Delhi District Court
State vs . 1) Sandeep on 8 April, 2011
1
IN THE COURT OF MS. RAJ RANI MITTRA: ASJ - 05 : SOUTH - EAST,
SAKET COURTS, NEW DELHI
S.C. No. 54/11
FIR No. 291/08
U/s 376 IPC
P.S. Ambedkar Nagar
State Vs. 1) Sandeep
S/o Kanihya Lal,
R/o 14/482, Dakshinpuri,
J.J. Colony, New Delhi
2) Monu
S/o Kishore Kumar,
R/o 20/54, Dakshinpuri,
J.J. Colony, New Delhi
JUDGMENT
The case of the prosecution is that in the night of 21/22.06.2008, at 12.00 midnight at House No. 20/53, J.J. Colony, Dakshin Puri, New Delhi, accused Sandeep and Monu alongwith coaccused Yash (who has not been arrested) in furtherance of their common intention voluntarily and illegally confined prosecutrix aged about 13 years and committed gang rape upon her and also kept her confined in an almirah.
2 After supply of documents, arguments on charge were heard and charge U/s 376 (2) (g) read with Section 342/34 IPC was framed against the accused persons namely Sandeep and Monu, to which they pleaded not guilty and claimed 2 trial.
3 Prosecution examined 17 witnesses in support of its case. 4 PW1 prosecutrix deposed that in the month of June, 2008 she used to reside at House No. 20/81, J.J. Colony, Dakshin Puri, New Delhi and was studying th in 6 Class in Govt. Girls Sr. Secondary School, SectorV, Dr. Ambedkar Nagar.
st She further deposed that on 21 , month and year she did not remember, about one year ago from her deposition (24.11.2009) her stomach was upset and she went to attend nature call outside at about 12.00 in the night. When she was returning to her house, two boys caught hold of her and pressed her mouth and pulled her inside a house. The prosecutrix identified the accused as Sandeep and Yash who were present in Court. She further deposed that accused Sandeep and Yash used to reside in front of her house. They both took her to a room after putting a cloth on her mouth and then they started touching her body. Thereafter, they confined her in nd a almirah and left the house. She got up on the next day on 22 and pushed the almirah and opened the same. She came on the window and raised alarm. One boy namely Price came there and he went to call her parents on her instigation. She further deposed that police reached the spot and immediately they took her to the Hospital for medical examination. Thereafter they took her to the Police Station where she lodged the complaint Ex. PW2/D1. She stated that she did not remember as to what happened thereafter as one year had lapsed since then and that she did not want to say anything more. Interestingly, in her statement Ex. PW1/DA which is the basis of present FIR, she has only stated that she had suspicion that she has been raped and no specific allegation of rape was there. She was declared hostile and was crossexamined by Ld. Addl. PP for State, where 3 she kept as changing her version as to the commission of offence and categorically stated that she did not know as to what had happened as she had become unconscious in the gali itself when piece of cloth was kept on her mouth and when she regained consciousness she found herself in the almirah. 5 PW2 Smt. Kavita is the mother of prosecutrix. She deposed that it was st 21 day, she did not remember the month and year, about one year ago, she was present at her house and her husband had gone to native village. She further deposed that on the day of incident her daughter i.e. prosecutrix was suffering from loose motion. She was sleeping and when she got up at about 12.30 AM in the night, she found her daughter missing. She searched for prosecutrix but she was not traceable. She informed the police and lodged missing report with the police which is Ex. PX. She searched her daughter but she was not traceable upto next evening. At about 9.00 PM, on the next day of the incident prosecutrix was found in a house opposite to their house. She further deposed that prosecutrix was inside a room of that house and that room was locked. It came to her knowledge through a boy who was playing in the gali, that her daughter i.e. prosecutrix was crying in that house through a window. She informed the police immediately and police reached the spot and broke open the lock of the room, entered the room and rescued prosecutrix. Prosecutrix was taken to Hospital for medical examination and after medical examination, prosecutrix was handed over to her. She deposed that as per information Yash and Sandeep had locked the prosecutrix in that room. 6 PW2 was declared hostile by the Ld. Addl. PP for State as she was resiling from her statement. In her crossexamination by Ld. Addl. PP for State, she denied that she had stated to the police in her statement Ex.PW2/A that Monu @ 4 Amardeep was one of the three boys who kidnapped her daughter. She also denied that she was saving accused accused Monu @ Amardeep because the large public was present there who had also mentioned the name of Monu @ Amardeep to her or that she also denied that she had been won over by the accused Monu @ Amardeep or that public persons did not disclose them about Monu @ Amardeep or that prosecutrix disclosed the name of Monu @ Amardeep who had kidnapped her or that family of Monu @ Amardeep has pressurised her not to depose against her.
7 In her crossexamination conducted on behalf of accused Sandeep, she deposed that she did not know date of birth of any of her children. She deposed that she accompanied prosecutrix to Police Station Ambedkar Nagar at about 5.00 PM on 21.06.2008. When she reached the spot, where prosecutrix was confined, so many public persons were already gathered there. It was at about 8.30 PM when she met prosecutrix, when she was rescued on 21.06.2008. Immediately she was taken to Hospital, where she was medically examined. She further deposed that statement of prosecutrix was recorded once in Police Station Ambedkar Nagar, which is Ex. PW2/D1. She further deposed that neither the clothes of the prosecutrix were taken into possession in her presence nor was handed over by anyone or seized at any point of time. She further deposed that after finding the prosecutrix, the police was called and matter was lodged to the Police Station and police arrived at the spot. The room was opened by a key which was handed over by neighbour and key was handed over to the police and the same was seized by the police. She deposed that after finding the prosecutrix, firstly she preferred the bath and she washed her clothes immediately, so she could not say what clothes 5 were taken by the police and from whom. She admitted that she had always stated to the police till the date of deposition that she had no suspicion regarding the alleged rape on anyone.
8 In her crossexamination on behalf of accused Monu @ Amardeep, she admitted that she had stated to the police that she did not suspect any one in commission of offence towards her daughter. She also admitted that the same was reduced into writing by the police officials.
9 PW3 Dr. Manish Goyal, Junior Resident, Department of Forensic Medicine & Toxicolony, AIIMS Hospital, deposed that on 23.06.2008 accused Sandeep was brought to the casualty for his medical examination. She had examined accused Sandeep and prepared the MLC which is Ex. PW3/A. After examination she was of the opinion that there was nothing to suggest that the accused was incapable of performing sexual intercourse in normal circumstances. She deposed that blood in gauze was sealed and handed over to the police. 10 PW4 Smt. Rama Kumari, TGT Teacher of Government Girls Secondary School No.2, Sector5, Dr. Ambedkar Nagar, brought the original admission and withdrawal register of school pertaining from 11.04.2007 to 01.04.2009 alongwith attested photocopy of relevant admission entry of prosecutrix D/o Smt. Kavita and Sh. Vijender and attested photocopy of school leaving certificate issued by M.C. Primary School No.3 (Girls), Dr. Ambedkar Nagar. She deposed that as per the admission record prosecutrix was admitted in Class VIA, vide admission no. 5816 on 11.04.2007. She further deposed that as per admission record the date of birth of the prosecutrix is 04.03.1996 and she left their school on 14.11.2008. She proved the attested copy of admission register as Ex. PW4/A and attested copy of 6 school leaving certificate as Ex. PW4/B. 11 In her crossexamination on behalf of accused Sandeep, she deposed that she had not brought the admission form of prosecutrix. She further deposed that the school leaving certificate Ex. PW4/B is not issued by her school where the prosecutrix had studied. She further deposed that neither the copy of the school admission register, nor the school leaving certificate were ever seized by the police or demanded from their school. She admitted that the person who attested the photocopy of the school leaving certificate neither mentioned her name nor given the date of issuance. She denied that the present record and certificate created only to make out a case in connivance with the police after the arrest of the accused and registration of FIR. She could not tell regarding the truthfulness of the date of birth given on Ex. PW4/A and Ex. PW4/B. She admitted that on the closure of the admission register neither the Principal nor any admission incharge signed on the register.
12 In her crossexamination on behalf of accused Monu, she denied that she was deposing in the Court at the behest of the police officials or to coercion from the police officials. She admitted that she had not brought any authority letter to depose or to take the record in the Court for the purpose of evidence. 13 PW5 Constable Jag Mohan deposed that on the intervening night of 21/22.06.2008, at the night at about 3.45 AM, Smt. Kavita W/o Vijender came to Police Station and lodged the complaint of missing of her daughter i.e. prosecutrix. He lodged her complaint in D.D. Register vide D.D. No. 68B and the same was handed over to SI K.N. Pandey for necessary action. He proved the copy of D.D. No. 69B as Ex. PX. PW5 was not crossexamined on behalf of accused persons. 7 14 PW6 Dr. Mukta Aggarwal, Senior Resident, Gynecology, AIIMS Hospital, proved the MLC of prosecutrix Ex. PW6/A. She deposed that the patient was brought to casualty with alleged history of abduction on the intervening night of 21/22.06.2008 by two youth in neighbourhood and with the alleged history of rape and locked in a cupboard. She further deposed that on local examination the undergarments stained with mucus discharged at introitus, hymen was intact, anal sphincter was intact. Vaginal smear was taken from introitus and undergarments handed over to police.
15 In her crossexamination conducted on behalf of accused Monu she deposed that it is not necessary that after 24 hours redness around vaginal orifice of the prosecutrix has to be there as it is suggest of rape, if any. She admitted that in case of ejaculation it is necessary that spermatozoa / seminal fluid has to be found in the vagina. To a question whether it is necessary in case of gang rape that there has to be visible injury mark, she replied that it is not a gang rape. PW6 was not crossexamined by accused Sandeep.
16 PW7 Dr. Sushil Sharma, Senior Resident, Department of Forensic Medicine, AIIMS Hospital deposed that on 26.06.2008 at 9.20 PM accused Monu @ Amardeep S/o Sh. Kishore Kumar was brought by police for medical examination and on general examination no abnormality detected and there was no external injury present over body of accused. On local examination penis, testis, scrotum and pubic hair was normally present and there was no external injury present over the genital organs, smegma was absent over glance, superficial abdominal and cremestric reflex was present and there was no congenital abnormality and no discharge was present over glance. In his opinion there was nothing to suggest 8 that above said person was incapable for performing sexual intercourse in ordinary course of nature. He deposed that under garments, T Shirt and blood in gauze collected, sealed and handed over to IO alongwith sample seal. PW7 was not crossexamined on behalf of either of the accused persons. 17 PW8 HC Ramvir Singh deposed that on 23.08.2008 he was working as Duty Officer. He proved the computerized copy of FIR as Ex. PW8/B. He deposed that he had made endorsement on the rukka which is Ex. PW8/A. In his cross examination he denied that he had not received any rukka from any spot or that at the instance of IO the case was registered. PW8 was not crossexamined by accused Monu.
18 PW9 Constable Suman deposed that on 23.06.2008, she was called by the iO of this case to reach the spot i.e. 20/53, J.J. Colony, Dakshin Puri, New Delhi. She reached the spot where IO met her and he handed over her the prosecutrix for medical examination. She took the prosecutrix to AIIMS Hospital for her medical examination. In the Hospital doctor had handed over her one sealed pullanda alongwith sample seal. She came back to the Police Station and handed over the prosecutrix alongwith exhibits to IO/SI Sangmitra. She deposed that IO seized the same vide seizure memo Ex. PW9/A. 19 In her crossexamination conducted on behalf of accused Sandeep, she deposed that on 23.06.2008 at 9.00 / 9.30 PM, IO had handed over her the prosecutrix for her medical examination and she returned back at the spot alongwith the prosecutrix at about 1.00 / 1.30 AM on 24.06.2008. She further deposed that mother of the prosecutrix and two other persons also accompanied them to the AIIMS for medical examination of prosecutrix and remained with prosecutrix. PW9 9 was not crossexamined by accused Monu.
20 PW10 HC Prem Raj deposed that on 22.06.2008, he was on emergency duty. He alongwith HC Sompal and SI K.N. Pandey reached at H. No. 20/53, J.J. Colony, Dakshin Puri on receipt of a call at 100 number by the Duty Officer. They found that ground floor was locked and a girl was locked inside. IO broke open the lock and got released the girl. A lady constable was called after informing the Control Room. The girl was sent to AIIMS Hospital with Lady Constable Suman and he also visited AIIMS Hospital alongwith them. The medical of the girl was got conducted by Lady Constable and returned at the spot. He further deposed that statement of the prosecutrix was recorded by the IO and rukka was prepared on the statement of prosecutrix and sent through him for registration of the case. He came at Police Station Ambedkar Nagar with rukka and case was got registered by him. After registration of the case he received the original rukka and copy of FIR from Duty Officer and he returned to the spot and same were handed over by him to IO. His statement was recorded by the IO.
21 In his crossexamination conducted on behalf of accused Monu @ Amardeep, he deposed that the MLC of prosecutrix was prepared before recording any statement. He denied that he assisted the prosecutrix when her statement was being recorded. He denied that he had not participated in the investigation. 22 In his crossexamination conducted on behalf of accused Sandeep, he deposed that IO had broke open the lock of the door, but did not remember whether he broke open the lock with the help of hammer, or piece of brick or any other instrument. He did not remember if lock was seized by the IO or it he had put signatures on the seizure memo. He denied that IO suo moto mentioned his name 10 in the list of witnesses only for completing the process of the case. He also denied that neither the rukka was sent through him, nor he accompanied the prosecrutix for her medical examination.
23 PW11 HC Surender Singh deposed that on 26.06.2008, he alongwith IO and prosecutrix reached Block No.20, Dakshin Puri and in his presence prosecutrix pointed out towards accused Monu that he was the same person who had committed rape on her person. He apprehended accused Monu @ Amardeep and conducted his personal search. He proved the arrest memo of accused Monu Ex. PW1/C. His personal search was conducted vide memo Ex. PW11/A. He further deposed that he got conducted the medical of accused Monu in AIIMS Hospital. Thereafter, he handed over accused Monu to IO.
24 In his crossexamination conducted on behalf of accused Monu @ Amardeep, he deposed that he had joined the investigation at about 7.00 PM. He further deposed that as far as he recall prosecutrix was of whitish complexion and aged about 1820 years. He further deposed that he had taken accused Monu @ Amardeep to the Hospital at about 9.00 PM on 26.06.2008. He does not remember the name of the doctor who examined him. He also did not know if anybody else accompanied the prosecutrix throughout the day as long as she was with them. He further deposed that the house where the accused Monu resided was about two storeyed and accused was arrested from the ground floor. He admitted that it was a residential colony and many people had gathered at the spot. He denied that accused Monu was falsely implicated and arrested at the behest of public at large or due to pressure of police. He also denied that he never participated in the investigation of the case. He also denied that all the statements 11 and documents were prepared at the Police Station and not on the spot. He deposed that prosecutrix had not given any statement on that day in his presence. 25 PW12 HC Vinod deposed that on 23.06.2009, on the pointing out of prosecutrix, in his presence IO arrested accused Sandeep vide arrest memo Ex. PW1/B and personal search memo Ex. PW12/A. He further deposed that accused Sandeep was taken by him to AIIMS Hospital for medical examination and he received sealed parcel of the blood sample of the accused Sandeep and handed over to the IO alongwith accused Sandeep. He proved the seizure memo of sealed samples Ex. PW12/B. PW12 was not crossexamined by accused Sandeep. 26 In his crossexamination on behalf of accused Sandeep, PW12 deposed that the place from where the accused Sandeep was arrested, 1012 public persons were gathered there. He does not remember what articles were recovered during the search of accused Sandeep. He denied that neither accused Sandeep was arrested from his house as alleged by him on the pointing out of prosecutrix, nor any memo or papers were prepared in his presence. He also denied that he signed the papers in the Police Station later on only for completing the process of showing the arrest of accused Sandeep. PW13 was not crossexamined by accused Monu @ Amardeep.
27 PW13 Sh. Kuldeep Narayan, Secretary DLSA (South) deposed that he was acting as an Metropolitan Magistrate on 26.06.2008 at Patiala House Courts. He proved the statement of prosecutrix Ex. PW1/A. He deposed that he had recorded the statement of prosecutrix U/s 161 Cr .P.C. on 26.06.2008. He was not crossexamined on behalf of either of the accused persons. 28 PW14 Constable Shyam Lal deposed that on 18.09.2008, he had 12 received a sealed parcel from MHC(M) and deposited the same in FSL, Rohini and after depositing the parcel, he had handed over copy of receiving the parcel on R.C. to MHC(M).
29 In his crossexamination on behalf of accused Monu, he denied he had not joined the investigation in this case or that he had not taken parcel to FSL. In his crossexamination on behalf of accused Sandeep, he deposed that he does not know what were the contents of the parcel. He deposed that his statement U/s 161 Cr. P.C. was recorded by the IO in the Police Station at about 5.00 PM. 30 PW15/Inspector Sang Mitra is the IO of the case. She deposed on the lines of prosecution case and proved documents i.e. arrest memo of accused Sandeep Ex. PW1/B and his personal search memo Ex. PW1/A, seizure memo of exhibits which were handed over to her by Constable Ex. PW13/B, handing over memo of prosecutrix to her mother Ex. PW15/A, arrest memo of accused Amardeep Ex. PW1/C and his personal search memo Ex. PW11/A, seizure memo of exhibits which were handed over to her by the Constable Ex. PW15/B, statement of prosecutrix U/s 164 Cr. P.C. Ex. PW1/A. 31 In her crossexamination on behalf of accused Monu @ Amardeep PW15 deposed that she recorded the statement of prosecutrix on 24.06.2008 in the Police Station in presence of her Chacha. She did not recollect the name of the Constable who accompanied her to the house of accused Monu @ Amardeep. She deposed that she did not take any independent witness with her at the time of arrest of accused Monu @ Amardeep from her house. She denied that due to the negligent investigation of the police accused Monu @ Amardeep was arrested. She also denied that under any pressure accused Amardeep @ Monu's arrest was 13 shown in the present case.
32 In her crossexamination on behalf of accused Sandeep, she denied that prosecutrix had only stated that she suspected about the factum of commission of rape upon her. She volunteered that she was raped. She admitted that she had gone through the statement of prosecutrix Ex. PW2/D1. She deposed that prosecutrix disclosed her affairs with one boy namely Ravi and she handed over her love letters and photographs with Ravi to the first IO. She further deposed that it had come to her knowledge, during investigation that accused Sandeep and Yash @ Kallu had taken premises on rent in front of house of prosecutrix. She further deposed that first IO had already recorded statement of the landlord of the house where Yash @ Kallu was residing on rent. She further deposed that she had not seized any document regarding age of the prosecutrix. She does not obtain any photographs of the door or seized any broken lock or any key of the door of the alleged place of occurrence. She deposed that she had recorded one statement U/s 161 Cr .P.C. of the Chacha of prosecutrix. She admitted that Chacha is not a witness regard to the arrest of accused Monu @ Amardeep. She admitted that the place of occurrence as well as the place of arrest of accused Sandeep is a thickly populated area. She denied that her investigation was not fair and the same is partial one or that she had recorded supplementary statement to fill up the lacunas of the case. She also denied that only with ulterior motives the arrest of accused Sandeep was shown. She also denied that prosecutrix was not known to the accused in any manner. She deposed that prosecutrix was handed over to her at rd about 4.00 PM on 23 i.e. after about 910 hours of the commission of incident. She deposed that prosecutrix voluntarily came in the Police Station for recording 14 her supplementary statement after 24 hours of the alleged incident. She denied that rukka of the present case was sent after 20 hours of the alleged incident. She also denied that the rukka was blocked because neither the identity of accused persons was in knowledge, nor description. She also denied that prosecutrix voluntarily confined herself with the boy namely Ravi because her parents were against the marriage between prosecutrix and Ravi.
33 She also denied that deliberately and intentionally bony age xray of the prosecutrix was not conducted because she was more than 17 years of age, despite the directions of Doctors in MLC. She admitted that it is mentioned in the MLC Ex. PW6/A that "hymen intact and anal spichter intact and no external injury". She admitted that she had not seized any clothes of the prosecutrix or the bed sheet from the place of occurrence to support the factum of the alleged incident. She denied that neither the accused committed any rape with prosecutrix at any point of time or was not known to the prosecutrix. She also denied that the arrest of accused Sandeep was shown because he was friend of Ravi with whom the prosecutrix had love affair. She also denied that prosecutrix made out the case when her relations were disclosed in the public by some one and said Ravi and prosecutrix were caught together in the locked room. She further denied that at the instance of said Ravi the name of accused Sandeep was dragged into the litigation because Ravi was under suspicion that Sandeep had disclosed about his presence with prosecutrix in the said room, to the parents of the prosecutrix. She deposed that during investigation, she had come to know that prosecutrix was 17 years of age and was, therefore, a minor. She further deposed that since prosecutrix expressed her desire to accompany her mother, therefore, she was not produced 15 before the Ld. Metropolitan Magistrate for handing over her custody. She admitted that prosecutrix had disclosed her age as 13 years to her as well as to Ld. Metropolitan Magistrate who had recorded statement U/s 164 Cr.P.C. She also admitted that prosecutrix was changing her stand and statements frequently, so she was not sure regarding her version. She deposed that she cannot assign any reason as to why she did not collect age proof of the prosecutrix. She deposed that she had not obtained any legal opinion as regards filing or not filing of the bone age report on record. She denied that prosecutrix was major and the bone age report has been with held deliberately.
34 PW16 SI Kedar Nath Pandey deposed that on receipt of DD No. 68B dated 22.06.2008, about missing of a girl, he reached at 20/81, J.J. Colony, Dakshin Puri alongwith Const. Prem Raj and met Rajinder, Chacha of the prosecutrix who informed him that prosecutrix was missing since the night of 21.06.2008. He made efforts to trace the prosecutrix, but found no clue. He further deposed that on 23.06.2008, a call was received in the Police Station vide D.D. No. 48B that the prosecutrix was locked in a house situated opposite to the house of complainant. He reached at the spot and found that a crowd had gathered there and public was breaking open the lock and the girl was taken out of the house by him with the assistance of the public. He further deposed that the girl was in nervous state and she as well as her parents were brought in a P.C.R. Van to the Police Station. He further deposed that prosecutrix was sent alongwith Const. Suman for medical examination and Const. Suman had brought MLC alongwith exhibits, which were seized vide memo Ex. PW9/A. He recorded statement of the prosecutrix Ex. PW2/D1. He made endorsement Ex. PW16/A on the statement of 16 prosecutrix and sent rukka through Const. Prem Raj for registration of the case to the Police Station. Thereafter, he alongwith prosecutrix with Const. Suman and parents of prosecutrix returned to Police Station Ambedkar Nagar. He further deposed that after registration of the case, prosecutrix was handed over to W/SI Sang Mitra with the case file for further investigation. He further deposed that in September, 2008, the file again was handed over to him for investigation. He proved on record the bone age xray report alongwith xpray Ex. PW19/B. 35 In his crossexamination on behalf of accused Monu, he deposed that he received a call at about 7.30 PM that the girl is locked in the house and he could not trace the name of the called during the investigation. He further deposed that the public had broken the lock and he tried to know the name of the persons who were present and were breaking the lock, but they did not tell their names as they were in angry mood. He further deposed that they had broken the lock and had already opened the door and he could not find the lock, therefore, the lock could not be seized. He further deposed that he had prepared site plan of the spot, as far as he can recollect. No photographs of site were taken. He had recorded the statement of the prosecutrix in the Hospital. He had not obtained any toxicology report of the prosecutrix even after he had come to know that she was made to smell cloth and became unconscious thereafter. He further deposed that he had told the Doctor that he does not find any cloth, on which Doctor did not conduct any test as regards toxicolony / any forensic test. He does not find or collected any material like broken bangles, nail clippings or any soil for the purpose of investigation. He further deposed that he had not find any material from the room, with which she was tied. He volunteered that prosecutrix had stated that she was put in a steel almirah and 17 she was sweating and was in a nervous state of mind. He denied that he had purposely not filed the bone age certificate eariler to shield the actual accused Yash @ Kallu or Ravi with whom the prosecutrix was having love affair and to falsely implicate accused Monu. He also denied that in order to falsely implicate the present accused, he had not purposely initiated proceedings U/s 82/83 Cr. P.C. against accused Yash @ Kallu. He also denied that he had purposely not taken any statement of Ravi with whom the prosecutrix was having love affair or that he had falsely implicated the accused and in order to create a confusion, the story was cooked up that the girl had been recovered from the steel almirah. 36 In his crossexamination on behalf of accused Sandeep, PW16 deposed that Ex. PW16/B i.e. bone age xray report was never in his possession, but he had placed on record today when the same was handed over to him by SI Sang Mitra. He further deposed that there is no signatures of prosecutrix on Ex. PW16/B. He further deposed that Ex. PW16/B was never filed by him alongwith the charge sheet, nor the name of Doctor was cited because the same was not in his knowledge. He denied that prosecutrix is more than 17 years of age and by concealing the above fact, the relevant documents were not placed on record and the same is manipulated. He deposed that when he reached at the spot, he entered into the room where the girl in question was confined and the bolt was intact. No statement of any independent public person was recorded to support the above averments i.e. regarding the confinement of girl or she was bring out of the room at any time or any lock was broken or opened by the key. He further deposed that the statement of prosecutrix was recorded at 10.30 PM in the AIIMS Hospital. The investigation of the present case was handed over to SI Sang Mitra. The rukka 18 of the present case, after recording the statement of prosecutrix, was sent after five hours, after her medical examination. He only recorded Ex. PW2/DA. Accused Sandeep Chauhan was never arrested in his presence.
37 He denied that his investigation is not fair and proper and deliverbately he withheld the rukka of the present case with ulterior motives. He was shown Mark DX, which he denies that the same is in his handwriting or that is the first statement of prosecutrix which was recorded in the Police Station Ambedkar Nagar. He denied that due to the abovesaid reasons despite the recovery of the prosecutrix the rukka of the present case was withheld more than twenty hours for registration of the present FIR. He deposed that the information regarding the recovery of the girl and confinement in the room was received by him vide D.D. No. 48B at 8.50 AM dated 22.06.2008 and the same is Ex. PW16/DA. The rukka was sent on 23.06.2008 at 12.00 midnight. He denied that the investigation was again handed over to him as he was interested in the present case because Yash @ Kallu was released by him wrongly in connivance with SHO. He also denied that to further flare up the matter and to pacify the public on the false arrest of accused Sandeep and Monu, deliberately investigation was handed over to him by the SHO. 38 He further deposed that when he reached the spot, approximately 1500 public persons were already present at the spot and no statement of any public person was recorded to support the factum of recovery from the alleged place because none agreed. He denied that deliberately in connivance with SI Sang Mitra, he withhold the medical evidence. He also denied that the girl in question was in love affair with one boy namely Ravi, but the parents of the girl were against. The girl was in elope with Ravi in one room and under the suspicion accused had 19 might have disclosed the place where the girl with Ravi was found. He denied that neither the accused committed the rape upon the prosecutrix, nor she was recovered in the manner stated above. He deposed that no photograph of the almirah or of the room were taken. He denied that deliberately the statement of Ravi and Prince were never recorded. He deposed that at the time of recovery of girl, her parents were also present there with him and the door was already found broken. He further deposed that no photograph of the broken door was taken. 39 PW17 HC Sompal Singh deposed that on 22.06.2008, he received a copy of D.D .No. 48B through Constable Braham Singh, copy of which is Ex. PW16/DA, regarding confinement of a girl inside the house No. 3/53, Dakshinpuri. He alongwith Constable Braham Singh reached at the spot, where the above said information was found fake. Thereafter, he returned to Police Station. Duty Officer informed him that the place of incident was 20/53, Dakshinpuri. He reached there, where SI K.N. Pandey was present, who told him that he had received a separate D.D. entry in that regard. He found that the girl was confined in the room at the ground floor of H. No. 20/53, Dakshinpuri and the room was locked from outside. SI K.N. Pandey got the lock broke open with a hammer. Lady Constable was called from South District Control Room by IO. IO had sent the prosecutrix to AIIMS Hospital through Lady Constable Suman. After medical examination Constable Suman alongwith prosecutrix returned at the spot. MLC of the prosecutrix and sample seal and sealed parcel and sealed slides were handed over to the IO at the spot and same were seized by the IO in this case vide memo Ex. PW9/A. 40 In his crossexamination conducted on behalf of accused Monu, PW17, he deposed that he was already present in Dakshinpuri Area when Constable 20 Braham Singh came from the Police Station and gave the copy of D.D. No. 48B to him for going to 3/53, Dakshinpuri. He deposed that he does not remember at what time he reached H. No. 20/53, Dakshinpuri, but it was afternoon and as to how long he stayed at the place of occurrence. He could not tell the age of the prosecutrix. He had not gone inside the room from where the girl was recovered. He does not remember the time when lady Constable Suman had arrived at the spot. He deposed that nothing was seized from the spot at that point of time by the IO. He does not remember if the IO of th case had noted name of any independent witnesses who were present at the spot. He deposed that the house from where the prosecutrix was recovered was a thickly populated area. Statement of prosecutrix was not recorded in his presence. He never visited the place of occurrence again. He does not remember who else accompanied the prosecutrix when she was sent for MLC. He does not remember, if any photographs of the broken lock were taken. He denied that IO in order to complete the formalities on his own included his name in the list of witnesses and that is why he was unable to give any details or throw any lights on the events so mentioned in the case of that day.
41 In his crossexamination conducted on behalf of accused Sandeep, PW17 deposed that the hammer with which the lock was broken was not brought by them from the Police Station, but the same was produced by the IO from a police person. In his presence IO had not recorded the statement of any witness including the prosecutrix despite the fact that so many persons were present at the spot. He denied that he had never visited the place of incident and was shown as a witness just to complete the formalities of the present case.
2142 I have heard Ld. Counsel for accused persons and Ld. Addl. PP for State.
43 The prosecutrix in a rape case cannot be disbelieved if her testimony inspires confidence about the truth of the incident, even if there have been lapses on some points in the investigation. In the case in hand, the entire prosecution evidence is full of contradictions to begin with, immediately after the prosecutrix was rescued as per police records, she made her first statement before the first IO of the case SI K.N. Pandey (examined as PW16) and first statement of the prosecutrix has been exhibited as Ex .PW2/D1. In her statement prosecutrix has un ambiguously stated that there were two boys involved in the act. She has meticulously described their specific roles stating therein that accused Yash @ Kallu and Sandeep were present outside their house at 20/53, J.J. Colony, Dakshinpuri and while Kallu pressed her mouth and Sandeep caught hold of her legs and forcibly took her to their house. That Kallu was having a cloth which he placed on her mouth, as a result of which she became unconscious and regained consciousness at about 8.15, the following evening, on which she raised alarm and her mother and other neighbours gathered. She further clarified that when she had regained consciousness, she found herself in an iron almirah, which she had opened with a kick. That she was taken out of the room with the help of the police who had broken open the lock of the room where she was kept and on checking her clothes she found same sticky substance on her underwear. Therefore, she had suspicion that the two boys had committed rape upon her. She further stated that she knew the names and faces of both the boys very well. Thus, as per the first statement of the prosecutrix, she was not conscious from the time a cloth was kept 22 on her mouth by one of the accused and till the time she was rescued the following day. However, her supplementary statement was recorded by the IO on 26.06.2008, wherein she added the name of another accused namely Monu and has given details as to how she was made to lie on the bed and accused persons strip themselves and committed rape upon her one by one. Immediately after recording the supplementary statement of the prosecutrix her statement U/s 164 Cr. P.C. was got recorded by the IO on 26.06.2008, wherein she reiterated that there were three boys sitting on the stairs of the house in front of her house and that she knew the names of all the three, they were Monu, Yash and Sandeep. That she knew all three of them as they were residing in the same locality. That when she was returning from toilet, all the three boys had came to her. Monu had placed a cloth over her mouth, Sandeep caught hold of her legs and Yash caught hold of her hands. All of them had taken her to one house where Yash and Sandeep were residing. That she was conscious when all the three boys were taking her to the room. That all the three boys misbehaved with her and removed all her clothes. She tried to raise voice, but could not do so as her mouth was tied with a cloth. That after the entire act she was made to wear her clothes and confined in an iron almirah. Thereafter she became unconsciousness and on regaining consciousness she raised alarm. Another supplementary statement of the prosecutrix was recorded on 26.06.2008, wherein she had identified the accused Monu to be the person who had kept the piece of cloth on her mouth and had misbehaved with her on the bed and had committed rape upon her.
44 However, in her statement recorded in the Court on 24.11.2009, she identified accused Sandeep and Monu as Sandeep and Yash (accused Yash was 23 never arrested and was declared a Proclaimed Offender in this case). In her subsequent statement recorded on 25.11.2009, prosecutrix stated that she was conscious at the time when accused Sandeep and Yash had taken her to a room after putting a cloth on her mouth. All she had stated against the accused persons is that "Fir unhone mere badan per chedkhani kari". Thereafter they confined her in nd an almirah and left the house and she got up on the next day i.e. 22 and she opened the almirah by pushing the same and raised alarm. One boy Prince came and called her parents on her instigation. Police reached the spot and thereafter took her to Hospital for medical examination. Thereafter, she was taken to Police Station, where her complaint was lodged by the police, which is Ex. PW2/D1, signed by her at Point A. Witness specifically stated that she did not remember as to what had happened after that. She was declared hostile and was cross examined by Ld. Addl. PP for State, wherein she declined that accused Monu was one of the accused persons who was present and involved in the commission of offence. Further, in her crossexamination witness has stated that she had become unconscious in the gali as soon as the cloth was put on her mouth and had regained consciousness only the following day. She admitted that she could not describe as to what had happened with her in the state of unconsciousness. The entire version of the prosecutrix becomes doubtful when in her crossexamination she admitted that she came to know the names of accused persons only after their arrest. If she is to be believed then even the first statement of the prosecutrix which was recorded by the police immediately after she was rescued becomes doubtful as atleast two persons have been named in the statement Ex. PW2/D1. Further, the story of prosecution that on the first day she could not inform anyone as she did not 24 see anybody in the gali, is also falsified by her own statement that the house of Kallu @ Yash is situated opposite the house of the prosecutrix at a distance of about 5 to 7 steps only. Thus, the testimony of prosecutrix does not inspire confidence.
45 Further, in view of the aforesaid circumstances where the doubt has been cast on the version of the prosecution by the statement of the prosecutrix herself. One has to look towards the medical evidence on record. Doctor Mukta Aggarwal was examined as PW6 and has exhibited the MLC of the prosecutrix as Ex. PW6/A, wherein no external injury was found on the person of prosecutrix and the hymen was found intact and to the specific question as to whether in case of gang rape there has to be a visible injury mark (on the person of prosecutrix), Doctor replied that "it is not a gang rape". Further, Dr. Sunil Sharma examined as PW7 had medically examined accused Monu and thus his MLC has been exhibited accordingly and no abnormality was detected by the Doctor and there was no external injury on the body of the accused. The MLC of accused Sandeep dated 26.06.2008 is Ex. PW3/A, wherein also no external fresh injury was seen by the Doctor.
46 In Rahim Beg Vs. State of U.P., 1972 Cr.L.J. 1260 (SC), it has been held by Hon'ble Supreme Court that "Ordinarily, rape is violation, with violence of the private person of a woman - an outrage by all canons. If a girl who is virgin and whose hymen is intact, is subjected to rape by a fully developed man injuries are likely to be there on the male organ of the man. Where injuries are not detected by doctor on the male organ of the accused, the absence of such injuries would point to his innocence".
2547 The facts of the case in hand squarely fall into the parameters of Rahim Beg Vs. State of U.P., 1972 Cr.L.J. 1260 (SC).
48 In the case in hand also the allegations of rape of a 13 years old girl whose hymen was found intact in the medical examination and no fresh injuries were found on the male organs of either of the accused, which only indicate the innocence of the accused persons.
49 In the present case there are many contradictions in the statements of the witnesses. PW2 Smt. Kavita deposed that room was opened by a key which was handed over by the neighbour. The room was opened and the key was handed over to the police and same was seized. Whereas PW10 HC Prem Kumar deposed that IO/SI K.N. Pandey broke open the lock and got released the girl and IO K.N. Pandey as PW16 deposed that when he reached the spot he found that a crowd had gathered there and they had broken the lock and had already opened the door.
50 Thus, both PW1 prosecutrix and PW2 her mother are hostile witnesses. Their conduct casts cloud of suspicion in the reliability of their version. No proof of age of prosecutrix has been placed on record by the prosecution. PW4 to prove the age of prosecutrix is also hostile. Interestingly, no site plan has ever been prepared by the IO, thereby the fact that the spot of incident and the house of prosecutrix are situated almost opposite to each other, was not revealed till the crossexamination of PW1. No photographs of spot were taken by the IO to clarify. Further, not even any independent witness was joined, although it was stated that at the time of recovery of prosecutrix lot of crowed had gathered there. Even the statement of boy Prince who had allegedly seen the prosecutrix and had informer 26 her mother was not recorded by the IO.
51 No conviction can be sustained, keeping in view the fact that it has been time and again warned by Hon'ble Supreme Court that no conviction can be sustained in view of unreliable, uncorroborated testimony of prosecutrix and her highly unnatural conduct - Vimal Suresh Kamle Vs. Chaluverapenake Apal, 2003 Criminal Law Journal 910 (S.C.).
52 The evidence of both accused has consistently been that they have been falsely implicated in the present case. The statement of prosecutrix when she stated in her crossexamination that she came to know about the names of the accused persons only after their arrest and actually wrongly identified the accused persons as Sandeep and Yash, whereas the accused persons present in the Court were Sandeep and Monu. The question that remains unanswered is as to how the first statement of the prosecutrix finds mention of names of two accused persons. The answer lies in the documents of the prosecution themselves. It is interestingly to note that D.D. No. 68B dated 22.06.2008 was lodged at 3.45 AM on 22.06.2008 and is Ex. PX. This is the information given by the mother of the prosecutrix that the prosecutrix was missing. D.D. No. 48B is the information of recovery of the girl and the same is lodged at 8.50 AM on 22.06.1008 itself. It has been exhibited as Ex. PW16/DA. Whereas rukka was sent at 12.00 mid night on 23.06.2008 and is Ex. PW16/A. Therefore, after the information of recovery of girl at 8.50 AM on 22.06.2008, the rukka was sent by the IO at mid night of the following day i.e. 23.06.2008, giving ample time to prosecution to find out as to who should be implicated in the case. Thus, creating doubt in the prosecution version and the benefit goes to the accused persons.
2753 Thus, keeping in view the totality of circumstances, I hold that prosecution has failed to prove its case beyond reasonable doubt. Therefore, both the accused persons namely Sandeep and Monu are hereby acquitted for offence punishable U/s 376(2)(g) and 343/34 IPC. Their bonds are cancelled and sureties discharged. File be consigned to record room.
Announced in the open Court on the 8th day of April, 2011 (RAJ RANI MITTRA) ADDITIONAL SESSIONS JUDGE 05 SOUTH - EAST / SAKET COURTS NEW DELHI