Delhi District Court
State vs . 1. Om Prakash on 26 October, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE (NW)-II: ROHINI COURTS: DELHI
Session Case No. 1128/09
Unique Case ID No. 02401R0549272005
State Vs. 1. Om Prakash
S/o Bhagwan Singh
R/o VPO Khori,
Distt. Rewari, Haryana
(Acquitted)
2. Rakesh @ Pehalwan
S/o Dayanand
R/o Village Kheri Saadh
Distt. Rohtak, Haryana
(Acquitted)
3. Tek Chand
S/o Daya Chand
R/o Village Banswa,
Distt. Faridabad, Haryana
(Acquitted)
FIR No. 502/04
Police Station: Jahangir Puri
Under Section: 366/365/376/343/34 Indian Penal Code
Date of committal to session court: 15.7.2005
Date on which orders were reserved: 21.10.2010
Date of Decision: 26.10.2010
JUDGMENT:
As per the allegations on 9.4.2004 all the three accused i.e. Om Prakash, Rakesh @ Pehalwan and Tek Chand in furtherance of their common intention abducted prosecutrix 'V' St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 1 of 71 (name of the prosecutrix is withheld as this is a case under Section 376 Indian Penal Code) with the intention and knowledge that she may be compelled and forced to illicit intercourse. It is also alleged that all the accused having knowledge that the prosecutrix had been abducted wrongfully, concealed/ confined her at Police Station Firozpur Jhirka, CIA Staff. Further, it has been alleged that at the office of CIA Staff, Firzpur Jhirka, all the accused being public servants and taking advantage of their official position being Sub Inspector and Constables of CIA Staff had committed gang rape upon the prosecutrix 'V' who was in their illegal custody.
BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 9.4.2004 the prosecutrix 'V' and her husband Nisar Ahmed were abducted from their house at Jahangir Puri by ASI Om Prakash, Ct. Tek Chand, Inspector Tewatia and Ct. Pehlwan (staff of CIA, Police Post Ferozepur Jhirka, Distt. Gurgaon, Haryana). The prosecutrix and her husband were thereafter taken to CIA Police Post, Ferozepur Jhirka where the prosecutrix 'V' was raped by accused Om Prakash, Tek Chand and Pehalwan in the room of Om Prakash. The prosecutrix was released on 9.4.2004 at about 8:00 pm but her husband was still kept in lock-up. The prosecutrix was threatened to remain quiet and not to report the matter to any one and it is for this reason that the prosecutrix did not disclose this fact to anybody. On 16.4.2004 the husband of the prosecutrix namely St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 2 of 71 Nisar Ahmed was released from the illegal custody of the Staff of CIA, Ferozepur Jhirka and only thereafter the prosecutrix informed him about the incident. On 19.4.2004 the prosecutrix got herself medically examined in Safdurjung Hospital and approached the officials of Police Station Jahangir Puri along with a complaint against the officials of CIA Staff, Ferozepur Jhirka but the Station House Officer, Police Station Jahangir Puri refused to receive the complaint pursuant to which the prosecutrix filed a Criminal Writ Petition bearing no. 529/04 before the Delhi High Court. Vide order dated 13.7.2004 the Hon'ble High Court directed the Station House Officer, Police Station Jahangir Puri to register an FIR pursuant to which the present FIR was registered and investigations conducted. During the investigations, the statement of the prosecutrix 'V' was got recorded under Section 164 Code of Criminal Procedure before the Ld. Metropolitan Magistrate. On 19.4.2005 the accused Om Prakash was arrested from the SSP Office, Gurgaon and the accused Rakesh @ Pehalwan was arrested from village Kheri Sadh, District Rohtak. On 18.5.2005 the accused Tek Chand surrendered before Inspector S.P. Yadav after which he was arrested in the present case. After completion of investigations, all the three accused were charge sheeted for the offence under Section 366/ 365/ 376/ 343/ 34 Indian Penal Code.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 366/34, 368/34 and 376(2) (g) read with 376-B St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 3 of 71 Indian Penal Code against the accused Om Prakash, Rakesh and Tek Chand to which they have pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution examined as many as 33 witnesses:
Prosecutrix/ public witnesses:
PW3 'V' is the prosecutrix who has testified that on Nineth April (year she does not remember) but it was five to six years ago when she was present at her house at Jahangir Puri, six to seven police officials came to her residence in a white car and took her and her husband to Ferozepur Jhirka, Haryana. According to the prosecutrix, her father in law had brought the said police officers who took them to in the police station Ferozepur Jhirka where she was locked in a separate room and her husband was locked in separate room. She has identified the accused Om Prakash as the person who came to her room and slapped her and when she raised an alarm, he gagged her mouth with a cloth and removed her clothes and raped her and left her in the room. She has further identified the accused Pehalwan, who came to her room when she was unconscious and raped her. She has further deposed that thereafter the accused Tek Chand came to the said room and raped her. Thereafter she and her father in law were let off while her husband was still kept in a room and the accused threatened to kill her husband if she disclosed this fact to anybody due to which reason she did not disclose this fact to anybody till 16.4.2004 when St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 4 of 71 her husband was released she disclosed the incident to him.
According to the prosecutrix, she remained at village Khera till Sixteenth April and when her husband was released, they came back to Delhi and went to Police Station Jahangir Puri to lodge her complaint but there her complaint was not lodged and her father-in-law was beaten due to which reason he received injuries on his eye after which they sent to Safdurjung Hospital. She has deposed that she filed a Writ Petition in the High Court and it was on the directions of the High Court that the case was registered and she was got medically examined after which her statement under Section 164 Code of Criminal Procedure was recorded. She has proved her statement under Section 164 Cr.P.C. which is Ex.PW3/A bearing her thumb impressions. According to her she was taken for conducting the Test Identification Parade though she does not remember the date, month or year where she did not identify any of the accused persons in Tihar Jail. The said Test Identification Parade proceedings are Ex.PW3/B wherein she had identified her thumb impression. According to her, three persons had come to their house and threatened her and her father-in-law not to identify them in the court and it was her father-in-law who had disclosed their names to her and that is why she identified the accused by their names.
In her cross-examination the said witness has deposed that she along with her husband, father in law and Chachia Sasur had gone to Safdurjung Hospital where she did not disclose St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 5 of 71 anything to lady doctor but according to the witness, her husband or the police personnel must have told the doctor regarding the incident but what they had told the doctor she is unable to tell. She has admitted that she had told the doctor that the police personnel committed rape upon her in a car and when asked to clarify as to whether she was raped in the car or in the room as stated in her examination in chief, she asserted that she was raped in the room as deposed in the court. She is not aware if the police persons were looking for Aslam (her Chachia Sasur) in connection with a dacoity case and has denied the suggestion that she had stated in her statement given to the police that all the three accused persons locked her in a room and committed rape upon her and according to her, she did not give any statement to the police. Further, according to the witness she had been taken to hospital by her husband and father-in-law and she does not remember if any police person had accompanied her and admits that she had refused her internal check-up in Jahangir Puri Hospital. She has, however, denied the suggestion that she has refused her internal check-up since no rape had been committed upon her. According to PW3, she is not aware if her father-in-law had made a complaint against the police persons before 16th April. She has further deposed that she and her father-in-law had been dropped in village Dhodh in car at about 6-7 pm. She has deposed that there were other police officers in the police station but she is not aware if public persons were also present in the police station. She is unable to tell how many rooms were there in the police station and the SHO Iqbal is St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 6 of 71 in their relation. She has, however, denied having known anybody by the name of Wahid Hussain and according to the witness, she had only seen her husband, her father in law and Chachia Sasur at the time of her medical examination in Safdurjung Hospital. She has admitted having visited the court once for her statement and thereafter four to five times along with her Chachia Sasur but has denied the suggestion that she had implicated the accused persons at the instance of Chachia Sasur. According to the witness, she had seen the accused persons at Ferozepur when they had come on 9th April (year she does not remember) but has denied that neither she nor her husband had been taken anywhere and the entire incident had been concocted. She has deposed that her father in law had been apprehended from their native village and he was given beatings and according to her, it was her father in law who told her about the said beatings. The witness has further deposed that her Dadia Sasur and Dadia Sas also used to live with them in Jahangir Puri and according to her, on the date of incident they were not at home. Further, in her cross-examination she had deposed that she is not aware if there is a case pending against her husband in the court of Police Station Punhana, Ferozepur Jhirka. According to the prosecutrix, she was taken to the police station and immediately locked in a room. She has further deposed that she had gone to the house of her Tao Sasur with her torn clothes on her body and he gave her fresh set of clothes but she did not disclose anything to him despite his asking. She has deposed that on 16.4.2004 her husband came to the house of her parents in the morning and on the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 7 of 71 same date they came back to Delhi and went to Police Station Jahangir Puri and thereafter she along with her father-in-law and other family members went to Safdurjung Hospital. Further, according to the witness, after the accused Om Prakash raped her she became unconscious. The witness has further deposed that after the rape she kept on bleeding for many days and got treated for the same but none from the Delhi Police came to make inquiries from her after registration of the case. According to the witness, she had received a large number of threats at her residence at Jahangir Puri but no complaint in writing has been given in police station Jahangir Puri. Further, she is not aware the names of seven police persons as mentioned in the writ petition and according to her, it was on 1.5.2004 that for the first time her father in law told her the names of the accused. She has deposed that her father in law and her husband were booked in different cases before the registration of the present case. The witness has denied that after her marriage she remained at Kherla or that her husband used to run a pan shop at Kherla which he is still running till date. She has deposed that accused had given severe beatings to her father in law on 1.4.2004 on which day she was in Kherla when the accused persons along with other police officials had lifted her father in law. She is further not aware if her mother had given a statement before Magistrate at Ferozepur Jhirka stating that her in-laws are pressurizing her daughter for falsely implicated the police officials of CIA Staff Ferozepur Jhirka in the case of rape. The witness has further deposed that when she regained consciousness there was St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 8 of 71 nobody in the room and she was lying naked on the hard floor after which she wore her clothes while sitting inside the room and after she regained consciousness nobody had committed rape upon her.
PW5 Noman Khan is the father in law of the prosecutrix who has deposed that on 1.4.2004 at about 2:00 pm while he was present at his shop in his village, six to seven police officials from CIA Staff of Ferozepur Jhirka came to the shop in a while colour vehicle Marshal which included all the three accused along with one Tavetia, Bashir and another person whose name he does not remember and lifted him from his shop and took him to Police Station Punhana after which they took him to CIA Post Jhirka where he was kept till 4.4.2004. According to him, on 5.4.2004 he was taken to CIA-I Gurgaon where he was subjected to third degree torture by the police officials till 07.4.2004 and thereafter he along with Hazi Hasruddin and one Kalu were also detained by the CIA Staff and were brought back to Ferozepur Jhirka. According to him, on 8.4.2004 during night time accused Rakesh @ Pehlwan woke them up and again subjected him and other associates to third degree torture and on 9.4.2004 he was brought to Jahangir Puri G-708 Delhi by six to seven police officials while his son Nisar Ahmed was taking a bath on first floor and his wife (daughter-in-law of the witness) was making tea on the ground floor. The witness has further deposed that some of the police officials went upstairs and dragged Nisar down by hairs and others caught hold of the prosecutrix 'V' and dragged her.
According to PW5, a large number of other public persons who had St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 9 of 71 gathered over there and requested them to not to catch hold of them since he (Noman Khan) was already in their custody. The witness has further deposed that out of the said six police officials three were the accused persons and others were Tevetia and Bashir. He has testified that they had requested the police officials to leave the prosecutrix 'V' and Nisar on which they told them that they would release them after reaching Punhana after which they directly took them to Ferozepur Jhirka and despite his request did not release them at Punhana and even at Ballabhgarh where they had stopped at some sweet shop. According to PW5, at Ferozpur Jhirka he and Nisar were kept in the lock up of CIA Office but the prosecutrix was kept out and at about 9.30 to 10.00 pm in the night he was taken out of the lockup and he along with the prosecutrix 'V' after which both of them went to the house of the in-laws of his brother Jan Mohd. in village Dhond where the mama of the prosecutrix came in a vehicle and took them from village Punhena to their house and according to him, the prosecutrix did not tell him anything at that time. He has deposed that later on 16.4.2004 his son Nisar was released and on 17.4.2004 Nisar told him that the prosecutrix had informed him that she had been raped at the CIA office by the police officials on which they went to Jahangir Puri Police Station but no complaint was registered. According to him, on 19.4.2004 they went to Safdarjung Hospital with the prosecutrix and narrated the incident to the doctors after which the prosecutrix was medically examined and again came back to Police Station Jahangir Puri despite which the police refused to register the case St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 10 of 71 and also gave beatings to them and threatened them with implication in false cases. According to PW5, they had filed a Writ Petition in the High Court of Delhi pursuant to which the FIR was registered.
In his cross-examination the witness Noman Khan has deposed that initially he had told the doctors about the incident and later on the prosecutrix 'V' was taken inside by the lady doctor who had noted something on the paper. According to him, his statement was never recorded by any police officer. The witness has further admitted that after the police had refused to register their complaint, they had not sent any complaint by post to any authority. He has, however, deposed that they had sent a complaint in writing to Chief Justice, Haryana informing him about the incident which dates he does not remember. He has, however, denied that the said registered complaint was sent by him on 15.4.2004 and again admitted the same but stated that in the said complaint he did not mention anything about the prosecutrix 'V' and only mentioned that Nisar Ahmed was still in the custody of police since according to him, he was not aware of the said incident on that date. He has deposed that he had not written in the said complaint that SI Om Prakash, Ct. Tek Chand and Pehelwan had committed rape upon the prosecutrix. He is also not aware if the copy of the said complaint was filed along with the writ petition in the High Court or not. The said witness has admitted that usually he and his son Nisar and his family resided in village Khedla Punhana but Nisar and the prosecutrix had come to Delhi on St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 11 of 71 8.4.2004. According to him, his parents, his younger brother Shorab and his family are residing at Jahangir Puri. The witness has admitted that he had accompanied the prosecutrix to Babu Jagjeevan Ram Memorial hospital when she was taken for medical examination and had refused for internal examination of the prosecutrix and the only explanation given is that the prosecutrix had already been examined by the doctors at Safdurjung Hospital. Noman Khan has admitted that his son Nisar was arrested in the year 2003 in a case under Arms Act and Aslam who is his younger brother is facing trial in a dacoity case. According to him, Sohrab is also his younger brother but he is not aware whether Sohrab is facing trial in a case of fake currency notes. Noman Khan has further admitted that a case under Section 376 IPC was also registered against him but according to him, he had been acquitted in the said case. He has volunteered that he had been acquitted in the said case since the complainant in the said case was a 70 years old lady which complaint had been registered at the instance of accused Om Prakash. The witness, further in his cross- examination, has not been able to tell the number of rooms in the CIA Office Ferozepur Jhirka and has deposed that there are no shops near the gate opposite the CIA Office. The witness has further testified that he and the prosecutrix 'V' had not changed their clothes at the house of in-laws of his brother when they were left over there. According to him, he had not seen the prosecutrix with his own eye as to ascertain whether she was having any injury on her person or not since as per their custom he could not have St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 12 of 71 seen the prosecutrix. He has further deposed that after he returned home on 9.4.2004 he stopped staying at his house since he was afraid. According to the witness, while returning to his village he was sitting on the front seat of Maruti van and the prosecutrix was sitting on the front seat of Maruti Van and hence he did not notice whether her clothes were torn or not. He has deposed that when he and his son Nisar were kept in the lock-up he did not hear any noise etc. since according to him the room was situated deep inside the office. The witness has further deposed that he did not file any application before the court at Gurgaon or any other court seeking release of Nisar nor lodged any complaint regarding the torture meted out to him. He has admitted that there is a government hospital in Ferozepur Jhirka and Gurgaon and he did not take the prosecutrix there for medical examination. He has further stated that they had gone to Safdurjung Hospital and had not gone to Babu Jagjeevan Ram Memorial hospital as they were afraid of the police station of Jahangir Puri since they had threatened him to implicate in the false case.
PW16 Aslam has deposed that he knows Falwa and Mubarak being the resident of the same village but he does not know any Lacchi Baniya. According to him, he had gone to Kolkata on 18/19.3.2004 and had come back after one month. He has further deposed that he was booked in two cases by the police but he has been acquitted in one of the said cases whereas the other case is still pending. He has admitted in his cross-examination that Taib Hussain is the Sarpanch of his village and he had lodged a St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 13 of 71 case against him. He has denied that his brother Noman Khan, Nisar Ahmed, Nizam Ahmed and he himself are involved in case under Section 147/148/341/506/ 34 IPC but admits that he had obtained bail in the said case. It is evident that this witness does not know anything about the incident.
PW17 Smt. Akbari is the mother of Nisar and mother- in-law of the prosecutrix 'V' who has deposed that she is a resident of village Punhana, District Mewat, Haryana. According to her, she had taken the prosecutrix 'V' to Safdurjung Hospital and the prosecutrix had told her husband that her modesty was outraged by Om Prakash, Tek Chand and Pehelwan but she did not disclose this fact to her at any time. The said witness has been cross-examined by the Ld. Addl. PP wherein she has denied the suggestion that the prosecutrix herself had informed her in the hospital that the police officials had outraged her modesty.
In her cross-examination she has admitted that she had not given the aforesaid names in her statement Ex.PW17/DA. According to PW17, she, her husband and their family are residing in the village Kherla since long and after the marriage the prosecutrix started living with them and were residing at village Kherla when the incident took place. The witness has deposed that when the police officials of Haryana Police took Nisar and the prosecutrix, she was present in the village but they had not taken them in her presence. She has further deposed that the prosecutrix was not medically examined by the local doctor nor she was given any medical aid prior to taking her to Safdurjung Hospital.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 14 of 71 According to the witness, her son Jaan Mohd. used to reside at Ferozepur, Uttar Pradesh and her sons namely Noman, Aslam and Sohrab used to live with her in the village. The witness PW17 has also deposed that when she took the prosecutrix to the hospital her clothes were in torn condition and she is not aware if her clothes were given to the police or not but she was having injuries on her face. Further, in her re-examination by the Ld. Addl. PP she has denied that Nisar and her wife 'V' were taken by the police officials of Haryana Police in her presence or that she is concealing these facts in order to save the accused persons.
PW19 Nishar is the husband of the prosecutrix who has deposed that he is residing at village Kherla Punhana, District Mewat and on 1.4.2004 in the evening his father Noman was lifted by Om Prakash the accused before this court for investigation in some case on which he got scared and went to his in-laws house along with her wife to village Gulpara, Rajasthan. According to him, on 8.4.2004 he along with his wife came to Jahangir Puri at G- 708 and telephoned to his uncle Sohrab who told him that he was in Nizamuddin and would come on the next day. He has deposed that on 9.4.2004 he was on the first floor and was having his bath when Om Prakash came and dragged him from the hair and brought him to the ground floor where six to seven persons were present who handcuffed his father Noman Khan and thereafter they took him and his wife in a white car to Faridabad and thereafter to Ferozepur where he and his father were locked in one room and his wife was locked in another room. PW19 has further deposed that on the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 15 of 71 same day i.e. 9.4.2004 he heard some weeping/ crying noise from the other room where his wife was locked and after 10:00 pm his father was also taken away from his room. He has further deposed that on 16.4.2004 evening he was released and when he went to village Jurela, he met his wife who informed her that three police officers have done galat kaam with her on 9.4.2004. In his cross- examination the witness has deposed that he was kept at police Station ferozepur for about eight days and was not moved anywhere. He is unable to tell the date on which the raid was conducted by Sessions Judge, Gurgaon at Police Station Ferozepur but according to him, five to six persons were also detained at Police Station Ferozepur out of them one was Mubarak, one was Haji Asruddi. He is not aware if Shabir, Sahid Ali, Farooq and Ismail were the other persons who were also detained. The witness PW19 has deposed that he was neither inquired by the Sessions Judge, Gurgaon nor he had stated anything nor he was asked about his name and parentage. He has denied the suggestion that he was not taken to police station Ferozepur Jhirka nor he was present there on the day of raid conducted by Sessions Judge, Gurgaon and it is for this reason that his name is not mentioned in the report given by Session's Judge. According to him, he was released from Ferozepur Jhirka in the morning on 16.4.2004 and the time which he had mentioned in his examination in chief is not correct. He has further deposed that the distance between village Dhond and his village is about 30 km and his uncle (Tau) is residing at Dhond. He is not aware if a case bearing FIR No.307/09 under St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 16 of 71 Section 147/148/341/506 IPC, Police Station Punhana was registered against his uncle Aslam, his father Noman Khan, himself and his brother Nizam. He also does not remember if case FIR No. 15/03 under Section 25/54/59 Arms Act, Police Station Ferozepur Jhirka was registered against him and according to him, he never appeared in any case in any court in Haryana. According to PW19, they did not raise any noise when police officials purchased sweets from the shop at Faridabad. He has deposed that after marriage they resided at their native village that is Kherla, Haryana alongwith his wife and they came to Delhi on 8.4.2004. He has admitted that prior to this, they permanently resided at village Kherla, Haryana.
PW21 Jaan Mohd. is the brother of the father-in-law of the prosecutrix and has only deposed that on 9.4.2004 he was present at his village at Dhond Kalan, when some police officers from Haryana Police (which fact he came to know later from his brother) who were in civil dress, came to his house at about 9:30/ 10:00 pm along with his brother Noman and his daughter-in-law . According to the witness, they went away after leaving them at his house but they did not tell him anything and at about 11 pm to 12 pm mid night the mama of the prosecutrix namely Usman Khan came to his house in a Maruti Van and took the prosecutrix and his brother Noman Khan with him and later on he came to know that police had done 'galat kaam' with the prosecutrix.
In his cross-examination he has admitted that neither his brother Noman Khan nor the prosecutrix told him anything at night St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 17 of 71 or at any other time and that he has no personal knowledge about any incident which happened with prosecutrix and whatever he has deposed in on the basis of hearsay.
PW22 Mohd. Saurab is the brother of Noman Khan and has deposed that on 9.4.2004 the accused Om Prakash, Rakesh and Tek Chand and three other persons came with his brother Noman Khan in handcuff and took the prosecutrix and Nisar Ahmed from house No. G-708, Jahangir Puri. According to him, at that time he was present in the street. He has deposed that the accused persons came in a while colour police vehicle having red light and took the prosecutrix and Nisar Ahmed to Firozepur, Jhirka police station and on the same day they released the prosecutrix 'V' and Noman in the night hours and he was informed by Noman Khan that they had been released by the police but Nisar was not released and later he was informed that Nisar was released on 16.4.2004. The witness PW22 has deposed that Noman further informed that he was told by Nisar that his wife had informed him that three police official namely Om Prakash, Tek Chand and Pehlwan had committed rape upon the prosecutrix 'V' on which he asked Noman to come along with the prosecutrix 'V' and Nisar to Delhi. He has deposed that thereafter they came at his resident at G-708 Jahangir Puri and informed the SHO about the incident but the then SHO asked them to leave the police station and threatened them to implicate them in a false case on which they went to Safdurjung Hospital and got the prosecutrix medically examined and obtained her MLC and went back to the police station Jahangir St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 18 of 71 Puri where one Ct. Mahesh slapped Noman due to which reason Noman had sustained injuries on his eye and Noman was also medically examined vide MLC Ex.PW22/A. According to him, finding no option they went to High Court of Delhi and the Hon'ble Delhi High Court directed the police to register the case after which the accused persons along with other persons had come to his house to compromise the matter and offered Rs.5 lacs. He has deposed that when they refused to accept the offer after which the accused persons got his brother Noman Khan implicated in a case of rape and his brother Aslam in a case of dacoity but according to the witness they have been acquitted in the said cases.
Ld. Addl. PP for the State has put some leading questions to the witness during which he has admitted that the fact that Noman had told him that he was informed by Nisar that his wife 'V' had informed him that she was raped by the aforesaid police officials is not mentioned in his statement mark X1. He has also admitted the improvements which he has made in his examination in chief, which facts are not mentioned in his statement given to the police under Section 161 Cr.P.C.
In his cross-examination the witness has admitted that in the year 2002 a case bearing FIR No.298/04 under Section 420/489B/34 IPC was registered at Police Station Punhana, Gurgaon, Haryana and that a case has been registered against his brother in the year 2004 which was of daicoty. PW22 has further admitted that he, his father and his brother Noman also applied anticipatory bail at Gurgaon but he does not remember whether the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 19 of 71 said bail application was moved on 16.04.2004. He has denied that they had mentioned about the rape committed by present accused with the prosecutrix in the said bail application dated 16.04.2004, which was heard by Ld. Sessions Judge, Sh. R.K. Saini. According to him, they have not reported against Ct. Mahesh who had beaten to his brother Noman Khan at Police Station Jahangirpuri nor he made any complaint to the police station on 09.04.2004 regarding the incident of taking away above persons by the police.
PW23 Ms. Karuna is a resident of the same area. She has turned totally hostile and according to her, on 9.4.2004 she was sleeping in her house when at about 8:00 am she heard Halla-Gulla but she avoided the same and when she went to take milk in the evening and was coming back to her house, the prosecutrix 'V' met her who informed that police officials of Haryana had come to her house to trace Aslam, brother of her father-in-law. In her cross- examination by the Ld. Addl. PP for the State, she has denied having made any statement to the police. She has denied that she has seen five to six police officials of Haryana who brought Noman Khan to the house of Saurab and took away Nisar and the prosecutrix 'V' in her presence. She has also denied her signatures on the affidavit mark X3.
PW24 Shabir has deposed that they are six brothers and on 4.4.2004 he along with Ismail, Farooq, Sahid were standing near hospital when the police official of Haryana came there in a government vehicle and took them all and were put in lock-up of CIA office. He has deposed that on 13.04.2004 Ld. Sessions Judge St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 20 of 71 came in the police station along with other police officials and interrogated him and he was released after putting their thumb impression and interrogation though Mubarak was not released and was sent to lock up. According to him, they were involved in a dacoity case at Punahna Jurehra road and when he was released only Mubarak was lodged in the lockup.
In his cross-examination by the Ld. Addl. PP the witness has denied that police party of CIA came Ferozepur Jhirka on 13.04.2004 and not on 4.4.2004 and that he is wrongly giving the date of their visit as 4.4.2004. He has also denied that they were not detained from 04.04.2004 upto 13.04.04 by the police official of CIA Ferozpur Jhirka. He has further in his cross- examination by the Ld. Defence counsels, deposed that the Ld. Sessions Judge, Gurgaon who had raised the CIA Office at Ferozepur Jhirka made the search of all the rooms. He has also admitted that there are tea shops and electricity shop and residential locality in front of the gate of CIA Staff.
PW26 Ismile has similarly deposed regarding his detention by CIA Staff along with PW24 Shabir, He has corroborated the testimony of PW24 that on 13.4.2004 at about 7 to 7:30 pm one Judge Sahab came in the CIA Office and made inquiries from them. According to him, they were kept by CIA Staff from 4.4.2004 till 13.4.2004 and after interrogation Mubarak was retained by the CIA Staff whereas they were released from there and after his release only Mubarak was present in the lockup. In his cross-examination by the Ld. Addl. PP, the witness has St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 21 of 71 denied that the CIA staff had come on 13.4.2004 and not on 4.4.2004 or that they were not kept by the CIA staff in the lockup from 4.4.2004 till 13.4.2004. In his cross-examination by the Ld. defence counsels the witness has admitted that during his detention no lady had been brought to the lockup nor he had heard cries of any lady and according to him on 9.4.2004 no other person except Mubarak and them was brought to the lockup by CIA Staff.
PW27 Mrs. Sunita is a neighbour of the prosecutrix being the resident of G-706, Jahangir Puri. She has deposed that a Muslim family resides in G-708 Jahangir Puri near her house but she is not aware their names. According to her, on 9.4.2004 she was not present at her house and was in her paternal house and therefore, she is not aware as to what had happened on 9.4.2004 in the house of that Muslim family. She has turned totally hostile and has denied that four to five police officials came at G-708, Jahangir Puri at about 7:00 am in the police uniform along with one Nooman. She has denied that she had given any statement to the investigating officer Inspector S.P. Yadav, Inspector SHO Police Station Jahangir Puri.
Medical Witnesses:
PW2 Dr. Sardaman Singh has proved the MLCs of the accused Rakesh and Om Prakash prepared by Dr. Deena Nath which MLCs are Ex.PW2/A and Ex.PW2/B. He has further proved the opinion given by Dr. A.K. Kesary, SR (Surgery) which is Ex.PW2/C. St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 22 of 71 PW6 Dr. Shyam Singh Specialist (Gynae) from BJRM Hospital has proved the MLC of the prosecutrix, who initially examined by CMO on duty and thereafter was referred to Gynae department. According to him, as per MLC, the victim refused to get herself medically examined and Dr. Rita Jindal has made endorsement in this regard which is Ex.PW6/A. PW14 Dr. Neeraj, CMO, BRJM Hospital has proved the MLC of the prosecutrix which is Ex.PW14/A which was prepared by Dr. Sivesh.
PW15 Dr. B. Nisha has proved the MLC of the prosecutrix prepared by Dr. Poonam Kumari which is Ex.PW15/A which shows that she was brought with the alleged history of being taken forcibly to police station with her husband and father in law and she was sexually assaulted by three police personnels in an official car on 9.4.2004 at 9 am. The said medical examination was conducted after 10 days of the incident and there were no signs of any injury marks present on her body.
PW20 Dr. Shakuntala Rani, CMO, BJRM Hospital has proved the MLC of the accused Tek Chand which is Ex.PW20/A which was prepared by Dr. Delie Rhezhii. According to the witness there was no evidence suggesting that Tek Chand cannot perform sexual activity under normal circumstances.
Police witnesses/ official witnesses:
PW1 ASI Johar Singh is a formal witness being the Duty Officer who has deposed that on 13.7.2004 at bout 6:35 pm St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 23 of 71 the reader of the SHO gave him one rukka on the basis of which he recorded the FIR of this case copy of which is Ex.PW1/A. He has proved his endorsement on the rukka which is Ex.PW1/B and deposed that the investigation was assigned to SI Sudesh Dahiya. The said witness has not been cross-examined and his testimony has gone unrebutted.
PW4 Inspector Sudesh Dahiya has deposed that on 13.7.2004 on the instructions of the SHO, the investigations of this case were handed over to him pursuant to which on 19.7.2004 he along with lady Ct. Raj Dulari went to the house of the complainant i.e. G-708, Jahangir Puri where he recorded the statement of the prosecutrix. He has deposed that he along with Ct. Raj Dulari took the prosecutrix 'V' to BJRM Hospital for her medical examination where the prosecutrix refused to get herself medically examined on the pretext that she had already been medically examined in Safdurjung Hospital on 9.4.2004. According to PW4 on 9.4.2004 pursuant to the receipt of DD No. 18A regarding rape in Haryana and admission of prosecutrix in Safdurjung Hospital, he along with SHO Police Station Jahangir Puri went to Safdurjung Hospital where he collected the MLC and found that the incident had occurred at Ferozepur Jhirka due to which reason he instructed the duty Constable to inform the concerned police station of Ferozepur Jhirka. The witness has further deposed that on 20.7.2004 on his instructions HC Hans Swaroop went to Ferozepur Jhirka and collected the MLC of the prosecutrix and exhibits of the case which he handed over to him and the same were seized vide memo St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 24 of 71 Ex.PW4/A. In his cross-examination the witness has admitted that the statement Ex.PW4/DA was recorded by him on 19.7.2004 and deposed that no relative of the prosecutrix met him in the hospital on 9.4.2004. He is not aware if the prosecutrix had made any report in the police station regarding rape.
PW7 HC Kishori Lal has deposed that on 19.4.2004 at around 5.50 pm Ct Mahesh Chand gave information from Safdurjung Hospital that one lady from Haryana who was picked up by Haryana Police and was raped, has been got admitted by her chacha Mohd. Sorab. According to the witness he recorded the said information in the rojnamcha vide DD No.18 copy of which is Ex.PW7/A and handed over the copy of the same to SI Ram. Chander. He has testified that WSI - Sudesh Dahiya was also informed on telephone for further necessary action.
PW8 Ct. Prakash Joshi has deposed that on 27.9.2004 he received the sealed pullandas along with the FSL Form vide RC No. 204/B-2240 which he deposited in the FSL and handed over the receipt to the MHCM.
PW9 Anita Chhari Senior Scientific Assistant has proved the FSL report which is Ex.PW9/A according to which blood and semen could not be detected on Ex.1a (vaginal swab), Ex.1b (cervical swab) and Ex.1c (pubic hair).
PW10 HC Rajender has deposed that on 19.4.2005 he along with SHO Satpal yadav and Ct. Ved Prakash reached at the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 25 of 71 SSP Office, Gurgaon where they apprehended the accused SI Om Prakash who was interrogated and arrested vide memo Ex.PW10/A and personally searched vide memo Ex.PW10/B. According to him, thereafter accused Om Prakash produced Jeep bearing no. HR-26F-5406 which was seized vide memo Ex.PW10/C after which the accused took them to village Kheri Sadh, district Rohtak from where they apprehended the accused Ct. Rakesh @ Pehelwan who was arrested vide memo Ex.PW10/D and personally searched vide memo Ex.PW10/E. He has deposed that the accused were kept in muffled case. The witness has identified the jeep from the photographs placed on record which photographs are Ex.PW10/F. In his cross-examination the witness has deposed that the vehicle i.e. jeep was driven by the person provided by SI Om Prakash but the driver of the jeep was not joined in the investigation. According to him no person from the SSP Office was joined in the investigation while arresting or covering the face of SI Om Prakash during the arrest.
PW11 HC Ved Prakash has corroborated the testimony of PW10 HC Rajender in toto.
PW12 HC Chander Prakash has deposed that on 18.5.2005 the accused Tek Chand came to the police station and surrendered to Inspector S.P. Yadav. He has proved that the accused Tek Chand was arrested vide memo Ex.PW12/A and personally searched vide memo Ex.PW/12B. According to him, the accused was kept in muffled face.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 26 of 71 PW13 Inspector Anuradha has deposed that on 21.2.2005 the investigations of this case were handed over to her after which she moved an application written by Inspector Usha Sharma which is Ex.PW13/A for recording the statement of prosecutrix under Section 164 Code of Criminal Procedure. According to the witness, the statement of the prosecutrix was got recorded on 22.2.2005 which is Ex.PW3A and she obtained a copy of the same vide her application Ex.PW13/B. In her cross-examination the witness has deposed that the prosecutrix 'V' was resident of Jahangir Puri but she had not visited her house. She has testified that the prosecutrix met her in Tis Hazari Courts along with Noman Khan and the telephone number of the prosecutrix was provided by the previous investigating officer.
PW25 Inspector A.S. Dhaka has deposed that on 17.8.2004 further investigations of this case were handed over to him after which on 23.8.2004 he called the prosecutrix along with her husband and father in law and recorded the statement of the prosecutrix. He has deposed that on 25.8.2004 he recorded the statements of Noman and his son Nishar and on 31.8.2004 he visited CIA Police Post Ferozpur Jhirka and on the pointing out of the prosecutrix he prepared the site plan without scale which is Ex.PW25/A. He has proved having collected DD entry no.21 and DD no.13 of dated 9.4.2004 regarding the investigations of case FIR No.119/04 and also recorded the statements of neighbours of G-708 Jahangir Puri on 3.9.2004 and 4.9.2004, where the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 27 of 71 prosecutrix alleged that she was taken by CIA Staff Haryana from this place along with her husband. He has testified that on 14.9.2004 the investigations were handed over to Insp. Savitri Sharma.
In his cross-examination the witness has deposed that he did not give any notice to the prosecutrix, Noman and Nishar under Section 160 Cr.P.C. and according to him, they were called through telephonic message. He has admitted that the statements Ex.PW25/D-A to PW25/D-C were recorded on his dictation and deposed that the garments of the prosecutrix were not seized by him nor it was offered by them to him. According to him, there were shops in front of CIA staff office but none from these shopkeepers were joined in investigations by him.
PW28 Retired DSP Bhoop Singh from Haryana Police has deposed that on 05.10.2004 he was working as Inspector, CIA and on that day he received two orders from SSP Gurgaon through Inspector Savitri Devi from Delhi Police, directing him that the copy of case diary of 09.04.2004, log book of case FIR No.119/04, U/s 382 of Police Station Punhana be handed over to her, for investigation. He has deposed that accordingly he handed over the same to her who took the same vide seizure memo Mark XY.
PW29 ASI Bansi Dhar from CIA Staff, Ferozepur Jhirka has deposed that on 09.04.2004 he was working in the office of CIA Staff Ferozepur Jhirka as a Munshi and on that day investigating officer of the Delhi case had come to Chowki CIA Ferozepur Jhirka. According to him, the investigating officer St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 28 of 71 checked the rozanamacha dated 8th to 10th October 2004 and the departure of SI Om Prakash in case FIR No.119/04 U/s 382 IPC, PS Punhana for investigation is mentioned in DD No. 21 dated 09.04.2004 and the entry of arrival of SI Om Prakash from Delhi is mentioned in DD No.13 which was made by SI Om Prakash himself copies of which DDs are Ex.PW29/A. In his cross-examination the witness has placed on record the DD No.17 dated 13.04.2004 copy of which is Ex.PW29/DA which is in his handwriting. He has deposed that he had mentioned the names of Shaheed S/o Rehmat, Ismail S/o Samman, Sabir S/o Yusuf and Farukh S/o Kalu. The witness has admitted that he had taken the signatures of aforesaid persons in the column at point A. PW30 ACP Savitri Sharma has deposed that on 15.09.2004 further investigation of this case was handed over to her and she received case file for investigation from ACP, DIU Cell. According to her, the Haryana Police officials had handed over some document related to case FIR No.119/04, U/s 382 IPC, Police Station Punhana and took the documents i.e. copy of FIR which is Mark Y-1, FIR No.87/04 which is Mark Y-2, copy of disclosure statement of Mubarak which is Mark Y-3, Disclosure statement of Tahir Mark-Y-4, FIR No. 298/02 which is Mark Y-5, FIR No.15/03, which is Mark Y-6 and affidavits of Mazidan which is Mark Y-7 and that of Usman which is Mark Y-8 which documents were taken to the possession vide seizure memo vide St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 29 of 71 Ex.XY. She has proved that she seized the photocopy of log book vide memo Ex.PW30/A and deposed that on 23.09.2004 and thereafter she went to CIA Office, Ferozepur Jhirka and made inquiries. She has testified that she came to know from Tea vendor that five persons including SI Om Prakash, Rakesh and Tek Chand and two other person whose name she does not remember, had come to the Chowki, Ferozepur Jhirka and had asked for tea which fact was mentioned in her case diary. She has testified that she had sent the exhibits to FSL, Rohini and on 01.11.2004 further investigation of this case were handed over to some other investigating officer.
In her cross-examination the witness has admitted that she interrogated shopkeepers Yad Ram S/o Ghasi Ram, Narender Kumar S/o Pritam Dass, Krishan Gopal S/o Jhagi Ram and Sohan Lal and that Yad Ram in his statement has stated that police officials of CIA had come in front of his shop in a government vehicle and they alighted from the vehicle in front of his shop at about 5 to 6 PM and no other public person was with them and similar statement was given by other persons. She has testified that Krishan Gopal has given his statement that Om Prakash and other persons have come on 09.04.2004 at about 5 to 6 PM in government vehicle and no other public persons or lady was in the said vehicle. The witness has deposed that they have also stated that the vehicle was not bearing Chandigarh Number. She has further admitted that she did not collect the clothes of the prosecutrix nor she was investigated by her as the investigation St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 30 of 71 remained with her for a short time.
PW31 Inspector Shyama Pant has deposed that on 28.02.2005, investigation of this case was handed over to her pursuant to which she issued a notice under Section 160 Cr.P.C. to the prosecutrix and Nauman but the same could not be served. She has proved having issued the notice under Section 160 Cr.P.C. to SI Om Prakash and one Constable whose name she does not remember and she came to know that both the Constable and SI Om Prakash have been transferred. She has deposed that she collected the FSL result from Malkhana and placed on record.
Leading questions have been put by the Ld. Addl. PP for the State to the witness with the permission of the court wherein she has admitted that the name of that Constable is Rakesh instead of Ramesh. She has admitted that the copy or original notices are not on record and deposed that she had prepared the notices and given to the Women Cell but she is not aware whether the same were dispatched or not.
In her cross-examination the witness has admitted that the statement of the prosecutrix Ex.PW31/DA reflects that it was recorded by her.
The accused persons have not disputed the Test Identification Parade proceedings conducted by Ms. Archna Sinha, the then Ld. MM and Sh. P.K. Jain, the then Ld. MM.
PW32 Inspector Usha Sharma has deposed that on 18.11.2004 he was posted as Inspector CAW Cell on which date further investigations of this case were handed over to him.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 31 of 71 According to her, she received photocopy of the affidavit of mother of prosecutrix in which she had stated that no rape had been committed upon the prosecutrix which affidavit is Mark Y-7 and also received the copy of affidavit of Usmaan to this effect which is Mark Y-8. She has further deposed that she asked the father in law of the prosecutrix to bring the prosecutrix but she did not come as she had gone to her parental house.
In her cross-examination the witness has deposed that she noticed that as per the MLC Ex.PW5/A, he found that the prosecutrix was sexually assaulted by three police officials in a car on 09.04.04 as told by the prosecutrix.
PW33 Inspector Satpal Yadav is the investigating officer who has deposed that on 07.04.2005 further investigations of this case was handed over to him. According to him, on 19.04.05, SI Om Prakash and Ct. Rakesh @ Pahlwan were taken from SSP, Gurgoan Office and the residence of Ct. Rakesh respectively and they were arrested in this case vide memos Ex.PW10/A and PW10/D respectively and were formally searched vide memos Ex.PW10/B and PW10/E respectively. The witness has further deposed that the jeep bearing no. HR 26F 5406 in which the Haryana Police party raided and took the prosecutrix and her husband from their residence at Jahangir Puri, was taken into possession from SSP office vide seizure memo Ex.PW10/C after taking approval from SSP office and the photographs of the jeep was taken which are collectively Ex.PW10/F. According to the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 32 of 71 witness, the accused persons were kept in muffled face and were medically examined after which he took the MLC of both the police officials/ accused persons from BJRM Hospital and the jeep was deposited in Malkhana which was later on released on superdari to ASI Rajender Singh of Haryana Police. He has proved that on 29.04.2005, the Test Identification Parade of the accused persons were conducted at Tihar Jail but both of them had refused to participate therein and he obtained the copy of the Test Identification Parade which are Ex.PW33/A and PW33/B. PW33 has further deposed that on 18.05.2005, the third accused Tek Chand had surrendered in the police station who was interrogated and arrested in the present case vide arrest memo Ex.PW12/A and personally searched vide memo Ex.PW12/B and the accused Tek Chand was also put in Test Identification Parade before Ld. MM, Ms. Archana Sinha but the prosecutrix 'V' could not identify him. He has testified that the family members of Mubarak had moved a miscellaneous application in the Court of Ld. Sessions Judge, Gurgaon, in which it was alleged that CIA staff Firozpur, Jhirka, had illegally detained Mubarak, Nisaar and many persons on which 09.04.04, Sh. S.D. Anand along with his team raided the Police Post, CIA staff, Firozpur, Jhirka, and found Mubarak in the Lockup and there was no entry of this arrest in the Roznamcha. The witness has proved having collected the copy of statement of Mubarak and personally met Sh. S.D. Anand, Ld. Sessions Judge and made a request whether other persons were also present or not with Mubarak to which he had given his report. He has also proved St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 33 of 71 having recorded the statement of Inspector Sher Singh, In-Charge, CIA staff, who has stated that on 09.04.04, one Shahbeer, Shahid Ali, Faruq and Mohd. Ismaeel were also found lodged in the lockup at Police Post, Firozpur, Jhirka, who were brought there for interrogation in case FIR No.119/04, under Section 382 IPC, PS Punhana, Haryana, and due to lack of police staff, they were also kept in the said lockup and they were released from the PP after making inquiries except Mubarak. The witness has also proved the complaint of Noman which is Ex.PW33/C, DD No.18A which is Ex.PW33/D; DD No.16 which is Ex.PW33/E and DD No.17 which is Ex.PW29/DA; DD No.15 which is Ex.PW33/G. According to PW33, he has prepared the challan after necessary investigation. The witness has identified all the three accused persons in the court.
In his cross-examination the witness has deposed that first of all the accused SI Om Prakash was arrested from his native place but his disclosure statement was not recorded. He has further deposed that he did not find the name of Pahlwan in any record of Ct. Rakesh and that he collected DD No.21 dated 09.04.04 wherein names of five to six police officials namely Tewatia, HC Virender and Ct. Rajbir Singh were mentioned whom he interrogated but their statements were not recorded as no allegations were levelled against these persons by the complainant. According to PW33, he did not obtain original log book of aforesaid jeep in possession. He has admitted that four persons have been named in the writ petition including Tewatia and that in para no.18 of the writ petition, the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 34 of 71 allegations of rape were also levelled against Inspector Tewatia. He has testified that he interrogated the complainants with regard to the allegations against Inspector Tewatia but they did not say anything against him. PW33 has also admitted that accused persons were subordinates of Inspector Sher Singh and were under his control and that accused SI Om Prakash was investigating officer of case FIR No.119/04, under Section 382 IPC, Police Station Punhana. The witness has deposed that he recorded the statement of prosecutrix but he did not give her any notice under Section 160, Cr.P.C. before recording her statement. He has further admitted that he had gone to village Kherla for investigations which village is at a distance of 70-80 kms. from Delhi. According to him, village Kherla is situated in the Mewat region and there is a town near the village namely Punhana where there is government hospital. PW33 has admitted that the complainants before this court were having a previous criminal history. He has also admitted that in Firozepur, the Police Station is situated separate to the chowki of CIA staff and there is a distance of about one and a half kms between the two. He has further admitted that there is a tea stall and other shops and public places in front of the chowki of CIA. The witness has testified that he had made enquiries from the nearby shops regarding the incident but he did not record their statements and has admitted that he did not record their statements because none of them confirmed the incident to him. He has also admitted that all the accused were kept in muffled faces after the arrest. He further admits that all the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 35 of 71 three accused before this court are public servants/police officers involve in official duties where people of the area get to see them frequently. He has further admitted that the MLC of the prosecutrix was conducted after 10 days of the alleged incident and her statement u/s.164, Cr.PC was recorded after more than one year of the incident.
Statement of accused/ defence witnesses:
After completion of the prosecution evidence, the statements of the accused persons have been recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence has been put to them which they have denied. They have stated that they have been falsely implicated in the present case. It is stated that the accused Om Prakash was the investigating officer of the case FIR No.119/04, Police Station Punhana under Section 382 Indian Penal Code wherein brother of Noman Khan namely Aslam is an accused. He has stated that in order to save him and pressurize the CIA Staff, the witnesses have manipulated and concocted the story. It is also stated that all the witnesses are having criminal record in Mewat Area. The accused Om Prakash has further stated that he had refused to participate in the Test Identification Parade proceedings because he had been posted in the are since 20 years and involved in the investigations of many cases. According to him, almost each people of the area knew him and he has been shown in the electronic as well as print media.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 36 of 71 The accused Rakesh @ Pehalwan has stated that SI Om Prakash was the investigating officer of the case FIR no. 119/04, PS Punhana, under Section 382 IPC in which brother of Noman namely Aslam is an accused. He has further stated that in order to save Aslam and pressurize the CIA Staff the witnesses have manipulated the story and all the witnesses are having criminal record in Mewat area. According to him, he was shown in the electronic as well as print media due to which reason he refused to participate in Test Identification Parade proceedings.
The accused Tek Chand has stated that investigation of the case FIR No. 119/04, PS Punhana, under Section 382 IPC was conducted the CIA, Ferozepur Jhirka which was undertaken by SI Om Prakash in which brother of Noman namely Aslam is an accused. He has further stated that in order to save Aslam and pressurize the CIA staff witnesses have manipulated the story and all the witnesses are having criminal record in Mewat Area. According to the accused, he had participated in the Test Identification Parade proceedings which failed.
All the accused have also examined one HC Braham Pal as their witness.
DW1 HC Braham Pal has deposed that on 09.04.2004 he was posted at CIA, Ferozpur Jhirka as Constable (Driver) and on that day he was on duty as driver on Mahindra Jeep No. HR 26 F 5406 which was of blue color. According to him, his duty was with SHO/ SI Om Prakash of CIA Staff as driver on above said vehicle and on 15.09.2004 he joined investigation in the present St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 37 of 71 case and his statement was recorded by Inspector Savitri Sharma of Delhi Police. The witness has deposed that he produced copy of logbook which is Ex.DW1/A which was seized vide memo Ex.PW30/A by Inspector Savitri Sharma and the entry in copy of logbook Ex.DW1/A is in his handwriting including entry dated 09.04.2004 which is marked at point A. He has testified that according to the logbook the speedometer of above said shows the running from 120440 to 120500 and covered total 60 kilometers on 09.04.2004 and at about about 9.00 AM SHO/ SI Om Prakash received a call from DSP of area for emergency meeting at Punhana but the vehicle did not leave office of CIA staff before 9.00 AM on 09.04.2004. He has further testified that he along with SI Om Prakash reached at Police Station Punhana for attending inter-state crime meeting which was presided over by DSP of area and thereafter they left Police Station Punhana for CIA office at about 4.00-5.00 PM after attending the said meeting and on the way he picked up three to four police personnels and left at CIA office. DW1 has deposed that the distance between CIA Office Ferozpur Jhirka and Police Station Punhana is about 28-30 kilometer on one way. He does not know Noman Khan, Nisar and prosecutrix 'V' nor he allow them to be sit in the vehicle nor they were picked by any police official in his vehicle. He has further deposed that no public person boarded in his jeep on 09.04.2004 and that the above said jeep does not bear the registration number of Union Territory of Chandigarh and rather bears the registration number of Haryana.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 38 of 71 In his cross-examination by the Ld. Addl. PP the witness has deposed that after the completion of log book the same has been deposited in the MT branch. He has admitted that each entry made in the log book is required to be signed by the senior officer who use the vehicle and that there is no signature of the senior officer at the entry mark A on Ex.DW1/A. According to him, the entries in the log book are in his hand and he had provided the photocopy to the investigating officer but Inspector Bhoop Singh Incharge CIA Ferozpur Jhirka had attested the same. The witness has further admitted that the number of the vehicle has been written on the photocopy by hand and there is no other document to show that the photocopy placed on record EX DW1/A is the part of the original log book.
FINDINGS:
I have heard the arguments advanced before me and considered the rival contentions. I have also gone through the testimonies of various witnesses and written synopsis/ memorandum of arguments filed on behalf of the accused persons.
Delay in registration of FIR:
Ld. counsel appearing on behalf of the accused has raised a question on the authenticity of the allegations made in the FIR. He has pointed out that there is a delay in registration of the FIR which the prosecution has not been able to rebut. Ld. Addl. PP for the State on the other hand has admitted that there has been a St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 39 of 71 delay of as many as three months and three days but according to him, a valid explanation is forthcoming for the said delay. He has pointed out that as per the allegations of the prosecutrix, the alleged incident took place on 9.4.2004 when the prosecutrix was picked up by the accused persons who were the police officials of CIA Staff, Ferozepur Jhirka, Haryana, who after the incident had threatened her with dire consequences. It is argued that husband of the prosecutrix was in the custody of CIA Staff and apprehending danger to the life of her husband, the prosecutrix did not disclose this fact to anybody till such time her husband was allegedly released from the custody of the accused on 16.4.2004. He has also pointed out that after her husband was released the prosecutrix along with her family members had gone to Police Station for registration of the case but the SHO has refused to register the same and therefore, under these circumstances, her family was compelled to move the Delhi High Court in Writ Petition and therefore, the accused cannot be allowed to take the benefit of the delay. Ld. counsel appearing on behalf of the accused has controverted the submissions made by the Ld. Addl. PP and has pointed out that the fact regarding the prosecutrix having been lifted by the accused persons is absolute a lie and no such incident had taken place. He has also pointed out that the aspect that the prosecutrix was under a threat and did not disclose the incident of alleged rape to anybody till 16.4.2004 i.e. till such time her husband had been released, is also a lie in view of the fact that Noman Khan the father in law of the prosecutrix had sent a communication to the Hon'ble Chief St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 40 of 71 Justice, Punjab & Haryana High Court on 15.4.2004 i.e. much before the release of her husband in which communication he had made allegations regarding the rape of the prosecutrix. Ld. counsel has argued that this only goes to show that the entire incident has been concocted by Noman Khan father-in-law of the prosecutrix who is an accused in many cases and he has used the prosecutrix his daughter-in-law to settle the scores with the police officials.
In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay.
Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 41 of 71 the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
I have considered the rival contentions. Firstly the submissions made by the Ld. Addl. PP for the State that a valid explanation for the delay is forthcoming, does not hold any merit in view of the fact that the alleged incident is dated 9.4.2004 and for the first time the prosecutrix herself alleges that she disclosed this fact to her husband after his release on 16.4.2004. If this be so, then how it is possible that her father-in-law Noman Khan in the communication to the Hon'ble Chief Justice Punjab & Haryana High Court dated 15.4.2004 which he admits in his cross- examination contains this fact regarding rape of the prosecutrix. This raises serious questions regarding the credibility of the testimony of the prosecutrix and also of her father-in-law. PW5 Noman Khan had sent the communication to the Hon'ble Chief Justice Punjab & Haryana High Court on 15.4.2004 i.e. before the husband of the prosecutrix was allegedly released by the accused persons as per their own version, which communication forms a St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 42 of 71 part of the Writ Petition filed by the prosecutrix before the Delhi High Court. During cross-examination PW5 Noman Khan was confronted with the Writ Petition and its annexures. He has admitted having sent the communication to Hon'ble Chief Justice Punjab & Haryana High Court but denied having mentioned the fact regarding the incident of rape in the same. Therefore, it is evident that PW5 Noman Khan had lied on this aspect. The contents of the communication sent by Noman Khan to Hon'ble Chief Justice Punjab & Haryana High Court, which communication forms a part of the Writ Petition placed on record, shows that the fact regarding alleged rape of the prosecutrix has been mentioned in the same which communication was allegedly dispatched by Noman Khan on 15.4.2004 vide postal receipts showing the stamp of the Post Office regarding dispatch of the communication on 15.4.2004.
Secondly, it is also alleged that the prosecutrix and her family members had gone to the SHO Police Station Jahangir Puri to make a complaint but he refused to register the same. The family members of the prosecutrix have admitted that no complaint regarding refusal of the SHO has been made any any senior officer. Noman Khan, the father-in-law of the prosecutrix is a person who is well versed in legal affairs and is aware of his rights. A person who has been sending communications regarding the incident to the Hon'ble Chief Justice, Punjab & Haryana High Court and other functionaries, is deemed to be aware of his legal rights and could have informed the senior functionaries of the police regarding the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 43 of 71 refusal of the SHO to register the FIR which he has not done. It does not appear to be a natural conduct on his behalf specifically so when he has been all alone agitating his rights through and through.
Lastly the fact that the prosecutrix, a young girl, did not mention about the incident to any other person, does not inspire confidence since it is evident that numerous opportunities were available to the prosecutrix to inform about the incident to the lady members of her husband including her grand mother-in-law Smt. Akbari who has been examined as PW17 which she did not do. It is also evident from the record that as per the allegation she was taken away by her maternal uncle/ mama from the house of her Chachia Sasur but even there she did not inform her own family members or anybody about the incident. Further, it is evident from the record that as per the allegations of the prosecutrix her clothes were torn after the incident when she was taken to the house of her Chachia Sasur where she changed her clothes but this fact also does not find a corroboration from the testimony of PW2 Jaan Mohd. Had this been so, had the clothes of the prosecutrix were in torn condition it would have attracted the attention of her family family members which did not happen. Apart from the aforesaid, there are a number of other discrepancies in the testimony of the prosecutrix which shall be discussed later and her testimony before this court that she did not inform anybody out of fear does not appear to be convincing. No doubt the FIR had been registered on account of intervention of the High Court but no explanation is forthcoming for the delay in even moving the Delhi High Court. Therefore, St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 44 of 71 under these circumstances, I hereby hold that the prosecution has not been able to successfully explain the delay in the registration of the FIR.
Medical report/ MLC of the prosecutrix:
It is evident from the material on record that the prosecutrix was first taken to Safdurjung Hospital on 14.4.2010 and thereafter to Babu Jagjeevan Ram Memorial hospital by Lady Ct. Raj Dulari from Police Station Jahangir Puri on 19.7.2010. The MLC of the prosecutrix has been proved by PW15 Dr. B. Nisha which MLC is Ex.PW15/A but it does not support the case of the prosecutrix since it is evident from the same that the medical examination of the prosecutrix was got conducted after 10 days of the alleged incident and despite the fact that she has alleged rape by three accused persons and has also alleged that the accused Om Prakash had given a teeth bite on her cheeks, no marks of injuries were found on her body at the time of her examination.
Further, it is also evident that she was taken to Babu Jagjeevan Ram Memorial hospital on 19.7.2004 after the registration of the case but she refused for her internal examination a fact which finds a mention in the MLC which is Ex.PW14/A. What is most clear in both the MLCs is that the prosecutrix had given the history of being forcibly taken to the police station with her husband and father in law at 7:00 am on 9.4.2004 where she was sexually assaulted/ raped by three police personnels in official car at about 9:00 am on 9.4.2004 and then St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 45 of 71 was sent along with her father in law to home at about 8:00 pm while her husband was still in jail. This aspect is contrary to her deposition in the court wherein she has specifically deposed that she was raped in a room in the office of CIA. Therefore, I hereby hold that the statement of the prosecutrix does not find any support from her medical examination.
FSL Report:
PW9 Anita Chhari has proved the FSL report which is Ex.PW9/A but it does not assist the case of the prosecution in any manner since neither the blood nor any semen could be detected in any of the exhibits.
Vehicle by which the prosecutrix, her husband and her father in law were allegedly taken from Jahangir Puri to Ferozepur Jhirka, Haryana:
I have gone through the evidence on record. No where in the entire evidence the number of vehicle in which the prosecutrix and her family members were allegedly lifted by the accused persons, has been provided. Except to allege that it was a white colour Marshal car with a Chandigarh number, no other details have been provided. However, the testimonies of the various witnesses show that there are allegations that six to seven police officials had come in a white car to the house of the prosecutrix along with her father in law showing that there were eight persons who had come in the car. The make of the car has been provided in the testimony of PW5 Noman Khan who has St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 46 of 71 deposed that it was a Marshal car. However, the vehicle recovered at the instance of accused Om Prakash pursuant to his disclosure statement, is a Jeep of Haryana Police of Blue Colour (not a car) having a red light on the same. The said vehicle bearing registration no. HR-26F-5406 had been seized vide memo which is Ex.PW10/C and it was later on released on superdari and also produced in the court. The said vehicle is certainly cannot be the vehicle as pointed out by the victim and her family members. According to PW19 Nisar Ahmed the vehicle involved was a white car of Chandigarh Registration number whereas the vehicle taken in possession was of Haryana number and not of Chandigarh number with blue colour and not the Jeep nor the car. The evidence on record also shows that as per the logbook of this vehicle, which record has been proved by DW1 and has gone uncontroverted, the kilometer started at 12440 on 9.4.4004 i.e. the date of alleged offence and was closed at 12500 till it come back to CIA Staff office meaning thereby that the vehicle only covered 60 kms on 9.4.2004 which is far below one way distance from Ferozepur Jhirka to Jahangir Puri since Jahangir Puri is situated about 80 km from Firozepur Jhirka on one side.
Place of incident & the time of incident:
There is a discrepancy with regard to the place of incident given by the prosecutrix. Initially on 19.4.2004 when prosecutrix had gone to the hospital she herself allegedly told the doctor that the incident had taken place in a car at 9:00 am after St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 47 of 71 which she was lifted by the Haryana Police from the area of police station Jahangir Puri at 7:00 am. This version given by the prosecutrix to the doctor does not find a corroboration from her testimony made to the Ld. MM under Section 164 Code of Criminal Procedure nor does it corroborate the version she has given before the court. She has been confronted with regard to the correctness of her allegations on which she stated that she had deposed that there was no rape in the car but the incident had taken place inside the room of the CIA Office. Further, in so far as the time when she was allegedly picked up and taken away is concerned, again there is a contradiction on the same. As per the testimony of PW5 Noman Khan it was in the morning at about 4:00 to 5:00 am that he was brought to the Jahangir Puri by CIA Officials who picked up Nisar and his wife i.e. the prosecutrix who was making the tea on the ground floor, whereas the MLC of the prosecutrix shows that she had told the doctor that she had been picked up at about 7:00 pm and the alleged incident took place at about 9:00 am. In so far as PW19 Nisar is concerned, he has deposed that it was on the same day i.e. 9.4.2004 when he was lodged in the lock-up of CIA Office he heard the cries of his wife who was lodged in another room and at about 10:00 pm his father was also taken away from his room. According to the prosecutrix, the incident was in the morning whereas according to PW19 he had heard the cries in the evening. This is a material contradiction in the testimony of the witnesses.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 48 of 71 Report of the inspection of the CIA office by Sessions Judge, Gurgaon:
According to the prosecutrix, she was detained at the CIA office whereas the police and judicial record including the report of inspection conducted by Ld. Sessions Judge, Gurgaon Sh. S.D. Ahmed which has been placed on record and also forms a part of the annexures to the Writ Petition filed in the High Court (which Writ Petition has been admitted by the accused), shows that the said inspection took place on 13.4.2010 when four accused persons were found detained. The said raid was conducted by the Ld. Sessions Judge, Gurgaon in respect of illegal detention of Mubarak S/o Ramzani pursuant to the application filed by his mother Smt. Akbari, which order dated 13.4.2004 reveals that when the Ld. Sessions Judge, Gurgaon raided the Police Station, he went to the lock-up where he found one chair and two cots and four persons were brought there out of them one was Mubarak whose statement was recorded. The Roznamcha did not contain any entry about the arrest of Mubarak and Inspector Sher Singh verbally informed him that he was about the make an entry with regard to his arrest. The statement of Mubarak is also present on record which shows that he had been lifted by the CIA Staff and detained in their office since 1.4.2004 till the date of inspection that is 13.4.2004.
The statement of PW24 Shabir and PW26 Ismile reveal that on 4.4.2004 they were picked up along with Farooq and Sahid while they were standing near the hospital and had been told by the police party that they were wanted with one Mubarak who was also St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 49 of 71 in the vehicle and they were taken to lock-up of CIA Staff and detained them till 13.4.2004. Both the said witnesses have corroborated each other on the aspect that the Ld. Sessions Judge had raided the police station on 13.4.2004 and taken their thumb impression and also interrogated them. They have deposed that they were released from the custody except Mubarak who was reported to be involved in a dacoity case. In their cross- examination both the witnesses have deposed that the Ld. Sessions Judge who had raided the CIA Office had made a search of all the rooms. This being so, the husband of the prosecutrix namely Nisar Ahmed being their in the office of the CIA Office as alleged by her, he would certainly have been found by the Ld. Sessions Judge and released forthwith, as was done with the other persons which did not happen casting a doubt on the story built up by the prosecutrix and her family particularly Nisar Ahmed. The detention of Nisar Ahmed in the CIA office appears to be doubtful, more so as both the witnesses who were in continuous detention from 4.4.2004 to 13.4.2004 have specifically deposed that there was no other person except them and Mubarak who had been brought in the lock-up and that no lady was brought to the lock-up. As per the testimony of Nisar Ahmed he was never shifted from CIA staff office all through his detention. Therefore, it is doubtful that any incident could have taken place on 9.4.2004 in the CIA Office as alleged.
Test Identification Parade of the accused:
It is evident from the record that the Test Identification Parade of the accused persons was also conducted. The accused St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 50 of 71 Tek Chand has not been identified by the prosecutrix who has deposed that due to lapse of one year she could not identify the accused Tek Chand. Had that been the case, she would also not have been able to identify the accused Tek Chand in the court which she did. Therefore, the defence of the accused Tek Chand that his name was told to the prosecutrix by her father in law and his family members who are known criminals of the area and that the prosecutrix identified him on the pointing out of his family members, appears to be convincing.
In so far as the accused Om Prakash and Rakesh @ Pehelwan are concerned, they had refused to get the Test Identification Parade conducted. The accused Om Prakash was the investigating officer of the previous case got registered against the family members of the father-in-law and therefore, being known to the prosecutrix and her family in such capacity. This aspect of there being a previous criminal cases registered against Noman Khan and the accused Om Prakash being the investigating officer in the same has been admitted. The accused Rakesh @ Pehelwan also refused to submit for Test Identification Parade on the ground that his photograph had been published in the newspaper which has not been denied. This being so, a valid explanation is forthcoming for refusal of the Test Identification Parade and no adverse inference can be drawn on the refusal of Om Prakash and Rakesh @ Pehelwan for the same.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 51 of 71 Grandmother-in-law Smt. Akbari and neighbours do not support the prosecution case:
Smt. Akbari the grandmother-in-law of the prosecutrix has been examined as PW17. She is an old lady of 63 years and in her deposition before this court she has simply stated that she took her grand daughter-in-law to Safdarjung Hospital as she had told to her husband that her modesty had been outraged by accused persons but according to her, her granddaughter-in-law did not disclose this fact to her at any point of time. She has denied the suggestion that the prosecutrix had herself told her that her modesty had been outraged by the accused persons and has not supported the case of the prosecution in this regard. Further, in her cross- examination she has stated that she had not given the names of the accused persons to the police. She has also stated that after the marriage her grandson and granddaughter-in-law i.e. the prosecutrix 'V' who got married in the year 2003, were residing with her at village Kherla at the time when the incident took place. She has further stated that when the incident took place she herself was in her village and the police had not taken Nisar and the prosecutrix in her presence. She has also not supported the case of the prosecutrix on the aspect of the prosecutrix taking medical treatment from a local doctor and on a specific suggestion given to her by the counsel for the accused she has stated that the prosecutrix was not medically examined by any local doctor nor she was given any medical aid prior to taking Safdarjung Hospital. It may be noted that the prosecutrix had deposed that on account of St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 52 of 71 the injuries received at the time when the rape was committed upon her, she was compelled to take treatment from local doctor. She has also stated that when the prosecutrix was was taken to the hospital her clothes were in torn condition which is not possible since the prosecutrix was examined much later i.e. after 10 days of the alleged incident. This being so the presence of the prosecutrix 'V' and her husband under these circumstances, at Jahangir Puri appears to be doubtful.
Assuming that the version given by the prosecutrix and her husband regarding their presence at Jahangir Puri is correct, the fact that they had been taken away by the officials of Haryana Police do not find a corroboration from the testimony of the public witnesses including their neighbour residing in the area whose affidavits have been allegedly filed in the Writ Petition. The testimonies of PW23 Ms. Karuna and PW27 Mrs. Sunita are silent in this regard. PW23 has even denied her signatures on the affidavit filed before the Delhi High Court which affidavit is mark X3 (which affidavit forms a part of the writ petition filed by the prosecutrix and duly admitted by the accused persons). It is also evident that PW23 Ms. Karuna has signed in English in the court whereas her signatures present on the affidavit are in Hindi and appears to be in different handwriting. PW23 has deposed that on 9.4.2004 in the evening she met the prosecutrix who informed her that police officials of Haryana had come to their house to trace Aslam the brother of her father in law. If this be so, then the prosecutrix being present at Jahangir Puri in the evening, her St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 53 of 71 presence at CIA Office at Ferozepur Jhirka is not possible. Further, in so far as PW27 Sunita has also not supported the case of the prosecution. She is a neighbour of the prosecutrix and is residing at G-706, Jahangir Puri (the house no. of the prosecutrix is G-708).
She has deposed that on 9.4.2004 she was not present at her house and does not know what had happened. She has denied having made any statement to the police which statement under Section 161 Code of Criminal Procedure is mark X-5.
Contradictions and discrepancies in the prosecution case:
The various contradictions in the testimonies of the witness have been pointed out by the Ld. Counsel appearing on behalf of the accused persons, which are being discussed as under:
PW5 Noman Khan was allegedly taken to Police Station from his house on 1.4.2004 and alleged to have been detained there till 9.4.2004. Admittedly PW5 have three brother, one son, father and mother who are also alive but none of these family members reported the matter to the higher police officials of Haryana about lifting/ detention of PW5 by police officials of CIA Staff and none of the star witnesses ever uttered in their evidence that after 1.4.2004 Haryana Police ever visited their house for conducting any raid before 9.4.2004. Allegations are therefore only oral and do not find support from any other source.
According to the prosecutrix 'V' (PW3) and Nisar Ahmed (PW19) they left their houses on 8.4.2004 due to fear and first St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 54 of 71 went to village Jhureda (Rajasthan) and then to Jahangir Puri Delhi. On the other hand PW3 (the prosecutrix) has stated that after marriage she stayed at her in-laws house (village Kherla) only for 2-3 days and thereafter she is residing at Jahangirpuri Delhi since nine years which fact has been falsified by PW19 Nisar Ahmed, PW5 Noman Khan, PW17 Smt. Akbari & PW27 Smt. Sunita wherein her husband himself and PW17 Smt. Akbari along with PW5 Noman Khan stated that the prosecutrix had been residing at village Kherala (Haryana) since marriage and PW27 Smt. Sunita stated that House No. G-708, Jahangirpuri, Delhi remains locked most of the time, which shows no one is residing at G-708, Jahangirpuri including PW22 Mohd. Sorabh and this facts finds a corroboration from PW17 smt. Akbari who stated that after marriage of the prosecutrix they started living with them and were residing at village (Kherla) (not Delhi) when the above said incident alleged to have taken place.
PW17 Smt. Akbari has further deposed that her son Jaan Mohd. used to reside at Ferozepur U.P and her son namely Noman, Aslam and Soram used to live with her in the village and even her husband was residing at village Kherla and therefore, this witness (PW17) cannot be disbelieved being mother of PW5 Noman Khan complainant and grandmother of prosecutrix PW3.
Smt. Akbari (PW17) has further deposed that clothes of prosecutrix were in torn condition when she was taken to St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 55 of 71 Safdarjung Hospital but she is not aware whether clothes were taken by police or not.
PW17 - Smt. Akbari has also admitted that till 19.04.04 (day of medical examination at Safdarjung) the prosecutrix was neither taken to doctor nor she was given any medical aid but on the other hand prosecutrix stated that she had been bleeding for many days and had received treatment from local doctor.
Further, the incident is alleged to have been committed on 09.04.2004, however, the prosecutrix was medically examined on 19.04.2004 wherein PW3 the prosecutrix herself (as per PW15 Dr. B. Nisha) has stated that she was raped in official car at 9.30 a.m. and thereafter she was released and her husband was still in jail. Till such time she was not aware of Jail and Police Station and CIA staff However during examination PW3 has changed this story to rape in a room at police station at Firozpur Jhirka not the CIA staff office.
Further the Salwar and Kamiz of the prosecutrix were alleged to have been torn, which were neither noticed by PW5 Noman Khan who was also alleged to have been released by CIA along with PW3 prosecutrix nor it was noticed by PW21 Jaan Mohd. with whom she was alleged to have been left by two police officials after rape about 10-10.30 p.m though the prosecutrix (PW3) has stated that she changed her clothes in the house of PW21 Jaan Mohd. but PW5 Noman Khan states that he and the prosecutrix had not changed their clothes at the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 56 of 71 house of in-laws of his brother (PW21) when they were left over there.
The prosecutrix PW3 has stated that her husband came on 16.04.04 and they came to Delhi on 17.04.2004 and on same day they went to Safdarjung Hospital and as per prosecutrix she was medically examined on 16.04.04 itself but PW5 Noman Khan and PW22 Mohd. Saurab are all together on different footing who both have deposed that the prosecutrix was examined on 19.04.04 after 11 days. Though there are a number of Government Hospitals near their village in Haryana but on the direction of their youngest brother (PW5) they came to Delhi. Neither this matter was reported in Haryana nor prosecutrix was examined in Haryana though she states she had been bleeding for so many days even torn clothes were neither handed over to police nor were produced in the court.
In her cross examination, PW3 the prosecutrix 'V' has deposed that she is not aware what was written by her counsel in writ petition Ex.PW19/DX filed by her before Hon'ble High Court of Delhi. She has further deposed that she is not aware that names of Police Person were mentioned in writ petition filed on 19.04.04 and she first time came to know the names of police officials on 01.05.04 when they came to her house to give threat, then how names have been mentioned in Writ Petition Ex.PW19/DX filed on 29.04.04 showing malafide intention on part of PW5 Noman Khan the father-in-law of St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 57 of 71 PW3. Further, PW21 Jaan Mohd had admitted that criminal cases pending against their family members including PW19 Nisar Ahmed husband of PW3. However PW19 Nisar Ahmed flatly refuses about facing of any criminal case.
Smt. Mazida Begum (mother of the prosecutrix) and Usman (Maternal uncle of prosecutrix) appeared before Executive Magistrate (Faridabad Haryana and got recorded their statement as Mark Y-7 dated 29.4.2004 and Mark Y-8 dated 29.4.2004 wherein they have clearly stated that the prosecutrix is being pressurized to give false statement against police officials. These documents have neither been exhibited nor controverted and therefore, it is not safe to rely upon them since neither Mazida Begum nor Usman have been produced in the court nor the Executive Magistrate, Faridabad, Haryana has been examined to prove the same.
The prosecutrix and PW5 Noman Khan refused medical examination by doctor at BJRM Hospital Jahangirpuri, hence PW3 the prosecutrix could not support the false story. Even the version of PW5 Noman Khan and PW21 Jaan Mohd. has not been corroborated by PW3 the prosecutrix as she has deposed that they were left at village Dhond by one police official at about 6 to 7 p.m. whereas as per PW5 Noman Khan and PW21 Jaan Mohd. two police officials left them at 10.30 p.m. She has also denied the presence of her grandmother at the time of medical examination at Safdarjung Hospital.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 58 of 71 The version of PW23 Ms. Karuna is falsified by PW3 the prosecutrix by stating that her Dadia Sasur and Sas used to live at Jahangirpuri with them. Though (grand mother in law Dadia Sas) PW17 Smt. Akbari states that they all are residents of village Kherla Haryana.
It is alleged that the accused have extended threat to them, but neither it find any place in writ petition Ex.PW19/DX nor any complaint was lodged thereafter. The testimony of PW19 Nisar Ahmed husband of prosecutrix is very specific about Om Parkash (no ranks) but he could not identify SI Om Parkash (alleged accused) in the court nor he stated anything against accused Om Parkash as he only says about same Om Parkash and other six to seven persons not police officials. Further more as per PW19 Nisar Ahmed his father was alleged to have been handcuffed from Jahangirpuri and was taken in white car along with him and his wife not in Jeep here in this case. Even Nisar Ahmed PW19 did not identify any of the accused in the court during examination. PW19 Nisar Ahmed has deposed that they shifted Jahangir Puri due to fear whereas on the other hand PW3 the prosecutrix wife of PW19 Nisar Ahmed is trying to create the impression that she is permanently residing at Jahangirpuri since her marriage.
PW19 Nisar Ahmed denied criminal cases against him though (PW3) his wife and father admits criminal case against PW19 Nisar Ahmed and even mark Y6 shows that FIR No.15/3 u/s 25/54/59 Arms Act was registered at Police Station Ferozpur St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 59 of 71 Jhirka against PW19 Nisar Ahmed.
On 08.04.2004 PW19 Nisar Ahmed along with PW3 the prosecutrix went to Jahangirpuri from Gulpala and at that time his uncle Shorab was not present at Jahangirpuri and could come on the next day and no other family members were residing at Jahangirpuri and could enter in the flat, in the absence of his uncle when he was away at Nizamuddin with house locked as no other family members resides even his uncle did not met them till alleged incident. PW5 Noman Khan has deposed that they were taken to Ferozepur Jhirka in white marshal vehicle (Jeep) but on the other hand PW19 Nisar Ahmed (husband of prosecutrix) specified that they were taken in car which was closed, hence he could not raise his voice. PW5 Noman Khan has further deposed that when he and his son Nisar were kept in lockup then he did not hear any noise etc. on the other hand PW19 Nisar Ahmed tried to cover up this point by stating that he heard some weeping/ crime noise from the other room where his wife was locked. As per PW19 Nisar Ahmed he was informed by his wife PW3 the prosecutrix on 16.04.04 that three police officials has done Galat Kaam with her on 09.04.04 at about 9.30 p.m. however PW3 the prosecutrix states she was dropped by one police person along with her father at village Dhond at about 6-7 p.m. on 09.04.2004 which casts a doubt on the prosecution story.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 60 of 71 Also, in her statement under Section 164 Code of Criminal Procedure the prosecutrix has stated that she was first raped by Om Parkash then by Tek Chand and lastly by Pehalwan, however, during examination in chief she changed the numbers as Om Parkash, Pehalwan and Tek Chand and during her examination in chief she has deposed that she was unconscious when second person/ Pehalwan came. The prosecutrix has deposed that she became unconscious and she does not know what happened thereafter and when she became conscious, there was no one. She also admits that no one committed rape upon her when she regained consciousness. She has also deposed that she was forcibly made to lie down on hard floor and she struggled hard to save her life. If the version given by the prosecutrix 'V' is correct then it is only natural that after became unconscious she could not have identified the subsequent rapist. Then how is it possible that she has named the accused Rakesh @ Pehelwan and Tek Chand. It is necessary to observe that the prosecutrix has not been able to identify the accused Tek Chand in the judicial Test Identification Parade proceedings. According to her own version, when the incident took place she was made to lie down on hard floor and to struggle hard to save her life. If this is correct, then she would have received a large number of injuries on her body which is not the case. Also, the report of the Ld. Sessions Judge, Gurgaon and the testimony of PW24 Shabir and PW26 Ismile shows that the Ld. Sessions St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 61 of 71 Judge, Gurgaon had inspected all the rooms on 13.4.2004 and there was no other person in the office of the CIA, Ferozepur Jhirka. They have specifically denied that a lady had been detained. Had the prosecutrix been present and put a stiff resistance, her cries allegedly heard by her husband and father-in-law, the other persons present in the CIA Office, Ferozepur Jhirka would have also heard the same and the Ld. Sessions Judge would have noticed the presence of the family members of the prosecutrix, which did not happen.
There would have been injury of the knee of all the accused as they could have knelt on a hard surface and had pressed their knees while committing alleged rape upon the prosecutrix as this happened when a girl is lying below on hard floor and accused could have shifted their weight on knee. For serious crime standard of proof had to be higher. Though here in this case the prosecutrix during cross examination admits that she received injuries on all over the body, but this fact have been falsified by MLC Ex.PW15/A which clearly shows no injury mark, even no injury have been notice by doctor on any of the accused.
FINAL FINDINGS:
In view of my aforesaid discussion, I hereby hold that the statement of the prosecutrix PW3 along with other witnesses does not inspire confidence. There are material contradictions, improvement in the case and it appears that the true genesis of St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 62 of 71 crime has not been stated by the prosecution which make the case of prosecution doubtful. The various lacunas in the prosecution case and the false depositions made by the witnesses on oath are briefly culled out as under:
1. The prosecutrix 'V' did not disclose about the incident to anybody till the release of her husband Nisar on 16.4.2004.
The prosecutrix has lied on the aforesaid aspect since in the communication sent by Noman Khan to Hon'ble Chief Justice Punjab & Haryana High Court dated 15.4.2004, which forms a part of the Writ Petition which aspect has been duly admitted by him, this aspect regarding the rape of the prosecutrix has been specifically mentioned. Had it been that the prosecutrix never disclosed this fact to anybody, then Noman Khan would not have mentioned this fact in his communication dated 15.4.2004 sent to Hon'ble Chief Justice, Punjab & Haryana High Court.
2. As per the MLC, during her medical examination at Safdarjung Hospital the prosecutrix herself disclosed to the doctor that she was raped by three police officials in a car. The prosecutrix has lied on the aforesaid aspect and has deposed that she did not tell anything to the doctor and that her father-in-law must have told the doctor. Further, this is contradictory to her statement under Section 164 Cr.P.C. and her testimony before this court wherein she has testified that she was raped in a room.
3. The prosecutrix refused to submit for her internal examination at Babu Jagjeevan Ram Memorial Hospital. It appears that this St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 63 of 71 was done only to suppress the truth. An adverse inference is liable to be taken against the prosecutrix for her refusal to submit for internal examination.
4. In her testimony before this court the prosecutrix had stated that while Om Prakash was committing rape upon her, he had given a bite on her cheeks. This being so, the bite marks should have been visible when the prosecutrix went back home in the evening or when she was examined after 10 days of the incident. No such marks were noticed by the family members of the prosecutrix as evident from the testimony of PW17 Smt. Akbari and her other relatives nor does it find a mention in her MLC. Rather, it is evident that there were no external injuries over her body.
5. The prosecutrix has further testified that after she was raped by the accused Om Prakash she became unconscious and if this be so she would not have been in a position to recognize the persons who subsequently raped her whereas before the court she has identified the accused Rakesh and Tek Chand as the other persons who had raped her which could not have been possible had she became unconscious.
6. The prosecutrix has also deposed that after she was raped by Om Prakash, she was bleeding for many days and even got treatment from a private doctor. This aspect is not reflecting in her MLCs. Even her grand mother-in-law Smt. Akbari who has been examined as PW17 Smt. Akbari has specifically stated that the prosecutrix had never taken any treatment after the St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 64 of 71 incident from any local doctor during her stay. Local doctor from whom the prosecutrix had received the treatment could have been the best witness who could have proved the injuries. No such doctor has been either cited or examined for which an adverse inference is liable to be taken.
7. The prosecutrix could not identify the accused Tek Chand in the judicial Test Identification Parade proceedings. In so far as the accused Om Prakash is concerned, he was the investigating officer of a criminal case previously registered against Noman Khan and was known to the prosecutrix whereas the photograph of Rakesh @ Pehlwan was allegedly published in the local newspaper, a fact which has not been denied or controverted and therefore, a valid explanation is forthcoming for their refusal. The prosecutrix has identified all the accused by name and she has admitted that she was told the names of the accused persons by her father in law Noman Khan for the first time on 1.5.2004 and therefore, the identification by the prosecutrix in the court without any independent corroboration does not hold any weight.
8. On the refusal of the SHO Police Station Jahangir Puri to register an FIR no written complaint had been made by the prosecutrix or her family members. This is despite the fact that the father-in-law of the prosecutrix had been sending communication to the Hon'ble Chief Justice, Punjab & Haryana High Court and had been moving appropriate judicial authorities previously and was aware of his legal remedies.
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 65 of 71 Given these circumstances, the allegations to be appear to be correct.
9. There is also a contradiction with regard to the colour of the vehicle. As per the case of the prosecutrix she, her husband and her father-in-law were lifted in a white coloured car and as per her family members the vehicle was a Marshal and was bearing the registration number of Chandigarh whereas the vehicles produced in the court is of blue Colour with a registration number of Haryana. No explanation is forthcoming for the aforesaid discrepancy.
10. PW17 Smt. Akbari has deposed before this court that the prosecutrix had never disclosed to her about the rape. She has also deposed that the prosecutrix was never examined by the local doctor. There were ample opportunities with the prosecutrix to inform the senior ladies members of the family about the rape and had it been the case that she had received injuries on her cheeks as alleged by her, the family member of the prosecutrix would certainly came to know of it, which did not happen.
11. It is also the case of the prosecutrix that after the incident her clothes were torn and she had changed her clothes in the house of her Tao Sasur (brother of her father-in-law) where she was left by the police officers whereas PW5 Noman Khan has specifically deposed that neither he nor the prosecutrix changed their clothes.
12. PW24 Shabir and PW25 Ismile were the persons who had been St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 66 of 71 detained on the same date i.e. 9.4.2004 at CIA Office, Ferozepur Jhirka and they have specifically deposed that no lady had been detained in the office at that time. They have also proved the raid conducted by the Ld. Session Judge, Gurgaon on 13.4.2004.
13. The report of the Ld. Session Judge, Gurgaon, which forms a part of the Writ Petition filed by the prosecutrix and duly admitted by both the parties, does not show the presence of either Nisar the husband of the prosecutrix or any other person except Mubarak, Shabir, Ismile and one other person out of which three were directed to be released and one Mubarak was directed to be detained. It is also evident from the testimonies of PW24 and PW25 that the Ld. Session Judge, Gurgaon had inspected each and every room of the CIA Office. Had the husband of the prosecutrix or any of her family members been detained, they would have been noticed by the Ld. Sessions Judge, Gurgaon, which did not happen.
14. The neighbourers of the area who had allegedly filed the affidavits before Delhi High Court in the Writ Petition on which the registration of FIR was directed, have not supported the case of the prosecution at all. PW23 Ms. Karuna has denied her signatures on the affidavit and as per the physical examination of this court the signatures of PW23 do not tally with her admitted signatures before before court with the signatures put on her affidavit X-3. It, therefore, appears that in order to create a ground for registration of FIR, the father-in-
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 67 of 71 law of the prosecutrix got the signatures of the various neighbourers forged with an intent to mislead the Hon'ble Delhi High Court into passing the order regarding registration of FIR. Rather, PW23 Ms. Karuna has deposed that there was an incident in the house of the prosecutrix in the morning and in the evening when she met the prosecutrix, she informed her that the police officials of Haryana had come to her house to trace Aslam, the brother of her father-in-law. This being so, the prosecutrix was very much available in the house in the evening on 9.4.2004 whereas the second witness namely Mrs. Sunita who has been examined as PW27 has not deposed anything and has not supported the version given by the prosecutrix or her family members.
15. Smt. Mazida Begum (mother of the prosecutrix) and Usman (Maternal uncle of prosecutrix) had allegedly appeared before Executive Magistrate, Faridabad Haryana and got recorded their statement as Mark Y-7 and Mark Y-8 wherein they have clearly stated that the prosecutrix was being pressurized to give false statement against police officials, which no doubt support the version of the accused but cannot be read into evidence not being proved in accordance with law.
In view of my above discussion it is evident that the entire story of rape of the prosecutrix has been concocted by the father-in-law of the prosecution who has used the prosecutrix 'V' only to get back at the various police officials of Haryana Police St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 68 of 71 investigating various criminal cases against him. It is an admitted case of the prosecutrix and her family members that the various criminal cases are pending against them in respect of heinous offences one of which is being investigated by Om Prakash and therefore, under these circumstances, the possibility of the present case being an outcome of that rivalry cannot be ruled out.
Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused persons namely Om Prakash, Rakesh @ Pehelwan and Tek Chand, beyond reasonable doubt. The accused Om Prakash, Rakesh @ Pehelwan and Tek Chand are hereby acquitted of the charges under Section 366/ 368/376-B/ 34 Indian Penal Code. Their bail bonds stand cancelled. Their sureties are hereby discharged. Original documents of the sureties be returned after cancellation of endorsement if any.
A complaint under Section 195 Code of Criminal Procedure is also being lodged in the court of concerned ACMM under appropriate provisions of law against the prosecutrix 'V', her husband Nisar Ahmed and her father-in-law Noman Khan for the commission of offence of instituting or causing to be instituted any criminal proceedings against the accused Om Prakash, Rakesh @ Pehalwan and Tek Chand and who were falsely charged of having committed an offence punishable not less than seven years, knowing that there was no just or lawful ground for such proceedings or charge against the accused persons Om Prakash, Rakesh @ Pehalwan and Tek Chand and for commission of offence St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 69 of 71 of perjury and giving/ fabricating false evidence with the intent to procure conviction of offence punishable with imprisonment for term not less than seven years and also for making false statement despite being legally bound by oath to state the truth. Needless to say, the Ld. MM so dealing with the matter shall also get conducted a detailed inquiry/ investigations on the aspect of affidavits filed by the various persons in the Delhi High Court in Writ Petition No.529/04 and in case of any fabrication/ violation, to proceed in accordance with law against the alleged violators. This is in view of the fact that Sunita one of the alleged deponent of the affidavit filed before the Delhi High Court in Writ Petition No. 529/04 had appeared before this court and deposed that it does not bear her signatures and also in view of the fact that the signatures and handwritings on most of the affidavits appear to be the same. The hon'ble Apex Court in the case of Pritish Vs. State of Maharastra reported in 2001 (IX) AD (SC) 501 has observed that there was no statutory requirement to offer an opportunity of hearing to the person against whom the court might file a complaint before the Magistrate for initiating prosecution proceedings. The court is under no obligation to offer an opportunity (to the person against whom a complaint would be made) to be heard prior to making a complainant and the principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such a person should be proceeded against or not. Accordingly there is no need to issue any show cause notice either to the prosecutrix 'V' or her husband Nisar Ahmed or her father-in-
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 70 of 71 law Noman Khan before sending a complaint to the court of Ld. ACMM or to hear them.
It is directed that after filing the complaint under Section 195 Code of Criminal Procedure the main file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 26.10.2010 ASJ-II(NW): ROHINI
St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 71 of 71
State Vs. Om Prakash Etc.
FIR No. 502/04
PS Jahangir Puri
26.10.2010
Present: Addl. PP for the State.
All the three accused are on bail.
Vide my separate detailed judgment dictated and announced in the open court, accused Om Prakash, Rakesh @ Pehelwan and Tek Chand are acquitted of the charges under Section 366/ 368/376-B/ 34 Indian Penal Code. Their bail bonds stand cancelled. Their sureties are hereby discharged. Original documents of the sureties be returned after cancellation of endorsement if any.
A separate complaint under Section 195 Code of Criminal Procedure is being filed against the prosecutrix 'V', her husband Nisar Ahmed and her father-in-law Noman Khan. It is directed that after the completion of the said proceedings, the main file be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW) 26.10.2010 St. Vs. Om Prakash Etc., FIR No.502/04, PS Jahangir Puri Page No. 72 of 71