Delhi District Court
State vs Bunty @ Narender on 18 February, 2012
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE03(NE):KARKARDOOMA COURTS : DELHI.
SC No.260/10
Unique ID No.02402R0261752010
Date of institution:01.07.2010
Date of transfer: 16.11.2010
Date on which reserved for order:14.2.12
Date of delivery of order:18.2.12
State Vs Bunty @ Narender
s/o Kali Charan @ Ram Charan
R/o H.No.60, Gali No.20 Foota Ward,
Behta Hajipur, Loni, Ghaziabad, UP.
FIR No.43/10
PS Jyoti Nagar
U/s 376/506 IPC
JUDGMENT: Thumbnail sketch of the case is as under :
1. The complainant Sukhbiri Devi filed a complaint u/s 200 Cr.P.C. against accused Bunty for his prosecution and punishment for committing the offence under Section 376/506 IPC alongwith a complaint u/s 156(3) Cr.P.C. for directions to register a FIR. On the basis of the complaint, Ld. M.M., Shri Sanjay Khanagwal vide FIR NO.43/10, PS Jyoti Nagar 1/40 his order dated 28.1.2010, directed SHO Police Station Jyoti Nagar to register FIR within 24 hours and investigate the matter as per law. The main contents of FIR / complaint are as under: That the complainant is having two sons and three daughters and her youngest daughter is the prosecutrix. On 7.9.2009, her youngest daughter (prosecutrix) came home weeping and was very scared. When she enquired from her, she told that accused Bunty introduced himself to her sometime back and started meeting her on the way. The accused took her into confidence and told her that he would get her employment in a modelling company. On 27.3.2009, the accused asked her to reach at Gol Chakkar of Gokal Puri leading to Wazirabad. He took her along by alluring her and taking false plea that he was taking her to meet a person for discussing regarding her employment. The accused took her to a place situated in Kalkaji, New Delhi and some person was already present there. The said person left that place after they reached there and the accused made physical relationship with the prosecutrix by playing fraud and making false allurements / representations. It was further informed by daughter of the complainant that after a few days he again asked her to accompany him but she refused. Accused threatened her that he FIR NO.43/10, PS Jyoti Nagar 2/40 had prepared a blue film on the said day and he showed the film for a few seconds to her and threatened her that in case she did not obey his instructions he would distribute the film in the whole area and if she told about this to any person then he would kill her. It was further informed by the prosecutrix that she was under pressure and threats and thereafter also the accused exploited her mentally and physically various times after 27.3.2009 and he made sexual relationship with her 23 times after 27.3.2009 against her wishes and under threats and pressure. The accused gave threats to her daughter various times due to which her daughter came under immense pressure and torture. The daughter of the complainant further informed her that he was threatening her that he had distributed the said film amongst his friends and to one Rahul also who was one of his friends and the accused was forcing her daughter to make sexual relationship with Rahul and his other friends, otherwise he would distribute the said film in the whole area and would kill her. That her daughter did not inform her about the above happenings due to pressure, threats and fear of disgrace of the family and now due to immense pressure and for safety of her life she disclosed everything to her. That the accused had sexually exploited and made physical relations with her daughter FIR NO.43/10, PS Jyoti Nagar 3/40 by making misrepresentations, fraud, blackmailing and against her wishes committed rape upon her and sexually exploited her under the threats of distributing the said film in the area and he also committed the criminal intimidation. It was also stated that the complainant had also given various complaints to the concerned police officials but no action had been initiated. The copy of the complaint made to DCP Seelam Pur, Shahdara dated 7.9.2009 was also filed alongwith the complaint. On 29.1.2010, investigation was handed over to ASI Suchitra. On 30.1.2010, prosecutrix was got medically examined from GTB Hospital and her statement u/s 164 Cr.P.C. was got recorded from the court of Ld. M.M Sh. Amitabh Rawat. On 19.2.2010, accused Bunty @ Narender Kumar surrendered before the court of Sh.Sanjay Khanagwal, Ld. M.M. He was formally arrested and his police remand was also obtained. His medical examination was also got conducted and for pointing out he was taken from Flyover Gokal Puri to Kalkaji, however, the accused could not point out the house at Kalkaji nor the prosecutrix could point out the place where she was raped. The mobile phone in which the accused had prepared blue film of the prosecutrix also could not be traced. The bony age xray of the prosecutrix was got done from the GTB FIR NO.43/10, PS Jyoti Nagar 4/40 Hospital and her age as per bony age xray report was opined to be 18 years and after completing other necessary formalities, charge sheet against accused Bunty @ Narender Kumar was filed u/s 376/506 IPC.
2. Accused was charged for the offences punishable u/s 363/366/376 & 506 IPC to which he pleaded not guilty and claimed trial.
3. Prosecution in support of its case has examined 10 witnesses.
● The material prosecution witnesses are PW2 Sukhbiri Devi, the complainant (mother of the prosecutrix), PW3 (the prosecutrix) and PW9 Deen Dayal (father of the prosecutrix). ● The medical evidence has been proved through PW4 Dr. Sumit who examined the accused vide MLC Ex.PW4/A and PW5 Dr. Geetika Goel who examined the prosecutrix vide MLC Ex.PW5/A and the casualty card is proved as Ex.PW5/B. ● PW7 is Shri Amitabh Rawat, Ld. M.M., who recorded the statement of prosecutrix u/s 164 Cr.P.C.
● PW1 is H.C. Lal Singh who registered FIR vide Ex.PW1/A and made endorsement on ruqqa vide Ex.PW1/B. ● PW6 is Const. Chaman Lal who joined the investigation on 19/20.2.2010 from the time the accused was arrested. PW8 FIR NO.43/10, PS Jyoti Nagar 5/40 is ASI Satyabir Singh who joined the investigation on 30.1.2010 and PW10 is ASI Suchitra, I.O. of the case. On 29.1.2010, the case was marked to her. On 30.1.2010, she alongwith ASI Satyabir Singh went to village Betah Hazipur at the house of the prosecutrix. However, she could not meet her on that day. The prosecutrix was got medically examined. She also pointed out the place at the end of the flyover leading towards Wazirabad to be the same place from where the accused had taken her on the motorcycle. She did not prepare any pointing out memo as the same had already been prepared by ASI Satyabir when he had filed the status reports. The photo copies of the same are mark P10/A and P10/B. She got the statement of the prosecutrix recorded u/s 164 Cr.P.C. Accused could not be found. On 19.2.2010, accused surrendered before the court. He was arrested, his disclosure statement was recorded and he was got medically examined. She prepared the pointing out memo at the instance of accused vide Ex.PW6/C. She got the bony age xray of prosecutrix conducted in GTB Hospital vide Ex.PW10/C. She had taken the accused to Kalkaji to locate the house where the alleged FIR NO.43/10, PS Jyoti Nagar 6/40 offence took place but the accused did not disclose the address and the said house was not located. She also tried to search mobile phone on which the blue film was made by the accused but mobile phone was not produced by the accused. Accused disclosed that his mobile phone had fallen into water and it had become unworkable and therefore, he threw it away.
4. Statement of accused was recorded u/s 313 Cr.P.C. in which he denied the prosecution case and pleaded innocence. He stated that about 1 ½ year prior to the registration of the present case, his father reported the matter to SSP Ghaziabad, U.P. that prosecutrix and her sister Kamlesh snatched money from his pocket. He complained to his father. His father complained to father of the prosecutrix. The father of prosecutrix threatened his father with dire consequences.
5. In his defence the accused examined his father Ram Charan @ Kali Charan who stated that about 3 ½ years ago, Vimlesh, Kamlesh, Neha and their mother Sukhbiri Devi surrounded his son Bunty and snatched money from him. They also used to threaten his son and also used to black mail him. His son reported the matter to him. When he went to the house of Sukhbiri Devi for FIR NO.43/10, PS Jyoti Nagar 7/40 reporting the matter, all of them threatened him. Thereafter on the next day he went to PS Loni but no report was lodged by the police. Thereafter he went to the office of SSP Ghaziabad and lodged a complaint on 25.9.2008, photocopy of which is mark DA. He was threatened by Sukhbiri Devi, her husband and her daughters. They also threatened him that if the marriage of prosecutrix was not arranged with the accused, then his son Bunty would be falsely implicated in a criminal case.
6. I have heard Addl. PP for the State and defence counsel Mr. R. P. Singh and gone through the entire record including written submissions and rulings filed on record.
7. The chronological sequence of the events are as under: Dates Sequence of Events 27.3.2009 Alleged incident took place 07.9.2009 Letter to DCP was written by Smt. Sukhbiri Devi (mother of the prosecutrix) which is proved as Ex.PW3/B 19.9.2009 Complaint filed u/s 200 Cr.P.C. before the court of Ld. M.M. which is Ex.PW1/B 22.12.2009 Pointing out memo of the place where the accused had made the prosecutrix sit on his motorcycle was prepared FIR NO.43/10, PS Jyoti Nagar 8/40 The prosecutrix was taken to point out the place where rape was committed upon her 20.1.2010 which she could not point.
(These documents were prepared when the court of Ld. M.M. had sought status report from the concerned police station).
28.1.2010 Order passed by Ld. M.M. on an application u/s 156(3) Cr.P.C for registration of FIR.
29.1.2010 FIR was recorded.
30.1.2010 MLC Ex.PW5/A of the prosecutrix was got conducted.
1.2.2010 Statement of prosecutrix u/s 164 Cr.P.C.
was recorded.
19.2.2010 Accused Bunty was arrested and his MLC was prepared after his medical examination vide Ex.PW4/A. 9.3.2010 Xray bony age estimation of the prosecutrix was conducted and vide Ex.PW10/C the prosecutrix was reported to be above 18 years of age.
8. The basic and foremost question that arises for consideration before this court is whether the accused committed the offence of kidnapping, rape and criminal intimidation upon the prosecutrix. The law was set into motion on the complaint of PW2 Sukhbiri FIR NO.43/10, PS Jyoti Nagar 9/40 Devi (mother of the prosecutrix) who stated that she had been working in a thread cutting factory situated in Gandhi Nagar. Her younger daughter (prosecutrix) also used to work with her in the same factory. Accused Bunty @ Narender was known to her daughter (prosecutrix) as he was also resident of the same area and travelled in the local train. While she and her daughter also used to travel in local train from her home town to Delhi. She did not remember the exact date and month, but it was about two years back, accused gave a call to her daughter (prosecutrix) and asked her to see him at Loni Gol Chakkar near a temple. He told her daughter (prosecutrix) that he would get her employed as a model in a modelling company. On his call, her daughter went there. Accused took her on a motorcycle to Kalkaji area. Accused took her daughter (prosecutrix) to a room and thereafter had sexual intercourse with her daughter against her wishes and without her consent and took her nude photographs from his mobile. Accused prepared a blue film of her daughter. Her daughter was dropped at Behta. Accused threatened her daughter that if she disclosed his acts to anybody then he would kill her brother. Accused threatened her daughter that if she would not meet him, he would distribute FIR NO.43/10, PS Jyoti Nagar 10/40 and show her blue film in the area of Behta and he distributed her blue film. Witness stated that "USKI GALAT TASVIR KAI LOGON KE PASS THI". Prior to committing sexual intercourse with her daughter, accused made her daughter drink some sedative laced cold drink. Accused also threatened her daughter that if she would not follow his instructions then he would kill her parents. She tried to lodge report with the police but nothing happened but finally she lodged a complaint Ex.PW1/B in the court. I.O. of PS Gokal Puri had recorded her statement Ex.PW2/A. The pointing out memo was also prepared. She identified the accused. Since she was trying to suppress the truth, she was cross examined by Ld. Prosecutor. She admitted in her cross examination by the State that she had told the date as 27.3.2009 when Bunty (accused) called her daughter (prosecutrix) on phone. She admitted that she had told in her statement that accused Bunty had enticed her daughter on the pretext of getting her a job. She also admitted that she had stated to the police that thereafter Bunty (accused) had made several calls to her daughter and told her to accompany him to Kalkaji but her daughter refused. She also admitted that she had stated to the police that her daughter had told her that the accused FIR NO.43/10, PS Jyoti Nagar 11/40 had threatened her that if her daughter disclosed the incident to anybody then he would kill her and that her pornographic film (ashlil film) would be distributed in the village.
9. PW3 is the prosecutrix who stated that prior to 27.3.09 she used to do work of cutting of thread at Gandhi Nagar. Accused Bunty used to work in Delhi. She and Bunty used to travel in the same local train and that is how she knew him. Accused developed friendship with her. Accused was residing in the same parental village in which she was residing. Accused made a call to her on 27.3.09 and called her at Golchakkar near Loni. Accused told her that he would get her employment in a modelling company. When she was going towards Golchakkar she found accused standing near Wazirabad road. Accused seated her on his motorcycle and took her in a house at Kalkaji, the number of which she did not know. One man was already present in the house at Kalkaji in which the accused had taken her. When they reached the house that man left the house and she did not know who he was. Accused told her that since he had brought her to become a model she would have to first take off her clothes and will have to show her figure. After sometime accused offered her a cold drink and after FIR NO.43/10, PS Jyoti Nagar 12/40 consuming it she became unconscious. When she regained consciousness she found that there were no clothes covering her body and she was fully naked. Accused was sitting beside her and he had committed rape upon her. When she regained her consciousness she wore her clothes and accused took her on his motorcycle and he left her at Loni Golchakkar. After some days accused again called her at Loni Golchakkar. She asked the accused as to what happened to her employment which he had promised her to get. Accused told her that he knew one person by the name of Rahul and that she will have to have sexual relationship with him for her employment and that again she will have to go to that house in Kalkaji. Accused Bunty told her that on 27.3.09 at the time of commission of the offence of rape upon her he made a blue film of her. He had even showed her the blue film on his mobile phone. Accused threatened her if she disclosed about the incident to anybody then he would kill her and he would also kill her brother and her other family members. After about six months she informed her parents about the incident. Her parents took her to PS gokalpuri but the police did not hear her or her parents and they did not do anything. Accused Bunty had FIR NO.43/10, PS Jyoti Nagar 13/40 threatened her and her family members that he would kill all of them. She also stated that the accused had taken her to the first floor (doosri manzil) at the house at Kalkaji. She had shown the place i.e. Loni Golchakkar from where she had been taken by the accused, to the police. She also stated that first time on 27.3.09 when the accused committed rape upon her, there was bleeding from her private parts and there was pain also. In the blue film that was shown to her by the accused even he was without any clothes and was having sexual intercourse with her. She had given complaint dated 07.09.09 to the DCP Seelampur and the photocopy of the same is Ex. PW3/B. She also stated that she made her statement to the Ld. Magistrate and identified her statement as Ex. PW3/A.
10. In her statement u/s 164 Cr PC the prosecutrix stated as under: "main apni mummi ke sath Gandhi Nagar me factory me dhaga kaatne ka kaam kerti thi, main roj train se Bhaita se Shahdra or shaam ko Shahdra se Bhaita aati jaati thi. Meri train mae mulakaat Bunti naam ke ladke se hui, do teen baar wo train me mila kyunki wo bhi train main Shahdra aata tha. Wo mujhse kehne laga ki main teri naukri kisi modelling company main laga dunga, fir 27.3.09 ko FIR NO.43/10, PS Jyoti Nagar 14/40 usne mujhe mere mobile main phone kiya or kaha ki gokalpuri mandir ke paas 11 baje mujhe milna, main wahan mandir ke paas golchakkar per pahunchi, usne mujhe phone kiya or maine bataya ki main golchakkar mandir ke paas khadi hoon, usne kaha ki jo raasta Wazirabad ki taraf jata hai, wahan aa jaao, main wahan pahunchi or usne kaha ki main tujhe modelling company main baat karane ke liye le ja raha hoon, main uske bike main baith gayi or wo mujhe leker Wazirabad ki taraf le gaya or ek makaan teesri manjil main Kalkaji main le gaya, Kalkaji mandir raaste main aaya tha wahan us ghar main ek aadmi pehle se mojood tha uska naam mujhe nahi pata, mere aane ke baad wo wahan se chala gaya, phir Bunti ne mujhe kahan ki main teri naukri modelling company main lagwane ke liye laya hoon, pehle apne ooper ke kapde utaar ker apni figure ko dikhana hoga. Uske kehne per maine apane ooper ke saare kapde utaar diye, kuch minute ke baad usne mujhe cold drink di, use peene ke baad mujhe kuch nasha sa ho gaya or aadhi behoshi si chha gayi, baad main mujhe hosh aaya or maine dekha ki Bunty wahan bed pe baitha hua tha or main leti hui thi, mere sharir pe koi kapda nahi tha or mere peshaab wali jagah se khoon nikal raha tha, mujhe dard ho raha tha, maine uthehi saare kapde FIR NO.43/10, PS Jyoti Nagar 15/40 pehne or usne kaha ki ghar chal, main uske sath bike mein bathi or usne nehar, Loni ke paas 5 baje utaar diya, main apne ghar chali gayi. Kuch dino ke baad maine oose apni naukri ke baare mein poochha, usne mujhse kaha ke dobara wahin chalna hai to maine mana ker diya, phir usne train mein hi mujhe kahan ki 27.3.09 ko maine teri apne sath blue file banayi hai or do minute ki film apne mobile se mujhe dikhai. Oos film mein main bister pe leti hui thi or mere or uske kapde nahi the, wo mere ooper chada hua tha or apna ling mere peshaab wali jagah mein daal raha tha, main ghabra gayi, oosne mujhe kaha ki tumhe wahan chalna hai (Kalkaji jahan pehle gaye the) or dhamki di ki agar ye baat maine kisi ko batayi to wo (Banti) ye blue film Bhaita Hajipur (mere gaon) me baant dunga, main ghabra gayi or chupchap ghar chali gayi, maine kisi ko kuch nahi bataya, kuch dino ke baad oosne mujhe phone kiya or dhamki dekar nehar ke paas aane ko kaha, main dobara ooske sath gayi ossi ghar main or oosne mere sath mujhe darakar balatkaar kiya, oosne kaha ki ooske dost Rahul ke sath bhi sambandh banao, maine mana ker diya, phir wo mujhe ghar chod aaya (nehar ke paas), maine pareshaan ho gayi or kaam chod diya, oosne mujhe phir se phone kiya or mere mana kerne ke baad oosne blue film gaon mein baat FIR NO.43/10, PS Jyoti Nagar 16/40 di, phir ladke gaon ke mujhe pareshaan kerne lage or blackmail kerne lage, maine apne phone ka sim bhi badal diya, phir hatash hoker pehli ghatna ke lagbhag 6 mahine ke baad maine apni mummi ko sabkuch bata diya, phir mummi mujhe leker police station gayi lekin mukadma darj nahi hua, baad mein mummi ne court mein case daal diya, mujhe or kuch nahi kehna hai, (English translation: I was working along with my mother at Gandhi Nagar in a factory and we used to cut threads. I used to travel by train from Bhaita to Shahdra and back in the evening. In the train I met accused Bunty twicethrice as he also used to travel in the same train and used to come to Shahdra. He told me that he would get me employed in a modelling company. On 27.3.09 he called up on my mobile and asked me to reach at Gokalpur mandir at 11.00 am. I reached at the temple near Golchakkar. He asked me to proceed on the road leading towards Wazirabad. When I reached there accused Bunty told me that he was taking me for my employment in the modelling company. I sat on his bike and he took me towards Wazirabad. We went to a house on 3rd floor at Kalkaji. Kalkaji Mandir was also on the way. In the house there was already a man present.
FIR NO.43/10, PS Jyoti Nagar 17/40 I did not know his name. After we reached there he left. Accused Bunty told me that since I wanted to get employed in the modelling company I will have to show my figure to him after removing my clothes. I removed all my clothes from the upper part of my body. After sometime he gave me cold drink. After consuming the same I felt semi unconscious. When I regained consciousness I saw that Bunty was sitting on the bed while I was laid on the bed and there were no clothes on my body and I was bleeding from my private part. I felt pain also. I wore my clothes and accused asked me to proceed for home. Thereafter I again sat on his bike. He dropped me at Loni Golchakkar and I went home. When I inquired from the accused about my employment after a few days, he again asked me to accompany him to the same place which I refused. In the train he told me that on 27.03.09 he prepared a blue film of us and he showed me two minute film on his mobile. In that film I was lying on the bed without clothes. He was on me and was putting his genitals into my genitals. I got petrified and he again insisted that I would have to accompany him to Kalkaji and threatened me that if I disclosed the same to anyone he would distribute my blue film in FIR NO.43/10, PS Jyoti Nagar 18/40 Bhaita Hazipur. I got nervous and left for home. I did not tell anyone. After some days he again made a phone to me threatening me and asked me to come near canal. I again accompanied him to the same house and he again raped me after putting me under fear. He asked me to have relationship with his friend Rahul also for which I refused. He dropped me home (near canal). Due to being harassed I left my work. He again made a phone call to me and despite the fact that I forbade him not to distribute the blue film, he distributed the blue film in the village. Thereafter the boys in the village started harassing me and blackmailing me. I changed sim of my mobile phone also. After I was despaired I revealed the incident to my mother after about six months. My mother took me to the police station but my complaint was not registered. Thereafter my mother lodged a complaint in the court. I do not wish to say anything further."
11. Prior to recording of her statement u/s 164 Cr PC the prosecutrix was taken for her MLC. Her MLC has been proved by PW5 Dr. Geetika Goel who stated that she had seen MLC of the prosecutrix aged about 17 years dated 30.1.10. As per alleged FIR NO.43/10, PS Jyoti Nagar 19/40 history given by the patient there was history of rape by Bunty on 27.3.09 two times and now she had lodged a complaint on 29.1.10. She had examined the patient and on local examination she found the hymen to be torn, having old tear. No sample of the patient was taken as the history was nine months back. She proved the casualty card as Ex. PW5/B. In her cross examination she stated that the age of 17 years was told to her by the patient herself. Patient had not given any history of rape between28.3.09 to 30.1.10. Bony age x ray of the prosecutrix was also got done on 09.3.10 and as per the report age of the prosecutrix was stated to be above 18 years and the report is proved as Ex. PW10/C. PW2 Sukhbiri Devi also stated that she had disclosed the age of the prosecutrix to the police on the basis of Janampatri. She has not supplied copy of janampatri of the prosecutrix to the police. She had Janampatri of the prosecutrix at her residence and she could produce the same if traceable.
12. It has been contended by Ld. defence counsel that the prosecutrix was a major on the date of incident as is proved through the bony age x ray report Ex. PW10/C. PW2 Sukhbiri (mother of the prosecutrix) stated in her cross examination that her FIR NO.43/10, PS Jyoti Nagar 20/40 daughter (prosecutrix) had been working with her for the last seven years prior to the date of incident. First time when her daughter accompanied her for work she was 15 years old. It has been contended by Ld. defence counsel that if the prosecutrix was 15 years of age when she went for her employment for the first time as stated by her mother and since she had been working for the last seven years, therefore the age of the prosecutrix must be something around 22 years. Pw2 Sukhbiri has categorically stated in her cross examination that she did not know the exact age of the prosecutrix when she was taken by accused to Kalkaji as she was illiterate. She accompanied her daughter to GTB hospital at the time of her medical examination and she had disclosed the age of her daughter at the time of her medical examination. She did not recall as to what age was disclosed by her. As per the MLC of the prosecutrix her age is reflected as 17 years. PW2 further stated that she did not know as to which date, month and year the prosecutrix was born. She did not remember the date when the prosecutrix disclosed about the incident to her. She could not say what month and year were going on currently. She knew about the date only. She had also stated that she told the police about the age FIR NO.43/10, PS Jyoti Nagar 21/40 of her daughter in her complaint. She did not remember what age was mentioned by her in the complaint. PW3 the prosecutrix stated that she did not remember the time since when she was going with her mother for doing the job prior to the date of incident. At that time she was 17 years old.
13. PW9 Deen Dayal father of the prosecutrix also stated that his daughter started working 23 years prior to the date of incident. His daughter had started working at the age of 14 years. He did not know what was her age. He had not given any birth certificate of his daughter to the IO.
14. I find substance in the contention of the defence counsel that the only document regarding the age proof of the prosecutrix on record is her bony age xray report. It is well known that the determination of age by ossification test is neither absolute nor exact. Variation of age in the ossification test can be upto 3 years in either way. The High Court of Bombay in the case of Balasaheb Vs. The State of Maharashtra, 1994, Cri. L. J. 3044, after referring to Modi's Medical Jurisprudence and Toxicology (First Edition) observed that the error in the case of age based on ossification test may be three years. Since the benefit of error has FIR NO.43/10, PS Jyoti Nagar 22/40 to go in favour of the accused and there can be an error in the periphery of three years. Therefore, I am satisfied that the prosecutrix was major (above 18 years of age) on the date of incident.
15. It has been contended by Ld. defence counsel that this is a false case lodged by the prosecutrix at the instance of her mother to falsely implicate the accused. That the complaint filed by the prosecutrix is a counter blast to complaint filed by father of the accused dated 25.9.08 which is mark DA. The mark DA was filed by father of the accused much before the complaint by mother of the prosecutrix. The complaint by Sh. Ram Charan (father of the accused) is regarding the fact that the prosecutrix and her sister and mother used to snatch money from the accused and would threaten to implicate them if it was resisted by him.
16. PW9 Deen Dayal denied the suggestion that his daughter Kamlesh and prosecutrix about 1 or 1½ year prior to the date of incident had picked the pocket of the accused and father of the accused had made a complaint in this regard. He did not know whether father of the accused had lodged a complaint in this regard with SSP, Ghaziabad on 25.9.08. He denied the suggestion that out of enmity he had lodged the present case.
FIR NO.43/10, PS Jyoti Nagar 23/40
17. PW3 the prosecutrix also denied the suggestion that she and her sister had snatched money from the accused two years prior ot the date of incident. She was not aware whether accused Bunty had informed his parents who in turn had informed her parents and also lodged a complaint with the police. She also denied the suggestion that local police from PS Loni had visited her house to make inquiries on that complaint. Since the original of the complaint has not been placed before the court it has not been proved as per law and much reliance cannot be placed upon the same by the defence.
18. Another material prosecution witness is PW9 Deen Dayal who stated that his daughter had informed him that she had met Bunty in the train who also used to travel in the train. She told him that Bunty had beaten her 23 times. Police had recorded her statement and he had signed the same. Since the witness was resiling from his earlier statement he was cross examined by the State. He stated that his daughter had told him that accused took him to some house in Kalkaji, mixed some intoxicating substance in the cold drink, administered the same to her and also raped her; that his daughter also told him that accused had prepared a blue film on his mobile and also threatened her. He also admitted that police had recorded FIR NO.43/10, PS Jyoti Nagar 24/40 his statement about the incident after many days.
19. It has been contended by Ld. defence counsel that the prosecution story is not trust worthy as the incident was reported to the police after about six months of the incident. The incident occurred on 27.3.09 while the first document which is on record in respect of the incident is a letter to DCP dated 07.9.09 Ex. PW3/B and only subsequently complaint u/s 200 Cr PC was filed on 19.9.09 Ex. PW1/B on the basis of which the present FIR was registered on 29.1.10.
20. It has further been contended by Ld. defence counsel that there is unexplained inordinate delay of more than six months in lodging the complaint about the occurrence which is fatal to the prosecution case. Delay in lodging the complaint reflects that it is a creature of after thought and is a counter blast to the complaint mark DA filed by the father of the accused on 25.2.08.
21. It has been argued by the defence that the FIR in this case is a result of concoction and deliberate false implication and cannot be relied upon. There are several inconsistencies in the statement of the prosecution witnesses. PW3 prosecutrix in her testimony before the court stated that one man was already present in the FIR NO.43/10, PS Jyoti Nagar 25/40 house at Kalkaji in which the accused had taken her. When they reached the house that man left the house and she did not know who he was. However, in her cross examination she stated that the house in which she was taken was built upto three storeys. There were no houses nearby and this was the only house. All the floors of the said house were unoccupied. The lock of the first floor of the house was opened by the accused. She had not told the Magistrate in her statement that she was taken to the third floor. She stated that the other person had accompanied the accused person from below the house and then left the house after the lock was opened by the accused. He was young but she could not tell his age. Though in her statement u/s 164 Cr PC Ex.PW3/A she has categorically stated that 'wahan oos ghar main ek aadmi pehle se maujood that ooska naam mujhe nahi pata, mere aane ke baad wo wahan se chala gaya'. On the one hand the man was already inside the house but on the other hand she has stated in her cross examination that the lock of the first floor was opened by the accused and the other person had accompanied the accused from below the house when accused opened the lock. In her examination in chief also she categorically stated that one man was already FIR NO.43/10, PS Jyoti Nagar 26/40 present in the house at Kalkaji in which the accused had taken her. When she reached the house that man left the house and she did not know who he was.
22. PW2 Sukhbiri stated in her cross examination that she could not tell about the place where the accused showed blue film to the prosecutrix. Accused did not show blue film in her presence to the prosecutrix. Accused had shown blue film to her at Bhaita railway station. Accused had made a telephone call to her daughter (prosecutrix) and had asked her to come to the railway station. When she reached there she was shown blue film. It was holiday. The blue film featuring her daughter was distributed by the accused to many people in the village. She could not tell their names. She did not know those people. She never met those people. Her daughter told her about the same. A question was put to her i.e 'On what basis you stated on the last date in your statement before the court that "uski galat tasvir kai logon ke pass thi''. She answered that this fact was told to her by her daughter. She admitted that she had not seen blue film of her daughter. Her daughter disclosed about the blue film to the IO in her statement.
23. PW3 (the prosecutrix) has stated in her cross examination that FIR NO.43/10, PS Jyoti Nagar 27/40 the accused had shown her blue film which he had made with her on 27.3.09 itself at canal near Loni Golchakkar. She never visited Loni Golchakkar subsequent to 27.3.09. This is totally incontradiction to the statement of the mother of the prosecutrix who stated that it was shown to her at Bhaita railway station. There is a different version regarding blue film by PW9 Deen Dayal (father of the prosecutrix) who stated that his elder daughter namely Kamlesh had seen the blue film at village Bhaita. He did know whether any other person in the village had seen blue film or not. The said blue film could not be recovered by the IO. In respect of blue film it has been stated by Pw10 ASI Suchitra Sharma that she tried to search for the mobile phone on which the blue film was made by the accused but mobile phone was not produced by the accused. Accused disclosed that the mobile phone fell into the water and it became unworkable and it was thrown away by him. In her cross examination PW10 stated that no person from the village had told that they had seen the blue film. Father of the prosecutrix namely Deen Dayal and her mother had not told them the name of any person who had seen the blue film. Deen Dayal had also not told them that his daughter Kamlesh had seen the blue film. From FIR NO.43/10, PS Jyoti Nagar 28/40 the testimony of these witnesses it is revealed that these are bare allegations and there is no truth in the testimony of the prosecution witnesses that any blue film was prepared by the accused or he distributed the same among the people in the village. Neither it could not be traced by the IO nor was it seen by any other person living in the village.
24. PW3 stated in her cross examination that she could not tell name of any person to whom the accused had distributed the blue film he had made with her at village Bhaita, Hajipur. She had not told the Magistrate in her statement that the accused had distributed the blue film in village Bhaita Hajipur but she had only told in her statement that the accused had threatened her that he would distribute the film in village Bhaita Hajipur. She had not told the Magistrate in her statement that the persons to whom the blue film was distributed by the accused had started blackmailing her. However, in her statement u/s 164 Cr PC Ex. PW3/A prosecutrix stated "oosne mujhe phir se phone kiya or mere mana kerne ke baad oosne blue film gaon main baant di, phir ladke gaon ke mujhe pareshaan kerne lage or blackmail kerne lage". (The accused called her up and despite the fact that she asked the accused not to FIR NO.43/10, PS Jyoti Nagar 29/40 distribute the blue film he distributed the same in the village. Thereafter the boys in the village started harassing her and blackmailing her.) Ld. defence counsel has submitted that the prosecutrix has given different versions at different times in her statement which shows that she is not a truthful witness and the Ld. Magistrate had no motive in recording such statement of the prosecutrix on his own. PW10 ASI Suchitra Sharma also stated in her cross examination that father of the prosecutrix namely Deen Dayal and her mother Sukhbiri Devi did not tell her name of any person who had seen the blue film. Deen Dayal had also not told her that his daughter Kamlesh had seen the blue film. Whereas PW9 Deen Dayal in his cross examination stated that his elder daughter namely Kamlesh had seen the blue film at village Bhaita. In view of the contradictions in the statement of the prosecution witnesses the prosecution has miserably failed to prove that any blue film was prepared by accused on the basis of which he pressurized/threatened the prosecutrix to have sexual intercourse with him and his friend Rahul.
25. Prosecutrix was medically examined vide Ex. PW5/A. She had given alleged history of rape by Bunty on 27.3.09 two times. From FIR NO.43/10, PS Jyoti Nagar 30/40 word 'two times' it is not clear whether she was raped twice on 27.3.09 or she was raped subsequent to 27.3.09. However, in her testimony before the court she has no where stated that she was raped twice on 27.3.09 or raped subsequently to 27.3.09. She has narrated only about the incident dated 27.3.09. She has nowhere stated in her testimony before the court that she was raped by the accused anywhere subsequent to 27.3.09 though she stated that accused had again taken her to Kalkaji but she did not remember the day or month when the accused had taken her subsequently. PW2 Sukhbiri (mother of the prosecutrix) stated in her cross examination by the State that it was correct that she had stated to the police that thereafter Bunty made several calls to her daughter and told her to accompany him to Kalkaji but her daughter refused every time. Therefore from the testimony of PW2 it is clear that only once the prosecutrix was taken to the house at Kalkaji where she was raped. PW3 the prosecutrix in her statement u/s 164 Cr PC Ex. PW3/A stated "Kuch dino ke baad oosne mujhe phone kiya or dhamki dekar nehar ke paas aane ko kaha, main dobara ooske sath gayi, ossi ghar main or oosne mere sath mujhe darakar balatkar kiya". Though in her statement u/s 164 Cr PC she stated FIR NO.43/10, PS Jyoti Nagar 31/40 about having raped twice. However, in her testimony before the court she stated about having been raped only once at Kalkaji. This is a very material omission and such an important fact (unfortunate incident) could not have been missed by the witness had it actually happened. This also gives a serious blow to the prosecution case.
26. There is also discrepancy in the statement of the prosecutrix as to how she went to meet the accused for the first time. In her cross examination PW2 Sukhbiri Devi stated that her daughter was on leave when she was called for the first time by the accused at Gol Chakkar Lal Mandir and she was suffering from headache at that time. PW3 prosecutrix in her cross examination stated that on 27.3.09 she received telephone call from the accused at about 9.30 am and at that time she was some distance away from Loni golchakkar. She also stated that she had not informed her mother that on 27.03.09 accused had called her and that she would not be going for her regular work. On 27.03.09 her mother had left for work before her and that is why she could not inform her. There are two versions, on the one hand her mother is saying that she was on a holiday (leave) and was having a headache whereas as per the statement of the proseuctrix she was already on her way at about FIR NO.43/10, PS Jyoti Nagar 32/40 9.30 PM when she received telephonic call from the accused for meeting him at Loni Golchakkar. In her examination in chief prosecutrix stated that she was called by Bunty at Loni Gol Chakkar on 27.3.09 at about 10.00 am whereas in her statement u/s 164 Cr PC Ex. PW3/A. The prosecutrix stated "phir 27.3.09 ko oosne mujhe mere mobile main phone kiya or kaha ki gokalpuri mandir ke paas 11 baje mujhe milna, main wahan mandir ke paas golchakkar per pahunchi". Therefore, from the testimony of PW3 it is not clear whether the accused called her at 10 'o clock or at 11.00 am as stated by her in her statement u/s 164 Cr PC Ex. PW 3/A.
27. The place of incident has also not been pointed out to the police. In her cross examination PW2 Sukhbiri stated that she had not accompanied the police to Kalkaji to see the place where the prosecutrix was allegedly raped. Even her daughter did not know about the place at Kalkaji exactly and therefore none of them accompanied the police to the place of occurrence. PW3 (prosecutrix) is not consistent about the house or the floor where she was raped. In her examination in chief she stated that the accused had taken her to the first floor (doosri majil) of the house FIR NO.43/10, PS Jyoti Nagar 33/40 at Kalkaji. Though the house in which she was taken was built up to three storeyes. There were no houses nearby and that was only house. The lock of the first floor of the house was opened by the accused and she had not told the Magistrate in her statement that she was taken to the 3rd floor. She also stated in her cross examination that police had told her to show the house at Kalkaji but she did not know the house at Kalkaji and therefore she did not go with them and she had not gone with the police even to search for the house at Kalkaji. Since she was not aware of location. In her statement u/s 164 Cr PC Ex. PW3/A the prosecutrix has categorically stated "ek makaan teesri manjil main Kalkaji main le gaya, Kalkaji mandir raaste main aaya tha, wahan oos ghar main ek aadmi pehle se maujood tha, ooska naam mujhe nahi pata". Therefore there is contradiction if the place where she was raped was located at first floor or third floor. In her statement u/s 164 Cr PC she stated that it was third floor while in her testimony before the court she stated that it was first floor.
28. It has been contended by Ld. defence counsel that the prosecutrix accompanied the accused on her own, she was a major and she was not forced by the accused to have sexual intercourse FIR NO.43/10, PS Jyoti Nagar 34/40 with him. In her cross examination PW3 the prosecutrix has stated that the accused had once told him to sit on the bike and he had taken her. She also admitted that the accused had not threatened her or shown her any weapon. Accused had taken her to Kalkaji via Wazirabad. She could not tell the number of motorcycle since she was illiterate. There was road on which people were coming and going. Accused brought cold drink for her and she was inside the floor. Therefore it is contended by Ld. defence counsel that from the testimony of the prosecutrix it is clear that she was never forced into the act of sexual intercourse. The accused just asked her once and she sat on the bike. She was taken in broad day light on the motorcycle. She never raised any hue and cry. She has categorically stated in her cross examination that she had not objected when the accused asked her to remove her clothes as she was in the need of employment. Whatever happened to her was when she was unconscious and she did not come to know. She had regained consciousness after about 1 hour. However, in her statement u/s 164 Cr PC the prosecutrix has stated "aadhi behoshi si chha gayi" which means that she was semi conscious. She also stated in her statement before the Ld. Magistrate u/s 164 Cr PC that FIR NO.43/10, PS Jyoti Nagar 35/40 "ooske kehne per maine apne ooper ke saare kapde ootaar diye"
which shows that on being asked she willfully took off her clothes and she was never threatened by the accused or pressurized by him to remove her clothes. It is contended by Ld. defence counsel that it was not that the prosecutrix was first given cold drink laced with some intoxicating substance then she was asked to remove her clothes. She has categorically stated that first she removed her clothes and thereafter she was served with cold drink by the accused and after drinking the same she got intoxicated and felt semi conscious. She further stated in her cross examination that whatever happened with her was when she was unconscious and she did not come to know. She had regained her consciousness after about one hour. Ld. defence counsel has relied upon 2011 (2) AAr 938 (SC) Krishan Kumar Malik Vs State of Haryana wherein it was observed that admittedly she had travelled certain distance in the Maruti van after her alleged abduction but she did not raise any alarm for help. This shows her conduct and behaviour during the whole process and render her evidence shaky and untrustworthy During the course of investigation the prosecutrix was taken to the area to point out the kothi, where FIR NO.43/10, PS Jyoti Nagar 36/40 she was said to have been subjected to rape, but she failed to identify the said kothi. It may be recalled that she was alleged to have been abducted during broad day light, thus her failure to identify the kothi, fully belies her case.
29. PW10 ASI Suchitra Sharma stated in her cross examination that she had gone to Kalkaji for the first time on 20.02.10. She had called Deen Dayal, Sukhbiri Devi and the prosecutrix at police station but they did not come in the police station. She had asked the victim in the police station if she could tell and locate the house at Kalkaji but she told that she could not locate the house and locality at Kalkaji. Last time she had also asked her if she could accompany to locate the house at Kalkaji but she told her she could not locate the house. Since no location was disclosed by the victim hence she did not go to the Kalkaji. Victim had also stated that the said house was located in the gali at second floor and not at any isolated place. Therefore the prosecutrix could not get the place located where she was raped even IO stated that she did not go there. Accused could not point out the place where he raped the prosecutrix and therefore on this count the prosecution case looses its credibility.
FIR NO.43/10, PS Jyoti Nagar 37/40
30. Ld. defence counsel has also placed reliance upon Mussauddin Ahmed Vs. State of Assam (2010) 1 Supreme Court Cases (Cri) 1445 wherein it was observed by the Hon'ble Supreme Court that the prosecutrix roaming in the city by rickshaw/buses along with appellant for a long time, going to the hotel without any protest, accompanying the appellant to the room, spending the whole night with him, coming out of the hotel after checking out from the hotel, without raising any hue or cry or informing anybody that appellant had misbehaved with her in any manner. Held, such conduct of prosecutrix makes prosecution case unbelievable. No reason indicated as to why in absence of any allegation of threat or coercion, prosecutrix had not raised any alarm or informed any person on the road. Further there were serious contradictions in her deposition in court and her statement recorded u/s 164 Cr PC. Material contradictions were also discernible regarding factual aspect of the incident. Ld. counsel for the accused has contended that this case is applicable in toto to the case in hand as the prosecutrix willfully accompanied the accused without telling her parents (she was more than 18 years of age, as per the ossification report). She willfully accompanied the accused without raising hue FIR NO.43/10, PS Jyoti Nagar 38/40 and cry. The testimony of the prosecutrix that the accused had threatened to kill her brother, her parents and her is a routine type of excuse. There are material contradictions in her statement before the court and in her statement u/s 164 Cr PC and therefore testimony of the prosecutrix cannot be believed. From the testimony of the prosecutrix who was above 18 years of age on the date of incident, it seems that she was a consenting party. She never raised any hue and cry at the time when rape was committed or subsequently. She did not even tell her parents immediately and only after a passage of six months she disclosed the same to her parents. Even in her deposition there are number of contradictions which further affects the credibility of her statement.
31. It is needless to say that the solitary evidence of the prosecutrix to bring home the charge of abduction and commission of rape by the accused does not inspire confidence and is not of sterling quality. In the case in hand, the evidence of the prosecutrix has several lacunaes which have already been projected and the same cannot be relied upon to hold the accused guilty of the aforesaid offences. Accordingly, accused Bunty @ Narender stands acquitted of the charges u/s 363/366/376/506 IPC. His bail bond cancelled.
FIR NO.43/10, PS Jyoti Nagar 39/40 Sureties discharged. File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated:18.2.2012 Addl. Sessions Judge03(NE):
KKD Court, Delhi.
FIR NO.43/10, PS Jyoti Nagar 40/40