Delhi District Court
Fir No. 800/06 ; State vs . Devender @ Gyani Etc. Page 1 Of 94 on 30 September, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 33/08.
FIR No. 800/06.
U/s. 363/376G/506/341/342/366
IPC.
P.S. Janak Puri.
STATE
Versus
1. Devender @ Gyani
S/o Sh. Bhupinder Singh,
R/o J-22, Beriwala Bagh,
Hari Nagar, New Delhi.
2. Varun Popli @ Varun,
S/o late Sh. Raj Kumar,
R/o J-49, Beriwala Bagh,
Hari Nagar, New Delhi.
3. Kunal Kapoor @ Chuha,
S/o Sh. Satish Kapoor,
R/o WZ-62, Beriwala Bagh,
Hari Nagar, New Delhi.
4. Varun Sehgal @ Sehgal,
S/o Sh. Ashwani,
R/o 1/212, Subhash Nagar,
New Delhi.
Date of Institution : 12.03.2007.
Date of Argument : 09.09.2010.
Date of Judgment : 30.09.2010.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 1 of 94
JUDGMENT
1. Prosecution case is that on 27.12.2006, DD No. 6-A was recorded at Police Station Hari Nagar on the basis of information received from mobile phone No. 9811424384 that a Scorpio vehicle No. DL4C-B-9005 which had taken away a girl, has now left her back and that the girl was now being taken to Mai Kamli Wala Hospital, Rajouri Garden. On receipt of this call, Head Constable Arjun Pandit and Constable Ravinder went at the hospital. On enquiry, they came to know that the case related to the area of Police Station Janak Puri and therefore the information was passed on to Police Station Janak Puri at about 10.00 am vide DD No. 8-B. DD No. 8-B was entrusted to SI Desh Raj who along with Constable Gyan Dass reached Mai Kamli Wala Hospital, Rajouri Garden where prosecutrix "S" (name withheld) was found admitted. SI Desh Raj collected the MLC of the prosecutrix. On the MLC, doctor observed "Seminal Discharge Present on Perineum, Discharge on Introitus Present." Prosecutrix was declared fit for statement. Her statement was then recorded in the presence of her mother Smt. Neeru Josan. Statement of prosecutrix was also attested by Dr. Smita Srivastava. In her statement, prosecutrix stated that she was a student of 12th class and that on 26.12.2006 at about 2.00, she had gone to Kathuria teacher at C-4, Janak Puri for tuition. At about 4.30 pm, she was returning back to her house on a rickshaw. When she reached near C-4E, Janak Puri red light, the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 2 of 94 chain of the rickshaw got broken. She got down from the rickshaw and started walking on foot. After crossing the red light, a Scorpio bearing No. DL4C-P-9005 came and stopped near her. A boy wearing black colour jacket dragged her inside the Scorpio car. Three more boys were sitting in the car who were addressing each other with the name Varun & Chuha. When they reached in front of PVR Vikas Puri, she told them that her friend Chandan, who is studying in Akash Institute, resides there and that she would make their complaint to him. On this, one of the boys gave his mobile phone to her asking her to talk to Chandan. Prosecutrix then dialled mobile phone No. 9871458423. She was told by the boys to tell Chandan that as and when phone is received from her house, he should not pick up the phone. She further stated that when she tried to talk to Chandan, accused persons disconnected the phone. She stated in the said statement that she was not allowed to get down from the car and the boys did "Galat Kaam" with her in the moving car. She further stated that she was brought at her house at 12.00 in the night and that her mother had noted down the number of the car. Her four books remained in the car. She stated that while dropping her, one boy named Varun threatened to kill her in case she narrated the incident to her mother. On the aforesaid statement of the prosecutrix, SI Desh Raj prepared a Rukka and sent the same at police station through Constable Gyan Dass. After registration of the FIR, investigation was entrusted to Inspector Usha Kumari Joshi. IO went to Mai Kamli Wala Hospital and seized the exhibits FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 3 of 94 i.e. vagina seminal discharge slides and undergarments of the prosecutrix preserved by the doctor. Statement of prosecutrix was recorded under Section 161 Cr. PC. Statement of Neeru Josan was also recorded under Section 161 Cr. PC. During investigation, all the four accused were arrested in this case. Their personal search was conducted. Scorpio car bearing No. DL4C-P-9005 was recovered from the possession of accused Varun Popli. Accused persons gave disclosure statements confessing their involvement. Two bind note books, two notes registers and a white colour ladies towel handkerchief were recovered from the Scorpio car. Accused were got medically examined between 1.15 pm to 1.35 pm at DDU Hospital. Their MLCs and sealed exhibits were collected. They were produced in court for TIP in muffled face. The sweater and jeans, which the prosecutrix was wearing at the time of incident, were also seized. The birth certificate and the tenth class school certificate were seized as age proof. Site plan was prepared on the pointing out of the prosecutrix. At the request of the mother of the prosecutrix, she was again got medically examined from DDU Hospital on 29.12.2006. One sealed exhibit with sample seal of the hospital were seized. Scorpio car was got inspected from FSL, Rohini. Samples were taken from the middle seat cover and back seat cover of the Scorpio car. The exhibits were sent to FSL. An application was filed in court for the TIP of the accused but accused refused to take part in the TIP. On 10.01.2007 at the time of extension of judicial remand of the accused, they were FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 4 of 94 identified by the prosecutrix outside the court room. IO obtained the call details of the mobile phones of Smt. Neeru Josan, mother of the prosecutrix and her friend Chandan. It was found from the call details of Chandan that the call was made from the mobile phone of Kunal Kapoor bearing No. 9911276799 on 26.12.2006, the ownership proof of the mobile phone of Kunal Kapoor was also collected. During re-medical of the prosecutrix dated 29.12.2006, the doctors had cancelled the MLC No. 32771/06, the same was also seized and taken on record. Pending the receipt of FSL result, charge sheet was filed under Section 363/366/376(g)/342/506/34 IPC and the accused were sent to court for trial.
2. After compliance of Section 207 Cr. PC, learned Metropolitan Magistrate committed the case to Sessions Court. Charges under Section 341/342/363/366/376 (2) (g)/506/34 IPC were framed against all the four accused to which, they pleaded not guilty.
3. In order to prove its case, prosecution examined 33 witnesses. PW-1 is Kumari "S". She is the prosecutrix. She has deposed about the facts stated in her complaint to the police. She proved her statement Exbt. PW-1/A, which she gave to the police.
PW-2 is Sh. Mahesh Katyal. He is the neighbourer of the prosecutrix. He deposed that on 26.12.2006 at about 11.35 FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 5 of 94 pm, he was coming from his shop in his car and when he reached Gali No. 1, Hari Nagar and took turn from T Point, he saw a vehicle was coming behind his car. On hearing the noise of boys, he parked his car on the right side. The boys stopped the vehicle on the left side. He came down from the car. Two boys also got down from the said vehicle and told him "Uncle Yeh Ladki Aapko Bula Rahi Hai." He went there and saw that a girl was lying near the said vehicle in the gali and the said vehicle was Scorpio. He deposed that there was also one Sikh gentleman with those two boys. He identified accused Devender @ Gyani as the same boy who had called him. He could not identify the other boys. He deposed that two other boys were sitting in the Scorpio. He stated that he saw in the light of his mobile phone that the girl lying near Scorpio was "Kumari S", who was resident of second floor of his building. He then called the Chowkidar. Three boys went with Chowkidar to the house of prosecutrix. The mother of prosecutrix came there with those boys. The mother of the prosecutrix asked her to get up but she could not stand due to which, she gave 2/3 slaps to prosecutrix. He deposed that the prosecutrix was unconscious. In the meanwhile, Bunty Chopra and a Sikh gentleman came there. Thereafter, all the four boys went away from the spot in the Scorpio. He further deposed that he gave his visiting card to the mother of prosecutrix and she noted the number of the Scorpio on the said visiting card. Thereafter, he along with Bunty Chopra and said Sikh gentleman, took the prosecutrix to her house. PW-2 was cross examined by the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 6 of 94 learned Additional PP on the point of identity of three accused. Accused Varun Popli, Kunal Kapoor and Varun Sehgal were shown to him. After taking 2-3 minutes and seeing the accused persons, he stated that three accused persons might be the same boys who came in the said Scorpio.
PW-3 is Constable Dilbagh Singh, DD Writer, PS Janak Puri. He deposed that on 27.12.2006 at about 4.10 am, on receipt of a telephonic message from Control Room, West District, he recorded DD No. 8-B in the Daily Diary Register, copy of which is Exbt. PW-3/A. According to him, copy of Daily Diary was handed over to SI Desh Raj who along with Constable Gyan Dass left the police station.
PW-4 is ASI Arjun Pandit. He deposed that on receipt of DD entry, he along with Constable Ravinder reached at MKW Hospital, Rajouri Garden where prosecutrix "S" was found admitted. Her mother Neeru was also present in the hospital with doctors. On enquiry, he came to know that the girl was kidnapped from near Bharti College and the number of Scorpio car was disclosed to him as DL4C-P-9009. As the place of occurrence fell within the jurisdiction of PS Janak Puri, he gave message to SHO. Senior Officers reached at MKW Hospital. SI Desh Raj also came from PS Janak Puri. Thereafter, he left MKW Hospital.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 7 of 94PW-5 is Smt. Neeru Josan. She is the mother of prosecutrix. She deposed that her eldest daughter "S" was
studying in 12th Standard in the year 2006. She used to attend coaching classes at Gyan Tutorials, Janak Puri. On 26.12.2006, Kumari "S" had gone to coaching centre at 12.00 pm as there was a test. At about 8.00 pm when she came back to her house from duty, her younger daughter Sirat Kaur told her that Kumari "S" had not returned back from coaching centre. She immediately rang to Mr. Kathuria, teacher at coaching centre who informed her that Kuamri "S" had come to coaching centre and she gave the test and thereafter left the coaching centre at about 4.30 pm. Thinking that Kumari "S" might have gone to the house of her real sister living at Dilshad Garden, she telephoned at the house of her sister to enquire about Kumari "S" but was informed that prosecutrix had not come there. She then went to the house of Swati, friend of prosecutrix to enquire about the prosecutrix but nobody was present at the house. She made efforts to trace her daughter in the locality but she was not traceable. At about 9.20 pm, she received a telephonic call at her mobile phone from a PCO from prosecutrix who spoke "Mama Aap Mere Ko Dhoond Nahin Rahe." In response, she told her that she was tracing her and that her mobile phone was being taped and the telephone was disconnected. She then informed her sister. She went to the house of her cousin at Lawrence Road without waiting for her sister to come and enquired about the prosecutrix but prosecutrix was not traceable there. She then returned back to her house at FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 8 of 94 about 11.00 - 11.30 pm. After sometime, somebody rang at her house. She went out and saw that Chowkidar was standing outside and he told her that Mahesh Katyal was calling her. She immediately came down the stairs and when she went ahead for some distance in gali, she saw three persons, identified as accused Varun Popli, Varun Sehgal and Kunal Kapoor standing there. Chowkidar Jeevan Bahadur told her that those three persons had brought the prosecutrix. She enquired from them as to from where they have brought the prosecutrix. On this, one of them replied that they had brought the prosecutrix from Gurudwara Bangla Sahib while the other accused told that they had brought her from District Centre. Three accused accompanied her to T Point where she saw a Sikh boy, identified as accused Devender @ Gyani, standing with Mahesh Katyal. She found her daughter lying on the road near T Point. She was unconscious. All the four accused persons then ran away in Scorpio bearing No. DL4C-P-9005. Mahesh Katyal gave her a visiting card on which, he noted the number of the vehicle. She stated that Kuldeep Singh and Bunty were also present at the T Point. With the help of Mahesh Katyal, Bunty and Kuldeep Singh, prosecutrix was lifted and taken to her house in the car of Mahesh Katyal. She further deposed that it was raining that day and there was mud at T Point where the prosecutrix was lying due to which, her clothes were stained with mud. She changed the clothes of prosecutrix as she was still unconscious. After sometime, she took the prosecutrix to MKW Hospital where she was admitted.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 9 of 94Prosecutrix regained her consciousness in the hospital. On enquiry, she told her that four persons had lifted her from Janak Puri and committed rape on her. She rang up at 100 number and police came at MKW Hospital and made enquiries from her daughter. Her daughter then disclosed all the facts to the police. She deposed that on 27.12.2006, she took back her daughter to her house because media persons were harassing her. She further deposed that on 29.12.2006, she along with her brother took the prosecutrix to DDU Hospital where she was medically examined. After medical examination, a junior doctor came out of the room and told her that senior doctor was not available and handed over the slides to Inspector Usha Joshi and told her that she would inform the senior doctor. Her brother then took the prosecutrix to the house from the hospital while she herself remained in the hospital. After sometime, senior doctor came and after seeing the MLC of the prosecutrix, made some cuttings on the MLC and told her that she would again examine the prosecutrix. Prosecutrix was again called back at the hospital and was examined by senior lady doctor. She further deposed that she had taken her daughter to Central Jail for identification of the accused but accused persons had refused the TIP. She stated that on 10.01.2007, she, her sister and prosecutrix came to the court of ACMM and that at the asking of Inspector Usha Joshi, her daughter identified all the accused persons who were present outside the court. She further deposed that she had handed over the visiting card on which the number of the vehicle was written FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 10 of 94 along with the medical papers of the prosecutrix of Lady Harding Hospital and DDU Hospital to IO which were seized vide memo Exbt. PW-5/A. She further deposed that she had handed over the pant and sweater having mud stains of the prosecutrix to the police which were seized vide memo Exbt. PW-5/B and had also handed over the copy of birth certificate of prosecutrix which was seized vide memo Exbt. PW-5/C. She stated that the date of birth of prosecutrix is 10.08.1989. According to her, statement of prosecutrix was recorded by the police at MKW Hospital and her statement was also recorded by the learned Metropolitan Magistrate.
PW-6 is HC Babu Lal, the then MHCM. He produced Register No. 19 and proved the relevant entries of the Register as Exbt. PW-6/A to Exbt. PW-6/D. According to him, on 10.05.2007, exhibits were sent to FSL and later, on receipt of FSL result, same was handed over to the IO.
PW-7 is HC Kuldeep Singh, Duty Officer, PS Janak Puri. He stated that at about 7.00 am on 27.12.2006 on the receipt of Rukka produced by Constable Gyan Dass, he recorded FIR No. 800/06, copy of which is Exbt. PW-7/A. After recording the FIR, he made his endorsement on the Rukka which is Exbt. PW- 7/A. FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 11 of 94 PW-8 is Sh. Sanjeev Kathuria of Gyan Tutorial. He deposed that prosecutrix had joined the coaching centre in the first week of November, 2006 and took classes for about one or one and a half months. He stated that the classes were held on Tuesday, Thursday and Saturday between 8.00 pm to 9.00 pm but in order to cover some chapters, prosecutrix used to come from 3.30 pm to 4.30 pm. He deposed that on 26.12.2006 at about 8.00 pm, he received a telephonic call from the mother of prosecutrix and she enquired if prosecutrix had come to his coaching centre. He told her that prosecutrix had come for test from 2.30 pm to 3.30 pm and then for coaching from 3.30 pm to 4.30 pm and left the coaching centre at about 4.30 pm. PW-9 is Sh. Amrit Pal Singh from Guru Harkrishan Public School, Punjabi Bagh. He produced the transfer certificate of prosecutrix which was submitted at the time of her admission in the school and also produced the attested copy of CBSE certificate. Copy of the transfer certificate and the attested copy of the CBSE certificate are proved as Exbt. PW-9/A and Exbt. PW- 9/B respectively.
PW-10 is Chandan Singh Rathore. He deposed that in the year 2006, he was studying in class 12th and had joined Akash Institute for coaching and prosecutrix was also taking coaching from Akash Institute and she was his classmate. On 26.12.2006, he received a telephonic call from mobile phone No. 9911276799 FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 12 of 94 to his mobile phone No. 9871458423 from the prosecutrix telling him that if he would receive telephone call from her house, he should not tell them anything. On enquiry as to what had happened, she replied "Nahin Kucch Nahin, Bata Mat Bas" and then disconnected the telephone. He deposed that on the next day early morning, mother of prosecutrix telephoned him and called him at her house.
PW-11 is Dr. Seema Sehgal from Mai Kamli Wala Hospital, Rajouri Garden. She deposed that on 27.12.2006, prosecutrix was referred to her by Dr. Lakhan Patel. On examination, she found the prosecutrix conscious but disturbed. Her body was smeared with dust. Her breast examination was found normal. No injury mark was found anywhere on her body. On gynae examination, she found no signs of laceration, no tear of hymen, hymen intact and no sign of torn hymen was seen. She noticed seminal discharge of perineum and found discharge on the introitus. She then prepared the slide and handed over the same to the police. The undergarments of the prosecutrix was also handed over to the police. Portion A to A of MLC No. 096 dated 27.12.2006 of prosecutrix which is in her handwriting, is proved as Exbt. PW-11/A. After cross examination, PW-11 was re-examined by the learned Additional PP. In re-examination, she stated that there is cutting in the MLC of the prosecutrix. She further stated that after preparing the MLC, she had some suspicion and therefore went back to patient and after checking FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 13 of 94 the patient, made cutting at point `Y' and wrote down portion `Z' and also made overwriting at point `Z.' She admitted that Exbt.
PW-11/B is the photocopy of MLC Exbt. PW-11/A. PW-12 is Dr. Smita Srivastava, also from MKW Hospital. She had examined the prosecutrix and prepared MLC Exbt. PW-11/DA.
PW-13 is Sh. Naresh Kumar, Senior Scientific Assistant (Biology) FSL, Rohini. He had examined the exhibits and gave the report Exbt. PW-13/A and serological report as Exbt. PW-13/B. PW-14 is Sh. Naresh Chand, LDC from DTC. He produced the record of Scorpio bearing No. DL4C-P-9005 and as per record, the said vehicle is registered in the name of Smt. Chanchal Popli.
PW-15 is Constable Vijay Kumar, the then MHCM.
He deposed that on 02.01.2007, he took the Scorpio bearing No. DL4C-P-9005 to the office of FSL, Rohini. He was accompanied by Inspector Usha Joshi. FSL officials took the clippings of the second seat and back seat of the vehicle and converted them into pullandas and sealed the same with the seal of NK. Parcels were then seized vide memo Exbt. PW-15/A. FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 14 of 94 PW-16 is HC Ravinder. He deposed that on 27.12.2006, on receipt of DD No. 5, he along with HC Arjun Pandit reached at MKW Hospital where prosecutrix "S" was found admitted and her mother was also present. He further deposed that prosecutrix had disclosed to HC Arjun Pandit that she was kidnapped in the Scorpio from Bharti College. He stated that HC Arjun Pandit gave the message to Control Room, Rajouri Garden as the area fell within the jurisdiction of PS Janak Puri.
PW-17 is Sh. Prashant Kumar, MM. He had conducted the Test Identification Proceedings of the accused. He stated that accused persons refused to take part in the TIP. He proved the TIP proceedings Exbt. PW-17/A to Exbt. PW-17/D. PW-18 is Sh. Gulshan Arora, Nodal Officer, Vodafone. He stated that Vodafone Mobile SIM No. 9811424384 was issued in the name of Smt. Neeru Josan. He proved the application form and the supporting documents for allotment of mobile SIM as Exbt. PW-18/A and Exbt. PW-18/B respectively. He produced the call details of incoming and outgoing calls against mobile No. 9811424384 of 26.12.2006 as Exbt. PW-18/C. After part cross examination, remaining cross examination of this witness was deferred with directions to produce the call details of 27.12.2006 but it could not be produced as he left the job and therefore another Nodal Officer from Vodafone named Anuj Bhatia was examined as PW-23 to prove the call details.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 15 of 94PW-19 is Ms. Seema Nayar, Nodal Officer, Idea Cellular. She deposed that mobile phone bearing No. 9911276799 is in the name of Satish Kapoor son of Sh. S.L. Kapoor, resident of House No. WZ-62, First Floor near Beri Wala Bagh, Hari Nagar, New Delhi-64. She proved the Customer Services Agreement Form Exbt. PW-19/A and also proved the computer generated statement of call details of the aforesaid mobile number of 26.12.2006 running into six pages as Exbt. PW- 19/B (collectively). She also proved the Site ID Chart running into 59 pages as Exbt. PW-19/C (collectively).
PW-20 is Sh. R.K. Singh, Nodal Officer, Bharti Airtel. He produced the ownership record of mobile phone No. 9810581529, 9910295777 and 9818972900. He proved the certificate giving the names of the owners of the aforesaid mobile phone connection numbers as Exbt. PW-20/E. As per Exbt. PW- 20/E, mobile phone No. 9910581529 was in the name of accused Varun Sehgal, phone No. 9910295777 was in the name of accused Varun Popli and phone No. 9818972900 is in the name of Ashutosh Kumar.
PW-21 is Manish @ Bunty. He deposed that on 26.12.2006 at about 11.45 pm on hearing the noise of the vehicle, he came out of his room in the gallery and saw a Scorpio car standing in front of his house. Mr. Katyal, who is the resident of FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 16 of 94 his gali, was seen talking to the occupants of the Scorpio car. He saw a girl lying on the road near Scorpio car in water which had accumulated after rain. All the four accused were also standing there. After switching on the light, he found that the girl was the resident of his gali. Gali Chowkidar was also standing there. He enquired the matter from Mr. Katyal. He further deposed that accused Devender @ Gyani informed him that they had brought the girl from District Centre, Janak Puri where she was trying to commit suicide. Mr. Katyal sent the other three accused with Chowkidar to call the mother of the girl. They brought Neeru, mother of the girl at the spot. He further stated that while they were lifting the girl, who was unable to get up of her own and was in semi conscious condition, all the accused went away in their Scorpio. He further stated that on the asking of the mother of the girl, they noted down the number of the Scorpio car which is 9006. He deposed that one Sardarji by the name Kuldeep @ Nikku, who was running a factory in their gali, also reached at the spot. The mother of the girl tried to lift her. He stated that he with the help of Kuldeep left the girl at her house in the car of Mr. Katyal. He further deposed that Mahesh Katyal had told him that the other three occupants of the Scorpio car had told him that they had brought the girl from Gurudwara Bangla Sahib while accused Devender @ Gyani told that they had brought the girl from District Centre, Janak Puri, where she was trying to commit suicide. In reply to the leading question put up by the learned Additional PP, PW-21 admitted that prosecutrix "S" was not answering as she FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 17 of 94 was unconscious.
PW-22 is Dr. Pratibha Nanda from DDU Hospital. She deposed that on 29.12.2007, she was called from her home by Medical Superintendent of the hospital as an Expert to supervise the MLC of prosecutrix "S" as there was confrontation between the doctors and the relatives of the patient and there was consequently confusion in the casualty. She stated that MLC was prepared by Dr. Arti Sharma, Gynaecologist on 29.12.2006 at about 7.30 pm. She further stated that after preparing the MLC, Dr. V.K. Soni referred the patient to Gynae Department. She further stated that there was an alleged history of getting picked up by some boys two days back in a car and fondling her private parts and pressing breast and according to the patient, she had become unconscious and did not remember whether anybody performed sexual intercourse with her. She further stated that on examination, there was no mark of any external injury anywhere on the body, on breast or private parts. There were no marks of teeth on breast or private parts, hymen was found not intact and Vagina allowed one finger examination. She stated that the slides were prepared from Vagina which were sealed and handed over to the IO. She further deposed that all the observations were made in the MLC under her supervision and handwritten by Dr. Arti Sharma on the MLC Exbt. PW-22/A. She further stated that before her reaching the hospital, one MLC bearing No. 32771 had already been prepared but there was cutting and overwriting in the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 18 of 94 said MLC and therefore at her instance, said MLC Mark A was cancelled and fresh MLC Exbt. PW-22/A was then prepared. According to her, the alleged history in the MLC Exbt. PW-22/A was recorded in her presence and was given by the patient herself. The witness was declared hostile and was subjected to cross examination by learned Additional PP. She admitted that in the MLC Mark A, Dr. Piyush had made following observations "Abrasions over right side of chest." She stated that patient had undergone an ECG just before her examination by Dr. Piyush Jain and therefore the abrasion marks recorded by Dr. Piyush Jain could be the marks due to ECG leads and by the time the patient was examined by her, there were no abrasion marks and therefore the observation made by Dr. Piyush Jain was not correct which he himself rectified by cutting and putting his signatures.
PW-24 is Constable Mahender. He had deposited the sealed parcels and the sample seals at FSL Rohini vide RC No. 66-67/21/07 and deposited the receipt with MHCM.
PW-25 is Constable Gyan Dass. He is the witness of investigation. He had gone to MKW Hospital with SI Desh Raj where SI Desh Raj recorded the statement of prosecutrix and sent him with Rukka to police station for the registration of the FIR. After registration of the FIR, he along with SI Usha Joshi went to MKW Hospital where she seized two pullandas handed over by doctor to her vide memo Exbt. PW-25/A. Thereafter, he along FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 19 of 94 with SI Desh Raj and SI Usha Joshi and informer went at Hari Nagar. He stated that accused Devender @ Gyani was arrested from Beri Wala Bagh on the pointing out of secret informer vide arrest memo Exbt. PW-25/B and his personal search was conducted vide personal search memo Exbt. PW-25/C. He further stated that accused Devender @ Gyani gave disclosure statement Exbt. PW-25/D and he was asked to cover his face for TIP. He stated that accused Devender @ Gyani in muffled face led the police party to the house of accused Varun Popli who was arrested vide arrest memo Exbt. PW-25/E and his personal search was conducted vide personal search memo Exbt. PW-25/F. Accused Devender @ Gyani and Varun Popli both in muffled face then took the police party to the house of accused Kunal Kapoor who was arrested vide arrest memo Exbt. PW-25/G and his personal search was conducted vide memo Exbt. PW-25/H. Thereafter, all the three accused in muffled face took the police to the house of accused Varun Sehgal from where accused Varun Sehgal was arrested vide arrest memo Exbt. PW-25/I and his personal search was conducted vide memo Exbt. PW-25/J. He stated that accused Varun Sehgal got recovered a Scorpio car from Hari Nagar which was seized vide memo Exbt. PW-25A. Four note books bearing the name of prosecutrix "S" and one ladies handkerchief were recovered from the Scorpio car. The handkerchief was kept in a white colour polythene envelope and sealed with the seal of DR and not books were kept in a paper envelope and also sealed with the seal of DR. The sealed parcels FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 20 of 94 were seized vide memo Exbt. PW-25/L. Accused were brought to the police station and Scorpio car was deposited in the Malkhana. All the four accused were then got medically examined from DDU Hospital and after medical examination, they were brought to the police station and exhibits were handed over to the IO which were seized vide memos Exbt. PW-25/M to Exbt. PW-25/P. He further deposed that he along with Inspector Usha Joshi went to the house of prosecutrix. Her mother Neeru Josan handed over a ladies cardigan and jeans pant which the prosecutrix was wearing at the time of incident. The clothes were kept in a pullanda and sealed with the seal of DR and were seized vide memo Exbt. PW- 5/B. He identified the handkerchief, clothes, Scorpio car and note books. In response to a leading question put by the learned Additional PP, he admitted that Scorpio car of green colour bearing No. DL4C-P-9005 was recovered on the pointing out of accused Varun Popli. He admitted that all the accused were produced in court in muffled faces.
PW-26 is Jeevan Bahadur, Chowkidar of the gali. He deposed that on 26.12.2006 at about 11.45 pm while he was sitting on a stool along the wall side, a green colour big car bearing No. 9005 came in the gali followed by a Santro Car bearing No. 8028 driven by Mahesh. Santro car stopped in front of gate of BE-94 and Mr. Mahesh stopped the car on the right side of the road in the gali. He stated that three boys sitting in the car bearing No. 9005 came out and started talking with each other.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 21 of 94Mr. Mahesh also reached there. Thereafter, one of the boys dragged out a girl from car No. 9005 due to which, she fell down in the muddy water. He stated that the girl was the resident of their gali. Mr. Mahesh asked him to call her mother. Then he along with three boys went to the house of Neeru. The three boys stopped on the way and he himself went to the house of Neeru and informed her. He came back along with Neeru and showed her the three boys who had brought her daughter in the car. He stated that in the meanwhile, Bunty and Sardar Kuldeep also reached at the spot. Neeru questioned the boys as to from where they had brought her daughter? One of the boys told her that they had brought her from District Centre, Janak Puri. Neeru told them that her daughter never visited District Centre, Janak Puri. On this, the second boy told her that they had brought the girl from Bangla Sahib Gurudwara. Neeru told them that they had visited Bangla Sahib Gurudwara a day before. He further deposed that there was one more boy with those three boys who was a Sardar but he kept standing near the car. He stated that while the girl was trying to get up, all the four accused fled away in their car. The girl was then lifted and put in the car of Mr. Mahesh with the help of Bunty, Kuldeep, Mahesh and Neeru and taken to her house. He identified all the four accused who had brought the girl in their car.
PW-27 is SI Desh Raj. He is also the witness of investigation. He had recorded the statement of prosecutrix at FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 22 of 94 MKW Hospital and had made endorsement Exbt. PW-27/A on her statement for the registration of the FIR. He is also the witness of arrest of all the four accused and the recovery of Scorpio Car of accused Varun Popli and the witness to the recovery of handkerchief and four note books from Scorpio Car.
PW-28 is Dr. Vineet Soni. He stated that prosecutrix "S" was medically examined on 29.12.2006 by Dr. Piyush Jain, Junior Resident under his supervision and after medical examination, Dr. Piyush Jain referred her for Gynae examination. He stated that MLC Exbt. PW-28/A (Mark A) was cancelled because of cutting and overwriting on the same as it might have created problem in the court case due to cutting and overwriting. He deposed that in the meanwhile, Dr. Pratibha Nanda, Senior Gynaecologist also came there and thereafter, fresh MLC was prepared. He further stated that after cancellation of the MLC Exbt. PW-28/A, he prepared fresh MLC Exbt. PW-22/A and that he had recorded the alleged history of sexual assault in his handwriting on Exbt. PW-22/A and thereafter referred the patient for gynae examination. The witness was put leading questions by the learned Additional PP regarding the cutting at Point Y on Exbt. PW-28/A but the witness stated that he was unable to decipher the writing below the cutting.
PW-29 is Sh. S.S. Rathi, ADJ. He had recorded the statement of prosecutrix under Section 164 Cr. PC, which is Exbt.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 23 of 94
PW-29/B.
PW-30 is Inspector Usha Joshi. She is the
Investigating Officer of this case. She deposed that on receipt of FIR, she along with Constable Gyan Dass went at MKW Hospital where the doctor handed over two sealed pullandas bearing the seal of MKWH and a sample seal which was seized vide memo Exbt. PW-25/A. She made enquiry from the prosecutrix and recorded her statement. She also recorded the statement of her mother Smt. Neeru Josan. She then along with SI Desh Raj and Constable Gyan Dass went at DDA Market, Hari Nagar. She stated that prosecutrix, on enquiry, had informed her in the hospital that one of the accused who was a Sardar and used to tease her was having a shop in DDA Market opposite rickshaw stand, Hari Nagar. She went at the shop but the shop was found closed. A secret informer informed her that the shop owner was the resident of J-22, Beri Wala Bagh and that the son of the owner used to sit on the shop. She along with SI Desh Raj and Constable Gyan Dass then went at house No. J-22, Beri Wala Bagh from where, she arrested accused Devender @ Gyani and recorded his disclosure statement. Accused Devender @ Gyani was given cloth to keep his face muffled for TIP. She deposed that accused Devender @ Gyani took the police party at J-49, Beri Wala Bagh from where, accused Varun Popli was arrested on the pointing out of accused Devender @ Gyani and on interrogation, he gave disclosure statement and then got recovered Scorpio car FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 24 of 94 bearing No. DL4C-P-9005 from the main gate near J Block, Beri Wala Bagh which was seized vide memo Exbt. PW-25/K. She further deposed that on the search of the Scorpio car, a ladies towel handkerchief, two spiral bound notebooks and two more notebooks were recovered. Accused Varun Popli was also given cloth for covering his face. Accused Devender @ Gyani and Varun Popli then took the police party at WZ-62, Beri Wala Bagh from where, accused Kunal Kapoor was arrested on their pointing out who on interrogation, gave disclosure statement. He was also given a cloth to cover his face. Thereafter, all the three accused took the police party to the house of accused Varun Sehgal at 1/112, Subhash Nagar from where, accused Varun Sehgal was arrested. He gave disclosure statement Exbt. PW-25/S. He was also given cloth to cover his face. She deposed that accused were sent to DDU Hospital for their medical examination. After their medical examination, exhibits received from the hospital were seized vide memos Exbt. PW-25/M to Exbt. PW-25/P. Accused were sent to J/C. She stated that she along with Constable Gyan Dass and other police staff went to the house of prosecutrix. Her mother handed over ladies cardigan and jeans pant of the prosecutrix which she was wearing at the time of incident, which was seized vide memo Exbt. PW-5/B. The mother of prosecutrix also handed over the photocopy of the birth certificate and CBSE school certificate of prosecutrix which were seized vide memo Exbt. PW-5/C. She further deposed that she visited the house of Mahesh Katyal but he was not found present. She also visited FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 25 of 94 the house of Sardar Kuldeep Singh and Manish @ Bunty and recorded their statements. Statement of mother of prosecutrix was recorded and case property was deposited in Malkhana. On 28.12.2006, she recorded the statements of Chowkidar Jeevan Bahadur, Mahesh Katyal and Chandan. During investigation, she had also recorded the statement of tutor Mr. Kathuria and prepared the site plan Exbt. PW-30/A at the spot on the pointing out of prosecutrix in the presence of her mother. On 29.12.2006, she filed an application for the TIP of accused. TIP was conducted at Tihar Jail by learned MM on 02.01.2007. She also filed an application dated 30.12.2006 for the recording of statement of prosecutrix under Section 164 Cr. PC but her statement was recorded by the learned MM on 04.01.2007. She collected the ownership details of Scorpio car and took the Scorpio car to FSL for inspection. Pieces of fabric of the middle seat and the rear seat of the Scorpio car were taken at FSL. She further deposed that on 10.01.2007, prosecutrix identified all the four accused while they were produced in court for the purpose of extension of J/C remand. She stated that on 02.03.2007, she obtained the copy of tenth class certificate of the prosecutrix Exbt. PW-9/B from the school Principal which was seized vide memo Exbt. PW-30/E. On 05.02.2007, she collected the cancelled MLC vide memo Exbt. PW-30/F. During investigation, she also collected the call detail records and the ownership records of mobile phones of accused, mother of prosecutrix and Chandan. On 08.03.2007, she seized the visiting card bearing the number of FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 26 of 94 Scorpio car and the prescription slips Exbt. PW-5/P1 to Exbt. PW- 5/P5 vide memo Exbt. PW-5/A. She further stated that on 04.01.2007, exhibits were sent to FSL, Rohini. Pending the receipt of FSL result, charge sheet was prepared and filed in court. FSL result was filed in court after the filing of the charge sheet.
PW-31 is Dr. Piyush Jain, author of cancelled MLC Exbt. PW-28/A (Mark A). He stated that the patient made complaint of pain in bilateral arm but no abnormality was detected on the examination of chest, heart and abdomen. He admitted that there is a cutting at point Y on the MLC Exbt. PW-28/A. He deciphered that at point `Y' "Abrasions over right side of the chest"
was written. He stated that the cutting was done because of spelling mistakes and overwriting. He further deposed that he referred the patient for gynae opinion. He further stated that because of spelling mistakes and overwriting, Exbt. PW-28/A was cancelled and a fresh MLC was prepared by senior doctor Vineet Soni. He stated that there were 3-4 more cuttings on the MLC Exbt. PW-28/A on which, he made his initials. He stated that the MLC was cancelled after about 40 minutes and he did not write back the deciphered portion at point Y as he was told that a new MLC was being prepared and was also told that Gynaecologist would examine the patient and therefore he need not write anything further on the MLC.FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 27 of 94
PW-32 is Dr. Rishi from DDU Hospital. He had conducted the medical examination of accused Vaurn Popli and proved his MLC as Exbt. PW-32/A. He stated that accused Varun Popli was uncooperative for giving semen samples. He stated that accused Devender @ Gyani was examined by Dr. Arti Soni and proved the MLC of accused Devender @ Gyani as Exbt. PW- 32/B. According to him, there was nothing to suggest that accused Varun Popli and Devender @ Gyani cannot perform sexual intercourse. He stated that the undergarments and blood samples were taken, sealed and handed over to the police.
PW-33 is Dr. Ankush Garg from Ganga Ram Hospital. He had conducted the medical examination of accused Varun Sehgal and Varun Kapoor. He proved their MLCs Exbt. PW-33/A and Exbt. PW-33/B and gave the opinion that there was nothing to suggest that they cannot perform sexual act. The undergarments and blood samples were sealed and handed over to police by him. He stated that accused Varun Sehgal and Kunal Kapoor did not give any semen sample.
4. Statements of all the four accused were recorded under Section 313 Cr. PC wherein, they denied all the incriminating evidence and stated that they were innocent. Accused Varun Sehgal refused to lead defence evidence.FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 28 of 94
5. In their defence evidence, accused Devender @ Gyani and Kunal Kapoor examined DW-1 Sh. Sudershan Anand, President of Residents Welfare Association, J Block, Hari Nagar. He stated that photograph Mark PW-30/D2 is the photograph of house of accused Devender @ Gyani. He stated that there is a Kabadi shop on the ground floor of his house which is run by his family. He further stated that the family of accused Kunal Kapoor resides on the first floor while on the ground floor, a dry clean shop is being run by the landlord.
6. In his defence, accused Varun Popli examined himself under Section 315 Cr. PC. He deposed that on 26.12.2006, he went at the shop of his uncle to assist his son Sandeep Jolly in the business of his uncle and remained at the shop from 8.00 am to 8.00 pm. He stated that the other three accused i.e. Varun Sehgal, Kunal Kapoor and Devender @ Gyani were known to him as all four of them live in the same area i.e. Subhash Nagar and Hari Nagar. He stated that he was having mobile phone No. 9910295777 and mobile phone number of accused Varun Sehgal was 9810581529 and the cell phone number of accused Kunal Kapoor was 9911276799. He could not given the cell phone number of accused Devender @ Gyani. He stated that all four of them used to talk to each other on their mobile phones. He further stated that prosecutrix "S" was not known to him and that on 26.12.2006, he came to know that accused Devender @ Gyani FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 29 of 94 and prosecutrix "S" were having relationship/friendship with each other and were having love affair for the last about one and a half months prior to 26.12.2006. He deposed that on 26.12.2006 while he was sitting at the shop of his uncle at about 4.20 pm, he received a call on his mobile phone from the mobile phone of accused Varun Sehgal. After closing the shop, he went to his house at Subhash Nagar at about 8.30 - 8.45 pm. Accused Varun Sehgal also came at his house and they both started playing games on the computer at his house. At about 9.30 pm, he received a call from the mobile phone of accused Kunal Kapoor who told him that accused Devender @ Gyani was in trouble and that also told him that accused Devender @ Gyani was present with his girl friend (Prosecutrix "S") at Vikas Puri PVR and that prosecutrix was attempting to commit suicide from Janak Puri District Centre. He along with accused Varun Sehgal went at Janak Puri B Block in Scorpio car where they met accused Kunal Kapoor. All three of them then went to PVR Vikas Puri in the Scorpio car where they met accused Devender @ Gyani and prosecutrix "S." Accused Devender @ Gyani told them that prosecutrix was his girl friend and had run away from her house after quarrelling with her mother and she did not want to go back as her mother was a step mother and would kill her. He further stated that accused Varun Sehgal sat on the driver seat while accused Devender @ Gyani and prosecutrix "S" sat on the rear seat of the vehicle. The two wheeler scooter of accused Kunal Kapoor was parked in the parking of PVR Vikas Puri. He took the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 30 of 94 pillion seat on the scooter driven by accused Kunal Kapoor and gave a mobile phone call from his mobile to the mobile phone number of accused Varun Sehgal at about 10.30 pm. Accused Varun Sehgal told him that prosecutrix was unwilling to go to her house and wanted to be dropped on the way as she wanted to go to Gurudwara Bangla Sahib. In the said conversation, he told them that they shall meet at Subhash Nagar Metro Station. They all then met at Subhash Nagar Metro Station and tried to persuade prosecutrix "S" but she did not relent and therefore after parking the two wheeler scooter at Subhash Nagar Metro Station, all four of them went to Bangla Sahib Gurudwara with prosecutrix. After visiting the Gurudwara when they came out, prosecutrix told accused Devender @ Gyani that she was without any family support and was all alone and therefore he should marry her. He further deposed that they tried to counsel her to wait for the marriage of sister of accused Devender @ Gyani. Accused Devender @ Gyani also told her that he would marry her after he became self dependent. He has further deposed that at about 10.55 - 11.00 pm, he received a telephone call from the residence of his uncle Sh. Harbans Lal and that Sandeep Jolly, son of his uncle, talked with him on phone. According to him, he had also received a phone call from his girl friend on mobile phone and all such calls are recorded in the call details collected by the police. He has stated that all four of them took the prosecutrix in Scorpio and dropped her to her house at Hari Nagar. He deposed that on 27.12.2006 at about 6.20 am, he received a phone call from the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 31 of 94 mobile phone of accused Kunal Kapoor that he had received couple of calls from Neeru Josan, mother of prosecutrix at about
5.40 am onwards informing that her daughter was not responding properly and that she was admitted in MKW Hospital and that they should come over there and met her. Accused Kunal Kapoor came at his house at 6.45 pm. They also called accused Devender @ Gyani by giving telephone call on his mobile phone. Accused Devender @ Gyani also came there and all three of them went on two wheeler scooter of accused Devender @ Gyani at MKW Hospital and on reaching there, they informed telephonically to Smt. Neeru Josan about their arrival. The mother of the prosecutrix along with 4-5 persons in civil dress came out of the hospital and arrested them. He stated that the charges levelled against them were false and fabricated and that they had not kidnapped or raped the prosecutrix.
7. I have heard arguments from the learned counsels of the accused and learned Additional PP, who was assisted by the learned counsel of complainant. One of the cardinal principles in criminal jurisprudence is that the accused is presumed to be innocent until proved guilty by the prosecution. Another golden thread which runs through the veins of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. The Apex Court in the case of Kali FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 32 of 94 Ram Vs. State of Himachal Pradesh (1973) 2 SCC 808, very eloquently set forth the principles governing rules of criminal jurisprudence. It would be pertinent to reproduce the relevant paras from the said judgment here:-
"Observations in a recent decision of this Court, Shivaji Saliabrao Bobade and Anr. Vs. State of Maharashtra Cr. App. No. 26 of 1970, decided on August 27, 1973 to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arises regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be presented before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 33 of 94 are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evendence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures and fanciful considerations.
It needs all the same to be reemphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused"
by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 34 of 94 but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved the public interest and the interest of the accused alike require an acquittal.
It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expidation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether.
...........
The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in case of Shivaji Sahabrao Bobade and Anr. (Supra) as is clear from the following observations:
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 35 of 94Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
8. The learned defence counsels have vehemently argued that prosecution story is not supported by medical and forensic evidence. It is argued that the medical and forensic evidence rather than supporting the prosecution evidence negatives, nullifies, falsifies and militates against the version of prosecutrix which renders prosecution story suspect.
9. Ordinarily when sexual intercourse is committed, there would be injury on the person of the victim. Absence of any injury on the person of the woman alleged to have been raped may go a long way to indicate that either no alleged intercourse took place or intercourse was a peaceful affair and the story of a stiff resistance put up by the prosecutrix is false or an afterthought. Now coming to the medical evidence, the mother of prosecutrix in her testimony stated that she rushed the prosecutrix to Mai Kamli Wala Hospital where she was got admitted. She deposed that prosecutrix regained consciousness in the hospital. Dr. Smita Srivastava, Resident, Medical Officer, Mai Kamli Wala Hospital conducted her general medical examination and recorded her observations in the MLC Exbt. PW-11/DA as under:-
"Patient was brought by her mother in the state of drowsiness. As per earliest statement given by the doctor, patient FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 36 of 94 had atypical convulsion at home. Patient was admitted in ICU. After sometime, her mother revealed that her daughter was forcibly taken away by some unknown persons in a car and was kept confined and was dropped back home in a drowsy state."
On physical examination, it was noted that the patient was drowsy but was responding and obeying the commands. The gynaecological examination of the prosecutrix was conducted by Dr. Seema (PW-11). She recorded her observations vide Exbt. PW-11/A on the back page of MLC Exbt. PW-11/DA. She observed that the patient was conscious and disturbed and her body was smeared with dust. Breast were found normal and there was no injury mark anywhere on the body. No laceration or tear was seen. The hymen was noted intact. Seminal discharge was seen present on perineum. The MLC records that slide samples were taken and handed over to the police and under garment was also saved.
10. The learned Additional PP has pointed out that in the MLC Exbt. PW-11/A, it was originally recorded that hymen was partially intact and thereafter the word "Partially" was scored off. It is also submitted that the words "no sign of torn hymen seen"
recorded in the MLC are overwritten on what was originally written in different pen. According to the learned Additional PP, the original writing was "signs of torn hymen." Dr. Seema Sehgal who made the observations Exbt. PW-11/A, was examined as PW-11. She admitted in cross examination that there was cutting FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 37 of 94 and overwriting in the MLC Exbt. PW-11/A at points Y & Z but stated that same was not due to any pressure. She stated that she gave in writing to the police vide Exbt. PW-11/DB that the said cutting was a human error. After cross examination by the defence, prosecution re-examined Dr. Seema Sehgal with the permission of court wherein she stated that she prepared the MLC Exbt. PW-11/A from portion C to C after examining the patient and thereafter she re-examined the patient and made cutting at point Y and wrote down portion Z and then made overwriting at portion Z. She stated that she did so as she was having some suspicion and therefore again examined the patient and made cuttings and initialed the same. She admitted that the word "Partially" was written at point Y which was later scored off. She admitted that the words are overwritten at point Z. The reason for overwriting given is that it was not legible and therefore she overwrote the words at point Z. She admitted that Exbt. PW- 11/B is the photocopy of MLC which she gave to the IO and there was no overwriting at point Z on Exbt. PW-11/B. The original MLC Exbt. PW-11/A bears the signatures of doctor at points Z, Y and Z1 but admittedly Exbt. PW-11/B does not bear her signatures. Admittedly, original MLC Exbt. PW-11/DA bears the name and address of Dr. Seema but the same did not find mention in Exbt. PW-11/B. The argument of learned Additional PP is that all the aforesaid alterations were made on the original MLC Exbt. PW-11/A under the pressure of accused to give them benefit. The learned Additional PP has also pointed out from the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 38 of 94 re-examination of Dr. Seema Sehgal that the carbon copy of the MLC, copy of which has been proved as Exbt. PW-11/C, contains the cutting at portion Y with ink. It is thus argued that Dr. Seema Sehgal has manipulated her observations in the MLC Exbt. PW- 11/A on the pressure or influence of the accused.
11. Every cutting or overwriting cannot be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. In her re-examination, Dr. Seema Sehgal has stated that Exbt. PW-11/B is the photocopy of copy of MLC which she gave to the IO. No doubt, it is true that Exbt. PW-11/B does not bear the initials of Dr. Seema as found in the original MLC at the place of cutting at point X and overwriting at point Z and on the left side at point Z1. It is also correct that Exbt. PW-11/B does not bear the name and address of Dr. Seema Sehgal but the same shall not make the recorded observations doubtful, in as much as, the contents of observation in original MLC Exbt. PW-11/A as also in the photocopy Exbt. PW-11/B are the same except that Exbt. PW-11/B does not bear the initials of the doctor. There are similar cuttings and over writing in the original as well as on the photocopy. In her cross examination, Dr. Seema has stated that IO had collected the copy of the MLC on the same day it was prepared and she made no initials on the carbon copy of the MLC. She admitted that the writings on the original MLC were signed by her at the instance of the IO and had also put her name and address at point B on the original MLC Exbt. PW-11/A at the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 39 of 94 asking of the IO. The absence of initials and name and address of doctor in Exbt. PW-11/B thus stands explained. There is no overwriting in the carbon copy of the MLC and the reason for the same is obvious. While the original writing on the MLC at point Z may not have been legible thus prompting the doctor to overwrite the same but the writing on the carbon copy may have been legible because of carbon in between.
12. The learned Additional PP has taken the plea that manipulation was done in the MLC at the behest of the accused persons. The alleged occurrence took place in the evening of 26.12.2006. It is in evidence that prosecutrix was brought to Mai Kamli Wala Hospital by her mother in the night intervening 26/27.12.2006 and that accused persons had left after leaving the prosecutrix at her home. Mai Kamli Wala Hopital was the choice of the mother of prosecutrix. There is no evidence that accused or their family members were present at Mai Kamli Wala Hospital at the time when the MLC was prepared. There is also no evidence that till such time, accused persons had the knowledge that prosecutrix was rushed to Mai Kamli Wala Hospital. No hue and cry was made either by the IO or the mother of the prosecutrix on the receipt of MLC at Mai Kamli Wala Hospital. If there was any suspicion, request could have been made then and there for re- examination of prosecutrix by some other doctor or board of doctors. But, this was not done. At the time of re-examination of Dr. Seema Sehgal, prosecution had summoned the treatment file FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 40 of 94 of the prosecutrix from Mai Kamli Wala Hospital. The treatment file/case sheet was produced by Dr. Seema Sehgal from the hospital which is Exbt. PW-11/DB. Dr. Seema Sehgal in cross examination has stated that the case sheet is maintained by the hospital in the regular course of business and as per case sheet Exbt. PW-11/DB dated 27.12.2006, prepared at 5.45 am, it is recorded that on local examination, hymen was found to be intact and there was no fresh torn marks, no bruises and no laceration. It is not the case of the prosecution that even the case sheet has been tampered or manipulated. There is no cutting or overwriting in the case sheet. The observations recorded in case sheet maintained by the hospital tally with the observations recorded in MLC Exbt. PW-11/A thus ruling out the possibility of tampering or manipulation in the MLC Exbt. PW-11/A by the doctor under the pressure of the accused.
13. The learned counsels of accused with reference to the medical examination of the prosecutrix at Mai Kamli Wala Hospital have urged that at best, it could be treated that the hymen of the prosecutrix was partially intact meaning thereby, partially torn. It could not be so if four male adult persons had raped the prosecutrix.
14. Prosecution is also relying on the MLC Exbt. PW-22/A of the prosecutrix prepared at DDU Hospital. PW-30 Inspector Usha Joshi has deposed that on 29.12.2006, she again got FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 41 of 94 conducted the medical examination of the prosecutrix from DDU Hospital at the request of the mother of the prosecutrix. In the DDU Hospital at first, she was examined by Dr. Piyush Jain. Dr. Piyush Jain (PW-31) deposed that prosecutrix complained of pain in bilateral arm. He found no abnormality on examination of chest, heart and abdomen. He stated that there is cutting at point Y on the MLC Exbt. PW-28/A prepared by him. According to him, "abrasions over right side of the chest" was written on which cutting was made because of spelling mistakes and overwriting. After preparing the MLC Exbt. PW-28/A, he referred the prosecurtrix for gynae opinion. He deposed that because of spelling mistakes and overwriting, MLC Exbt. PW-28/A was cancelled and a fresh MLC was prepared by senior doctor Dr. Vineet Soni. In cross examination, he admitted that he did not notice any external injury on the body of the prosecutrix. He stated that there was no pressure or influence exercised upon him to cancel the MLC Exbt. PW-28/A. He admitted that he was told by Dr. Pratibha Nanda that there was no abrasion mark over the right side chest of the patient. He further admitted that Dr. Pratibha Nanda told him that the alleged abrasion was due to ECG probes applied over the patient and it was thereafter he rectified his mistake by cancelling the MLC Exbt. PW-28/A. After cancellation of MLC Exbt. PW-28/A, a fresh MLC was prepared by Dr. Vineet Soni which is Exbt. PW-22/A. Dr. Vineet Soni (PW-28) has also deposed that MLC Exbt. PW-28/A was cancelled because of cutting and overwriting on the same as it may have FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 42 of 94 created problem in the court case due to cutting and overwriting. He stated that he had recorded the alleged history of sexual assault in his hand on Exbt. PW-22/A and then referred the patient for gynae examination which was done by Dr. Pratibha Nanda. In cross examination, he admitted that in MLC Exbt. PW-28/A, it is recorded that no external injury was seen but the said noting was in relation to the complaint of pain in bilateral arm of the patient. He denied the suggestion that he had made endorsement regarding the alleged history of sexual assault at point Z1 in the MLC Exbt. PW-22/A after manipulation and pressure of the family of the prosecutrix. Dr. Pratibha Nanda (PW-
22) who gave the gynae opinion, deposed that there was alleged history of getting picked up by some boys two days back in a car and fondling her private parts and pressing breast. The alleged history noted in Exbt. PW-22/A records "according to patient she became unconscious and did not remember whether anybody performed sexual intercourse with her or not." Dr. Pratibha Nanda deposed that on examination, she found no marks of external injury anywhere on the body of patient or on private parts. No marks of teeth on breast and private parts were found. Hymen was found not intact and vagina allowed one finger examination. She also stated that MLC Exbt. PW-28/A was cancelled because of cutting and overwriting and that MLC Exbt. PW-22/A was prepared in her presence. She confirmed that the alleged history was given by patient herself. According to her, she was called by Medical Superintendent to supervise the MLC of the prosecutrix FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 43 of 94 as there was confrontation between the doctors and the relatives of patient and consequently, there was confusion in the casualty. In reply to a court question as to what was the cause of confrontation, her reply was that the relatives of the patient were pressurizing to dictate whatever they wanted in the MLC. Dr. Pratibha Nanda was declared hostile and was cross examined by the learned Additional PP. She admitted that confrontation part is not narrated in the MLC Exbt. PW-22/A. She admitted that in MLC Exbt. PW-28/A, Dr. Piyush Jain noted abrasions over the right side of the chest but clarified that the patient had undergone an ECG test before her examination by Dr. Piyush Jain and that abrasion marks noted by by Dr. Piyush Jain could be the marks due to ECG leads and by the time the patient was examined by her, there were no abrasion marks. According to her, the observation regarding the abrasion made by Dr. Piyush Jain may not be therefore correct which he himself rectified by cutting and putting his initials. She denied the suggestion that Dr. Piyush Jain had recorded the correct observations regarding abrasions in the MLC Exbt. PW-28/A. In her cross examination by the learned counsels, Dr. Pratibha Nanda admitted that in an enquriy conducted by the Women Commission, she stated the same thing which she stated before the court.
15. The learned Additional PP has argued that although the observations made by Dr. Pratibha Nanda regarding hymen being not intact in the MLC Exbt. PW-22/A supports the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 44 of 94 testimony of the prosecutrix but as regards the alleged history noted in Exbt. PW-22/A, it is stated that the same has been manipulated at the instance of accused. It is argued that once Dr. Vineet Soni had already recorded the history of sexual assault, there was no occasion for Dr. Pratibha Nanda to again question the patient about the history. It is also argued that Dr. Pratibha Nanda being the senior doctor, had pressurized Dr. Piyush Jain to cancel the MLC Exbt. PW-28/A which proves the injuries on the person of the prosecutrix. It is also argued that there are contradictions in the testimonies of Dr. Pratibha Nanda and Dr. Piyush Jain, in as much as, Dr. Pratibha Nanda has stated that she had called Dr. Piyush Jain inside at the time of fresh examination of the patient while Dr. Piyush Jain has stated in cross examination that he was not present at the time of examination of the patient and the preparation of MLC Exbt. PW- 22/A. Thus while on the one hand, the learned Additional PP relies on the gynae observation of Dr. Pratibha Nanda, he challenges the alleged history recorded in the MLC on the ground that the same has been manipulated by the accused.
16. It is correct that in the MLC Exbt. PW-22/A, Dr. Vineet Soni (PW-28) recorded the alleged history of sexual assault at point Z1. The sexual assault does not necessarily mean sexual intercourse. It was natural for the gynae doctor to ask the details of sexual assault from the patient before proceeding to conduct her gynae examination. It may be noted that on 29.12.2006 when FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 45 of 94 the prosecutrix was examined at DDU Hospital, all the four accused were already arrested and were in judicial custody. There is no evidence which can suggest about the presence of any of the relatives of accused at the hospital rather it has come in evidence that mother of prosecutrix was present in the hospital throughout. There is due explanation from the doctors for cancellation of MLC Exbt. PW-28/A, there being lot of cuttings and over writings on the same. There is also explanation regarding the cutting and overwriting "abrasion over the right side of the chest being caused by ECG probes." No suggestion has been put to Dr. Pratibha Nanda by the learned Additional PP that prosecutrix had not undergone ECG test before her examination by Dr. Piyush Jain. Moreover, if Dr. Pratibha Nanda was acting under influence, she would not have given the observation "hymen not intact" which observation may go against the accused. Thus, the argument of learned Additional PP that the alleged history on the MLC Exbt. PW-22/A has been manipulated at the instance of accused or that MLC Exbt. PW-28/A which proves injuries on the person of the prosecutrix was cancelled at the instance of the relatives of accused, is without any basis and supporting evidence.
17. In the MLC Exbt. PW-22/A prepared after three days of occurrence, doctor has not specified whether the hymen was fresh or old torn. Be as it may, we have two MLCs on record, first one having been prepared immediately after the alleged occurrence at FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 46 of 94 Mai Kamli Wala Hospital i.e. Exbt. PW-11/A which proves "hymen intact, no sign of torn hymen and no injury mark anywhere on the body" and the second MLC prepared after three days i.e. in the evening of 29.12.2006, which although proves that there was no external injury but shows "hymen not intact." The observations given by the doctor regarding the status of hymen in both the MLCs are conflicting to each other. That being the position, the medical evidence has remained inconclusive.
18. Now, coming to forensic evidence, after the medical examination of prosecutrix at Mai Kamli Wala Hospital, the under garment of the prosecutrix was saved and discharge on introitus was taken and slide was prepared and given to the IO. Inspector Usha Joshi, Investigating Officer deposed that the exhibits were sent to FSL Rohini. She has also deposed that Scorpio car bearing No. DL4C-P-9005 in which the incident of alleged gang rape took place, was taken to FSL where the vehicle was inspected and pieces of fabric of middle and rear seat of the Scorpio car were taken for forensic examination. Naresh Kumar, Senior Scientific Assistant (Biology) FSL, Rohini (PW-13) examined the exhibits and prepared reports which have been proved as Exbt. PW-13/A and Exbt. PW-13/B. As per report Exbt. PW-13/A, semens were not detected on the underwear and micro slides. Semens were also not detected on the handkerchief of the prosecutrix recovered from Scorpio car and pant and cardigan of the prosecutrix. Semens were also not detected on the pieces of FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 47 of 94 seat cover of the Scorpio car. There is no finding in the report that seat covers were washed due to which, semens could not be detected. Thus, forensic evidence produced by the police is also negative and not supporting the prosecution.
19. Accused were also got medically examined after their arrest. Their MLCs have been proved on record as Exbt. PW- 32/A, PW-32/B, PW-33/A and Exbt. PW-33/B. Their MLCs also do not show any kind of external injury on their person.
20. The learned Additional PP has argued that the absence of injuries either on the person of the accused or prosecutrix does not prove that no rape was committed or that prosecutrix was a consenting party. It is argued that the absence of injuries of the prosecutrix cannot falsify the case of rape and cannot discredit the statement of the prosecutrix. Pointing out from the testimony of the prosecutrix wherein she has stated that the Sikh gentleman i.e. accused Devender took out a Kirpan from his waist and pointed out the same on her stomach and threatening her "Jyada Chapad Chapad Ki To Tere Ko Jaan Se Maar Denge Aur Teri Maa to Teri Laash Bhi Nahin Milegi", it is argued that prosecutrix was a helpless victim who was by force prevented from offering serious resistance and therefore in the absence of any injury, it cannot be concluded that the incident had not taken place or that sexual intercourse was committed with the consent of the prosecutrix. It has also been argued that to FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 48 of 94 constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Even partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen is quite sufficient to constitute rape. It is thus argued it is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
21. So far as the legal position is concerned, explanation to Section 375 IPC makes it clear that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. To constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman. It is not necessary to decide how far they entered. It is not essential that the hymen should be ruptured, provided it is clearly proved that there was penetration even though partial. For the offence of rape to be committed, it is not necessary that there should be complete penetration. Similarly, seminal emission is not necessary to establish rape. What is necessary is that there must be penetration. Absence of spermatozoa cannot negative rape. Slightest degree of penetration with or without ejectment attracts the ingredients of Section 375. In the cross examination of PW-1 Dr. Seema Sehgal, following question was put to the witness:-
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 49 of 94"Q. Please tell whether on the basis of your findings, clinical and otherwise as recorded in your report Exbt. PW-11/A, there could be rape or gang rape by four persons on the patient "S" (Prosecutrix)?
Ans. No. But my findings should be ascertained with the help of slides which I handed over to the police."
22. In the case of Ranjeet Hazarika Vs. State of Assam 1998 (8) SCC 635, medical evidence did not prove any injury on the private parts of the prosecutrix and her hymen was found to be intact, the Hon'ble Court held that the opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of hymen and injuries on the private parts of the prosecutrix. It was held that opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix.
23. Modi in his well known Textbook "Medical Jurisprudence & Toxicology states that "Rape is a crime and not a medical condition. "Rape is a legal term and not a diagnosis to be made by medical officer treating the victim. The only statement that can be made by medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and not a medical one." Under these circumstances, only clinical findings given by Dr. Seema Sehgal on the MLC are relevant and her opinion that there was no rape or FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 50 of 94 gang rape was uncalled for.
24. The learned Additional PP has relied upon the case of B.C. Deva @ Dyeva Vs. State of Karnataka (2007) 12 Supreme Court Cases 122. In the said case, medical evidence did not corroborate the alleged forced sexual intercourse. There was absence of marks of injury either on the person of the accused or on the prosecutrix. Medical examination of the prosecutrix did not disclose the evidence of sexual intercourse but the Hon'ble Court found the oral testimony of the prosecutrix to be cogent, reliable, convincing and trustworthy which stood corroborated by other Pws and the narration of events in the FIR. The defence of the accused that prosecutrix was a consenting party as she did not resist and no injuries were found on her body or on the accused was held to be unfounded and baseless and falsified by the subsequent conduct of the prosecutrix.
25. The learned Additional PP has argued that conviction of the accused on the basis of the testimony of prosecutrix alone is permissible and conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. A plethora of decisions by Hon'ble Supreme Court would show that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 51 of 94 the courts for the corroboration of her statement. Corroboration of testimony of prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. In the case of Sheikh Zakir Vs. State of Bihar 1983 (4) SCC 10, it was held as under:-
"Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. This rule of practice is based on human experience and is incorporated in Illustration (b) to Section 114 of the Indian Evidence Act which says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Even though a victim of rape cannot be treated as an accomplice, on account of a long line of judicial decisions rendered in our country over a number of years, the evidence of the victim in a rape case is treated almost like the evidence of an accomplice requiring corroboration. It is accepted by the Indian courts that the rule of corroboration in such cases ought to be as enunciated by Lord Reading, C.J. In King v. Baskerville. Where the case is tried with the aid of a jury as in England it is necessary that a Judge should draw the attention of the jury to the above rule of practice regarding corroboration wherever such corroboration is needed. But where a case is tried by a judge alone, as it is now being done in India, there must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment and if in a given case the judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. (emphasis added)."FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 52 of 94
26. Similarly, in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat 1983 (3) SCC 217, it was held that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. The Hon'ble Court further held that we must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values; and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile."
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 53 of 9427. Similarly, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the court held that a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must received the same weight as it attached to an injured in cases of physical violence....... What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
28. Thus, it is a settled legal position that even the uncorroborated testimony of the prosecutrix can be held to be FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 54 of 94 sufficient to sustain conviction of an accused of rape, but then such testimony should be unflinching, consistent and infallible and inspire confidence of the court to believe her version. However, where such sole testimony of the prosecutrix is inconsistent, then the same by itself cannot be relied upon unless it is corroborated by other circumstantial evidence including medical evidence, otherwise it will be difficult for the court to sustain conviction for the offence of rape. Before dwelling any further to elucidate the law on the matter, it would be appropriate to deal with the testimony given by the prosecutrix.
29. Prosecutrix in her testimony as PW-1 has deposed that on 26.12.2006 at about 4.30 pm after coming out from Gyan Tutorial, she took a rickshaw for her house. The rickshaw puller took her to some distance and thereafter told her that the chain of her rickshaw had been broken. She disembarked and went ahead. As she crossed the red light of Bharti College, a car like Gypsy came from behind and a boy, who was wearing black colour jacket, came out from the Gypsy and pushed her inside the Gypsy. She was dragged inside by a Sikh gentleman who was sitting in the Gypsy. She was made to sit between the said boy who was wearing black jacket and the Sikh boy on the middle seat of Gypsy. She stated that those persons were calling each other by the names of Varun, Chuha, Gyani and Sehgal. Accused Varun abused her and her mother and the Sikh gentleman i.e accused Devender @ Gyani took out a Kirpan from his waist and FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 55 of 94 pointed out the same on her stomach saying that "Jyada Chapad- Chapad Ki to Tere Ko Jaan Se Maar Denge, Aur Teri Maa Ko Teri Laash Bhi Nahin Milegi." The accused persons then went on moving the Gypsy on the road. They went from one place to another and were discussing that whenever they see the police, they would take U turn. She tried to raise alarm but was told that the window panes of the Gypsy were black and her cries would have no effect. She stated that accused Devender @ Gyani and Kunal Kapoor @ Chuha then started touching her body. She further stated that "Jab Maine Meri Taang Chalani Shuru Kar Di, Chuhe Ne Meri Taangein Pakad Li Aur Meri Jeans Ki Pant Utaar Di." Accused persons who were sitting on the front seat, told accused Devender and Kunal Kapoor that she was speaking too much and that she should be made cold. Accused Kunal Kapoor removed her upper dress and made her to sit inside the Gypsy. On seeing the sign board of Vikas Puri from the window glass, she told the accused that her several friends were living in Vikas Puri and if her friends would see them, they would kill them. On this, accused Kunal Kapoor handed over his cell phone to her asking her to make call to her friends. She telephoned her friend Chandan from the cell phone of accused Kunal Kapoor and accused Devender @ Gyani caught her hairs and told her that she should speak whatever he would tell her. At the asking of accused Devender, she told her friend Chandan that if he would receive any telephone from her parents, he should not pick the said phone. On hearing this, her friend Chandan enquired from FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 56 of 94 her as to why she was saying like this but before she could speak, accused Devender snatched the mobile phone from her hand. Thereafter, accused Devender came over her and removed his clothes and raped her. When she tried to raise alarm, he put his hand on her mouth. After that, accused Kunal Kapoor came towards her legs and accused Devender went towards her head. Accused Kunal Kapoor @ Chuha put his finger in her vagina and after that, he committed rape on her. She started feeling pain. Accused persons made her to wear the clothes and then drove her on a lonely road to an STD both near a chemist shop which was lying closed. Accused persons came out of the Gypsy along with her and took her to STD shop. Accused Devender dialled the mobile phone of her mother which he knew and after her mother attended the phone, accused Devender scolded her and told her that she should tell her mother that she was going to die and then put the phone on ear. She spoke as told by accused Devender @ Gyani and when her mother asked her as to why she was saying so and before she could say anything, her mother told her that her telephone was being taped and therefore she should not worry as she would search her. In the meanwhile, accused Devender disconnected the phone. Thereafter, she was again taken back inside the Gypsy. She deposed that accused Varun Popli, who was sitting on the driver seat, then came on the back seat and accused Kunal Kapoor shifted on the front seat. Accused Varun and Devender slapped her several times and tried to remove her clothes but could not and on seeing this, accused Kunal @ Chuha FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 57 of 94 came on the back seat and all three of them removed her clothes. Accused Devender started pressing her breast. Accused Varun removed his pant and committed rape with her. After committing rape, accused Varun went to the driver seat and accused Varun Sehgal came on the back seat. Accused Varun Sehgal also removed his pant and committed rape with her. She started suffering pain and was not feeling well. She started feeling giddiness and became unconscious and when she regained her senses, she found herself in Mai Kamli Wala Hospital where her mother, one doctor and a police official were found present. She was medically examined by a lady doctor and was discharged from the hospital on the next day. Her statement Exbt. PW1-A was recorded which bears her signatures at point A. She further deposed that after one or two days, she was taken to DDU Hospital by her mother and maternal uncle Sh. Gurpreet Singh. Doctor obtained her signatures and after seeing scratches on her body, doctor took her inside the room where she narrated the entire facts which happened with her. After medical examination, she was brought back to her house by her maternal uncle on a two wheeler scooter while her mother remained in the hospital. In the meanwhile, her maternal uncle received a telephonic call from her mother asking him to bring back the prosecutrix to the hospital. She again went to DDU Hospital with her maternal uncle. A lady doctor present there, enquired from her as to what had happened with her and while she was narrating the incident to the said lady doctor, in the meanwhile, another lady doctor came FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 58 of 94 there and told the said lady doctor that she had already narrated the incident to her. Prosecutrix further deposed that the said lady doctor enquired from her if she had sexual intercourse with any person but she denied the same. Following question was put to the prosecutrix in her examination in chief:-
Question: Did the doctor enquire regarding the sexual intercourse at the time of incident or before the incident? Ans. Doctor enquired if I had sexual intercourse with any person before the present incident.
Prosecutrix further deposed that she was having two registers and assignment of Gyan Tutorial and photostat spiral binding notebook and a pen at the time when she was pushed inside the Gypsy. On being shown, prosecutrix identified the Scorpio car, her underwear, handkerchief, her clothes, registers and spiral binding assignment and spiral binding notes. She stated that in DDU Hospital, she was examined on two occasions. After her first medical examination, she was sent to her house and again she was medically examined in DDU Hospital. The first MLC was cancelled by the doctor but thereafter she was again called by the doctor and her medical examination was conducted.
30. In cross examination, prosecutrix admitted that accused Devender @ Gyani had teased her when she was studying in class ninth. She admitted that accused Devender @ Gyani was running a shop in DDA Market near her house and also FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 59 of 94 admitted that her family members used to purchase articles from the said DDA Market. She admitted that it was a main road and several vehicles were plying on the said road. She admitted that in the register Exbt. P-5, there is no work dated 19.12.2006, 21.12.2006 and 23.12.2006. She further stated that the notes register Exbt. P-5 is upto 26.12.2006 but volunteered that the date is wrongly mentioned as 26.11.2006 and it should be 26.12.2006. She further stated that Mr. Kathuria used to mark her presence regularly in the register maintained by him. She admitted that there is no work in the register Exbt. P-6 dated 26.12.2006 and she cannot show any work done in the register on 26.12.2006. She stated that before this incident also, she had obtained treatment from DDU Hospital in the month of October, 2006. According to her, call to Chandan was made before 7.00 pm. She admitted that she was not raped by the accused persons before making call to Chandan and that she was raped about 15- 20 minutes of her talking with Chandan on telephone. She could not tell the time when she talked on telephone with her mother. She stated that she had raised alarm at the place from where she was lifted by the accused. Accused persons immediately lifted her and pushed in the vehicle. She further stated that she tried to raise alarm at the STD booth but accused had pointed out Kirpan on her stomach and due to the said fear, she did not raise alarm. She stated that accused Devender @ Gyani knew the mobile number of her mother. She stated that she had read the note which was typed by her mother regarding the incident. She further FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 60 of 94 stated that two of the accused had already committed rape on her before she talked on telephone with her mother from STD booth. She denied that she had made four telephone calls to Chandan. According to her, the distance between the STD booth and the road was 4-5 paces. She denied that she was roaming in Janak Puri on the day of incident and was very much disturbed or that she was going to commit suicide and accused Devender @ Gyani stopped her from committing suicide. She denied that she went with accused Devender @ Gyani at Bangla Sahib Gurudwara. She denied that the persons present at the paring of Gurudwara Bangla Sahib told her to go to her house and that it was late night and the parking people persuaded all the four accused persons to drop her at her residence. She denied that at about 9.50 - 10.00 pm, accused Devender @ Gyani telephoned accused Varun Popli and Varun Sehgal at Bangla Sahib Gurudwara. She denied that accused had brought her from the parking of Gurudwara Bangla Sahib and dropped her at her house. She stated that there was swelling on both her shoulders and there was some injury on her head which was caused by the accused persons. There were also bruises on her breast and bluish signs on her legs and thigh due to the beatings caused by the accused. She stated that she had given in writing on a paper regarding the incident which happened with her to her mother as she was not able to speak. She stated that she had written on the said papers that four persons had kidnapped and raped her and had also disclosed the entire incident to a police official at Mai Kamli Wala Hospital and signed FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 61 of 94 the statement recorded by the police official. She admitted that one advocate Ms. Madhulika accompanied her to DDU Hospital. She admitted that her mother told her in the morning in Mai Kamli Wala Hospital that all the four accused have been apprehended. At that time, police officials were also present there and they also knew that accused persons had been apprehended.
31. The learned Additional PP has argued that prosecutrix, who is the key witness to this case, has deposed in a coherent and cogent manner. She has identified all the four accused persons and has deposed in detail as to how the incident took place. It is argued that the testimony of prosecutrix finds corroboration from the testimonies of Mahesh Katyal (PW-2), Manish @ Bunty (PW-21) who are the residents of the gali in which prosecutrix was residing as also from Jeevan Bahadur (PW-
26), Chowkidar of the gali and Neeru Josan (PW-5), mother of the prosecutrix. Mahesh Katyal, Manish @ Bunty and Jeevan Bahadur have deposed that prosecutrix was left in the gali by all the four accused in their Scorpio car. The presence of accused persons in the gali with the prosecutrix and the Scorpio car is also proved by Ms. Neeru Josan. Learned Additional PP further submits that the testimony of prosecutrix regarding making call from the phone of Kunal Kapoor to Chandan and then call made to her mother from the PCO is proved by calls detail record produced by prosecution. It is thus argued that prosecutrix is a credible witness and the defence has not been able to shake her FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 62 of 94 testimony and therefore there is no reason to disbelieve her testimony that she was raped by the accused persons.
32. The learned defence counsels, on the other hand, have argued that the prosecutrix was picked up from a busy road where there is heavy movement of vehicular traffic and passersby. It is impossible that no one took notice that a girl was being forcibly kidnapped in broad day light from such a busy place. It is further argued that prosecutrix was having good physical health and therefore it was not possible for one person to push her inside the car against her will. It is argued that Scorpio is a high floor vehicle and if she was dragged inside the vehicle by accused Devender @ Gyani, she was bound to have sustained injuries/scratches on her body but her MLC does not show any mark of injury on her person. It is also argued that the testimony of prosecutrix is a tutored version as the same was given after reading from a paper. It has been further submitted that calls detail of the mobile phone of accused prove that they were in constant touch with each other on mobile phone during the said period and their tower locations were different and therefore it is improbable that they were present together in the same Scorpio car and committed rape. It is also argued that from the call details, it is proved that accused Devender @ Gyani and prosecutrix used to exchange calls with each other. Relying on the calls detail record of Neeru Josan, it is argued that there are four telephone calls made from the phone of Neeru Josan to the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 63 of 94 mobile phone of accused Devender @ Gyani on 23.12.2006 and one of the calls made was of 116 seconds. It is further submitted that again on 25.12.2006, a call was made from the phone of Neeru Josan to Devender @ Gyani which was of 17 seconds and again in the night of 26.12.2006, one call was made by accused Devender @ Gyani to the phone of Neeru Josan which was of the duration of 493 seconds and thereafter a call was made by Neeru Josan to the phone of Devender @ Gyani which was of 279 seconds. It is argued that Neeru Josan in her cross examination has admitted that her mobile phone was also used by her daughter i.e. prosecutrix. It is argued that frequent calls, in particular, late night calls exchanged between accused Devender @ Gyani and the phone of mother of prosecutrix prove that these calls were exchanged between accused Devender @ Gyani and prosecutrix and that both of them were having an affair with each other. The learned defence counsels have taken the defence that the mother of prosecutrix was compelling accused Devender @ Gyani to marry the prosecutrix but on his refusal, she got him and his friends falsely implicated.
33. The learned Additional PP however has argued that only accused Kunal Kapoor was having a mobile phone and there is no evidence to prove that other accused were also having mobile phones. It is also argued that there is no evidence that mobile phone No. 9213845527 was of accused Devender @ Gyani and therefore it is not proved that the calls were exchanged FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 64 of 94 between the mobile phone of accused Devender @ Gyani and the mobile phone of mother of prosecutrix and thus the whole story set up by the accused that prosecutrix was having a love affair with accused Devender @ Gyani is without any basis.
34. In her testimony, prosecutrix deposed that after rape, she was suffering from pain and not feeling well and was feeling some giddiness and became unconscious. She stated that on regaining senses, she found herself in Mai Kamli Wala Hospital but in Exbt. PW-1/A given to the police, she stated that when accused came to drop her at her house at 12.00 in the night, her mother noted down the number of the car and while dropping her, Varun had threatened that she would be killed if she dared to tell anything to her mother. It clearly means that prosecutrix was fully conscious at the time when she was dropped back at her house. That prosecutrix was conscious, is also proved by MLC Exbt. PW- 11/DA which records "drowsy but responding obeying commands." The alleged history, as per Exbt. PW-11/DA recorded at the instance of mother of prosecutrix, is that prosecutrix suffered atypical convulsions at home and after sometime, the mother of prosecutrix revealed that her daughter was forcibly taken by some unknown persons in a car and was kept confined and dropped back in a drowsy state. Thus, neither the prosecutrix nor her mother gave the history of sexual assault/rape to the doctor at Mai Kamli Wala Hospital.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 65 of 9435. As per MLC Exbt. PW-11/A, the time of arrival of prosecutrix at Mai Kamli Wala Hospital was 1.40 am. Mother of prosecutrix in her cross examination states that prosecutrix regained her consciousness after about 30 minutes of reaching Mai Kamli Wala Hospital. If the mother of prosecutrix is to be believed, prosecutrix regained her senses at 2.10 am. DD No. 5 Exbt. PW-16/DA was recorded at Police Post Hari Nagar at 3.05 am. On receipt of DD No. 5, HC Arjun Pandit (PW-4) and Constable Ravinder (PW-16) reached at Mai Kamli Wala Hospital. After making enquiry, HC Arjun Pandit came to know that prosecutrix was kidnapped from near Bharti College and according to Constable Ravinder, this fact was disclosed by the prosecutrix herself, who was in her senses and was conscious. Thus, there was no allegation of rape till then. The allegation of rape came for the first time at about 6.30 am in the first statement of prosecutrix which is Exbt. PW-11/A. Thus, the allegations of rape is belated.
36. Admittedly, as per testimony of prosecutrix, she was kidnapped from the main road. She has admitted in cross examination that several vehicles were plying on the road. In her cross examination, Inspector Usha Joshi also admits that the place from where the prosecutrix was lifted, is a busy road having heavy traffic movement. Prosecutrix was kidnapped at about 4.30 pm. In cross examination, prosecutrix stated that she raised alarm while she was being pushed in the vehicle. Although it has come FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 66 of 94 in evidence that it was a cloudy day but still in a broad day light on a busy road, it is difficult to accept that no one noticed the incident of kidnapping of a girl who resisted and raised alarm.
37. Prosecutrix deposed that she was pushed inside by accused Kunal Kapoor and was dragged inside by accused Devender @ Gyani. If kidnapping had happened in that manner, she was bound to have received injuries/abrasions on her body but as per her first MLC Exbt. PW-11/A, there was no injury mark anywhere on her body.
38. Prosecutrix deposed that accused Devender scolded her, Devender and Varun slapped her, Devender pressed her breast and also caught her from her hair. She stated that as a result of beating given by the accused, there was swelling on both her shoulders, injury on head, some bruises on her breast and bluish signs on her legs but as per MLC Exbt. PW-11/A, there was no injury or even any mark on her body which falsifies her version of the incident.
39. SI Desh Raj (PW-27) deposed that he had recorded the statement of prosecutrix at Mai Kamli Wala Hospital in the presence of Dr. Smita Srivastava and obtained the signatures of the prosecutrix on the said statement. In her cross examination in court, prosecutrix admitted that accused Devender @ Gyani had teased her when she was studying in ninth class and also FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 67 of 94 admitted that accused Devender @ Gyani is running a shop in DDA Market nearby her house and her family members used to purchase articles from the said DDA Market. Thus, accused Devender @ Gyani was known to her since prior to the alleged occurrence. However, in her first statement given to the police i.e. Exbt. PW-1/A, she did not name accused Devender @ Gyani. She gave only the names of Varun and Chuha. She did not state in Exbt. PW-1/A that one of the four boys was a Sardar. If accused Devender @ Gyani, who was known to the prosecutrix prior to the occurrence, was one of her rapists in the Scorpio car, there is no reason why she would not have named him in the first statement which she gave to the police. Even assuming that she was not knowing the name of accused Devender @ Gyani, she could have at least stated that one of the boys was a Sardar who was having shop in DDA Market and had teased her while she was studying in class ninth. It is a material fact which has not come in the first statement of prosecutrix, which she gave to the police.
40. While in Scorpio car, prosecutrix did not make much resistance nor raised any alarm. The argument of learned PP is that accused Devender @ Gyani had put a Kirpan on her waist and was constantly threatening her due to which, she could not put stiff resistance. The story of accused Devender @ Gyani having Kirpan and putting it on the stomach of the prosecutrix is missing in the first statement of prosecutrix Exbt. PW-1/A. The learned PP has however argued that in her supplementary FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 68 of 94 statement and in the statement under Section 164 Cr. PC, prosecutrix has spoken about Kirpan having been put on her by accused Devender @ Gyani. There are many improvements in the testimony of prosecutrix given before the court from Exbt. PW- 1/A which was the first statement given to the police. On being confronted with those improvements, prosecutrix stated that she had stated about those facts in her second statement. No question has been put to her by the learned Additional PP regarding the alleged second statement. As to which was her second statement, she gave following answers in cross examination:-
"My first statement was recorded in Mai Kamli Wala Hospital. Thereafter, police officials made enquiry from me at DDU Hospital but my statement was not recorded in DDU Hospital. Thereafter, my statement was recorded in court before Metropolitan Magistrate. It is wrong to suggest that my statement was recorded more than two times i.e. one before the Metropolitan Magistrate and one by the police."
Prosecutrix was not re-examined by the learned Additional PP to elicit clarification as to whether the second statement (under Section 161 Cr. PC) filed by the prosecution with the charge sheet was the one she was referring to as her second statement when she was cross examined. From her cross examination, it is evident that she did not give any statement other than statement Exbt. PW-1/A before the police and the statement FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 69 of 94 Exbt. PW-29/B given before the learned MM under Section 164 Cr. PC. It may be noted that the statement made before the learned MM was recorded on 04.01.2007 i.e. after nine days and therefore even if the prosecutrix stated about the Kirpan in the said statement Exbt. PW-29/B, the same could be an after thought.
41. In her cross examination, prosecutrix stated that when she was taken to PCO, she had tried to raise alarm but the accused had pointed out a Kirpan on her stomach and therefore due to said fear, she did not raise any alarm. PCO owner has neither been cited nor examined by the prosecution. The learned Additional PP has submitted that it was a Reliance PCO which was unmanned and therefore there was no PCO owner whose statement could be recorded. If that was so, IO would have stated so. In her cross examination, she simply stated that she had not recorded the statement of PCO booth owner. Recording of statement of PCO owner could have thrown credibility in the manner in which occurrence took place. Police did not obtain the custody of accused Devender @ Gyani for the recovery of Kirpan. It proves that the story of use of Kirpan is an afterthought and introduced to lend authenticity to the testimony of prosecutrix. One Kirpan is in fact shown to have recovered in the personal search of accused Devender @ Gyani but it is not the case of prosecution that it was the same Kirpan which was put on the stomach of the prosecutrix by the accused.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 70 of 9442. In her cross examination, prosecutrix stated that she had read the note prepared by her which was typed by her mother regarding the incident. It is unusual that a witness would prepare a note and then get it typed. Reading a note before evidence in court means that prosecutrix was tutored about the statement to be given by her in court, otherwise, there was no need to prepare the note and then to get it typed. Be as it may, said note has not been produced in court. This creates doubt on the credibility of the testimony given by the prosecutrix.
43. Admittedly, mobile number of Neeru Josan, mother of the prosecutrix is 9811424384. PW-23 Sh. Anuj Bhatia, Nodal Officer, Vodafone also confirms that the aforesaid mobile number is in the name of Smt. Neeru Josan. He proved the call details of the mobile phone of Neeru Josan as Exbt. PW-18/C / PW-5/DA. As per Exbt. PW-18/C, five phone calls were exchanged between the phone of Smt. Neeru Josan and mobile phone No. 9213845527. One phone call was exchanged between the phone of Neeru Josan and phone No. 9313845527 on 25.12.2006 and two more phone calls were made in the night intervening 25.12.2006 & 26.12.2006 between the phone of Smt. Neeru Josan and 9213845527. As per personal search memo, at the time of arrest of accused Devender @ Gyani, a Tata Mobile phone was recovered from him but the mobile phone number is not mentioned in the personal search memo. It has been claimed by FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 71 of 94 the accused that mobile phone No. 9213845527 belongs to accused Devender @ Gyani. However, there is no evidence on record to prove that the said phone number stands in the name of accused Devender @ Gyani. Therefore in the absence of such an evidence, it is not proved that prosecutrix "S" and accused Devender @ Gyani were exchanging calls with each other or were having any kind of affair with each other.
44. So far as the other three accused are concerned, mobile phones were recovered in their personal search. Although IO did not note down the mobile phone numbers recovered in their personal search but during investigation, IO collected the ownership and call details of mobile phone No. 9810581529 and 9910295777. PW-20 Sh. R.K. Singh, Nodal Officer, Bharti Airtel produced the record regarding the allotment of aforesaid mobile phone numbers and proved that mobile phone No. 9810581529 is in the name of Varun Sehgal and phone No. 9910295777 is in the name of Varun Popli. Admittedly, as per prosecution case, accused Kunal Kapoor was having mobile phone by the number 9211276799 in the Scorpio car at the time of occurrence from which call was made by prosecutrix to her friend Chandan. PW- 20 proved the call detail records made from the mobile phone of Varun Popli (9910295777) for the period 11.12.2006 to 27.12.2006 as Exbt. PW-20/D. He also proved the call detail record of the mobile phone of Varun Sehgal (9810581529) for the period 11.12.2006 to 27.12.2006 as Exbt. PW-20/F. The details FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 72 of 94 of relevant calls exchanged between accused Varun Popli and Varun Sehgal with their tower locations are tabulated as under:-
Date Time From To Tower Duration in
Location Seconds
Varun Sehgal to Uttam
Varun Popli Nagar,Subhash
26/12/06 16:21:10 Nagar. 83
Varun Popli to Subhash
Varun Sehgal Nagar, Tilak
26/12/06 16:41:05 Nagar 34
Varun Sehgal to Mangol Puri
Varun Popli , Subhash
26/12/06 20:23:21 Nagar 56
Varun Popli to Ganesh
26/12/06 22:28:10 Varun Sehgal Nagar 8
Similarly, as per calls details of mobile phone of Varun Popli Exbt. PW-20/D, the relevant calls made on 26.12.2006 between Kunal Kapoor and Varun Popli are tabulated as under:-
Date Time From - To Tower Duration in
Location Seconds
Kunal Kapoor to Janak Puri,
Varun Popli Subhash
26/12/06 21:28:12 Nagar 72
Kunal Kapoor to Fateh Nagar,
Varun Popli Subhash
26/12/06 21:32:21 Nagar 61
Kunal Kapoor to Jail Road,
Varun Popli Subhash
26/12/06 21:35:18 Nagar 74
Kunal Kapoor to Jail Road,
Varun Popli Ashok
26/12/06 21:36:55 Nagar 25
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 73 of 94
Date Time From - To Tower Duration in
Location Seconds
Kunal Kapoor to Fateh Nagar,
26/12/06 21:39:34 Varun Popli Jail Road 42
Kunal Kapoor to Mahavir
Varun Popli Nagar Fateh
26/12/06 21:41:37 Nagar 15
Kunal Kapoor to Fateh Nagar,
26/12/06 21:43:45 Varun Popli Tilak Nagar 22
Kunal Kapoor to Fateh Nagar,
26/12/06 21:47:11 Varun Popli Prem Nagar. 28
Kunal Kapoor to Fateh Nagar,
26/12/06 21:48:57 Varun Popli Janak Puri 10
45. In the case of Virender Singh Vs. State Criminal Appeal No. 5/2008, decided by Hon'ble Justice Pradeep Nandrajog, the defence of the appellant was that he did nothing of the sort as claimed by the prosecutrix and that the prosecutix had been in constant touch with him through their respective phone numbers. The Hon'ble Court found that eight calls were exchanged between the prosecutrix and the appellant while they were in vicinity of different mobile towers. The Hon'ble Court held that the same belies the claim of the prosecutrix.
46. As per the testimony of the prosecutrix, all the four accused were together in the Scorpio car when she was kidnapped at about 4.30 pm and remained in the Scorpio car till she was dropped back at her house around midnight. It is evident from the call detail records Exbt. PW-20/D and Exbt. PW-20/F that as many as four calls were exchanged between Varun Sehgal FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 74 of 94 and Varun Popli between 16:21:10 to 22:28:10 and that at the time of first three calls i.e. till 20:23:21, the tower locations of accused Varun Sehgal and Varun Popli were different. Only at the time of making of the fourth call i.e. 22:28:10, their tower location was common i.e. Ganesh Nagar. The first three calls were of long duration i.e. 83 seconds, 84 seconds and 56 seconds respectively. Similarly, it is also evident from the call detail records Exbt. PW- 19/B and Exbt. PW-20/D that nine calls were exchanged between accused Kunal Kapoor and accused Varun Popli between 21:28:12 to 21:48:57 and during this period, tower locations of Kunal Kapoor and Varun Popli were different and the duration of the calls varied from 10 seconds to 72 seconds. If the testimony of the prosecutrix that all the accused remained present in the Scorpio car and moved her around in the vehicle between 4.30 pm till she was dropped back is to be accepted, the question arises why accused persons despite being present in the same vehicle, were talking to each other on their mobile phones and even if that was so, why their tower locations were different. The record of call details prove that all the accused were not together and were talking to each other from different locations. Police itself has collected the call details during investigation and examined Nodal Officer to prove them. The calls details are scientific evidence which cannot tell lie and therefore cannot be brushed aside. There is nothing to prove that such call details were manipulated or fabricated by the accused. On the other hand, it has come in prosecution evidence (PW-18) that there was no room for mistake FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 75 of 94 or manipulation in call details as they were computer generated. Thus, the details of the call records belie the testimony of prosecutrix and it appears improbable that all the four accused remained together in the Scorpio car since 4.30 pm till about 12.00 in the midnight.
47. Prosecutrix in her cross examination stated that phone call to Chandan was made before 7.00 pm. She denied the suggestion that she had made four telephone calls to Chandan but the same is belied by the call detail records of Kunal Kapoor and Chandan produced by Nodal Officers. As per the calls detail record of mobile phone of Chandan (Exbt. PW-20/B), four incoming calls were received in succession from the mobile phone of Kunal Kapoor (9911276799) between 7:44 pm to 7:47 pm which were of the duration of 3 seconds, 1 second, 7 seconds and 101 seconds. Thus, the claim of the prosecutrix that only one call was made to Chandan from the mobile phone of Kunal Kapoor and that too before 7.00 pm is belied by the scientific evidence.
48. Prosecutrix has disowned the statement Exbt. PW-1/A by stating that she does not know as to what was recorded in her statement and she had only signed the same. In cross examination, she stated that her first statement was recorded at Mai Kamli Wala Hospital while her second statement was recorded before the MM. Sh. S.S. Rathi, ADJ (PW-29), who recorded the statement of prosecutrix under Section 164 Cr. PC, FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 76 of 94 proved the statement of prosecutrix as Exbt. PW-29/B. As per statement Exbt. PW-29/B, prosecutrix was first raped by Chuha and then by Sardar. Thereafter, she was made to telephone Chandan and after telephone call to Chandan, Sardar and Chuha again raped her. She was then dressed up and combed and then taken to STD booth from where, she was made to call to her mother and thereafter accused Varun Popli and Varun Sehgal raped her. Thus, as per statement under Section 164 Cr. PC, prosecutrix was raped six times by the four accused persons, twice by accused Kunal Kapoor and Devender @ Gyani and once each by accused Varun Popli and Varun Sehgal but in her testimony in court, she states that she was raped once by each of the four accused and that too after she had made the call to her friend Chandan. Prosecution did not seek any explanation with regard to two different statements made by the prosecutrix, one before the court in the witness box and the other before the learned MM under Section 164 Cr. PC.
49. In the case of LalliRam & Another Vs. State of Madhya Pradesh (2009) 1 Supreme Court Cases (Cri) 17, in a case of gang rape, trial court noted that though the prosecutrix claimed that she was raped by several persons at several times, there was no injury noticed and the doctor had categorically stated that there was no sign of rape and in fact there was no injury. In Para-11 of the judgment, Hon'ble Supreme Court observed as under:-
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 77 of 94"It is true that injury is not a sine qua none for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra Vs. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar Vs. State of Haryana).
50. In the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra & Another (2007) 1 Supreme Court Cases (Cri) 161, it was held that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecurix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.
51. In the case of Tameezudin @ Tammu Vs. State of (NCT) of Delhi 2009 (4) JCC 2809, it was held that it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 78 of 94 doing violence to the very principles which govern the appreciation of evidence in a criminal matter.
52. The Apex Court in the case of Ramdas & Ors Vs. State of Maharashtra (2007) 2 SCC 170, Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P & Anr. (2003) 3 SCC 175 and Suresh N. Bhusare and Ors. Vs. State of Maharashtra (1999) 1 SCC 220 when faced with the situation where the only piece of evidence available was the inconsistent sole testimony of the prosecutrix, thought it prudent to give the benefit of doubt to the accused. In a recent judgment of the Apex Court in Abbas Ahmed Choudhary Vs. State of Assam (MANU/SC/1966/2009) it was held that "we are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
53. In the case of Ram Nivas Vs. State of Karnataka 1994 SCC (Cri) 503, the Apex Court faced with a somewhat similar situation where also the evidence rested on the testimony of the prosecutrix along with medical evidence, the court declined to place reliance on them. It was held that "the case mainly rested on the evidence of prosecutrix, PW-1. The way she narrated the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 79 of 94 whole occurrence appears to be highly doubtful and looks as no such rape has taken place. She says that she cried and tried to wriggle out but neither on her nor on the accused any injuries were found. She further gave so many details as to how the accused is said to have committed rape and she categorically stated that the accused had intercourse fully with her against her will. The doctor who examined her did not find any spermatozoa. The fact that no spermatozoa was found would go to show that no such occurrence had taken place. The doctor, further admitted that he could not give exact opinion whether rape had taken place or not because of the absence of spermatozoa in the smear and since she was married woman for five years her hymen will not be intact. The accused was also examined by a doctor on the next day and doctor did not find any injury suggesting a forcible rape. We need not to go into the fact whether it was a case of rape or consent. But we are not prepared to place any reliance on her evidence itself. It is true, that the courts below have accepted her evidence. But to satisfy ourselves we have examined her evidence minutely and the same is highly untrustworthy. In these circumstances, we give benefit of doubt to the appellant. The appeal is allowed accordingly and the accused shall be released."
Situation is precisely the same in the present case. As per testimony of prosecutrix, she had strongly resisted the commission of rape on her but injuries were neither found on the person of prosecutrix nor any of the accused suggesting forcible rape. FSL report notes absence of spermatozoa in the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 80 of 94 undergarment of prosecutrix and seat clippings of Scorpio car.
54. In the case of Bibhishan Vs. State of Maharashtra (2007) 12 SCC 390, the Apex Court when confronted with a similar situation where there was no injury on the body parts of the prosecutrix and the doctor deposed that she was habitual to sexual intercourse, the court gave the benefit of doubt to the accused and acquitted him.
55. It is no doubt a settled legal position that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars if for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lead credence to her testimony, short of corroboration required in the case of an accomplice. But what is to be done when the court is faced with a situated when being alive to its responsibility and sensitive to the nature of the offence of rape, it does not find any reliable evidence. This dilemma was gauged by Hon'ble Supreme Court in the case of Madan Gopal Kakkad Vs. Naval Dubey (1992) 3 SCC, it was held as under:-
"There are a series of decisions to the effect that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 81 of 94 circumstances of the case, medical evidence can be expected to be forthcoming."
56. In the present case, the manner and sequence in which the prosecutrix alleged rape, appears to be highly unbelievable. The commission of rape firstly by two accused namely Devender @ Gyani and Kunal Kapoor after undressing her, thereafter making her wear her clothes, followed by all the four accused taking prosecutrix outside the vehicle and facilitating telephonic call between her and her mother from land line number and thereafter prosecutrix being taken back to the car, undressed once again and thereafter raped by accused Varun Popli and Varun Sehgal appears to be highly unconvincing and improbable. Court is conscious of the fact that hymen rupture is not a must to prove rape but it is highly improbable that hymen would remain intact or only get partially ruptured despite commission of rape by four young boys.
57. Now coming to the conduct of the accused, it it most natural that the perpetrator of a crime would take steps to destroy the incriminating evidence. If the accused persons had the intention to kidnap and rape the prosecutrix, why would accused Kunal Kapoor and the other accused persons, when they were having prosecutrix in their unlawful custody, would make her speak to her friend Chandan from the mobile phone of accused Kunal Kapoor to the mobile phone of Chandan, thereby creating FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 82 of 94 evidence against themselves. After two accused had committed rape, why would they dress up the prosecutrix and take the risk of taking her to a PCO to make her speak to her mother and that too without any request from the prosecutrix. Accused persons, if they committed rape of the prosecutrix, would be fools of first order to bring her at her house and face the mother of prosecutrix and be identified by the witnesses. Accused persons could have safely dropped the prosecutrix anywhere on the way side at a deserted place instead of bringing her back to her house. The argument of learned PP is that accused were searching for room near the PCO to rape the prosecutrix and further that the accused persons were planning to take the prosecutrix out of Delhi but after coming to know from the telephonic call made by her to her mother that the mother of the prosecutrix was recording her phone and because of the presence of the police pickets, they were forced to bring her back in the gali where they threw her and fled away. In my view, the argument of learned Additional PP that accused were looking for a room near the PCO is not based on any evidence and is an argument of desperation. I also do not find any plausible explanation as to why the accused would drop back the prosecutrix in the gali where she was residing and face her mother.
58. As per call detail records of the mother of prosecutrix (Exbt. PW-5/DA) and that of accused Kunal Kapoor (Exbt.PW- 19/B), there were incoming and outgoing calls of 182 and 117 FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 83 of 94 seconds between the two numbers at 5.54 am and 5.58 am on 27.12.2006. These two calls were followed by accused Kunal Kapoor ringing up the mother of prosecutrix at 6.33 am and another call at 7.06 am. Four telephone calls, one made by the mother of prosecutrix to Kunal Kapoor and three made by Kunal Kapoor to the mother of prosecutrix does not reflect the conduct of an accused, who had raped the daughter of the person with whom he was speaking.
59. With reference to the mobile phone of accused Varun Popli and Kunal Kapoor, it has been argued that two had spoken at 5.56 am and 6.34 am on 27.12.2006. From the inter se calls between the mother of the prosecutrix, accused Kunal Kapoor and Varun Popli, the learned counsels submitted that what had actually happened was that the mother of prosecutrix had rung up accused Kunal Kapoor and had requested him to reach Mai Kamli Wala Hospital as her daughter was in distress. They being the friends of her daughter, she wanted help from them. Accused persons who had helped the prosecutrix previous evening, went to the hospital to render assistance to the prosecutrix and her mother where they were arrested. It has been submitted by the learned counsels that accused persons voluntarily came to the hospital when summoned by the mother of the prosecutrix and this fact proves that accused were not arrested in the manner as has been shown by the police and also proves their innocence.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 84 of 9460. Prosecutrix in her cross examination admitted the suggestion that her mother had told her in the morning in Mai Kamli Wala Hospital that all the four accused persons had been apprehended and at that time, police officials were also present there and they also knew that the accused persons had been apprehended. From the inter se calls exchanged between the mother of the prosecutrix, accused Kunal Kapoor and Varun Popli in the morning of 27.12.2006, in the light of the statement of the prosecutrix, possibility that accused persons were called by the mother of the prosecutrix and then arrested at the hospital, cannot be ruled out. Thus, the manner of arrest shown by the police also appears to be doubtful and the arrest memos showing the time of arrest of accused Devender @ Gyani as 10.25 am, that of accused Varun Popli at 11.20 am, accused Kunal Kapoor at 11.50 am and accused Varun Sehgal at 12.30 pm, appear to be fabricated documents.
61. The learned Additional PP relying on the call details of accused Kunal Kapoor and Varun Popli, has argued that Kunal Kapoor's mobile No. 9911276799 evidenced constant calls being made to various numbers especially the telephone of Varun Popli bearing No. 9910295777. It is argued that in the night intervening 26/27.12.2006, accused Kunal Kapoor was constantly ringing someone or the other which is suggestive of his guilt otherwise, why would he keep calling accused Varun Popli or other persons after safely leaving the prosecutrix at her house. Exbt. PW-19/B FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 85 of 94 proves that several calls were made by Kunal Kapoor during night on 26/27.12.2006. It may create some sort of suspicion in the mind of the court as to why he was so restless during the night that he had made so many calls but however great the suspicion against accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond the possibility of reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted for the offence of rape.
62. The learned Additional PP has argued that as per FSL report, semens were found on the underwears worn by the accused persons and the MLCs of Varun Sehgal and Kunal Kapoor records "scanty smegma seen" meaning thereby that there was positive evidence to suggest that they had sexual intercourse in the preceding less than 24 hours. Explaining the presence of semens on the undergarments of the accused, it has been argued by the learned advocates of accused that when they were taken to hospital for medical examination, doctors had conducted test to see whether stimulation of sex organ of accused resulted in erection followed by ejaculation of semen. It was this semen which was detected on their undergarments.
In my view, the discovery of semens on the undergarments of the accused which were seized from them on the next day and the presence of scanty smegma at best is indicative of some sexual activity but not rape.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 86 of 9463. Relying on the MLC Exbt. PW-11/A, the learned Additional PP argues that seminal discharge was found present on the perineum of the prosecutrix which proves the commission of rape. Question mark is put on Exbt. PW-11/A before noting "Seminal discharge present on perineum." In cross examination, Dr. Seema Sehgal has admitted that she was in doubt about the presence of seminal discharge on the perineum and discharge of introitus on the patient and therefore she had put the question mark preceding the said sentence. Sample slides of the discharge were sent to FSL but the report is negative regarding the presence of semens. In these circumstances, it cannot be therefore confirmed that discharge found present on the perineum was seminal discharge or vaginal discharge.
64. It has also been argued by the learned Additional PP that there is no reason why prosecutrix would falsely implicate accused, especially when no enmity between the accused and prosecutrix has been suggested. On the other hand, the learned defence counsels have taken the plea that there was an affair between prosecutrix and accused Devender @ Gyani and the mother of prosecutrix had asked co-accused Varun Popli, Kunal Kapoor and Varun Sehgal to pressurise accused Devender @ Gyani for marriage proposal and on their refusal, prosecutrix and her mother got all the four accused falsely implicated.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 87 of 9465. Apex Court in the case of Radhu Vs. State of Madhya Pradesh (2007) 12 SCC 57, dealing with a case where the medical evidence was not convincing enough and it was presented with the sole testimony of the prosecutrix held that:-
"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
........
We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion or on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration. .........
The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
66. In the case in hand, medical evidence is not supporting the prosecutrix and the probability factor operates against her and therefore the testimony of prosecutrix cannot be relied upon despite the fact that the defence may not have been able to prove the motive for false implication of the accused.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 88 of 9467. Lastly, the learned Additional PP has submitted that accused have taken contradictory defence at different intervals. Referring to the cross examination of the prosecutrix, it is pointed out that accused gave suggestions to the prosecutrix which are contradictory to the defence set up by accused Varun Popli in his statement under Section 315 Cr. PC.
68. No doubt, it is true that accused have taken contradictory defence but in a criminal trial, the onus is always on the prosecution and the falsity of defence version cannot establish the case against accused. In taking this view, I am supported by the judgment of Nilambar Guodo Vs. State & Another; 1982 Crl. L.J. NOC 172 (Orissa) wherein, Hon'ble High Court held as under:-
"In a criminal case, the prosecution is to establish its case and falsity of the defence version, cannot, by itself, establish the case against an accused person. If the other circumstances point unfailingly to the guilt of an accused person, falsity of the defence can be considered to be an additional circumstance. It is, therefore, not a correct and proper approach on the part of the Sessions Judge to first take up the case of the defence and upon a criticism of the defence and mainly banking on it hold the case of the prosecution to be true. Findings of such nature are in flagrant violation of the settled principles with regard to the appreciation of evidence in a criminal trial, 1974 Cri LJ 303 (SC) FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 89 of 94 and 1981 Cri LJ 325."
In the present case, the other circumstances brought on record, do not establish the guilt of the accused and therefore falsity of the defence does not prove the case against the accused.
69. The learned counsel appearing for accused Varun Popli has also argued that substance of information mentioned in the Rukka is required to be mentioned in Kayami but the Duty Officer had not recorded the name of accused persons, place of incident and time of occurrence in Kayami i.e. DD No. 10-A and this circumstance throws doubt on the correctness of prosecution version.
70. Section 154 Cr. PC lays down that "every information relating to commission of a cognizable offence, if given orally to an Officer Incharge of Police Station shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf."
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 90 of 9471. According to Rule 24.1 of Punjab Police Rules, Volume
-III, 1959 Edition, the substance of the report is to be entered in the Daily Diary. The relevant part of the Rule reads as under:-
"Every information covered by Section 154, Criminal Procedure Code, must be reduced in writing as provided in that Section and substance thereof must be entered in the police station daily diary, which is the book provided for the purpose. It is only information which raises reasonable suspicion of the commission of cognizable offence within the jurisdiction of the police officer to whom it is given which compels action under Section 157, Criminal Procedure Code."
In the case of Raj Kumar & Anr and Udhey Singh Vs. State 1991 (2) CC Cases 497 (HC), the court held as under:-
"The courts in India with a view to ensure a fair trial, have time and again laid emphasis on the desirability of prompt lodging of first information report as, with delay creeps in the danger of introduction of coloured versions, twisting of facts, manufacturing of stories and introduction of false witnesses. The danger being inherent, the Courts have been insisting upon some additional safeguards too. One of those safeguards is drawn from Section 154 of the Code of Criminal Procedure which enjoins that once the first information is recorded, the substance thereof "shall be entered" in the Daily Diary. The Police Rules framed under inspiration of this provision make it more explicit. It is unfortunate FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 91 of 94 that the safeguard, so salutary, has been given a complete go by even in a case like the present one where stakes are so enormous. We say so as in the Daily Diary Report (Exbt. PW- 11/B & 11/C) neither we find the names of the accused nor any description of the weapon of the offence and significantly even the names of Kalu Ram, Murari Lal and Basant Ram as witnesses to the occurrence find no mention therein."
72. In the case of Ramesh Kumar Vs. State (Delhi Administration) 1990 Cri. LJ 255, it has been held that law is well settled that the Duty Officer is required to mention the brief facts including the name of the assailant, names of witnesses and the weapon used in the daily diary entry about the registration of the case. The Hon'ble Court found these details conspicuous by their absence from the DD entry. The Hon'ble Court came to the conclusion that prosecution was not able to prove on record that the FIR was recorded at the time at which it is claimed to have been recorded. Similarly, in the case of Lala Ram & Anr. & Thakur Singh Vs. State 36 (1988) Delhi Law Times 8, the Hon'ble Court found that DD report did not comply with the requirements of Section 154 Cr. PC and Rule 24.1 of Punjab Police Rules. Copy of special report was not delivered to Ilaqa Magistrate. It was held that circumstances throw doubt on the correctness of prosecution version.
FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 92 of 9473. PW-7 HC Kuldeep Singh, who recorded the FIR Exbt. PW-7/A deposed that he had recorded DD No. 10-A regarding the recording of FIR. There is mention of names of accused Varun Chuha and the witness i.e. prosecutrix "S" in the Rukka but there is absence of names of accused and prosecutrix in DD No. 10-A recorded by Duty Officer. There is also no evidence that special report was sent to Area MM. Therefore the same also throws doubt on the correctness of prosecution version.
74. In view of the aforesaid discussion, I am of the opinion that medical opinion is not supporting the prosecutrix and at best, inconclusive and the forensic opinion is also not supporting the prosecutrix. The version given by the prosecutrix is improbable and it appears that something has been concealed from the court. Hence deriving wisdom from the above stated decisions of the superior courts in the final analysis of the gamut of all the facts and circumstances, evidence set out by the prosecution, I find it difficult to have faith in the testimony of the prosecutrix that any sexual assault, as alleged, was committed on her by accused persons in view of the fact that her narration of the incident becomes infirm on account of being improbable coupled with lack of support from medical and forensic evidence. It is a case where I am not satisfied that the testimony of prosecutrix is the gospel truth on which implicit reliance can be blindly placed. Prosecution has thus failed to prove its case against the accused. Accused FIR No. 800/06 ; State Vs. Devender @ Gyani etc. Page 93 of 94 are acquitted. They be released if not wanted in any other criminal case. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 30.09.2010.
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