Delhi District Court
State vs . Imran Ansari @ Sonu on 21 April, 2012
SC No. 46/10
FIR No. 142/10
PS: Najafgarh
State Vs. Imran Ansari @ Sonu
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 46/10
FIR No. : 142/10
Police Station : Najafgarh
Charged under Section : 366/342/376(2)(g) IPC r/w
Section 34 IPC
Received on assignment : 17.07.2010
Reserved for orders on : 31.03.2012
Judgment announced on : 21.04.2012
State Vs. Imran Ansari @ Sonu
S/o Shri Anish Ansari
R/o 111B, Ekta Enclave,
Peera Garhi, Delhi.
Jeetender @ Jeetu
S/o Mange Ram
R/o H.No.1547, Village Mundka
Nangloi, New Delhi.
J U D G E M E N T
1. The accused Imran Ansari @ Sonu is sent for trial for the offences punishable under Section 366/342/376(2)(g) IPC r/w Section 34 IPC.
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2. Brief facts, in the nutshell, are that on receipt of DD No. 32A, SI Surender Hudda alongwith Ct. Devender reached at Petrol Pump, Dichaun Depot where SI Umed Singh alongwith prosecutrix (name withheld as per dictum of Hon'ble Apex Court) met him and SI Umed Singh handed over the custody of prosecutrix to SI Surender Huda and SI Umed Singh disclosed that as per the complaint of prosecutrix, the incident had taken place within the jurisdiction of police station Najafgarh. Thereafter, SHO alongwith staff and complainant (prosecutrix) reached at the place of incident where it transpired that incident had taken place within the jurisdiction of police station Najafgarh. Till then, Lady Ct. Renu also joined the investigation. So SI Surender Huda immediately took action and got recorded the statement of prosecutrix wherein it had been disclosed that prosecutrix is the resident of abovesaid address and working as a labour and on 29.03.2010 she was going on foot near Chamunda Devi Mandir, behind Dichau Depot towards the house of her friend in connection with a job, for her as a labour in horticulture. Then at about 9.3010.00 a.m., a white coloured Car having black films stopped near the prosecutrix and the person sitting on the rear seat pulled her inside the car and gagged the mouth of prosecutrix and put the stereo of the car on high volume. The said persons kept on roaming on the road for two hours and behaved with her indecently. Thereafter, the accused persons took the SC No.46/10 Page 2 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu prosecutrix towards Bakkarwala road adjoining to ganda nala, there the prosecutrix was taken out of the car and accused persons also came out of the car. Thereafter, accused called some other persons by making a call and said persons came on two motorcycles and the one of the motorcycles was left at the spot. The person who had brought the motorcycle was named as Sonu. Thereafter, two persons came out of the car and took the prosecutrix on the motorcycle, left by other coaccused persons, towards fields adjoining to ganda nala where single room was built in the vacant field, where prosecutrix was raped by the accused persons. In the meantime, the other persons traveling in the car also reached there and they also committed rape on the prosecutrix. Thereafter, the prosecutrix was again made to sit on the motorcycle and was taken to Mundka where she neither could alight from the motorcycle nor she was allowed to raise her voice. One of the accused sitting on the motorcycle was saying that they shall throw the prosecutrix in front of train but, thereafter, the accused persons driving the motorcycle lost his balance on Budh Bazar road and prosecutrix fled away and entered into the office situated near the Budh Bazar where she was provided help by the inmates of shop. It is further stated that the persons who had committed rape, made allegation of theft of mobile on the prosecutrix and even torn her clothes. Thereafter, accused persons fled away from the scene. People present there, called the police and the prosecutrix was taken to Police Station Nangloi SC No.46/10 Page 3 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu from where prosecutrix was taken to Police Station Najafgarh and her statement was recorded by the police. Complainant/ prosecutrix prayed that a legal action be taken against the accused persons as per law.
3. Prosecutrix was also got medically examined at DDU hospital and after medical examination, undergarments and vaginal swab slide of the prosecutrix were taken and same were seized by the I.O. The offences under Section 365/376/34 IPC prima facie were made against the accused persons and SI Surender Huda handed over the further investigation to SI Rita Gera. During investigation, two used condoms and two wrappers of condom were sealed with the seal of 'SS', which were got recovered from the floor of room situated at Tubewell, deposited in Malkhana. Site plan was prepared at the instance of prosecutrix.
4. Accused Imran Ansari @ Sonu was arrested and he made his disclosure statement. In the disclosure statement, accused Imran Ansari @ Sonu has stated that prosecutrix had lodged a complaint against his wife at police station, Nangloi which prosecutrix had not withdrawn so the accused wanted to teach a lesson to the prosecutrix. Therefore accused Imran Ansari @ Sonu asked for the help of his friends/coaccused Jitender @ Jitu. On 29.03.2010, Sanjay and other friends of Sanjay came in the car of SC No.46/10 Page 4 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu Sanjay and accused Jittu was on his motorcycle. All the abovesaid persons met accused Imran Ansari at Nangloi and Jittu left his motorcycle there. Thereafter, accused Imran Ansari and Jittu accompanied Sanjay and his friends in his car and reached at Dichaun Depot. After some time, they saw prosecutrix coming out of one street and accused persons forcibly pulled the prosecutrix inside the car and took her towards Bakarwala road adjoining to ganda nala. Accused Sanjay, Jittu and other friend of Sanjay alighted from the car and when one of the friend of Sanjay was committing rape with the prosecutrix, accused Imran Ansari had gagged the mouth of prosecutrix so that she could not raise alarm.
5. Thereafter, Jittu asked someone to bring his motorcycle. Sanjay had made prosecutrix to sit on the rear seat of motorcycle and accused Imran Ansari also sat on the motorcycle and caught hold the prosecutrix tightly. Sanjay instructed Jittu and other two friends to join them in the room situated in field. Accused Imran Ansari and Sanjay alongwith the prosecutrix reached the room situated in field and in the meantime Jittu and other friends of Sanjay also reached there. Imran Ansari and the friend of Sanjay who had committed rape with the prosecutrix came out of the room and Sanjay, Jittu and another friend of Sanjay committed rape with the prosecutrix one by one. When Imran Ansari and Sanjay were taking prosecutrix to Mundka, they lost baloance of SC No.46/10 Page 5 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu the motorcycle at the Budh Bazar Road and due to which they fell down from the motorcycle and the moment prosecutrix fell down from the motorcycle, she ran towards the shops and entered into one shop where accused persons apprehended her and torn her clothes.
6. After supplying copies to the accused as per law, case was committed to the court of sessions.
7. After due deliberation, charge under Section 366/342/376(2)(g)/34 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
8. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 20 witnesses in all in support of its case.
PW1 HC Giriraj.
PW2 W.Ct. Renu Yadav.
PW3 Prosecutrix (name withheld as per dictum of
Hon'ble Apex Court)
PW4 Ct. Devender Kumar.
PW5 Dr. Khalid Ali Khan, Senior Resident, DDU
Hospital.
PW6 Ct. Satya Prakash.
PW7 Ct. Sanjay Kumar
SC No.46/10 Page 6 of 34
SC No. 46/10
FIR No. 142/10
PS: Najafgarh
State Vs. Imran Ansari @ Sonu
PW8 Shri Vishal Gogne, Ld. Metropolitan Magistrate,
Dwarka Courts, New Delhi.
PW9 Dr. Nakul Avasthy, Senior Resident, Obs. &
Gynae, DDU Hospital.
PW10 Ct. Ravinder.
PW11 Ct. Vikas
PW12 Dr. B.B. Sinha, C.M.O., RTRM Hospital. PW13 Shri Sumit Dass, Ld. Metropolitan Magistrate. PW14 SI Surender Singh.
PW15 Shri Jagvinder PW16 Ct. Pradeep.
PW17 HC Rakesh Kumar.
PW18 HC Vedpal PW19 SI Ram Niwas PW20 Insp. Rita Gera
9. On completion of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. wherein he controverted the entire evidence as false and fabricated and claimed that they have been falsely implicated in this case by the complainant. Accused persons did not lead any defence evidence, hence final arguments were advanced.
10. I have gone through the entire records and carefully considered the matter.
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11. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove the case.
12. PW1 HC Giriraj was the duty officer who had registered the Kaymi DD No. 5A on the basis of rukka brought by Ct. Devender and gave the rukka to computer room on the basis of which, computerized FIR was recorded. He proved the computerized copy of FIR Ex.PW1/A. He made the endorsement on rukka and proved the same vide Ex.PW1/B.
13. PW2 WCt. Renu Yadav deposed that she had taken the prosecutrix to DDU hospital for her medical examination. She stated that after the medical examination of the prosecutrix, doctor handed over to her two/three sealed parcels which she handed over to SI Surender Huda who seized the same vide seizure memo Ex.PW2/A.
14. Prosecutrix entered into the witness box as PW3. She deposed in her statement that on the 29th day of some month at about 9.30 a.m., she was going for work to field and on the way she though of going to the temple so she started going towards Chamunda Devi temple and when she was on the way to temple, a Maruti car with tinted glasses came from her back side and passed near from her and thereafter, the said car came from the opposite side and prosecutrix saw two persons including accused SC No.46/10 Page 8 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu Imran Ansari @ Sonu sitting on the front seat and two other persons sitting on the back side. She further deposed that one tall person opened the back door of the car and pulled her inside the slow moving car and she started crying, accused person switched on the stereo of the car. Prosecutrix further deposed that accused persons had covered her mouth, even slapped her and kept on moving their car on the road. She further deposed that accused persons were consuming liquor in the car and behaving indecently with her. Prosecutrix further deposed that accused persons took the car towards big flats on Bakarwala road and stopped the car there and the bonnet of the car was kept open so that nobody could see inside the car from front. Prosecutrix further deposed that accused Imran Ansari @ Sonu forcibly removed her clothes in the car and other two persons got down from the car and one tall person had raped her inside the car. She further deposed that the persons who were standing outside the car, called somebody over phone and asked for two motorcycles which were brought by two other persons. Prosecutrix gave the description of one of those two persons as of round face and fair complexion, stout built and that of others as short height and thin built. Prosecutrix identified the other person as accused Jitender @ Jittu. Prosecutrix further deposed that accused Jitender forced her to get out from the car and forced her to sit on motorcycle which was being driven by accused Jitender and the person, who had raped her, was sitting behind her.
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15. Prosecutrix further deposed that both the accused persons took her to the forest area near drain and on the way, the tall person had hold her from behind. She further deposed that many persons were present there in the field as it was lunch time and the said tall person had picked up one spade of the labourers to kill the prosecutrix. Prosecutrix further deposed that both the accused persons took her to plot of one ACP where three rooms were built and in one of the room buffaloe was tied and in the middle room, mattresses were there and accused persons forcibly dragged her in the said room as she was not willing to go there. Prosecutrix further deposed that she got scratches on her arms, back and neck. Prosecutrix further deposed that both the accused persons had forcibly raped her after threatening her with the spade. Prosecutrix further deposed that in the meantime, two other persons i.e. one with round face and thin built (accused Jitender @ Jitu) also reached there on the motorcycle and they also raped her. Prosecutrix further deposed that 57 persons had gathered there and they took spade from the hand of aggressor and told them that they would not allow any illegal activity there to be continued and asked the aggressor to take the prosecutrix somewhere else. Prosecutrix further deposed that one of the persons who had raped her, named as Lakra, had told those persons that prosecutrix had stolen their mobile.
16. Prosecutrix further deposed that she was made to sit on SC No.46/10 Page 10 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu the motorcycle which was being driven by accused Jitender @ Jitu and the other person, named Lakra, was sitting behind her and she was sitting in between those persons. Prosecutrix further deposed that the person who was driving the motorcycle was named as Rahul. It was further deposed by the prosecutrix that then she was taken to near Fatak, Budh Bazar Road, Mundka on the motorcycle and she was not allowed to have water. Prosecutrix further deposed that accused persons had asked her to keep her face covered and when they reached near fatak, the motorcycle suddenly fall down and prosecutrix managed to enter into a shop of photographer which was situated in the market and 67 persons were sitting there. Prosecutrix further deposed that she prayed to said 67 persons to rescue her but none of them came forward and in the meantime, both the accused persons reached there and threatened those persons not to call the police and also told them that she (prosecutrix) had stolen their mobile. Prosecutrix further deposed that the person, named Lakra, had torn all her clothes and even pressed her neck and the other person (accused Jitender @ Jitu) had caught hold her hand. Prosecutrix further deposed that one lady covered her with one sheet and someone called the police. Prosecutrix further deposed that then she was taken to police station Nangloi and from there she was taken to police station Najafgarh. Prosecutrix further deposed that she was then taken to DDU hospital where she was medically examined. Prosecutrix also proved her statement vide SC No.46/10 Page 11 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu Ex.PW3/A. Prosecutrix further deposed that on the same day, she alongwith the police went to the house of accused Imran Ansari @ Sonu where he was arrested by the police. She further deposed that police also prepared some documents there, but as she is illiterate, she could not tell the details of those documents. Prosecutrix further prover the personal search memo of accused Imran Ansari @ Sonu vide Ex.PW3/B.
17. PW4 Ct. Devender Kumar deposed that on 29.03.2010, on receipt of DD No. 32A, he alongwith SI Surender Huda went to Dichau Depot, near Petrol Pump, Najafgarh where they met SI Umed Singh who produced the prosecutrix before SI Surender Huda and SI Surender Huda recorded the statement of prosecutrix. PW4 further deposed that thereafter, they went to village Baprola alongwith the complainant/prosecutrix and found that there were two flats in the field. PW4 further deposed that in the meantime SHO and Lady Ct. Renu came there and prosecutrix was sent to hospital through Lady Ct. Renu and he was left there to guard the spot. PW4 further deposed that thereafter, he was sent alongwith rukka to police station for registration of FIR and he got the case registered. PW4 further deposed that after the registration of FIR, he alongwith SI Rita and original rukka and copy of FIR reached there at the spot and from there they all alongwith prosecutrix went to House no. 11B, Ekta Colony, Peeragarhi. PW4 further deposed that prosecutrix told SC No.46/10 Page 12 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu the I.O. that accused Sonu was residing there but the house was found locked and they all returned to police staion. PW4 further deposed that in the police station prosecutrix told him that she wanted to go to her home and when he and the prosecutrix were crossing the road, prosecutrix pointed out towards accused Sonu that he was the same person who had committed rape on her alongwith his associates and thereafter, the accused Sonu was apprehended. PW4 further deposed that during interrogation, accused Sonu disclosed her name as Imran Ansari. He further deposed that thereafter accused was brought in the police station and was arrested vide memo, his personal search was also taken vide memo and accused also made his disclosure statement which he proved the same vide Ex.PW4/A. PW4 further deposed that when they reached the spot, they recovered two used condoms which were taken into possession after converting into sealed parcel vide seizure memo Ex.PW4/B.
18. PW5 Dr. Khalid Ali Khan deposed that on 29.03.2010, prosecutrix was brought to the hospital for medical examination with alleged history of physical assault. PW5 deposed that he examined the patient (prosecutrix) vide MLC No. 5721 (Ex.PW5/A) and thereafter, referred her to gynae department for detailed examination.
19. PW6 Ct. Satya Prakash deposed that on 03.04.2010 he SC No.46/10 Page 13 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu had joined the investigation alongwith I.O. and that after the medical examination of accused Jitender, I.O. had seized two sealed parcels from the doctor alongwith sample seal and same were taken into possession vide seizure memo Ex.PW6/A.
20. PW7 Ct. Sanjay Kumar deposed that on 09.04.2010 he had joined the investigation and he alongwith I.O., Ct. Vikas and accused Jitender went to Mundka. PW7 further deposed that accused Jitender told the I.O. that Sanjay could be found in Dahiya Vatika and they went to Dahiya Vatika which was also known as Manoj @ Mati ki Vatika but nobody was found in that Vatika. PW7 further deposed that they entered into the Vatika and found one Swift car parked bearing registration no. HR13D5589 which was pointed out by the accused Jitender to be the same vehicle which was used for commission of offence by him and his associates. He proved that the said car vide seizure memo Ex.PW7A.
21. PW8 Shri Vishal Gogne, Ld. Metropolitan Magistrate, has proved on record the proceedings regarding recording of statement of prosecutrix/ complainant under Section 164 Cr.P.C. vide Ex.PW8/A1 containing the statement of prosecutrix under Section 164 Cr.P.C. ( already proved by the prosecutrix vide Ex.PW3/C). The certificate regarding correctness of proceedings is proved as Ex.PW8/A. The application of the I.O. for recording the statement of SC No.46/10 Page 14 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu prosecutrix/ complainant under Section 164 Cr.P.C. is proved as Ex.PW8/B and application for supplying the copy of statement under Section 164 Cr.P.C. is proved as Ex.PW8/C. The order for sending the proceedings to the concerned court was proved vide Ex.PW8/D.
22. PW9 Dr. Nakul Avasthy deposed that on 29.03.2010 prosecutrix was referred to Gynae Department for her medical examination with alleged history of sexual assault and he examined her vide report Ex.PW9/A on MLC (Ex.PW5/A). PW9 further deposed that after medical examination of prosecutrix, he prepared two slides of vaginal swab and handed over the same to the police duly sealed. PW9 further deposed that undergarments of the patient (prosecutrix) were also handed over to the I.O. duly sealed. He further deposed that on local examination, no fresh external injury marks were seen.
23. PW10 Ct. Ravinder deposed that on 01.04.2010, he alongwith the I.O. and accused Imran Ansari went to the drain between village Baprola and Bakarwala and from there accused Imran Ansari led them to the spot and pointed out the place where he alongwith his associates had committed rape with the prosecutrix. The pointing out memo was proved vide Ex.PW10/A. SC No.46/10 Page 15 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu
24. PW11 Ct. Vikas deposed on the same line as deposed by PW7.
25. PW12 Dr. B.B. Sinha had examined the accused Jitender vide MLC (Ex.PW12/A).
26. PW13 Shri Sumit Dass, Ld. Metropolitan Magistrate has proved on record the carbon copy of application for conducting TIP of accused Jitender @ Jittu moved by the I.O. as Ex.PW13/A. TIP proceedings of accused Jitender @ Jittu was proved as Ex.PW13/B vide which the accused Jitender @ Jittu had refused to participate in the TIP proceedings even after the warning that an adverse inference could be drawn against him. The certificate regarding TIP proceedings being true and correct was proved as Ex.PW13/C. Application of I.O. for supplying the copy of TIP Proceedings was proved as Ex.PW13/D and the copies were supplied to the I.O. vide endorsement Ex.PW13/E.
27. PW14 SI Surender Singh deposed that on receipt of DD No. 32A, he alongwith Ct. Devender went to Petrol Pump Dichau Depot, Najafgarh where SI Umed Singh was already present and he handed over the prosecutrix to him stating that the place of occurrence falls under the jurisdiction of police station Najafgarh. PW14 further deposed that thereafter, he SC No.46/10 Page 16 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu alongwith the prosecutrix and Ct. Devender went to the spot which was a single storey structure consisting of 23 rooms situated in the fields of village Baprola where SHO, PS Najafgahr alongwith other staff had also reached. He further deposed that two used condoms and two wrappers of condoms were found lying there which were seized vide memo. PW14 further deposed that thereafter, he alongwith the prosecutrix and Ct. Renu went to DDU hospital where medical examination of the prosecutrix was got conducted. He further deposed that after the medical examination of prosecutrix, doctor handed over him two sealed parcels alongwith sample seal containing undergarments and vaginal slides of the prosecutrix through Ct. Renu which were seized vide seizure memo. PW14 further deposed that thereafter, he alongwith prosecutrix and Ct. Renu returned to the spot where statement of prosecutrix was recorded and he sent Ct. Devender to the police station alongwith rukka to get the case registered.
28. PW15 Shri Jagvinder was the registered owner of Maruti Swift car bearing registration no. HR13D5589 and he deposed that he did not know any Sanjay and that he did not give his car to anybody for using the same in MarchApril 2010. He further deposed that he had got his car released on superdari vide superdginama Ex.PW15/A. SC No.46/10 Page 17 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu
29. PW16 Ct. Pradeep deposed that on 26.06.2010, I.O. of the present case had inquired from him about the involvement of accused Jitender and one Sanjay @ Amardeep in criminal cases and on checking his record, he informed the I.O. that accused Jitender @ Jittu was involved in one case FIR registered at police station Rai, Distt. Sonepat, and said Sanjay @ Amardeep was also involved in seven cases.
30. PW17 HC Rakesh Kumar deposed that on 02.04.2010, he joined the investigation alongwith HC Baljeet, Ct. Manoj and SI Ram Niwas for searching the accused Jitender @ Jittu and went to village Mundka. He further deposed that at Ranikhera Road, at the pointing out of secret informer, accused Jitender @ Jittu was apprehended and was taken to the police station.
31. PW18 HC Ved Pal Singh (driver of police gypsy bearing no. DL1CH6072) and PW19 SI Ram Niwas deposed on the same lines as deposed by PW17.
32. PW20 Insp. Rita Gera deposed that on 29.03.2010, after registration of the case, the investigation was marked to her alongwith rukka and copy of FIR. PW20 further deposed that she alongwith Ct. Devender went to the spot i.e. near Petrol Pump Bus Depot, Najafgarh where she met SI Surender Huda, Lady Ct. Renu SC No.46/10 Page 18 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu and prosecutrix and SI Surender Huda narrated the facts of this case to her. She further deposed that, thereafter, SI Surender Huda handed over to her the exhibits of this case alongwith their respective seizure memos and thereafter, she alongwith the prosecutrix went to the spot where prosecutrix pointed out towards the room where accused persons had committed rape with her and she prepared the site plan accordingly vide Ex.PW20/A and thereafter, returned to the police station and deposited the exhibits with MHC(M). PW20 further deposed that thereafter, she enquired from the prosecutrix about the address of accused Imran Ansari @ Sonu and accordingly went alongwith the prosecutrix, Ct. Devender and SI Surender Huda at House no. 111, Ekta Enclave, Peeragarhi but the said house was found locked. PW20 further deposed that prosecutrix wanted to meet her children, therefore, she alongwith prosecutrix and Ct. Devender left the police station and when they were coming out of the police station, prosecutrix pointed out towards the accused Imran Ansari, standing on the other side of the road and she apprehended him at the instance of prosecutrix. PW20 further deposed that accused Imran Ansari was then interrogated and was arrested vide arrest memo, his personal search was taken vide memo and accused made his disclosure statement vide memo and thereafter, medical examination of accused was got conducted and also got recorded the statement of prosecutrix under Section 164 Cr.P.C. She further deposed that in the police SC No.46/10 Page 19 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu station SI Ram Niwas, handed over the custody of accused Jitender and she after interrogating the accused Jitender, arrested him vide arrest memo Ex.PW20/B and took his personal search vide memo Ex.PW20/C and recorded the disclosure statement of accused Jitende vide memo Ex.PW20/D. She further deposed that thereafter, accused Jitender took them to the spot and she prepare the pointing out memo vide Ex.PW20/E. PW20 further proved on record the FSL results vide Ex.PW20/F. She deposed that after completion of investigation, she prepared the charge sheet and filed in the Court.
33. I have heard Mr. Alok Saxena, Ld. Addl. P.P. for the State and Ld. Counsel for the accused persons. Ld. Add. PP for the State has contended that the prosecutrix had supported the case of the prosecution including the other police official witnesses and the statement of the prosecutrix is consistent through out her testimony that accused persons are the perpetrator of the crime against her so the accused be convicted accordingly.
34. On the other hand, ld. defence counsel had stated that prosecutrix had made three inconsistent statements under section 161 Cr.PC, 164 Cr.PC and in her deposition in the court. Such inconsistent statements of the prosecutrix cannot be relied upon for holding the accused persons guilty of the offences. It is further contended that it is a cardinal rule of evidence that a SC No.46/10 Page 20 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu person cannot be held guilty on mere probabilities. Evidence of witness or circumstances surrounding the incident should in a definite tendency and unerringly point towards the guilt of the accused. In this regard he had relied upon Dr. Jhamman Lal Vs. State 2011(4) JCC 2932. It is further submitted that the deposition of the prosecutrix is full of material contradictions and the prosecution has also failed to prove its case beyond reasonable doubt and accused is entitled for acquittal by giving the benefit of doubt. In this regard he had relied upon Avadh Bihari Vs. The State (NCT of Delhi) 2010 (4) JCC 2918 . It has been further contended that the testimony of the prosecutrix cannot be taken as gospel truth. Although such testimony must be given primary consideration. But in the case of rape, the prosecution has to prove its case beyond reasonable doubt and there can be no presumption that prosecutrix will tell all story truthfully. In this regard he had relied upon Abbas Ahmad Choudhary Vs. State of Assam 2010 CRI.L.J.2060 .
35. Prosecutrix in the present case is admittedly major, married and aged about 34 years. While recording her statement under section 161 Cr.PC (Ex. PW3/A) she had stated that on 29.03.2010, she was going on foot to SC No.46/10 Page 21 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu Chamunda Mandir to met her friend regarding her employment as a labourer then at about 10:00 am, one white coloured car stopped and persons sitting on the rear seat pulled her inside the car and not allowed her to raise alarm. Accused persons kept on roaming for two hours and behaved indecently with the prosecutrix. Thereafter prosecutrix was brought to Bakkarwala road near big flats adjoining ganda nala, and accused asked her to alight from the car and all accused alighted from the car. The two persons who were standing outside the car, telephoned someone and called two motorcycles which were brought by other accused persons name of one such persons was disclosed as Sonu. The prosecutrix had further stated that two accused who were in the car took the prosecutrix in the field on the motorcycle in a room which was situated in the forest and committed rape upon her. Thereafter, the other two persons who were present in the car, came there and they also raped her. Thereafter they brought the prosecutrix by making her to sit on the motorcycle and brought her towards Mundka and near Wednesday Market (Budh Bazar), the accused riding on said motorcycle lost balance and fell down, the prosecutrix entered into shop.
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36. But while making statement under section 164 Cr.PC the prosecutrix has given a totally different version. The prosecutrix while recording her statement under section 164 Cr.PC stated that a white coloured car stopped and there were four persons in the car and two accused persons were sitting on the rear seat, pulled her inside the car and raised the volume of the stereo and said accused brought her to Bakkarwala Road near ganda nala and two persons alighted from the front seat and the two persons on the rear side caught hold of the prosecutrix and and one of the accused persons sitting on the rear seat was Sonu and Sonu had caught hold the hands and feet of the prosecutrix and other person sitting on the rear seat had committed rape upon her. Thereafter she had further stated that accused persons standing outside the said car made a call and two persons came there on two motorcycles and thereafter the prosecutrix was made to sit on the one motorcycle left there by motorcycles borne persons. One person was driving the said motorcycle and one was sitting in the rear and prosecutrix was made to sit in between the two accused and she was brought in the fields near ganda nala where was one room and one pond in the jungle area. There three more persons had committed rape upon the prosecutrix.
SC No.46/10 Page 23 of 34 SC No. 46/10 FIR No. 142/10PS: Najafgarh State Vs. Imran Ansari @ Sonu Therefore accused Sonu brought one spade. Thereafter owner of the spade came and he took away the spade. Accused Sonu alleged that prosecutrix had stolen her mobile and ten persons gathered there. Accused Sonu brought the prosecutrix towards Mundaka. One person was sitting behind the prosecutrix in the rear seat. The motorcycle rider lost balance in Wednesday market on account of the fact that prosecutrix started freeing herself from the clutches of the accused.
37. While deposing in the court, the prosecutrix had stated that she was going for work in fields on 29th day of the month and she thought that she should go to temple on the way and when she was going towards the Chamunda temple, one Maruti car passed near her. Thereafter the said car returned back from the opposite side, two persons including accused Sonu were sitting on the front seats and two persons were sitting on the back seats pulled the prosecutrix inside the car and they kept the car moving on the road. They are stated to behave indencently with the prosecutrix and took the car towards Bakarwala road near big flats and stopped the car there. The bonette of the car was opened so no one could see inside the car from front side. Accused Sonu forcibly SC No.46/10 Page 24 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu removed her clothes and a tall person raped her in the car and other two persons sitting in the front seat got down from the car and the said persons called two motorcycles which were brought by other accused persons and one of them was having round face, fair complexion and stout built and other accused was of short height and then built who has been identified as accused Jitender. Accused Jitender stated to have forced the prosecutrix to get out from the car and two other accused persons went away with the said car and prosecutrix was stated to have made to sit on the motorcycle, driven by accused Jitender and the said tall accused person was sitting behind the prosecutrix on rear seat. Thereafter prosecutrix was taken towards the forest area near the drain. The tall person picked up the spade of the labourers to kill the prosecutrix. Thereafter accused persons took the prosecutrix in the plot of one ACP where three rooms were built and one buffalo was tied there in one room and in the middle room, mattresses were there. The prosecutrix was dragged inside the room and she got scratched on her arms, neck and back and she was forcibly raped. In the meantime, two other persons, one with round face and other is thin built came there on the motorcycle and said two persons who had come on the motorcycle had also raped her.
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38. During cross examination, the prosecutrix had admitted that in her statement under section 161 Cr.PC (Ex. PW3/A), she has not got recorded that she was going towards the field on 29th day of the month. She had further admitted that she has not got recorded in her statement Ex.PW3/A that car returned from the opposite side and two persons were sitting on the front seats. The prosecutrix further admitted in her cross examination that she had not stated in Ex.PW3/A that two other boys were sitting on the back side of the car and tall person had opened the door of the car and the accused were consuming the liquor in the car and the bonette of the car was opened so that no one could see inside the car from front and accused Sonu forcibly removed her clothes in the car and the two persons got down from the car and tall person raped her in the car. She has further admitted in cross that she has not stated that two persons who came on the motorcycle, one was having a round face, well built and other person was of short height and thin built and accused Jitender forced her to get out from the car and two persons went away from there with the car and the prosecutrix was made to sit on the motorcycle driven by accused Jitender and tall person was sitting on the rear seat SC No.46/10 Page 26 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu who had raped her in the car. She had further admitted in the cross that she had not disclosed to the police that many labourer persons were there as it was lunch time and tall person picked up a spade to kill her and they brought her to the place where one buffalo was tied in a room and in another room there were mattresses where she was raped, after threatening her with the spade and thereafter two persons i.e round face persons and thin built person also reached there on the motorcycle. Prosecutrix had further admitted that she had not disclosed to the police in her statement under section 161 Cr.PC (Ex.PW3/A) that 57 persons gathered there and took the spade from the hand of aggressors and told them that they would not allow any illegal activity there. She had further stated that she had not told to the police that one person who raped her namely Lakra told to 57 persons that prosecutrix had stolen their mobile. The prosecutrix had further admitted in her cross that she had not told to the police that the motorcycle was driven by Jitender and Lakra was sitting behind her. Prosecutrix had denied the suggestion that accused Imran Ansari was not arrested by the police from his house.
39. A conjoint reading of three statements of the SC No.46/10 Page 27 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu prosecutrix, it has transpired that prosecutrix had not only improved her version but all her three statements under section 161 Cr.PC, 164 Cr.PC as well as her deposition in the court are full of material contradictions. The prosecustrix not only improved version of her earlier statements, but all the three statements are inconsistent through out. In her statement under section 161 Cr.PC also, she had not stated that accused Sonu was present in the car alongwith three other accused and she was pulled inside the car by a tall person nor she had disclosed that accused Sonu had put off her clothes and tall person had raped her inside the car. Prosecutrix had stated that accused Sonu had driven the motorcycle towards the room in jungle area but in her statement under section 164 Cr.PC, she had stated that accused Sonu was present in the car and accused Sonu put off her clothes and other two persons sitting in the car got down from the car and other accused persons raped her. In her statement under section 161 Cr.PC, she had stated that two persons who were sitting in the car had brought her towards the field by making her to sit in between two seats in the motorcycle whereas in the statement under section 164 Cr.PC, she had stated that accused Sonu was sitting in the rear seat of the motorcycle when she had been brought SC No.46/10 Page 28 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu towards the fields. While deposing in the court, she had stated that accused Sonu was present in the car on the front seat and she further improved her version that accused were consuming liquor inside the car. She had further improved her version that accused Jitender was driving the motorcycle and tall person who had raped her in the car was sitting in the rear seat of the car, whereas in her statement under section 164 Cr.PC, accused Sonu was stated to be sitting on the rear seat of the motorcycle when she was brought from the car towards the fields. The prosecutrix had further improved her version that one of the persons who had raped her is named Lakra, and said Lakra had disclosed to those 57 persons gathered on the spot that prosecutrix had stolen her mobile, whereas in her statement under section 164 Cr.PC, accused Sonu is stated to have disclosed to 57 persons who had gathered at the spot that prosecutrix had stolen his mobile. So far as identification of the place of incident and number of persons who raped the prosecutrix, prosecutrix had stated in her statement under section 161 Cr.PC that there was a room in the field where she was raped whereas in her statement under section 164 Cr.PC, she had stated that the place was a jungle area where there was a room and a pond. Prosecutrix had further stated that she was being SC No.46/10 Page 29 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu raped by three persons but while deposing in court she had deposed that she was raped in the room of ACP where three rooms were there and she was raped in middle room where mattresses were lying. Similarly, in her statement under section 161 Cr.PC, she has stated that in car, she was not raped but in her statement under section 164 Cr.PC, she had stated that she was raped in the car where accused Sonu put off her clothes, but while deposing in court, she has stated that she was raped by two persons who brought her on motorcycle in the room situated in the fields and another two persons who came there on motorcycles also raped her.
40. The prosecutrix had stated that she had suffered some injuries in her hand when she had brought to the room but doctor who had prepared MLC Ex.PW5/A had found no fresh external injury on the body of the prosecutrix. Even the FSL report had not proved on record, but even it is presumed that semen was found on the samples taken from the body of the prosecutrix but the prosecutrix was a married lady and the presence of semen only proved that there was a sexual intercourse with the prosecutrix but it cannot be inferred that prosecutrix was subjected to rape.
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41. It is a settled law that conviction in the offence under Section 376 IPC can be based on the sole testimony of the witness as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused. In the State of Himachal Pradesh Vs. Gian Chand 2001(2) JCC 92:
(2001) 6 SCC 71, it was held that if the Court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could have been examined but were not examined."
42. It is also settled law that evidence of prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted even within the story is improbable and belies logic would be doing violence to the very principles which goes appreciation of evidence in a criminal matter and some supporting evidence was essential for prosecution case in view of falacious prosecution version.
43. It is true that the prosecutrix in a rape case cannot be SC No.46/10 Page 31 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu considered as an accomplice and there is no rule of law that her evidence cannot be considered without corroboration. But natural question is whether the solitary testimony of the prosecutrix inspires confidence, appears probable and under the circumstances can be considered as worth of credit even without corroboration.
44. In Madho Ram and another V The State of U.P., AIR 1973 SC 469 it has been observed:
The prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the SC No.46/10 Page 32 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
45. It was held in case Bharwada Bhoginbhai Hirjibhai V State of Gujrat, AIR 1983 SC 753 (1) as under : Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
46. As such the three statements of the prosecutrix are full of material contradictions pertaining to the manner in which the prosecutrix was subjected to rape, number of accused who committed rape upon her as well as place of incident. In addition to it, all the three statements of the prosecutrix under section 161 Cr.PC, 164 Cr.PC and during deposition in court are inconsistent SC No.46/10 Page 33 of 34 SC No. 46/10 FIR No. 142/10 PS: Najafgarh State Vs. Imran Ansari @ Sonu through out.
43. From the above discussions, I am of the opinion that statement of the prosecutrix is inconsistent through out and prosecutrix has failed to prove it case beyond reasonable doubt. So the accused are hereby acquitted of all the charges under section 366/342/376(2)(g)/34 IPC.
47. Accused Imran Ansari @ Sonu and Jitender @ Jittu, however, directed to furnish fresh bail bond in sum of Rs. 20,000/ with one surety in the like amount in terms of Section 437A Cr.P.C undertaking to appear if called, before Appellate Court as mandated therein. Personal bond and surety bond are to be filed and be accepted for a period of six months as provided under Section 437A Cr.P.C.
48. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya) on the 21st Day of April 2012 ASJ/ Dwarka Courts New Delhi SC No.46/10 Page 34 of 34