Delhi District Court
State vs . 1. Prashant Sablani, on 28 February, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.63/13.
Unique Case ID No. 02405R0305432012.
State Vs. 1. Prashant Sablani,
S/o Sh. Prakash Sablani,
R/o A-2/140, Paschim Vihar,
New Delhi.
2. Milind Kapoor
S/o Late Sh. Atul Kapoor,
R/o C-2D/66B, Janakpuri,
New Delhi.
Date of Institution : 25.7.2012.
FIR No.183 dated 15.6.2012.
U/s. 328/323/354/365/34 IPC.
P.S. Vasant Vihar.
Date of reserving judgment/Order : 11.2.2015.
Date of pronouncement : 28.2.2015.
JUDGMENT
1. The two accused Prashant Sablani and Milind had been chargesheeted by the prosecution for the offences u/s. 328/354/365/356/376(2)(g)/377/34 IPC.
2. The FIR in this case had been registered on 15.6.2012 at 6.45 a.m. on the following statement of the prosecutrix namely 'D' (real name withheld in order to conceal her identity) :
SC No.63/13. Page 1 of 82"............... Today I had come to Priya Cinema alongwith my friend Manisha to watch a movie where Prashant, who is my classmate and known to me, met us. Manisha said that she has to go to meet a friend and therefore, left in an auto rickshaw. I told Prashant that I have to go home as some guests have arrived. However, Prashant told me not to go in auto rickshaw as it is intense heat and offered to drop me in his car. He further said that he would fetch a coke and brought coke for me which I consumed. It happened at about 2 p.m. in Priya market. I felt giddy after taking coke and told Prashant that I have to talk to my mother so that she would come and take me. Prashant took my phone. He again started pouring something in coke. I told him that I would not drink it. He slapped me and thereafter I passed out. Thereafter, his friend, who was wearing a white shirt and whom I can identify, if shown to me, came there. They beat me severely whereafter I do not know anything. They dropped me from car at that place and left. When they pushed me out of the car, they had a white colour car and when I had boarded the car, it was a black colour Civic. Prashant alongwith his friend has beaten me after administering me some intoxicating substance mixed in coke. ......."
3. It is the case of the prosecution that the aforesaid statement of the prosecutrix was recorded by ASI Gopi Ram in AIIMS Hospital in the morning of 15.6.2012 at about 6.15 a.m. He prepared rukka on the basis of the same and sent it to the police SC No.63/13. Page 2 of 82 station for registration of the FIR. It may be noted here that ASI Gopi Ram had reached AIIMS Trauma Centre in late hours of 14.6.2012 on receipt of DD No.43A and obtained the MLC of the prosecutrix. At that time he was told by the doctor that the prosecutrix is unfit for statement. He again reached AIIMS Trauma Centre in the morning of 15.6.2012 to record statement of the prosecutrix and was told that the prosecutrix has been shifted to main AIIMS Hospital. He also reached the AIIMS Hospital and found the prosecutrix admitted there for treatment. The doctor declared her fit for statement and accordingly, he recorded her aforesaid statement. After registration of the FIR, the investigation was commenced by ASI Gopi Ram himself. He recorded the statements of witnesses. He arrested accused Prashant Sablani and accused Milind on the identification of the prosecutrix. The medical examination of both the accused was got conducted in AIIMS Hospital. He seized the Honda Civic car bearing no.DL-4CAH-5210 and another car no.DL-3CBJ-4499 which was used in the commission of crime. The gynecological examination of the prosecutrix was conducted in AIIMS on 17.6.2012 and the exhibits preserved by the doctor were seized by the IO. The prosecutrix was admitted to Psychiatric Department of AIIMS on 17.6.2012 and as per observations made by the doctor on the MLC on that day, Section 377 IPC was added to the FIR. Further investigation was handed over to SI Seema Singh.
4. It is further the case of the prosecution that the prosecutrix was again declared fit for statement on 28.6.2012 and her statement was recorded afresh by SI Seema Singh. Since the prosecutrix had stated in that statement that she was raped by SC No.63/13. Page 3 of 82 accused Prashant with the aid of accused Milind, section 376 IPC was added to the FIR. The IO obtained the treatment papers of the prosecutrix from AIIMS on 30.6.2012. She prepared the rough site plan of the spot of incident at the instance of the prosecutrix. She obtained the location chart of mobile phone of both the accused. The statement of the prosecutrix u/s.164 Cr.PC was got recorded on 07.7.2012. The sexual potency test of both the accused was got conducted in Safdarjung Hospital on 11.7.2012. All the exhibits were sent by IO to the FSL on 12.7.2012. The TIP of accused Milind was got conducted in jail on 12.7.2012 and he was correctly identified by prosecutrix. IO recorded the disclosure statement of both the accused.
5. After completion of investigation, Charge Sheet was prepared by the IO and was laid before the concerned Ilaqa Magistrate.
6. Upon committal of the case to the court of Sessions, Charges u/s.365/34 IPC, u/s.328/34 IPC, u/s.354/34 IPC, u/s.376(2)
(g) IPC and u/s.377/34 IPC were framed against both the accused on 24.11.2012. Both the accused denied the charges and accordingly trial was held.
7. At trial, the prosecution has examined 18 witnesses to prove the charges against the accused. Ld. APP also tendered in evidence FSL results Ex.PA, Ex.PB and Ex.PC respectively. The accused were examined u/s.313 Cr.PC on 05.12.2014 wherein they denied the prosecution case and claimed false implication. The accused examined Sh. Alok Singh, Advocate, as DW1, Nodal SC No.63/13. Page 4 of 82 Officer from M/s. Bharti Airtel Limited as DW2, Sh. Karan Bhatia, a friend of accused Milind as DW3, Sh. Dhruv Tyagi, another friend of accused Milind as DW4 and Sh. Arul Mani, General Manager (Learning & Development), Hotel Taj Mahal, New Delhi, as DW5 in their defence.
8. I have heard Ld. APP for State, Ld. Counsels for the accused and have perused the entire material on record.
9. According to the Ld. APP, both the accused are liable to be convicted whereas the Ld. Defence Counsels maintained that the accused are innocent and are liable to be acquitted. The Ld. APP as well as Ld. Defence Counsels took me through the voluminous evidence to substantiate their respective submissions.
10. The Ld. APP submitted that the evidence on record establishes without doubt that the two accused had drugged the prosecutrix by administering to her some intoxicating substance mixed in Coke and then took her to an under-construction building where she was raped by accused Prashant Sablani with the active aid and support of accused Milind. She further submitted that the physical torture and mental trauma suffered by the prosecutrix during the said incident was to such extent that she had to remain admitted in psychiatric ward of AIIMS Hospital for treatment and she had developed suicidal tendencies. She submitted that she was not in complete senses and fully conscious state of mind in the evening of the date of incident when she was found by her brother and her mother and when she was brought to AIIMS Trauma Center and for this reason, she could not mention in detail SC No.63/13. Page 5 of 82 in her initial statement as to what had happened to her. She argued that there is nothing in the cross examination of the prosecutrix to disbelieve her and her version gets ample support and collaboration from the testimony of her parents (PW5 & PW10), brother (PW14), her friend Aastha (PW13) and the medical evidence. According to her, both the accused are liable to be convicted.
11. Ld. Counsel for the accused Prashant submitted that the parents of the prosecutrix have got registered a false FIR in collusion with the police officials. He submitted that the prosecutrix in her initial statement dated 15.6.2012 did not state anything about the sexual assault upon her but later on gave a concocted story about having been drugged and sexually assaulted by the two accused in her statement dated 28.6.2012 upon tutoring of her parents. He has pointed out various material discrepancies and contradictions in the testimony of the prosecutrix to demonstrate that she is not a reliable and believable witness. He submitted that the medical evidence on record also does not support the allegations of rape as well as un- natural sex. The ld. counsel argued that the evidence led by both the parties, indicates that the prosecutrix and accused Prashant had planned an outing for 14.6.2012 and the prosecutrix had left her residence for the specific purpose of spending good time in the company of Prashant. He submitted that the prosecutrix consumed alcohol on her own wish and whatever happened to her thereafter was due to voluntary alcohol consumption for which none of the two accused can be held responsible and for this very reason the prosecutrix did not say anything against any of the two accused in SC No.63/13. Page 6 of 82 her very first statement to the police recorded on 15.6.2012. He argued that the evidence led in defence establishes the fact that the accused Prashant became scared on finding prosecutrix in highly intoxicated state and did not know what to do and hence made a call to his friend i.e. accused Milind seeking his help. He submitted that once Milind met Prashant and the prosecutrix, they sent information to prosecutrix's parents through Aastha (PW13) that they would drop the prosecutrix at PVR Priya Cinema as they wanted the prosecutrix to reach home safely. He submitted that even the own witness of the prosecution namely Manisha (PW11) has supported the version of the accused. He submitted that both the accused are totally innocent and urged this court to acquit both of them.
12. Reiterating the arguments raised on behalf of the accused Prashant, ld. counsel appearing for accused Milind, further submitted that Milind was totally unaware that his friend Prashant is in the company of prosecutrix on the date of incident (14.6.2012) and that the prosecutrix has become intoxicated. He further submitted that it was only on the repeated phone calls of Prashant that Milind agreed to meet him and accordingly reached Rajouri Garden Petrol Pmp where he parked his vehicle outside the Petrol Pump at about 5.30 or 6 pm. He submitted that upon seeing the condition of the prosecutrix, Milind asked Prashant to drop her at a safe place and hence her parents were informed through Aastha that prosecutrix would be dropped at PVR Vasant Vihar. The ld. counsel submitted that Milind had joined Prashant after 5.30 pm and he was totally unaware about what had happened before that time. It is submitted that the evidence on record shows SC No.63/13. Page 7 of 82 that Milind had only extended help to his close friend Prashant in dropping his friend Prosecutrix at PVR Priya. He submits that otherwise also there is no evidence on record to suggest that the prosecutrix had been molested or sexually assaulted by any of the two accused on 14.6.2012 and her testimony is neither credible nor reliable. He also pleaded for acquittal of both the accused.
13. Both the defence Counsels submitted that the IO of the case has not acted impartially and appears to have conducted investigation under the directions of the parents of the prosecutrix. According to them, IO is liable to be penalized for not annexing the handwritten statement of witness Manisha alongwith the Charge Sheet and withholding the same from the court. It was argued by the Ld. Counsels that had the said written statement of Manisha been filed alongwith the Charge Sheet, probably both the accused would have been discharged at the stage of Charge itself and would have been saved from facing the ordeal of long trial before the court as rape accused or atleast would have been released on bail at an earlier stage of the case as the said statement of Manisha completely exculpates both the accused. They submitted that the IO did so to please the parents of prosecutrix to ensure that the accused remains behind the bars for a long time.
14. The prosecutrix has been examined as PW4. Her examination in chief is a very lengthy one spanning over eight pages. Its relevant portion is reproduced herein below:-
"I know accused Prashant Sablani present in SC No.63/13. Page 8 of 82 court today. I knew him before the incident as he was my class mate.
On 14.6.2012, there was a plan between myself
and my friend Manisha for watching a movie at
Saket. Manisha is living in my neighbourhood. We
had planned to leave for the movie at about 12 noon. When I was about to leave my house, I received a phone call from Prashant on my mobile phone, the number of which I do not remember at present as I have changed my mobile number, but I did not receive a call. Instead, I sent a text message to him asking him why did he call. I do not remember his mobile phone number also at present. He also sent me text message asking me whether my plan for movie is still on and I replied back vide text message that I am going for a movie with Manisha. He sent an SMS saying that he wants to join us for movie and I said OK. He again sent me text message saying that he will meet us at Priya cinema at Vasant Vihar. I left my house and met Manisha downstairs. I told her that Prashant is also joining us for movie. We hired an autorickshaw and reached directly Priya cinema at Vasant Vihar. We waited for Prashant but he did not come for a long time. Then I called him and asked him whether or not he is coming. He replied that he is on his way. As it was getting too late for the movie, I told Manisha that let us buy tickets for the movie but she showed reluctance and suggested that we should wait for Prashant to come. Finally, Prashant arrived in SC No.63/13. Page 9 of 82 his black Honda civic car. We boarded his car. I sat on the front passenger seat and Manisha sat on the rear seat. Prashant started driving the car and we were planning what to do. At this moment, Manisha told us that she has to go to meet her boy friend Himanshu at Saket. I asked her what am I going to do and she told me to plan it out with Prashant. Thereafter, Prashant took a U turn and dropped Manisha at the autorickshaw stand in Vasant Vihar. Prashant again took a U turn and we were going towards the traffic light. I told him to drop me at the autorickshaw stand as my cousins were waiting at my residence. He offered to drop me at home. I said there is no need for that but on his insistence, I agreed. I felt thirsty and asked for some water. Prashant told me that he does not have any water in the car and he will fetch a water bottle from the market. He parked the car on the left side of the road and went to the nearby shop. Meanwhile I became busy in playing games on my mobile phone. When Prashant returned from the shop, he told me that he did not get any water bottle and hence he has brought a bottle of Coke Soft Drink. He sat on the rear seat of the car behind the driver seat. I asked him what is he doing there and he told me that he is looking for water in his bag, if he is able to find some. He had his bag on the rear seat of the car. I kept myself busy with the phone. After some time, he came back to the driver seat and handed over the coke bottle to me SC No.63/13. Page 10 of 82 which had already been opened. I did not doubt anything as I thought he must have consumed some coke from the bottle. Then he asked me whether I wanted to have some Beer. I asked him where is the Beer and he replied that he has Beer cans in his car. I told him that I do not consume Beer and therefore I do not want it. He started consuming beer from a can while driving. He was driving the car at a slow speed. Meanwhile I finished the coke bottle. Then I started feeling dizzy. I thought that I was not well and I asked Prashant to stop the car and I will call my mother who will come to pick me up but he did not stop the car. I asked him why he is not stopping the car. I started calling my mother from my mobile phone, but he snatched my mobile phone. He slapped me two-three times and I started crying. I asked him why he is doing so, but he did not say anything and just slapped me. I continued to feel dizzy and also felt like vomiting. I was holding my head with my hand. Then suddenly, the left side rear door of the car opened and somebody came in and sat on the rear seat. All I could see is that he was wearing a white shirt. That person suddenly reclined my seat towards back. My left arm got stuck between the door of the car and the seat. That person held my right hand. That person also slapped me and he started pouring some liquid from a bottle in my mouth. It was a white colour bottle and word '' Magic'' was written on it. Then he started misbehaving with me in the car. Every time SC No.63/13. Page 11 of 82 he was putting that bottle in my mouth. He told Prashant that the girl is very difficult and Prashant asked him to give me some more slaps and further told him that I am on the high and I will not react. That person then told Prashant that he wants to drink and Prashant told him that it is available on the rear seat of the car and he can have the drink. That person tried to have sex with me in the car but he could not. Prashant told that person that it would be very difficult in the car and that person suggested to him to go somewhere else. Since the car was having tinted glasses, I could not see outside. However, I could see from the front wind screen that the place was Paschim Vihar. By this time, they had lifted up half of my T shirt. That person loosened his grip on my left hand and I tried to move my left hand but Prashant held it by his elbow. Then that person came out of the car and started pulling me out of the car. Prashant also pushed me out of the car. Then Prashant held my legs and that person held me from shoulders. They were carrying me to a narrow street and it was an under construction area. It was very dark and there was no person around. Then I could not shout as handkerchief had been stuffed in my mouth. After climbing the stairs of a building, they turned towards right on the first floor where there was a maroon colour door. Prashant let off my legs and I tried to run but got banged with the grill and they caught me again and pushed me inside that door. It was an SC No.63/13. Page 12 of 82 unfinished, dirty and muddy house. I fell on the floor of the room. They took me to some other room where there was a almost round bed. They laid me on that bed which was also having a mattress on it. I was looking for a window in the room. But I could not find any window. That person held my hands and Prashant sat on me. He started pouring some liquid from the same bottle in my mouth and started hitting me again. Then he started removing all my clothes. By the time he had removed all my clothes, I turned towards left and I fell down from the bed. I saw that there was a small black colour stablizer in the room. I tried to pick it up but I could not. They again held me and dragged me on the floor and both of them started hitting me. The person in white shirt again held my hands and Prashant was on me. Then Prashant had sexual intercourse with me and thereafter the other person in white shirt also did the same with me. Thereafter they again started hitting me and turned me backwards. Both of them then had intercourse with me from the backside (carnal intercourse). I was screaming with pain and was trying to crawl on the floor but I could not. They again started hitting me and in the meanwhile my phone rang. The person in white shirt started hitting me with a bag of ice and thereafter I became unconscious.
When I regain consciousness, I heard the talks about sketch and police. My phone again started ringing. Prashant had a bottle in his hand. He banged SC No.63/13. Page 13 of 82 the bottle and a piece of bottle hit my left leg. He kept the bottle near my neck and the person in white shirt kept the mobile phone near my ear. The person on the other side of the phone was my mother. They told me to tell my mother that I was OK. So I told my mother that I am fine and thereafter they disconnected the phone. The person in the white shirt remarked that I would definitely tell about the incident to other persons and suggested that I should be killed. I told them that I want disclose incident to anybody and requested them to let me go. Prashant started pressing my neck and I was not able to breathe properly. Then again my phone rang. Prashant told the other person that we should leave her but that person told him that we should clean her up. Then they poured cold water upon me and cleaned my each and every body part. Then they made me wear my clothes. Thereafter, they again poured cold water upon me and also made me to drink cold water. They then tied my hands with my purse. They put some ice in my mouth and tied it with my shrug. Shrug is an apparel which is worn over the T shirt. They were taking me out of the house but I slipped on the ice and fell on the floor. They again held me, hit me and started taking me out. I somehow freed myself from their grip and started running away. But my leg got tangled in the grill of the stairs and I fell down. Both of them started hitting me with their feet. They again held me and started taking me from the stairs. I again SC No.63/13. Page 14 of 82 started running and fell on the Bonnet of the car which I could not see. They again held me and put me in a white colour car on its rear seat. I did not have any energy so as to move. After some time, they stopped the car at some place. Prashant came out of the car, came to the rear seat and untied my hands and the mouth. He handed over my shrug, mobile phone and purse to me and made me to stand near a police barricade. I was unaware of the place where I was. Then Prashant told me that he has a video of me and told me that if I disclose the incident to anybody, he will come to my place and show the video to the public. On account of his threats, I became very scared and I told him that I would not tell anybody about the incident. Then, they left. My phone started ringing. I was having very little energy left to pick up my phone. I somehow picked up the phone and it was my friend Aastha on the other side. She asked me where I was and I told her that I do not know where I am. I told her that I am in great pain and requested her to come and pick me up. My phone was continuously ringing and I was feeling it very difficult to pick it up every time. After some time, I saw my brother and mother coming to that place on foot.
They took me alongwith them. After sometime, Prashant again called me on my phone and reminded me of his earlier threats. Thereafter, I became unconscious.
When I regained consciousness and opened my SC No.63/13. Page 15 of 82 eyes, I found myself in the hospital. It was AIIMS hospital and I remained admitted there for about 14 to
15 days.
One male police official and one female police official met me in the hospital. The name of the lady official was Seema Singh. She told me not to say anything about the assailants as it would spoil their future. She further told me that if I wanted, she would ask the assailants to give some money to me. But I did not change my statement. Seema Singh recorded my statement in the hospital. I signed that statement. I have seen statement dt. 15.6.2012. It bears my signature at point A. The same is ExPW4/A. Thereafter, I had submitted my written statement to the police. I identify the said statement from the record. It bears my signature at point A on all its pages. The same is ExPW4/B."
15. She further deposed that after discharge from the hospital, she was produced before a ld. Magistrate who recorded her statement which she proved as Ex. PW4/D. She also deposed that she had identified the boy in white colour shirt, who had also raped her alongwith accused Prashant, during TIP in Tihar Jail. She identified her signatures at point A on the TIP proceedings Ex.PW4/E. In answer to a leading question put to her by the ld. APP with the permission of the court, she denied that she had shown to the IO the spot from where she was abducted. She identified both the accused and stated that accused Milind is the boy who was in white colour shirt on the date of incident.
SC No.63/13. Page 16 of 8216. In the cross examination conducted on behalf of accused Milind, she could not say whether she was using mobile phone No.9899953556 on 14.6.2012. She stated that she was in touch with accused Prashant through mobile phone before the date of incident also and knew Manisha for almost a year before the date of incident. She stated that her mother was using mobile phone No.9871735551 and her father was having mobile phone No.9818352009. She did not remember whether she had sent text messages to accused Prashant on the night intervening between 13.6.2012 and 14.6.2012 and denied that they had fixed a meeting for 14/6/2012 at Priya Cinema, Vasant Vihar through text messages. She did not remember whether she had sent thirteen messages to accused Prashant and had received 14 messages from him during the night on 14.6.2012 between 12.03 a.m. and 12.40 a.m. She deposed that Prashant met her and Manisha at Priya Cinema around 1 pm. She admitted that accused Prashant did not get off the car and she as well as Manisha boarded the car and left the spot immediately. They dropped Manisha at the Auto stand, which is opposite the spot where they had boarded the car. She could not tell whether Prashant was using mobile No. 9990444702 on the date of incident. She deposed that Prashant and Aastha were her class mates in BBA Course and she knew Aastha for the last three years.
17. She stated that according to the original plan, she was going to watch movie with Manisha but they had not decided as to in which cinema hall would they watch the movie. She did not remember the movie name which they planned to watch. They SC No.63/13. Page 17 of 82 had planned to watch 1.30 pm show and were proceeding towards Saket Mall. She was wearing a T-shirt, Jegging and a shirt on that day. She deposed that after dropping her near the Police Barricade, Prashant and Milind stopped there for some time. She stated voluntarily that they were threatening her. She did not remember whether any police official had come near the barricade and talked to Prashant and Milind. She admitted that SI Seema Singh had not met her in the hospital on 14.6.2012 and 15.6.2012. She denied that she was discharged from AIIMS on 15.6.2012 and had spent the night intervening between 15.6.2012 and 16.6.2012 at her home. She did not remember whether she was bleeding from any body part when she was brought to hospital on 14.6.2012. She did not know who had brought the ice bag with which she was hit on the head. Accused Milind (the boy in white colour shirt) had hit her with ice bag on the head. According to her, there was only a bed and a black colour stabilizer in the room in which the incident took place. There was no air conditioner installed in that room. She did not know whether there was any fan. It was a bit dark when they reached that place. She could see the other under construction buildings nearby. She explained that it was late in the evening and the Sun had already set when they reached there but it was not night time. In answer to a specific question, put to her in this regard, she stated that she meant to say that there was no Sunlight and not that the Sun had set. She denied hat she was consuming Hukka and Vodka alongwith accused Prashant in his car on 14.6.2012 from 2.15 pm onwards and that Prashant had brought Hukka from the shop of one Pawan.
18. She deposed that she did not tell police during the SC No.63/13. Page 18 of 82 course of investigation of this case to take her to Paschim Vihar. She did not know the area where the under construction building was situated where she had been taken by the accused. She was carried into the said building by the two accused, Milind holding her by shoulder and Prashant holding her legs. She stated that she did not loose consciousness when she was travelling in the car with the accused but was not in her full senses. She stated that accused Prashant had come in black colour car when he met her and Manisha in PVR Cinema but when she was being taken in the car after the incident of rape, she noticed that it was white colour car.
19. She did not remember whether Manisha had called on her mobile number on 14.6.2012 at 4.43 pm and talked to her for about 95 seconds. She also did not remember whether she had talked to her friend Aastha on mobile phone 18 times from 4.45 pm to 8.14 pm on that day. She only remembered having talked to Aastha only once when she was dropped by the accused from their car. She did not know how she was taken by her parents from the car up to their first floor flat as she was unconscious. She was in conscious state when her mother and brother met her and was holding the police barricade. She became unconscious just a few minutes thereafter. She did not remember whether she had received any phone call from her mother on the date of incident between 5.16 pm and 7.27 pm. She also did not remember whether she had received ten phone calls from her father between 4.45 and 6.51 pm on that date. She further denied all the suggestions put to her by the ld. counsel.
SC No.63/13. Page 19 of 8220. In the cross examination conducted on behalf of accused Prashant, she deposed that accused Prashant had contacted her on phone about a month before the date of incident regarding his backlog papers. He only needed the information i.e. the dates of the examination etc. and did not need any study material. Thereafter she started casually sending replies to his messages. They did not converse with each other on WhatsApp. She stated that she met the accused Prashant for the first time on 14.6.2012. She denied that any boy named Vibhor was their class mate in BBA Course. She stated that she and Prashant had been messaging each other several times during the day and the messages were regarding the routine day matters. She stated that her parents were aware that she is going alongwith Manisha on 14.6.2012 and her parents had given her permission for the same. She had informed Prashant by way of sms that she and Manisha are going for a movie. Prrashant called her in the morning of 14.6.2012 to say that he is also going to join them for the movie. She did not tell her parents that Prashant is also joining them for movie. She denied having sent any text messages or whats app messages to Prashant in the night intervening between 13.6.2012 and 14.6.2012 asking him to chalk out the programme for next days' outings. She deposed that after she and Manisha met Prashant at PVR Vasant Vihar, Manisha changed the plan and said that she is going to meet her friend Himanshu. She denied that she liked accused Prashant and actually she as well as Manisha made a plan to meet their respective boy friends. Her brother knew about the exchange of text messages between herself and Prashant. She had called Manisha soon after she left them to tell her that she is going back home and thereafter she did not call her SC No.63/13. Page 20 of 82 during the day. She had told Prashant on 13.6.2012 that she alongwith Manisha is going to watch movie on 14.6.2012. She did not inform her any other friend about the programme to watch movie. When she told Manisha that Prashant is also joining them for the movie, Manisha did not show any sort of happiness but was OK with it. According to her, Manisha had heard the name of Prashant from her earlier but did not know him. Upon boarding the car of Prashant at PVR Vasant Vihar, she sat on the front passenger seat and Manisha sat in the middle of the rear seat. After exchanging greetings casually, Manisha suddenly informed them about change of her plan. Prashant was OK with her change of plan. Thereafter she and Prashant cancelled the plan for watching movie. Accused Prashant purchased a bottle of coke from a vendor at some distance ahead of the spot from where they had boarded his car. After opening the seal of the bottle, he handed over the same to her. He did not open the seal of the bottle in her presence. He had taken a sip from the bottle. He poured the coke in a plastic glass and offered it to her. He took beer himself straight from the can which he was having in the car. After pouring coke in her glass, he started the car and moved towards Vasant Vihar T Point wherefrom he took right turn. As soon as she finished the coke, she started feeling giddy. She told Prashant to stop the car as she wanted to call her mother. She was conscious at that time although she was feeling uneasy. She was not able to shout or resist the acts of the accused on account of uneasiness. She could not tell after how much time she lost her consciousness whether it was after ten minutes or after half an hour etc. She added that she remained semi conscious till she was hit by an ice bag by the accused in a under construction building SC No.63/13. Page 21 of 82 and thereafter she became unconscious. She only remembered answering to the call of her mother when they were in the under construction building. She stated that the person in white colour shirt i.e. accused Milind had boarded the car after ten minutes after she finished coke bottle.
21. She further deposed that her statement was not recorded by the IO on 15.6.2012. She stated that her statement has been recorded twice but did not remember the dates. She denied that she had made statement dated 28.6.2012 Ex.PW4/B at the instance of her parents. She did not know wherefrom did the accused Milind got the white colour bottle having 'Magic' word on it. She stated that accused had pulled down her trouser and underwear upto knee level but she did not remember as to which of the accused did so. She was not in a position to raise alarm as they had stuffed a handkerchief in her mouth and also she did not see anybody around. She did not see any sign board affixed on the building into which she was taken. According to her, the two accused did not meet any third person in the under-construction building. There was no guard available in the building. The room into which she was taken, was locked and its lock was opened by the accused Prashant. While accused Prashant was opening the lock, accused Milind was holding her. She could not tell the type of lock in the door of the room. She stated that there was no television, fridge etc. in the room. She did not remember whether the room had any attached bathroom. There was no water tap in any corner of the room. There was no liquor bottle or any food items in the room. She stated that till the time she was semi conscious, both the accused remained with her and did not go out SC No.63/13. Page 22 of 82 of the room. There was very dim light in the room. She did not know which of the accused removed her clothes and where did they keep her clothes after removing those from her body. There was no bucket or mug in the room. She could not tell where the accused had received any phone call or made any phone call during the course of commission of crime.
22. She further deposed that she regained consciousness in the same room and at that time there was very dim light in the room. It was dark outside. She could not tell the source of light in the room. She was in a semi conscious state when she talked to her mother. She did not recollect having seen the accused taking off their clothes and then wearing the clothes back as she was not able to notice the things happening around her. She could see, accused Prashant was wearing a red colour T-shirt and blue jeans and accused Milind was wearing a white colour shirt. She could not tell from which utensil was water poured upon her and how much quantity of water. She did not recollect the time for which accused kept driving from the under-construction building till they dropped her. She did not speak of either Manisha or Aastha during that period. She did not know whether any of the accused spoke to them during that period. She was not aware whether her parents or her brother spoke to accused Prashant any time during the whole episode. She did not know the place where the accused had dropped her and for how much time they stopped at that place before leaving. Accused Prashant had come out of the car, pulled her out of the car and made her to stand near the police barricade. She further denied all the suggestions put to her.
SC No.63/13. Page 23 of 8223. The father of the prosecutrix has been examined as PW5. He deposed that he knew that his daughter had gone to watch a movie with her friend Manisha on 14.6.2012. He made 2 or 3 calls on her mobile number at about 4 p.m. or 4.30 p.m. but she did not pick up the phone. When he rang up again, she picked up the phone, she was weeping loudly and crying but told him that she is alright and would be coming home. He immediately called his wife telling her that the prosecutrix is not well and asked her to contact the prosecutrix to see if she is alright. Thereafter, he again called the prosecutrix. She picked up the phone and was crying loudly "Prashant leave me, leave me, it pains me". She again called his wife and asked her if she knew any boy named Prashant and told her to find out who this Prashant is. His wife called him after about 10 or 15 minutes and told him that she has got mobile phone number of one Aastha, the friend of the prosecutrix. Meanwhile, he and his son Lasser Kumar had set out in his car in search of the prosecutrix.
24. He further deposed that his son made a call on the mobile number of Prashant and asked him where the prosecutrix is. Prashant told him that she has consumed liquor and cannot talk. Lasser asked Prashant where they were, so that they could come to take the prosecutrix, upon which Prashant asked them to reach IIPM, Mahipalpur. It was 5.30 p.m. at that time. Meanwhile, his wife also met them on the way and all the three reached IIPM, Mehrauli in his car. They waited there for about half an hour and then his son again called Prashant. Prashant told them tom wait and continued to dodge them till 7.45 p.m. by asking them to reach various places like Tivoli Garden, Mehrauli, AVM Farm, SC No.63/13. Page 24 of 82 Chhatarpur and IIPM, Mehrauli, PVR Select City Mall, Saket, etc. From IIPM, Mehrauli, his wife and his son left in another car and he continued to travel in his car. He further deposed that he received a call from his wife at about 8.45 p.m. saying that the prosecutrix has been found and asked him to reach home as they are also going towards home. He reached home at 8.30 p.m. and about 5 to 7 minutes thereafter his wife and son also reached there alongwith prosecutrix. The prosecutrix was in a very bad shape at that time. His wife offered her black coffee but she did not take it and became unconscious. They took her immediately to AIIMS Trauma Centre and reached there at 9.30 p.m. or 10.00 p.m. The prosecutrix was kept there under observation throughout the whole night and many tests were conducted. She was getting fits and her voice was trembling. She was crying and shouting. The prosecutrix was shifted to Emergency Ward of AIIMS between 3.30 a.m. and 4.00 a.m. in the night in an ambulance. She was then referred to Psychiatric Department for observation and treatment. She was shifted to an isolated room in Psychiatric Ward of AIIMS on 17.6.2012. He stated that finally the prosecutrix was discharged from AIIMS on 29.6.2012. Police had met him in Trauma Centre, AIIMS and made inquiries from him. He further stated that he felt that the Investigating Officer SI Seema Singh was not taking this case seriously and hence he had met ACP/DCP and the SHO, P.S. Vasant Vihar, regarding the same, who assured him that he would get justice. He had also filed a written complaint Ex.PA in the office of DCP in this regard.
25. Prosecutrix's mother has appeared as PW10 for the prosecution. She deposed that her daughter 'D' alongwith her SC No.63/13. Page 25 of 82 friend Manisha had left home at about 12 noon or 12.30 p.m. on 14.6.2012 to watch a movie at PVR Cinema, Vasant Vihar. She herself had to leave for Ghaziabad for some work in the afternoon and before leaving home, she made a call at the mobile number of her daughter 'D' at about 4.00/4.30 p.m. but she did not pick up the phone. When she was driving her car towards Ghaziabad, she received a call from her husband saying that he has talked to the prosecutrix who does not seem to be O.K. She made call at the mobile number of the prosecutrix 2 or 3 times but the prosecutrix did not pick up the phone. Thereafter, she made call to Manisha who told her that the prosecutrix is with her. When she asked Manisha to give the phone to the prosecutrix, Manisha disconnected the phone. She again made a call to Manisha, who told her that they are in Ambience Mall, Vasant Kunj. Accordingly, she took U-turn and reached Ambience Mall, Vasant Kunj, where she met Manisha but the prosecutrix was not with her. She asked Manisha about the prosecutrix, who told her that the prosecutrix had gone alongwith her college friend and she does not know their names and mobile numbers. She asked Manisha to accompany her to the police station for lodging a complaint but Manisha refused. At that same time, she received a call from her husband, who told her that prosecutrix is weeping on phone and was saying that 'Prashant leave me'. Her husband asked her whether she knew Prashant and she replied in negative. She made various calls to the friends of the prosecutrix and one of those namely Aastha told her that Prashant is studying in their class. On her request, Aastha provided her the mobile number of Prashant. She made calls on the said number and asked Prashant about the prosecutrix who told her that the prosecutrix is with him. She asked him about his SC No.63/13. Page 26 of 82 location so that she can bring back the prosecutrix and he told her to meet him in front of IIPM, Chhatarpur. Meanwhile, while she was driving towards police station alongwith Manisha, her husband and her son also reached there and met them.
26. She further deposed that they too reached IIPM, Chhatarpur and when Prashant as well as prosecutrix did not reach there for about 10 to 15 minutes. She again called Prashant and he asked them to reach AB Farm, Chhatarpur. She alognwith her husband and son reached AB Farm, Chhatarpur, but Prashant did not meet them there also. She again made call to him and this time, he asked them to reach Tivoli Garden, Chhatarpur. Prashant did not meet them there also and she again called him. He asked them to reach Select City Mall, Skaet, but he did not meet them there also. She made a call at the mobile number of the prosecutrix and the call was answered by Prashant, who asked them to reached PVR Cinema, Saket. When Prashant did not meet them there also, she made a call again to him and this time he asked them to reach IIPM, Chhatarpur. She stated that whenever she dialled mobile number of the prosecutrix, it was picked up by Prashant, who was telling them to reach one place or the other but did not allow them to talk to the prosecutrix.
27. She further deposed that they became intensely anxious when they did not find Prashant and the prosecutrix at any of the aforesaid places. Thereafter it seemed to her that Prashant had blocked the mobile numbers of herself, her husband and her son as the calls got disconnected instantly whenever they dialled mobile number of Prashant. Accordingly, she made a call SC No.63/13. Page 27 of 82 to Aastha requesting her to talk to Prashant. Thereafter, Aastha called her back and told her that Prashant would not handover the prosecutrix to them but would not handover the prosecutrix to her (Aastha) only. He had asked Aastha to reach IIPM, Chattarpur. She apprised Aastha about the registration number of her car and told her to tell Prashant that she (Aastha) would be reaching there in the said car. Thereafter she alongwith her husband and son reached IIPM, Chhatarpur, but did not find Prashant or the prosecutrix there. She again made a call to Aastha requesting her to talk to Prashant. Aastha called her back after sometime saying that Prashant's mobile phone is switched off. She then called mobile number of the prosecutrix, which was picked up by Prashant, told her to wait near IIPM, Chhatarpur, as he would be reaching there alongwith the prosecutrix. However, Prashant did not come there and accordingly, she again made a call to Aastha requesting her to call Prashant again and to say him that the prosecutrix's parents are going to lodge a complaint against him with the police. Accordingly, Aastha again called Prashant who told her that parents of the prosecutrix should not come to pick her up and she (Aastha) should wait for him near Priya Cinema, Vasant Vihar. Accordingly, she alongwith her son reached Priya Cinema, Vasant Vihar and saw the prosecutrix standing against a wall at the back of McDonald restaurant and was weeping. Her clothes were wet and were smelling of alcohol, her eyes were red and her hair was loose. There were finger marks on her face and face also was red. There were finger marks on her throat also. She was in a frightened state and was repeating only one sentence "Prashant leave me, don't beat me". Many persons had gathered at the spot. The prosecutrix was not able to walk properly. She tied up SC No.63/13. Page 28 of 82 prosecutrix's hair and with the help of her son took her up to the car and made her to sit in the car. Thereafter they proceeded towards home. On the way also, prosecutrix kept on weeping and repeating the aforesaid sentence. She informed her husband that the prosecutrix has met them.
28. She further deposed that upon reaching home, she changed the clothes of the prosecutrix. it was about 8.30 p.m. at that time. She tried to enquire from prosecutrix as to what had happened but she was not able to speak and kept on weeping. She prepared coffee for her but by that time prosecutrix became unconscious. Her husband had already reached home before their arrival. Thereafter, they took the prosecutrix to LNJP Trauma Centre where she was admitted for treatment. She made a call at telephone no.100 from the hospital from her mobile no. 987173551. Police officials came from P.S. Vasant Vihar and tried to make inquiries from the prosecutrix but she was not in a position to tell them anything. She stated that the condition of the prosecutrix remained critical throughout the night and kept on weeping and repeating the aforesaid sentence. She stated that the prosecutrix was referred to AIIMS for psychiatric treatment on 15.6.2012. she was admitted to Psychiatric Ward and was kept in an isolated room. She, her husband and her son alone were allowed to meet the prosecutrix. They were advised not to leave any sharp object or any type of long cloth near the prosecutrix. She deposed that the prosecutrix remained admitted in AIIMS till 29.6.2012 and the police could not make inquiries from her during that period because of her critical condition. She stated that while the prosecutrix was being counselled by Dr. Diksha on SC No.63/13. Page 29 of 82 17/18.6.2012, she told the doctor that she had been raped. Dr. Diksha apprised them about what prosecutrix had told her and at that point of time, they came to know that their daughter has been raped by Prashant and Milind. Thereafter, upon her enquiries, prosecutrix told her in the presence of Dr. Diksha that Prashant and Milind had committed rape upon her and had threatened to kill her. Prosecutrix also told her that they had also committed anal intercourse with her and prepared a video film and also threatened her not to disclose the incident to anybody or otherwise, they would show the video to her friends. They had also snatched her golden neck chain and bracelet. She stated that thereafter Dr. Diksha consulted her seniors and police was called. She apprised the police officials about what prosecutrix had told her. A fresh medical examination of the prosecutrix was conducted in AIIMS on the same day by Dr. Moumita in her presence. She noticed that there was a swelling in the shape of a tennis ball just above the rectum of the prosecutrix. Dr. Moumita told her that there is rupture in the hymen of the prosecutrix. Thereafter, prosecutrix was counselled in AIIMS till 29.6.2012. She stated that the police officials had again come to the hospital on 28.6.2012 and recorded the statement in presence of the doctor.
29. Lasser Kumar, the brother of the prosecutrix, has been examined as PW14. He deposed that he was present at his home on 14.6.2012 as it was a college holiday and on that day his sister i.e. prosecutrix had gone to watch a movie at PVR Cinema, Vasant Vihar, alongwith her friend Manisha. He received a call from his father at about 4 p.m. or 4.30 p.m. saying that he had talked to the prosecutrix but her voice seemed to be heavy and was saying SC No.63/13. Page 30 of 82 "Prashant leave me". His father asked him to be ready as they would have to go in search of the prosecutrix. His father reached home in about 10 to 15 minutes and they left in search of the prosecutrix. They reached P.S. Vasant Kunj and waited for his mother. His mother reached there alongwith Manisha and thereafter Manisha left. He alongwith his parents reached AB Farm in search of the prosecutrix. His mother talked to Prashant on phone, who told her to meet at IIPM, Mehrauli. Thereafter Prashant asked them to reach Tivoli and then to various other places and thus he met them to travel from one place to another place for about three hours. He then asked them to reach Select City Mall, Saket. He alongwith his mother reached there whereas his father was at Chattarpur. Meanwhile, Prashant had blocked the mobile numbers of all of them. Prashant did not meet them at Saket. Hence his mother made a call to a friend of the prosecutrix namely Aastha requesting her to talk to Prashant and to enquire where he was. Aastha called back his mother after about 5 to 10 minutes and told her that the prosecutrix is in Vasant Vihar. Accordingly, he and his mother reached Vasant Vihar and saw prosecutrix standing with the support of a wall in the side lane adjacent to McDonald restaurant. Her clothes were wet and were smelling of liquor. There were finger marks and bite marks on her face and neck and hands. They brought her home and also informed his father about the prosecutrix. His father also reached home straightaway. His mother changed the clothes of the prosecutrix and gave her black coffee but she fainted before taking coffee thereafter he and his father took prosecutrix to Trauma Centre, Safdarjung Hospital, and his mother made a call at telephone no. 100 from the hospital. Prosecutrix was weeping bitterly and was SC No.63/13. Page 31 of 82 also getting fits and hence they shifted to her to AIIMS Hospital. He further deposed that after two days, prosecutrix told him as well as his parents in the hospital in presence of doctors that she was subjected to rape and unnatural sex by Prashant and another boy wearing white shirt whom she did not know. Prosecutrix remained admitted in Psychiatric Ward/isolated room of the hospital for about 15 days.
30. In the cross examination, he admitted that he had mentioned in his statement to the police that after reaching home, the prosecutrix had told him that the accused Prashant and another boy had sex as well as unnatural sex with her.
31. Ms. Astha, the friend of the prosecutrix, has been examined as PW13. She deposed that on 14.6.2012 at about 4.30 p.m. or 5.00 p.m. when she was present in the house of her parental aunt (Bua) at Ghaziabad, she received a call from the mother of the prosecutrix, who asked her whether prosecutrix is with her. She replied in negative. Prosecutrix's mother also asked her whether she knew any boy named Prashant and she told her that Prashant studies in her class. She also told prosecutrix's mother that she would try to find out Prashant's mobile number from other classmates and would convey the same to her. She sent messages to various classmates on their mobile phones as well on the Facebook and one of them named Ankit gave her the mobile number of Prashant, which she conveyed to the prosecutrix's mother. After some time, prosecutrix's mother again called her saying that they are not able to connect to Prshant's mobile number despite various attempts and requested her to SC No.63/13. Page 32 of 82 make a call to Prashant and ask him about the prosecutrix. She made a call to Prashant, who told her that the prosecutrix is with him and disconnected the phone. She again made a call at Prashant's mobile number but it was switched off. Then she made a call at prosecutrix's mobile number, which was answered by Prashant. She asked Prashant to let her talk to the prosecutrix, to which he replied that the prosecutrix is unconscious and disconnected the phone. She again made calls at mobile number of the prosecutrix 2 or 3 times but nobody picked up the phone. After some time, she again made a call at the said number and this time, it was picked up by Prashant, who told her that they have prepared a nude video of the prosecutrix and threatened to kill the prosecutrix if she narrated this to anybody and disconnected the phone. She made another call after some time and told Prashant to tell her where the prosecutrix is, so that she would come and pick her up. Prashant again repeated the threats and further told her that he would handover the prosecutrix to her only if she comes alone to pick her up. She assured Prashant that she would come alone to pick up the prosecutrix, upon which Prashant told her that they would drop the prosecutrix near Priya Cinema, Vasant Vihar. She immediately made a call to the mother of the prosecutrix telling her that they would drop prosecutrix near Priya cinema, Vasant Vihar. She again made a call at mobile number of the prosecutrix at about 7.30 p.m. or 8.00 p.m., which was answered by the prosecutrix herself, who was weeping and told her that she has been dropped by these persons somewhere and is in intense pain as they have committed very wrong act with her. Prosecutrix requested her to come and pick her up as passers- by are looking upon her. Thereafter the call got disconnected. She SC No.63/13. Page 33 of 82 again made a call at prosecutrix's mobile number, which was picked up by her mother, who told her that they have met the prosecutrix.
32. In the cross examination, she deposed that after finishing BBA Course in May, 2012, she had gone to her home town. However, she had been summoned to Delhi by police officials and accordingly she reached Delhi on 28.6.2012, on which date her statement was recorded in the police station by SI Seema Singh. She was confronted with her statement u/s.161 Cr.PC wherein major portion of her examination in chief does not find mention. She further stated that she was using mobile no. 9711709658 in June, 2012 and is still using the same mobile number. The police officials had not demanded from her the mobile phone bill or the call details record in the month of June, 2012. She stated that she had visited the house of the prosecutrix 2 or 3 times. She did not remember whether the prosecutrix had contacted her through phone on 13.6.2012 or on 14.6.2012 upto 1.00 p.m. She was not aware whether the prosecutrix and Prashant used to exchange messages with each other on Whatsapp, Facebook etc. she did not meet the prosecutrix from 14.6.2012 to 28.6.2012. She had talked to the prosecutrix's mother on 16.6.2012 or 17.6.2012 who apprised her about what had befallen upon the prosecutrix and also told her that she is admitted in the hospital. She also told her that the prosecutrix has been raped by Prashant and other boy.
33. The another friend of the prosecutrix namely Manisha has been examined as PW11. She deposed that she is residing in SC No.63/13. Page 34 of 82 the neighbourhood of the prosecutrix and both were taking coaching classes together for LLb. Entrance examination. After appearing in the said entrance examination, on 10.6.2012, they made a plan to watch a movie with their friends on 13.6.2012 or 14.6.2012. She received a call from the prosecutrix on 11.6.2012 or 12.6.2012 informing her that they will be going for movie on 14.6.2012 and not on 13.6.2012. She stated that the prosecutrix came to her house on 14.6.2012 at about 12 noon and they left from her house at about 12.15 p.m. While travelling in the auto rickshaw, prosecutrix told her that she is going to meet her friend Prashant and they will not be going for any movie. She did not know Prashant. She further deposed that the prosecutrix asked the auto rickshaw driver to drop them at PVR Priya, Vasant Vihar, where they waited for Prashant to come who reached there after about 45 minutes in a black colour Honda Civic car. The prosecutrix introduced her to Prashant and then boarded the car of Prashant. Prosecutrix asked her where would she go now and she told her that she would go to Amity University, Noida, for counselling for LLb .Course. She asked prosecutrix where they would be going, who told her that they would go to meet their friend at Rajouri Garden or Punjabi Bagh and asked her to call her at 4 p.m. She made calls to her friend asking them to meet her at Select City Mall, Saket. After reaching Saket, she got a call from the prosecutrix and told her that she is going to Amity University alongwith her friend but did not tell her where she was. Thereafter her friend joined her and they went to Amity University, Noida.
34. She further deposed that when they were present at Evergreen restaurant, Green Park, at about 4 p.m. she received a SC No.63/13. Page 35 of 82 call from prosecutrix's brother Lasser, who enquired about the prosecutrix. She told him that she had left prosecutrix at PVR Priya Cinema alongwith her friend Prashant. Lasser told her that the prosecutrix is drunk and is not able to talk. Thereafter she received a call from the mother of the prosecutrix and told same thing to her also. While travelling from Green Park towards her house, she made calls to her mother saying that the prosecutrix is not with her and prosecutrix's brother Lasser has informed her that the prosecutrix is drunk. She received several calls from the brother and mother of the prosecutrix. The mother of the prosecutrix asked her to stop where she was and at that time, she was travelling towards Vasant Kunj. She stopped at Ambience Mall, Vasant Kunj, and informed prosecutrix's mother about the same. Before reaching there, she made a call at the mobile number of the prosecutrix but she did not pick up the phone. After that call, she had received a call from an unknown number and when she picked up the phone, it was Prashant on the other side, who told her that the prosecutrix is heavily drunk and is not able to stand up. She talked to the prosecutrix who seemed to be heavily drunk and told her that she has consumed excessive alcohol and is not able to walk properly. Prosecutrix asked her to stop where she was and not to tell her mother about her condition. Then she talked to Prashant who told her that he would drop the prosecutrix at PVR Cinema, Vasant Vihar, within half an hour. Meanwhile, prosecutrix's mother reached Ambience Mall, Vasant Vihar, and met her. She again told her that she is not aware about the whereabouts of the prosecutrix. The mother of the prosecutrix got annoyed with her and threateningly took her to P.S. Vasant Vihar, in her car. She also slapped her in the car. She gave mobile SC No.63/13. Page 36 of 82 number of Prashant to the mother of the prosecutrix, from which she had received the call. From the police station Vasant Vihar, they started proceeding towards Vasant Kunj and meanwhile, prosecutrix's mother received a call from her son Lasser and accordingly, she was dropped near Kunj Motors at Nelson Mandela Marg where Lasser was waiting in another car. Thereafter both the cars left. Her mother and brother came to that spot and took her home.
35. She further deposed that after about 10 or 15 days, she received a call from WSI Seema Singh asking her to reach P.S. Vasant Vihar. Accordingly, she alongwith her brother reached P.S. Vasant Vihar where SI Seema Singh made inquiries from her and recorded her statement. She stated that Ex.PW11/A is her statement in writing. It is in her handwriting and bears her signature at point A and had handed over the same to SI Seema Singh. In the cross examination, she deposed that the mother of the prosecutrix had dropped her at Kunj Motors at Nelson Mandela Marg at about 6 p.m. and by that time the darkness has not set in. she stated that she did not give any other statement to the police official except the aforesaid statement Ex.PW11/A.
36. PW8 Dr. Mahesh Barambey was first to examine the prosecutrix after she was brought to AIIMS Hospital by her parents. He deposed that the prosecutrix was brought to the hospital by her parents on 14.6.2012 with the history of assault. Upon her physical examination, she did not find any external injury on her body except bruises on face and neck. He prepared MLC Ex.PW8//A and directed her NCCT Head, CX Spine, X-ray Chest, X-
SC No.63/13. Page 37 of 82ray Pelvis and Ultrasound to be taken. He further stated that some police officials had come to record the statement of the prosecutrix on 15.6.2012. As the prosecutrix was not fit for statement, he made endorsement on the MLC Ex.PW8/B to the effect "patient is unfit for statement". He stated that during the same night at about 3.30 a.m., police officials again came to record her statement. At that time, she was fit for statement and accordingly, he made endorsement on the MLC Ex.PW8/C to the effect "patient is fit for statement". He stated that the police officials did not record her statement in his presence.
37. In his cross examination, he deposed that they declared the patient fit for statement, if the patient is conscious and talks coherently. He stated that the parents of the prosecutrix were present near her when he made observation Ex.PW8/C on the MLC. He also stated that the history mentioned by him on the MLC was given to him by the parents of the prosecutrix but he did not recollect whether it was given by her mother or by her mother. According to him, the bruise marks on the face and neck of the girl were superficial in nature.
38. PW7 Dr. Moumita had examined the prosecutrix in AIIMS Hospital on 15.6.2012. She deposed that on that day, the prosecutrix was brought to the hospital for her medical examination. She examined the prosecutrix and found the following external injuries on her body :
(1) Sub conjunctival haemorrhage on left eye. (2) Multiple scratch marks and bruise marks over both SC No.63/13. Page 38 of 82 forearms.
(3) Tender swelling present over sacrum.
39. She deposed that no stain marks were present around anus and both buttocks. She did not notice any fresh injury mark around anal opening. She made four slides of anal swab. The parents of the prosecutrix handed over her dress and undergarment to her which she handed over to the police Inspector accompanying the prosecutrix. She prepared MLC Ex.PW7/A. In the cross examination, she could not say why and in what context is the no.314431 mentioned at point X on the MLC. She admitted that this number is written by her in her own hand. She was told that this is the MLC number and that is why she wrote this number. She had seen the MLC of the prosecutrix prepared in Jai Prakash Narain Apex Trauma Centre, New Delhi, before examining her. She deposed that since the prosecutrix was brought to her for only anal examination as there was history of sodomy. She examined only the anal area of the prosecutrix and did not examine her reproductive system. She stated that scrum is the lower most bone of vertebral column which is a hard bone by nature. According to her, a person can suffer injury on his/her scrum bone on account of a fall but not on account of anal intercourse.
40. PW6 Dr. Diksha has deposed that she examined the prosecutrix in AIIMS Hospital on 28.6.2012 and found her fit to give statement. She made endorsement in this regard on the application Ex.PW6/A submitted by the IO for recording the statement of the prosecutrix. She deposed that the prosecutrix SC No.63/13. Page 39 of 82 jotted down her statement in her own handwriting in her presence. She stated that Ex.PW4/B is the said statement which was written by prosecutrix in her presence and bears her signature at point B on each page. In the cross examination, she stated that the police officials had desired that they want a neutral person to be present during recording of the statement of the prosecutrix and accordingly she was deputed by senior residents for the said purpose. She could not tell the corelation of date 14.6.2012 appearing at point X on statement Ex.PW4/B and why the same has been written at that place. She stated that the discharge summary of the prosecutrix Ex.PW6/B has been issued by AIIMS and bears signature of Dr. Anish at point A. She had given a copy of the discharge summary to the IO pursuant to her written request.
41. Dr. Bichitra Nanda Patra appeared in place of Dr. Anish and has been examined as PW16. He identified the signature of Dr. Anish on the MLC of the prosecutrix Ex.PW6/B.
42. PW17 SI Gopi Ram was the initial investigating officer of the case. He deposed that on 14.6.2012 at about 11 p.m., on receipt of DD No.43A from the Duty Officer to the effect that an injured girl i.e. prosecutrix has been admitted in AIIMS Trauma Centre, he alongwith Const. Hari Singh reached AIIMS Trauma Centre and found the prosecutrix admitted there for treatment. He obtained the MLC of the prosecutrix from the doctor. He also seized three sealed pullindas and one sample seal given to him by the doctor vide seizure memo Ex.PW17/A. The doctor also handed over to him the blood sample of the prosecutrix in a separate SC No.63/13. Page 40 of 82 sealed pullinda which he seized vide memo Ex.PW17/B. The doctor declared the prosecutrix unfit for statement regarding which he made endorsement on the MLC. Since he did not find any eye witness in the hospital, they returned to police station and again came back to AIIMS Trauma Centre in the morning of 15.6.2012. Upon reaching there, they came to know that the prosecutrix has been shifted to main AIIMS Hospital for treatment. They also reached the main AIIMS Hospital. He met the prosecutrix and recorded her statement Ex.PW4/A. He prepared rukka Ex.PW17/C and sent it to the police station through Const. Hari Kishan for registration of the FIR.
43. He further deposed that the mother of the prosecutrix was present in the hospital at that time and she gave him the mobile number of Prashant. Thereafter he returned to the police station. Const. Hari Kishan handed over the original rukka and copy of FIR to him in the police station. He obtained the call detail records of mobile phone of Prashant on the same day. Thereafter, he alongwith Const. Hari Kishan reached the house of Prashant and arrested him vide arrest memo Ex.PW15/A. He also seized the Honda Civic car bearing registration no.DL-4CAH-5210 which was parked in front of Prashant's house. A mobile phone of make Nokia was recovered from the personal search of Prashant which was seized by him vide memo Ex.PW15/C. Thereafter, accused Prashant took them to the house of accused Milind in Janakpuri, who was arrested vide memo Ex.PW15/D. He also seized the white colour car, which was produced by Prashant's brother, on 16.6.2012 vide memo Ex.PW17/D. On the same day, he visited AIIMS Hospital again and obtained another MLC of the prosecutrix.
SC No.63/13. Page 41 of 82At that time, the doctor handed over to him, a sealed pullinda which he seized vide memo Ex.PW17/E. He deposed that thereafter further investigation was handed over to SI Seema Singh.
44. In the cross examination, he admitted that he was using mobile no. 9968421843 on 14.6.2012 and 15.6.2012. He however stated that he was not carrying the said mobile phone with him when he had gone to arrest the two accused as he had left the same in the police station for charging purpose. He stated that he had received DD No.43A at 10.55 p.m. on 14.6.2012 and reached AIIMS Hospital in about 15 or 20 minutes thereafter. He returned to the police station at about 1 a.m. in the night and again reached AIIMS Hospital at about 4.30 a.m. in the morning. He did not collect any document from AIIMS Trauma Centre at that time. An official sitting in the enquiry desk told him that the prosecutrix has been shifted to AIIMS Hospital. He recorded the statement of the prosecutrix at about 6 a.m. in presence of her mother. He sent rukka to the police station at about 6.15 a.m. He came to know about the residential address of Prashant from the call details record of his mobile phone and reached there at about 2.30 p.m.
45. PW2 SI Krishan Lal was the Duty Officer in P.S. Vasant Vihar on 14.6.2012 from 4 p.m. to 12 midnight. He deposed that he received information from wireless operator at 10.05 p.m., which he recorded as DD No.43A Ex.PW2/A and its contents were intimated to SI Gopi Ram for suitable action. The information was to the effect "a boy named Prashant had taken my daughter for SC No.63/13. Page 42 of 82 watching a movie, who was later found in unconscious state near Priya Cinema."
46. PW3 was the Duty Officer of P.S. Vasant Vihar on the night intervening between 14.6.2012 and 15.6.2012 from 12 midnight to 8 a.m. He deposed that he received information from AIIMS Trauma Centre at about 12.20 a.m. to the effect that a girl named 'D' has been admitted in the hospital by her father in injured condition vide MLC No.314131. He recorded the information as DD No.4B and proved it as Ex.PW4/A. At 6.40 a.m. in the morning, he received rukka from Const. Hari Kishan sent by SI Gopi Ram and registered FIR Ex.PW4/B on the basis of the same. He deposed that the investigation of the case was marked to SI Gopi Ram after registration of the FIR.
47. Sh. Pawan Singh, Nodal Officer of M/s. Idea Cellular Limited, has been examined as PW9. He proved the customer detail in respect of mobile no. 9990444702, according to which the same has been allotted in the name of Prashant Sablani. He also proved the call details record of the said mobile phone from 14.6.2012 to 18.7.2012 as Ex.PW9/C, certificate u/s.65B of the Evidence Act in support of the same as Ex.PW9/D. He proved the Cell ID Chart of the company as Ex.PW9/E.
48. Sh. Deepak, Nodal Officer of M/s. Vodafone Mobile Services Limited, has been examined as PW12. He proved the customer detail in respect of mobile no. 9999942289, according to which the same has been allotted in the name of Mrs. Nisha Kapoor. He also proved the call details record of the said mobile SC No.63/13. Page 43 of 82 phone from 13.6.2012 to 16.6.2012 as Ex.PW12/C, certificate u/s. 65B of the Evidence Act in support of the same as Ex.PW12/D. He proved the Cell ID Chart of the company as Ex.PW12/E.
49. IO SI Seema Singh has been examined as PW18. She deposed that after the investigation of this case was entrusted to her on 17.6.2012, she visited AIIMS Hospital where the prosecutrix was admitted in Psychiatric Ward but the doctor declared her unfit for statement. However, the Doctor told her that it is a case of sodomy and accordingly section 377 IPC was added to the FIR. She visited AIIMS Hospital again on 3 or 4 times to record statement of the prosecutrix but on all occasions, she was declared unfit by the doctor. She stated that the prosecutrix was ultimately declared fit for statement by the doctor4 on 28.6.2012, on which date she made inquiries from her. The prosecutrix gave her statement in writing Ex.PW4/B, on the basis of which she added section 376 IPC to the FIR. She further deposed that the prosecutrix was discharged from the hospital on 29.6.2012 and on 30.6.2012 she alongwith prosecutrix visited the spot where she had been dropped by the accused after the incident and prepared its rough site plan Ex.PW18/A. She also obtained the medical documents of the prosecutrix from Psychiatric Department of AIIMS on the same day. She got the statement u/s.164 Cr.PC of the prosecutrix recorded on 07.7.2012. The potency test of both the accused was got conducted by her on 11.7.2012 and she seized their blood samples vide memo Ex.PW18/C. She got conducted the TIP of accused Milind in Tihar Jail on 12.7.2012 wherein he was correctly identified by the prosecutrix. She recorded the statements of all the material witnesses. She obtained call details record of mobile SC No.63/13. Page 44 of 82 phone of the prosecutrix as well as of both the accused and also obtained the footage of CCTV cameras installed on the outer wall of Priya Cinema Hall, Vasant Vihar, wherefrom the prosecutrix had been taken by the accused.
50. In the cross examination, she deposed that the prosecutrix was not cooperating with her in the investigation and for this reason, she had to visit Tihar Jail to interrogate the two accused to know about the details and the place of incidents. The prosecutrix did not show her the place where she had been raped. Prosecutrix kept on telling her that she does not remember anything. She did not recollect the name of the doctor, who told her that it is a case of sodomy. She talked to the prosecutrix for the first time in AIIMS Hospital on 28.6.2012. She denied having issued any threat to the prosecutrix that she should not make any allegation against the two accused. She could not say why the prosecutrix had written "14th June" on the top left hand corner of the first page of her statement Ex.PW4/B. She stated that the father of the prosecutrix used to come to the police station to meet the SHO. The prosecutrix did not accompany her to any place during the course of investigation as she was not prepared to do so. She stated that the parents of the prosecutrix had visited her residence once. She stated that Ex.PW11/A is the statement in the handwriting of Manisha, which Manisha had given to her. She admitted that Manisha had not supported the case of the prosecution in the said statement and for this reason, she did not annex the same alongwith Charge Sheet. She had apprised the SHO about the said statement of Manisha. The SHO had not instructed her not to annex the said statement alongwith Charge SC No.63/13. Page 45 of 82 Sheet. She admitted that they annex alongwith Charge Sheet only those documents which favour the prosecution and normally all those documents which favour the accused are withheld. She deposed that the reports dated 05.7.2012 Ex.PW18/D1 and Ex.PW18/D2 were prepared by her pursuant to the directions of Ms. Madhu Jain, Ld. A.S.J., who was hearing the bail application of accused and she filed these reports before that court. She admitted that the complaint Ex.PW18/D3 was received in the police station from Ms. Nisha Kapoor and was marked to her for inquiry. She had made inquiries on the said complaint and later on filed the same. She admitted that she did not visit Hotel Taj Mahal, Khan Market, during the inquiries in the aforesaid complaint to verify whether accused Milind was present there on 14.6.2012 and if so, at what time. She did not conduct verification regarding the movement of accused Milind and the prosecutrix has mentioned in the complaint Ex.PW18/D3. She deposed that the spot where the prosecutrix was dropped after the incident is seen in photograph nos.6, 9, 11 & 15 forming part of Ex.PW18/D4 and these photographs had been filed by her at the time of hearing of bail application of the accused. She admitted that the two police officials are seen in these photographs talking to the accused. She did not find out the particulars of these police officials in order to make inquiries from them. She had not made any inquiry from Pawan Pan Store, Central Market, Punjabi Bagh. She further denied all the suggestions put to her.
51. Following witnesses have been examined by the accused in their defence :-
SC No.63/13. Page 46 of 82(i) DW-1 Sh. Alok Singh, Advocate. He deposed that his mobile number is 9213228352.
(ii) DW-2 Nodal Officer M/s. Bharti Airtel Limited. He proved the customer details in respect of mobile number 9818352009 which shows that it had been allotted in the name of M/s.
Victoria w/o Sharad Kumar. He proved its call detail records from 14.6.2012 to 7.7.2012 as Ex. DW2/C and the certificate u/s 65 B of Evidence Act in support of the call detail record as Ex. DW2/D.
(iii)DW3 Sh. Karan Bhatia. He is a college friend of accused Milind and deposed that accused Milind alongwith another college friend namely Dhruv had come to his house on 14.6.2012 at 11 am as Milind's shirt had become dirty on account of profuse sweating and he had to go to Hotel Taj to participate in a Management Training Programme. He (Milind) had come to his house to change his shirt. He stated that Milind changed his shirt in his house and then left alongwith Dhruv for hotel Taj. They had stayed in his house just for five to seven minutes. In the cross examination, he deposed that Milind and Dhruv had come to his house in Santro car of Milind. He had given his white colour shirt to Milind to wear. He did not talk to Milind thereafter during the day.
(iv)DW4 Sh. Dhruv Tyagi, another college friend of Milind. He deposed that Milind had come to his maternal uncle's house at Vikas Puri on 14.6.2012 at about 10.30 am where he was residing at that time. Milind had come to help him in shifting to his rented accommodation at Satya Niketan. He deposed that on account very high temperature on that day, Milind's SC No.63/13. Page 47 of 82 shirt had become dirty due to profuse sweating and according they first went to the house of their common friend Karan at Ramesh Nagar where Milind changed his shirt and wore Karan's shirt. They left Karan's house at about 11 am or 11.30 am and reached Hotel Taj where Milind had to participate in some orientation programme and remained there till about 1 pm or 1.15 pm and then went to Khan Market, where he had to recharge his mobile phone. Thereafter they went to his rented accommodation at about 2.30 pm. Theyordered meals from outside and after taking meals, waited for another friend to come but he did not come. He stated that Milind left at about 4 pm or 4.30 pm. In the cross examination, he deposed that initially Milind was wearing blue colour shirt and later on he wore Karan's white colour shirt. He stated that he had taken his mattress, kitchen utensils, microwave oven etc. from his maternal uncle's house to his rented accommodation on 14.6.2012. He had not gone to meet Milind in Jail after his arrest in this case.
(v) DW5 Sh. Arun Mali works as General Manager (Learning and Development), Hotel Taj Mahal, New Delhi. He stated that there was no orientation or induction programme in the hotel on 14.6.2012 and the said programme was expected to be in Aurangabad in the month of July, 2012. According to him, letters had been sent to the candidates to come to the hotel on any day and to collect their medical forms. He admitted that some candidates had come to the Hotel on 14.6.2012 to collect their medical forms for the said Orientation/Induction Programme. He had brought original SC No.63/13. Page 48 of 82 entry/exist register maintained at the Staff Security Gate of the Hotel and proved the copy of the relevant page pertaining to the date 14.6.2012 as Ex. DW5/A. It may be noted here that Ex.DW5/A shows that Milind had entered the Hotel premises at 12.25 pm and left at 1.10 pm. Discussion on the evidence led by the parties and the rival submissions made on behalf of parties.
52. As already noted herein-above, the FIR has been registered on the basis of statement Ex.PW4/A of the prosecutrix recorded by PW17 ASI Gopi Ram in AIIMS Hospital in the morning of 15.6.2012. The only allegation levelled by the prosecutrix in the said statement is that the accused Prashant alongwith his friend had beaten her after administering some intoxicating substance mixed in Coke to her. She has nowhere mentioned in the statement that she had been sexually assaulted by accused Prashant and his friend. She appears to have mentioned the incident of intoxication and sexual assault in detail in her statement dated 28.6.2012 Ex.PW4/B which is in her own handwriting and was handed over by her to PW18 SI Seema Singh. It is in this statement that she has stated that some liquid from a bottle having word 'Magic' written on it was poured into her mouth, on account of which she lost her energy and was not able to shout, was beaten by the two accused, the accused tried to have sex with her in the car but could not and then was taken to an unfinished house and was subjected to vaginal sex as well as anal sex by the two accused.
SC No.63/13. Page 49 of 8253. In the statement Ex.PW4/B, prosecutrix has nowhere explained what prevented her from mentioning the whole incident in detail in her statement Ex.PW4/A dated 15.6.2012. It was argued by the Ld. APP that since the prosecutrix had been forced to consume excessive alcohol by the two accused, on account of which she was not in her complete senses when she was brought to AIIMS Trauma Centre by her parents and had not come out of intoxication fully when her statement Ex.PW4/A was recorded and therefore, she could not describe the complete incident in the said statement. She further argued that apart from being in intoxicated state, the prosecutrix was also in a state of depression and was having fits as well as hallucination and therefore, it was not proper to record her statement in such state of mind.
54. However, the arguments raised by the Ld. APP, does not find support from the medical evidence on record. It is the case of the prosecution itself that when the prosecutrix was brought to AIIMS Trauma Centre by her parents on 14.6.2012, she was examined by PW8 Dr. Mahesh Barambey vide MLC Ex.PW8/A. The MLC shows that the prosecutrix was brought to the hospital at about 10.28 p.m. with alleged history of assault and was found on the road side unconscious and in intoxicated state. PW8 did not find any external injury on her body except bruises on face and neck. He has deposed that the police officials had come to record the statement of prosecutrix on 15.6.2012 but as she was not fit for statement at that time, he made endorsement Ex.PW8/B on the MLC to the effect "patient is unfit for statement". He further deposed that during the same night at about 3.30 a.m., police officials again came to record her statement. At that time, she was SC No.63/13. Page 50 of 82 fit for statement and accordingly, he made endorsement Ex.PW8/C on the MLC to the effect "patient is fit for statement". It is after PW8 declared the prosecutrix fit for statement that her statement was recorded by PW17 SI Gopi Ram, who was the initial investigating officer in the case. PW8 in his cross examination has deposed that they declare a patient fit for statement if the patient is conscious and talks coherently. He has also stated that the parents of the prosecutrix were present near him when he made endorsement Ex.PW8/C on the MLC declaring the prosecutrix fit for statement.
55. Therefore, it is evident from the testimony of PW8 itself that the prosecutrix was conscious and talking coherently when her statement was recorded by PW17 after he declared her fit for statement. Her parents were present near PW8 at that time and did not raise any objection when he declared her fit for statement or when her statement was recorded by PW17. PW17 has deposed in his cross examination that he recorded statement of the prosecutrix at about 6 a.m. in presence of her mother and then sent rukka to the police station at about 6.15 p.m. Hence the evidence on record shows that the prosecutrix was conscious, oriented and talking coherently when her statement Ex.PW4/A was recorded by PW17 in presence of her mother and for that reason, her parents did not object to recording of her statement.
56. The prosecutrix has admitted in her testimony that Ex.PW4/A is her statement and bears her signature at point A. She has nowhere stated that she was not fully conscious or was under
the influence of liquor when her said statement was recorded. It is SC No.63/13. Page 51 of 82 pertinent to reproduce the following portion of her examination in chief in this regard :
"One male police official and one female police official met me in the hospital. The name of the lady official was Seema Singh. She told me not to say anything about the assailants as it would spoil their future. She further told me that if I wanted, she would ask the assailants to give some money to me but I did not change my statement. Seema Singh recorded my statement in the hospital. I signed that statement. I have seen statement dated 15.6.2012. It bears my signature at point A. The same is ExPW4/A."
57. The prosecutrix thus has conveyed that she gave statement Ex.PW4/A despite the pressure exerted upon her by Seema Singh not to say anything against the assailants as it would spoil their future. This too signifies that the prosecutrix was conscious and in full senses before her statement Ex.PW4/A was recorded. There is nothing in the testimony of the prosecutrix to suggest that she was not in full senses when her statement Ex.PW4/A was recorded and hence was not able to describe the whole incident in detail. It may be noted here again that in this statement, prosecutrix has not alleged any type of sexual assault upon her by any of the accused.
58. The prosecutrix has not stated anything in her deposition as to when she was shifted from AIIMS Trauma Centre to main AIIMS Hospital and why. Her father PW5 has deposed that SC No.63/13. Page 52 of 82 as she was getting fits, was crying as well as shouting, she was shifted to Emergency Ward of AIIMS Hospital between 3.30 a.m. and 4.00 a.m. in the night in an ambulance and was then referred to Psychiatric Department for observations and treatment. He deposed that she was shifted to an isolated room in Psychiatric Ward of AIIMS on 17.6.2012. Her mother PW10 has deposed that her condition remained critical throughout the night after admission in AIIMS Trauma Centre and kept on weeping and thus was referred to AIIMS for psychiatric treatment. She also deposed that the prosecutrix was admitted to Psychiatric Ward where she was kept in an isolated room and they were advised not to leave any sharp object or any type of long cloth near her. The Ld. APP has miserably failed to point out any evidence on record to show that the prosecutrix was referred from AIIMS Trauma Centre to main AIIMS Hospital during the night of 15.6.2012 itself for psychiatric treatment as her condition was critical. Alongwith MLC Ex.PW8/A of the prosecutrix prepared in AIIMS Trauma Centre, there is one "Transfer Out Form" on record (now marked as Mark-J for the purposes of identification) which has remained to be proved by the prosecution. However, since it is the document of the prosecution itself and has been filed alongwith Charge Sheet, it can be considered and read in evidence without its formal proof, if it helps the defence. It is this document, by which the prosecutrix was taken out of AIIMS Trauma Centre and admitted in main AIIMS Hospital. The reason for transfer given in the said form is "Regret no beds, transfer to any other government hospital, patient needs observation, patient needs admission". It also mentions that patient be referred to new AIIMS SR psychiatric opinion for malingering. Therefore, it is evident that the SC No.63/13. Page 53 of 82 prosecutrix was not referred to main AIIMS Hospital for any further treatment and management. She was advised to be taken to some other hospital as there were no beds available in AIIMS Trauma Centre and she needed observations. Further it is also evident that it appeared to the doctors examining the prosecutrix in AIIMS Trauma Centre that she is faking psychiatric disorders and therefore was referred to the opinion of SR (Psychiatric) in AIIMS for malingering. Hence the argument that the prosecutrix remained critical throughout the night, was getting hallucination and was not in control of her senses is not substantiated by the medical evidence on record. The MLC or any other document under which the prosecutrix was admitted in AIIMS Hospital in the morning of 15.6.2012 after transfer from AIIMS Trauma Centre has not been produced or proved on record. The opinion of SR (Psychiatric) of AIIMS Hospital has not been produced on record. The Psychiatrist, who has examined and treated the prosecutrix in AIIMS Hospital, has not been examined as a witness. There is no evidence on record to show or suggest that the prosecutrix had developed suicidal tendencies and thus was kept in isolated ward with advise to her parents not to leave any sharp object or long cloth near her.
59. The fact remains that the prosecutrix did not tell either her parents or the doctor, who examined her in AIIMS Trauma Centre on 14.6.2012 or the IO PW17, who recorded her statement in the morning of 15.6.2012 that she had been subjected to vaginal as well as anal intercourse forcibly by the two accused. It is not clear from the evidence on record as to when did she narrate the incident of rape for the first time and to whom.
SC No.63/13. Page 54 of 82Prosecutrix's father PW5 has not stated anything in this regard in his deposition. Her mother appearing as PW10 has deposed that while the prosecutrix was being counselled by Dr. Diksha on 17th or 18th June, 2012, she told Dr. Diksha that she had been raped and Dr. Diksha apprised them about what prosecutrix had told her and it is at that point of time that they came to know that their daughter had been raped by Prashant and Milind. She further deposed that she herself talked to the prosecutrix thereafter, who told her in presence of Dr. Diksha that Prashant and Milind had committed rape as well as anal intercourse with her and also prepared her video film and threatened her to show the video film to her friends in case she disclosed the incident to anybody. She further deposed that Dr. Diksha then consulted her seniors, who called police. She also made a call to P.S. Vasant Vihar and apprised the police officials about what prosecutrix had told her and on the same day, fresh medical examination of the prosecutrix was conducted in AIIMS by Dr. Moumita in her presence. She noticed a swelling in the shape of a tennis ball just above rectum of the prosecutrix. Dr. Moumita had told her that there is a rupture in the hymen of the prosecutrix. In the cross examination, she reiterated that she came to know for the first time on 17.6.2012 in AIIMS that her daughter had been sexually assaulted. She did not know whether police officials had recorded her statement on that day i.e. 17.6.2012. She reiterated that the prosecutrix narrated the whole incident to her on 17.6.2012 in presence of Dr. Diksha. She further deposed that her husband was with her when she was informed by Dr. Diksha that the prosecutrix had been sexually assaulted. She had handed over the undergarment of tjhe prosecutrix, which she was wearing at the time of incident, to the SC No.63/13. Page 55 of 82 doctor, who conducted her medical examination.
60. Thus, as per the testimony of PW10, Dr. Diksha told her in presence of her husband on 17.6.2012 in AIIMS Hospital that the prosecutrix had been raped and thereafter the prosecutrix herself narrated the whole incident of rape and anal intercourse to her on the same day. However, PW5, the husband of PW10, has maintained eerie silence regarding this fact. He has nowhere deposed that his wife was informed by Diksha in his presence on 17.6.2012 that the prosecutrix had been raped. It cannot be believed that a father would forget that he had come to know from Dr. Diksha that his daughter had been raped and would not state anything about the same either in his statement u/s.161 Cr.PC or in his deposition before this court. It was a very serious matter and must have sent shivers down his spine and the same would have remained etched in his memory. Not mentioning about the same, in the statement to the police and in the deposition before this court by PW5 is indicative of the fact that PW10 has deposed falsely in this regard . Moreover, Dr. Diksha was nowhere in picture on 17.6.2012. She had neither examined the prosecutrix on that day nor was she attending the prosecutrix. Appearing as PW6, she deposed that she examined the prosecutrix for the first time on 28.6.2012 and declared her fit to give statement. She deposed that the IO had submitted application Ex.PW6/A seeking to know whether patient 'D' is fit for statement and she made endorsement X to X on the same declaring her fit for statement and then her statement was recorded by the IO in her presence. Hence Dr. Diksha had neither attended the prosecutrix nor examined her on 17.6.2012 and therefore there was no occasion for the prosecutrix SC No.63/13. Page 56 of 82 to narrate the rape incident to her. This too is indicative of the fact that PW10 has fabricated a false story that Dr. Diksha told her on 17.6.2012 that she was informed by the prosecutrix that she had been raped. Even prosecutrix has also not stated anything in this regard in her testimony.
61. To add more confusion to the case, prosecutrix's brother PW14 has deposed that after two days of the date of incident, prosecutrix told him as well as his parents in hospital in presence of the doctor that she was subjected to rape and unnatural sex by Prashant and another boy. However, in the cross examination, he admitted having mentioned in his statement to the police that after they brought prosecutrix home on the date of incident, she told him that accused Prashant and another boy had sex as well as unnatural sex with her. It is thus seen that there is no consistency or uniformity in the version of the prosecution witnesses regarding the date when the prosecutrix disclosed for the first time that she had been subjected to vaginal as well as anal intercourse and to whom. All the aforesaid witnesses have deposed contrary to each other in this regard. It is thus evident that PW10 has deposed falsely that the prosecutrix had told Dr. Diksha on 17.6.2012 that she had been raped and Dr. Diksha apprised her about the same in presence of her husband. The conduct of PW10 and PW5 also does not suggest that they had come to know on 17.6.2012 that there daughter had been raped and subjected to anal intercourse. None of them made a call at telephone no.100. None of them lodged a complaint in this regard either with the Duty Constable at AIIMS or in the concerned police station. None of them contacted the IO PW17 to apprise him about SC No.63/13. Page 57 of 82 the said new development.
62. It may be noted here that the MLC of the prosecutrix dated 17.6.2012 Ex.PW17/A is on record, which has been prepared by PW7 Dr. Moumita. She has deposed that the prosecutrix was brought to the hospital on that day for medical examination and she examined her. She has not explained whether prosecutrix was an indoor patient of the hospital or outdoor patient and who had brought the prosecutrix to her for medical examination. However, she has noted in the MLC Ex.PW7/A that the prosecutrix was brought by her parents for gynecological examination and the prosecutrix has given history of physical assault and sodomy. This indicates that the prosecutrix was not perhaps an indoor patient of the hospital and was brought to the hospital on that day by her parents for gynecological examination. If, as per the prosecution case and as deposed by PW5 & PW10, the prosecutrix had been admitted to Psychiatric Ward of AIIMS on 15.6.2012 and had been kept in an isolated room, then she should have been referred by the doctor of Psychiatric Ward to gynecological department of the hospital for gynecological examination and that too, if she had narrated the incident of rape and anal intercourse to the doctor attending her there. Nothing like that is demonstrated vide MLC Ex.PW7/A. Further, if as per the testimony of PW10, prosecutrix had informed Dr. Diksha on 17.6.2012 that she had been raped, Dr. Diksha should have referred her to Gynecological Ward for gynecological examination. That is also not the case. It appears that the prosecutrix was not admitted in AIIMS Hospital and was not an indoor patient and therefore was brought by her parents to the hospital on that day for gynecological examination. What SC No.63/13. Page 58 of 82 prompted the parents of the prosecutrix to bring her to the hospital on that day for gynecological examination cannot be discerned from the evidence on record. It is also not understandable as to why did not PW7 apprise her seniors in the hospital about the same. It has already been noted that the parents of the prosecutrix also did not inform police about the rape and sodomy of the prosecutrix on that day. It patently appears that the MLC Ex.PW7/A is not a genuine document and has been fabricated later on to strengthen police case against the two accused.
63. Even if the MLC Ex.PW7/A is taken on its face value, there is a history of sodomy only and not of rape. PW7 has clarified in her cross examination that since the prosecutrix was brought to her for only anal examination as there was history of sodomy, she examined only the anal area of the prosecutrix and did not examine the vaginal area. PW7 had found following external injury on the body of the prosecutrix on her examination :
(1) Sub conjunctival haemorrhage on left eye. (2) Multiple scratch marks and bruise marks over both forearms.
(3) Tender swelling present over sacrum.
64. She has deposed that a person can suffer injury of his/her sacrum bone, which is lower most bone of vertebral column and hard by nature, on account of a fall but not on account of anal intercourse. She had not found any stain marks around anus and both buttocks and also did not notice any fresh injury marks SC No.63/13. Page 59 of 82 around anal opening. Therefore, the findings arrived at by PW7 after the examination of anal area of the prosecutrix also do not suggest that she had been subjected to anal intercourse.
65. However, one thing is manifest from the aforesaid discussion that the prosecutrix was conscious and oriented atleast on 17.6.2012 when she had been brought to the hospital by her parents for gynecological examination and was examined by PW7. Why did not she narrate the whole incident to her parents or to PW7 on that day is what creates well founded doubt in the mind of the court regarding veracity and credibility of the whole prosecution case.
66. There is no further medical evidence on record as to what treatment was given to the prosecutrix in AIIMS Hospital till she was discharged on 28.6.2012 except the discharge summary Ex.PW6/B. According to the testimony of PW6, the said Discharge Summary was prepared by Dr. Anish, who had already left AIIMS hospital by the time he was summoned to testify in the court and PW16 Dr. Vichitra Nanda Patra appeared in his place to identify his signature at point A on the same. The contents of the said Discharge Summary also exposes the holes in the prosecution case. It is the case of the prosecution that the prosecutrix had been brought to AIIMS Trauma Centre in the late hours of 14.6.2012 by her parents and since her condition worsened during the night and became critical, she was referred to main AIIMS Hospital in early morning of 15.6.2012 where she remained admitted in Psychiatric Ward till her discharge on 29.6.2012. However, the Discharge Summary Ex.PW6/B shows that she was SC No.63/13. Page 60 of 82 admitted in AIIMS Hospital on 17.6.2012 and not on 15.6.2012 as projected by the prosecution and reiterated by PW5 as well as PW10 in their testimony before this court. The 'Transfer Out Form' Mark-J, reference to which has already been made herein-above, issued by AIIMS Trauma Centre on 15.6.2012 at 3.39 a.m. shows that she was taken out of AIIMS Trauma Centre on that day. Discharge Summary Ex.PW6/B shows that she was admitted in AIIMS Hospital on 17.6.2012. So where did she remain on 15.6.2012 and 16.6.2012 is not clear from the evidence on record which lends credence to the arguments raised by the Ld. Counsel for the accused that the prosecutrix was quite well upon leaving AIIMS Trauma Centre and therefore had been taken home by her parents and was brought to AIIMS Hospital on 17.6.2012 to get her admitted fictitiously in Psychiatric Ward in order to fabricate a false case against the two accused. It has nowhere been mentioned in the Discharge Summary that the prosecutrix had told any doctor, who treated and examined her in AIIMS Hospital that she had been subjected to vaginal as well as anal intercourse and had been referred to gynecological department on 17.6.2012 for gynecological examination. This shows that nobody knew till 28.6.2012, when the prosecutrix submitted a written complaint to the IO, that she had been raped.
67. Therefore, it seems the section 377 IPC had been fictitiously added to the FIR on 17.6.2012 with an ulterior motive to prevent the two accused, who had been arrested on 15.6.2012, from being released on bail. PW18 (IO) has deposed that she visited AIIMS Hospital on 17.6.2012 where the doctor told her that it is a case of sodomy and accordingly she added section 377 IPC SC No.63/13. Page 61 of 82 to the FIR. She did not recollect the name of the doctor, who told her so. MLC Ex.PW7/A shows that the prosecutrix was examined by PW7 Dr. Moumita on 17.6.2012, though she has mentioned in her testimony that she examined the prosecutrix on 15.6.2012. No statement of PW7 has been recorded by the IO on 17.6.2012. She also has not mentioned in her testimony that she met IO on that day and told her that it is a case of sodomy. As I have already noted herein-above, PW10 has deposed that Dr. Diksha had told her in presence of her husband on 17.6.2012 in AIIMS Hospital that the prosecutrix has been raped and thereafter prosecutrix herself narrated the whole incident of rape as well as anal intercourse to her (PW10) on the same day. It has also been discussed herein- above that Dr. Diksha was not in picture at all on 17.6.2012. It appears that the IO did not make any inquiry from PW10 or her husband PW5 on 17.6.2012. She has not recorded the statement of the prosecutrix on that day at all. It appears that the prosecutrix was able to speak coherently about the incident on that day in view of the deposition of PW10 that the prosecutrix had narrated the whole incident in detail to her. Therefore, the IO should have recorded the statement of the prosecutrix and proceeded further on that statement.
68. Thus it is manifest that section 377 IPC has been added to the FIR on 17.6.2012 fictitiously at the instance of the parents of the prosecutrix who fabricated a false story that they were informed by Dr. Diksha that the prosecutrix has been subjected to rape and anal intercourse by the accused. If it is to be believed that Dr. Diksha had apprised PW10 that the prosecutrix had been raped and thereafter prosecutrix also narrated the SC No.63/13. Page 62 of 82 incident of rape and anal intercourse to PW10, then section 376 IPC should also have been added to the FIR on the same day. That being not the case, the prosecution case in this regard appears to be motivated and concocted.
69. The prosecutrix has given her first detailed statement on 28.6.2012 wherein she has mentioned about the intoxication, abduction, rape, anal intercourse, beating etc. at the hands of the accused. It is on the basis of the said statement of the prosecutrix that section 376 IPC has been added to the FIR. This too falsifies the deposition of PW10 and PW14 that the prosecutrix had informed them on 17.6.2012 that she was subjected to rape by the accused.
70. As per the deposition of the prosecutrix, she had made a plan with her friend Manisha (PW11) to watch a movie at Saket on 14.6.2012. Manisha lives in her neighbourhood and they had planned to leave for movie at about 12 noon. When she was about to leave her house, she received a phone call from accused Prashant which she did not pick up. Instead there was exchange of text messages between her and accused Prashant wherein she informed him that she is going for a movie with Manisha and he expressed his desire to go alongwith them for movie, to which she did not show any resentment. Prashant conveyed to her that he will meet them at Priya Cinema, Vasant Vihar. Accordingly, prosecutrix and Manisha reached Priya Cinema, Vasant Vihar, in an auto rickshaw and had to wait for Prashant for a long time. She has deposed that Prashant arrived there in his black Honda Civic car. They boarded Prashant's car. She sat on the front passenger SC No.63/13. Page 63 of 82 seat and Manisha sat on the rear seat and Prashant started driving the car. She goes on to depose that at that moment, when they were planning what to do, Manisha told them that she has to go to meet her boyfriend Himanshu at Saket and told her to plan her day with Prashant. Accordingly, Prashant took a U-turn and dropped Manisha at auto rikshaw stand in Vasant Vihar and then again took a U-turn towards traffic light.
71. The aforesaid deposition of the prosecutrix does not appear to be convincing or believable. It does not appeal to reason that when she and Manisha had made a plan to watch movie on 14.6.2012 why would Manisha change the plan abruptly after they boarded the car of Prashant at PVR Cinema, Vasant Vihar. It appears from the cross examination of the prosecutrix that she had taken permission from her parents to watch a movie with Manisha on 14.6.2012. She has also deposed in the cross examination that she had told Prashant on 13.6.2012 that she is going to watch movie alongwith Manisha on 14.6.2012. She had not informed her any other friend about the said programme to watch a movie. It is indicated from the testimony of the prosecutrix that she made no attempt to persuade Manisha not to leave her alone alongwith accused Prashant and to be with her and to watch a movie as per plan. It seems that she wanted to get rid of Manisha so that she can spend time with her friend Prashant and for that reason was happy when Manisha told him that she is going to meet her boyfriend.
72. From the deposition of Manisha (PW11), it appears that the plan to watch movie was made on 10.6.2012 and the SC No.63/13. Page 64 of 82 prosecutrix had informed her on phone on 11.6.2012 that they will be going for a movie on 14.6.2012. PW11 has further deposed that the prosecutrix told her while travelling in auto rickhsaw that they will not be going for any movie and in fact, she is going to meet her friend Prashant. She further deposed that after Prashant met them at PVR Priya, Vasant Vihar, prosecutrix introduced her to him and then boarded Prashant's car. Prosecutrix then asked her where would she go and she told her that she would go to Amity University, Noida, for counselling for LLb. Course. Upon her inquiry, prosecutrix told her that she alongwith Prashant would go to meet her friend at Rajouri Garden and Punjabi Bagh and asked her to call her (prosecutrix) at 4 p.m.
73. Thus PW11 has stated contrary to what has been deposed by the prosecutrix. The version of PW11 seems to be more convincing, reliable and truthful. She had given her statement in writing to the IO during the course of investigation but since it did not favour the prosecutrix, the IO did not annex the said statement alongwith Charge Sheet. Said statement Ex.PW11/A was produced by the IO during the examination of PW11 in court pursuant to the directions issued by this court in this regard. Her testimony before this court is consistent with statement Ex.PW11/A, which bears the date as 07.7.2012. Therefore, I see no reason to disbelieve the testimony of PW11. Even otherwise also, it is not the case of the prosecution that PW11 has testified under the influence of the two accused.
74. A combined reading of the testimony of the prosecutrix as well as that of PW11 would demonstrate that the SC No.63/13. Page 65 of 82 prosecutrix had no intention to watch a movie with Manisha on 14.6.2012 and the plan for movie was hatched only to get an alibi to leave house so that she is able to spend time with her friend i.e. accused Prashant. Therefore, it is evident that the prosecutrix herself wanted to meet and spend time with her friend accused Prashant and accompanied him voluntarily from PVR Cinema, Vasant Vihar, in his car after dropping Manisha at auto rickshaw stand. The fact that the prosecutrix and accused Prashant were having a close friendship with each other and probably were in love with each other, is evident from the report Ex.PW18/D1 submitted by PW18 (IO) in the court of Ld. A.S.J. during the course of hearing the bail application of the accused. The report Ex.PW18/D1 reveals that nine text messages were exchanged between the prosecutrix and accused Prashant from 12.03 a.m. to 12.10 a.m. in the night intervening between 13.6.2012 and 14.6.2012 and further 15 text messages were exchanged between them from 10.35 a.m. to 11.44 a.m. on 14.6.2012. The exchange of aforesaid text messages between the prosecutrix and the accused at the dead of the night indicates that there was something more between them than mere friendship and probably they were discussing how to spend time in the company of each other on 14.6.2012. Therefore, the prosecutrix has deposed falsely that after they dropped Manisha at an auto rickshaw stand, she asked Prashant to drop her also at auto rickshaw stand as her cousins were waiting for her at her residence, but he offered to drop her at home, to which she agreed. Admittedly, the prosecutrix had taken permission from her parents to watch movie with Manisha and thus was not expected to return home atleast before 5 p.m. Where was the occasion for her to tell Prashant that SC No.63/13. Page 66 of 82 she has to reach home as her cousins are waiting for her. It appears that she is consistently fabricating false stories to support the prosecution case.
75. The deposition of the prosecutrix and PW11 reveals that they had left from the house of PW11 at 12.15 p.m. The prosecutrix has deposed in the cross examination that the accused Prashant reached Priya Cinema around 1 p.m. She has further deposed that she alongwith Manisha and Prashant were together in Prashant's car for just 5 to 10 minutes and Prashant purchased the Coke bottle about 2 or 3 minutes after dropping Manisha at auto stand. She could not tell how much time did she take to consume the glass of Coke. She however deposed that the person in white shirt i.e. accused Milind boarded the car after about ten minutes of her finishing the Coke bottle. So a rough estimate can be reached that accused Milind boarded the car any time between 1.30 p.m. and 1.45 p.m. near T-point. However, the evidence on record indicates that accused Milind and accused Prashant were at totally different locations throughout the day on 14.6.2012 whereas accused Prashant and the prosecutrix were together.
76. The report Ex.PW18/D1 prepared by PW18 (IO) on the basis of analysis of call details record of the mobile no. 9899953556 of the prosecutrix shows that her location was at Vasant Vihar till 12.43 p.m. and thereafter she was at Paschim Vihar at 1.44 p.m. She remained in Paschim Vihar area for a considerable period of time and was near Gurudwara Singh Sabha, DDA Flats, New Delhi, at 4.40 p.m. SC No.63/13. Page 67 of 82
77. The report Ex.PW18/D2 prepared by the IO (PW18) regarding the movements of accused Milind on 14.6.2012 from the analysis of call details record of his mobile phone no. 9999942289, which report was submitted by her in the court of Ld. A.S.J. at the time of hearing the bail application of the accused, shows that accused Milind was moving in totally different directions. He was present in C-2D Market, Janakpuri, at 10.12 a.m, in Shahpuri, Delhi, at 10.32 a.m., near District Centre, Janakpuri, at 10.46 a.m., in Vikaspuri at 10.56 a.m., in Prem Nagar at 11.17 a.m., in Tilak Nagar at 11.18 a.m. in Ramesh Nagar at 11.34 a.m., near Brar Square railway station at 11.57 a.m., in Chankyapuri near Maurya Sheraton Hotel at 12.01 p.m., in Chankyapuri at 12.13 p.m., at Man Singh Road between 12.21 p.m. and 12.46 p.m., in Village Nanakpura, New Delhi, from 12.46 p.m. till 3.23 p.m., in Satya Niketan at 3.24 p.m., in Gopi Nath Bazar at 3.47 p.m., in his house in C-2D Market, Janakpuri, at 4.48 p.m. where he remained till 5.35 p.m. Thereafter, the location of accused Milind kept on changing and ultimately he was present at Rajouri Garden at 5.54 p.m. and 6.03 p.m. His location was then in Ramesh Nagar at 6.19 p.m., in Bali Nagar at 6.26 p.m., in Raja Garden at 6.27 p.m., in Gurudwara Singh Sabha, DDA Flats, Shivaji Enclave, between 6.56 p.m. and 7.08 p.m., in Vasant Vihar at 8.02 p.m., in Satya Niketan at 8.20 p.m., in Dhaula Kuan at 8.21 p.m., near Brar Square railway station at 8.22 p.m. in Tagore Garden area at 8.43 p.m. and finally in his house in C-2D Market, Janakpuri, at 8.49 p.m.
78. The report Ex.PW18/D2 further demonstrates that accused Milind had received four calls from accused Prashant at 5.20 p.m., 5.25 p.m., 5.36 p.m., 5.41 p.m. and 5.47 p.m. on SC No.63/13. Page 68 of 82 14.6.2012 and the calls lasted for 75 seconds, 76 seconds, 19 seconds, 20 seconds and 16 seconds respectively. At that time, the location of accused Prashant was at Shivaji Enclave, New Delhi, whereas accused Milind in his house at Janakpuri.
79. The movements of accused Milind throughout the day on 14.6.2012 as reflected from the aforesaid report Ex.PW18/D2, is in consonance with the defence taken on his behalf that he met the accused on that day for the first time at 6 p.m. He has stated in his statement u/s.313 Cr.PC that he had been selected for management training in the Taj Hotel and he had to reach the Hotel Taj, Khan Market, on 14.6.2012 for medical test. He has stated that he reached the Hotel Taj, Khan Market, at 11.30 a.m. And remained there till 12.45 p.m. His friend Dhruv was with him and then they went to Khan Market for recharging his mobile phone. He stated that they left Khan Market at about 1 p.m. and reached Satya Niketan around 2 p.m. as household articles of Dhruv like utensils and bedding were in his car as he had shifted from Vikaspuri to Satya Niketan where he had taken a flat on rent. They remained in rented room of Dhruv in Satya Niketan till 4 p.m. and also had lunch there. He left at about 4 p.m. and reached home at 4.30 p.m. He received a call from accused Prashant after about 15 to 20 minutes saying that his girlfriend is with him, who is heavily drunk and he has become very scared. He stated that upon persistent requests of Prashant, he met him at Rajouri Garden petrol pump at 6 p.m., parked his car near petrol pump and boarded Prashant's car. When prosecutrix saw him, she came out of the car and sat on the rear seat of the car. He sat on the front passenger seat. He noticed that prosecutrix was little drowsy SC No.63/13. Page 69 of 82 and Prashant was very scared as prosecutrix's parents had been calling him as well the prosecutrix. On his suggestion, Prashant bought some lemon and water, which prosecutrix took so that she felt a little better. The prosecutrix told them that she wanted to be little bit better as she cannot face her parents and accordingly they drove in Rajouri Garden area for some time and thereafter dropped her near McDonald restaurant, at Vasant Vihar at about 7.30 p.m. The prosecutrix told them that she is O.K. and her parents would be coming any time and then they left.
80. Here it would be relevant to refer to the testimony of aforementioned Dhruv Tyagi, who has been examined by the accused in defence as DW4. He has deposed that accused Milind, his college friend, had come to his maternal uncle's house at Vikaspuri on 14.6.2012 at 10.30 a.m. where he was residing at that time. Milind had come to help him in shifting to rented accommodation at Satya Niketan. He deposed that on account of very high temperature on that day, Milind's shirt had become dirty due to profuse sweating. Accordingly, they went to the house of their common friend at Ramesh Nagar where Milind changed his shirt and wore Karan's shirt and they left Karan's house at 11 a.m. They reached Hotel Taj at 11.30 a.m., where Milind had to participate in some orientation programme and remained there till 1 p.m. or 1.15 p.m. Thereafter they went to Khan Market where he had to recharge the mobile phone and from there, they went to his rented accommodation at Satya Niketan at about 2.30 p.m. Milind remained there till 4 p.m., during which period they had meals and then he left.
SC No.63/13. Page 70 of 8281. Karan Bhatia, the common friend of Milind and Dhruv appeared as DW3. He has fully supported the version of DW4. He deposed that Milind and Dhruv had come to his house on 14.6.2012 at 11 a.m. as Milind's shirt had become dirty on account of profuse sweating and he had to reach Hotel Taj to participate in management training programme. He confirmed that the Milind had come to his house to change his shirt. Milind changed his shirt in his house and they left alongwith Dhruv in Hotel Taj. He deposed that they stayed in his house for just 5 to 7 minutes. In the cross examination, he deposed that he had given his white colour shirt to Milind to wear and thereafter he did not talk to Milind during that day.
82. It is also pertinent to refer here to the testimony of DW5 who works as General Manager (Learning & Development), Hotel Taj, New Delhi. He proved the photocopy of the relevant page of the entry/exit register maintained at the staff security gate of the hotel for 14.6.2012 as Ex.DW5/A which shows that Milind had entered the hotel premises at 12.25 p.m. and left at 1.10 p.m.
83. Therefore, the defence raised on behalf of accused Milind that he was not with Prasant and the prosecutrix throughout the day on 14.6.2012 and he met them for the first time at about 6 p.m., is fully established from his movements as reflected by the analysis of the call details record of his mobile phone no. 9899942289. The fact that he was with his friend Dhruv till 4 p.m., is evident from the testimony of DW3 and DW4. The fact that he had gone to Hotel Taj and was there between 12.25 p.m. and 1.10 SC No.63/13. Page 71 of 82 p.m. is evident from the testimony of DW5.
84. In view of the evidence led by the prosecution itself in the nature of documents Ex.PW18/D1 and Ex.PW18/D2 coupled with the alibi raised by accused Milind in his statement u/s.313 Cr.PC which gets substantiated by the testimonies of DW3, DW4 & DW5, it emerges undoubtedly that the prosecutrix has spoken a blatant lie that accused Milind joined accused Prashant between 1.30 p.m. and 1.45 p.m. and then remained alongwith them throughout the whole day.
85. Now since it is established on record beyond doubt that accused Milind was not with accused Prashant on 14.6.2012 till about 6 p.m. and he met Prashant as well as the prosecutrix for the first time around 6 p.m. on that day, upon repeated requests from accused Prashant to help him in dropping the prosecutrix safely at some place as she was in inebriated condition, the whole prosecution case falls flat. Hence it is patently evident that the prosecutrix has fabricated a false story of abduction, rape and anal intercourse against the two accused. It has come in the evidence of the IO (PW18) that after the prosecutrix was discharged from the hospital on 29.6.2012, she did not cooperate in the investigation and hence the IO had to visit Tihar Jail to interrogate the two accused to know exactly what had happened on 14.6.2012. It is on account of non cooperation of the prosecutrix that no effort was made by the IO to find out the under- construction building wherein the crime is stated to have been committed by the accused. From the testimony of the prosecutrix, it appears that she was taken to a room on the first floor of an SC No.63/13. Page 72 of 82 underconstruction building wherein there was only one round bed and a black colour stabilizer. She has stated that there was no fridge or any water tap in the room. There was not even a bucket or a mug in the room. She has also deposed in the cross examination that both the accused had remained with her in the room and did not go out of the room. Therefore, it is not understandable from where did the two accused get the bag of ice with which she was hit upon which she became unconscious. It is not the case of the prosecution that the accused had carried the bag of ice from their car alongwith them to the underconstruction building. Even if it is assumed for the sake of argument that ice bag had been brought by the two accused from their car alongwith them, then also the ice would have melted by the time, they committed rape and anal intercourse with the prosecutrix and it would have been a bag of water and not ice. It is to be kept in mind that the incident is stated to have taken place in the month of June, 2012 when the temperature usually hovers around 40 degree Celsius. From the testimony of the prosecutrix, it also appears that it was a sunny day on 14.6.2012 which indicates the temperature would have been around 40 degree Celsius. Therefore, it cannot be believed that the ice would have remained in the bag intact for such a considerable period of time during which the accused raped the prosecutrix one by one and also committed anal intercourse with her one by one.
86. Prosecutrix has further deposed that before leaving from underconstruction building, the accused decided to clean her up and accordingly poured cold water upon her. They cleaned her each and every body part and then made her to wear clothes. As SC No.63/13. Page 73 of 82 already noted herein-above, there was no water tap in the room and not even any bucket or mug. Hence it also appears to be a mystery as to from where did the two accused get so much of cold water which they used to clean each and every body part of the prosecutrix.
87. Prosecutrix has also deposed that accused Prashant had a bottle in his hand which he banged and a piece of bottle injured her left leg. However, MLC Ex.PW8/A shows that no such injury was found in her left leg when she was brought to the hospital by her parents on that day.
88. The testimony of PW13 Ms. Astha does not appear to be credible and trustworthy. She has made marked improvements over her previous statements recorded during the course of investigation. She has deposed that when she made a call on the mobile number of 'D' on the date of incident, it was picked up by Prashant, who told her that they have prepared a nude video of the prosecutrix and issued threats that in case she narrated this to anybody, they will kill the prosecutrix and upload the said video on the internet. At another place, she has deposed that she later on also talked to prosecutrix on phone after she had been dropped by the accused and she told her that she is in intense pain as the accused have committed very wrong act with her. However, it appears that she did not apprise the parents of the prosecutrix about what Prashant and prosecutrix told her on phone. She also has not stated so in her statement u/s.161 Cr.PC. Her statement u/s.161 Cr.PC has been recorded on 28.6.2012 i.e. just after 14 days of the incident and hence it cannot be said that she had SC No.63/13. Page 74 of 82 forgotten about the same. In view of these embellishments in her testimony, she does not appear to be a credible and truthful witness.
89. If the testimony of PW13 is believed, it shows that the prosecutrix was conscious and speaking coherently after she was dropped by the two accused at Vasant Vihar. The prosecutrix told her that she had been subjected to very wrong act by the two accused. The IO appearing as PW18 has deposed that she alongwith the prosecutrix visited the spot, where prosecutrix had been dropped by the accused after the incident, on 30.6.2012 and she prepared rough site plan of the same Ex.PW18/A at the instance of the prosecutrix. This too indicates that the prosecutrix was fully conscious when she had been dropped by the two accused on that spot after the incident and had noticed its surroundings. It is only then that she pointed out the spot to the IO and the site plan Ex.PW18/A was prepared. Therefore, one wonders why did not the prosecutrix tell her mother and her brother, who had picked her up from that spot, that she had been subjected to wrong act by the two accused. The testimony of PW10 also shows that the prosecutrix was conscious till she was brought home by her and her son (PW14) and became unconscious after her clothes were changed by PW10. It may also be noted here that the prosecutrix too has deposed that after she was taken by her brother and mother from the spot where she was dropped by the two accused, she received a call from Prashant which too is indicative of the fact that she was conscious while travelling home from that spot alongwith her brother and mother.
SC No.63/13. Page 75 of 8290. The fact that the prosecutrix did not tell her mother and brother while going home in the car with them from the spot she was dropped at by the accused, that the accused had raped and sodomised her would clearly demonstrate that she had not been subjected to any such act. It further appears that the prosecutrix had been dropped by the accused near a police barricade where police officials were present on duty. IO (PW18) has deposed in cross examination that photographs Ex.PW18/D4 are the CCTV grabs of the spot at the time when prosecutrix was dropped there and she had filed these at the time of hearing of the bail application of the accused. She has admitted (it can even be seen by having a cursory look at the photographs) that in these photographs, two police officials are seen talking to the accused. The conduct of the accused in dropping the prosecutrix near a police barricade in presence of police officials and even talking to the police officials present there is indicative of the fact that they did not have any guilty conscience and had not committed any crime. Any person committing a crime for the first time in life would never show such temerity to drop the victim near a police barricade. Those two police officials, who had talked to the accused, were very material witnesses. However, the IO did not find it necessary to trace them and to make inquiries from them.
91. It is the case of the prosecution itself that the clothes of the prosecutrix such as Top, Jacket, Pajama, Underwear and Brassery which she was wearing on the date of incident as also her pubic hair, nail clippings and anal smear (obtained by the doctor at AIIMS Trauma Centre on 14.6.2014 itself and seized by PW17 vide memo Ex.PW17/A) were sent to FSL for forensic examination. The SC No.63/13. Page 76 of 82 FSL report Ex.PC reveals that the semen was not found on any of these. Hence the FSL result also contradicts the theory of rape and anal intercourse. It was argued by the Ld. APP that since the body of the prosecutrix was completely washed by the accused before leaving the underconstruction building, for this reason no semen could be found in her sample. The argument though seems having force but is of no help to the prosecution. It is not the case of the prosecution that the inner and outer clothes worn by the prosecutrix on the date of incident too had been washed. That not being the case, there should have been semen stains atleast on her underwear and Pajami but no semen stains were found on these two pieces of clothing also.
92. Thus, viewed from any angle, the proseuction case does not appear to be credible, truthful or trustworthy. The prosecution witnesses such as PW11 and th IO herself (PW18) have exposed holes in the prosecution case. The evidence led by the prosecution when read alongwith evidence led in defence, demonstrates that the defence raised by the accused is more probable and acceptable. The overall scrutiny of the evidence led by both the parties reveals that the prosecutrix was having fancy for accused Prashant and had decided to spend time with him on 14.6.2012. She made a plan with her friend Manisha PW11 to watch a movie on 14.6.2012 only to find an excuse to leave the house on that day and she had no intention to watch the movie at all. She left in the company of accused Prashant in his car from Vasant Vihar and had consumed liquor with him, upon which she became highly intoxicated. Accused Prashant got scared and did not know what to do. He called his friend accused Milind and SC No.63/13. Page 77 of 82 requested his help. Accused Milind joined accused Prashant and prsoeucutrix at about 6 p.m. near Rajouri Garden Petrol Pump and ultimately, the prosecutrix was dropped safely at Vasant Vihar when her condition had become better.
93. It is undoubtedly evident from the assessment of the evidence on record that a false complaint of abduction, rape and anal intercourse has been lodged by the prosecutrix against the two accused at the instance of her parents, who were enraged, probably for the reason that their daughter had consumed liquor in the company of accused Prashant and hence wanted to teach him a lesson. A totally false story of abduction, rape and anal intercourse has been concocted, which could not stand during the trial and was falsified by witnesses of prosecution itself.
94. It would be very pertinent to note her that the conduct of the investigating officer PW18 has not been fair and reasonable towards the accused. It appears that initially she started conducting investigation fairly and impartially but when the father of the prosecutrix complained against her to the senior officers, she thought it better to dance to his tunes. She has admitted in her cross examination that the complaint dated 02.7.2012 Ex.PW18/D3 from the mother of accused Milind had been received in the police station and was marked to her for inquiry. It may be noted that in the said complaint, Milind's mother Nisha Kapoor had set out in detail the movements of Milind on 14.6.2012 from morning till evening and had also mentioned her mobile phone number as well as mobile phone number of Milind, his friends Dhruv Tyagi and Karan Bhatia. She had urged the police officials to SC No.63/13. Page 78 of 82 obtain call detail records of these mobile numbers to verify their tower positions on 14.6.2012. PW18 has fairly admitted that she did not conduct verification regarding movements of accused Milind and the prosecutrix as mentioned in the said complaint Ex.PW18/D3. She admitted not having visited the Hotel Taj, Khan Market, during the inquiries on the said complaint to verify whether accused Milind was present there on 14.6.2012 and if so, from what time upto what time. She has admitted that she had prepared reports Ex.PW18/D1 and Ex.PW18/D2 regarding movements of prosecutrix and accused Milind on 14.6.2012 on the analysis of call detail records of their mobile phones and had submitted the same to the Sessions Court during hearing of bail application of the two accused. It is a matter of great regret that she totally ignored the contentions raised in complaint Ex.PW18/D3 and her own conclusions reached on perusal of the call detail records of prosecutrix and accused Milind, as mentioned in report Ex.PW18/D1 and Ex.PW18/D2. Had these three documents been considered by the IO at the time of preparing the final report in this case, the conclusion reached by her would have been otherwise and the two accused, who are in the prime of their youth and in earlier 20's, may have been saved from the rigors of facing a criminal trial. Not only this, the IO seems to have been deliberately withheld the written statement Ex.PW11/A submitted to her by PW11 on 07.7.2012. She ignored this statement also and did not mention anything about the same either in her Case Diary or in the Charge Sheet. She did not annex the said statement alongwith Charge Sheet. She had to file the same before this court during the trial of the case pursuant to the directions issued by this court. It is thus apparent that the investigation of this case has SC No.63/13. Page 79 of 82 been totally partial with the only thing in the mind of the IO that the evidence collected by her which favours the accused and points towards their innocence should not reach the court. The conduct of the IO is highly depricable and deplorable. She has betrayed the trust reposed by public upon a police official
95. The object of investigation is to ascertain the credibility and truthfulness of the allegations contained in the FIR. The role and duty of an investigating officer is to proceed to the spot of crime to gather evidence, record the statements of the witnesses, to take opinion of medical as well as forensic experts and to form an opinion whether or not the alleged offence has been committed and if so, by whom. The investigating officer may then file either a report u/s.169 Cr.PC, if he does not find any evidence inculpating the accused or a report u/s.173 Cr.PC, if he collects prosecutable evidence against the accused which prima facie points towards the guilt. There is no rule of law requiring an investigating officer to withhold or conceal the evidence collected by him during the investigation of the case, which favours the accused and establishes his innocence. The IO is duty bound to present every piece of evidence collected by him during investigation, before the court either in the form of report u/s.169 Cr.PC or report u/s.173 Cr.PC. The IO is duty bound to act impartially in collecting all the relevant evidence during the investigation of a case and to present the same before the court, whether favouring accused or the prosecution.
96. The aim of the police officer investigating a case should be to collect evidence and not to create it. It is his sacred SC No.63/13. Page 80 of 82 duty to find out the truth by an honest and straightforward investigation and not to play in the hands of the persons who have any vested interest in the case. Concoction or fabrication of evidence, even in case of a known criminal, is a crime.
97. In western countries like United Kingdom etc., police officers are taught that if a piece of evidence favourable to the accused comes to light during the investigation, it must as a matter of course be communicated to the defence. It appears that in India, no such guidelines are given to the police officers. Section 173 Cr.PC requires a police officer to supply only those documents and statements to the accused, upon which the State relies to prosecute him. But that does not authorise or empower an investigating officer to ignore any evidence, which favours the accused, even during the course of investigation itself and file a report u/s.173 Cr.PC after disregarding such evidence.
98. Time has come, in the opinion of this court, that certain necessary guidelines be framed making it mandatory for the investigating officers to bring to the notice of the accused at the stage of investigation itself, all the evidence (documentary or oral) which favours the accused.
99. Be that as it may, the investigation in the instant case has been designedly defective and partial. The IO has committed breach of professional standards by ignoring, disregarding and withholding material evidence which pointed to the innocence of the accused. There have been intentional acts of commission and omission on her part prejudicial to the interests of the accused.
SC No.63/13. Page 81 of 82100. This court regrets to note that the two accused herein, young boys in their early twenties had to face trial for the crime which they had not committed at all. They had to suffer incarceration in jail for more than one year and had to undergo rigors of a criminal trial for about two years. Their educational as well as professional career has been jeopardized apart from the humiliation and ridicule faced by them on being accused in a rape case. The mental agony, distress and pain suffered by them during all these years is not difficult to fathom.
101. Both the accused are hereby acquitted. Their bail bonds are released and sureties discharged. They shall be at liberty to claim compensation from the prosecutrix and her family for being falsely implicated in this case, if so advised.
102. A copy of this judgment be sent to the Commissioner of Police, Delhi, with the hope that the concerns raised in the judgment would be adequately addressed and a message is sent down the line to all the investigating officers to inform the accused about the evidence gathered during the course of investigation which favours them and not to withhold or conceal any such evidence from the court so that the accused would get justice at the earliest possible opportunity.
Announced in open (VIRENDER BHAT)
Court on 28.2.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.63/13. Page 82 of 82