Delhi District Court
State vs . 1. Shibu on 4 January, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 18/2012
Unique Case ID: 02404R0037532012
State Vs. 1. Shibu
Jagdish Saran
R/o Jhuggi No. N14/238,
Munsi Ram Diary,
Mukherjee Nagar, Delhi.
(Convicted)
2. Bona @ Manoj
S/o Chander Pal,
R/o House No. 1501, Gali No. 42,
Bangali Colony, Sant Nagar,
Burari, Delhi.
(Acquitted)
3. Bhura @ Sukhbir Singh
S/o Mohan Lal,
R/o House No. 20,
Munsi Ram Colony,
Dr. Mukherjee Nagar, Delhi.
(Acquitted)
4. Hawai Singh
S/o Ram Prakash,
R/o House No. M14/436,
Munsi Ram Colony,
Mukherjee Nagar, Delhi.
(Acquitted)
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 1
FIR No. : 412/2011
Police Station : Mukherjee Nagar
Under Section : 376/363/506 Indian Penal Code
Date of committal to Sessions Court : 06.03.2012
Date on which orders were reserved : 10.12.102/03.01.2013
Date on which judgment pronounced : 03.01.2013
JUDGMENT
Brief Facts:
(1) As per the allegations, on 5.12.2011 in front of Sewa Bharti Dispensary, Mukherjee Nagar, the accused Shibu, Hawai Singh, Sukhbir Singh @ Bhura and Manoj @ Bona, had kidnapped the minor girl 'K' (aged about 16½ years) (name of the girl is withheld being the case under Section 376 IPC) from the lawful guardianship of her parents, with intention to seduce her to illicit intercourse and thereafter they took her in an Auto / DVan (closed Auto) in a Jungle at Nehru Vihar and thereafter they committed gang rape upon her without her consent and also criminally intimidated her at the time of committing gang rape upon her by extending threats to her that she would be killed if she discloses the incident to anybody.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 2 Case of prosecution in brief:
(2) The present case was registered on the statement of the prosecutrix 'K' who alleged that on 5.12.2011 at about 3:00 PM when she was going for her work in the Kothis at Mukherjee Nagar and reached near the park in front of Sewa Bharti Dispensary, her neighbour Shibu, who was already married, came there in his Tempo and asked her to accompany him for sight seeing. She has further alleged that she told Shibu that she was going for her work on which Shibu said that he would leave her back after some time and on this she sat in the Tempo and went with him. According to the complainant, Shibu took her towards the Nehru Vihar jungle and stopped the tempo at a lonely place and took her to the backside of the tempo and closed the door. She further told the police that she tried her best to come out of the tempo but Shibu forcibly pushed her on the floor of the tempo and after removing her pajami he put his penis into her vagina and committed rape upon her on which she screamed but no one heard her cries and Shibu kept doing this act with her. According to the complainant, thereafter Shibu threatened her not to disclose about the incident to anybody or else he would kill her and thereafter he left her near bandh at Mukherjee Nagar. She further told the police that due to fear, she did not disclose the incident to anybody in her family and went to sleep but in the next morning she narrated the entire incident to her elder sister who in State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 3 turn informed her brother after which her family members have done dhakka - mukki with her on which her head struck against the wall and she received injuries. The complainant further told the police that thereafter her brother made a call at 100 number. (3) On the basis of the above statement of the complainant / prosecutrix 'K', present FIR was registered and accused Shibu was arrested and after completing the investigations, the charge sheet was filed in the court.
(4) In the course of trial, in her testimony before the court, the complainant / prosecutrix 'K' also made allegations of rape against the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona pursuant to which this court summoned these accused persons under Section 319 of Code of Criminal Procedures.
CHARGE:
(5) Charges under Section 363/366/376 (2) (g) / 506 Indian Penal Code were settled against the accused Shibu, Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona to which they pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has examined as many as sixteen witnesses:
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 4 Public Witnesses:
(7) PW7 Reeta Nayar has deposed that she is running an "NGO Apni Didi" of which she is the president from the given address. According to her, on 06.12.2011 she received a call from Police Station Mukherjee Nagar and informed about an incident of rape which had taken place at Jhuggi No. N14/239, Munshi Ram colony and on receipt of this information, she reached there where she met Duty officer and a victim who was young girl of aged around 15 years. Witness has further deposed that she joined the investigations and in her presence the Investigating Officer had interrogated the victim and thereafter the victim was taken to BJRM Hospital for her examination, after which she was brought back to the spot. According to the witness, her signatures are present on the statement of the prosecutrix which was recorded at the spot vide Ex.PW7/A bearing her signatures at point A. (8) In her crossexamination by Ld. Defence Counsel, the witness has deposed that her NGO is registered and she received the telephone call at about 6:45 PM from the duty officer. According to her she reached the spot alone and has voluntarily stated that it is walking distance from her house and she reached the spot after about half an hour and at that time there were 1215 public persons at the spot when she reached there. Witness has further deposed that the statement of the prosecutrix was written after putting a cot / charpai State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 5 at the pump house. According to her the prosecutrix had pointed out the accused, who was also present at the spot. Witness has admitted that the documents regarding apprehension and arrest of the accused do not bear her signatures. Witness has admitted that she is normally involved in the investigations of rape cases by the police officers. Witness has denied the suggestion that she did not go to the spot and all proceedings were conducted at the police station on the dictation of the family of the prosecutrix. Witness has further deposed that in her presence the prosecutrix had named and identified only one person. Witness has admitted that she did not make any allegations against any other persons being involved in the incident. Witness has denied the suggestion that the prosecutrix did not identify any accused at the spot and it is for this reason that none of proceedings bears her signatures. She has deposed that in her presence, the prosecutrix had named and identified only one person.
Witness has admitted that prosecutrix did not make any allegations against any other persons being involved in the incident. (9) When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has adopted her previous testimonies in toto and has also not been cross examined on behalf of the counsels despite opportunity.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 6 (10) PW8 Nanak has deposed that he is residing at N14/436, Munshi Ram Dairy, Near Mukherjee Nagar, Delhi for about last 20 years and he is doing the business of sale of golgappas on a rehri. According to him he also have a TSR/D Van bearing No. DL1L J6616 and on 04.12.2011 he had handed over D Van/Tempo/TSR to his neighbour Sibhu since he had to go to attend the marriage of his first cousin sister. Witness has further deposed that on 07.12.2011 he returned from the village, he came to know that the vehicle was involved in the present case and on which he handed over the vehicle to the police. According to him the vehicle was handed over back to him on execution of superdarinama before the court, which is Ex.PW8/A. (11) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he went to Nerawali village by private bus and he never charged any rental from Shibhu when he handed over his vehicle to him. According to him he also did not execute any document with Shibu when the vehicle was given to him and has voluntarily added that on one occasion the vehicle was also challaned when Shibhu was driving the same, he still has a copy of the same which receipt of the challan is Ex.PW8/X1. Witness has admitted that the said challan had been got disposed off by him. Witness has denied the suggestion that he was driving this vehicle and it is for this reason that he had got the challan disposed off. Witness has State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 7 denied the suggestion that he was available in Delhi between 04/12/2011 and 07/12/2011. Witness has denied the suggestion that he never handed over his vehicle to the accused. Witness has denied the suggestion that he was with Shibhu on 05.12.2011. Witness has denied the suggestion that there was another boy with them on 05.12.2011 and has voluntarily stated that he was not available in Delhi. Witness has further deposed that police did not record his statement and police had made inquiries from him regarding the incident and he had told the police that Shibu had taken the tempo on 04.12.2011. Witness has denied the suggestion that he was trying to falsely implicate Shibhu in the present case.
(12) PW9 Rakesh has deposed that he is residing at N14/239, Munshi Ram Dairy, Near Mukherjee Nagar, Delhi along with his family since his birth and his parents are resided in this house from the last 30 years. According to him, on 05.12.2011 at about 3 PM his sister 'K' who was working in the kothies was going for her work, then Shibu the accused before this court (correctly identified) who is his neighbour and resides in the adjoining house forcibly took away his sister 'K' behind Gandhi Vihar nala, where he committed rape upon her (uske sath galat kam kiya). Witness has further deposed that his sister informed him about this incident on the next day i.e. on 06.12.2011 and on coming to know of it he made a call on 100 number to the police and in his presence his sister 'K' was State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 8 interrogated and her statement was recorded which statement is Ex.PW7/A. According to him, his sister was taken to the Jahangirpuri hospital where her medical examination was got conducted and also to the police station thereafter and his statement was recorded on the same day at his house.
(13) In his cross examination by Ld. Defence Counsel, witness has deposed that they are five brothers and sisters and he is the eldest, 'K' is the fourth child of their parents. According to him he first came to know about the incident of balatkar on his sister from somebody in the area on which he confronted with his sister and she informed him about the details. Witness has admitted that his sister herself did not disclose this incident to him and has voluntarily stated that she had been threatened not to tell anything at home. Witness has further deposed that he was not home when his sister started went for her work at 3 PM and she had left for her work alone and she came back home at 6 PM. According to him, he was not at home when she came back and has voluntarily stated that he received a call from some person informing that his sister had been left at at village Dhaka and he should come and take her and he thereafter went and brought his sister back from village Dhaka. Witness has further deposed that the village Dhaka is about half kilometer from his house. Witness has denied the suggestion that his sister goes to the village daily for her work and has voluntarily stated that she works in State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 9 the kothies at Mukherjee Nagar. According to him he did not tell the police that he had personally brought his sister back from village Dhaka. Witness has admitted that Shibu is on visiting terms with their family and has voluntarily stated that he is their chacha (uncle) in their relation. Witness has admitted that Shibu is married with two children. Witness has further deposed that he cannot tell the details of the kothies where his sister is working. According to him when he met his sister on 05.12.2011 at village Dhaka she did not tell him about the incident and has voluntarily stated that she told him that she had lost her way from the market. Witness has admitted that there were no signs of injuries on his sister. Witness has further deposed that he does not recollect the exact place of the house from where he picked up his sister. Witness has denied the suggestion that no incident had taken place or accused Shibu has been falsely implicated by his family. Witness has denied the suggestion that he was deposing falsely.
(14) The witness Rakesh (PW9) was also recalled pursuant to charges framed against accused Bhura, Hawai and Bhona who were summoned later. The witness has deposed that he is residing at the given address along with his family since his birth and his parents are resided in this house from the last 30 years. According to him on 05.12.2011 at about 3 PM his sister 'K' who was working in the kothies was going for her work and Shibu who is his neighbour and State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 10 resides in the adjoining house had forcibly taken away his sister 'K' behind Gandhi Vihar nala, where he committed rape upon her (uske sath galat kam kiya). Witness has further deposed that his sister informed him about this incident on the next day i.e. on 06.12.2011, and on coming to know of it he made a call on 100 number to the police and in his presence his sister 'K' was interrogated and her statement was recorded which statement is Ex.PW7/A. According to him his sister was taken to the Jahangirpuri hospital where her medical examination was got conducted and also to the police station thereafter and his statement was recorded on the same day at his home.
(15) In his crossexamination by Ld. Defence counsels, witness Rakesh has deposed that they are five brothers and sisters and he is the eldest, 'K' is the fourth child of their parents. According to him, he first came to know about the incident of rape (balatkar) on his sister from somebody in the area on which he confronted with his sister and she informed him about the details. Witness has admitted that his sister herself did not disclose this incident to him and has voluntarily explained that she had been threatened not to tell anything at home. Witness has further deposed that he was not home when his sister started went for her work at 3 PM and she had left for her work alone and she came back home at 6 PM. According to him he was not at home when she came back and has voluntarily stated State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 11 that he received a call from some person informing that his sister had been left at village Dhaka and he should come and take her and he thereafter went and brought his sister back from village Dhaka. Witness has further deposed that the village Dhaka is about half a kilometer from his house. Witness has denied the suggestion that his sister goes to the village daily for her work and has voluntarily stated that she works in the kothies at Mukherjee Nagar. According to him, he did not tell the police that he had personally brought his sister back from village Dhaka. Witness has admitted that Shibu is on visiting terms with their family and has voluntarily added that he is their chacha in their relation. Witness has admitted that Shibu is married with two children. Witness has further deposed that he cannot tell the details of the kothies where his sister is working and when he met his sister on 05.12.2011 at village Dhaka she did not tell him about the incident and has voluntarily stated that she told him that she had lost her way from the market. Witness has admitted that there were no signs of injuries on his sister. According to him, he does not recollect the exact place of the house from where he picked up his sister. Witness has denied the suggestion that no incident had taken place and accused Shibu has been falsely implicated by his family.
(16) PW10 Sushma has deposed that she is residing at N14/239, Munshi Ram Dairy, Near Mukherjee Nagar, Delhi along State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 12 with her parents and she has five brothers and sisters and she is the third child and she has two brothers elder to her. According to the witness, prosecutrix 'K' is younger to her. Witness has further deposed that on 05.12.2011 her sister 'K' left the house at about 1:00 PM for going to work in the kothies in Mukherjee Nagar and did not return through out the day and came back only at about 9 PM. According to her when she came back, she was crying and when they all asked her what had happened, she did not tell them anything but kept on crying after which she slept. Witness has further deposed that next day she only got up in the afternoon and again started crying on which she persuaded and asked her what had happened, her sister informed her that she was beaten by Shibu, accused present in the court (correctly identified) who is chacha in their relation. According to her, 'K' she thereafter disclosed that after she was beaten, she was put inside the auto/D Van belonging to one boy of the same area who was also present in the court. (This court observed that Nanak the owner of the D Van was also present in the court and was examined as a witness). Witness has further deposed that she further informed him that inside the D Van which was closed from all sides, Shibu did "galat kam" with her.
(17) On a Court question as to what did he (witness) mean by galat kam, the witness has explained that his sister told him that there were four persons. She has further explained that one person caught State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 13 hold of her hands whose name she told him was Hawai, i.e. the owner of the auto and there was another person by the name of Bhura who caught hold of her legs, while Shibu committed rape upon her. The witness has further deposed that her sister further told her that even Bhura tried to commit rape upon her but in the meanwhile she managed to escape. She further told him that the fourth boy was standing away and did not do anything.
(18) Witness has further deposed that her sister further told her that the said persons had threatened her saying "jo hadsa hamne tere sath kiya hai, agar tune ghar pe bataya, to wohi teri behan ke sath bhi karenge". According to her, Shibu has also threatened her sister after the registration of the case and has stated that "ya to mujhe chura de, warna jab mein chut ke aunga tu wohi hadsa tere sath dobara kaunga aur teri behan ke sath bhi karunga". She thereafter told his brother all that her sister had told her. Witness has further deposed that on which he called the police who came to the spot and made inquiries from her.
(19) In her crossexamination by Ld. Addl. PP for the State, the witness has deposed that there were three persons more who were helping the accused Shibu while Shibu committed rape upon her sister. It has however been noticed that as per the statement of this witness U/s 161 Cr. PC no reference of those three persons have been made by the witness. Witness has further deposed that she had told to State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 14 the Investigating Officer in her statement that her sister informed her that there were four persons, however when the witness was confronted with her statement U/s 161 Cr. P.C. dated 06.12.2011 which is Ex.PW10/PX this fact was not so found recorded. According to her, she had told to the Investigating Officer in her statement that her sister i.e. prosecutrix had informed her that one person caught hold of her hands whose name she told him as Hawai, the owner of the D Van (auto) and another person namely Bhura caught hold of her legs but when the witness was confronted with her statement Ex.PW10/PX1, this fact is not found so recorded. Witness has further deposed that she has told to the Investigating Officer in her statement that Bhura tried to commit rape upon her sister 'K' but in the meanwhile her sister managed to escape and that the fourth boy was standing away and did not do anything but when the witness was confronted with her statement Ex.PW10/PX this fact has not been found so recorded. Witness has denied the suggestion that her sister 'K' did not tell her about the other three boys that they were also present there besides Shibu, the accused. Witness has denied the suggestion that she was forgetting the afore said facts because of lapse of time. Witness has admitted that her sister told her that Shibu after pushing her sister inside the rear portion of the said delivery tempo, he bolted the doors from inside and thereafter he committed rape upon her.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 15 (20) In her crossexamination by Ld. Defence Counsels, the witness has deposed that police did not record her statement. According to her, the kothies where her sister used to work is very near to his house and she generally used to leave the house at 1:00 PM to go for her work. Witness has further deposed that she worked in only one house but does not know the number of the house but she is aware of the said house by location. According to her, 'K' returned to the home alone at about 9 PM and she did not take food and thereafter went to sleep while weeping. Witness has further deposed that she and her brother tried to ask her sister as to what had happened to her but she was weeping bitterly. Witness has further deposed that she saw injuries marks on her face and her clothes were appearing dirty with mud (dhool mati). According to her, she was wearing black color legging and blue color kurta. Witness has further deposed that on the next day, her sister told her about the incident at about 3 PM and on that day she did not go to her work and her sister told her that all four accused as deposed above caught hold her and put her inside the tempo. According to her she has seen the delivery van which is of green color and the rear portion of the said vehicle was covered. Witness has further deposed that Sewa Bharti dispensary is on the road and there is a park in front and on the back of Sewa Bharti Dispensary and in the afternoon time there were not many public persons present in the Park at the back side of Sewa State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 16 Bharti Dispensary. According to her she had told all the facts which were told to her by her sister after about 10 minutes of disclosing the incident to her by her sister and thereafter her brother call on 100 number. Witness has further deposed that her brother Rakesh did not beat her sister 'K' after knowing about the incident. Witness has denied the suggestion that on 05.12.2011 her brother had beaten 'K' due to which she had sustained injuries on her head. Witness has admitted that she did not accompany 'K' for her medical examination. Witness has denied the suggestion that she was deposing falsely.
(21) After the arrest of coaccused Bhura, Hawai and Bona, the witness Sushma (PW10) was recalled for further statement and the witness has corroborated her previous testimony recorded on 8.5.2012. She has further deposed that when she reached the court at about 10:00 AM they found one Rajesh who is the resident of same jhuggi cluster where she is residing, standing at Gate No. 4 and he told them not to appear in the court and he would handle everything. She has further deposed that they she again tried to come to the court but when they reached the third floor, that Rajesh did not permit them to come up in the court According to the witness, the IO also came to call them but Rajesh kept on telling the IO that he would send them within five minutes but thereafter he took her, her sister, her younger brother and bhabhi away with him stating that they State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 17 should not depose in the court and he would take care of everything. The witness has deposed that Rajesh told her to compromise but she refused. She further deposed that Rajesh was accompanied by two or three other people whom she did not know. According to the witness, Rajesh tried to take them forcibly outside the court when they called the IO and thereafter the police brought them to the court. On court question that from where the police caught them, the witness has explained that the police had caught them from the road outside the court towards the corner.
(22) The prosecutrix 'K' has deposed that on 5.12.2011 she was working in the Kothis and has studied till class 5th and thereafter left her studies. According to her, on that day at about 3 PM she left her house for her work and when she reached at Sewa Bharti and was going towards the gali on foot, one Auto / D Van (closed Auto) came from behind, which vehicle was being driven by a boy Hawai who is the owner of the vehicle and is brother of Nanak who was present in the court. Witness has further deposed that there were three other boys in the said Auto who came down and forcibly pulled her in the Auto and took her to the backside i.e. closed portion and took the vehicle towards Nehru Vihar area and parked the auto in a jungle when the other boy whom she can identify but whose name she do not know but who is the resident of Indira Vikas Colony, who was being called by other boys as Bona, caught hold of her hands, the boy State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 18 namely Bhura caught hold of her legs when the Shibu committed rape upon her. According to her Bhura and Hawai also tried to commit rape upon her but she strongly resisted and saved herself on which they gave her beatings and thereafter, all the four boys left her in the jungle. Witness has further deposed that while she was coming out of the jungle, her brother met her near the pulia and brought her home. According to her, these persons had threatened her and asked her not to tell anybody about this incident or else they would kill her brothers and it was for this reason that she did not tell anything to her family members. Witness has further deposed that on the next day, she disclosed about the incident to her sister and thereafter her brother also came to know about the incident on which he inquired from her and she disclosed the entire incident to him and thereafter her brother called the police. According to her when the police came, she told them about the incident and her statement was recorded by the Investigating officer which statement is Ex.PW7/A. She was then taken to the Jahangirpuri hospital where her medical examination was conducted and her clothes were also seized by the police. According to her since she was very scared, she did not go her home and was sent to Nari Niketan. She has further identified the D Van / Auto in which she was lifted and taken by the accused photographs of which are Ex.PW13/A1 to Ex.PW13/A5. Witness has further deposed that on her pointing out the said Auto / D Van State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 19 was also seized by the police vide memo Ex.PW13/B. Witness has further deposed that her statement was recorded by Ld. MM under Section 164 Cr.PC which statement is Ex.PW13/6. According to her after about 1015 days, she was taken home from Nari Niketan by her brother. Witness has further deposed that she can identy the other three persons namely Bhura, Bona and Hawai if shown to her. (23) During leading questions put by the Ld. Addl. PP for the state, the witness has deposed that she was not read over her statement Ex.PW7/A by the police before she signed the same therefore she cannot tell if the details of the other three persons is also mentioned in the same or not. According to her she did not tell the Ld. MM that four persons were involved because the Investigating officer, Madam, advised her not to take the names of other three persons.
(24) In her cross examination by Ld. Defence Counsel, the witness has deposed that she used to do the work of washing clothes in front of Seva Bharti Dispensary and she does not remember the number or address of the house where she worked. According to her there were about seven to eight other girls living in the said house and she only used to wash clothes and within 510 minutes she used to finish her work. Witness has further deposed that she does not know the names of the girls living in the said house but she used to call them as Didi and she washed clothes of two girls and they used State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 20 to pay her Rs 300/ per month. According to her she worked there only for 10 days. She has explained that she usually reached at the house where she used to work at about 11:30 PM and left her house at about 12:3012:45 PM. Witness has further deposed that Sewa Bharti Dispensary is quite far from her house and the gali adjoining the dispensary is isolated which is a big gali. According to her she had told the investigating officer that she was going in the gali when she was pulled and taken by the accused. However, when confronted with the statement Ex.PW7/A where this fact of being pull from the gali is not mentioned. Witness has further deposed that the kothi where she used to work was far away from her house, near the dispensary and at the time of the incident she was wearing a synthetic black color pyajami/leggings and blue color kurta. According to her Shibu resides in their neighbourhood and is Chacha in their relation and there are five persons living in the house of accused. Witness has denied the suggestion that she was on good visiting terms with accused Shibu and his family. Witness has admitted that Shibu is married and he has two children. According to her the children of the accused Shibu also reside with his wife / their mother. (25) Witness has further deposed that she had told the investigating officer that when she reached at Sewa Bharti and was going towards the gali on foot, one Auto/D Van came from behind, which vehicle was being driven by a boy Hawai, who is the owner of State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 21 the vehicle and is brother of Nanak and she had also told to the investigating officer that there were three other boys in the said Auto who came down and forcibly pulled her in the Auto and took her to the backside i.e. closed portion and then took the vehicle towards Nehru Vihar area and parked the auto in a jungle when the other boy whom she can identify but whose name she do not know but who is the resident of Indira Vikas colony and was called "Bona" by others, caught hold of her hands, the boy namely Bhura caught hold of her legs when the Shibu committed rape upon her. She has stated that she had also told the investigating officer that Bhura and Hawai also tried to commit rape upon her but she strongly resisted and saved herself on which they gave the beatings and thereafter all the four boys left her in the jungle. According to her, she had also told to the investigating officer that these persons had threatened her and asked her not to tell anybody about this incident or else they would kill her brothers due to which reason she did not tell anything to her family members. However, when the witness was confronted with the statement Ex.PW7/A these facts have not found so recorded. The witness has also voluntarily explained that she had told the investigating officer about the involvement of all these above persons but the IO kept on insisting that she should concentrate on the person whom has actually committed the offence. Witness has further deposed that the accused had come from the backside when she was State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 22 going in the gali and Shibu had called out to her from the back. The witness has voluntarily explained that she had also tried to run away. According to her, she did not exactly run but was about to run, when she was caught. Witness has admitted that she was having head injury when she was taken to the hospital. Witness has further explained that when she was brought back home by her brother and he made inquiries from her as to what had happened, she did not disclose to him because she was scared, on which her brother pushed her out of frustration and her head struck the wall due to which reason she sustained injuries. Witness has admitted that she was taken to the doctor where she was treated and her wound was got stitched. Witness has further deposed that she was taken to a doctor who is in the same gali whose name is probably Dr. Mahesh. According to him she had told the police officer who had taken her to the hospital, how she had received the head injury. Witness has further deposed that it was Shibu who had actually caught her while others were sitting in the D van and first she was made to sit in front but since she tried to free herself, they put her at the back. According to her, the van was totally closed from all the sides and she had also tried to scream, but the said persons caught hold of her mouth. Witness has further deposed that when her mouth was caught forcibly, there were signs of the force of her face and she had shown the said signs to the doctor. According to her, she did not State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 23 receive any injuries during the incident and states that she had told the investigating officer the spot where the incident took place but the investigating officer did not see the same. Witness has further deposed that while Shibu caught hold of her mouth, the others were trying to keep her inside the van stating "nikalne nahi denge". According to her they have no disputes with Shibu, Bhure, Hawai and the fourth boy who is known as Bona and residing at Indira Vikas colony. Witness has further deposed that when she was inside the D Van they made her sit and there was complete darkness inside the D Van. According to her there were no goods inside the D van and has voluntarily explained that the van was covered by tirpal on the floor as well as on the roof of the D Van. Witness has denied the suggestion that Shibu has been falsely implicated by her or that she was herself interested in getting married to Shibu but she has falsely implicated him in the present case feeling snubbed. Witness has further denied the suggestion that there was no incident and it is for this reason that the matter was not reported to the police on the day of the incident. Witness has further denied the suggestion that she has file the false case against Shibu under the compulsion of her family members or that it is for this reason that she did not go back with her family and was sent to Nari Niketan. Witness has further denied the suggestion that she was deposing falsely. State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 24 (26) When the prosecutrix 'K' was recalled pursuant to charges framed against newly summoned accused Bhura, Hawai and Bhona, she has deposed that on the day of her deposition before the court they reached the court at about 10 10.15 AM and she, her brother, her Bhabhi and her sister were coming to the court when they found one Rajesh, resident of the same jhuggi cluster where they are residing standing on the second / third floor of the court and he (Rajesh) prevented them from reaching to the court and also told her brother that the matter has to be compromised but her brother told that he did not want to compromise in this case. The witness has deposed that the mother of Rajesh is a local Neta. The witness has further deposed saying "Usne Meri Behan Se Kaha Faisla Kar Lo Par Mere Bhai Ne Mana Kar Diya. Tab Usne Mere Bhai Ko Kaha Ki court Main Keh Dena Ki Meri Bahan Ki Tabiyat Kharab Ho Gai Thi. Iss Doran IO Madam Aai To Rajesh Nae unse Kaha Paanch Minute Main Aa Rahe Hain. Tab woh Hame court complex Se Bahar Le Gaya. IO Madam aur dusre police officials Ne Hame court ke bahar road par pakra aur court main aane Ko Kaha aur uske baad court main pesh kiya." On being informed of the above, this court directed immediate proceedings to be conducted against the said person Rajesh who had tried to prevent the prosecutrix and her family from reaching to the court.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 25 (27) The prosecutrix 'K' has further in her deposition corroborated her earlier deposition and has correctly identified the accused Hawai, Bhura and Bona in the court. According to her, these three other boys namely Bona, Bhura and Shibu had come in the said D Van who came down and forcibly pulled her in the D Van and took her to the backside i.e. closed portion and took the vehicle into a jungle. Witness has further deposed that there accused Bhura caught hold of her hands and accused Bona caught hold of her legs and Shibu is the person who did galat kaam with her. On court question as to what did she mean by galat kaam, she explained that by galat kaam she mean rape.
(28) In her crossexamination by Ld. Defence Counsels for the accused Bhura, Hawai and Bona, the witness has admitted that earlier she had informed the court that the vehicle /D van is owned by Nanak, the brother of Hawai and has voluntarily stated that she has taken the name of Hawai in the court because it was Hawai who was driving the said tempo. Witness has further admitted that on the previous date i.e. 08.05.2012 she had stated that Bona caught hold of her hands, Bhura caught hold of her legs whereas now she was saying that Bona caught hold of her legs whereas Bhura caught hold of her hands. According to her she had stated earlier on 08.05.2012 was correct and it was Bona who caught hold of her hands and Bhura caught hold of her legs. On court question as to what about State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 26 the statement which she made second time in the court, the witness has explained that she did not recollect (Dhyan Nahi Raha). (29) Witness has further deposed that when she had started from her house it was around 1:00 p.m. Witness has admitted that she had earlier in her statement dt. 08.05.2012 stated that it was 3 p.m. and has voluntarily stated that it was afternoon time though she does not recollect whether it was 1:00 p.m. or 3:00 p.m and she only recollect that it was only afternoon time. Witness has further deposed that all the four boys had threatened her. Witness has further admitted that she had stated in her examination in chief that the four accused persons had threatened that they would kill her and has voluntarily added that they also stated that they would kill both her brothers. According to her, she was scared at that time when her statement was recorded by the police and could not tell that they had threatened her and her brothers as well even in her statement today recorded she have stated that they have threatened to kill her and has voluntarily stated that she got confused and therefore did not disclose. Witness has denied the suggestion that no such incident had taken place and it is for this reason she was continuously improving upon her earlier statement. Witness has also denied the suggestion that she has falsely implicated accused Bhura, Hawai and Bona only because they are close friends of Shibu and only because they are known to Shibu and her family wants to extort money from State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 27 them. Witness has further deposed that she did not disclose to the Ld. MM that four boys were involved in the incident and investigating officer madam had advised her only to take the name of the person who was involved in the incident and not to name the other persons. According to her she did not make any complaint to higher officers regarding the advise of the IO madam. Witness has admitted that on the date of incident her brother had met her at village Dhaka. Witness has further deposed that she is 15 years old and her brother had told her that her age is 15 years. Witness has denied the suggestion that her age is 20 years. According to her on the date of incident Shibu called her on the main road of Seva Bharti dispensary and Shibu was in the tempo sitting in the front seat. Witness has denied the suggestion that she used to go out with Shibu even previously. Witness has denied the suggestion that she with her own consent sat in the tempo. Witness has denied the suggestion that she has been tutored by her family or that she had made the improvements in her testimony on their asking. Witness has denied the suggestion that the accused Bhura, Boona and Hawai have been falsely implicated by her on the asking of her family members only for purposes of extortion.
Medical Evidence:
(30) PW11 Dr. Santosh has deposed that on 06.12.2004 he was posted as JR in casualty at BJRM hospital and on that day at State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 28 about 6:30PM the patient 'K' D/o Ashok aged 15 years was brought in casualty with the alleged history of sexual assault one day before and he examined the patient and on local examination 3 cm lacerated wound parito parietal region, suturing already done at private clinic.
According to him he referred the patient to Gynae department for further examination and the MLC of the patient 'K' is Ex.PW11/A and the said MLC was prepared under the supervision of Dr. Meet the then CMO.
(31) PW12 Dr. Neeraj Chaudhary has deposed on behalf of Dr. Meet. According to him, on 06.12.2004 patient Shibu aged about 26 years male was brought in the casualty at BJRM hospital with alleged history of sexual assault one day before and Dr. Meet examined the patient and referred the patient to surgery SR for examination and his valuable opinion. The MLC is Ex.PX5 (admitted by the accused). The witness has not been cross examined on behalf of the accused despite opportunity in this regard and hence the testimony has gone uncontroverted.
(32) The witness was recalled for further examination after summoning the coaccused Bhura, Bona and Hawai and the witness has adopted his previous statement and has not been corr examined on behalf of the accused. .
(33) PW14 Dr. Seema has deposed that she has been authorized by the MS of the hospital to appear and depose on behalf State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 29 of Dr. Mamta, who has left the hospital and her whereabouts are not known. According to her she has seen the MLC Ex.PW11/A and according to which the patient 'K' D/o Ashok Kashyap brought in the hospital by Ct. Hemlata with alleged history of sexual assault and Dr. Mamta examined the patient and on examination patient was well oriented, vital stable. Witness has further deposed that the patient refused for her PV examination and on external examination, external genitalia was normal, no marks of scratch or trauma around the genitalia and hymen was torn. According to her the MLC of the patient 'K' is Ex.PW11/A bearing the signatures of Dr. Mamta at point B and she identify the signatures of Dr. Mamta having seen her while signing and writing during the discharge of his official duties.
(34) Witness has further deposed that she has also been deputed to depose in place of Dr. Santosh on the directions of their M.S. Dr. Santosh is now not working in their hospital and his present address is not known to them. According to her she can identify her signatures and handwriting as she has seen him while signing and writing. Witness has further deposed that 'K' D/o Ashok female 15 years brought by Lady Ct. Hemlata, was medically examined by Dr. Santosh on 06.12.2011 at about 630 p.m. at casualty of the BJRM Hospital and prepared the MLC vide Ex. State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 30 PW11/A and he referred 'K' to the Gyane department where she was medically examined.
(35) In her cross examination by Ld. Defence Counsels, the witness has deposed that it is mentioned in the MLC that there is an alleged history of sexual assault and has voluntarily added that he has not examined the patient personally. The witness has admitted that hymen maybe torn on account of any kind of trauma. On court question that in case where the history given by the patient is of sexual assault the hymen torn is on account of the said assault, the witness has explained that generally in rape cases if there is resistance by the prosecutrix, there are marks, scratches or trauma around the genitalia of the prosecutrix. On further court question the witness has deposed that it is correct that the there are large number of such cases where in case of resistance by the prosecutrix, there may not be any marks, scratches or trauma around the genitalia of the prosecutrix.
(36) When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has corroborated her previous testimonies in toto and the Ld. Counsels for all the accused persons seek permission to adopt the earlier crossexamination conducted by Ms. Anubha Kaushal counsel on behalf of accused Shibu previously, which permission was granted.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 31 Police Witnesses:
(37) PW1 SI Yogesh has deposed by way of affidavit which is Ex.PW1/1 bearing his signatures at point A and B. In his affidavit witness has deposed that on 06.12.2011 he was performing the emergency duty at police station Mukherjee Nagar and on that day he reached H.No. 14/239, near MCD pump house along with Ct.
Kuldeep No. 1993/NW after receiving PCR call vide DD No. 15 A dated 06.12.2011 PS Mukherjee Nagar Delhi in the meantime W/SI Upkar Kaur reached at the same place.
(38) He has not been cross examined on behalf of the accused persons and the entire testimony has gone uncontroverted. (When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has adopted his previous testimonies in toto and has not been cross examined on behalf of the counsels despite opportunity). (39) PW2 HC Mohar Singh has deposed by way of affidavit which is Ex.PW2/1 bearing his signatures at point A and B and he relied upon DD No. 22A, copy of which is Ex.PW2/A, copy of FIR which is Ex.PW2/B bearing his signatures at point A and endorsement on rukka which is Ex.PW2/C bearing his signatures at point A. In his affidavit he has deposed that on 06.12.2011 he was deputed as duty officer at police station Mukherjee Nagar from 5PM State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 32 to 1AM. He has further deposed that on that day he made kayami vide DD No. 22A at 21:00 hours after receiving rukka from W/SI Upkar Kaur and registered case FIR No. 412/11 U/s 363/376/506 IPC and he made an endorsement on the rukka and copy of FIR along with original rukak was handed over to Ct. Kuldeep No. 1993/NW by him for sending the same to W/SI Upkar Kaur.
(40) He has not been cross examined on behalf of the accused persons and the entire testimony has gone uncontroverted. (When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has adopted his previous testimonies in toto and has not been cross examined on behalf of the counsels despite opportunity). (41) PW3 W/HC Rajina has deposed by way of affidavit which is Ex.PW3/1 bearing her signatures at point A and B and she rely upon documents i.e. DD No. 15A copy of which is Ex.PW3/A. In her affidavit witness has deposed that on 06.12.2011 she was deputed as duty officer at police station Mukherjee Nagar, Delhi from 8AM to 4Pm and on that day she made an entry vide DD No. 15A at 3:20 PM after receiving information through intercom in daily diary and SI Yogesh and Ct. Kuldeep No. 1993/NW were sent to H.No. 14/239 MCD pump house, Munshi Ram colony, Mukherjee Nagar, Delhi to inquire the matter and after that W/SI Upkar Kaur was also reached on above mentioned address.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 33 (42) She has not been cross examined on behalf of the accused persons and the entire testimony has gone uncontroverted. (When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has adopted her previous testimonies in toto and has also not been cross examined on behalf of the counsels despite opportunity).
(43) PW4 HC Kailash has deposed by way of affidavit which is Ex.PW4/1 bearing his signatures at point A and B and he rely upon documents i.e. entry in register no. 19 vide S.No. 3197/11 dated 06.12.2011 copy of which is Ex.PW4/A, he also rely upon the entry in register no.21 bearing no. 99/21/12 copy of which is Ex.PW4/B and acknowledgment issued by FSL copy of which is Ex.PW4/C. In his affidavit witness has deposed that on 06.12.2011 he was performing the duty of MHC(M) CP at police station Mukherjee Nagar and a pullanda duly sealed with the seal of MS BJRM Hospital, Jahangirpuri containing sexual assault kit and under garments of victim and under garments and blood sample of accused and tempo No. DL1IJ6616 which was deposited by W/SI Upkar Kaur in the malkhana of police station Mukherjee Nagar on 06.12.2011. He has further deposed that the entry was made in register No. 19 mud No. 3197/11 dated 06.12.2011, memo. State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 34 (44) In his cross examination by the Ld. Defence Counsel, witness has admitted that the entry does not bear the counter signature of the Investigating Officer who had deposited the case property. Witness has denied the suggestion that the case property was tampered while it remained in his custody.
(45) When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has corroborated his previous testimonies in toto and the Ld. Counsels for all the accused persons also seek permission to adopt the earlier crossexamination conducted by Ms. Anubha Kaushal counsel on behalf of accused Shibu previously, which permission was granted.
(46) PW5 W/Ct. Hemlata has deposed by way of affidavit which is Ex.PW5/1 bearing her signatures at point A and B and she rely upon the seizure memo of the exhibits which is EX PW 5/A bearing her signatures at point A. In her affidavit witness has deposed that on 06.12.2011 she was on duty at police station Mukherjee Nagar and she got medically examined victim 'K' vide MLC No. 35331/11 at BJRM hospital Jahangirpuri in case FIR No. 412/11 dated 06.12.2011 U/s 363/376/506 IPC police station Mukherjee Nagar on 06.12.2011.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 35 (47) In her cross examination by Ld. Defence counsel, witness has deposed that she started from the spot after taking the prosecutrix at about 66:30 PM and reached BJRM hospital within 1520 minutes and she remained outside during the medical examination of the victim. According to her the seizure memo Ex.PW5/A was prepared at the hospital itself and no public witness was present at that time. Witness has denied the suggestion that she did not accompany the prosecutrix for her medical examination.
(48) When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has corroborated his previous testimonies in toto and the Ld. Counsels for all the accused persons also seek permission to adopt the earlier crossexamination conducted by Ms. Anubha Kaushal counsel on behalf of accused Shibu previously, which permission was granted.
(49) PW6 Ct. Kuldeep has deposed by way of affidavit which is Ex.PW6/1 bearing his signatures at point A and B. In his affidavit, witness has deposed that on 06.12.2011 he was on duty at police station Mukherjee Nagar and he went to H.No. 14/239, Munshi Ram colony along with SI Yogesh and W/SI Upkar Kaur and she prepared a rukka and given it to him for registration of the case on which he went to police station Mukherjee Nagar along with State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 36 original rukka and handed over the same to W/SI Upkar Kaur after registering the case vide FIR No. 412/11 U/s 363/379/506 IPC police station Mukherjee Nagar at the above given address. (50) In his cross examination by Ld. Defence counsel, witness has deposed that he handed over the rukka at about 8:30 PM and reached the police station at about 9 PM since he was on foot. According to him he reached back to the spot at about 9:30 PM and has voluntarily stated that he went back to the spot along with SI Yogesh on his motorcycle. Witness has denied the suggestion that he did not join the investigations. Witness has denied the suggestion that he did not go back to the spot along with SI Yogesh or that he was deposing falsely at the instance of senior officers. (51) When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has corroborated his previous testimonies in toto and the Ld. Counsels for all the accused persons also seek permission to adopt the earlier crossexamination conducted by Ms. Anubha Kaushal counsel on behalf of accused Shibu previously, which permission was granted.
(52) PW15 Ct. Sikander Kumar has deposed that on 06.12.2011 he was posted at police station Mukherjee Nagar and on that day he was on patrolling duty in the area of Police Station Mukherjee Nagar and while on patrolling when he reached at Munshi State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 37 Ram Dairy, one informer gave him a signal, he stopped his motorcycle and he told him that he can get arrest the person wanted in this case. According to him, the secret informer pointed out towards the accused (correctly identified) who was standing on the road at a distance of 50 meters from the place where he was given a signal by secret informer. Witness has further deposed that when he tried to proceed towards accused, he tried to ran away but he apprehended the accused immediately after reaching there as he did not gave any chance to the accused to escape and he made interrogations from him about the reason of escaping then he told about the present incident. Witness has further deposed that from the local inquiry he came to know that prosecutrix had been taken to BJRM Hospital by the Investigating officer, thereafter he directly took the accused in BJRM hospital and handed over the custody to the Investigating officer W/SI Upkar Kaur and told her all the facts above. According to him thereafter accused was interrogated by the Investigating officer and he was arrested vide memo Ex.PW15/A and his personal search was carried out vide memo Ex.PW15/B. Witness has further deposed that thereafter accused was got medically examined by the Investigating officer and after the medical examination doctor handed over three sealed parcels which were sealed with the seal of MS BJRM HOSPITAL to the Investigating officer along with one sample seal which was seized by State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 38 the Investigating officer vide memo Ex.PW15/C. (53) Witness has further deposed that when he took the accused in BJRM Hospital where investigating officer was already there along with prosecutrix and when he was talking with Investigating officer about the apprehending of the accused prosecutrix had also identified the accused and told that he had committed rape upon her. According to him thereafter he along with Investigating officer, accused, prosecutrix and the brother of prosecutrix came at the spot and Investigating officer made interrogation from the accused about the tempo bearing no. DL 1L J 6616 in which the offence was committed. Witness has further deposed that initially the accused did not tell about the tempo but when he was interrogated in detail accused lead them to the place situated in front of MCD Pump House, Munshi Ram Colony and pointed out towards tempo (three wheeler) No. DL 1L J 6616 which was parked there. According to him the prosecutrix had also identified the tempo, the said tempo was seized by the Investigating officer vide memo Ex.PW13/B. Witness has further deposed that thereafter they all returned to the police station and Investigating officer got deposited the accused and case property with the MHC(M) and she took the accused in Police Station Model Town where he was put in the lock as there was no lock up in Police Station Mukherjee Nagar at that time and his statement was recorded in this State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 39 regard. Witness has further deposed that he can identify the tempo, the photographs of the said tempo which are on the record is the same which was seized by the Investigating officer. The photographs of the said tempo are Ex.PW13/A1 to Ex.PW13/A5. (54) In his cross examination by Ld. Defence Counsels, the witness has deposed that he was patrolling in the area of police station Mukherjee Nagar at around 4 4.30 p.m. he did not reduce the information given to him by secret informer in writing. He has deposed that he only informed the Investigating officer about the secret information and nobody else. According to him he did not know if the Investigating officer informed the senior officer about the same or not. The witness has deposed that he reached at Jahangir Puri Hospital to inform the Investigating officer about the secret information but he did not join any public witness with him when he went towards the directions pointed out by the secret informer nor he join any public witness after the accused Shibu was apprehended and before conducting his personal search and arrest. The witness has deposed that he accused Shibu was standing alone at that time when he was pointed out by the secret informer. He has deposed that it was around 4.50 p.m. at that time. Witness has admitted that the place where Shibu was apprehended was a thickly populated area. Witness has further admitted that Shibu was not having the tempo in his possession at that time and the tempo was parked near the MCD State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 40 Pump house on the road and was seized at about 8 8.15 p.m. According to the witness during this period from 5 p.m. to 8 p.m., the accused was being interrogated by the Investigating officer and was also taken to the BJRM Hospital and has voluntarily stated that the interrogation took place at BJRM Hospital. The witness has deposed that no hospital staff or any other person was joined in the interrogation of the accused by the Investigating officer in his presence. Witness has denied the suggestion that accused Shibu did not make any disclosure statement or that he has falsely implicated the accused Shibu on the asking of the family members of the prosecutrix.
(55) When this witness was recalled for further examination qua the newly summoned accused namely Bhura, Bona and Hawai, the witness has corroborated his previous testimonies in toto and the Ld. Counsels for all the accused persons seek permission to adopt the earlier crossexamination conducted by Ms. Anubha Kaushal counsel on behalf of accused Shibu previously, which permission was granted.
(56) PW16 SI Upkar has deposed that on 06.12.2011 she was posted at Police Station Model Town and on that day at about 325 p.m. she was informed about the DD No. 15 A by the duty officer and he handed over the DD No. 15 A Ex.PW3/A to her and thereafter, she along with Ct. Hem Lata reached near the place of State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 41 incident in front of MCD pump house, near Munshi Ram Colony, Mukherjee Nagar and Rakesh met her there who made call at 100 number and he alleged that his neighbour Shibu committed rape on his sister 'K'. According to her, 'K' was also present there and she examined her on which the prosecutrix alleged that Shibu, a married person, committed rape upon her. Witness has further deposed that she alongwith Ct. Hemlata, 'K' and Rakesh reached at BJRM Hospital, Jahangir Puri, Delhi and meanwhile, Ct. Sukander reached at the hospital and he produced accused Shibu before her and he alleged that accused Shibu was interrogated by him and accused Shibu confessed that he had committed rape on 'K' one day prior and thereafter 'K' and accused Shibu were produced before the doctor for medical examination. According to her after medical examination of 'K' the doctor handed over two pullandas in sealed condition with the seal of hospital with the sample seal to her and she seized the same vide seizure memo Ex. PW5/A and after medical examination of accused Shibu Dr. handed over three pullandas in sealed condition with the seal of hospital with sample seal to her and she seized the same vide Ex. PW15/C. Witness has further deposed that she also collected MLC of 'K' and accused Shibu and thereafter, she alongwith Lady Ct. Hemlata, Ct. Sikandar, prosecutrix 'K' , Rakesh and accused Shibu reached at Munshi Ram Colony, near the MCD Pump house and meanwhile, Rita Nayyer , NGO official also reached State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 42 at the spot. According to her she recorded the statement of prosecutrix 'K' vide Ex.PW7/A near the MCD pump house and 'K' put her signatures at point B and she attested the same with her signatures at point D. Witness has further deposed that she prepared the ruqqa Ex.PW16/A and she sent Ct. Kuldeep, who was already present at the spot, with ruqqa to police station Mukherjee Nagar for registration of the FIR. According to her, she thereafter reached at the place of incident and at the instance of prosecutrix she prepared the site plan Ex.PW16/B. Witness has further deposed that meanwhile Ct. Kuldeep returned back and he handed over copy of FIR and ruqqa in original to her for further investigation and she arrested accused Shibu vide memo Ex.PW15/A and his personal search was taken vide Ex.PW15/B thereafter she interrogated accused Shibu and recorded his disclosure statement vide Ex.PW16/C. Witness has further deposed that at the instance of accused Shibu one tempo bearing No. DL1LJ6616 was seized from near the MCD pump house, Munshi Ram Colony and had seized the same vide seizure memo Ex.PW13/B. Thereafter, she along with the police staff and accused Shibu returned back to the police station and he was kept in the lock up of Police Station Model Town. According to her she deposited all the seized articles in the Mal Khana and he again returned back at the spot and prosecutrix was under the fear State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 43 and in an injured condition and she was not interested to go to her home thereafter, she obtained the order from the Child Welfare Committee and thereafter, she took prosecutrix 'K' to Kilkari Rainbow Home, Kashmere Gate, Chabi Ganj and she was handed over to the officials of the above said Rainbow home. Witness has further deposed that she again reached at the spot and recorded the statement of the witnesses. According to her on 07.12.2011 she produced accused Shibu before the court and he was sent to judicial custody.
(57) Witness has further deposed that on 09.12.2011 she brought prosecutrix 'K' from the above said Rainbow Home and produced her before the concerned MM at Rohini Courts for recording her statement u/s 164 Cr.PC her application for the same is Ex.PX2 bears his signatures at point A and after recording of the statement she moved an application for copy of the statement u/s 164 CrPc vide Ex.PX4 and she obtained the copy of the statement u/s 164 CrPC. According to her thereafter, she took prosecutrix 'K' to above said Rainbow Home and handed over her to the officials of the above said Rainbow Home. Witness has further deposed that during her investigation exhibits of this case were sent to the FSL Rohini, Delhi and during her investigation, she recorded statement of the witnesses and after completion of investigation she submitted charge sheet against accused Shibu. Witness correctly identifies the State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 44 accused Shibu who was present in the court. The witness has correctly identified the tempo in the photographs Ex.PW13/A1 to Ex.PW13/A5 as the same seized by her at the instance of accused Shibu. The FSL report is Ex.PW16/D (running into two pages) and PW16/E. (58) Witness has further deposed that on the day of her deposition at about 11.10 a.m. prosecutrix 'K', her brother Rakesh, Sushma, Rajesh younger brother of 'K' and wife of Rakesh met her on third floor of Rohini court complex and she asked them to come in the court No. 409 for their testimonies but they told her that they are coming and after 510 minutes she again went to call the above said persons at the third floor but they did not turn up before this court they again asked by her to come before this court for testimony and on the fourth time when she reached there to call them for testimony then one person told her that they will come within five minutes in the court but they did not turn up before the court for testimony and thereafter she searched for them and found the above said persons near the subway at a distance of 200 mtr. from the entry gate of the court complex and apprehended prosecutrix 'K' and brought her before this court for testimony and the other above said persons followed her and also reached outside the court room. (59) In her crossexamination by Ld. Defence Counsels, the witness has deposed that when she met prosecutrix 'K' at the spot she State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 45 found her in an injured condition. The prosecutrix was perplexed and hence she inquired about injuries upon her head on which the prosecutrix told her that she informed her brother about the incident of rape on 05.12.2011 when her brother Rakesh gave beating to her and pushed her and her head struck against the wall. According to her she reached at BJRM Hospital along with prosecutrix 'K' at about 5.30 p.m and after 510 minutes Ct. Sikander brought accused Shibu at the hospital and accused Shibu confessed about his involvement in the commission of rape with 'K'. Witness has denied the suggestion that 'K' refused for her internal examination during her medical examination. Witness has further deposed that they again reached at the spot at about 8.15 - 8.30 p.m. from BJRM Hospital and prosecutrix 'K' did not inform her that during the commission of rape they are four accused. According to her, 'K' family members also did not inform that the four accused persons were involved in the commission of rape upon 'K'. Witness has further deposed that she prepared the site plan at the instance of prosecutrix 'K' and place of incident is an isolated forest area. Witness has denied the suggestion that the place of incident is a residential area of Delhi University students. Witness has denied the suggestion that accused Shibu have been falsely implicated in this case or that he produced himself before the police. According to her she had not found the clothes of the prosecutrix 'K' in torn condition but her clothes were dirty. State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 46 Witness has further deposed that she has not found any incriminating evidence in the seized tempo. Voluntarily stated that accused Shibu told her that she had washed the tempo from inside and outside completely. Witness has denied the suggestion that she has not investigated the case fairly or that falsely implicated the accused Shibu in this case.
STATEMENT OF ACCUSED &DEFENCE EVIDENCE:
(60) After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied. The accused have stated that they are innocent and have been falsely implicated and have done nothing as alleged by the prosecutrix.
FINDINGS:
(61) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also considered the testimonies of various witnesses examined by the prosecution, the material on record and written memorandum of arguments filed on behalf of the accused persons. My findings are as under:
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 47 Identity of the Accused:
(62) In so far as the identity of the accused Shibu is concerned, there is no dispute in this regard. He has been specifically named by the complainant / victim in her complaint to the police and also in her statement under Section 164 Cr.PC recorded before the Ld. Magistrate.
(63) In so far as the identity of the accused Bona @ Manoj, Bhura @ Sukhbir Singh and Hawai Singh, is concerned, they have been named by the victim for the first time in the court and were summoned by the court under Section 319 of Code of Criminal Procedure.
(64) The complainant / victim has identified all the accused persons in the court being previously known to them. I hereby hold that the identity of all the accused i.e. Shibu, Bona @ Manoj, Bhura @ Sukhbir Singh and Hawai Singh, stands established.
Delay in Registration of FIR:
(65) The perusal of the record shows that the incident had taken place in the afternoon / evening hours on 5.12.2011 whereas it was reported to the police only on 6.12.2011 i.e. after almost 24 hours. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 48 the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
(66) In the case of Tulsidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
".....The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is 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."
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 49 (67) Applying the settled principles of law to the facts of present case, it is evident that the sister of he prosecutrix namely Sushma and her brother Rakesh both have given a valid explanation for the delay. The prosecutrix who was found in a shocked condition roaming near the village Dhaka (adjoining to Nehru Vihar jungle) was brought home by her brother Rakesh after which she was repeatedly asked as to what had happened but she refused to disclose anything to anybody. The evidence on record shows that after returning her home with her brother the prosecutrix did not disclose anything to anybody and went off to sleep and it was only on the next day when she became more composed that she informed her sister as to what had happened who in turn informed her brother. Unfortunately it was the prosecutrix who was first thrashed by her brother and she received injuries on her head which were got treated from a private doctor and thereafter the matter was reported to the police. According to the doctors of BJRM Hospital, the said injuries were visible. The circumstances are selfspeaking, the embarrassment and the hesitation felt by the prosecutrix, who did not disclose the incident to anybody at the initial stage, is the main reason for the delay and it is only after she slept at night and in the next day morning when her sister persuaded her she disclosed the incident to her sister. It is writ large that the prosecutrix is a young girl of vulnerable age belonging to a poor family and was extremely State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 50 embarrassed and scared to initially disclose what had happened to her. It is only on the next day that she told her sister about the incident. In view of the above hereby hold that this delay in registration of the FIR of one day is not fatal to the prosecution case. Age of the Prosecutrix:
(68) The prosecutrix in her complaint to the police and also before the court, has given her age as 15 years. However, when the ossification / age determination test of the prosecutrix was got conducted on the directions of this court, her estimated age as on 31.10.2012 has been found to be between 20 to 22 years which report is Ex.PX6 (not disputed by the accused). Since it is this court who has examined the prosecutrix and has seen her personally, I hold that going by her physical appearance the estimated age as given by the Board of Doctors of BJRM Hospital, appears to be correct because even from her physical appearance, she appears to be a major and in any case more than 15 years of age. This being the background, I hold that the at the time of the alleged incident, the prosecutrix was a major.
Medical Evidence:
(69) The medical report of the prosecutrix has been duly proved by Dr. Santosh (PW11) who had proved that the prosecutrix State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 51 was brought to the BJRM hospital and he prepared the MLC Ex.PW11/A. Further, Dr. Seema (PW14) has proved the gynecological examination of the prosecutrix and has deposed that external genitalia was normal, no marks of scratch or trauma were found around the genitalia and hymen was torn. Dr. Seema has also proved that alleged history of sexual assault has been found mentioned in the history given by the prosecutrix herself and hence under the given circumstances it is presumed that hymen was torn on account of the sexual assault.
Forensic Evidence:
(70) PW16 SI Upkar Kaur has proved the forensic report Ex.PW16/D and Ex.PW16/E, which report is not disputed by the accused (even otherwise admissible under Section 293 Cr.PC). The said report shows the presence of human semen on Ex. 2(d) i.e. underwear of the prosecutrix and Ex. '3' i.e. underwear of the accused Shibu. This being the background, I hold that the forensic evidence is compatible to the prosecution case in so far as the accused Shibu is concerned.
Allegations against the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona:
(71) Coming first to the allegations against the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona. It is State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 52 evident that for the first time the prosecutrix has named these three accused in her testimony before the court. The prosecutrix did not name them previously, to the police when her statement was recorded by the police and FIR was recorded despite being known to them. Also, later when her statement under Section 164 Cr.PC was recorded by the Ld. Magistrate, the prosecutrix did not named the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona.
It is for the first time in the court that she has named the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona as the person who were present with the main accused Shibu in the Tempo / DVan / closed TSR when she was taken to the jungle. Admittedly all the above persons are friends of the accused Shibu and the possibility of their false implication cannot be ruled out. Even otherwise the allegations against these persons are that they had forcibly caught hold of her and even slapped her while Shibu raped her as a result of which she also received injuries. The MLC of the prosecutrix does not indicate any signs of struggle though it shows a head injury which the prosecutrix has explained that she suffered when her brother had thrashed her on coming to know of the incident. Therefore, this being the background, benefit of doubt is being given to the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 53 Allegations against the accused Shibu:
(72) The case of the prosecution is that the accused Shibu was residing in the neigbourhood of prosecutrix along with his family and is uncle / chacha in relation to the prosecutrix. In her first statement to the police the prosecutrix has made specific allegations that Shibu had allured and enticed her to accompany him in the DVan / closed tempo and told her that he would take her out for sight seeing on which she accompanied him and thereafter he took her to the jungle of Nehru Vihar where he committed rape upon her and thereafter abandoned her after which she somehow managed to come out of the jungle and was taken home by her brother and on the next date the present case was registered.
(73) The entire case of the prosecution rests upon the testimony of the prosecutrix. Her testimony finds due circumstantial corroboration from the testimonies of other witnesses i.e. Nanak (PW8) who is in fact brother of the accused Bhura. Nanak has duly proved that on 4.12.2011 he had handed over his DVan / TSR to his neighbour Shibu and when he returned on 7.12.2011 he knew that his DVan / TSR was involved in the present case. There is no reason to disbelieve Nanak because Shibu used to frequently use this DVan of Nanak and this Nanak has proved by placing before this court a traffic challan showing that on one occasion when Shibu was driving the DVan, it was involved in a traffic violation. This aspect that it State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 54 was the accused Shibu who had taken the DVan / TSR from the owner Nanak on the date of incident and corroborates the testimonies of the prosecutrix to the extent that she was taken to Nehru Vihar Jungle in a DVan / TSR by the accused Shibu.
(74) The next question which arises is whether the prosecutrix was consenting party who had been taken by the accused Shibu by enticing her and thereafter forcibly committed rape upon her without her consent. The primary evidence against the accused Shibu is the testimony of the prosecutrix. I may observe that conviction can be based upon the sole testimony of the prosecutrix if found credible and truthful. Before evaluating the above statements of the prosecutrix on the touch stone of truthfulness and credibility, it is necessary to briefly discuss the guiding principles of law as laid down by the various Courts. I may observe that the Hon'ble Supreme Court has in the case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 has held that:
"........It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent sources or from State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 55 the circumstances of the case before recording an order of conviction. In the instant case the allegations were that the accused during night entered the prosecutrix room and committed rape on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."
(75) In the year 2006 the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 had observed that:
"...... The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of a victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault and to convict an accused where her testimony inspires confidence and is found to be reliable. It is settled law that corroboration is a condition for Judicial Reliance on the testimony of the prosecutrix and is not a requirement of law but a guidance of Prudence under the given circumstances. Even minor contradiction or insignificant discrepancies in the statement of the prosecutrix cannot be a ground for throwing out, an otherwise reliable prosecution case.
(76) It was further observed by the Hon'ble Court that:
"..... No girl of self respect and dignity who is conscious of her chastity having expectations of State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 56 married life and livelihood would accuse falsely against any other person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at the risk of condemnation and ostracization by the society. It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of girl, at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong to....."
(77) Further, in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 it was observed by the Hon'ble Apex Court that:
"..... In the traditional nonpermissive bounds of society of India, no girl or woman of selfrespect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it was revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 57 he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened her to finish her if she shouted and then forcibly ravished her sexually. A clear case of rape, as defined under Section 375 Clause third of IPC was found established against the accused...."
(78) Also in the case of Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) it was observed by the Hon'ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male chauvinism in a male dominated society.
(79) Applying the above settled principles of law to the facts of present case, it is evident that in so far as the accused Shibu is concerned, the prosecutrix has been most consistent and categorical in respect of the allegations made against him and the following aspects are borne out from the same:
➢ That on 5.12.2011 the prosecutrix 'K' who had studied till class 5th was working as domestic help in the kothis State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 58 in Mukherjee Nagar area.
➢ That in the afternoon when she was going for her work, she reached near Sewa Bharti and was going in the gali on foot, the accused Shibu came there from behind in the DVan / closed TSR.
➢ That she was taken to Nehru Vihar Jungle where she was raped by the accused Shibu in the said DVan. ➢ That the accused threatened the prosecutrix not to disclose the incident to anybody.
➢ That after the prosecutrix came out of the jungle, her brother met her and brought her home but due to fear she did not disclose the incident anybody.
➢ That on the next morning, she disclosed the incident to her sister who in turn informed her brother after which she was thrashed and beaten by him on account of which she sustained head injury for which she received treatment after which they got the present case registered.
(80) The prosecutrix has been exhaustively cross examined by the Ld. Defence Counsel. No doubt material improvements have been made by the prosecutrix with regard to the manner in which the alleged incident had taken place and she for the first time in the court has implicated the accused Sukhbir Singh @ Bhura, Hawai Singh State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 59 and Manoj @ Bona. In her earlier statement and first version, both to the police and the Ld. Magistrate, the prosecutrix did not name any of them despite opportunity. She has also made material improvements with regard to the manner in which the alleged incident had taken place. According to her initial version, she was allured and enticed by the accused Shibu (who is related to her as uncle / chacha), to accompany her. Whereas in her later version she came up with the new story that she was pulled inside the vehicle by the accused persons and after taking her in the jungle she was raped by them. In this regard, I may observe that the Hon'ble Supreme Court had in the case of 'Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat', reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), discussed the reasons as to why there could be discrepancies, contradictions and improvements in the testimonies of the material witnesses which should be ignored. It was observed that :
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 60
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 61 moment.
(81) Applying these principles of law to the facts of the present case, it is evident that the prosecutrix is young girl working as a domestic help coming from a very poor financial strata of the society. She has been sexually assaulted by none else than a person whom she had trusted being related to her i.e. Chacha (Uncle) in relation. The possibility of the prosecutrix having made these improvements regarding being kidnapped and forcibly raped, is only out of fear of looking foolish or of being disbelieved. The first version given by her to the police and to the Ld. MM appears to be authentic, credible and truthful. It is in fact a case where the young prosecutrix was allured by the accused Shibu to accompany him for sight seeing he himself having borrowed a DVan from Nanak. The prosecutrix trusting him, went with him and it was then that she was raped by Shibu. It is this which explains the improvements made by her later.
(82) The absence of consent on the part of the prosecutrix is evident from the fact that when she was brought home after she was found wandering at village Dhaka, her clothes were muddy and she herself was looking scared (according to the testimony of Rakesh and sister Sushma) and on the next day when she informed her sister as to what had happened and her brother came to know of it, it is none else but the prosecutrix who had to face the burnt of her family's anger State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 62 and received injuries on her head when her brother gave her a beating. This explains the kind of fear physiological mechanism which worked in the mind of the prosecutrix. Even after registration of the case and her medical examination, she did not go back home out of fear and was sent to Nari Niketan. It is very common in our society that after a women is exploited by a man on being allured that she is the one who bears the burnt of her family's anger for getting fooled as has also happened to the present case. It is this fear what kept the prosecutrix from returning back to her family for some time even after registration of the case and perhaps it is this which explains why she and her family made improvements and implicated others i.e. only to show that the prosecutrix was kidnapped and she did not accompany the accused voluntarily whereas the fact was that she was allured by the accused.
(83) I may further observe that no doubt prosecutrix accompanied Shibu voluntarily but she did so because the accused who was related to her had promised to take the young girl out for sightseeing but the accused instead sexually assaulted her. The forensic evidence which has come on record undoubtedly establishes that sexual assault had taken place as semen stains were found on both the undergarments of the accused and the prosecutrix. Here I may note that these undergarments were collected after 24 hours of the incident but the prosecutrix in her testimony has explained that in State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 63 the evening after she came home she went sleep and did not speak to anybody and even on the next day wake up late and thereafter informed her sister about the incident. It is natural for a young girl to initially conceal the incident for the fear of social ostracization or to escape the anger of her own family members and perhaps it is for this reason as explained by her sister Sushma (PW10) that it after when she lovingly asked the prosecutrix 'K' on next day as to what had happened that she came out of the embarrassment and disclosed about the incident.
(84) PW10 Sushma the sister of the prosecutrix has corroborated the testimony of the prosecutrix and has stated that on the date of incident the prosecutrix 'K' was wearing black color legging and blue color kurta and when she returned she had marks on her face and clothes are apparently dirty with mud but despite her asking, the prosecutrix kept on crying. I find no reason to disbelieve the testimony of the prosecutrix under the given circumstances in so far as the accused Shibu is concerned.
(85) When the entire incriminating evidence was put to the accused Shibu, he has denied the same and has stated that he was falsely implicated. Why he would have been falsely implicated if he was closely related to the family of the prosecutrix, for which no explanation has been given by the accused Shibu. Under the given circumstances, the following aspects are borne out:
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 64 ➢ The first version given by the prosecutrix to the police and thereafter to the Ld. MM (under Section 164 Cr.C), appears to be correct version.
➢ That the accused Shibu had in fact allured and enticed the prosecutrix to accompany him.
➢ That the accused Shibu being closely related to the prosecutrix, she did not comprehend that he could have sexually exploited her and hence she accompanied him after which she was taken by him to a lonely place i.e. Nehru Vihar jungle where she was raped by him.
➢ That when she came out of the jungle, in the meanwhile her brother Rakesh having come to know from the neighbourhood that his sister (prosecutrix 'K') was found roaming in the Nehru Vihar area, immediately reached there and brought her to his house.
➢ That the prosecutrix did not initially disclose anything to anybody about the incident on account of the threats given by the accused, despite repeated asking by her brother but later on the next morning she confided her sister who further informed her brother. State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 65 ➢ That on coming to know of the incident, the prosecutrix was given a thrashing by her brother and was pushed when her head struck the wall and she sustained injuries after which she was taken to a private doctor for treatment (MLC shows that when the prosecutrix was brought to the hospital, she was having bandage on her head).
➢ Thereafter, complaint was made to the police on the basis of which the present FIR was registered.
(86) I may also bring on record the fact that during trial of the case on 16.8.2012, one self styled Pradhan / Local Neta of the area namely Rajesh tried to prevent the prosecutrix, her sister Sushma and her brother Rakesh coming to the court stating that they should not appear in the court and that he would get the compromise effected. On coming to know of the incident, this court immediately intervened and the said Rajesh who had illegally restrained the victim and her family from coming and deposing in the court and also compelled them to have settlement outside the court, was directed to be proceeded against in accordance with law by the SHO, Police Station Prashant Vihar. The relevant portion of the proceeding sheet dated 16.8.2012 is reproduced as under:
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 66 "Specific allegations have been made by PW9 Rakesh, PW10 Sushma and PW13 'K' against one Rajesh, the local leader / Neta of the jhuggi cluster. They have specifically deposed that they had reached the court at about 10 to 10:30 AM, they found Rajesh a local neta of the Jhuggi cluster, on the third floor who stopped them to come on the fourth floor. They have further informed that this Rajesh compelled to compromise the issues saying faisla kar lo but when they refused, he still insisted stating that they should take a date from the court on the pretext that the prosecutrix was unwell (jab maine mana kiya to wo mujhse jabardasti karene lage, usne kaha ki court mie date le lo). The witness has further informed that when the IO came to them and asked them to come to the court, it was this Rajesh who told the IO that they wold come within five minutes and thereafter he took them outside the court complex and told them to come home when they were apprehended by the police persons on the main road and brought them to the court. It is writ large that Rajesh has used illegal force and pressure on the witnesses and restrained them from reaching to the court for their depositions. I may observe that no person who so ever may be permitted to interfere and obstruct the court of justice and by his conduct and act can influence the witnesses. Rajesh has not only committed an offence which is cognizable and punishable State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 67 under Indian Penal Code but had tried to obstruct the dispensation of justice. No person can be permitted to hold parallel proceedings and once the court of law are ceased of the disputes, any person who tries to interfere by using force or authority, is liable to be proceeded against. In the eyes and ears of the court, any interference to influence the witnesses, pollutes the justice system and court of law cannot be a mute spectator to such acts. At this stage, the SHO Mukherjee Nagar has appeared along with the said Rajesh whom the witnesses Rakesh, 'K' and Sushma who are still in the court have identified as the person who is the local Neta and had stopped them from entering the court. The IO SI Upkar Kaur has also identified Rajesh as the same person who was present along with these witnesses and when she asked them to come to the court, it was this Rajesh who told her that he would sent them to the court within five minutes.
The SHO Mukherjee Nagar is permitted to take Rajesh to the Police Station Prashant Vihar for appropriate action is taken against him in accordance with law under intimation to this court."
(87) This clearly reflects the kind of pressure which was being extended on the prosecutrix and her family and goes to show that all is not well. It is writ large that the prosecutrix and her family had State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 68 been under extreme pressure and threats which threats have been direct as well as indirect and the beneficiaries of the same were none other but the accused persons before this court. (88) In view of my above discussions, I hold that there is no reason to doubt the version given by the prosecutrix as against the accused Shibu. The accused Shibu is held guilty of the offence under Section 376 and 506 Indian Penal Code.
FINAL CONCLUSION:
(89) In the case of Sharad Birdhichand Sarda Vs. 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 only with 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 State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 69 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.
(90) Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Shibu, Bona @ Manoj, Bhura @ Sukhbir Singh and Hawai Singh, stands established. Further, on the basis of the testimonies of the various prosecution witnesses the following facts stand established:
➢ That at the time of the incident, the prosecutrix 'K' was a major i.e. above 18 years of age.
➢ That on 5.12.2011 the prosecutrix 'K' was going for her work as domestic help in the kothis in Mukherjee Nagar area and at about 3:00 PM when she reached near Sewa Bharti and was going in the gali on foot, the accused Shibu came there from behind in the DVan / closed TSR.
➢ That Shibu had borrowed this DVan from Nanak on that day.
➢ That the accused Shibu allured and enticed the prosecutrix 'K' on the pretext of taking her for sight seeing. ➢ That the prosecutrix without suspecting the intent of the accused Shibu who was otherwise related to her, accompanied him.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 70 ➢ That thereafter the accused Shibu took her towards the Nehru Vihar jungle and forcibly committed rape upon her. ➢ That the accused Shibu also threatened the prosecutrix not to disclose the incident to anybody or else he would kill her family members.
➢ That after the prosecutrix came out of the jungle, her brother met her and brought her home but due to fear she did not disclose the incident anybody.
➢ That on the next morning, the prosecutrix disclosed the incident to her sister Sushma who in turn informed her brother Rakesh after which they got the present case registered.
➢ That the prosecutrix was brought to the hospital with alleged history of sexual assault and her hymen was torn. (91) 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 has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence ? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 71 (92) The prosecution has proved the identity of the accused Shibu, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link in so far as the accused Shibu is concerned.
(93) In view of the above, the accused Shibu is hereby held guilty of the offence under Section 376 & 506 Indian Penal Code and accordingly convicted. However, he is acquitted of the charge under Section 363 Indian Penal Code.
(94) In so far as the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona are concerned, it does not stands established that the vehicle in question i.e. DVan/close TSR was being driven by the coaccused Hawai. It also does not stands established that while the accused Shibu was committing rape upon the prosecutrix, the coaccused Bona caught hold of her hands and State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 72 coaccused Bhura caught hold of her legs. Further, it does not stands established that the coaccused Bona and Hawai also tried to commit rape upon the prosecutrix.
(95) In view of the above, I hereby hold that the facts are also are not consistent only with the hypothesis of the guilt of the said accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona.
The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona. The material brought on record by the prosecution are insufficient to hold that each of the accused accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona were guilty beyond reasonable doubt and each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona. Crucially, the material and evidence on the record do not bridge the gap between "may be true"
and must be true" so essential for a court to consider, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona, State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 73 beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 363/366/376 (2) (g) / 506 Indian Penal Code.
(96) Be listed for arguments on sentence qua the convict Shibu on 4.1.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 03.01.2013 ASJ (NW)II: ROHINI
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 74
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 18/2012 Unique Case ID: 02404R0037532012 State Vs. 1. Shibu Jagdish Saran R/o Jhuggi No. N14/238, Munsi Ram Diary, Mukherjee Nagar, Delhi.
(Convicted)
2. Bona @ Manoj S/o Chander Pal, R/o House No. 1501, Gali No. 42, Bangali Colony, Sant Nagar, Burari, Delhi.
(Acquitted)
3. Bhoora @ Sukhbir Singh S/o Mohan Lal, R/o House No. 20, Munsi Ram Colony, Dr. Mukherjee Nagar, Delhi.
(Acquitted)
4. Hawai Singh S/o Ram Prakash, R/o House No. M14/436, Munsi Ram Colony, Mukherjee Nagar, Delhi.
(Acquitted)
State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 75
FIR No. : 412/2011
Police Station : Mukherjee Nagar
Under Section : 376/363/506 Indian Penal Code
Date of conviction: 03.01.2013
Arguments heard on: 4.1.2013
Date of sentence: 4.1.2013
APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the
State.
Convict Shibu in Judicial Custody with Ms. Anubha Kaushal Advocate.
ORDER ON SENTENCE:
Vide a detailed judgment dated 3.1.2013 this Court has held the accused Shibu guilty of the offence under Section 376 & 506 Indian Penal Code and acquitted of the charge under Section 363 Indian Penal Code. Further, the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona, have been acquitted of the charges under Section 363/366/376 (2) (g) / 506 Indian Penal Code.
The case of the prosecution is that on 5.12.2011 the accused Shibu, Hawai Singh, Sukhbir Singh @ Bhura and Manoj @ Bona had kidnapped the minor girl 'K' aged about 16½ years from State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 76 the lawful guardianship of her parents in front of Sewa Bharti Dispensary, Mukherjee Nagar, with intention to seduce her to illicit intercourse and thereafter they took her in an Auto / DVan (closed Auto) in a Jungle at Nehru Vihar and thereafter they committed gang rape upon her without her consent and also criminally intimidated her at the time of committing gang rape upon her by extending threats to her that she would be killed if she disclose the incident to anybody.
However, on the basis of the testimonies of the various prosecution witnesses particularly the prosecutrix 'K', her brother Rakesh, her sister Sushma and also on the basis of the medical, forensic and circumstantial evidence on record, this Court vide its judgment dated 3.1.2013 held the accused Shibu guilty of the offence under Section 376 & 506 Indian Penal Code and acquitted of the charge under Section 363 Indian Penal Code. However, since the prosecution has not been able to prove and substantiate the allegations against the accused Sukhbir Singh @ Bhura, Hawai Singh and Manoj @ Bona beyond reasonable doubt and hence they have been acquitted of the charges under Section 363/ 366/ 376 (2)
(g) / 506 Indian Penal Code.
Heard arguments on the point of sentence qua the convict Shibu. Ld. Counsel appearing on behalf of the convict has State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 77 vehemently argued that the convict Shibu is a young boy of 27years having a family comprising of aged parents, wife, one son & one daughter, one elder brother, one widow sister in law (Bhabhi) and her two children. She has pointed out that the convict is 8th class pass and is a Labour by profession. According to her, the convict is a first time offender and has clean antecedents. She has prayed that a lenient view be taken against the convict.
On the other hand, the Ld. Addl. PP for the State has prayed that a stern view be taken against the convict keeping in view the allegations involved.
I have considered the rival contentions. The minimum punishment provided for the offence under Section 376 Indian Penal Code is imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. In the present case the convict Shibu is a young boy of 27 years and is also related to the prosecutrix being her uncle/ chacha in relation. He has no previous criminal record. I hereby award the following punishment to the convict Shibu:
1. For the offence under Section 376 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of Seven Years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall undergo Simple State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 78 Imprisonment for a period of 15 days.
2. For the offence under Section 506 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of Two Years .
Both the sentences shall run concurrently.
Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 04.01.2013 ASJ (NW)II: ROHINI State Vs. Shibu etc., FIR No. 412/11, PS Mukherjee Nagar Page 79