one by one forcibly inserted their urinating organ in her urinating organ and committed rape. Thereafter, she became unconscious. She regained consciousness then two persons took her to her house. Both persons asked her name and address. Then they left her at her house.
STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :12:
13. The statement u/s. 164 Cr.P.C. is contradictory to earlier statement Ex.PW2/A. Now she improved and changed the incident occurred with her. She improved by naming other person involved in the incident namely Raju. She totally changed the role of accused Channa. Now the vehicle according to her was not there and she has no knowledge how she reached in a room. Now the place is not abundant. She further stated that her legs and hands were tied by all the five persons and a tape was put on her month. She further improved regarding the role of accused Channa that he touched her naked body then invite dSonu, Monu and Pintu to commit act with her naked body. Then all the three persons one by one committed rape with her. The facts stated in statement u/s 164 Cr.P.C. are contradictory to earlier statement Ex.PW2/A and also suffered from glaring improvements.
14. Now, let us examine her testimony before the court. In the court she testified that accused Sonu, Monu, STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :13: Pintu and Channa were roaming behind A Block, Gupta Colony when she was going for toilet around 10.00 p.m. It seems that there is typographical error of 10.00 p.m. while typing instead of 10.00 a.m. Now, she named Sonu who came and put hanky on her mouth and then accused Monu caught hold of her leg and pushed. Now, another role assigned to Channa that he gave her fist blow at her head. She became conscious due to fist blow. On regaining consciousness, he found herself in a room where another fifth persons Raju was present. She took similar lines of statement u/s 164 Cr.P.C. of tiding of hand with chunni and putting tape on her mouth. Now, accused Raju and Channa put hands on her breast thereafter all five threatened her. She further improved the fact that accused Raju and Channa asked remaining three accused persons to commit sexual intercourse with her freely. Now, in the witness box, she testified that accused Raju and Channa went away from the room and accused Sonu, Monu and Pintu committed rape with her then she became unconscious. She regained consciousness and found Jitender Gupta and Sunil gupta who STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :14: took her to her house. On the same day, her mother went to police station for lodging report of her missing but police did not lodged it. Her mother again went to police station then police officials told that her daughter has been traced so there is no need to lodge the complaint. She is silent about when her father Suresh Kumar returned and she disclosed the facts to him on 03.07.07 then they all went to police station, police post and DCP office. Instead of that she testified that on 05.07.07 she went to the police station and disclosed the incident. Thereafter, her statement Ex.PW2/A recorded and she was medically examined. She proved the arrest of accused Channa, Sonu and Chintu. She proved the statement Ex.PW2/B, chunni Ex.P1, salwar Ex.P2, shirt Ex.P3 and Panty Ex.P4.
15. In the cross-examination prosecutrix did not explain where the room was situated and when she regained consciousness in the room. However, she admitted that Channa Ram is residing nearby her house. Accused Channa was standing outside the room. She denied that a quarrel STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :15: took place with accused Channa Ram. She admitted that she did not dressed herself after regaining consciousness after the alleged incident. She admitted that when accused persons left her and her hands were tied and tape was fixed on the mouth.
16. As discussed in detail and analysis hereinabove the three versions of the prosecutrix, it is accepted how she improved her each version and spelt out different role of accused Channa Ram. She also altered the manner in which alleged incident took place with her. There are material contradictions amongst three statements of prosectrix. Although hereinabove the material contradictions in statement of four witnesses discussed, but the analysis of testimony of prosecutrix M itself established that her own statements are contradictory and infused with great improvements. Now, comes the important juncture of medical examination. Prosecutrix M admitted that she was medically examined. According to MLC Ex.PW1/A, prosecutrix M was taken to Maharishi Balmiki Hospital on STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :16: 04.07.07 at 11.45 p.m. She was fit for statement. Testimony of PW16 ASI Anita Sharma deposed that investigation was started on 04.07.07 at about 10.45 p.m. As per PW11 the first a DD was received by her at about 10.00 a.m. The statement of prosecutrix M was recorded after medical examination in the intervening night of 4/5th July, 2007. After midnight FIR was registered around 3.35 a.m. in the morning. The important aspect is the MLC Ex.PW1/A. The gynecological examination Mark A portion of the MLC. As per MLC the hymen appears to be intact and no injury was seen. PW1 Dr. Sameer Pandey also corroborated this fact. Now, analysing the testimony of prosecutrix M in the light of MLC Ex.PW1/A how it is possible when three boys comitted rape upon her one by one and detained her in a room for whole night then how there was no injury and hymen appears to be intact even on 04.07.07. The medical evidence is totally contradictory to the testimony of prosecutrix M. The MLC suggests that there was no sexual assault or forcible intercourse by three boys on the person of prosecutrix M. STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :17:
17. Now, come to the aspect of kidnapping of prosecutrix in which accused Channa shared the common intention is also doubtful in view of the statement Ex.PW2/A that she was kidnapped in a vehicle after putting handkerchief at her face which is contradictory to statement u/s 164 Cr.P.C. in which she stated that somebody put handkerchief on her mouth. She missed out the vehicle in which she was removed to an abundant place in a room. In the witness box, she assigned the role to Channa in kidnapping and he gave fist blow at her head due to which she got unconscious. Thus, three contradictory statements completely demolished the prosecution charge and it become doubtful whether accused Channa was involved in her kidnapping. Another allegation and charge of administering some substance to prosecutrix M by using intoxicating substance. During investigation no handkerchief or cloth recovered having any intoxicating substance. Therefore, prosecution failed to prove the role of accused Channa Ram in administering any intoxicating substance or poisonous substance used by accused Channa even she is STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :18: contradictory as she initially assigned any role of putting handkerchief at her face to accused Channa Ram but in witness box she named Sonu. Charge u/s 328/34 is also not established. Now, coming to the charge u/s 506 IPC in the statement Ex.PW2/A, prosecutrix M alleged that accused Monu, Sonu and Pintu extended threats to her that they will kill her family in case she discloses this incident to anybody but accused Channa Ram was standing outside. In the statement u/s 164 Cr.P.C. Ex.PW2/B, she stated that accused Raju and Channa Ram after touching her naked body gave her threat to kill her parents and brother. Prosecutrix M when appeared in witness box, she testified that all the accused persons gave her threat to kill his family members. All her three allegations of threat are contradictory to each other. Therefore, the charge u/s. 506 IPC is also not proved beyond reasonable doubt.
18. On the basis of above observations and discussion, it is established that the testimony of prosecutrix M is not believeable and plausible and it is contradictory STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC :19: specially to the medical evidence proved by prosecution. Hence, prosecution failed to prove the charge under section 363/328/376 (2G)/506/34 IPC. Hence, accused is acquitted. Bail bond and surety bond discharged. File be consigned to record room after compliance of section 437-A Cr.P.C. Announced in the open court (SANJAY KUMAR) today i.e. on 30.08.11. ASJ-01 (NW),ROHINI COURTS: DELHI STATE VS CHANNA RAM//FIR NO. 368/07 PS BAWANA // U/S 376g/363/342/328 IPC