Delhi District Court
State vs . Kapil Sharma Etc. on 2 July, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 141/09)
Unique ID case No. 02404R0150702009
State Vs. Kapil Sharma etc.
FIR No. : 125/2009
U/s : 342/376 (2) (g)/450/506/34 IPC
P.S. : Jahangir Puri
State Vs. 1. Kapil Sharma
S/o Sh. Sikhand Sharma,
R/o J/433, Jahangir Puri,
Delhi.
2. Jai Prakash @ Mullah
S/o Sh. Guru Dutt,
R/o H.No. J219,
Jahangir Puri, Delhi.
3. Bablu
S/o Sh. Mahesh Kumar
r/o H. No. J816,
Jahangir Puri, Delhi.
4. Vikrant @ Vicky
S/o Sh. Laxman Bharti
r/o L14/1, Mahendra Park,
Delhi.
Date of institution of case 02.06.2009
Date on which, judgment has been reserved 02.07.2012
Date of pronouncement of judgment 02.07.2012
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 1 / 14
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JUDGMENT:
1 The prosecution case unfolds with the receipt of call by SI Sushila Rana, who reached Police Station Jahangir Puri and was handed over MLC of victim / prosecutrix by ASI Ram Kishan. She was also handed over sealed samples, slides and clothes of the victim. SI Sushila Rama thereafter recorded statement of prosecutrix, who stated that on 01.03.2009, her brother Kushan Ali left for work at about 8:00 am and that thereafter she was alone in her room and that at about 3:00 PM, she was cooking food in the room with door of the room open and at that time four persons, who were drunk, forcibly entered the said room and closed its door from inside. One of the persons closed the mouth of the prosecutrix with his hand and prosecutrix was threatened by all the four persons that in case she raised alarm, she would be killed. Thereafter all of the said persons forcibly raped the prosecutrix one by one. The victim stated that though she did not know name of the said persons, she could identify them, if shown to her. She also stated that at that time she had tried to raise alarm but none heard the same. While leaving after about one hour, said persons threatened the prosecutrix that they were ruffians of the area and in case she raised alarm, she would be killed. The prosecutrix further stated that she got scared by the threats extended by the offenders and after they left, she gave a telephonic call to her brother. When her brother returned in the evening, she narrated the entire incident to him, who in turn informed Meena, sister of the prosecutrix about the incident. Thereafter prosecutrix was taken to Police Station by her sister Meena and brother Kushan Ali. She prayed that action be taken against the persons, who had forcibly raped her.
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 2 / 14
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2 On this statement a case u/s. 342/376 (2) (g)/450/506/34 IPC was
registered at PS Jahangir Puri. During the course of investigation, accused Kapil
Sharma was arrested upon identification of the prosecutrix. The IO also prepared the site plan of the place of incident and got the statement of prosecutrix recorded under Section 164 CrPC. During interrogation, accused Kapil Sharma made disclosure statement that he had committed the offence along with his three associates namely Bablu s/o Mahesh, Jai Prakash @ Mullah and Vikrant @ Vicky.
3 Initially the three other coaccused namely Bablu, Jai Prakash @ Mullah, and Vikrant @ Vicky could not be arrested and charge sheet in respect of accused Kapil Sharma only was filed in the Court. Subsequently, the remaining three coaccused persons namely Bablu, Jai Prakash @ Mullah, and Vikrant @ Vicky were arrested and their supplementary charge sheet was also filed in the Court. 4 Upon committal of this case to the court of Sessions, charge for the offence under Section 342/376 (2) (g)/450/506/34 IPC was framed against accused Kapil Sharma, Bablu, Jai Prakash @ Mullah, and Vikrant @ Vicky on 06.04.2010. However, all the accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
5 In order to prove its case, prosecution has examined 3 witnesses : PW1 Sh. V. Shankar Narayanan is the Senior Scientific Officer, who had S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 3 / 14 4 examined the biological exhibits in the case. He proved his detailed report of biological examination as Ex.PW1/A and that of serological examination report as Ex.PW1/B. 6 PW2, prosecutrix is the star prosecution witness. Though she deposed as per her complaint Ex.PW2/A, she failed to identify any of the accused persons namely Kapil Sharma, Bablu, Jai Prakash @ Mullah, and Vikrant @ Vicky as the offenders. She further made improvements in her statement that the culprits had tied her mouth with the help of cloth and had also tied her hands and then committed rape and that when they left, they untied her hands and thereafter prosecutrix untied the cloth which was tied on her mouth, wore her clothes, washed her face and hands and made call to her brother on his mobile phone through STD Booth. She further stated that after her brother returned to the house at 5:00 PM, she narrated the entire incident to him and also disclosed about the incident to their neighbour Chhotu and his wife Radha and that prosecutrix was accompanied by her brother as well as neighbour Chhotu and Radha to Police Station Jahangir Puri. Prosecutrix denied that any of the accused persons were arrested in her presence.
7 This witness was crossexamined at length by learned Additional PP. Though she supported the prosecution case as per details regarding time of incident and utterances made by the offenders, which were put to her by learned Additional PP, she denied that accused Kapil Sharma had been arrested on 04.03.2009 by the Police at her pointing out and on pointing out of Rani, niece of her neighbour Radha. Prosecutrix could also not identify her clothes, which she was alleged to be wearing at the time of incident and which as per the case of the prosecution were handed over by her to the S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 4 / 14 5 doctor, who had medically examined her. Prosecutrix denied that she had handed over her clothes to the doctor pursuant where to they were sealed and handed over to the IO. 8 PW3 Smt. Radha is the neighbour of the prosecutrix. As per the case of the prosecution, the four accused had spoken to Rani, niece of the Radha, before forcibly entering the house of victim and raping her and subsequently this witness was also told by the victim about the incident. The witness Radha is also stated to have accompanied victim to hospital for her medical examination and arrest of accused Kapil Sharma is also stated to have been effected in presence of this witness. 9 The PW3 Smt. Radha deposed that on the day of incident, she had gone to hospital as her Nand had delivered a daughter and had returned to her house at about 7:00 PM and that her niece Rani was present in the house and told her that four persons, who wanted to have sale of her house at JBlock, Jahangir Puri, Delhi, effected had come during the day time and that one Mullah, who was a Property Dealer, had also accompanied the said persons. The PW3 further deposed that victim / prosecutrix used to reside near her house and had told her that three boys, who had come with Mullah Property Dealer to her house, had raped her while she was preparing food in her house and that prosecutrix had disclosed these facts in presence of Meena and her brother Kushan Ali and that she had accompanied prosecutrix and her brother to Police Station while Meena remained at the house. PW3 identified accused Mullah @ Jai Prakash as well as Kapil Sharma. PW3, however, denied that any documents were prepared by the Police in her presence. She also denied that any of the accused were arrested in her presence. She stated that she had studied upto 5th class and only knew how to sign in S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 5 / 14 6 Hindi.
10 This witness was crossexamined by learned Additional PP to elicit details which, though recorded by the Police in her statement u/s.161 CrPC, were not stated by the witness in the Court. During her crossexamination by learned Additional PP, PW3 denied having told the Police that prosecutrix had told her that the four boys, who was taking to her niece Rani, had forcibly entered her room. She also denied that while prosecutrix was narrating these facts, her brother Kushan Ali reached there. She further denied that she had seen two other helpers of Mullah namely Bablu and Vikran with accused Kapil Sharma and Mullah while dealing with them regarding sale of her house. She denied that she was deliberately not identifying accused Vikrant and Bablu. 11 The PW3 was also crossexamined at length by learned counsel for the accused persons. From the crossexamination of PW3, it is brought out that her niece Rani was not traceable since about one year and that she had lodged a complaint with the Police of PS Rohini in this regard. It is further brought out from the cross examination of PW3 that she had been taken forcibly to the hospital by Police officials with the victim and had signed on documents on instructions of Police officials, who threatened not to let go to her without the same.
12 Though in her crossexamination by learned Additional PP, PW3 had stated that accused Kapil Sharma was arrested at her instance, during her cross examination by learned defence counsel, PW3 denied that she had shown house of accused Kapil Sharma to the Police and stated that she had only shown the shop of S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 6 / 14 7 accused Mullah @ Jai Prakash to the Police but at that time it was closed. She also stated that accused Kapil Sharma was not arrested in her presence and that on the day of arrest, she was called to Police Station and was made to sign on the documents regarding his arrest. PW3 categorically stated that she had never seen the four accused persons either going or coming out of the house of the prosecutrix and that her statement recorded by the Police was written under pressure and that she was not aware of its contents. She also stated that Kushan Ali, brother of prosecutrix, never used to work and that he used to stay at home the whole day and that Rani had told her that Kushan Ali was at home the whole day on the day of the incident. 13 The other material prosecution witnesses namely PWs - Rani, Meena and Kushan Ali were not produced for examination before the Court and were stated to be untraceable. Since the prosecutrix failed to identify any of the accused persons and PW3 Radha also turned hostile thereby creating a major discrepancy in the prosecution case, no fruitful purpose would have been served by examining the remaining Police witnesses / official witnesses specially when the other three material witnesses namely Rani, Kushan Ali and Meena were reported to be untraceable, hence PE was closed. 14 Statement of accused persons was not recorded as nothing incriminating has come on record against the accused persons.
15 Arguments have been put forward by Ld. Addl. PP for State and Ld. defence counsel for the accused persons.
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 7 / 14 8 16 Learned Additional PP has contended that prosecution has succeeded in
proving its case against the accused persons beyond reasonable doubt and that the prosecutrix is a trustworthy and reliable witness, who has described the specific role played by each of the accused and that nonexamination of PW Rani is not material as prosecutrix has supported the case of the prosecution regarding the incident. As regards the identification of the accused learned Additional PP has relied upon the TIP proceedings and identification of the accused Kapil Sharma by the prosecutrix and PW3 Radha as also supplementary statement of PW - Rani, who identified accused Bablu though she could not identify him earlier during the TIP proceedings out of fear. He contends that the guilt of accused persons stand proved beyond reasonable doubt. 17 Learned counsel for the accused on the other hand has contended that there are several discrepancies in the testimony of the prosecutrix and that she has given a different version in her statement u/s.161 CrPC made to the Police and her deposition in the Court and that her testimony cannot be believed at all. It is further contended that since material prosecution witnesses namely Rani, Kushan Ali and Meena have not been examined in the case, prosecution has failed to prove its case against the accused persons.
18 Ld. Counsel for accused has further contended that the statement of prosecutrix is not trustworthy and that even otherwise she has failed to identify the accused persons and the clothes she was alleged to be wearing at the time of incident. Learned counsel for accused has also pointed out that though prosecutrix states that her hands and mouth were tied by the accused persons, the MLC of the prosecutrix does not S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 8 / 14 9 show any injury mark. She also does not have any injury mark on her private parts despite the fact that there are allegations of gang rape. The nonproduction of witness Rani, who had identified the three accused persons namely Bablu, Jai Prakash and Vikrant, has also been raised as one of the points to challenge the case of the prosecution. It is accordingly, prayed that accused persons be acquitted of the charged offences.
19 Arguments heard. File perused. In the present case victim has alleged that all the four accused persons had forcibly entered in her room in inebriated condition and forcibly raped her. They also intimated her and threatened her of dire consequences in the event she raised alarm or narrated about the incident to anyone. 20 As per case of the prosecution, the four accused including accused Jai Prakash @ Mullah had come to the house of Smt. Radha, neighbour of the victim in connection with deal of her property but did not find PW3 Smt. Radha or her husband present in the house and after having made been inquiry in this regard from Rani, niece of PW3 Smt. Radha, entered the room of prosecutrix to victimise her sexually. 21 The victim has been examined as PW2 and though she supported the prosecution case as regards the incident, she failed to identify any of the accused persons. Material witness Rani, with whom the four accused are alleged to have interacted, immediately before the incident, is reported to be untraceable. In fact in the present case accused Kapil Sharma was first to be arrested and as per prosecution case, he was arrested upon identification of the prosecutrix, PW3 Smt. Radha and Rani.
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 9 / 14 10 The prosecutrix denied that accused Kapil Sharma was arrested in her presence. Smt. Radha, who was examined as PW3, initially stated that no documents had been prepared in her presence nor was any accused arrested in her presence. During her subsequent crossexamination by learned Additional PP, she admitted that accused Kapil Sharma had been arrested in her presence and presence of Rani, her niece and the victim on 04.03.2009. However, during her crossexamination by learned counsel for accused, she denied that accused Kapil Sharma had been arrested in her presence or that she had shown house of the accused Kapil Sharma to the Police. She stated that she had been called to Police Station and was made to sign on documents of arrest of the accused Kapil Sharma. She categorically stated that she had seen any of the four accused persons either going or coming out of the house of the victim and also stated that Kushan Ali, brother of victim, was not working and that he used to stay at home the whole day and on the day of incident also he was at home as had been told to her by her niece Rani. As regards Rani, PW3 Smt. Radha stated that Rani was untraceable and that she had also filed a complaint in this regard at PS Rohini. 22 As already observed hereinabove in the present case the incident had taken place on 01.03.2009 at about 3:00 PM and accused Kapil Sharma was arrested on 04.03.2009. The remaining three accused namely, Bablu, Jail Prakash @ Mullah and Vikrant @ Vicky were not arrested at that time. Accused Bablu was arrested on 26.06.2009 pursuant to his arrest in case FIR No.656/07 u/s.341/307/506/34 IPC registered at P.S. Jahangir Puri. Upon his identification, accused Jai Prakash was arrested on 27.06.2009 and lastly accused Vikrant @ Vicky was arrested on 07.07.2009 pursuant to his arrest in case FIR No.137/09 u/s.392/397/411/34 IPC. It appears from S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 10 / 14 11 perusal of record that judicial TIP of these accused persons was got conducted from witness Rani on 14.07.2009 wherein she identified accused Jai Prakash @ Mullah and Vikrant @ Vicky but failed to identify accused Bablu. A supplementary statement of PW Rani was recorded on 14.07.2009 wherein she identified accused Bablu giving explanation that due to fear, she could not identify accused Bablu in TIP proceedings. However, no judicial TIP or any other identification of the accused persons was attempted to be effected from the victim to establish that accused Bablu, Jai Prakash @ Mullah and Vikrant @ Vicky, who had been arrested subsequently, were the same persons who had committed rape upon victim on the day of the incident. The PW - Rani has not been produced for examination before the Court and since the victim herself has failed to identify any of the accused persons there is no iota of evidence brought on record against the accused persons by the prosecution.
23 The medical evidence on record also does not inspire confidence. As per the MLC, the doctor, who had examined the prosecutrix had made a slide of the vaginal swab and also took into possession clothes of the prosecutrix which, after being sealed, were handed over to the IO ASI Ram Kishan. The seizure memo Ex.PW3/B shows that IO had seized two articles i.e. vaginal swab slides and clothes of the prosecutrix along with the sample seal thereby indicating that two parcels were prepared. The FSL report, however, shows that they were three separate sealed cloth parcels and one sealed plastic container sent to FSL. There is no explanation how the number of parcels multiplied while being sent to FSL. In these circumstances a doubt is created regarding the FSL report Ex.PW1/A specially when the prosecutrix herself has failed to identify the clothes she was alleged to be wearing at the time of the incident.
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 11 / 14 12 24 Before parting, it could be appropriate to refer to judgment of Hon'ble
Apex Court in case Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors, AIR 2006 Supreme Court 1367, which clearing brings out need for protection of the witnesses to heinous offence. It has been observed in said case that, "Witnesses" as Bentham said : are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties." It has been further observed that, "The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 12 / 14 13 power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation."
25 In the present case, it is seen that the role of investigating officer and the prosecuting agency in protecting the witness has been sadly lacking. The IO apparently lost track of the victim at the initial stage of investigations itself. No attempt was made to join victim in investigations of the case when remaining three accused namely Bablu, Jai Prakash @ Mullah and Vikrant @ Vicky were arrested. Even Kushan Ali, elder brother of the victim and Meena, elder sister of the victim were reported to be untraceable. In these circumstances, it is rather surprising that the victim herself was produced to depose before the Court but only to turn hostile. No serious efforts were made to trace out the other material witness namely Rani. The present case relates to gang rape of a child victim and more sensitivity and diligence was expected of the investigating officers and the process serving agency to procure the presence of witnesses in light of specific S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 13 / 14 14 observations made by Hon'ble Supreme Court in case of Zahira Habibullah Sheikh (Supra). An appropriate action is desirable against the erring Police officials. 26 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the charges u/s. 342/376 (2) (g)/450/506/34 IPC against accused Kapil Sharma, Jai Prakash @ Mullah, Bablu and Vikrant @ Vicky on record, beyond the reasonable doubts. Accordingly, I acquit all the four accused persons - Kapil Sharma, Jai Prakash @ Mullah, Bablu and Vikrant @ Vicky of the charged offences, giving them the benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 02.07.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 14 / 14
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FIR No. 141/2009
P.S.Jahangir Puri
02.07.2012
Present: Addl. PP for the State.
Accused Bablu produced from JC, but on bail in this case.
Remaining three accused present on bail.
Inspr. Yashpal Singh, Ct. Virender and HC Jaipal are present for explanation with respect to report on process of PW - Meena issued for 05.06.2012 as well as to explain why no efforts were made for service of the IO. Written explanations have been filed by HC Jaipal ICV/B as well as SHO Inspr. Yashpal Singh.
Today case is fixed for SA/FA. All four accused submit that their counsel is not coming and that they does not have capacity to engage a counsel and prays that they be provided a counsel at State expenses. Heard. Request allowed. Sh. Rajnish Kumar Antil, Advocate, who is present in the court, is hereby appointed as Amicus Curie to defend the accused persons. Ld. Amicus Curie prays for passover till 2:00 PM to go through the file. At request, matter be put up at 2:00 PM.
(Illa Rawat)
Addl. Sessions Judge (NW)01
Rohini/Delhi
At 2:15 PM
Present: Addl. PP for the State.
Accused Bablu produced from JC, but on bail in this case.
Remaining three accused present on bail.
Sh. Rajnish Kumar Antil, learned Amicus Curie for all accused persons. Matter is listed for SA/FA. File perused. As there is no incriminating material S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 15 / 14 16 on record, statement of accused against the accused persons is dispensed with.
Final arguments heard.
Be listed for judgment today i.e. on 02.07.2012 at 3:30 PM.
(Illa Rawat)
Addl. Sessions Judge (NW)01
Rohini/Delhi
At 3:30 PM
Present: Addl. PP for the State.
Accused Bablu produced from JC, but on bail in this case.
Remaining three accused present on bail.
Sh. Rajnish Kumar Antil, learned Amicus Curie for all accused persons. Vide separate judgment, announced today in the open Court, all the four accused persons - Kapil Sharma, Jai Prakash @ Mullah, Bablu and Vikrant @ Vicky have been acquitted of the charged offence.
Accused - Kapil Sharma, Jai Prakash @ Mullah, Bablu and Vikrant @ Vicky request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of all the four accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat)
Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 141/09 State vs. Kapil Sharma etc Page Nos. 16 / 14