Delhi District Court
State vs Naresh Kumar S/O. Amar Singh on 3 November, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS
JUDGE01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 38/12
FIR No. 31/12
PS Madhu Vihar
Under Section : 363/376(G)/328 IPC
State Versus Naresh Kumar S/o. Amar Singh
R/o. 79B, Chander Vihar,
Mandawali, Delhi
Date of Institution of Case : 24.05.12
Date on which Judgment Reserved : 29.10.14
Date on which Judgment Delivered : 03.11.14
J U D G M E N T :
1. Briefly stated the case of the prosecution is that on 9.2.12 Sh. Sanjeev Bhardwaj (PW2) visited PS and made a complaint regarding missing of his daughter (hereinafter mentioned as prosecutrix). He mentioned that on 7.2.12 at 7 a.m prosecutrix had gone to school but has not returned yet. She is aged 17 years and is wearing school dress. He has searched her at various places but could not find her. On this complaint ASI Satvir Singh (PW3) prepared rukka and got the FIR registered u/s. 363 IPC. Same day complainant PW2 called him in the evening and informed that prosecutrix has reached their house. Thereafter PW2 with prosecutrix visited PS. Investigation was taken over by SI Ramo Devi (PW5). She took prosecutrix to LBS Hospital and got her medical examination done. On 10.2.12 PW5 produced prosecutrix before Ld. M.M and her statement u/s. 164 CrPC was recorded. On 14.2.12 investigation was taken over by SI Anuradha (PW7)
2. In her statement u/s. 164 CrPC prosecutrix alleged that FIR No. 31/12 page 1 of page 15 accused kidnapped her on 7.1.12 in his car alongwith his associates. She was taken to a room in jungle and there she was raped by five persons including accused. On 29.2.12 accused was arrested and his medical examination was got done. On 14.3.12 JCL Jitender surrendered in the Court and was arrested. Separate chargesheet was filed against him in JJB. Exhibits were sent to FSL. The car No. DL3CH2608 used in the commission of offence was seized. After investigation police filed chargesheet against the accused u/s. 363/376 (G)/328 IPC.
3. Charge u/s. 363/328/376 (g) IPC was given to accused, to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution has examined eight witnesses. Prosecutrix was examined as PW1, she admitted her signatures on Ex.PW1/A i.e statement recorded by Ld. M.M. PW2 Sh. Sanjeev Bhardwaj is the complainant, he proved his complaint Ex.PW2/A, arrest memo, personal search memo and disclosure statement of accused as Ex.PW2/B to Ex.PW2/D, site plan Ex.PW2/E and pointing out memo prepared at the instance of complainant Ex.PW2/F. PW3 ASI Satvir Singh is the first IO, he proved rukka Ex.PW3/A. PW4 HC Andresh was the duty officer, he proved FIR Ex.PW4/A, and endorsement on rukka Ex.PW4/B. PW5 SI Ramo Devi is the second IO, she proved seizure memo vide which exhibits given by doctor after medical examination of prosecutrix were seized. PW6 Anshul is working in Carnation Auto India Pvt. Ltd. where accused was working. PW7 SI Anuradha is the main IO, she proved seizure memo Ex.PW7/A vide which exhibits given to her after medical examination of accused were seized, FSL result Ex.PW7/B and seizure memo of car No. DL3CH2608 as Ex.PW7/C. PW8 Dr. Anuradha Mishra has proved FIR No. 31/12 page 2 of page 15 MLC of prosecutrix as Ex.PW8/A prepared by Dr. Archana as she reported to have left the service and her present whereabouts are not known.
5. Accused admitted his MLC as Ex.PA1. His statement u/s. 294 CrPC was recorded to this effect.
6. On the basis of the incriminating evidence against the accused , his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that he is quite innocent and have been falsely implicated in this case as prosecutrix wants to save some body else with whom she had physical relations and she knew about the dispute between him and her father and further prosecutrix and her father want to extort money from his family.
7. Accused led evidence in defence and examined three witnesses. DW1 Virender Singh produced the attendance record of Carnation Auto India where accused was working as Ex.DW1/A. DW2 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd., he deposed that CDR of mobile No. 9582334791 are not available as only record for a year is retrieved as per TRAI Guidelines. DW3 Sh. Amar Nath Singh, Nodal Officer, Idea Cellular Ltd., he proved CDRs of mobile No. 9540305323 as Ex.DW3/A, its CAF as Ex.DW3/B and certificate u/s. 65B of Evidence Act as Ex.PW3/C.
8. Heard arguments of Sh. Rajat Kalra, Ld. Addl. PP for State and Sh. Gaurav Malhotra, Ld. Defence counsel for accused. Ld. counsel for the complainant and Ld. counsel for the accused also filed written submissions. Perused the case file.
9. Ld. APP submitted that statement of prosecutrix is consistent, corroborated by her statement recorded u/s. 164 CrPC and FIR No. 31/12 page 3 of page 15 her MLC. It is stated that statement of PW2 who is complainant being father of the prosecutrix is also consistent and supporting statement of prosecutrix. The Ld. counsel Sh. Rajnikant for the complainant submitted that law is wellsettled that conviction for offence u/s. 376 IPC can be maintained even on the sole testimony of the prosecutrix if believed to be true and reliable. It is stated that evidence of prosecutrix must be examined as of an injured witness whose presence at the spot is probable.
10. Sh. Gaurav Malhotra, Ld. counsel for the accused submitted that statement of prosecutrix is inconsistent, self contradictory and untrustworthy. It is stated that no blood test or urine test of prosecutrix was conducted to prove that she was given sedatives or intoxicants continuously for two days. It is argued that MLC of prosecutrix belies her testimony where she has stated that accused and his other four associates have given her nail injuries on different parts of his body. The Ld. counsel submitted that MLC report only show that hymen was torn but it does not give a definite opinion as to the fact that if she had been raped or when her hymen was ruptured. It is stated that testimony of prosecutrix is in contradiction to her statement recorded u/s. 164 CrPC, which further castes shadow of doubt on her credibility. It is further submitted that in the statement of PW2 who is complainant being father of the prosecutrix, there are various material contradictions visavis statement of prosecutrix. It is submitted that as per the statement of PW6, the owner of the car, accused cannot be said to be present at the spot of alleged kidnapping as the car in question was with the owner himself. It is urged that no public witness has been examined in this case. It is stated that as per prosecutrix and her father PW2, she was carrying a mobile phone with FIR No. 31/12 page 4 of page 15 her and CDRs of her mobile phone were taken by the police but deliberately not produced in the Court as it would have destroyed their case.
11. Prosecutrix while deposing as PW1 has stated that on 7.1.12 at about 7.15 a.m she was going to school. On the way at Railway Bridge she saw accused accompanying an other boy in red colour car having black colour film on the glasses. Accused was having a white bottle. She had met accused only once as 23 months before this incident accused had come to their house at about 11.30 p.m in inebriated condition for getting an affidavit prepared from her father. On the rear glass of the car "Aroras" was written. When she was crossing that car accused put a cloth on her face and she got unconscious. When she regained consciousness she found herself in a room surrounded by a jungle. She hear accused talking with his associates "Dekh Saali Ko Hosh Aaya Ke Nahin, Jaake Batata Hoon". Thereafter accused with four boys came inside the room, they tied her hands and feet with a rope and thereafter accused and his four associates raped her. First of all accused raped her. Accused and another boys gave nail injuries on different parts of her body. Thereafter she became unconscious. Next day at about 6.30 p.m when she regained consciousness she found herself in a room surrounded by farm where Sarson was cultivated. Accused and his other four associates again raped her. Again she got unconscious. She regained consciousness on 9.2.12 at about 7 a.m. and found herself at Railway Track. A lady was crossing the track and she asked her about the place, that lady told her this is Ballabh Garh Railway Station. She was not fully conscious and even was not able to see properly. She asked that lady that she does not have any money and requested her to help for FIR No. 31/12 page 5 of page 15 taking a bus for going to Delhi. That lady took her to a bus and made her to sit in it. She again went unconscious after sitting in the bus. When she regained consciousness she asked the conductor about the number of the bus, who told her that it is bus route No. 473. The conductor dropped her at Laxmi Nagar, from there she took a tempo to return to her house.
12. During crossexamination by accused, prosecutrix has stated that when she was kidnapped she was wearing school uniform and on 9.12.12 when she returned to her house, she was wearing the same shirt and jeans ; in winters in routine she used to wear jean below salwar ; she was carrying mobile No. 9540305323 ; she was at the distance from 1520 feet from the car when cloth was put on her face and she become unconscious the moment the cloth was put on her face. She had not seen the face of the person who had put cloth on her face. She regained consciousness on 8.2.12 at 6.30 p.m. She came to know about time from her watch but same was removed by accused. On 9.2.12 she regained consciousness at 7 a.m, time was told to her by the lady who was crossing the track. She cannot tell the distance between that spot and the spot where lady had put her in the bus as she was not in full senses. She cannot tell the time when she reached Laxmi Nagar and when she reached her house. She stayed in her house for 15 minutes and thereafter her mother took her to PS. Her father met her in PS and she was not fully conscious when she reached PS. She had told Ld. M.M. that she had met accused 23 months before this incident as he had come to her house at about 11.30 p.m in inebriated condition for getting an affidavit prepared from her father. She had not made a call to accused at 7 a.m on the date of incident or any time prior to that. Accused used to call her from different FIR No. 31/12 page 6 of page 15 numbers. The mobile phone which she was having at the time of incident was snatched by accused. House of accused is on the way to her school from her house. She denied the suggestion that she is shown under age in school records and at present she is more than 20 years of age. She has denied the suggestion that she had gone from her house with her boy friend, to save her she concocted the story and made false allegations against accused, as 23 months before this incident accused had quarreled with her father.
13. Ex. PW1/A is the statement of prosecutrix recorded by Ld. M.M. Ms. Shuchi Laler u/s. 164 CrPC. Here also prosecutrix has made same allegations against the accused as deposed by her before this Court.
14. PW2 Sh. Sanjeev Bhardwaj is the father of the prosecutrix. He has reiterated the facts mentioned by him in his complaint Ex.PW2/A. In addition he has stated that his daughter was carrying a mobile No. 9540305323 and on this mobile location of his daughter was also searched. On 9.2.12 at about 11 a.m to 12 noon her daughter returned and he informed about it to SI Satbir and on his instructions he took her to PS. Later on he alongwith his daughter had gone to PS, there accused was present with his father and was arrested on identification of his daughter. Coaccused Jeetu @ Jitender (JCL) was also arrested on the identification and pointing out of his daughter. During his crossexamination he stated that about 34 months before the incident accused had come to his house at 11 p.m for making an affidavit, accused was drunk and he asked accused to come to the Court next day. Accused used to live in Chandra Vihar at some distance from his house. He denied the suggestion that his daughter used to talk with accused, one boy Javed and JCL Jeetu. He had made FIR No. 31/12 page 7 of page 15 complaint regarding missing of his daughter on 7.2.12 at 4/4.30 p.m. He had made a complaint case in the Court of Ld. M.M in February'12 and thereafter accused was arrested. The complaint was made after 710 days of the incident. He had mentioned name of this accused only in that complaint as by that time he was not aware with the names of other accused persons. Accused used to throw letters in his house tying it with stone, after the incident. He denied the suggestion that after 9.2.12 he had met father of accused in the PS and there they negotiated money for settling the matter.
15. Ex.PW8/A is the MLC of prosecutrix. In history it is mentioned "kidnapped by Naresh and four other males on 7.2.12. They all raped her two times. They had done it under some effect of sedation agents and they leave her today morning at Railway Station. As per the MLC hymen was found torn. As per the MLC there was no injuries or resistance marks.
16. Ex.PW7/B is the FSL report, as per which report regarding DNA examination will be furnished separately. The DNA examination report is dated 26.2.13 filed by Senior Scientific Officer(Biology) cum Ex. Officio Chemical Examiner which is admissible perse in evidence u/s. 293 CrPC. The result of examination is as follows : "Partial male DNA profile was generated from exhibit '2a (underwear)' due to degraded stains. However DNA profile from exhibit '1j1 (cotton wool swab)' '1j2 (microslide)', '1j3 (microslide)', '1k (Cotton wool swab)', '2a (underwear)', '5(Gauze cloth piece of accused Naresh)', '9 (Gauze cloth piece of accused Jitender)' could not be generated due to degraded stains. Therefore comparison of profile could not concluded.
FIR No. 31/12 page 8 of page 15
17. DNA report is not favouring the prosecution in any manner.
18. PW3 ASI Satvir Singh is the first IO, as per him, on 9.2.12 complainant PW2 came in the PS and made a complaint that his daughter aged 17 years on 7.2.12 has gone to school but has not returned. He recorded the statement, prepared rukka and got the FIR registered. Same day complainant called him in the evening and informed that prosecutrix has reached his house. Thereafter complainant with prosecutrix came to PS and complained that his daughter has been raped. PW5 SI Ramo Devi also did part investigation, she got prosecutrix examined in LBS Hospital on 9.2.12 and on 10.2.12 she got her statement recorded u/s. 164 CrPC from Ld. M.M. PW7 SI Anuradha was assigned investigation of this case on 14.2.12. On 29.2.12 on the identification of prosecutrix she had arrested accused. On 14.3.12 JCL Jitender was apprehended by her and arrested in the PS. Against JCL separate chargesheet is filed with Juvenile Justice Board.
19. One of the contention raised by Ld. counsel for the accused is that accused is working as Applicator in the office of Carnation at Sector 5, Noida and he was present on duty on 7.2.12 and 8.2.12 which demolishes the allegations made against him. To prove his defence accused has examined three witnesses. DW1 Virender Singh, Business Development Manager, Auto Nation, Paschim Vihar has produced the attendance record for February'12. As per him accused was working as Applicator in their office i.e 'Carnation"
Sector5, Noida. During cross he admitted that their employees including accused used to go out from office during working hours. PW6 Anshul is the owner of the Car No. DL3CH2608 in which FIR No. 31/12 page 9 of page 15 accused is stated to have kidnapped the prosecutrix. He is also working in Carnation Auto India Pvt. Ltd. at Section 5, Noida. As per him accused was also working in the same office as supervisor. The Maruti Car No. DL3CH2608 was purchased by him two years ago but he had not transferred it on his name. Sometimes accused used to take away his car. During cross by accused he has stated that accused had not taken his vehicle on 6.2.12. During his crossexamination he admitted that accused had not taken his car on 7th or 8th February'12.
20. DW2 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd. deposed that order of the Court for preserving the CDRs of mobile No. 9582334791 for the period 1.2.12 to 20.2.12 was received in their office on 21.4.14. As per TRAI Guidelines only record for a year is retrieved by the service providers, hence this record is not available. DW3 Sh. Amar Nath Singh, Nodal Officer, Idea Cellular Ltd. deposed that order of the Court for preserving CDRs of mobile No. 9582334791, 9718756050 and 9540305323 for the period 1.2.12 to 20.2.12 was received in their office on 21.4.14. As per DOT Licensing Guidelines only record for a year is retrieved by the service providers. The mobile No. 9582334791 though belongs to Vodafone series but under mobile portability it came to their company and again back to Vodafone. However, the CDRs of mobile No. 9540305323 for the period 5.2.12 to 8.5.12 are available as some security agency might have asked the company for investigation and same is available in their system.
21. It is relevant to mention that both prosecutrix and complainant (PW2) have mentioned that prosecutrix was carrying mobile No. 9540305323 with her at the time of this incident. As per prosecutrix the same was snatched by accused from her possession.
FIR No. 31/12 page 10 of page 15 Ex.PW3/B is the Customer Application Form of this mobile number, as per which it was allotted to complainant (PW2). Ex.PW3/A is the CDR of this mobile number. The scrutiny of this CDR reveals that this number was in contact with different numbers, making and receiving calls, on the intervening night of 6th and 7th February'12. At about 10 p.m to 2.43 a.m, on 7.2.12 between 6 a.m to 2 p.m various calls were made and received at this number.
22. I agree with the contentions raised by Ld. APP and Ld. counsel for the complainant that conviction can be based on the uncorroborated evidence of prosecutrix but if the same inspires confidence. In Radhu Vs. State of Madhya Pradesh 2007 Crl.L.J. 4704, the Apex Court has laid down the applicable principles in such cases. The relevant observation of the Court in para 5 is as follows : "5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent.............."
FIR No. 31/12 page 11 of page 15
23. The Ld. counsel for the accused has relied upon Pradeep @ Sonu V/s. State 2011 (2) JCC 2031, where our High Court has observed that this is no more res intergra that conviction for the offence u/s. 376 IPC can be based on the sole testimony of a victim, however the testimony of a victim in such cases is very vital and should be without inconsistencies and should not be improbable unless there are compelling reasons which necessitate looking for a corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim for sexual assault to convict any accused.
24. Bestowing careful scrutiny to the statement of prosecutrix, facts and circumstances of this case, I find statement of prosecutrix improbable, unreliable and untrustworthy because of the following reasons :
(i). Though record of Carnation Auto Pvt. Ltd., Sector 5, Noida produced by DW1 showing attendance by accused on 7.2.12 and 8.2.12, could have been manipulated but prosecution witness PW6 has admitted that on 7th and 8th February'12 accused had not taken his car. As per story of prosecution accused had kidnapped prosecutrix in this vehicle on 07.02.12 at 7 a.m.
(ii). The version of the prosecutrix that she was kidnapped on 7.1.12 at 7.15 a.m from Railway Bridge by accused after making her unconscious by putting a cloth on her face appears to be unbelievable. During cross prosecutrix has admitted that she was at the distance of 1520 feet from the car when accused put cloth on her face. As per her she got unconscious immediately thereafter. 7.15 a.m is such a time when normal activities remains on the roads comprising movement of the children accompanying their wards going to school. Moreover, Delhi FIR No. 31/12 page 12 of page 15 roads are known for traffic even at morning hours. If prosecutrix fell unconscious immediately on cloth being put on her face, it looks hard to believe that for 1520 feet she must have been dragged or physically lifted by the accused, to the full public glare, in his car.
(iii). As per prosecutrix when she was raped by accused and his associates her hands and feet were tied with rope and she was given nail injuries on different parts of her body. As already discussed as per her MLC there were no injuries or resistance marks found on her person. MLC belies this version of the prosecutrix. If her feet and hands would have been tied with rope and then subjected to forcible intercourse by five persons, in routine course she might have suffered injuries or tenderness on her feet and hands.
(iv). As per prosecutrix after being kidnapped she regained consciousness in a room situated in jungle. There she was subjected to gang rape and thereafter she became unconscious.
Again on 8.2.12 at 6.30 p.m she regained consciousness and found herself in a room and there again accused and his associates raped her. Again she got unconscious thereafter and she regained consciousness on 9.2.12 at about 7 a.m. Which means for about 2 days she remained with accused and his associates and out of this duration for sometime she regained consciousness. She has nowhere stated that if any sedation was given to her there except when she was kidnapped at 7 a.m. on 7.2.12. MLC of prosecutrix prepared on 9.2.12 at 8.30 p.m do not talk about any such symptom on her. Therefore it is hard to believe that for about 2 days she remained in unconscious state FIR No. 31/12 page 13 of page 15 for most of the time.
(v). Statement of prosecutrix is silent if she was having any acquaintance with the accused prior to this incident. She has only stated that she had met accused only 23 months before this incident as he had come to his house at about 11.30 p.m in inebriated condition for getting an affidavit prepared from her father. Her father PW2 has also made this statement. However, during her crossexamination prosecutrix has admitted that accused used to call her from different numbers and was residing on the way of her school from her house. If accused used to call prosecutrix even prior to this incident, no such complaint was ever made by prosecutrix or her father ever, which further creates some shadow of doubt regarding relationship of prosecutrix with accused prior to this incident.
(vi). As per complainant (PW2) on 7.2.12 he went to PS and made a complaint but police asked him to search and wait for her. As per PW3 for the first time on 9.2.12 complainant had come in the PS, made the complaint, on which he prepared rukka and got the FIR registered. No proof has been produced by PW2 of having made complaint in the PS on 7.2.12. If prosecutrix went missing on 7.2.12 then why complainant did not make complaint immediately, waited for her and only made a complaint on 9.2.12 remains unexplained and further creates shadow of doubt on the prosecution case. Moreover, as per prosecutrix she regained consciousness on 9.2.12 at 7 a.m, a lady who met her there, helped her and made her sit in a bus in route No. 473. That bus dropped her at Laxmi Nagar and from there she had returned to her house. Though it is difficult to FIR No. 31/12 page 14 of page 15 evaluate that at what time she might have reached her house but it has to be kept in mind that Ballabhgarh is situated at a distance of about one or two hours from the place where prosecutrix is staying. As per rukka Ex.PW3/A same was prepared by IO on 9.2.12 at 1.05 p.m. As per the prosecution case when FIR was lodged prosecutrix had not returned to her house.
25. As already discussed Ex.DW3/A are the CDRs of mobile number which prosecutrix was carrying with her. This number remained active, calls were received and made from it in the intervening night of 6th and 7th February till 8th February. As per prosecutrix this mobile was snatched by accused from her. The question arises who used this phone so frequently during this period. This aspect remained uninvestigated.
26. In view of the reasons discussed above, it is held that prosecution has failed to prove its case beyond reasonable doubt against accused. Accordingly, accused is acquitted from the offences punishable under Section 363/328/376 (g) IPC.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 03.11.14 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS :
DELHI FIR No. 31/12 page 15 of page 15