Delhi District Court
(Judgment) State vs . Amar @ Amit & Ors. on 24 April, 2018
(Judgment) State Vs. Amar @ Amit & ors.
SC No.85/15
FIR No.196/15
PS : Shalimar Bagh
U/s. 376/506/120B IPC
IN THE COURT OF SH. SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE, SPECIAL FAST TRACK COURT,
NORTHWEST, ROHINI, DELHI
In the matter of:
SC No.85/15
FIR No.196/15
Police Station : Shalimar Bagh
Under Sections : 376/506/120B IPC
State
Versus
1. Amar @ Amit
S/o. Mahipal
R/o. H.No.94,
Gali No.10
Ambedkar Nagar,
Haider Pur, Delhi
2. Nitin @ Rohit @ Akki
S/o. Krishan
R/o. Dessal Pur Village,
District Jhajjar,
PO Noona Majra,
Bahadur Garh,
Haryana ......Accused
Date of FIR : 13.02.2015
Date of institution/committal : 24.03.2015
Charge framed on : 01.06.2015
Arguments heard on : 02.04.2018
Judgment Pronounced on : 24.04.2018
Decision : Acquitted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. Neeraj Pal, Ld. Counsel for accused.
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(Judgment) State Vs. Amar @ Amit & ors.
SC No.85/15
FIR No.196/15
PS : Shalimar Bagh
U/s. 376/506/120B IPC
JUDGMENT
1. Accused Nitin @ Rohit s/o. Krishan and accused Amar @ Amit s/o. Mahipal are facing prosecution herein for the offences u/s.376/506 and 376 r/w. Section 109 IPC respectively.
2. Factual matrix of the matter is that upon receipt of information vide DD No.84B dated 13.02.2015, ASI Suresh Pal alongwith other police officials went to the spot where he met with prosecutrix 'A' (name withheld to protect privacy), who alleged about commission of rape upon her, upon which WSI Sumedha reached at the spot and recorded the statement of prosecutrix. Prosecutrix in her complaint stated that she is married and is residing with her husband and is housekeeper. Prosecutrix says that she knew Rohit and Amar for the last 15 days as both Rohit and Amar wanted to develop friendship with her, however she wanted to have friendship with Amar only because she like Amar. Prosecutrix states that today at 6.00 p.m., Amar met her in street no.8, Ambedkar Nagar, Haider Pur and told her that if she likes him, then she should accompany him for roaming. Prosecutrix says that thereafter Amar took her from outside the street, wherefrom he took scooty from someone and brought her to Shish Mahal Park.
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(Judgment) State Vs. Amar @ Amit & ors.
SC No.85/15FIR No.196/15
PS : Shalimar Bagh U/s. 376/506/120B IPC
3. Prosecutrix further mentioned in her complaint that Amar called Rohit also to come to Shish Mahal Park. After coming of Rohit, he stated to have told prosecutrix that today is 'Kiss Day' and by saying this, he tried to kiss her, to which she resisted. However, Amar told her not to worry as he is his friend and let him do what he wants to do. Prosecutrix says that thereafter Amar left from there. Rohit stated to have called his 4 / 5 friends there, whom prosecutrix was not known. Prosecutrix further alleges that thereafter Rohit sent his friends from there and forcibly established physical relations with her. Prosecutrix alleges that Rohit had threatened her by showing knife that in case, she discloses about the incidence to anyone, he will kill her. Prosecutrix says that thereafter Rohit left the park, leaving her there. In the meantime, she stated to have received call from her husband and she disclosed about the incidence to him. Husband of prosecutrix called the police on 100 number.
4. On the abovesaid complaint of prosecutrix, present case was registered. Prosecutrix was taken to the hospital, where she was medically examined. Prosecutrix however did not get her internally medically examined. Statement of prosecutrix u/s.164 Cr.P.C. was also recorded. Both the accused persons were arrested during the investigation. Proof of age of accused persons was collected and upon completion of investigation, Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
SC No.85/15FIR No.196/15
PS : Shalimar Bagh U/s. 376/506/120B IPC chargesheet was filed against both the accused.
5. Considering the material available on the record, Predecessor of this Court vide order dated 01.06.2015, framed charge for the offences u/s.376/506 IPC against accused Rohit @ Nitin whereas charge u/s.376 r/w. Section 109 IPC was framed against accused Amar @ Amit s/o. Mahipal. To these charges, both the accused pleaded not guilty and claimed trial.
6. In order to substantiate charge, prosecution has examined 17 witnesses:
PW Name of witness Nature of Documents proved witness PW1 HC Jay Chand Duty Officer PW1 has proved the FIR vide Ex. PW1/A and endorsement thereupon as Ex. PW1/B and certificate u/s.65B of Indian Evidence Act qua registration of FIR Ex.
PW1/C. PW2 Ct. Karam Singh Witness of He joined the investigation investigation with IO and at the instance of complainant, accused Amar was arrested vide arrest memo Ex. PW2/A and personal search memo Ex. PW2/B and his disclosure statement was recorded vide Ex. PW2/C and pointing out memo Ex. PW2/D was also prepared in the presence of this witness.Page 17 of 17
(Judgment) State Vs. Amar @ Amit & ors.
SC No.85/15 FIR No.196/15 PS : Shalimar Bagh U/s. 376/506/120B IPC PW3 Dr. Shylaja Doctor, who The witness examined conducted prosecutrix 'A' and medical conducted her medical examination examination vide MLC of prosecutrix Ex. PW3/A. PW4 'A' Prosecutrix/ The complaint made by
complainant the prosecutrix has been proved as Ex. PW4/A;
seizure memo of her clothes, which she handed over to the police as Ex. PW4/B; her statement recorded by Ld. MM u/s.164 Cr.P.C. vide Ex. PW4/C. PW5 Dr. Avanish Tripathi Doctor, The witness has conducted medically examined medical accused Nitin @ Akki @ examination Rohit vide MLC Ex.
of accused PW5/A. The witness
further proved the MLC
of prosecutrix 'A' vide
Ex. PW5/B and
thereafter, she was
referred to SR, Gynae.
PW6 Ct. Pooran Chand Witness of He joined the
investigation investigation with ASI Suresh Pal and went to the spot, where prosecutrix met them and informed them about the commission of rape upon her. Thereafter, ASI Suresh called WSI Sumedha at the spot, who after coming to the spot recorded statement of prosecutrix and got the Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.SC No.85/15 FIR No.196/15
PS : Shalimar Bagh U/s. 376/506/120B IPC case registered through PW6.
PW7 Dr. Lokesh Dharwal Doctor, The witness has
regarding identified the handwriting
initial and signatures of Dr.
examination Jagdeep, JR, who
of prosecutrix examined the prosecutrix in his supervision. He proved the MLC of prosecutrix as Ex.
PW7/A. PW8 Ct. Darvesh Kumar Witness of The witness joined the investigation investigation with IO on 15.02.2015 and in his presence, accused was arrested vide arrest memo Ex. PW8/A. Accused was then taken to the spot and he disclosed about the incidence at the spot and IO recorded disclosure statement of accused.
Thereafter, he took the accused was taken to BJRM Hospital for his medical examination.
PW9 Dr. Jagdeep Doctor The witness on
initially 13.02.2015 was working
examined the as JR in BJRM Hospital
prosecutrix and he initially examined
the prosecutrix vide MLC
Ex. PW7/A.
PW9 Surender Singh Principal of Witness appeared in the
MCD School Court to prove the
admission record
pertaining to the accused.
He proved the admission
form as Ex. PW9/A,
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PS : Shalimar Bagh U/s. 376/506/120B IPC affidavit of father of accused Ex. PW9/B and PW9/C and relevant entry in the admission and withdrawal register of school as Ex. PW9/D. PW11 Ritesh Kumar Owner of Witness deposed that he scooty knew accused for about six years and accused used to borrow his scooty sometimes. On 13.02.2015, accused came to his shop and borrowed his scooty bearing registration no.
DL8SBL3888 at about 7.40 p.m. He deposed that he later came to know that accused had committed some offence while using his scooty and he went to the PS on being called by the police. The scooty and its keys were seized vide seizure memo Ex.
PW11/A. He later got his scooty released on superdari from the Court.
He identified the photographs of his scooty taken from different angles as Ex. PW11/B1 to PW11/B5 respectively.
The scooty has been proved as Ex. P1.
PW12 ASI Anand Singh Proved the The witness has been PCR record posted in CPCR while working in PCR. He has Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC proved the PCR Call Form, which was received from caller Amar Nath Sharma and was received by HC Subhash Singh at call centre of PHQ. The PCR form has been proved as Ex. PW12/A. The certificate u/s.65B of Indian Evidence Act has been proved as Ex.
PW12/B. PW13 Ct. Kaushalya Witness of She joined the investigation investigation with ASI Suresh Pal and Ct. Puran and went to the spot, where they met victim 'A', who upon enquiry disclosed about the commission of rape with her. Thereafter, ASI Suresh Pal made a call to WSI Sumedha, who reached the spot and recorded statement of victim. PW13 alongwith other staff took the victim to BSA Hospital, where her medical examination was conducted. She obtained the MLC of prosecutrix and handed over the same to IO.
PW14 Santosh Teacher The witness has brought the admission record of accused Nitin and proved the same vide Ex.
PW14/A i.e. entry in Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC admission register, whereby proving his date of birth. The admission form has been proved as Ex. PW14/B. PW15 Vinod Kumar Husband of The witness has earlier Sharma prosecutrix got resiled from his previous statement, but upon crossexamination by Ld. Addl. PP for the State, he admitted the facts mentioned in his statement recorded by the police.
PW16 SI Sumedha Investigating She is the IO of this case
Officer and has deposed about
the steps taken by her
during investigation of
this case.
PW17 Dr. R.S. Mishra Doctor, who The witness has been
proved the deputed by MS BJRM
medical Hospital to prove the
examination MLC of accused Amar,
of accused which was prepared by
Amar Dr. Rajesh, who had then
left the hospital. PW17
has proved the MLC of
accused Aman as Ex.
PW17/A and identified
the handwriting and
signatures of Dr. Rajesh,
JR.
7. Upon completion of prosecution evidence, all the incriminating evidence was put to both the accused, to which both the accused denied all the Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC incriminating evidence and have taken the plea that they are innocent and have been falsely implicated in this case. It is stated that a quarrel had taken place between the prosecutrix and her husband on the issue of parking the vehicle and the prosecutrix and accused Amar are residing in the same locality.
8. No evidence was led in defence.
Statement u/s.164 Cr.P.C. of prosecutrix
9. Before I discuss the evidence as come on record, it is appropriate to reproduce herein the statement of prosecutrix recorded u/s.164 Cr.P.C. on 16.02.2015.
"Whenever I used to go to market, two boys namely Rohit and Amit used to tease me. They used to ask for my phone number and for friendship. I did not give my number. Then they took my number by taking my mobile and making a call. Thereafter, day before yesterday in the evening, I was standing in the street, Amit came and asked me to accompany him. He forcibly made me to sit on scooty and then took me to Shish Mahal Park. Thereafter, he made a call to Rohit also. Rohit came there alongwith three / four boys. Amit thereafter left leaving me there. Rohit stayed there with two boys. All of them teased me and Rohit showed me knife and forcibly committed rape upon me. All of them had held me. My husband made a call to me, they all ran away. Then, I sought help and few boys dropped me to my house and then I gave a complaint in PS. I do not want to say anything else."Page 17 of 17
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PS : Shalimar Bagh U/s. 376/506/120B IPC Discussion of evidence
10. Prosecutrix 'A' when appeared in the witness box as PW4, she has testified that both accused namely Amar and Rohit were known to her, 15 days prior to the incidence as both of them wanted to develop friendship with her. PW4 says that she wanted to make accused Amar only her friend. Prosecutrix further says that on 12 or 13.02.2015, at about 6.00 p.m., accused Amar took her to Shish Mahal Park on a scooty. She says that accused Amar told her that today is 'Kiss Day'. She says that thereafter she received a phone call from her husband and she told all the facts to her husband, who got the complaint lodged. Prosecutrix further says that she had spoken against accused persons because of pressure of her husband while her statement was recorded u/s.164 Cr.P.C.
11. Since prosecutrix did not support the prosecution version, therefore she was crossexamined by Ld. Addl. PP for the State. In crossexamination, prosecutrix reiterates that both her husband and father wanted her to withdraw this case as she has to go back to her village. In cross examination however, prosecutrix admits that on 13.02.2015, she met with accused Amar inside Gali No.8, Ambedkar Nagar, Haider Pur and accused Amar told her to join him for a walk. Prosecutrix further admits that she went with the accused and thereafter accused Amar took a scooty Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC from someone and brought her to Shish Mahal Park. Prosecutrix further admits that thereafter, accused Amar called his friend Rohit, who also reached at Shish Mahal Park. Prosecutrix further admits that accused Rohit tried to kiss her and when she tried to protest, accused Amar told her that it does not matter as Rohit is his friend and she should let him to do what he wants. Prosecutrix then further admits that accused Rohit has brought his 4 / 5 other friends and later accused Rohit asked his friend to leave that place and thereafter, accused Rohit established forcible physical relations with her on the pointing out of knife, without her consent. Prosecutrix then also admits that accused Rohit had threatened her and after committing the rape, accused Rohit left the park and fled away. Prosecutrix also admits that thereafter, she received a call from her husband and disclosed about the incidence to her husband. Her husband thereafter called the police at 100 number. Witness also admits giving of statement u/s.164 Cr.P.C. before Ld. MM and also states that she had handed over her clothes, which she was wearing at the time of incidence, to the police.
12. From the above discussion of evidence of the prosecutrix, it is clear that prosecutrix initially did not support the prosecution version, however in crossexamination by Ld. Addl. PP for the State, she simply admitted all Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC the facts, as mentioned in her complaint as well as in her statement u/s.164 Cr.P.C. However, when prosecutrix was crossexamined on behalf of accused persons, prosecutrix has admitted that she has gone to Shish Mahal Park with accused Amar on her own and accused Amar had not pressurised her for going there. Prosecutrix also admits that Shish Mahal Park is a big park and many public persons including children used to come to the park for play and walk. Prosecutrix also admits that watchman also remains available in the park. In a specific question put to the prosecutrix, she had testified that physical relations made with accused Rohit were made with her consent and when she informed her husband about threats extended by the accused Rohit on the pointing out the knife, her husband had scolded her very badly when she returned back home. Prosecutrix however admits that she had given statement to the police only at the instance of her husband. Prosecutrix further admitted that she refused for her internal medical examination.
13. From above discussion of evidence of prosecutrix, it is very much clear that even as per prosecutrix, accused Amar did not establish physical relations with her. Moreover, even regarding accused Rohit, though she had stated in her crossexamination by Ld. Addl. PP for the State that accused Rohit established physical relations with her against her wishes, Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC however in her crossexamination by defence counsel, she stated that such relations were made with her consent. Thus, testimony of prosecutrix is most variable and improved. Firstly, prosecutrix did not support the prosecution story in her examination in chief and was therefore cross examined by Ld. Addl. PP for the Station. But even thereafter, when she was crossexamined by defence counsel, she simply admitted that physical relations were made by the accused Rohit with her consent. This evidence in itself clearly shows that her relations with accused Rohit were with her consent and there was no element of force or without her consent. Even otherwise, if the evidence of prosecutrix is appreciated in totality, it is clear that she being a married woman, admits that she wanted to keep friendship with accused Amar and had voluntarily gone with him to the park. Moreover, it also came in her evidence that Shish Mahal Park is a very big and open park, where many people frequently visit for walk and play. Therefore, her testimony is not very inspiring regarding the alleged incidence of forcibly establishing of physical relations with her by accused Rohit. It is highly improbable that in the open park, prosecutrix was subjected to sexual assault and thereafter, she did not raise any alarm. All these circumstances certainly create doubt about the veracity of the version given by the prosecutrix in the Court. Page 17 of 17
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PS : Shalimar Bagh U/s. 376/506/120B IPC
14. This Court is very much conscious of legal proposition that evidence of prosecutrix does not require any corroboration. However, where the evidence of prosecutrix is shaky and unbelievable on certain material aspects of the matter, in that situation, Court certainly looks for corroboration for conclusively deciding about the guilt of accused persons. After all, it must be borne in mind that prosecution is required to prove its case beyond doubt. In this case, husband of prosecutrix has appeared in the witness box as PW15, but even his evidence is also altogether different and contrary to the prosecution version. PW15 testifies that about two years back, when he was staying at Haider Pur, he called the police of PS Shalimar Bagh at the instance of his neighbours. PW15 says that he had gone for his duties on the date of incidence and returned back to home at 6.00 p.m. and talked with his wife, who was present at home. However, his neighbours told that some persons had established physical relations with her (wife of PW15) therefore, he called the police. Such version of the husband of prosecutrix was altogether different and contradictory and therefore, this witness was declared hostile. In crossexamination by Ld. Addl. PP for the State, PW5 though admitted that he had stated in his statement to the police that he enquired from his wife as to where was she? His wife stated to have told him that Page 17 of 17 (Judgment) State Vs. Amar @ Amit & ors.
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PS : Shalimar Bagh U/s. 376/506/120B IPC she has gone with accused Amar with whom she had friendship. PW15 further says that his wife further told him that accused Amar called his friend Rohit and later accused Rohit established physical relations with his wife against her wishes. However, PW15 when crossexamined by counsel for accused, he again admitted that he called the police only at the instance of his neighbours. He further admits that he does not know about the incidence or the name of accused. Witness further admits that alleged incidence had not taken with his wife and it is only under the pressure of his neighbours that he had called the police at 100 number.
15. Thus, even the evidence of PW15 is most contradictory, full of variations and new facts and therefore unworthy of any reliance. According to PW15, some neighbours pressurised him to call the police at 100 number, this witness failed to give the details of those neighbours. Apparently his evidence is most vague and full of contradictions. Thus, from the above discussion of evidence of prosecutrix and her husband, it can safely be concluded that their evidence is not of sterling quality or cogent to rely upon. Reliance in this regard has been placed on the judgment of Supreme Court in Rai Sandeep Vs. State (NCT of Delhi) (2012) 8 SCC, page 21, State of Rajasthan Vs. Babu Meena (2013) 4 SCC 206, Mohd. Ali @ Guddu Vs. State of UP (2015) 7 SCC 272.
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PS : Shalimar Bagh U/s. 376/506/120B IPC
16. Thus, for the reasons stated above, I find that evidence of prosecutrix is not worthy of any reliance. Consequently, both the accused stand acquitted from the charges. Previous bail bonds and surety bonds of both accused are cancelled. Both the accused are directed to furnish bail bond and surety bond in sum of Rs.10,000/ each in compliance to Section 437A Cr.P.C.
17. File be consigned to Record Room on compliance to section 437A Cr.P.C. Announced in open Court on 24th of April, 2018 (SHAILENDER MALIK) ASJSpecial Fast Track Court NorthWest, Rohini Courts, Delhi Page 17 of 17