Delhi District Court
Was Held In Bharwada Bhoginbhai ... vs . State Of Gujarat Air 1983 Sc on 20 October, 2009
1
IN THE COURT OF SH. INDER JEET SINGH, ADDL. SESSION JUDGE,
WEST DISTRICT-02, TIS HAZARI COURTS, DELHI
In the matter of -
S. C. No. 47/08
FIR No. 510/07
P. S. DBG Road
u/s 376/344/506 (Part II) IPC
State (Govt. Of NCT of Delhi)
.......State
VERSUS
Hari Om Sehrawat
S/o late Sh. Nanhe Ram Sehrawat,
R/o Village and Post Office Bhadani,
District Jhajjar, Haryana.
.....Accused
Date of Institution : 02.07.2008
Date of reserved on : 08.10.2009
Date of decision : 20.10.2009
Contd.....
2
JUDGMENT
The matrix of State/Complainant's case is as follows -
1. Accused Hari Om Sehrawat is driver by occupation, he used to work with Travels. Smt. Indu Anand, mother of prosecutrix (Prosecutrix's name is withheld, she is hereinafter referred as 'complainant' or 'prosecutrix' or PW-
1), had occasioned to travel in the vehicle driven by accused Hari Om Sehrawat while visiting on pilgrims at Balajee, Haridwar. It was in May 2002. There was courtesy acquaintance with the accused; he was addressed Uncle (Mamma), being vow-brother (muh-bola bhai) of mother of the prosecutrix. Prosecutrix, alongwith her mother Smt. Indu Anand, father Shri Sunil Kumar Anand and brother Gautam, was residing at House No. 881, East Park Road, Karol Bagh, Delhi.
In July 2002, the accused took the complainant to Agra in the Qualis vehicle. He stayed in the Hotel. He consumed liquor and gave some cold drink to the complainant and during night, he committed sex to her. In the morning, he threatened, not to disclose anyone, since he had prepared video film; otherwise, she will be defamed. In the same year, he took the complainant to Kullu Manali in the Qualis and repeated the acts, he gave Contd.....
3beatings when the complainant refused to sleep with him. In October 2002, the accused requested to the parents of the complainant, to permit him to stay home, if and when he comes back from tour, he was allowed. After few days, he was allowed to live there permanently. However, the accused used to have sex with the complainant in the absence of others in the house at 881, East Park Road, Karol Bagh, Delhi. In the year 2005, he took the complainant/prosecutrix forcibly to his native place, Village Bhadani, Distt. Jhajjar, Haryana. Prosecutrix was confined there for two months (at the residence of his brother Mangal). The prosecutrix was repeatedly raped at such places, the complainant and her parents were also threatened to defame them or to kill them. The accused informed the parents of the complainant that she is with him; since the complainant's parents were never knew about crime committed by the accused, they had not suspected accused, but confident that the complainant is in the company of a lady and complainant is safe.
In March 2007, the complainant's parents sold their house of Karol Bagh, Delhi and the accused extracted money from her mother by misrepresentation. She was sexually assaulted upto 17.09.2007. Accused was having pistol/revolver, he used to threat the complainant not to disclose anyone. The prosecutrix was minor and she left her studies at Sat Bharawa Contd.....
4Kanya Sr. Secondary School in 8th Class, she was admitted there in VI standard. The matter was reported to the Police on 20.11.2007, but no case was registered. Lastly, a written complaint dated 19.12.2007 under section 200 Cr.P.C was filed before the Court and pursuant to directions under section 156(3) Cr.P.C formal FIR was registered on 29.12.2007 as FIR No. 510/07 with Police Station DBG Road and investigation was carried by Inspector Manoj Sharma. During the investigation, not only medical examination of prosecutrix and of accused were got conducted but also other documentary record were collected. (At the time of evidence in the Court, the prosecutrix explained that "year 2002" had been mentioned in the complaint, mistakenly, by error of counsel, who prepared the complaint, actually year was 2003; similar typographical error was done for writing 2 months period of confinement instead of actual period of 15 days). Complainant's mother supplemented that in January 2003, she got finance Qualis vehicle; the accused was employed as driver of Qualis and then, he was permitted to live at their house, at his request, as he had no accommodation, she gave permission to him. Finally, charge sheet was filed under section 376/344/506 IPC against the accused.
2. After compliance of statutory provisions of law, inclusive of providing copies, the case was committed to Court of Sessions. The case was Contd.....
5opened in the Court of Sessions, Delhi.
3. The accused was formally charged under section 376 IPC for allegations that from the period from 2002 to 2007 in different areas such as in Agra in a Hotel, in Kullu Manali and other places inclusive of at accused's house at village Bhadani, Distt. Jhajjar, Haryana, he repeatedly and forcibly raped prosecutrix, a minor girl, without her consent; he was also charged under section 344 IPC that he confined the prosecutrix for more than 10 days wrongfully and he was also charged under section 506 (Part II) IPC that between July 2002 to 2007, for committing criminal intimidation by threatening or with intend to cause alarm by giving her threats to kill by showing fire arms. However, the accused denied the charge, he pleaded his innocence, he pleaded not guilty and claimed trial.
4. In order to establish the charges, the prosecution examined 13 witnesses in support of the case, their pivotal narration and names are enumerated as follows -
(i) PW-1 Prosecutrix (to establish the charges against the accused and to prove her complaint Ex PW-1/1 and her statement to the police. She also explained that in the complaint there was typographical error of recording the year 2002 in place of actual year 2003);
(ii) PW-2 Smt. Indu Anand, W/o Sh. Sunil Anand (she is mother of PW-1 and to substantiate that accused was kept as a driver on the eve of purchase of Qualis vehicle in January 2003 vis-a-vis eviction of his accommodation from house or his removal from the services and also the other financial Contd.....6
transactions/relations took place between the PW-2 and the accused; besides to substantiate the allegations reported to her by PW-1);
(iii) PW-3 Sh. Sunil Anand (he is father of PW-1 and to substantiate the narration given by prosecutrix PW-1 and to establish date of birth of his daughter as 10.02.1989, while giving copy of date of birth certificate and missing report to the Police, which was seized as per memo Ex. PW-3/A; to establish the pointing out memo of place of incident at House No. 3190, Sector 9A, Bahadurgarh, which were incorporated in pointing out memo Ex. PW-3/B);
(iv) PW-4 Ct. Ajab Singh, No. 1428/C (he is record keeper and to prove that complaint dated 21.11.2007 Ex. PW-4/A was received in the office of DCP, Delhi, which was assigned to ACP for necessary action);
(v) PW-5 Smt. Veena Tandon, Principal, Satbharawan Arya Kanya Sr. Secondary School (to prove record of School that prosecutrix took admission in 6th Class on 10.04.2000, the admission was recorded in Register Ex. PW- 5/A, on the basis of previous school leaving certificate Ex. PW-5/C and Admission Form Ex. PW-5/B, she left the school on 08.04.2003 vide school leaving certificate Ex. PW-5/D. Her date of birth on record is 10.02.1989);
(vi) PW-6 Lady Ct. Manju, No. 8125, PCR (to establish that Const. Manju accompanied Investigation Officer when prosecutrix was taken to Lady Harding Medical College for her medical examination on 30.12.2007, after registration of FIR on 29.12.2007);
(vii) PW-7 Ct. Harbir Singh, No. 863/C (to prove that he along with Insp. Manoj, Const. Rajkumar, HC Pawan went to Jhajjar on 15.03.2008 where local Beat HC Anup Singh joined the police party and the accused was apprehended there, his disclosure statement Ex. PW-7/A was recorded, he was arrested in the morning hours of 7.30 am/15.03.2008 at Village Bhadani, as per memo Ex. PW-7/B and his personal search was conducted as per memo was Ex. PW-7/C);
(viii) PW-8 Ct. Raj Kumar, No. 2045/C (He also joined the police party with PW-7 Harbir Singh during the investigation);
Contd.....
7
(ix) PW-9 Dr. Jyoti Meena, Casualty Medical Officer, Lady Harding Medical College, Delhi (to establish that on 30.12.2007, prosecutrix was brought to Hospital and she was examined medically with her consent and consent of her mother, her MLC Ex. PW-9/A was prepared);
(x) PW-10 Sh. Tajender Singh, S/o Sh. Balwant Singh (to prove that he was operating Sunny Tours & Travels and Smt. Indu alongwith Hari Om Sehrawat came to her for inclusion of her Qualis vehicle in the Taxi lot but he refused to include the Qualis in his lot; it happened about 6-7 years back; PW-10 was examined in the Court on 18.07.2009);
(xi) PW-11 Dr. Sreeniwas, Assistant Professor, MAM College, Delhi (to establish that accused was examined with his consent medically, his MLC Ex. PW-11/A was prepared and opinion was also given by him);
(xii) PW-12 HC Sh. Jagdish Prasad, No. 401/C (to prove that on 29.12.2007, he was duty officer, complaint Ex. PW-12/A was produced before him and on the basis thereof formal FIR No. 510/07 Ex. PW-12/B was recorded); and
(xiii) PW-13 Investigating Officer/Inspector Manoj Sharma, No. D/3101 (to establish that he is an investigation officer who commenced of the case from the initial stage of assignment till its result to filing of charge-sheet).
5. Thence, statement of accused Hari Om Sehrawat under section 313 Cr.P.C, without oath, was recorded, however, he had denied all the allegations explained to him, with a submission that not only there were cordial relations or nice relations from the year 2003 to 2007 between the accused on the one side and the complainant's parents on the other side. A property dispute has been given colour of a criminal case in the present form, in order to grab House No. 3190, Bahadurgarh of the accused. He had not Contd.....
8opted for defence evidence.
6.1 At the juncture of final arguments, Sh. B. S. Kain, Ld. Addl. PP for State duly assisted by Ld. counsel Shri Naveen Prakash, Advocate for the complainant argued the matter finally. (Shri Naveen Prakash, Advocate filed brief synopsis of arguments, copies thereof were provided to the opposite side). Shri Naveen Prakash, Advocate has also been heard. Whereas, Shri Aamir Mian, Advocate argued for accused.
6.2 Sh. B. S. Kain, Ld. Addl. PP for State requests that witnesses PW-1 (Prosecutrix), her parents/PW-2 and PW-3 and medical witness PW-5 and PW-9 are the star witnesses of the case. Witnesses PW-1, PW-2 and PW-3 have a common voice that from the year 2002 till 2007, the prosecutrix was raped at different places like Agra, Manali, Jhajjar and at the residential address of Delhi of the prosecutrix. Witnesses PW-1 and PW-3 were cross examined on behalf of the State, ultimately, they supported the case of prosecution. The medical evidence led by witness PW-9 supports the case of the prosecution. On consolidated reading of evidence of star witnesses, it satisfies that the prosecutrix was not only raped from time to time at different places but she was also confined in Jhajjar, Haryana, she was also criminal intimidated on the point of pistol or blue film, prepared by the accused, in order to defame the prosecutrix and her parents or otherwise to Contd.....
9kill them. State has succeeded to prove the case.
Shri Naveen Prakash, Advocate for the complainant further supplements that on the plain reading of evidence of star witnesses along with the statement of the accused recorded under section 313 Cr.P.C, it suggests that the accused was residing at the place of residence of the complainant, he was staying in close proximity to the prosecutrix, it proves that the accused was in a position to take undue advantage of the situation of finding the prosecutrix alone in the home and there is every probability in favour of the prosecution that the accused had raped the complainant. In the year 2003, the prosecutrix was aged about 14 years and during her statement in the Court, certain discrepancies cropped up, however, the probability factor is in favour of the prosecution and the version of the prosecutrix cannot be disbelieved because of certain discrepancies. The sole testimony of the prosecutrix is sufficient in rape cases. Degree of proof required need not to be higher than is expected from an injured witness, it was held in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat AIR 1983 SC 753 that evidence of a victim of sexual assault stands on par with evidence of an injured witness; evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. It would be adding insult to injury to insist on corroboration. The medical report Ex. PW-9/A also did Contd.....
10not rule out the offence of rape on prosecutrix, the last time offence was committed on 17.09.2007 and no injury mark on the privates of the injured is to be considered immaterial because she was examined after a gap of time, since she was medically examined on 30.12.2007. Investigating officer/PW-13 has also stated that probability of rape committed by the accused cannot be ruled out. The prosecutrix became a patient of fatal disease HIV Positive due to the activities of the accused. The complainant is Indian, she lives under the tradition and norms of Indian Society and the accused tried to project, as if, there was some property dispute, however, it is not acceptable. The complainant has succeeded to prove the charges. Complainant relies upon -
(i)Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753 - It was held that discrepancies which do not go to the root of the matter or shake the basic version of the witnesses, it cannot be given undue importance. Further, evidence of victim of sexual assault stands on par with evidence on injured witness. When evidence of the victim does not suffer from any basic infirmity, and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence.
(ii)Satendra Kumar Singh Kushwaha vs. State of Bihar, 2003 Crl. L. J. 392 - It was held that conviction of the accused can be based on sole testimony of victim. Non-appearance of sign of rape on the body of prosecutrix was immaterial since she was examined after considerable time of occurrence.
(iii)State of U.P. vs. Jalal Ahmad @ Ashraf Jalal 2005 Crl. L.J. 3482 - It was held that absence of injury on the body or private parts, did not negate the commission of rape on her by the accused at intervals during the period accused kept her in his captivity.
Contd.....
11
(iv)Rafiq vs. State of Uttar Pradesh, AIR 1981 SC 96 - Absence of corroborative evidence or absence of injuries on person of victim is not fatal in each case. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
6.3 Whereas Ld. counsel Sh. Aamir Mian, Advocate for accused has opposed submissions tendered on behalf of State or by Ld. counsel for complainant vis-a-vis that it is the duty of the prosecution to prove the case beyond shadow of doubts. However, the prosecution has miserably failed to prove the charge. There is no evidence or convincing evidence to suggest proof of charges under any head. A false case has been foisted. The statement of witnesses suggest that there is a false case against the accused, they are also interested witnesses. The oral testimony of prime witnesses PW-1, PW-2 and PW-3 are not only material contradictory but there are inherent contradictions because no incident had taken place and that is why there are different versions on the major aspects. The medical evidence also does not support the case of prosecutrix. House No. 881, East Park Road, Karol Bagh, Delhi is stated to be comprising about 5 room on the Ground Floor out of them two rooms were occupied by PW-2 and PW-3 and their families; in the adjacent room, there are prosecutrix's grand-parents, uncles, aunts and their families and any single entry in the house makes aware to all Contd.....
12the occupants in the House. Any sound erupting from a room can be listened in the adjacent room. It was improbable that the accused had committed rape in a room in House No. 881, East Park Road, Karol Bagh, Delhi. There is no other independent witness amongst the grand-parents or uncles' family. Further, there is no evidence with regard to the alleged event of the year 2002 or 2003 or 2005 or 2007. PW-1 had denied of any incident of the year 2002 by stating that there was typographical error in mentioning the year 2002 in place of year 2003, however, in her MLC she alleged the year 2002. She was confronted with her entire previous statement, as new case has been introduced, inclusive of the year 2004, which was never referred earlier. Similarly, the incident of year 2003 or 2005 or 2007 are contradicting to the extent that the statements of PW-1, PW-2 and PW-3 are bundle of lies. There is no medical evidence suggesting case of rape. There is no evidence of confinement for the period of 2 months in village Badani, as a matter of fact she developed a new theory that because of typographical error the period of 15 days was mentioned as two months, but the theory of 15 days also collapsed when she narrated that after 4 days she rang to her parents who came to her on the fourth day (During the course of arguments, Ld. defence counsel enumerated the contradictions in evidence to treat them as material contradictions to say that witnesses have lied). As per the Contd.....
13contents of complaint, the parents of the prosecutrix were not aware about anything done to the prosecutrix, either in the year 2002 or 2003 or 2005 etc., whereas as per statement of witnesses PW-1, PW-2, PW-3, the complainant had apprised immediately after her return from Agra or Manali or episode of 2005, however, witnesses PW-2 and PW-3 being parents of PW-1 never lodged any police report nor medical examination of PW-1 was conducted during such time, at least to bother the health and future prospective of their young girl. It was not done because no episode had happen but a property dispute was, later on, given the colour of present case. Witness PW-2 admits the receipt Ex. PW2/D dated 25.06.2007, a receipt of a property in favour of accused executed by seller Smt. Chitra Bala, and PW-2 also admits her signatures at point S. The testimony of PW-9 Dr. Jyoti Meena along with MLC Ex. PW-9/A, neither there was any external injury on the person of prosecutrix nor any coital activity was seen nor there was any redness in the inner parts, which suggest that no act of rape was done. No medical opinion qua reason of torn of hymen. There is no evidence of HIV positive patient of prosecutrix. Ld. defence counsel relies upon: Gurpal Singh vs. State of Punjab 2004 (1) Femi-Juris C.C. 136 (P&H) that the prosecutrix was more than 18 years of age on the date of incident and Doctor found no episode of rape on victim. It was also held that rape is Contd.....
14heinous offence and has the effect of destroying a woman not only physically but mentally as well. But at the same time a false allegation of rape can destroy the name and reputation of an accused lowering him in the eyes of his family and the public. This fact must also be kept in mind while discussing the evidence in such cases. Ld. counsel has also referred Medical Jurisprudence and Toxicology, while referring MLC that absence of inner injuries on labia majora or on albiamajora or for want of redness in the inner side of labia minora, suggest that it was not a case of sexual assault. Witness PW-2, mother of the prosecutrix, admitted receipt Ex. PW-2/D that the property was purchased and receipt was executed by seller Smt. Chitra Bala in favour of accused and this receipt was execute on 25.06.2007. The false FIR has been registered in order to grab the property which was purchased by the accused. There is no police report or any medical examination of the prosecutrix at any point of time except the present FIR which was done after 25.06.2007 since the property dispute has been made by the parents of the prosecutrix. For want of proof of charges, the accused deserves acquittal.
7.1 The contentions of both the sides have been assessed in the light of material on record, evidence of the witnesses, documentary record, the rival contentions, statutory provisions of law and the case law presented. In order Contd.....
15to appreciate the contentions and material on record, it is appropriate to re- produce the requirement of law. The requirement of Section 376 read with Section 375 IPC, section 342 read with Section 344 IPC and section 506 IPC read as follows -
Requirement of Section 375 read with Section 376 IPC - A.1. Unlawful sexual intercourse by a man A.2. With his own wife under the age of 15 years OR A.3. With any other woman under the age of 16 years-with her consent, or without her consent B.1. Unlawful sexual intercourse by a man B.2. With any other woman above 16 years of age, against her Will, without her consent C.1. Unlawful sexual intercourse by a woman C.2. With any other woman above 16 years of age, with her consent, C.3. When her consent has been obtained by putting her (or to any person she is intended or close to her) or in fear of death or hurt, OR When the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is (or believes herself to be) lawfully married OR When at the time of giving such consent by reason of unsoundness of mind or intoxication or she administration of any stupefying or unwholesome substance, she is unable to understood the motive and consequence of that to which she gives consent.
(Parties or slightest penetration is sufficient to constitute the sexual intercourse fro proof of "rape") Requirement of wrongful restraint of Section 342 read with Section 344 IPC -
(i)the accused obstructed the complainant;
(ii)such obstruction non-voluntarily;
(iii)the effect of such obstruction was to restrain that person from proceeding beyond a certain limit; and
(iv)the restraint was wrongful.
Contd.....
16Requirement of Section 506 IPC -
(i)that the accused threatened same person
(ii)that such threat consisted of same injury to his person, reputation or property (OR to the person, reputation or property of someone in whom he was interest)
(iii)he did threat with intent
(a)to cause alarm to that person, OR
(b)to cause the person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat, OR
(c)to cause that person to omit to do any act which that person is legally entitled to do so as the means of avoiding the execution of such threat. 7.2 On assessment of entire record, the allegations are for the period 2002 to 17.09.2007. Witness PW-5 Ms. Veena Tandon has produced school record, witness PW-3 had also produced date of birth certificate of prosecutrix/PW-1 to the investigating agency and testimony of PW-5 stands proved that as per school admission record, the date of birth of prosecutrix is 10.02.1989. On the basis of date of birth of 10.02.1989, the prosecutrix was about 18 years & 7 months in September 2007; she was about 18 years & 4 months in June 2007; the prosecutrix was of 17 years & 5 months around June 2006; she was about 16 years & 10 months in December 2005; she was 14 years & 8 months of age in October 2003; she was about 14 years & 4 months in July 2003 and around the year 2004 she was 15 years & 8 months. To say, between the period of allegations 2003 to 2007, she was between the age of 14 years & 5 months to 18 years & 7 months. It is but Contd.....
17natural that in the year 2002 the prosecutrix was below the age of 14 years & 4 months. Paragraph No 7.1, above, of this judgment classified the requirement of law of section 376 IPC from the point of age of prosecutrix/victim and the present case will be analyzed keeping in view that in the year 2003 the prosecutrix was of 14 years and 5 months and in the month of September 2007, she had attained the age of 18 years & 7 months. Further, there are allegations from time to time and the evidence will by analyzed and discussed from the point of period of allegations vis-a- vis the age of prosecutrix.
8.1 On scanning and analyzing the evidence/record, the case of prosecution pertains to the allegations of July 2002 & October 2002 (later it was explained that the year 2002 has been typed in place of year 2003). There is allegations of 5 or 6 months after the winter season of 2005 when the accused Hari Om Sehrawat was married; vis-a-vis the period of July 2002 to the period of 5 or 6 months after the winter of 2005. This phase of time is being taken in the present paragraph.
It is the duty of the prosecution to prove the charge beyond reasonable doubts. The onus lies upon the prosecution to discharge its obligation in proof of the allegations of charge of rape under section 376 IPC, wrongful confinement under section 344 IPC and criminal intimidation Contd.....
18under section 506 IPC. The prosecution contends that in case of charge of rape, the sole testimony of victim suffice to be believed without any corroboration from any quarter; whereas the Ld. defence counsel contends that the accused Hari Om Sehrawat is innocent till he is proved of guilt on the basis of canon of law; the sole testimony of prosecutrix is not sufficed particularly, when there are inherent contradictions vis-a-vis inconsistent statement with other witnesses.
8.2 So far the law declared in precedent/case law presented by both the sides is not disputed. When the statement of prosecutrix is flawless, consistent, made in the normal course of affairs, truthful and her conduct is in symmetry to her version vis-a-vis the medical evidence, her sole testimony is sufficient and it does not require any corroboration. Whereas, if the statement is contradictory on vital aspects or her own statement is inherently inconsistent or there are paradoxical versions in the statement of prosecutrix with the other material witnesses, in such circumstances corroboration is warranted. In the present case, the prosecution has miserably failed to establish the allegations/charges for the period from July 2002 to the period of 5 or 6 months after winter season of 2005, because the statement of witnesses are contradictory on material aspects and the same are not corroborated from the versions of the witnesses to each other or by Contd.....
19medical evidence or by conduct of prosecutrix of her own or of her parents i.e witnesses PW-2 Smt. Indu Anand & PW-3 Sh. Sunil Anand, it is being enumerated as follows:-
(i).In the complaint under section 200 Cr. P. C Ex. PW1/A, prosecutrix alleges that in July 2002; she was forcibly taken to Agra and then in the same year she was taken to Kullu Manali & PW-1 in her statement clarified that there is clerical mistake by her counsel while drafting the complaint, the year 2002 was written in place of actual year 2003. There are allegations of rape in the complaint with regard to the year 2002. As per PW-1, there was no allegations of year 2002; meaning thereby no allegations of rape or criminal intimidation remains with regard to the year 2002. Whereas, in the MLC Ex. PW9/A, she told the history of rape since the year 2002 to the doctor; is it not contradictory that in the complaint, year 2002 stated to be a typographical error by counsel while drafting the complaint but during her medical examination, the fact with regard to the year 2002 was told by her to the doctor.
(ii).As per complaint, when the accused Hari Om Sehrawat took her to Agra, she was raped in the hotel and similarly, when she was taken to Kullu Manali she was also raped. It was never in the knowledge of her parents nor it was brought to their knowledge.
Whereas, PW-1 deposed in her statement that after return from Agra, it was disclosed by her to her mother and similarly, after return from Kullu Manali, the entire episode was disclosed to her mother. Similarly, as per complaint, when she was taken to Jhajhar, Haryana, the accused Hari Om Sehrawat informed her parents that the prosecutrix is with him in his native village, the parents of prosecutrix were confident that she was in safe hands.
Whereas, as per witnesses PW-2 Smt. Indu Anand, PW- 3 Sh. Sunil Anand & PW-1, she had apprised her parents about the incident immediately return from Agra or from Kullu Manali and when she was in Jhajjar, Haryana her mother was told about the incident and then on the 4th day of her taking to Jhajhar, Haryana, Contd.....
20her parents came there. Is it not material contradictions? It is material contradictions that on the one side, it appears that the prosecutrix's parents were not knowing about anything and on the other side, the prosecutrix says that she had informed her parents, PW-2 Sh. Sunil Anand also admits that he was apprised about the incident immediately, after arriving from Agra or from Kullu Manali. Neither there is any police report on the eve of Agra nor any police report on the eve of Kullu Manali or to incident of Jhajjar, Haryana. There is also no medical examination carried in respect of prosecutrix of her return from any of such places.
(iii).Witnesses PW-2 Smt. Indu Anand & PW-3 Sunil Anand are parents of the prosecutrix/PW-1. If the accused Hari Om Sehrawat had taken her forcibly to Agra or to Kullu Manali or to Jhajjar, Haryana, was it not the duty of the parents to lodge the police report or do the necessary actions so that the State machinery could have taken the action. Sould PW-2 Smt. Indu Anand & PW- 3 Sh. Sunil Anand remain silent after returning from Agra of PW- 1; again prosecutrix was taken to Kullu Manali or to Jhajjar, Haryana despite having earlier experience and also knowing from their son namely Gautam Anand that the prosecutrix has been taken forcibly by the accused Hari Om Sehrawat.
(iv).The prosecutrix was stated to have been taken to Agra for two days, despite missing of their young girl, her parents PW-2 Smt. Indu Anand & PW-3 Sh. Sunil Anand remained silent and passive. The prosecutrix was stated to have been taken to Kullu Manali for two days, however, her parents remained passive for two days and no report was lodged.
(v).The prosecutrix was examined under section 161 Cr. P. C during the course of investigation, however, she has not supported on various aspects despite her intense cross examination of State. In fact, she has introduced many new facts, which were not the case in the complaint, for example, as per complaint she was served something in the cold drink and she became unconscious/restless and in the morning, she realized that she has been raped. Whereas in the cross examination, she gave a contrary version that she raised alarm in the hotel, meaning thereby she was conscious and Contd.....
21protested the acts done. She also deposed that she had seen the sight of Taj Mahal in Agra. Whether both are possible?
(vi).In the complaint, allegations of Kullu Manali pertains to the year 2002 but witness explained that it was the year of 2003, however, in her cross examination, she further explained that it was the year of 2004 when she went to Kullu Manali. It was never a complaint of the year 2004.
It was never a complaint/allegations but the witness PW-1 says that she was raped in the car while going to the Kullu Manali; the total span from Delhi to Kullu Manali and vice versa was for two days, it takes about 16 hours by road to reach from Delhi to Kullu Manali (As suggested), whereas she says that they also stayed in the hotel for two days. Whereas PW-3 Sh. Sunil Anand prosecutrix's father says that the prosecutrix used to remain missing from her residence some time two days; some time 2 to 4 days, however, no report was lodged.
(vii).As per witness PW-2 Smt. Indu Anand, accused Hari Om Sehrawat was removed from his services after the returning from Kullu Manali, it means that he was removed from his services in the year 2003 or 2004 but despite his removal from the services accused Hari Om Sehrawat was frequently visiting them. If there was episode of rape or criminal intimidation why the accused was permitted to visit them frequently; it is a mystery.
On the one side, PW-2 Smt. Indu Anand & PW-3 Sh.
Sunil Anand deposed that Qualis vehicle was sold in the year 2005 and then accused Hari Om Sehrawat was removed from the services, it is material contradictory version to earlier deposition.
(viii).The prosecutrix alleged of video film by the accused Hari Om Sehrawat, however, she never saw any video film or photographer nor it was recovered during the investigation. Similarly, no pistol was described or discovered during the investigation.
The conduct of PW-1, PW-2 Smt. Indu Anand & PW-3 Sh. Sunil Anand reflect that after the incident of Agra, neither any police report nor medical examination of PW-1 was conducted and at one place witness PW-1 deposed that she disclosed about the episode of Agra after about 2 or 3 days of her return. PW-2 Contd.....
22Smt. Indu Anand had not discovered any abnormal behaviour or her daughter was perplexed.
(ix).During the investigation, statement of PW-2 Smt. Indu Anand & PW-3 Sh. Sunil Anand were recorded, PW-2 Smt. Indu Anand also gave her manuscript statement mark X/PW-2 and statement under section 161 Cr. P. C mark Y/PW-2 but there is no narration of the incident either of Agra or of Kullu Manali. Similarly, there is no narration of episode of Agra or of Kullu Manali in the statement of Sh. Sunil Anand recorded, under section 161 Cr. P. C Ex. PW3/A.
(x).The complainant in her complaint Ex. PW1/1 says that she was confined for two months at village Jhajjar Haryana forcibly but during her statement, she explained that period of detention was 15 days. During her further examination, she deposed that after 4th day of her detention she was able to manage money from the house of Mangal Singh (brother of accused Hari Om Sehrawat) and rang her parents and the 4th day her parents arrived at Jhajjar, Haryana and took her to her residence. To say, in the complaint, period of two months was alleged, it was reduced 15 days and then to four days. Further, PW-1 in her statement recorded under section 164 Cr. P. C says that she was confined at the house of Mangal Singh, brother of accused Hari Om Sehrawat, but during her cross examination on behalf of the State, she confirmed that it was not the house of Mangal, but the house of accused Hari Om Sehrawat.
(xi).As per complaint Ex. PW1/1, the accused Hari Om Sehrawat had informed her parents about the prosecutrix at his village Jhajjar Haryana whereas, as per her statement, she was able to manage to have money from the house of Mangal Singh and then rang to her parents.
(xii).PW-1 says that she was raped in the presence of his wife namely Smt. Usha at the residence of accused but as per statement recorded under section 164 Cr. P. C, the prosecutrix was detained and confined at the house of Mangal Singh.
(xiii).There was neither any police report nor medical examination of Contd.....
23prosecutrix after bringing her back at home. Witness PW-2 Smt. Indu Anand says that a report was lodged with regard to beating but of no other allegations. PW-2 Smt. Indu Anand lodged the police report, however, it has not been proved on record, otherwise, why the report was lodged with regard to the beating and not of other allegations, it is mystery. PW-1 states that she had taken her 3/4 pairs of clothes when she was taken to Jhajhar, Kullu Manali and identical number of pairs of clothes were taken while going to Agra.
(xiv).The prosecutrix and her parents were living in two rooms of ground floor at H. No. 881, East Park Road, Karol Bagh, Delhi and the entry or exit gate apprise the occupants of any of the five rooms on entry or exit of any other person vis-a-vis any noise in the adjacent room. The other occupants in the house are prosecutrix's grand parents, uncles, aunts and other family members, however, neither of them is a witness in the case nor any police report was lodged with regard to the any incident of rape occurred at ground floor at H. No. 881, East Park Road, Karol Bagh, Delhi. There is also no medical evidence, since the prosecutrix was not examined at any point of time between the period 2002 to 5 or 6 months after winter of 2005. Witness PW-2 Smt. Indu Anand in her statement mark X/PW-2 or her statement recorded under section 161 Cr. P. C mark Y/PW-2 or witness PW- 3 Sh. Sunil Anand in his statement recorded under section 161 Cr. P. C Ex. PW3/A do not talk/whisper about any episode of 5 or 6 months after the winter of 2005 at place of Jhajhar or rescuing their daughter from the clutches of the accused Hari Om Sehrawat.
(xv).Witness PW-9 Dr. Jyoti Meena, who medically examined the prosecutrix, appeared in the witness box, she was cross examined from the point of view of how many old the hymen was torn specifically whether it was one year old or some other period; she has specifically deposed that hymen old torn but in terms of time it could not be suggested whether it was one year old or some other period.
Thus, the allegations of rape or criminal intimidation or restrained for four days could not have been proved between the Contd.....
24period 2002 to after 5 or 6 months from the winter of 2005. 8.3 Now, the other period of June 2007 & 17.09.2007 are taken together. The place of incident of 01.06.2007/June 2007 is of Bahadur Garh since after the sale of house in Delhi, the prosecutrix and her parents firstly shifted to Bahadur Garh, Haryana and then at H. No. 3190 Bahadur Garh, Haryana. For the purposes of adjudication qua allegations/charges of this period, testimony of witnesses namely prosecutrix/PW-1, PW-2 Smt. Indu Anand, PW-3 Sh. Sunil Anand & PW-9 Dr. Jyoti Meena are relevant. In June 2007, the prosecutrix attained the age of 18 years 4 months and she was 18 years and 7 months in the month of September 2007.
On the principle of law, the onus to prove the charge lies upon the State. Since there are not only material contradictions amongst the statements of the witnesses but the paradoxical versions appearing from their statements and for want of support of medical evidence, the charge of rape could not have been proved beyond reasonable doubts. The other head of charge of criminal intimidation has also not been proved. The following are the reasons:-
(i).According to PW-1/prosecutrix, on 17.09.2007 when none of her parents were at home, accused Hari Om Sehrawat came and raped her forcibly. Similarly, in the month of June 2007, he came in the house, did an act forcibly and removed the papers from the Almirah of prosecutrix's mother, the prosecutrix made it aware to Contd.....25
her mother. It has also been stated in her statement Ex. PW1/B. Whereas, PW-2 Smt. Indu Anand in her statement/examination in chief recorded on 01.12.2008 that on the night of 17.09.2007 accused Hari Om Sehrawat came when PW-1 & PW-2 Smt. Indu Anand were at their residence, then accused Hari Om Sehrawat beaten them. In the night of 17.09.2007, he did an act forcibly with PW-2 Smt. Indu Anand and to her daughter prosecutrix/PW-
1. Whereas, PW-2 Smt. Indu Anand in her manuscript statement mark X/PW-2 or in her statement recorded under section 161 Cr. P. C mark Y/PW-2 stated contrarily that on 17.09.2007 accused Hari Om Sehrawat raped her daughter. As per statement of PW-1/prosecutrix, also statement recorded during investigation, she was alone at her home; whereas as per PW-2 Smt. Indu Anand, the accused Hari Om Sehrawat came and in the night raped PW-2 Smt. Indu Anand and her daughter PW- 1/prosecutrix. Entirely a new facts has been introduced by making presence of PW-2 as well as rape of PW-2 by accused. There was never any complaint of such allegations towards PW-2 Smt. Indu Anand.
(ii).Further was it possible to rape a grown up girl of 18 years & 7 months, when she protesting it and her mother was present there. Similarly, was PW-2 Smt. Indu Anand silent spectator while accused Hari Om Sehrawat was indulging in the sexual assault to PW-1 & vice versa. The contradictory versions of PW-1 & PW-2 Smt. Indu Anand make it improbable that the prosecutrix was assaulted sexually. Witness PW-3 Sh. Sunil Anand was cross examined on behalf of State and he admitted that in June 2007 and September 2007, his daughter was raped, there is no narration with regard to the rape to PW-2 Smt. Indu Anand.
(iii).According to PW-1, it was June 2007 when not only she was raped but also the papers were removed from the Almirah forcibly. Witnesses PW-2 Smt. Indu Anand & PW-3 Sh. Sunil Anand also deposed that they had heard from their daughter that accused Hari Om Sehrawat came in their absence, prosecutrix was assaulted sexually and papers pertain to the property were removed by the accused.
Contd.....
26Whereas, there is a sale transaction of 25.06.2007 in respect of H. No. 3190, Sector-9 Bahadur Garh, Haryana for purchase of house from Smt. Chitra Bala in the name of Hari Om Sehrawat for consideration of Rs. 11 lacs and witness PW-2 Smt. Indu Anand was a witness to the receipt of Ex. PW2/D; witness PW-2 Smt. Indu Anand during her cross examination admitted the receipt Ex. PW2/D vis-a-vis her signatures at point 'S' thereon. It means that the accused Hari Om Sehrawat & witness Smt. Indu Anand were cordially co-operating each other at the time transaction took place and receipt executed. Further witness PW-2 Smt. Indu Anand said that she lodged a report in June 2007 in respect of her daughter and copy thereof placed in the file, then the record in file was traced; NCR dated 22.11.2007 of missing person was discovered, however, missing report was with regard to papers of property. It means that there was no report of rape of June 2007 nor it has been proved and at the time of transaction and execution of receipt dated 25.06.2007 Ex. PW2/D, there was interaction between the accused and the parents of prosecutrix to the extent to co-operate in transaction of property. If NCR was lodged on 28.11.2007 of missing of papers, it means, no other report was lodged with regard to stolen of property papers or rape upon the person of prosecutrix.
(iv).As per MLC Ex. PW9/A, there were no external injury on the person of prosecutrix/PW-1. There were also no internal injury vis-a-vis coital activities. Ordinarily, when act of sexual assault is resisted, it results into defensive injuries, whereas there is no injuries on the person of prosecutrix. Similarly, there is no external injuries on the body of accused Hari Om Sehrawat as per MLC 11/A.
(v).As per new case introduced by PW-2 Smt. Indu Anand that on 17.09.2007, she was also raped on the same night, the prosecutrix was raped by the accused Hari Om Sehrawat. However, if there was protest by either of witnesses PW-1 & PW-2 Smt. Indu Anand, there would have been defensive injuries on them or injuries on the person of accused. However, there was no report or police report or complaint by PW-2 or PW-1 till the filing of the report to the police authority in the month of November 2007.
Contd.....
27
(vi).The prosecutrix was examined medically on 30.12.2007 and counsel for complainant high lighted that the date of incident is 17.09.2007, the internal injuries or external injuries could not have been visible. Factually, it is the position in the case of time gape, however, there is no explanation as to why report was not lodged immediately after the incident of 17.09.2007 or why there was no medical examination, even PW-2 Smt. Indu Anand, who deposed to be an effected party or suffered at the hand of accused Hari Om Sehrawat had not also lodged any report to the police or her own medical examination.
(vii).There is no medical evidence to suggest that the prosecutrix was HIV positive; no such medical evidence has been collected during investigation nor it has been proved.
(viii).In addition, there are various other contradictions in the deposition of witnesses, which suggest that the witnesses are speaking at different rhythm for example (a) witness PW-2 Smt. Indu Anand in her statement says that when accused Hari Om Sehrawat was permitted to stay in the home, no one has protested it nor her husband PW-3 Sh. Sunil Anand whereas witness PW-1 says that it was protested by her, the witness PW-3 Sh. Sunil Anand says that he had not permitted to accused Hari Om Sehrawat to stay at home but PW-2 Smt. Indu Anand asked him and then he gave permission; (b) PW-1 says that there were no cordial relations amongst her parents on the one side and her grand parents, uncles, aunts on the other side. Whereas PW-3 Sh. Sunil Anand says that there were very cordial relations between PW-2 & PW-3 on the one side and his parents, brothers etc., on the other side, they used to share pains & pleasures together.
(ix).There should have been real threatening or criminal intimidation but from the interaction of PW-2 & PW-3 on the one side and the accused Hari Om Sehrawat on the other side vis-a-vis their cooperation to the extent of buying the property or standing witness does not suggest that there was real threatening or criminal intimidation. It was also held in Sonali Sharma Vs Ranbir Contd.....
28Sharma 83 2000 DLT 412, the threat or criminal intimidation should be real to invoke section 506 IPC.
8.4 In view of analytical discussion in paragraph No. 8.1 to 8.3 above, the ingredients of section 376 IPC (A.1 to A.3, B.1 & B.2 AND C.1 to C.3) have not been proved by the State nor the ingredients of other section 344/506 IPC have been proved beyond reasonable doubts, therefore, by giving benefit of doubts to the accused, accused Hari Om Sehrawat is acquitted of charges under section 376/344/506 (Part-II) IPC. The accused Hari Om Sehrawat be set at liberty if he is no more required in any other case. File is consigned to record room.
(Announced in the open (INDER JEET SINGH)
court on 20.10.2009) ADDL. SESSION JUDGE, WEST DISTRICT-02
TIS HAZARI COURTS, DELHI
Contd.....