Delhi District Court
State vs 1) Hawan Pratap Singh @ Pappi on 1 May, 2015
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 37/2013
Unique ID No. : 02401R0528882012
State versus 1) Hawan Pratap Singh @ Pappi
S/o Sh.Cheddi Singh
R/o Vill. Kurali PO, Anna Pur
PS Nawab Ganj, Allahabad (UP)
2) Pintu Kumar
S/o Sh.Upender Yadav
R/o Vill. Nagardar
PO Mananpur PS Chanan
Distt. Lakhi Sarai Bihar.
Case arising out of:
FIR No. : 156/12
Police Station : NDRS
Under Section : 376(2)(g)/506/34 IPC
Judgment reserved on : 15.04.2015
Judgment pronounced on : 01.05.2015
JUDGMENT
CASE OF THE PROSECUTION :
1. The case of the Prosecution, as per charge sheet, is that on 05.09.2012 on receipt of DD No.2A at PS NDRS SI Dalip Singh reached at PP Sanghtarashan. Prosecutrix 'A' (name withheld to protect her identity) was found present at the PP along with her elder sister 'N' (name of her sister also withheld to protect her identity). The statement of the complainant 'A' Ex.PW1/A was recorded at PP Sanghtarashan by PW21 SI Dalip Singh.
2. It is the case of the Prosecution that vide her complaint Ex.PW1/A, the complainant 'A' revealed that she was living with her elder sister 'N' at a house in Madhi Wali Gali, Vishnu Garden, Delhi and about six month ago, her sister 'N' had sold the aforesaid house. Thereafter, both of them started living in temples and gurudwaras. She further stated that her father left for an unknown place about 78 years ago and her mother expired 15 days ago.
3. Complainant 'A' further stated in her complaint that on 04.09.2012, at about 3 AM she along with her sister 'N' had gone to PS NDRS along her belongings. When they reached the main hall of the railway station, one railway police official namely Pintu met them and inquired from them as to where they want to go. They informed him that they want to go to Jammu. Upon hearing this, Pintu got deposited their two bags in the Cloak Room at Platform No.1 and also took their mobile number. As per the complainant, at about 7 AM, she went to Kirti Nagar along with her sister 'N' for who had to take an injection. Pintu continued to call them and told them that he had booked a room for them and asked them to come there.
4. Complainant 'A' further alleged in her complaint that she and her sister 'N' revealed these facts to one boy namely Pappi, who does 'Seva' in '7 Manjila Mandir' situated at Tilak Nagar, Delhi. Thereafter, he accompanied both of them to New Delhi Railway Station in a TSR which was parked outside the Railway Station. Complainant then took the boy i.e. Pappi and went inside the Railway Station to collect their luggage. Officials of Cloak Room asked her to call Pintu as the luggage was deposited by Pintu in his name. When they called Pintu, he took them to room No.201 on the IInd Floor on the pretext of showing them the room. On reaching there, Pintu and Pappi talked to each other and locked the room from inside. Thereafter, both of them threw her on a bed and raped her forcibly one by one. Complainant 'A' also alleged that both of them also threatened to kill her in case she would raise an alarm or disclose about this incident to anyone. Complainant 'A', after coming out of the room narrated all the facts to her elder sister 'N'. Some one made a call at 100 number and they were brought to PP Sanghtarashan.
5. It is further the case of the Prosecution that after recording the statement of the Prosecutrix 'A', SI Dalip Singh got the Prosecutrix medically examined at LHMC Hospital and got the case registered under Section 376/506/34 IPC.
6. Further investigation of the case was handed over to Insp.Meera Sharma, SHO PS NDRS. The IO, during investigation, got the place of incident i.e. Room No.201, IInd Floor, PG Side, NDRS inspected through the Crime Team and photographed, vide report dated 05.09.2012. IO also prepared the site plan of the place of incident and seized two bed sheets, two pillow covers and one handkerchief from the place of alleged incident. The Prosecutrix was again got medically examined and the examining doctor seized her clothes and other exhibits. During investigation accused Pintu was apprehended on 05.09.2012 at 4:15 PM from PS NDRS, RPSF Line, near Platform No.16. He also got recovered one underwear which we was wearing at the time of the alleged incident and the same was also seized by the IO.
7. It is further the case of the Prosecution that thereafter on the same day i.e. 05.09.2015, accused Hawan Pratap Singh @ Pappi was arrested from Sanatan Dharam Mandir, Tilak Nagar, Delhi. Both the accused were got medially examined, the report regarding their potency was obtained and the exhibits taken by the doctors who examined the accused persons, were seized. The accused persons pointed out the place of incident and separate pointing out memos were prepared. Both the accused were remanded to JC on the next day i.e. 06.09.2012 by the concerned area Metropolitan Magistrate.
8. On 06.09.2012, statement of victim 'A' was got recorded under Section 164 Cr.PC and she was thereafter sent to Nari Niketan. The IO also obtained the CCTV footage from the NDRS and got the Prosecutrix counselled. Photocopies of Duty Roster of accused Pintu was also obtained along with CAFs and CDRs of Mobile Nos. of Prosecutrix 'A' and Pinto and were thereafter seized. The exhibits were sent to FSL. The school record regarding age of the Prosecutrix 'A' was also seized during the course of investigation. As per the said school record, the date of birth of the Prosecutrix 'A' was revealed as 23.10.1996 and the age of the Prosecutrix was found to be less than 16 years on the date of alleged incident. After completion of investigation, charge sheet was submitted before the court.
CHARGES :
9. After committal of the case and considering the material on record and the arguments of the defence, both accused Hawan Pratap Singh and Pintu Kumar were charged for the offence under Sections 376(2)
(g)/506/34 IPC vide order dated 12.12.2012. Both of them pleaded not guilty and claimed trial when the aforesaid charges were read over and explained to them.
PROSECUTION WITNESSES :
10. 22 witnesses were examined by the Prosecution with a view to bring home the guilt of the accused. The Prosecutrix 'A' was examined as PW1, while her sister 'N' was examined as PW14. The testimony of the Prosecutrix 'A' shall be discussed later in this judgment in detail.
11. The sister of the Prosecutrix 'N' was examined as PW14. She deposed that on 04.09.2012 at about 3 AM she along with her sister 'A' reached at NDRS for going to Jammu. They found that they had lost their train tickets. Accused Pintu, who was present at the Railway Station in police uniform asked them the reason for sitting there. Accused Pintu took her sister 'A' to Cloak Room and got deposited their luggage. She further deposed that at about 7 AM, she along with her sister 'A' went to doctor as she was feeling unwell. Accused Pintu took their phone numbers at that time. Thereafter, he made several calls on her mobile and informed her that he has booked one room for them. After visiting the doctor, they went to Saat Manjila Mandir at Tilak Nagar and told one Pandit that their luggage is deposited at Cloak Room at the Railway Station. PW14 also correctly identified accused Hawan Pratap @ Pappi in the court to be the person to whom she told this fact. She further deposed that accused Hawan Pratap accompanied them to the Railway Station in a TSR in order to help them. As she was not feeling well, she remained in the TSR, while her sister 'A' and the said persons went to accused Pintu to take back the luggage. After 15 minutes, she received a phone call of her sister on her mobile phone, who informed her that she has been raped and also told her to flee away from there as they want to rape you also. Thereafter, she made a call at 100 number and many public persons gathered at the spot.
12. PW14 further deposed that her sister 'A' met her outside the Railway Station, where public and police were also present and that she was crying and seemed to be very nervous. Her sister 'A' narrated the entire incident to her stating that she has been raped by two persons namely Pinto and Hawan Pratap and that they had also threatened to kill her in case she would raise any alarm.
13. Apart from the Prosecutrix 'A' and her sister 'N', Prosecution also examined PW5 Krishna Anand, who as per the Prosecution case, made a call to the police at 100 number from NDRS on 04.09.2012. PW5 deposed that on 04.09.2012 at about 1011 PM when he was standing with his TSR at prepaid booth at Paharganj side of NDRS, he saw one girl who was in bad condition and was crying. There was also blood on her body and she was surrounded by crowd and on seeing her condition, he informed the police on 100 number from his mobile No.9990004346. He also deposed that after making repeated calls, police reached there and he was taken to PS and his statement was recorded.
14. PW17 is Ct.Sameer Singh, who recorded DD No.35 exhibited as Ex.PW15/A at PP Sanghtarashan on 04.09.2012. He further deposed that he also recorded DD No.13 PP Sanghatarashan and proved the copy of the same as Ex.PW17/A. As per Ex.PW15/A, DD No.35 PP Sanghatarashan, an information was received at 10:59 PM from mobile No.9990005346 to the effect that one unknown girl is being harassed by autodrivers.
15. HC Mahesh Kumar who was posted at PP Sanghtarashan on 04.09.2012 was examined as PW15/1. He deposed that on that day, at about 10:15 PM, on receipt of DD No.35 of PP Sanghatarashan (Ex.PW15/A1) he along with Ct.Jogender reached at New Delhi Railway Station where PCR officials met him. One girl was also standing near PCR van along with PCR officials and she seemed scared. The caller who gave information vide DD No.35 was also present there whose was revealed as Krishna Anand and he told him that he is a TSR driver and that he was standing near prepaid booth of TSR at NDRS and he saw one girl coming from the side of TSR parking. He further stated that the said girl was crying and she appeared to be scared and she was surrounded by some TSR drivers.
16. PW15/1 further deposed that as the incident occurred within the jurisdiction of PS NDRS, he called the DO of PS Paharganj and requested him to inform at concerned PS i.e. PS NDRS and after sometime, Insp.Investigation, SI Dalip Singh and HC Roop Chand reached at the spot from PS NDRS and took the said girl and her sister 'N' to the PS.
17. SI Dalip Singh was examined as PW21. He deposed that on receipt of DD No.2A dated 04.09.2012 (Ex.PW2/A), he reached PP Sanghtarashan and recorded the statement of Prosecutrix 'A' which is Ex.PW1/A. Thereafter, he took Prosecutrix 'A' to LHMC for her medical examination, after which he reached at PS NDRS and prepared rukka (Ex.PW21/A) and got registered the FIR. The Duty Officer who registered the FIR has also been examined by the Prosecution as PW2.
18. PW21 further deposed that after registration of the FIR, the investigation was assigned to Insp.Meera Sharma , SHO of PS NDRS. Crime Team was called at the PS. Thereafter, Prosecutrix 'A', her sister and crime team reached at Room No.201, IInd Floor, Paharganj side NDRS where crime team inspected the spot and handed over his report to the IO. IO prepared the site plan and also lifted two bedsheets, two pillow covers and one handkerchief from the spot, put into pullandas and sealed with the seal of 'MS' and seized the same vide seizure memo Ex.PW18/A.
19. PW21 further deposed that thereafter he along with Insp.Meera Sharma and the aforesaid persons went to Ajmeri Gate at Thomsan Road at the Barrack of RPF, where accused Pintu was apprehended at the instance of Prosecutrix vide arrest memo Ex.PW18/D and an underwear was also seized at the instance of the accused Pintu vide seizure memo Ex.PW18/G. Thereafter they all returned to PS and went to Tilak Nagar at Saat Manjila Mandir from where accused Hawan Pratap was arrested at the instance of the Prosecutrix vide arrest memo Ex.PW18/H. Both the accused were got medically examined and the sealed exhibits handed over to the IO by the doctor, were seized vide seizure memos Ex.PW18/L & Ex.PW18/M.
20. Apart from the aforesaid police witnesses, the prosecution also examined the concerned clerk of Cloak Room, NDRS namely PW8 SI Ram Avtar Ram, who deposed that on 04.09.2012 at about 8 AM, Ct.Pintu from RPSF came to the Cloak Room with a girl and forcibly kept his articles to deposit the same but he did not fill up the necessary form. He also deposed that on 05.09.2012, Ct.Pintu came to the Cloak Room between 78 PM and the above articles were returned to him. The witness however, fail to identify the accused Pintu despite being pointed out by the learned Addl.PP.
21. The Prosecution also examined Surender Singh Yadav, Chief Parcel Supervisor, NDRS as PW9. He produced the relevant record showing that PW8 Ram Avtar Ram was on duty at the Cloak Room on the intervening night of 34.09.2012 at delivery counter from 12 midnight till 8 AM. The said record is Ex.PW9/A & Ex.PW9/B respectively.
22. The attendant of the retiring room namely Kalongi, who as per the case of the Prosecution, gave the room No.201, IInd Floor, NDRS to Ct.Pintu was examined as PW4. He deposed that on 04.09.2012, he was on duty from 2 PM to 10 PM at Retiring Room, IInd Floor, NDRS. At about 8 PM one carpenter Babu Lal came there and snatched the bunch of keys from his hand stating that one room has to be opened as one officer of RPF is coming. Thereafter, he opened the Retiring Room No.201 and told him to go for his dinner. PW4 then returned at about 10 PM and Babu Lal returned the keys to him. PW4 also deposed that no entry was made about the same room which had been opened at instance of Babu Lal.
23. Balu Lal was examined as PW11. He however failed to support the case of the Prosecution and completely denied having snatched any keys from PW4 Kalongi and also denied that he opened room No.201, IInd Floor, NDRS on the asking of accused Ct.Pintu.
24. PW12 Rafiq Khan, J.E., Rail Niwas, Delhi proved the attendance record to show that PW4 Kolongi was on duty at the Retiring Room on the relevant date.
25. PW6 is SI Dhan Singh, Incharge Crime Team, who deposed that on 05.09.2012, he along with PW7 Ct.Ramesh, Photographer visited the scene of crime i.e. Room No.201, IInd Floor, Officers' Rest House at NDRS and inspected the scene of crime and got it photographed. This witness also prepared the report which is Ex.PW6/A.
26. The Photographer Ct.Ramesh Kumar (PW7) proved the photographs taken by him at the spot i.e. Room No.201, Second Floor, Officers' Rest House at NDRS on 05.09.2015 as Ex.PW7/A1 to Ex.PW7/A11 and their negatives as Ex.PW7/A12 to PW7/A22.
27. PW13 is ASI Sube Singh, who was Incharge of CCTV Control Room at NDRS. He deposed that on 04.09.2012 on the request of police, he prepared a CD of CCTV footage of Camera No.7 from 09:10 PM to 09:14 PM, Camera No.9 from 09:10 PM to 09:12 PM and Camera No.19 from 07:58 AM to 08:02 AM. The said CD was exhibited as Ex.PW1/DX.
28. Dr. Neha Puri, who examined the victim 'A' firstly on 05.09.2012 stepped into witness box as PW3. While Dr.Deepmala, who examined victim 'A' later on at about 10:15 AM on 05.09.2012 was examined as PW10. She proved her report on both sides of the MLC prepared by her as Ex.PW1/DB.
29. Since the accused did not dispute the factum of their medical examination, the doctors who were cited to prove their medical examination and potency test were not examined.
PLEA OF THE ACCUSED :
30. The entire incriminating evidence on record was put to both accused Pintu as well as Hawan Pratap in their statements recorded separately under Section 313 Cr.PC.
31. Accused Pintu Kumar claimed false implication stating that the prosecutrix met him about 23 months before he was arrested in this case. He further stated that on 04.09.2012, Prosecutrix called him on his mobile phone and asked him to meet her at a hotel in Paharganj and that Physical relations were established between him and the Prosecutrix in the said hotel at her instance and with her consent. He further pleaded that he had about Rs.5 lakhs on that day which he had taken from Ramanand and Asharfi Yadav for purchasing a house and the Prosecutrix demanded the same amount from him for which he refused. On the next day, he got a call from PS NDRS where he was called by the police official that he have some issue with the Prosecutrix regarding money. Police official of PS NDRS also directed him to bring that amount and he was falsely arrested in this case.
32. On the other hand, accused Hawan Pratap claimed false implication by the police in order to extort money from him.
33. Both the accused preferred to lead evidence in their defence. DEFENCE EVIDENCE :
34. Accused Pintu examined DW1 Ramanand and DW2 Asharfi Yadav in his defence, whereas accused Hawan Pratap examined hiself as DW3 and DW4 Ravinder Singh in his defence.
35. DW1 Ramanand deposed that he know accused Pintu and that he had given Rs.3 lacs to him about two years back as loan without interest, which he had to return within one year. Whereas DW2 Asharfi Yadav deposed that accused is the brother of his jija and that about 2½ years back he had given Rs.2 lacs to accused Pintu as he had to purchase a house.
36. On the other hand Hawan Pratap examined himself in his defence as DW3. He deposed that in the year 2012, besides studying, he was also pursuing course in Hotel Management and was also working in a restaurant as a waiter and used to pay his fees from his earnings.
37. He further deposed that on 03.09.12, he went to Saat Manjila Temple where the prosecutrix and her sister were sitting in the temple and were crying. He enquired from them as to why they were crying. They informed him that their parents are no more and they also do not have any place to live. They requested him to arrange some accommodation for them. He told them that he cannot arrange any accommodation immediately. However, on humanitarian ground, he gave them his residential address and asked them to contact him, in case they need any help. He also told them that his cousin brother is a guard in the same temple and in case of need, they can contact him. He do not know what happened thereafter.
38. DW3 further deposed that on 04.09.2012 he was at his house at Sagar Pur and was cleaning his house and doing other household work. On 05.09.2012 he again went to his duty and sometime in the afternoon, he received call of my cousin Vijay Singh who informed me that police had come to Saat Manjila Temple. His brother asked him to come to the temple and tell the police about those two girls, whom he had met in the temple on 03.09.2012, if I knew anything about them. DW1 told his brother to meet him in midway at Malik Jewellers near Subhash Nagar. When he reached there, he met one police officers who was in uniform and having three stars on his uniform and they came by Radio Taxi and was accompanied by another person in plain clothes. They took him to PS NDRS with them in the same Radio Taxi stating that they want to make some enquiries from him about those girls. They also relieved Vijay Singh, who was with them.
39. DW3 Hawan Pratap further deposed that he was made to sit in a room on first floor in the PS and that his mobile phone was also taken away by them. Accused Pintoo was present there in his uniform along with another person who was also wearing uniform of RPF. DW3 i.e. Accused Hawan Pratap Singh was made to stand with accused Pintoo while the other person in RPF uniform was sent away.
40. On the same day at about 7 PM, he was asked by one police official to sign a blank form of Arrest Memo. Initially, he refused to sign the same, but that police officer forced him to sign the same. They also made enquiries from me about my family details and also informed him that he have been arrested in a rape case. He also asked the police to get him identified from the victim, but police did not do so and took him to LHMC for his medical examination where his MLC was prepared and some samples were taken. He was also assured by the constable who accompanied him to the hospital, that he will be acquitted, if he is innocent and also asked him to cooperate with the police.
41. DW3 Hawan Pratap further deposed that he was brought back to lockup and his signatures were obtained on 2530 blank papers forcibly. He was detained in the lockup along with accused Pintoo. He was produced before Ld. MM and remanded to J/c. Accused lastly deposed that he is innocent and have been falsely implicated in this case and that he had never met prosecutrix and her sister except when he met them once on 03.09.2012 in Saat Manjila Temple, Tilak Nagar, Delhi.
42. Accused Hawan Pratap also examined one Ravinder Singh in his defence as DW4. He deposed that he know accused Hawan Pratap as he along with his elder brother Abhay @ Dhawan Pratap Singh have been living as tenants in a portion of his house at RZP11, Dayal Park, West Sagarpur, Delhi since 2007. This witness also brought the original police verification form in this regard and proved the photocopy of the same as Ex.DW4/A. This witness also deposed that on 04.09.2012, accused Hawan Pratap remained in the house throughout the day and that he also saw him by leaving for his duty at 9:00 AM and also while coming back at about 5:30 - 6:00 PM. He also proved his copy of ration card as proof of his residence as Ex.DW4/B. ARGUMENTS :
43. Detailed arguments were advanced by learned defence counsels representing both the accused persons as well as by learned Addl. PP. I have heard their arguments and considered the same in the light of evidence on record. Apart from learned defence counsels, accused Hawan Pratap also addressed some arguments besides filing his written submissions, duly supported by relevant case law. I have gone through the said compilation filed by accused Hawan Pratap himself also.
44. Following judgments were relied upon by accused Hawan Pratap in support of his exhaustive written arguments:
a) Navnath Namdeo Maske & Anr. Etc. vs. State of
Maharastra, 2004 Crl.LJ 4756;
b) John & Ors. vs. State of M.P., 2012 Crl.LJ 126;
c) Hayat Singh vs. The State, 2005 Crl.L.J.2473;
d) Ashok Narang vs. State, 2012 [1] JCC 482;
e) Narender Kumar vs. State (NCT of Delhi), 2012
Crl.LJ 3033;
f) Rajoo & Ors. vs. State of M.P., AIR 2009 SC 858 &
g) State of Gujarat vs. Popatbhai Bhalabhai
@ Bharabhai Bharwad, 2014 Crl.LJ 107.
45. While it is argued by the defence that both the accused are innocent and have been falsely implicated in this case and that the Prosecution has not been able to prove beyond reasonable doubt that Prosecutrix 'A' was below the age of 16 years on the date of the alleged incident, the Prosecution on the other hand strongly argued that the case against the accused has been proved beyond reasonable doubt and they are liable to be convicted for the alleged offences. The Prosecution contended that the testimony of the Prosecutrix 'A' is sufficient to record conviction of accused Pintu and Hawan Pratap inasmuch as her testimony remained unimpeached despite her lengthy crossexamination.
46. It was pointed out that the Prosecutrix not only identified both the accused persons during the course of trial, but also consistently deposed that she was raped by accused Hawan Pratap and Pintu at the railway station on the night of 04.09.2012.
47. Learned Addl. PP also argued that the accused persons are facing trial for the charge of having committed offences punishable under Section 376(2)(g) IPC and by virtue of presumption under Section 114A Evidence Act, the court shall presume that the sexual intercourse by the accused with the Prosecutrix was without her consent, as deposed by her. Learned Addl. PP strongly argued that the presumption under Section 114A Evidence Act operates against accused persons and they have failed to discharge the onus of rebutting this presumption, thus making them liable to be convicted for the alleged offences.
48. Extending his arguments further, learned Addl. PP drew my attention to the report of the FSL Ex.18/N, as per which the DNA of accused Pintu was found tallying with the DNA found on the underwear of the victim 'A', her vaginal swabs, one of the bed sheets, pillow cover and one handkerchief recovered from the scene of crime.
49. Learned Addl. PP argued that though the DNA of accused Hawan Pratap was not found tallying with the DNA on the aforesaid articles, however, there is sufficient scientific evidence to establish that DNA of accused Pintu was found matching with the DNA on the aforesaid articles including the vaginal swab of the Prosecutrix and other articles recovered from the scene of crime. It is contended by learned Addl. PP that it is well settled law that the mere absence of semen or DNA of accused Hawan Pratap would not entitle him to an acquittal in view of the fact that the Prosecutrix has categorically deposed about the role of the accused Hawan Pratap and stated that he also raped her. ANALYSIS & FINDINGS :
50. In the light of submissions made and relevant case law, the evidence on record may be analyzed by categorizing it as under:
Age of the Victim :
51. The Prosecution relied upon the testimony of PW15 Yogesh Kumar Sharma, Principal Nigam Praathmik Vidhalaya, Chokhandi OldI, Delhi and the record produced by the witness in order to substantiate its case that the Prosecutrix 'A' was below 16 years of age on the date of alleged occurrence. Learned Addl. PP argued that PW15 by way of the relevant entry in the Attendance Register Ex.PW15/A coupled with the certificate issued by PW5 in respect of the Date of Birth of the Prosecutrix and the copy of application (Ex.PW15/C) submitted by Smt.'M', mother of the Prosecutrix at the time of her admission in the aforesaid school, her affidavit (Ex.PW15/D) and the copy of admission form (Ex.PW15/E) has been able to prove beyond reasonable doubt that the date of birth of the Prosecutrix 'A' was 23.10.1996.
52. On the other hand, the Defence contended that the record produced by PW15 pertains to admission of one Anju D/o Sh.'S.M.' & Smt.'M' in the aforesaid school. It is submitted that it is not the case of the Prosecution that the name of the Prosecutrix is Anju. It is further submitted that the affidavit (Ex.PW15/D) is signed by Smt.'M' though the affidavit is of Sh.'F.M.'. Learned defence counsel thus contended that documents produced by PW15 do not establish that the age of the Prosecutrix was less than 16 years on the date of the incident in question.
53. I have considered the said submissions in the light of the evidence on record produced by PW15. Admittedly, the only evidence led by the Prosecution to establish the age of the Prosecutrix/victim is the record produced by PW15. PW15 brought the admission record of his school, as per which one Anju was admitted in Class IIA in the said school in 24.07.07 vide entry No.12105 (Ex.PW15/A). An application was submitted at the time of admission of Km. Anju by her mother namely Smt.'M', copy of the said application is Ex.PW15/C. PW15 also deposed that 'S.M', father of Anju also submitted the affidavit at the time of admission of his child. (Ex.PW15/D).
54. A careful perusal of the aforesaid documents however clearly shows that the the said records pertain to one Km. Anju and the Prosecution has failed to lead any evidence to establish that the name of Prosecutrix was also Anju. Moreover, the supporting affidavit (Ex.PW15/D) though in the name of Sh.'S.M' is apparently signed by Smt.'M'. Further, as per the charge sheet, the surname of the Prosecutrix as police has stated is 'Ahuja', whereas in the admission record produced by PW15 there is surname of 'Pahuja'. Thus, the documents produced by PW15 cannot be relied upon, nor can they said to establish that they pertained to the Prosecutrix 'A' or that her age was below 16 years at the time of the alleged incident.
55. In view of the above discussion, the documentary proof produced by the Prosecution in order to establish the age of the Prosecutrix must necessarily be discarded. Consequently, it must be held that Prosecution has been unable to establish that Proescutrix 'A' was below 16 years of age at the time of alleged incident.
Testimony of Victim 'A' :
56. It cannot be doubted that in a case under Section 376 IPC, the most crucial witness of Prosecution is the victim herself. Her testimony, if found credible, can be relied upon without any corroboration to prove the guilt of the accused. However, at the same time, it must be kept in mind that there is no law which presumes that the testimony of a rape victim must be accepted as a gospel truth. Though a rape victim has been given the status of an injured witness and her testimony need not necessarily be supported by corroborative evidence, yet at the same time, it cannot be ignored that the testimony of a rape victim must also pass the scrutiny of being credible and absolutely trustworthy evidence before it can be acted upon. In this regard reliance may be placed on the judgment of Apex Court titled as Rajoo & Ors. vs. State of M.P. reported as AIR 2009 SC 858, wherein it is held under :
"The evidence of Prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well......."
57. Not only the testimony of the victim must be credible and trustworthy but also it must be of "sterling quality" before it can be accepted, as laid down by the Hon'ble Apex Court in Krishan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130.
58. Keeping in view the aforesaid settled legal propositions, it is now necessary to analyze the testimony of the Prosecutrix 'A' in order to assess whether the Prosecution has been able to discharge its onus of proving the guilt of the accused beyond the realm of reasonable doubt.
59. I may hasten to add at this juncture that though the above named accused are facing trial for having committed the offence under Section 376(2)(g) IPC and the presumption under Section 114A Evidence Act operates against them, yet at the same time, it must be borne in mind that before the presumption under Section 114A Evidence Act can operate against them, the Prosecution must firstly establish its case that it is the accused who forcibly established physical relations with the Prosecutrix on the day, time, place and manner, as alleged in the chargesheet.
60. In other words, before the presumption under Section 114A Evidence Act can be drawn, there should be a reliable evidence amounting to proof to hold that sexual intercourse took place between the accused and the victim and if there is no such satisfactory evidence to this effect on record, it would be wrong to resort to the presumption under Section 114A Evidence Act or to hold that the victim did not give her consent for such sexual intercourse.
61. Prosecutrix 'A' (PW1) deposed that one day (the date she failed to recall), she and her sister 'N' went to the railway station with all their belongings as they had no place to live. 23 officers in uniform inquired from them as to what was the problem and they offered help to them. In the morning, at about 7:30 AM, she took her sister 'N' to the doctor at Kirti Nagar and the aforesaid officials helped them in depositing their belongings at the railway station itself. The said officers also gave their mobile number to them and after the treatment of her sister, they called them to ask them if they could arrange for some accommodation for her and her sister 'N'.
62. From the aforesaid statement of Prosecutrix 'A', it emerges that there were 23 railway officials who helped them at the railway station and got their luggages deposited at the railway station. PW1 also deposed that after the treatment of her sister, she called the said railway officials and asked them if they could arrange for some accommodation for her and her sister. One of the officials whose name she did not know (emphasis supplied) called them and told them that they have booked a room in hotel for them and ask them to come at railway station at Paharganj. However, as her sister 'N' was not feeling well, they did not go there and instead went to seven storeyed temple at Tilak Nagar and sat there. One boy came there and started making enquiries from them.
63. PW1 further deposed that she does not know the name of the boy. He offered help to them in taking back their belongings from the railway station and accompanied both of them to the Railway Station. She further deposed that they reached at the Railway Station at about 8:30 PM and she asked her sister to keep sitting in the TSR and she went with that boy inside the railway station to take back their belongings. She made a call to the officer who had given them their mobile number and requested them to return their luggage. However, they did not return their luggage and asked her to call her sister. They also took the said boy to a side and started talking with him.
64. PW1 'A' further deposed that one of the officer told her that he would return their belongings but first he asked her to call her sister by saying that he would do 'galat kaam' with her and then with her (PW1). Prosecutrix 'A' also deposed that however, she did not listen to him and called her sister and asked her sister to go away. Thereafter, they sent away that boy and did not return their luggage.
65. PW1 also deposed that the said 'two officers' took her to a room at second floor of the railway station on the pretext of returning of their belongings to her. However, they did not give back her belongings and bolted the door from inside. Both of them caught hold of her hands and legs and forcibly raped her one by one. Thereafter, one of them left and "third person" who had met them at Tilak Nagar came to that room. This person also committed rape upon her. Thereafter, she went went downstairs and made a call to her sister who came there. One of the auto driver saw her crying in pain and called the police. She was taken to the PS which was very close to the railway station where her statement Ex.PW1/A was recorded.
66. During the course of her deposition, the Prosecutrix 'A' also proved her statement recorded under Section 164 Cr.PC as Ex.PW1/B. It is noteworthy that PW1 'A' at the time of recording of her testimony in court pointed out towards accused Pintu and correctly identified as one of the railway official who had raped her. On seeing accused Hawan Pratap @ Pappi, PW1 'A' identified him as the same person who had met them in Tilak Nagar and who had come to the railway station and had raped her. PW1 'A' further added that "one of the railway officer who had raped her along with accused Pintu is not present in the court today". She further deposed that she can identify him if he is shown to her.
67. PW1 was extensively crossexamined by the defence counsels appearing on behalf of accused Pintu and Hawap Pratap @ Pappi. In her crossexamination, PW1 'A' stated on more than one occasion during her testimony that she was forced by the IO Insp.Meera Sharma to get this case registered. She also deposed that Insp.Meera Sharma and other persons pressurized her to give her statement under Section 164 Cr.PC (Ex.PW1/B) and that she did not give the said statement freely and voluntarily. She also deposed that "At that time, I was under pressure from various persons including Insp.Meera Sharma as she did not want me to disclose about the third offender. (Vol. The police had apprehended this person from the railway station but he was released.)."
68. In her crossexamination, PW1 'A' admitted that "It is correct that I did not know the name of any of the accused till the time my statement Ex.PW1/B was recorded. I came to know the name of accused Hawan Pratap today only upon asking of this question by learned Defence counsel. I do not know any nick name of accused Hawan Pratap. (Vol. I know the accused by face. ) I do not know the name of any of the accused persons."
69. In her crossexamination dated 05.06.2013, Prosecutrix 'A' (PW1) deposed that "I do not know if the names of two accused persons are mentioned in my complaint Ex.PW1/A. (Vol. I had not stated the name of any accused to the police as I was not knowing the accused.)"
70. From the aforesaid statement of the Prosecutrix 'A' the following facts clearly emerge :
a) 'A' was not aware of the name of the accused Pintu and Hawan Pratap even on the day when her examinationinchief was recorded i.e. on 02.02.2013. Till date of recording of her examinationin chief and even on 11.02.2013 when she was crossexamined, the victim was not aware of the names of accused Pintu and Hawan Pratap. It is noteworthy that even her statement under Section 164 Cr.PC (Ex.PW1/B) does not find mention of the name of any of the accused persons and she has only referred to them as "railway officers" and "Mandir wala Ladka"
in her said statement Ex.PW1/B.
b) Prosecutrix 'A' (PW1) time and again deposed before the court that she was under pressure of the IO/Insp.Meera Sharma not only for registration of the FIR of the case but also for giving consent for her medical examination and even at the time of recording of her statement under Section 164 Cr.PC. She has also deposed before the court that IO/Insp.Meera Sharma released one of the railway officers who was apprehended from the railway station and pressurize her as she did not want her to disclose anything about the third offender.
c) The most striking feature which emerges from the testimony of Prosecutrix 'A' is that as per the witness, she was raped firstly by two railway officials, including accused Pintu and thereafter by accused Hawan Pratap. Thus, as per the testimony of PW1 three persons including two railway officials committed rape upon her.
71. This claim of the Prosecutrix is entirely different from the case of the Prosecution. It may be necessary at this juncture to revisit the contents of the charge sheet, as per which the Prosecutrix 'A' was allegedly raped by only two persons i.e. accused Pintu and Hawan Pratap.
72. What is also striking is that the complaint Ex.PW1/A, on which the case in hand was registered, clearly bears the name of the accused Pintu and Pappi, although, the Prosecutrix testified before the court that she was unaware of the names of either of the accused persons even till date, when she has been crossexamined by the defence. She rather voluntarily added that she came to know about the name of accused Hawan Pratap in the court on that day during her crossexamination when it was told to her by learned defence counsel. Admittedly, her statement under Section 164 Cr.PC (Ex.PW1/B) also does not mention the name of either of the accused persons.
73. A reference to her MLCs (Ex.PW1/DA & Ex.PW1/DB) would also show that in both the said MLCs, she while disclosing the alleged history to the examining doctors, told that the alleged sexual assault was by "two railway officers". Admittedly, accused Hawan Pratap is not a railway official. It was also testified by the Prosecutrix 'A' that one of the railway officials was apprehended at the railway station and was let off by Insp.Meera Sharma and she has been pressurized by her not to reveal anything about the third railway officer.
74. It appears from the above discussion and careful scrutiny of the testimony of the Prosecutrix 'A' that she was allegedly raped by three persons and not by two persons as projected by the Prosecution. The testimony of the Prosecutrix 'A' is thus clearly at variance with the case of the Prosecution as per the chargesheet. She has also categorically deposed before the court that she was under pressure of Insp.Meera Sharma and that she did not want to get any case registered as they were already facing lot of problems.
75. In the light of the aforesaid facts and circumstances and from the testimony of the victim 'A' it is apparent that her testimony is at variance from the case as borne out from the charge sheet and cannot be categorized as reliable or credible piece of evidence. Testimony of PW14 'N' , Sister of the Prosecutrix : Variation in statements of Prosecutrix 'A' and her sister 'N'.
76. Contrary to the testimony of PW1, her sister PW14 'N' deposed that on 04.09.2012, at about 3 AM she along with her sister 'A' reached at NDRS for going to Jammu and while they were sitting at railway station, they found that they had lost their train tickets.
77. It may be reiterated that in her examinationinchief the Prosecutrix 'A' deposed that they had gone to the railway station with all their belongings as they had no place to live. It may also be relevant to revert to the crossexamination of PW1 at this juncture, wherein she admitted that she had stated before the police at the time of recording of her statement under Section 161 Cr.PC as well as learned MM that they had to go to Jammu and that they had cooked up this story to go to Jammu even at the Railway Station otherwise they could not have stayed at the railway station. PW1 'A' also deposed that they had gone to stay at railway station as they did not have any money to live at any hotel.
78. Now coming back to the testimony of PW14 'N', wherein she deposed that she saw accused Pintu present at the railway station in uniform. Accused came to them and asked from them about the reason for sitting there. She told the accused that they had lost their train tickets. Accused Pintu took her sister 'A' to Cloak Room and got deposited their luggage. At about 7 AM, PW14 'N' along with her sister went to doctor as she was feeling unwell. Accused Pintu made several calls on her mobile and informed that he has booked one room for them. She refused for the same stating that they do not require any room.
79. At this juncture, the testimony of PW14 'N' may again be read in conjunction with that of Prosecutrix 'A', who had deposed that she had called one of the railway officers requesting him to find a place for them to stay. PW14 further deposed that accused Hawan Pratap offered help to them and accompanied them to railway station in a TSR. She remained in the TSR, while her sister 'A' and accused Hawan Pratap went to accused Pintu to take back their luggage. After 15 minutes she received phone call of her sister 'A' on her mobile phone who was screaming and she told her that she has been raped and also told her to flee away from there as they want to rape you also. Thereafter, she made a call at 100 number.
80. Here again the testimony of PW14 'N' and PW1 'A' are at variance with each other. As per PW1 'A' she was told by one of the railway officers before the commission of the alleged rape to call her sister as they wanted to rape them one by one. PW1 also deposed that she did not listen to him and told her sister to go away. On the other hand, her sister i.e. PW14 'N' deposed that 'A' called her and warned her that they want to rape her also and told her to flee away from there. The testimony of PW14 that she made a call at 100 number is also apparently contrary to the very case of the Prosecution, as it is the case of the Prosecution that the call at 100 number was made by Krishna Anand (PW5). It may also be relevant to note that not only PW1 but PW14 also claimed that "My sister was given beatings and she was asked to give her statement before learned MM as directed by the police. Insp. Meera Sharma had given beatings and threats to my sister."
Arrest of the Accused persons :
81. In tune with the case of the Prosecution, it was deposed both by PW18 Insp.Meera Sharma and PW21 SI Dalip Kumar, that on 05.09.2012, Prosecutrix 'A', her sister 'N', Crime Team officials, W/Ct.Babita and both PW18 Insp.Meera Sharma and PW21 SI Dalip Kumar reached at the place of incident i.e. Room No.201, Second Floor, Paharganj Side, NDRS, New Delhi. Crime Team officials inspected the scene of crime and took the photographs. IO/Insp.Meera Sharma (PW18) deposed that she lifted two white bedsheets having some stains, two pillow covers and one handkerchief and seized the same vide seizure memo Ex.PW18/A. PW18 also deposed that she made certain inquiries from RPF officials and came to know that accused Pintu lives in RPSF Barrack, near Platform No.16, Thomson Road and she along with PW21 SI Dalip Kumar, Prosecutrix 'A' and W/Ct.Babita reached at RPSF Barrack and on the pointing out of the Prosecutrix 'A', accused Pintu was arrested. IO further deposed that from the barrack of RPSF, they all including accused Pintu, reached at Saat Manjila Mandir, Tilak Nagar, Delhi, where at the instance of Prosecutrix 'A' accused Hawan Pratap @ Pappi was arrested.
82. The testimony of PW21 SI Dalip Kumar shows that at the time of lifting of the articles from the scene of crime and arrest of both the accused persons, Prosecutrix 'A' was present and the accused were arrested at her instance. However, in her entire testimony, the Prosecutrix 'A' did not even whisper about accompanying the IO (PW18) and SI Dalip Kumar (PW21) either to RPSF barrack or to Saat Manjila Mandir, Tilak Nagar, Delhi nor did she depose that the accused were arrested from the said places in her presence or at her instance. Prosecutrix 'A' was not even crossexamined by the Prosecution to this effect. Rather, on 02.02.2013, during her crossexamination PW1 'A' stated that "It is correct that the boy who met us in the Saat Manjila Mandir at Tilak Nagar was called to the PS."
83. In her crossexamination recorded on 27.04.2013, she further deposed that she never visited the railway station after the incident in question. She also stated that she does not know as to how the site plan Mark X (later exhibited as Ex.PW18/A) bears her signatures and that it was not prepared on her instructions. PW1 'A' deposed that though the arrest memo and personal search memo of accused Hawan Pratap bear her signatures, however, she did not know when and where her signatures were obtained on those documents.
84. At this juncture, it is relevant to reiterate that Prosecutrix 'A' also deposed that accused Hawan Pratap was arrested from the railway station. Rather, it was the case of the Prosecution that accused Hawan Pratap was arrested from Saat Manjila Mandir, Tilak Nagar, Delhi at the instance of the Prosecutrix. In her crossexamination recorded on 18.05.2013, Prosecutrix (PW1) deposed that "All the accused persons were called in the PS in the morning of the day when the complaint was lodged." She further admitted that accused Pintu was present in the PS on 05.09.2012 since morning. Similarly, PW14 'N' did not depose anything with regard to the arrest of the accused persons in her present or in presence of her sister 'A'. Rather, in her crossexamination, PW14 'N' deposed that "Both the accused were arrested in my presence at the PS. I was not taken either to the railway station or to the Saat Manjila Temple by police during investigation of this case."
85. Keeping in view the above testimony of PW1 'A' and PW14 'N', to my mind it appears that the claim of the accused Hawan Pratap Singh (DW2) that he was taken to the PS and arrested there appears to be probable. Prosecution, in my view, has failed to establish that the accused Pintu was arrested from RPF Barrack or that accused Hawan Pratap was arrested from Saat Manjila Mandir, Tilak Nagar, Delhi at the instance of the Prosecutrix 'A'.
86. It is clearly borne out from the testimony of Prosecutrix 'A' that she did not even know if the names of the two accused persons are mentioned in the complaint Ex.PW1/A. In her crossexamination dated 05.06.2013, PW1 'A' also voluntarily added that she had not stated the name of any accused to the police as she was not knowing the accused.
87. Accepting the testimony of the Prosecutrix 'A' recorded before the court as correct, it is apparent that the Prosecutrix 'A' did not know the names of the accused persons at the time when the case in hand was registered. There is no explanation whatsoever on record as to how the names 'Pintu' and 'Pappi' appeared in the complaint Ex.PW1/A. That being so, apparently on the day when the accused was arrested, the Prosecutrix did not disclose the name of the alleged offenders to the Investigation Agency. Moreover, she has also testified before the court that she did not accompany the police at the time of arrest of either accused Pintu or Hawan Pratap nor they were arrested at her instance. Rather, it is borne out from her testimony and testimony of her sister PW14 'N' that both the accused persons were arrested on 05.09.2012 at the PS.
88. Therefore, the entire claim of the Investigation Agency that they went to RPSF Barack or to Saat Manjila Mandir, Tilak Nagar and arrested accused persons at the instance of the Prosecutrix 'A' is nothing but a concocted story. It also remains questionable as to how the Investigation Agency traced accused Pintu and Hawan Pratap as the alleged offenders, if as per the testimony of the Prosecutrix 'A' she had not even disclosed their names in her complaint Ex.PW1/A, which admittedly bear her signatures, but whose contents she is unaware of.
89. It is apparent that the Investigation Agency arrested accused Pintu and Hawan Pratap without they having been named by the Prosecutrix 'A' in the FIR. There is also no evidence whatsoever to show that the accused persons were got identified by the Prosecutrix 'A' by the Investigation Agency in any TIP proceedings. Prosecutrix and her sister have categorically denied before the court that they accompanied the police to RPSF Barrack and Saat Manjila Mandir, Tilak Nagar or that the accused were not arrested from these places respectively at her instance.
90. In the light of the above evidence as borne out from the court record, it is apparent that the accused persons were called to the PS and arrested in this case without there being any basis for implicating them since as per the testimony of the Prosecutrix 'A' she did not even know their names though they were find mention in the complaint Ex.PW1/A. Recoveries made from the alleged place of incident :
91. It is the case of the Prosecution that two bed sheets, two pillow covers and one handkerchief were recovered from Room No.201, IInd Floor, Paharganj Side, NDRS and the spot was got was inspected by the Crime Team. As discussed above, Prosecutrix PW1 denied that she ever went to NDRS again after the date of the alleged incident. The aforesaid articles stated to have been seized by the IO were admittedly sealed with the seal of the IO. There is no evidence to show that the seal of the IO after use was handed over to any independent person. The seizure memo Ex.PW18/A does not bear signatures of the Prosecutrix 'A'. The alleged recovery of the two bed sheets, two pillow covers and one handkerchief thus thereby becomes doubtful and the possibility of the same having been planted cannot be ruled out, considering the aforesaid circumstances.
92. It is also noteworthy that the report of the Crime Team made at the scene of crime which is Ex.PW6/A, admittedly does not find mention of the handkerchief which is stated to have been recovered from the alleged place of incident. Reference in this regard may be made to the crossexamination of Incharge, Crime Team PW6 SI Dhan Singh. CCTV Footage :
93. The Prosecution relied upon the testimony of PW13 ASI Sube Singh, Incharge CCTV Control Room at NDRS to prove the CD of CCTV footage of cameras installed at railway station. PW13 deposed that on the request of the police, he prepared a CD of CCTV footage of Camera No.7 from 09:10 PM to 09:14 PM, Camera No.9 from 09:10 PM to 09:12 PM and Camera No.19 from 07:58 AM to 08:02 AM. The said CD is Ex.PW1/DX.
94. In his crossexamination however, the witness admitted that vide letter dated 07.09.2012 the IO had asked them for CCTV footage for the period from 8:30 AM to 9:30 PM of 04.09.2012. He voluntarily added that CCTV footage which he had submitted running into 24 minutes was specifically prepared at the instance of SHO Meera Sharma and her staff after they watch the entire recording for the aforesaid specific period.
95. From the testimony of PW13 it clearly emerges that though the IO initially, by way of her communication dated 07.09.2012 (which forms part of the charge sheet) had asked for the CCTV footage on 04.09.2012 from 8:30 PM to 9:30 PM, however, three clips of 04 minutes, 02 minutes and 04 minutes, respectively from the three different cameras installed at the railway station were obtained in a CD. PW13 clarified that the said CCTV camera footage running into 24 minutes was specifically prepared at the instance of Insp.Meera Sharma and her staff after they watched the entire recording. Selective clippings brought before the court at the instance of Insp.Meera Sharma thus must necessarily be read adversely against the Prosecution. Apparently, an attempt has been made conceal some parts of the CCTV recordings and selective recordings of the CCTV have been brought before the court as evidence.
96. The little CCTV recording that was exhibited during the trial was also shown to the victim i.e. PW1. After watching two recordings in CD containing video recording from Camera No.9 and Camera No.7 from 9:10 PM to 9:12 PM and 9:10 PM to 9:14 PM respectively, both dated 04.09.2012 the witness i.e. PW1 stated that neither she nor accused Hawan Pratap is visible in any of these recordings. In her further cross examination recorded on 05.06.2013 the witness was shown recording from CD (Ex.PW1/D) recorded from Camera No.19 from 7:58 AM to 8:02 AM on 04.09.2012. She admitted that in the said recording she is seen moving on the platform along with one bag.
97. This testimony of the Prosecutrix (PW1), to my mind, is extremely damaging to the case of the Prosecution. It is noteworthy that it is the claim of the Prosecutrix that she was having two bags with her which were deposited in the Cloak Room by accused Pintu before she left from railway station along with her sister 'N' as her sister 'N' had to be taken to a doctor. It is the claim of the Prosecutrix 'A' as well as PW14 'N' that they left from the railway station at about 77:30 AM. The CCTV footage from Camera No.19 from 7:58 AM to 8:02 AM of 04.09.2012 however admittedly shows Prosecutrix moving on the platform along with one bag. Thus, her claim that she left along with her sister 'N' to go to doctor at about 77:30 AM after having deposited their luggages in the Cloak Room is clearly falsified by this clipping.
Independent witnesses :
98. PW5 Krishna Anand is the TSR driver who on 04.09.2012 in seeing the girl in a bad condition and crying informed the police by calling at 100 number from his mobile phone. PW5 stated in his cross examination that he was told by that girl that some "gande se ladke"
wanted to take her along with them. He also stated that he might be able to recognize those boys by seeing them. He also admitted that he made a call to the police as those "gande se ladke" were harassing the said girl. Upon seeing seeing the accused persons in the court room during his testimony, the witness stated that none of those "gande se ladke" were present in the court room.
99. From the testimony of PW5, it thus appears that he made a call to police at 100 number as he found that one girl was coming out of the railway station and her condition was not good. She told him that some 'gande se ladke' were harassing her. The testimony of PW5 read in conjunction with DD No.35 PP Sagatarashan dated 04.09.2012 and DD No.2A dated 05.09.2012 PS NDRS clearly shows that the call at 100 number was made by PW5 as one unknown girl was being harassed by autodrivers. Thus, till that time, there was no allegation of any rape having been committed upon the Prosecutrix. Rather, as per PW5, she was either of the girls who was seen coming out of the railway station by him and that she was being harassed by some 'gande se ladke' who were admittedly none of the accused present in the court when this witness was examined.
FSL Examination :
100. Though the FSL result Ex.PW18/N shows presence of DNA of accused Pintu on the exhibits seized from the scene of crime i.e. bed sheet, pillow cover and handkerchief, besides other exhibits. However, in view of the fact that the recovery of articles i.e. pillow covers, bed sheets and handkerchief, itself is doubtful, FSL result cannot be considered to be a material piece of evidence, sufficient enough to convict accused persons.
101. Further, though the FSL result also shows the presence of human semen of accused Pintu in the vaginal secretion and articles seized from the Prosecutrix, however, it is well settled law that the medical evidence is merely corroborative in nature. In view of the fact that the testimony of the Prosecutrix 'A' has not been found to be credible and trustworthy as per the discussion in the preceding paragraphs, it is wholly unsafe and undesirable that the accused Pintu be convicted solely on the basis of the FSL result. Moreover, it may be reiterated that as per the FSL result Ex.PW18/N, the DNA of accused Hawan Pratap was not found tallying with the articles seized from the scene of crime or from the samples/exhibits of the Prosecutrix 'A'.
Place of Incident :
102. The incident in question took place in Room No.201, IInd Floor, PG Side, NDRS as per the case of the Prosecution. IO/Insp.Meera Sharma (PW18) and SI Dalip Kumar (PW21) both testified in court that they along with other police staff, Prosecutrix 'A' and her sister 'N' went to the said alleged place of incident on 05.09.2012. IO/Insp.Meera Sharma has prepared the site plan (Ex.PW18/B) at the instance of the Prosecutrix. It is also the case of the Prosecution that the said place of incident was mentioned by the complainant 'A' in her complaint Ex.PW1/A. Thus, as per the prosecution story, the Investigation Agency was in the know of the alleged place of incident even at the time of registration of the FIR.
103. The testimony of the Prosecutrix 'A' however tells entirely a different story. In her examinationinchief, Prosecutrix 'A' did not depose anything about going to the alleged place of incident with her belongings on 05.09.2012. Her only deposition in this regard is that "I had pointed out the place of incident to the police." Apart from this solitary statement, she did not anything else about ever visiting to the place of incident during the place of incident or pointing out the same to the police. In her cross examination however PW1 'A' deposed that "I never visited railway station after the incident in question." She also added that though the site plan Mark X (later exhibited as Ex.PW18/B) bears her signatures at point 'A', however it was not prepared on her instructions. She further deposed that she does not know when and where her signatures were obtained on the said site plan. Not only this, Prosecutrix 'A' also deposed during her crossexamination recorded on 27.04.2013 that "I am not aware of the contents of complaint Ex.PW1/A. (Vol. Only my signatures were obtained on the same.)"
104. Now if the testimony of the Prosecutrix recorded on oath before the court is to be believed, then it appears that she was not even aware of the contents of the complaint Ex.PW1/A and only her signatures were obtained on the same.
105. During the course of her testimony, the complainant 'A' stated several times before the court that she was being pressurized by the IO/Insp.Meera Sharma to get the case registered. She also deposed that even the site plan was not prepared on her instructions and she never visited railway station after the incident in question.
106. Her aforesaid crossexamination thus clearly reveals that she only accompanied the police to the alleged place of incident i.e. Room No. 201, IInd Floor, PG Side, NDRS. It further emerges from her cross examination that she never even disclosed the alleged place of incident to the police in her complaint Ex.PW1/A as she was not even aware of its contents, though bore her signatures.
107. That being so, the entire case of the Prosecution that the alleged incident took place in Room No.201, IInd Floor, PG Side, NDRS becomes doubtful. The testimony of IO/Insp.Meera Sharma has also come under cloud in view of consistent testimony of Prosecutrix 'A' and her sister 'N' that she was been pressurized throughout the process of investigation by Insp.Meera Sharma.
108. It is also noteworthy that PW4 Kalonji, who was on duty as attendant in the Retiring Room at 2nd Floor NDRS on 04.09.2012 deposed that one Babu Lal came there and snatched the bunch of keys from his hand stating that one room has to be opened for one RPF officer. He also deposed that Babu Lal opened the Retiring Room and told him to go for his dinner. PW4 Kalonji returned at about 10 PM and Babu Lal returned the keys to him and no entry was made about the said room which had been opened at instance of Babu Lal.
109. As per the case of Prosecution it is PW11 Babu Lal, who had opened the said room where the alleged incident took place on the asking of accused Pintu Kumar. PW11 Babu Lal however, turned hostile upon stepping into the witness box. He denied that on the asking of accused Pintu Kumar he had opened Room No.201 at the Railway Station on the ground that the same is required for one senior officer. In fact, the Prosecution witness even failed to identify accused Pintu Kumar in the court and denied that he knows him or that he had opened the aforesaid room on his asking. In view thereof, it is clear that the Prosecution has failed to prove the important ingredient of its case that the incident in question took place in room No.201 at the Railway Station or that the same was opened at the instance of accused Pintu Kumar.
110. In these circumstances, I am constrained to hold that the Prosecution has also failed to prove the alleged place of incident which, to my mind, is extremely fatal to the case of the Prosecution. CONCLUSION :
111. In view of the above discussion, I find that the Prosecution case is nothing but a jumbled compilation of facts bits of evidence which cannot be categorized as 'credible'. The facts brought on record during trial has falsified the very basis of the case of the Prosecution inasmuch as the victim has denied that she even knows the contents of her complaint Ex.PW1/A, on the basis of which the aforesaid FIR was registered. She has time and again stated before the court that she has been pressurized by the IO/Insp.Meera Sharma at various stages of investigation. Though it has come on record that accused Hawan Pratap and Pintu were identified by her during the course of trial as the persons who raped her on 04.09.2012, however, the entire claim of the Prosecutrix 'A' becomes doubtful in view of various contradictions which have been pointed out earlier while discussing her testimony. Moreover, her claim in the court is clearly at variance with the case of the Prosecution as borne out from the charge sheet, which has also been discussed in the preceding paragraphs of the judgment. The alleged place of incident, the recoveries stated to have been effected from the said place of incident and the place and manner of arrest of the two accused is extremely doubtful and not proved as per the case of the Prosecution. Apart from this, the most striking fact which has featured in the evidence during trial is that apparently one of the assailants was let off by Insp.Meera Sharma, though as per the Prosecutrix 'A', he was apprehended. This matter is extremely serious.
112. In these circumstances, the accused persons, to my mind, must be given benefit of doubt in view of the facts as has been brought before the court in the course of trial, particularly as drawn out from the cross examination of the relevant prosecution witnesses. Accordingly, both the accused persons viz., Hawan Pratap Singh @ Pappi s/o Sh.Cheddi Singh and Pintu Kumar s/o Sh.Upender Yadav are hereby acquitted of all the charges on which they were facing trial. They be released forthwith if not required in any other case.
113. Before parting, keeping in view the above observation based on evidence brought on record during trial, I am constrained to direct Commissioner of Police, Delhi to initiate an inquiry into the allegations made against Insp.Meera Sharma. The action taken be communicated to this court within two weeks from the date of receipt of this judgment. A copy of this judgment be sent to Commissioner of Police for necessary information and compliance.
114. File be consigned to record room.
Announced in the Open Court on 01st May, 2015 (Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.