Delhi District Court
State vs Kapil Mohan Sharma And Others. -:: Page 1 ... on 24 December, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
State
Versus
1. Mr.Kapil Mohan Sharma,
Son of Mr.Teekam Singh Sharma,
Resident of House of Om Parkash, Gali No.6,
Baba Colony, Sant Nagar, Burari, Delhi.
2. Mr.Gajender @ Gyanender Singh Rathi,
Son of Mr.Gopi Chand Rathi,
Resident of F-30/A, Gali No.10,
Brahmpuri, Delhi-110053.
3. Mr.Pradeep @ Pradeep Dhama,
Son of Mr.R.P.Singh Dhama,
Resident of 459/B-1, Dalhai Mohalla,
Bhola Nath Nagar, Shahdara, Delhi-110032.
4. Mr.Rishi @ Rishi Verma,
Son of Mr.Badri Prasad @ B.P.Verma,
Resident of 4/748, Gali No.13,
Bhola Nath Nagar, Shahdara, Delhi.
5. Mr.Anil @ Anil Sharma,
Son of late Mr.Trisen Pal,
Resident of 5090, Gali No.13,
B-Block, Sant Nagar, Burari, Delhi-110084.
6. Mr.Lalit Mohan Sharma,
Son of Mr.Tikam Singh Sharma,
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
FIR No. 418/2005, Police Station Timar Pur,
Under sections 376/373/34 of the Indian Penal Code.
State vs Kapil Mohan Sharma and others. -:: Page 1 of 64 ::-
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Resident of F-30, Gali No.10,
Brahmpuri, Delhi-53.
7. Mr.Raj Mohan Sharma,
Son of Mr.Jag Mohan Sharma,
Resident of 5312, Gali No.115/16,
B-Block, Sant Nagar, Burari, Delhi-110084.
First Information Report Number : 418/2005
Police Station Timar Pur,
Under sections 376, 373 and 34 of the Indian Penal Code.
Date of receipt of files after committal in : 31.05.2006.
the Sessions Court
Date of transfer of the files to this Court of : 15.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 19.12.2014.
Date of judgment : 24.12.2014.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
All accused persons are on bail.
Mr.A.K.Mishra, counsel for accused Mr.Kapil Mohan
Sharma.
Mr. Vinod Kumar Singh, counsel for accused Mr.Lalit
Mohan Sharma.
Mr. A.S.Chikara, counsel for accused Mr.Anil @ Anil
Sharma, Mr.Rishi @ Rishi Verma, Mr.Gajender @
Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama and
Mr.Raj Mohan Sharma.
None for complainant/prosecutrix.
Ms.Poonam Sharma, counsel for the Delhi Commission
for Women.
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Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
FIR No. 418/2005, Police Station Timar Pur,
Under sections 376/373/34 of the Indian Penal Code.
State vs Kapil Mohan Sharma and others. -:: Page 2 of 64 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This is one of the oldest cases pending in this Court and also falls in the list of twenty oldest cases. This case has traversed almost a decade, since the year 2005, and a sincere endeavour has been made to dispose it as expeditiously as possible.
2. Rape is a dark reality in Indian society like in any other nation. It is the worst kind of terror and a rapist motivated by the urge to dominate, humiliate, and destroy his victim. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her, her husband, his relatives and Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
FIR No. 418/2005, Police Station Timar Pur, Under sections 376/373/34 of the Indian Penal Code. State vs Kapil Mohan Sharma and others. -:: Page 3 of 64 ::-
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friends, as in the present case, in whom she may repose her trust.
3. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, all the accused persons, have been charge sheeted by Police Station Timar Pur, Delhi for the offences under sections 376 (2) (g), 506(II)/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 06.08.2005 at 8.00 pm at House No. 5312, B-Block, Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
FIR No. 418/2005, Police Station Timar Pur, Under sections 376/373/34 of the Indian Penal Code. State vs Kapil Mohan Sharma and others. -:: Page 4 of 64 ::-
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Gali no. 115/16, Sant Nagar, Burari, Delhi (house of accused Mr.Raj Mohan Sharma), all the accused persons committed rape on the complainant/prosecutrix (name mentioned in file and withheld to protect her identity) which falls under the category of gang rape and they had committed intimidation by threatening the complainant/prosecutrix that in case she reported the matter to any person, she would be killed.
BACKDROP
5. The prosecutrix / complainant had given a complaint on 08.08.2005 that she had been raped on 06.08.2005 by the accused persons in the presence and at the behest of her husband accused Mr.Kapil Mohan Sharma and they had threatened to kill her if she disclosed about the incident to anyone. When the police did not take any action, she had filed a private complaint on 16.08.2005 and the learned Metropolitan Magistrate gave a direction to the police to register the case and accordingly FIR No.418/05 was registered on 02.09.2005. The police had submitted a cancellation report in the State case in which the prosecutrix / complainant had filed a protest petion and the learned Metropolitan Magistrate has summoned the accused persons.
6. Here, it is important to mention that the complainant/prosecutrix had filed a criminal complaint case against all the accused persons which is also tagged with the State case and is under consdideration.
7. It would also be relevant to mention here that the Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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names of the accused persons and their parentage are mentioned in different manners at different places i.e. sometimes with and sometimes without their surnames or wrongly.
8. Vide order dated 14.07.2009 of the learned predecessor, it was ordered as follows:
....Hence the complainant has prerogative to summon the witnesses as per list furnished. However, Chapter XVIII trial before the court of session (section 225 Cr.P.C to section 237 Cr.P.C) provides that trial is to be conducted by the Public Prosecutor in the court of session and in terms of section 230 Cr.P.C on the application of the prosecution, witnesses may be summoned. Therefore, in order to strike tha balance harmoniously qua th e witnesses to be summoned, it is decided and held that the witnesses enumerated in the list of witnesses filed by the complainant will be summoned, without prejudice to the rights of the State request to call any other witness in terms of section 230 Cr.P.C, however, before summoning such witnesses to be proposed by the State, the parties will be heard....
CHARGE SHEET AND COMMITTAL
9. After completion of the investigation, the charge sheet/ cancellation report was filed before the Court of the learned Metropolitan Magistrate. After the filing of the protest petition by the prosecutrix and summoning of the accused and completion of formalities, the State case and the complaint case were committed to the Sessions Court and were assigned to the Court of the learned predecessor vide order dated 31.05.2007 of the learned Sessions Judge, Delhi. Subsequently, the case has been transferred and assigned to this Court i.e. Court of Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
FIR No. 418/2005, Police Station Timar Pur, Under sections 376/373/34 of the Indian Penal Code. State vs Kapil Mohan Sharma and others. -:: Page 6 of 64 ::-
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Hazari Courts, Delhi for 15.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi. The complainat case was also committed to the Sessions.
CHARGE
10. After hearing arguments, vide order dated 29.04.2008, charge for offence under sections 376 (2) (g) / 506 (II) and 34 of the IPC was framed against all the accused to which they all pleaded not guilty and claimed trial.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
11. The prosecution story unveils on 08.08.2005, when Mr. Rinku, (PW6) brother of prosecutrix, had come to her residence and when she disclosed about the incident of rape to him, he had taken her to Police Station Timarpur. At the Police Station, she gave complaint (CW1/A) addressed to SHO, Police Station Timarpur. No action was initiated at her complaint at Police Station Timarpur. Her husband, accused Mr.Kapil Mohan Sharma is working in Delhi Police and another person Mr.Gajender (co-accused) is also an employee of Delhi Police. When no action was initiated, Mr. Rinku (PW-6) brother engaged one advocate and complaint case, list of witnesses and affidavit (collectively Ex.PW1/A) were filed before the Court alongwith complaint dated 12.08.2005 addressed to the Commissioner of Police (Ex.PW1/B). On 08.08.2005, ASI Sushma (PW-3) recorded the statement of the prosecutrix Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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(Ex. PW3/A). ASI Sushma (PW-3) along with the prosecutrix went to the residence of her brother Mr.Rinku (PW6) at Mukinpura, Subzi Mandi where the prosecutrix handed over her clothes i.e salwar etc. which were seized vide seizure memo (Ex. PW3/B). ASI Sushma (PW3) along with SI Geeta Rani (PW14) took the prosecutrix to Aruna Asaf Ali (AAA) Hospital where she was medically examined and one sealed parcel and sample seal were seized vide seizure memo (Ex PW3/C). Subsequent to the filing of complaint case, an order was passed by the Hon'ble Court for the registration of the case and the present case was registered. Prosecutrix was taken to Aruna Asaf Ali Hospital for medical examination. She was made to sit in the hospital by the police official but she was not medically examined by the doctor. As per the prosecutrix, she was asked by the police official to put her thumb impression in a register at Aruna Asaf Ali Hospital and she was told by the police official that medical examination has been conducted. She was also taken to Hindu Rao Hospital after a week for re-medical examination. It was holiday on that day and medical examination could not be conducted and till date she has not been medically examined by any of the doctor. Subsequent to the filing of the complaint case, statement dated 07.09.2006 (Ex.PW1/C) of the prosecutrix was recorded by the learned Magistrate. Prosecutrix has proved the MLC No.21765 dated 09.08.2005 (Ex.PW1/D). She has also proved the MLC No.919905 dated 10.09.2005 (Mark A). Police officials had taken her salwar and shirt from her. She did not identify the clothes which were produced in the Court. She stated that her clothes were perhaps of yellow colour. On 02.09.2005, SI Rajnish Sharma (PW5) received the complaint (Ex.CW1/A) of Ms.Sharda through SHO. He had made endorsement on Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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the complaint (Ex.PW5/A) and produced the original tehrir before the duty officer ASI Ravinder (PW2) for registration of FIR (Ex.PW2/A) and accordingly the present case was registered and investigation was marked to him. On 03.09.2005, SI Rajnish Sharma along with WASI Geeta (PW14) went at H.No.1943, Malka Ganj, where Mr. Satrughan, brother of prosecutrix met them. He recorded his statement under section 161 of the Cr.P.C. He also met with complainant (PW1) and asked her for medical examination, she stated she would state after consulting her advocate. On 10.09.2005, SI Rajnish Sharma along with WASI Geeta took complainant to Hindu Rao Hospital for her medical examination from where she was sent to Gynae Department alongwith WASI Geeta but the complainant went away from Gynae Department and her medical examination could not be conducted. Thereafter, SI Rajnish Sharma reached the chamber of complainant's lawyer and found her present, and she stated that she did not want her medical examination. The prosecutrix (PW1) had taken SI Rajnish Sharma to Sant Nagar, Burari and pointed out the place of occurrence i.e. Gali No. 115/16, Sant Nagar, Burari. SI Rajnish prepared site plan at the instance of complainant. On 27.10.2005, SI Rajnish Sharma went to Hardayal Singh Municipal Library and verified regarding the membership of Gyanender Rathi and hand over the relevant document vide application (Ex.PW5/B). Mr.Lakhan Singh, Librarian verified the documents. SI Rajnish Sharma met Mr.Purushottam Mishra, Mr. Yatender Nagar and Mr.Amrinder Singh Mr. Rakesh and Mr. Sharad Gupta and recorded their statements. Thereafter, further investigation was marked to WSI Dorothiya (PW7). On 09.09.2005, the investigation of the present case was assigned to WSI Dorthiya (PW7). WSI Dorthiya recorded the Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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statement of Shatrughan, duty constable Brij Shiv Kumar, Usha Kushwaha and ASI Neelam. She gave notice to complainant but she did not come and cooperate. On 15.09.2005, WSI Dorthiya went to Aruna Asaf Ali Hospital to obtained opinion on the MLC of prosecutrix but due to non availability of Dr.Sanju Saloni, opinion could not be obtained. On 19.09.2005, WSI Dorthiya gave notice to accused to join the investigation. On 20.09.2005, all the accused persons came at Police Station Timar Pur and she interrogated all of them. On 10.10.2005, WSI Dorthiya (PW7) obtained opinion on the MLC of prosecutrix at AAA hospital. She collected the call details of mobile of accused Mr.Lalit Mohan Sharma. She also recorded the statement of Mr. Sanju Lakra, executive of concerned company of mobile. On 26.10.2005, one lady namely Ms. Manju Bhasin from Nari Raksha Samiti, ASI Geeta (PW14), Mr. Parkash Rani, Mr. Prem Chand Sharma were examined under section 161 of the Cr.P.C. On 02.11.2005, Mr. Lalit Tyagi, Ms. Leela Garg, Mr. Arun Sharma etc. were also examined under section 161 of the Cr.P.C. On 15.11.2005, call details of mobiles of accused persons were obtained and WSI Dorthiya finally filed the report under section 173 of the Cr.P.C as cancellation report against all the accused. Duty Officer ASI Ravinder (PW2) has recorded the FIR No. 418/2005 (Ex.PW2/A). On 08.08.2005, ASI Sushma (PW3) recorded the statement of complainant (Ex.PW3/A). On 09.08.2005 SHO directed ASI Sushma to initiate inquiry. ASI Sushma along with Insp. Prabha Gulati, NGO official and Ms. Sharda went at the residence of complainant at Baba Colony, Sant Nagar and enquired from Mr.Om Parkash and recorded his statement. Thereafter the prosecutrix took them at the premises of accused Mr.Raj Mohan Sharma situated at H. No.769/4, Sant Nagar, Delhi, where Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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rape was committed upon her. Complainant pointed the room where the offence was committed. Complainant stated that the clothes which she was wearing on the date of occurrence were kept at the residence of her brother namely Mr. Rinku (PW6) at Mukimpura, Subzi Mandi. Thereafter they all reached there and complainant pointed towards the clothes i.e. her salwar, etc. Same were seized vide seizure memo (Ex.PW3/B). ASI Sushma (PW3) along with ASI Geeta Rani (PW14) had taken complainant to AAA Hospital for her medical examination. After medical examination, ASI Sushma had seized one sealed parcel and sample seal (Ex.PW3/C). Thereafter, they all came back Police Station and stated all the facts to SHO. Mr. Amar Nath Singh (PW15) proved the original Customer application Form in the name of accused Mr.Kapil Mohan Sharma and licence as Ex. PW15/A and Ex. PW15/B. Mr. Israr Babu (PW16) proved the original Customer application Form in the name of accused Pardeep Dhama and licence as Ex. PW16/A and Ex. PW16/B. ASI Sushma recorded the statements of Omparkash on 05.09.2005. On 07.09.2005, she recorded the statement of Insp. Gulati, Doctor Rajat Mishra. Exhibits were sent to FSL Delhi. She recorded the statement of MHC(R) of Police Station Pahar Ganj regarding having registered one case against accused Mr.Kapil Mohan Sharma by the prosecutrix. In the meanwhile, she was transferred and the case file handed over to MHC(R). Retd ACP Tilak Raj Mongia (PW4) received the complaint under section 156 (3) Cr.P.C. of the prosecutrix from the concerned Court and the FIR 418/2005 was registered. The case was investigated by various IOs, at different stages from time to time. On the conclusion of investigation the final report was prepared in the form of cancellation report. Mr.V.K.Rai, Phone Mechanic Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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(PW9) has produced the ownership details of telephone no. 200962354.
He has proved the report of Naim Akhtar, SDE of Idgah Telepone Exchange (Ex.PW9/A). On 10.09.2005, Dr. R.K.Anand (PW10) had medically examined complainant vide MLC(Ex.PW10/A). Retd ACP Chandra Prabha Gulati (PW11) conducted the enquiry with regard to the complaint of the prosecutrix. She conducted the facts finding enquiry and got conducted the medical examination of the prosecutrix. Thereafter, further enquiry was given to SI Sushma Ikka. HC Vinod (PW12) deposited the exhibits at FSL Rohini vide RC No.150/21/05. ASI Geeta Rani (PW14) along with ASI Sushma Ikka and Ms. Sharda went at Hindu Rao Hospital for medical examination of the prosecutrix / complainant. After medical examination, doctor handed over sealed blood samples and one sample, which were seized by the IO vide seizure memo (Ex.3/C). W/ASI Neelam (PW17) made endorsement on the complaint and FIR No. 58/05 under section 376 IPC was registered at Police Station Pahar Ganj. She also got the medical examination of the prosecutrix / complainant and got her statement recorded under section 164 of the Cr.P.C by the concerned learned Metropolitan Magistrate. Accused Mr.Kapil Mohan Sharma was arrested. Later on, FIR No.58/05 was quashed by the order of Hon'ble Delhi High Court. The prosecutrix joined the investigation of FIR No.418/05 with IO SI Dorthiya and handed over the relevant documents of FIR No.58/05. Dr.Solomi Vio, Medical Officer (PW18) has examined the complainant and proved her MLC (Ex.PW1/D). HC Isham Singh, MHCM (PW19) has proved the relevant entries (Ex.PW19/A to Ex.PW19/C) in register numbers 19 and 21. HC Hemraj, MHCR (PW20) had produced the original FIR No.58 of 2005 under section 376 IPC, Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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Police Station Pahar Ganj (Ex.PW20/A). As per the record, FIR has been quashed by the order of Hon'ble Delhi High Court which is mentioned in the index of the case dairy at point A (Ex.PW20/B). HC Naresh Kumar (PW23) produced the duty roaster dated 06.08.2005 in the name of accused Mr.Kapil Mohan and proved the same ( Ex. PW23/A). The exhibits of this case were examined by Mr.Naresh Kumar, FSL expert (PW 21) vide his detailed FSL reports (Ex.PW21/A). Dr. Deepshikha, Specialist (PW22) was deputed in place of Dr. Rima, who has examined the complainant vide MLC (Ex.PW1/D) and she has identified the signatures of Dr.Rima. HC Naresh Kumar (PW23), Duty officer has produced the duty roaster of dated 06.08.2005 in which the name of accused Mr.Kapil Mohan Sharma appears at serial no.32 regarding duty in the officer. Photocopy of duty roaster is Ex.PW23/A. Dr.Rekha Jain, CMO (PW24) has deposed in place of Dr. Ruchi Singh, who has prepared the MLC (Ex.PW10/A) of the prosecutrix. Dr. Jasmine Chawla Sharma (PW25) was deputed in place of Dr. Ruchi Singh, who has prepared the MLC (Ex.PW10/A) of the prosecutrix.
12. The allegations against the accused persons are that on 06.08.2005 at 8.00 pm at House No. 5312, B-Block, gali no. 115/16, Sant Nagar, Burari, Delhi, all the accused persons committed rape on the complainant/prosecutrix which falls under the category of gang rape and in furtherance of their common intention, they had committed intimidation by threatening the complainant/prosecutrix that in case she reported the matter to any person, she would be killed.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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PROSECUTION EVIDENCE
13. In order to prove its case, the prosecution has examined as many as 25 witnesses i.e. prosecutrix, as PW1; ASI Ravinder, the Duty Officer who had recorded the formal FIR of the case, also as PW1; ASI Sushma, witness of investigtion, as PW3; Retd. ACP Tilak Raj Mongia, as PW4; SI Rajnish Sharma, the first investigation officer, as PW5; Mr. Rinku, brother of the prosecutrix, as PW6; WSI Dorthiya, the second investigation officer, as PW7; Ms. Usha, the public witness, as PW8; Mr. V.K. Rai, phone Mechanic, as PW9; Dr. R.K.Anand, CMO, who had medically examined the prosecutrix, as PW10; Retd ACP Chandra Prabha Gulati, as PW11; HC Vinod,MHCM of the present case, as PW12; Ct. Brij Sukmar, duty constable at Aruna Asaf Ali Hospital, as PW13; WASI Geeta, who had taken the prosecutrix to Hindu Rao Hospital for medical examination, as PW14; Mr. Amar Nath Singh, Alternate Nodal officer, Idea Cellullar Limited, as PW15; Mr. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Limited, as PW16; WASI Neelam, witness of the investigation, as PW17; Dr. Solomi Voi, who had medically examined the prosecutrix, as PW18; HC Isham Singh, MHCM of the present case, as PW19; HC Hemraj, MHCR of the present case, as PW20; Mr.Naresh Kumar, Senior Scientific Officer, as PW21; Dr. Deepshikha, Specialist of Gynae, who had deputed in place of Dr. Rima, who had preapred the MLC of Dr. Rima, as PW22; HC Naresh Kumar, as PW23; Dr. Rekha Jain, deputed in place of Dr. Ruchi Singh, who had prepared the MLC of complainant/Prosecutrix, as PW24; and Dr. Jasmine Chawla Sharma, deputed in place of Dr. Ruchi Singh, who had prepared the MLC of complainant/prosecutrix, as PW25.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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14. The accused have preferred not to cross examine PWs 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by all the accused persons.
STATEMENTS OF ALL THE ACCUSED PERSONS UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE
15. In their respective statements under section 313 of the Cr.P.C., all the accused persons have controverted and rebutted the entire evidence against them. All of them have claimed to be innocent and falsely implicated in this case.
16. Accused Mr.Kapil Mohan Sharma has submitted that he is working as a Constable in Delhi Police since July 2001 and in and around September -October 2004, he came to know the complainant as an unmarried girl, as per the representation given by her and subsequently they got friendly with each other and accordingly they got married on 31.12.2004 in Jhandewalan Temple. However, his family did not approve the aforesaid marriage due to which he was disowned by his family and he was asked not to come to the house due to which he started residing separately with complainant. However, the complainant started insisting that he should take her to his paternal house which was not possible due to the opposition of his family and it was during this period itself that he got the information that the complainant is already married with one Mr. Sunil Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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Kumar and is having three kids from her first husband Mr. Sunil Kumar. He also came to know that the first marriage of the complainant with Mr. Sunil Kumar was not dissolved. When he tried to make an enquiry about the facts regarding the first subsisting marriage of the complainant, FIR NO.58/2005 was registered by the complainant under section 376 of the IPC against him. The said FIR was registered in Police Station Pahar Ganj in terms of the direction given by the learned Metropolitan Magistrate on the basis of private complaint case filed by the complainant under section 200 of the Cr.P.C. Accordingly, he had filed writ petition (Crl) No.212 of 2005 before Hon'ble Delhi High Court for quashing of the FIR No.58/2005 in which notice was issued to the complainant and thereafter complainant had volunteered to execute a compromise in the month of March 2005 wherein she had not only admitted the factum of marriage dated 31.12.2004 but also that she declared herself to be the divorce of her former husband Mr. Sunil Kumar. She also committed that she will again get married with him and their marriage will be registered as per the law to avoid any future confusion. Subsequently, he got married with the complainant once again on 11.03.2005 and thereafter FIR No.58/2005 was quashed by the Hon'ble Delhi High Court on 27.04.2005 on the basis of the affidavit dated 25.04.2005 and the statement given by the complainant.
Thereafter, he started residing with the complainant as husband and wife. Thereafter, he started requesting the complainant to get the marriage registered as per the agreement filed before Hon'ble Delhi High Court but she continued to avoid in cooperating for the said registration of the marriage. It was in the end of July 2005 that the complainant had shockingly revealed that her first marriage with Mr. Sunil Kumar is still Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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subsisting and that her declaration given before the Hon'ble Delhi High Court and in the compromise were wrong. Accordingly, he started living separately from 01.08.2005. Due to the registration of the FIR No. 58 of 2005, he was being put on "Line Hazir" at North District Line by Delhi Police and despite the quashing of the said FIR on 27.04.2005, he was still being asked to continue with the said Line Hazir which he continued even in the month of August, 2005. Thereafter, he had started the discussion and proceeding for initiating the appropriate legal steps which got delayed due to the requirement of his being mandatorily required to be present in the Line Hazir and hence it was only on 06.08.2005 that he could finalize his HMA Petition no.762 of 2005 which was signed by him at around 7.30 am in the morning. However, the record reveals that the present proceedings were initiated on 08.08.2005 by the complainant against him, his friends and relatives as a counter blast to his HMA petition no.762/2005 dated 06.08.2005. The entire complaint in this case contains false allegations. He was on duty on 06.08.2005 from 8.00 am till 8.00 pm at North District Line under the supervision of Reserve Insp Azad Singh and Duty Officer HC Naresh Kumar. He was not available at the spot of alleged incident since he was on duty at that time. During those days, he used to take his dinner after my duty hours at Majnu Tila Police Chowki and thereafter he used to come back to his new rented accommodation at 118/1, B-Block, Gali No.114/15, Sant Nagar, Delhi and hence it used to be around 10.00pm that he used to reach his residence. In order to pressurize him for withdrawing the petition for annulment, the present criminal proceeding has been initiated.
Sessions Case Number : 56 of 2013.
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17. Accused Gajender @ Gyanender Singh Rathi has submitted that he is working as a Head Constable in Delhi Police since 12.06.2013. On the date of the alleged incident, he was at Dayal Municipal Library, Gandhi Ground, Chandni Chowk, Delhi. This case is a counter blast to the case for annulment of marriage filed by accused Mr.Kapil Mohan Sharma against the prosecutrix. As he is a friend of accused Mr.Kapil Mohan Sharma, he has been falsely implicated in this case.
18. Accused Mr.Pradeep @ Pradeep Dhama has submitted that this case is a counter blast to the case for annulment of marriage filed by accused Mr.Kapil Mohan Sharma against the prosecutrix.
As he is a friend of accused Mr.Kapil Mohan Sharma, he has been falsely implicated in this case. On the date of alleged incident, he was working as a property dealer and was in his office at 341, Azad Nagar, Krishna Nagar, Delhi.
19. Accused Mr.Rishi @ Rishi Verma has submitted that he was in Chawri Bazar purchasing stationary on the date of the alleged incident. This case is a counter blast to the case for annulment of marriage filed by accused Mr.Kapil Mohan Sharma against the prosecutrix. As he is a friend of accused Mr.Kapil Mohan Sharma, he has been falsely implicated in this case.
20. Accused Mr.Lalit Mohan Sharma has also pleaded innocence submitting that he was not available at the spot of alleged incident since he was giving tuitions to his students from 4.00 pm to 9.00 Sessions Case Number : 56 of 2013.
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pm at his residence at F-30, Street No.10, Braham Puri, Delhi-53. As he is a real brother of accused Mr.Kapil Mohan Sharma, he has been falsely implicated in this case.
21. Accused Mr.Anil @ Anil Sharma has submitted that he was at Dhaka, MCD Colony, Kingsway Camp, Delhi for collecting the payment in respect of property as he is a property dealer on the date of the alleged incident. This case is a counter blast to the case for annulment of marriage filed by accused Mr.Kapil Mohan Sharma against the prosecutrix. As he is a friend of accused Mr.Raj Mohan Sharma, maternal uncle (mama) of accused Mr.Kapil Mohan Sharma, he has been falsely implicated in this case.
22. Accused Mr.Raj Mohan Sharma has submitted that on the date of the alleged incident, he was at Neelkanth Apartment, 100 Foota Road, Sant Nagar, Burari, Delhi-84 for some property work as he is a property dealer. His family comprising of his wife and children were at home at the time of alleged incident. This case is a counter blast to the case for annulment of marriage filed by accused Mr.Kapil Mohan Sharma against the prosecutrix. As he is the maternal uncle (mama) of accused Mr.Kapil Mohan Sharma, he has been falsely implicated in this case.
DEFENCE EVIDENCE
23. Accused Mr.Kapil Mohan Sharma and Mr.Lalit Mohan Sharma have preferred to lead evidence in their defence and have examined HC Ravinder Singh as DW-1; Retd Insp. Azad Singh, as DW-2; Sessions Case Number : 56 of 2013.
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Mr.Lalit Tyagi as DW-3; Ms.Illa Garg as DW-4; Ms. Sakshi Sharma as DW-5; Mr.Manish Mishra as DW-6 and HC Suresh Kumar as DW-7. DWs 1, 2 and 7 are witnesses of accused Mr.Kapil Mohan Sharma and DWs 3 to 6 are witnesses of accused Mr.Lalit Mohan Sharma. The other accused persons although stated that they would be leading defence evidence but ultimately did not examine any witness in their defence.
ARGUMENTS
24. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused persons.
25. The Additional Public Prosecutor for the State has requested for convicting all the accused persons for having committed the offences under sections 376 (2) (g) / 506 (II) / 34 of the IPC, submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
26. All the counsel for all the accused persons, on the other hand, have requested for their acquittal submitting that there is nothing incriminating against the accused on the record. There is an unexplained delay in the lodging of FIR. There is no medical or forensic evidence against the accused. The complaint made by the prosecutrix is Sessions Case Number : 56 of 2013.
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concocted. The prosecutrix has given false evidence. The evidence of the prosecutrix as well as other prosecution witnesses is unreliable as it suffers from various contradictions and inconsistencies. The investigation has not been properly conducted.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
27. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical Sessions Case Number : 56 of 2013.
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formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
28. Under this sphere, I now proceed to test the submissions of both the sides.
29. Here, it would be important to reproduce an extract of the order dated 31.08.2007 of the hon'ble Delhi High Court in bail applications numbers 1819 of 2007 and 1820 of 2007 elaborating the back drop of the present case while granting bail to three accused persons namely Mr.Lalit Mohan Sharma, Mr.Anil Sharma and Mr.Raj Mohan Sharma. The relevant extract is as follows:
"......3 The case has a checked history. I note in brief the backdrop facts. Petitioner of bail application no. 1819/2007 Lalit Mohan Sharma is the brother of Kapil Mohan Sharma. Petitioner no. 1, Anil Sharma, in Bail application no. 1820/2007 is a friend of Kapil Mohan Sharma. Second petitioner of bail application no. 1820/2007 is the maternal uncle of Kapil Mohan Sharma.
4 Complainant solemnized a marriage with Kapil Mohan Sharma on 31.12.2004. In the month of January 2005, Kapil Mohan Sharma claims to have learnt that the complainant had a subsisting earlier marriage. He quizzed the complainant as to her matrimonial status at the time the two solemnized their marriage. Sessions Case Number : 56 of 2013. Unique Case ID Number : 02401R0732442005. FIR No. 418/2005, Police Station Timar Pur, Under sections 376/373/34 of the Indian Penal Code. State vs Kapil Mohan Sharma and others. -:: Page 22 of 64 ::-
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5 The response was a complaint lodged with the police by the complainant on 16.01.2005 alleging that Kapil Mohan Sharma tricked a marriage ritual upon her and subjected her to rape.
6 Before police proceeded to investigate the complaint of the respondent she filed a private complaint on 28.01.2005. A direction was issued in the said complaint that an FIR be registered. On 31.01.2005 FIR no. 58/2005 under section 376 IPC was registered against Kapil Mohan Sharma at PS Paharganj.
7 Kapil Mohan Sharma filed a writ petition registered as WP (Cr) No. 212/2005 under article 226 read with section 482 of the Code of Civil procedure praying that FIR no. 58/2005 be quashed. In said proceedings, complainant appeared in this Court and on 27.04.2005 made the following statement : -
" On the basis of a complaint lodged by me with the police, FIR 58/2005 under section 376 IPC was registered at PS Pahar Ganj against the petitioner. The said complaint was made by me under some misunderstanding and at that time I was annoyed with the petitioner. I and the petitioner have, in fact, solemnized the marriage and I am living with the petitioner as his wife. I now realize the mistake and I am not interested that any harm be caused to the petitioner or any other action be taken against him based on my complaint. I have no objection if the FIR 58/2002 under section 376 IPC registered at PS Pahar Ganj, New Delhi and other proceedings arising therefrom are quashed."
8 Based on the statement of the complainant, on 27.04.2005 this court quashed FIR no. 58/2005.
9 Complainant and Kapil Mohan Sharma came to be at variance on a point of dispute after order dated 27.04.2005 was passed disposing of Writ Petition (Cr.) No. 212/2005.
10 Whereas according to the complainant, Kapil Mohan Sharma acquiesced in accepting her as his legally wedded wife, version of Kapil Mohan Sharma is that subject to the complainant Sessions Case Number : 56 of 2013.
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proving by means of certified copies of Court record that her status was that of a divorcee when she married him he had accepted her as his wife, for if her previous marriage was subsisting he obviously would not be in a position to accept her as his legally wedded wife. According to Kapil Mohan Sharma since relevant evidence was not produced by the complainant he had no option but to seek annulment of the marriage and for which on 08.08.2005 he filed a petition registered as HMA no. 762/2005.
11 Response of the complainant was yet another complaint to the police on 08.08.2005 alleging that her husband, his brother Lalit Mohan Sharma, petitioner of bail application no. 1819/2007, his maternal uncle, second petitioner of Bail application no. 1820/2007 and 4 of his friends, one of them being Anil Sharma, first petitioner of Bail Application no. 1820/2007 had subjected her to gang rape.
12 On receipt of the complaint by the police, complainant was taken to a hospital for medical examination. She refused to be examined.
13 The complainant filed a complaint with the learned Metropolitan Magistrate which resulted in a direction issued for registration of an FIR. On 02.09.2005 FIR no. 418/05 was registered.
14 In the complaint which resulted in registration of the FIR it was stated by the complainant that on 06.08.2005 her husband took her to the house of second petitioner of Bail application no. 1820/2007 where she was subjected to a gang rape.
15 On 10.09.2005 complainant was again taken to the hospital for medical examination. But she made herself unavailable, i.e left the hospital before she could be subjected to a medical examination.
16 Yet another criminal writ petition being W.P (Crl.) 1715/2005 was filed by the complainant praying that the investigation be transferred. Before any directions could be issued Sessions Case Number : 56 of 2013.
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in the said writ petition, on 30.11.2005 a cancellation report was filed by the police. In view of the cancellation report being filed, vide order dated 12.12.2005 Writ Petition (Crl.) 1715/2005 was disposed of as infructuous.
17 Thereafter, certain statements were recorded by the learned Metropolitan Magistrate which ultimately resulted in an order of committal being passed against the husband of the complainant and the petitioners........."
IMPORTANT ISSUES
30. The important issues and the points in dispute are being discussed hereinafter.
IDENTITY OF THE ACCUSED
31. There is no dispute regarding the identity of all the accused persons Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender, Mr.Pradeep Dhama, Mr.Rishi Verma, Mr.Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, who has been identified by PW1, the prosecutrix, as well as her brother, PW6, and the police witnesses of investigation. It is also not in dispute that they were known to the prosecutrix prior to the alleged incident. Although the prosecution has failed to get the test identification parade of all the accused persons conducted with the prosecutrix as the witness, but she has identified each of the accused persons in the Court in her evidence.
32. Therefore, the identity of all the accused persons namely Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Sessions Case Number : 56 of 2013.
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Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma stands established.
AGE OF THE PROSECUTRIX
33. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint case, list of witnesses, her affidavits (Ex.PW1/A collectively), her complaint dated 12.08.2005 addressed to the Commissioner of Police (Ex.PW1/B), her statement recorded by learned Metropolitan Magistrate (Ex.PW1/C), MLC (Ex.PW1/D) and her complaint addressed to the SHO PS Timarpur (Ex.CW1/A), the prosecutrix has not claimed to be a minor on the date of incident. In her evidence before the Court on 15.04.2011, in her particulars, she has given her age as 37 years which means that in the year 2005, at the time of the alleged incident (06.08.2005), her age was 31 years. As per the prosecution, she was a major at the time of the alleged incident. Her age is not disputed by the accused.
34. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED NOT PROVED
35. The prosecution has neither proved that all the accused persons were medically examined regarding assessing them for virility and potency nor produced any MLC or any other document to show the same. Although the accused persons have not disputed the fact that they are virile and capable of performing the physical relations with a Sessions Case Number : 56 of 2013.
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woman but as the prosecution has to stand on its own legs, this important fact was required to be proved by the prosecution.
36. Therefore, due to the lapse on part of the prosecution to prove that the accused persons are virile and capable of performing the physical relations with a woman and capable of committing the act of rape, it cannot be said that they had gang raped the prosecutrix.
MLC OF THE PROSECUTRIX
37. It has been argued on behalf of the accused persons that as there is no medical evidence against the accused, it indicates that they have been falsely implicated in this case.
38. On perusal of the file, that the prosecutrix had refused her medical examination on 09.08.2005 in Aruna Asaf Ali Hospital vide her MLC (Ex.PW1/D). She had also refused her medical examination on 10.09.2005 vide MLC (Ex.PW10/A). PWs 10, 18, 22, 24 and 25 have proved the relevant MLCs.
39. The prosecutrix, as PW1, in her examination in chief has deposed that "Though I was taken to Aruna Asaf Ali Hospital for my medical examination by the police officials.......I cannot assign any reason for my non-examination.....I was also taken to Hindu Rao Hospital..............medical examination could not be conducted and till date I have not been medically examined by any of the doctor....". She Sessions Case Number : 56 of 2013.
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has admitted her thumb impression on the MLC (Ex.PW1/D). She did not make any complaint to any authority nor disclosed any irregularity regarding her not being medically examined in such a serious case.
40. The fact that the prosecutrix had refused her medical examination after leveling very serious allegations of rape against the accused and not giving any explanation for the same, indicates a strong possibility of false implication of the accused. No justification or logical reason is coming forth from the prosecution regarding the refusal of the prosecutrix for her medical examination. As per the record, the prosecutrix had absconded from the labour room at 1:45 pm on 10.09.2005 without getting herself medically examined. The refusal of the prosecutrix to get her medical examination conducted and give samples indicates the possibility of false prosecution of the accused and throws a doubt on the veracity of her allegations against the accused.
NO FORENSIC EVIDENCE
41. Medical and forensic evidence are only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. In the present case, PW21 has proved the FSL report (Ex.PW21/A). As per the FSL report, "1. Blood was detected on exhibit '1'. 2. Blood could not be detected on exhibits '2a & 2b'. 3. Semen could not be detected on exhibits '2a & 2b'." However, as the prosecution has failed to medically examine the accused persons for their virility and potency, there is no forensic evidence connecting the accused to the alleged offence of gang rape of the Sessions Case Number : 56 of 2013.
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prosecutrix.
DELAY IN FIR
42. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
43. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
44. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is Sessions Case Number : 56 of 2013.
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reliable and trustworthy.
45. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s 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 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.
46. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the Sessions Case Number : 56 of 2013. Unique Case ID Number : 02401R0732442005. FIR No. 418/2005, Police Station Timar Pur, Under sections 376/373/34 of the Indian Penal Code. State vs Kapil Mohan Sharma and others. -:: Page 30 of 64 ::-
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house of the prosecutrix for more than year."
47. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
48. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
49. It is clear from the record that the FIR (Ex.PW2/A) has been lodged on 02.09.2005 while the allegations made by the prosecutrix in her complaint are that the accused persons had gang rape her on 06.08.2005. She had given her complaint in Police Station Timarpur on 08.08.2005 and had also later on filed a complaint case.
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50. In her examination in chief, she is silent as to why she did not go to the police or complain about the incident to anyone after it occurred on the night of 06.08.2005. She does say that she was afraid due to the threats of the accused but she has neither mentioned the words allegedly used nor their immediate effect on her. On 08.08.2005, her brother Mr.Rinku, PW6, came to her residence and then she told him about the incident and went with him to Police Station Timarpur.
51. The delay in lodging of the FIR has been not satisfactorily explained by the prosecution. The prosecutrix has not given any logical explanation or reasonable justification for two days to approach the police especially when her brothers were also living in Delhi (as admitted by her in her evidence) and she herself is wife of a Delhi Police official. She is also aware about her rights as she had taken divorce from her first husband and had lodged a rape case against accused Mr.Kapil Mohan earlier (FIR 58/2005 PS Pahar Ganj), appeared in the proceedings and also got that FIR quashed from the hon'ble Delhi High Court. She is not any ignorant lady as she is fully aware about the legal process and her rights. In such a situation, had the alleged incident occurred against her, she would have immediately approached the police or the Court or at atleast talked to her own family or friends and made sure that the legal action is taken against the culprits. However, this is not the case in the present matter.
52. Here it would also be relevant to go through the evidence of PW6 who has deposed that after his sister, PW1, told him Sessions Case Number : 56 of 2013.
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about the alleged incident, he did not even care to call the police. He has deposed that "I did not inform the police regarding the happenings with my sister, as informed to me by my sister. I along with my sister approached the aforesaid advocate." This part of the deposition clearly shows that after due deliberation and consultation (with a lawyer), the prosecutrix made the complaint against all the accused persons instead of immediately going to the police to lodge a report of the alleged incident.
53. These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The discrepancies in the evidence of the material witnesses, no explanation coming forth for the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.
54. Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.
TESTIMONY OF THE PROSECUTRIX
55. It is necessary to discuss and analyse the testimony of the most material witness of the prosecution i.e. the prosecutrix who is examined as PW1.
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56. PW1, the prosecutrix has deposed that on 06.08.2005 at about 8.00 pm, her husband has taken her to his Mama namely Raj Mohan Sharma's residence situated at Burari and she did not know the complete address. At the house of Raj Mohan Sharma, Gajender, Pardeep, Anil, Rishi, Lalit and Raj Mohan Sharma were present. Her husband, by signal, asked her to go inside the room. She went inside the room. Accused Anil and Rishi also entered in that room and both of them put knife on her breast. She asked them as to what they were doing and in the meanwhile, accused Gajender @ Gayanender also entered inside that room and Gajender broke open the sting (Nada) of her salwar. She called her husband and she raised alarm as to what his friends were doing with her. Her husband Kapil came inside the room and he slapped her and stated that "Aaj ki raat inhi logo ke sath bitaani hai, agar sor machaya to jaan se maar denge". In the presence of her husband, first and foremost Raj Mohan Sharma, Mama of her husband Kapil, committed rape upon her and thereafter all the other accused persons namely Gajender, Pardeep, Anil, Rishi and Lalit also committed rape upon her, one by one. All these accused persons threatened her to kill if she happened to report the said incident to anyone and due to their threats, she became afraid. Thereafter, her husband brought her to their house. Even at the house, she was threatened by her husband not to disclose the aforesaid untoward incident to anyone. She was totally afraid. On 08.08.2005, her brother Rinku came at their residence. She was quite silent and mum at that time. Her brother Mr. Rinku asked the reason for the same and then she stated to her brother that all the aforesaid persons committed rape upon her against her consent and will. Thereafter, her brother Rinku had taken her to PS Timarpur. At Sessions Case Number : 56 of 2013.
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the Police Station, she gave complaint addressed to SHO, PS Timarpur (Ex.CW1/A). No action was initiated at her complaint at PS Timarpur. Her husband is working in Delhi Police and another person Gajender is also an employee of Delhi Police. She did not know regarding the employment of other accused persons. When no action was initiated, her brother Mr. Rinku engaged one advocate and then a complaint case, list of witness, her affidavit (Ex.PW1/A collectively) on her behalf was filed before the Hon'ble Court. She had filed the complaint dated 12.08.2005 addressed to the Commissioner of Police (Ex.PW1/B). Subsequent to the filing of her complaint case, an order was passed by the Hon'ble Court for the registration of the case and accordingly, the present case was registered and further proceeding were conducted by the police officials. Though she was taken to Aruna Asaf Ali Hospital for her medical examination by the police officials. She did not remember the date when she was taken to the hospital. She was made to sit in the hospital by the police official but she was not medically examined by the doctor. She can not assign any reason for her non-examination. Police officials would be in a position to state regarding the same. She was asked by the police official to put her thumb impression in a register at Aruna Asaf Ali Hospital and she was told by the police officials that medical examination has been conducted. She was also taken to Hindu Rao Hospital after a week for re-medical examination. It was holiday on that day and medical examination could not be conducted and till date she has not been medically examined by any of the doctor. She has identified all the seven accused persons present before the Court as the same persons who committed rape upon her. Subsequent to the filing of the complaint case, her statement was once recorded by the learned Sessions Case Number : 56 of 2013.
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Magistrate namely Mr. Malik dated 07.09.2006 (Ex.PW1/C). Her MLC No. 21765 dated 09.08.2005 is Ex.PW1/D. In the MLC No.919905 dated 10.09.2005 (Mark A), she did not put her thumb impression. Police officials has taken her salwar and shirt from her. She can identify her clothes of shown to her. She can identify her clothes if shown to her. After seeing the clothes, produced in the Court by the MHC (M), she deposed that these were not her clothes. Her clothes were perhaps of yellow colour.
She has seen her complaint addressed to SHO PS Timarpur (Ex.CW1/A). She has also seen the copy of the complaint case now Ex.PW1/A.
57. As the prosecutrix was hostile on the ground that she did not identifying her clothes deliberately, the Additional Public Prosecutor has cross-examined her.
58. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that her brother Mr. Shatrughan Singh was residing at House No. 752, New Basti Mukimpura, Sabji Mandi Ghanta Ghar, Delhi as tenant at 2nd floor. She admitted that her clothes were produced from the room before the police situated at 2nd floor at the above mentioned address. She admitted that she had stated before the police officials at the time of production of clothes and she stated that she was wearing those clothes at the time of occurrence. She admitted that police had taken those clothes into possession. She admitted that her brother Mr. Shatrughan Singh was present at that time when clothes were sealed by the police officials. She has denied that the pink colour Kurti and salwar having (white spots bindies), which have been Sessions Case Number : 56 of 2013.
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produced in the Court, are her clothes, produced before the police officials. She has denied that she is not identifying her clothes deliberately as she has been won over by the accused persons on this point, as her examination in chief has already been concluded, except the production of the case property, to save them. She has denied the suggestion that if she wears the present Kurti and salwar it would fit to her measurement for wearing purposes.
59. She has been cross examined by all the accused persons.
60. It can be seen from the different statements of the prosecutrix that she has made several contradictions and variations. The same have neither been explained by the prosecutrix nor the prosecution and are blemishes which are fatal to the prosecution case indicating that the same is false. The prosecutrix and the prosecution have not been able to give any justification or explanation for the contradictions in her different statements. The contradictions are being tabulated below.
Application and FIR Complaint Case Evidence before the Court
(Ex.CW1/A and (Ex.PW1/A) as PW1
Ex.PW2/A)
Accused Rishi and Anil Accused Pradeep came Accused Rishi and Anil
came first in the room. first in the room. came first in the room.
Then accused Gajender She shouted. All the Accused Gajender entered.
entered in the room. accused entered together.
She called accused Kapil, Accused Kapil slapped her
her husband, and he told and told her spend the
her to co-operate. night with the accused.
Accused Anil and Rishi put Accused Gajender put Accused Anil and Rishi put
knife on her chest. knife on her chest. knife on her chest.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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Accused Pradeep removed her shirt and burnt her breast with cigarette.
Accused Pradeep broke Accused Gajender broke
knot of her salwar and open the string of her
rremoved it. salwar.
Accused Raj Mohan raped Accused Pradeep raped Accused Raj Mohan raped
her first of all followed by her first of all and lastly her first of all followed by
Gajender, Pradeep, Anil, Raj Mohan. others.
Rishi and lastly Lalit.
No such mention. Accused Rishi caught her No such mention.
both hands.
No such mention. No such mention. Accused Rishi and
Gajender acame after 30
minutes while others
entered in 5 minutes.
Disclosed address of No such mention. Prosecutrix did not know
accused Raj Mohan the address of accused Raj
Sharma Mohan Sharma.
She had gone to PS on She had gone to PS on She went on 07.08.2005 08.08.2005. 08.08.2005. and 08.08.2005 to PS. Her brother Rinku came on Her brother Rinku, Amit, She had gone with her 08.08.2005 and then they Advocate driver and brother Rinku to PS on went to PS Timarpur. prosecutrix went to PS on 08.08.2005.
08.08.2005.
61. Besides the above tabulated contradictions in the different statements of the prosecutrix, there are some more unbelievable versions coming forth in her cross examination, which also indicate that that the accused has been falsely implicated in this case.
62. She has given different versions of the alleged incident in her complaint to the police, her complaint to the National Sessions Case Number : 56 of 2013.
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Women Commssion, in the complaint case, in her evidence before the Court.
63. Even, the police, after due investigation, had found the version of the prosecutrix to be untrue and had submitted a cancellation report and not a final report for trial of the case.
64. It would also be pertinent to mention here that the prosecutrix was counselled by Dr.Rajat Mitra, Director Swan Chetan Society for Mental Health who has opined that the prosecutrix was behaving in a lod and aggressive manner and spoke normally without any extreme emotions. Her narrative of the ordeal was unlike other victims. It was devoid of confusion seen in other gang rape cases. Description of her rapists was very vague. After a lot of thinking, she had said that all the assaulters raped her repetively in same manner. This is highly unlikely as in a group assault, there is a wide difference between the behavior of all the assaulters. Her description of gang rape completely ignores the reality and meets the standard requirement of description of rape in a dramatical style. Despite aggressively repeating that she had been gang raped, she vehemently refused her medical examination.
65. It is also borne out of the record that the prosecutrix was earlier married with Mr.Sunil Kumar from whom she had children and she had got herself sterilized and these facts were not disclosed by her to accused Mr.Kapil Mohan Sharma before marrying him. The prosecutrix in FIR No.58/2005 PS Pahar Ganj had mentioned before the hon'ble Delhi Sessions Case Number : 56 of 2013.
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High Court that due to some "mis-understanding", she had lodgd the FIR but in her cross examination on behalf of accused Mr.Kapil Mohan Sharma on 10.07.2012, she has given an entirely new version of the "mis- understanding" saying that her marriage with him at Jhandewalan Mandir was not the actual marriage and he had kept / confined her daughter somewhere and under fear she gave her statement before the hon'ble Delhi High Court.
66. It is also clear from the evidence of the prosecutrix that she had lodged the complaint regarding the present case on 08.08.2005 which is counter blast to the HMA case No.762 dated 06.08.2005 filed on 08.08.2005 by accused Mr.Kapil Mohan Sharma.
67. As besides the State case of FIR No. 418/05 PS Timarpur, the complaint case filed by the prosecutrix was also committed to the Sessions, the prosecutrix as complainant of the complaint case should have cross examined the prosecution as well as the defence witnesses in the State case but she has failed to do so.
68. The cross examination of the prosecutrix also indicates the possibility of false implication of the accused persons. She has deposed in her cross examination that she can not tell the measurement of the room where she was taken. It is also clear that she did not shout for help or raise alarm despite the place of incident i.e. the house was situated on a road/street, surrounded by other houses. She has also deposed that the rape was committed upon her in the presence of all the accused persons, Sessions Case Number : 56 of 2013.
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one by one and she was wearing clothes at that time which is not possible. She has not seen the accused persons except Pardeep and Gajender, prior to the incident but how she has identified them and how she is aware about their addresses has not been disclosed by her.
69. Even the prosecutrix has deposed in her cross examination conducted on behalf of accused Mr.Kapil Mohan Sharma on 10.07.2012 that accused Mr.Kapil Mohan Sharma used to start his duty at 10:00 am in the morning and used to come back at 10:00 to 11:00 pm in the night. In such a situation, it would not have been possible for him to take her to the place of incident at about 8:00 pm. This fact further indicates that the version of the prosecutrix / complainant that she was gang raped and threatened by the accused persons is untrue.
70. She has also deposed that accused Mr.Kapil Mohan Sharma left her at her residence and thereafter he did not meet her but despite the same, she preferred not to go to the police immediately nor informed her brother Mr.Rinku, family or any one else nor sought any help.
71. Here it may also be mentoned that in her cross examination on behalf of accused Mr.Anil Sharma, Mr.Pradeep Dhama, Mr.Gajender and Mr.Raj Mohan Sharma dated 04.07.2012, the prosecutrix has deposed for the first time that she visited the PS along with her brother Mr. Shatrughan @ Rinku. It has not come forth during investigation nor trial nor in any document that Mr.Rinku is also known as Mr.Shatrughan. Sessions Case Number : 56 of 2013.
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72. She has also deposed that she gave a hand written Hindi complaint, written by friend of her brother Rinku and it was given at PS but she does not tell his name.
73. She has also admitted that she was earlier married with Mr.Sunil Kumar from whom she has children and she had undergone sterilization before marrying accused Mr.Kapil Mohan Sharma and she was already married with Mr. Sunil, when she married with Kapil Mohan Sharma on 31.12.2004 but she has neither given the date of her divorce from Mr.Sunil Kumar nor the name of the Court nor produced any document / proof of the divorce.
74. In her cross examination, she has deposed that she did not remember if she had sent any complaint addressed to National Commissioner of Women. It does nor appear to be possible that she would forget such an important fact especially when she has earlier also lodged a rape case and has appeared in the Courts.
75. She has deposed in her examination in chief that she had gone to PS Timarpur with her brother Mr.Rinku but in her cross examination, she has deposed that besides Mr.Rinku, his friend Mr.Amit and Mr.S.K.Singh, advocate were also with her.
76. The prosecutrix has deposed that she was kept at the Police Station for 2 days. It is strange to note that even this was the Sessions Case Number : 56 of 2013.
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situation, then she should have immediately made a complaint to the senior policve officers or her family or her lawyer or the Court regarding this alleged illegal confinement but she has failed to do so, which makes her version unbelievable.
77. The prosecutrix has admitted that she was taken for medical examination on 09.08.2005 and 10.09.2005 and has volunteered that no medical examination was go conducted by the police. This part of the deposition does not appear to be reliable as it is clear from the record that on 09.08.2005 she was taken to Aruna Asaf Ali Hospital where she refused her medical examination and on 10.09.2005 she was taken to Hindu Rao Hospital from where she absconded.
78. Also, the prosecutrix has failed to identify her clothes i.e. one salwar and kurti, which were of pink coulour, which were handed by her to the police and were seized during investigation. She has deposed that her clothes perhaps wereof yellow colour. The fact that the prosecutrix has not identified her clothes also gives a fatal blow to the prosecution version.
79. During investigation, the prosecutrix has stated that the bed sheet on which the alleged offence was committed was printed blue but no such bed sheet was found at the place of alleged incident.
80. The veracity of the testimony of the prosecutrix, as mentioned in her examination in chief, is shattered in her cross Sessions Case Number : 56 of 2013.
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examination, which makes it highly improbable that such incidents, as alleged by her, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the prosecution case against the accused is false.
81. The prosecutrix has claimed that she was threatened by the accused several times. However, the effect of the alleged threats has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused and there was no reason why she could not have disclosed about the alleged threats to her brother, family, police and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence but the same is lacking in this case.
82. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of Sessions Case Number : 56 of 2013.
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the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
83. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
84. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
85. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no Sessions Case Number : 56 of 2013.
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conviction can be based on the evidence of such witnesses.
86. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
87. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
88. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material and there being refusal by the prosecutrix to undergo medical examination, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment Sessions Case Number : 56 of 2013.
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of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
89. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
90. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376 (2) (g) and 506 (part II)/34 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the accused persons had gang raped the prosecutrix and threatened to kill her.
CONTRADICTIONS IN THE EVIDENCE OF PWS 1 AND 6
91. On perusal of the record, it transpires that there are several contradictions in the testimonies of the prosecutrix-PW1 and her brother-PW6.
92. First of all, it would be important to mention that the prosecutrix, PW1, has mentioned that her borther Mr.Rinku had come to Sessions Case Number : 56 of 2013.
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her residence and taken her to the Police Station. Mr.Rinku has been examined as PW6.
93. In her cross examination by the Additional Public Prosecutor, the prosecutrix / complainant has deposed that her brother Mr.Shatrughan Singh was residing at house no.752, New Basti Mukimpura, Sabji Mandi Ghanta Ghar, Delhi and from that address at second floor, she had given her clothes to the police, in his presence. In her cross examination on behalf of accused Mr.Anil Sharma, Mr.Pradeep Dhama, Mr.Gajender and Mr.Raj Mohan Sharma dated 04.07.2012, the prosecutrix has deposed for the first time that she visited the PS along with her brother Mr. Shatrughan @ Rinku. It has not come forth during investigation nor trial nor in any document that Mr.Rinku is also known as Mr.Shatrughan. PW6, Mr.Rinku, has not deposed that he is also known as Mr.Shatrughan Singh. He has given his address as H.No.1422, Sora Kothi, Subzi Mandi, Ghanta Ghar, Delhi and a village address of UP. He has not even said that he resided at house no.752, New Basti Mukimpura, Sabji Mandi Ghanta Ghar, Delhi.
94. PW1 has deposed that she had gone to the Police Station with her brother Mr.Rinku but in her cross examination, she has deposed that besides Mr.Rinku, his friend Mr.Amit and Mr.S.K.Singh, advocate were also with her. However, Mr.Rinku, PW6, has deposed very catergorically in his cross examination on behalf of accused Mr.Anil Sharma, Mr.Pradeep Dhama, Mr.Gajender and Mr.Raj Mohan Sharma that he did not go to the Police Station.
Sessions Case Number : 56 of 2013.
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95. PW1 has deposed that her clothes were taken by the police from the house of Mr.Shatrughan Singh, her brother, in his presence while PW6 has not deposed anything about the clothes of the prosecutrix being seized by the police in his presence.
96. PW6 was not even aware about the first marriage of the prosecutrix with Mr.Sunil Kumar or about her children from him. He was not even aware about FIR No 58/2005 PS Pahar Ganj lodged by the prosecutrix against accused Mr.Kapil Mohan Sharma nor was he aware about its quashing. He was also not aware about the grating of decree of nullity of marriage in favour of accused Mr.Kapil Mohan Sharma and against the prosecutrix. He has not even attended the marriage of the prosecutrix with accused Mr.Kapil Mohan Sharma.
97. The contradictions and inconsistencies in the evidence of PWs 1 and 6 indicate towards the false implication of the accused persons. The prosecution has failed to funish any explanation regarding the above contradictions and insconsistencies in the evidence of PWs 1 and 6. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence of the prosecutrix and her brother suffers from such serious infirmities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix and her brother Sessions Case Number : 56 of 2013.
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is that the prosecution case against the accused is false.
PUBLIC WITNESSES HOSTILE OR DROPPED
98. PW8, Ms.Usha, who was a witness of the seizure of the clothes of the prosecutrix from the house of her brother, has not deposed anything incriminating against the accused persons and was declared hostile. She was cross examined by the Additional Public Prosecutor but nothing material for the prosecution has come forth.
99. The State also preferred not to examine PWs Ms.Har Devi, Ms.Rani, Ms.Chando Devi, Mr.Om Prakash, Mr.Vinay Sharma, Ms.Prakash Rani, Mr.Sharad Gupta, Mr.Yatender Nagar, Mr.Purshottam Mishra, Mr.Lakhan Singh, Mr.Amrinder Kumar Singh, Mr.Rajesh, Mr.Mukesh, Mr.Lalit Tyagi, Ms.Sakshi Sharma, Ms.Ila Garg, Mr.Manish Mishra, Mr.Arun Verma, Mr.Arun Kuamr, Mr.Rahul Yadav and Ms.Manju Bhasin despite their names being included in the list of prosecution witnesses.
100. These facts also indicate the possibility of false implication of the accused persons by the prosecutrix / complainant.
MENS REA / MOTIVE
101. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other Sessions Case Number : 56 of 2013.
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conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of their innocence.
102. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
103. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case Sessions Case Number : 56 of 2013.
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must be limited to and be governed by its own facts.
104. In the present case, a story has been projected that all the accused persons had gang raped the prosecutrix and had threatened to kill her if she disclosed about the incident.
105. It is an admitted and proven fact that accused Mr.Kapil Mohan Sharma, who is the husband of the prosecutrix, had filed a matrimonial case against the prosecutrix for annulment of their marriage on 06.08.2005 for which notice was issued for 08.08.2005. In such a situation, he would not jeopardize his case by taking the prosecutrix on 06.08.2005 at 8.00 pm to the house of his maternal uncle, accused Mr.Raj Mohan Sharma, where all the accused persons would rape and threaten the prosecutrix. It also does not appear to be believable that a husband would take his wife to the house of his maternal uncle to get his wife raped by his real brother, his maternal uncle and friends with all being in the same room, as deposed by the prosecutrix. Version of the prosecutrix appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that all the accused persons have committed the alleged offences, as claimed by the prosecution.
106. There does not appear to be any criminal intention and mens rea on the part of all the accused persons.
DEFENCE OF THE ACCUSED
107. In their respective statements under section 313 of the Cr.P.C., all the accused persons have stated that they are innocent and Sessions Case Number : 56 of 2013.
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have been falsely implicated in this case by the prosecutrix being the husband, his brother, his maternal uncle and his friends. They have stated that this case is a counter blast to the case for annulment of marriage filed by accused Mr.Kapil Mohan Sharma against the prosecutrix. They have all claimed the defence of alibi submitting that they were elsewhere at the time of alleged incident.
108. PW23, HC Naresh Kumar has proved the duty roaster dated 06.08.2005 (Ex.PW23/A) and deposed that accused Mr.Kapil Mohan Sharma was a Constable and on reserve duty in District Line. His evidence substantiates the defence of accused Mr.Kapil Mohan Sharma that he was on duty on 06.08.2005 from 8.00 am to 8.00 pm.
109. Accused Mr.Kapil Mohan Sharma has also examined HC Ravinder Singh, Retd. Insp. Azad Singh and HC Suresh Kumar as DWs 1, 2 and 7 respectively who have also deposed that accused Mr.Kapil Mohan Sharma was posted as a Constable in District Line Civil Line on 06.08.2005 and his duty hours were from 8:00 am to 8:00 pm. They have also proved the relevant Duty Roaster as Ex.DW2/A, Ex.DW7/A, Ex.DW7/B, Ex.DW7/C and Ex.DW7/D. It is also clear from their evidence that he was on duty on the date of alleged incident i.e. 06.08.2005 from 8:00 am to 8:00 pm. Nothing material has come forth in their cross examination on behalf of the State.
110. Even the prosecutrix has deposed in her cross examination conducted on behalf of accused Mr.Kapil Mohan Sharma on Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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10.07.2012 that accused Mr.Kapil Mohan Sharma used to start his duty at 10:00 am in the morning and used to come back at 10:00 to 11:00 pm in the night. In such a situation, it would not have been possible for him to take her to the place of incident at about 8:00 pm.
111. It is crystal clear from the record that accused Mr.Kapil Mohan Sharma was in his office on the date of incident i.e. 06.08.2005 from 8:00 am to 8:00 pm and therefore, he could not have been at the spot of incident. His office was located at Civil Line, his residence at Sant Nagar, Burari and the place of incident is at the residence of accused Mr.Raj Mohan Sharma at Sant Nagar, Burari. Even if he had left his office at 8:00 pm, then also he could not have gone to his residence and taken the prosecutrix to the place of alleged incident at 8:00 pm.
112. Therfeore, the plea of alibi of accused Mr.Kapil Mohan Sharma appears to be correct and true.
113. PW5, SI Rajnish Sharma, has deposed that he has verified regarding the membership of accused Mr.Gyanender Rathi at Hardyal Singh Municipal Library from Mr.Lakhan Singh, Librarian and seized the relevant documents vide application (Ex.PW5/A) and recorded statements of relevant witnesses. He also went to H.No.3726, Gali Satt Wali, Chandni Chowk and recorded statement of Mr.Rakesh who runs a stationary shop. Then he went to 341, Murari Place, Azad Place and recorded statement of Mr.Sharad Gupta who runs a property office. His evidence substantiates the defence of accused Mr.Gajender @ Gyanender Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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Singh Rathi, Mr.Rishi @ Rishi Verma and Mr.Pradeep @ Pradeep Dhama.
114. Therfeore, the plea of alibi of accused Mr.Gajender @ Gyanender Singh Rathi, Mr.Rishi @ Rishi Verma and Mr.Pradeep @ Pradeep Dhama appears to be correct and true.
115. PW7, SI Durotiya, has deposed that on 02.11.2005, she recorded the statements of Mr.Lalit Tyagi, Ms.Leela Garg, Mr.Arun Sharma, etc. Her evidence substantiates the defence of accused Mr.Lalit Mohan Sharma.
116. Accused Mr.Lalit Mohan Sharma has examined Mr.Lalit Tyagi, Ms.Ila Garg, Ms.Sakshi Sharma and Mr.Manish Mishra as DWs 3 to 6 respectively. They have categorically deposed that accused Mr.Lalit Mohan Sharma was giving them tution on 06.08.2005 in the evening at his residence. DW3 has deposed that his tution was from 7:00 pm to 8:00 pm. DW4 has deposed that her tution was from 6:00 pm to 7:00 pm and revision from 7:00 pm to 8:00 pm. DW5 has deposed that her tution was from 6:00 pm to 7:00 pm and revision from 7:00 pm to 8:00 pm. DW6 has deposed that his tution was from 8:00 pm to 9:00 pm and he remained in the premises till 9:20 pm. Nothing material has come forth in their cross examination on behalf of the State.
117. It is crystal clear from the record that accused Mr.Lalit Mohan Sharma was at his residence on the date of incident i.e. 06.08.2005 from 6:00 am to 9:20 pm with DWs 3 to 6 and other students, Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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giving them tuitions, and therefore, he could not have been at the spot of incident at 8:00 pm.
118. Therfeore, the plea of alibi of accused Mr.Lalit Mohan Sharma appears to be correct and true.
119. The defence of all the accused persons appears to be plausible considering the evidence led by them as well as of PW23. Although accused Mr.Anil @ Anil Sharma and Mr.Raj Mohan Sharma have not led any defence evidence but when it is proved that the other accused persons namely Mr.Kapil Mohan Sharma, Mr.Lalit Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Rishi @ Rishi Verma and Mr.Pradeep @ Pradeep Dhama were not at the spot of incident at the time of incident, then the alleged offence of gang rape and extending threat to the prosecutrix by all the accused persons could not have been committed.
120. Further, the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies also indicates that the accused persons have not committed any offence.
121. The prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.
122. It has already been discussed above that the Sessions Case Number : 56 of 2013.
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evidence of prosecution is not reliable and is unworthy of credence. Also, the defence of the accused has been successfully proved by them and it appears to be plausible.
123. Therefore, it is clear that the defence of the accused persons that they have not commited the offence, especially their plea of alibi, is believable and reliable.
INVESTIGATION
124. The investigation conducted in the present case has been deposed by police witnesses. The FIR, documents of arrest, documents prepared during investigation etc. have been proved properly in the prosecution evidence. The doctors and the Forensic expert have proved the MLCs of the prosecutrix and the forensic report.
125. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
126. There are two stages in the criminal prosecution.
The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
Sessions Case Number : 56 of 2013.
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127. However, it can be seen from the record that the prosecutrix was not aware about the identity of all the accused persons. In such a situation, the Investigation Officer (s) were required to at least get the test identification parade of the accused persons conducted with the prosecutrix as the witness but the same has not been done. Although the accused persons have not disputed their identity but it was the bounden duty of the Investigation Officer (s) to ensure that the alleged culprits are identified by the victim.
128. Further, no investigation has been conducted to clarify the identity of Mr.Rinku as Mr.Shatrughan Singh, brother of the prosecutrix. No investigation has been conducted to identify and produce Mr.Amit, friend of Mr.Rinku who was with the prosecutrix in PS Timarpur and who had drafted the complaint of the prosecutrix. No investigation has been conducted to identify and produce Mr.S.K.Singh, advocate who was with the prosecutrix in PS Timarpur. No independent person from the public has been associated with the investigation despite the place of incident being a residential area.
129. Also during investigation, the prosecutrix has stated that the bed sheet on which the alleged offence was committed was printed blue but no such bed sheet was found at the place of alleged incident. The police was not able to find the bed sheet on which the alleged offence was committed.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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130. Another fault which is observed is that despite all the accused persons being available, none of them were medically examined to ascertain their virility and potency nor their samples were taken for examination with the clothes of the prosecutrix due to which the prosecution case suffers a very fatal blow.
131. All these facts indicate a more dedicated investigation should have been conducted and also make the version of the prosecution appear to be unreliable and untrustworthy.
FINAL CONCLUSION
132. Since evidence of the prosecutrix, PW1, is neither reliable nor believable as there are overwhelming inconsistencies in her different statements and also there are glaring contradictions in the evidence of PW1 and PW6, her brother, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
133. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish gang rape and threat by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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134. Here, it would be relevant to mention that in the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
135. Applying the above principles of law to the facts of present case, it stands established that the accused had not gang raped and threatened the prosecutrix. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
136. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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137. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.
138. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence.
Prosecution has not disclosed true genesis of crime.
139. It is a case of heinous crime of gang rape and threat which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
140. The prosecution has miserably failed to prove that Sessions Case Number : 56 of 2013.
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on 06.08.2005 at 8.00 pm at House No. 5312, B-Block, Gali no. 115/16, Sant Nagar, Burari, Delhi (house of accused Mr.Raj Mohan Sharma), Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, all the accused persons, committed rape on the complainant/prosecutrix which falls under the category of gang rape and they had committed intimidation by threatening the complainant/prosecutrix that in case she reported the matter to any person, she would be killed.
141. All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of gang rape and threat of the prosecutrix by Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, all the accused persons, and all the accused persons merit to be acquitted for the offence under sections 376 (2) (g) and 506 (part II) / 34 of the IPC.
142. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, all the accused persons. Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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143. Accordingly, Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, all the accused persons, are hereby acquitted of the charges for the offences punishable under sections 376 (2) (g) and 506 (part II) / 34 of the IPC.
144. Further, the complaint case filed by the prosecutrix against all the accused persons also stands accordingly dismissed and Mr.Kapil Mohan Sharma, Mr.Gajender @ Gyanender Singh Rathi, Mr.Pradeep @ Pradeep Dhama, Mr.Rishi @ Rishi Verma, Mr.Anil @ Anil Sharma, Mr.Lalit Mohan Sharma and Mr.Raj Mohan Sharma, all the accused persons, are hereby acquitted in the complaint case also.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND SOME FORMALITIES
145. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
146. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
Sessions Case Number : 56 of 2013.
Unique Case ID Number : 02401R0732442005.
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147. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
148. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 24th day of December, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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Unique Case ID Number : 02401R0732442005.
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