IN THE COURT OF DR. [ENTITY], ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI SC NO. [SECTION]7/10 Date of Institution :24.07.200[SECTION] FIR No.[SECTION]6/0[SECTION] Date of Argument :29.05.2012 PS Gandhi Nagar Date of Order :04.06.2012 U/[SECTION] [ACT] Unique Case I.D. No.02402R050736200[SECTION] [ENTITY] Versus Accused 1 [ENTITY] S/o Sh. [ENTITY] R/o Jhuggi No.145, Gali No.12, Chandra Puri, Kailash Nagar, Delhi. 2 [ENTITY] S/o Sh. Qadar Khan R/o E-7[SECTION], Gali No.12, Chandra Puri, Kailash Nagar, Delhi. 3 [ENTITY] S/o Sh. Mohd. Salim R/o 2[SECTION]15/12, Chandra Puri, Kailash Nagar, Delhi. 4 [ENTITY] S/o Sh. Fasiuddin R/o Jahir Nai Ka Makan, Buland Masjid, Shastri Park, Delhi. SC No. [SECTION]7/10 [ENTITY] Vs. [ENTITY] & Ors. Page 1 of 42 JUDGMENT
The facts in brief of the prosecution case are that on 17.04.200[SECTION] at about 11 a.m. at house No.2[SECTION]15/2, Gali No.12, Chanderpuri, Kailash Nagar, Gandhi Nagar, Delhi, accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] in furtherance of their common intention committed house tress pass and robbed [ENTITY] of all her jewellery articles as well as cash amount of Rs.3,000/- and during commission of robbery they caused grievous injury on her when she resisted. Not only that accused persons also outraged her modesty after putting on her nose some stupefying substance and also threatened her to kill if she disclosed this fact to anybody else. Somebody informed the police. A DD No.32B dated 17.04.200[SECTION] in that regard was recorded at PS Gandhi Nagar. SI [ENTITY] was assigned that DD who left for spot with [ENTITY] [ENTITY]. They visited the place of occurrence and found a lady in unconscious condition in that house. He recorded his endorsement and sent constable for recording of FIR. FIR No.[SECTION]6/200[SECTION] dated 17.04.200[SECTION] at PS Gandhi Nagar was recorded. Injured Smt. [ENTITY] was removed to GTB hospital where she was medically examined vide MLC No.C-156[SECTION]/[SECTION] dated 17.04.200[SECTION]. Doctor declared her unfit for statement. During her medical examination doctor handed over vaginal slides, salwar, etc. of prosecutrix to the IO which were sezied by him. IO also prepared site plan of the place of occurrence. The police also seized pillow, bed sheet, towel, jeans, etc. containing blood stains vide seizure memo. The broken bangles (churian) were also seized after putting them in a match box and converted it into a pullinda and sealing it with a seal of M.T. On 1[SECTION].04.200[SECTION] Sh. [ENTITY] husband of prosecutrix made a statement u/[SECTION] [ACT] disclosing that his wife Smt. [ENTITY] told him that [ENTITY] s/o [ENTITY], [ENTITY] and [ENTITY] assaulted, beat and outraged her modesty. On the same day police made inquiries from Smt. [ENTITY] and recorded her statement u/[SECTION] [ACT] She disclosed that on 07.04.200[SECTION] she was alone at her house alongwith her children [ENTITY] and [ENTITY] and her husband had gone to his shop and her another son [ENTITY] had gone to his school. At about 11 a.m. both of his children were sleeping and she was lying with them then a boy [ENTITY] s/o [ENTITY], another tenant of the same house alongwith his three associates [ENTITY], [ENTITY] & [ENTITY] entered her room. [ENTITY] was resident of nearby house and he was a bad character of the area. House of [ENTITY] is situated opposite to the house of [ENTITY] and he was working as steam pressman. [ENTITY] is a friend of [ENTITY] who was residing near the Jhuggis at Shastri Park theka and he used to roam around with [ENTITY] in street No.12. All of them entered in her room and asked her to give all articles and money. She refused to hand over her belongings and money and asked them to go out of the room but they did not go out. [ENTITY] gave a strong fist blow on her left ear. [ENTITY] also slapped her on her ear. Then [ENTITY] picked a belan (an article used for preparation of chapati) and hit on her head. Blood started oozing out. Thereafter [ENTITY] removed kundal from her left ear and [ENTITY] removed kundal of her right ear forcibly. [ENTITY] removed pajeb made of silver from her feet. [ENTITY] picked up her bag and started opening it. In the meantime they took out a white colour cloth and put that on her nose and pushed it. She became unconscious. When she regained her consciousness she found her salwar out of her body. She felt that the said persons committed wrong act forcibly with her. On checking of bag she found Rs.3,000/-, one gold necklace, one gold ring missing from her bag. They had already removed ear rings (balian/kundal). Her nosepin was also found missing. She asked her daughter [ENTITY] to call [ENTITY], a neighbour. Thereafter, many people gathered there. Police also arrived as somebody telephoned the police. Her husband also arrived. Thereafter, she was taken to hospital. She prayed for taking action against [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. [ENTITY] was arrested on the same day and I.O. prepared his arrest memo and personal search memo. IO also got him medically examined in SDN Hospital. On 19.04.200[SECTION] accused [ENTITY] was interrogated and his disclosure statement was recorded. He also took the IO to the place of occurrence and his pointing out memo was prepared. At the pointing out of accused [ENTITY], belan which was used for causing injury on [ENTITY] was also recovered. A sealed pullinda was prepared and it was taken into possession vide seizure memo. The case property was deposited in the malkhana and at the instance of accused [ENTITY], co-accused [ENTITY] was apprehended. His arrest memo and personal search memo were prepared. He was also interrogated and he made a disclosure statement. He also led the police to the place of incident and pointing out memo was prepared. Accused [ENTITY] & [ENTITY] were got examined in the hospital. The pullinda of blood samples which were given by Doctor to the Constable, were prepared and it was seized and case property was deposited in the malkhana. Accused [ENTITY] was interrogated and his disclosure statement was recorded. On 13.05.200[SECTION] Smt. [ENTITY] handed over a complaint to PS Gandhi Nagar which was also signed by her husband. On 14.05.200[SECTION] IO recorded statement of her husband [ENTITY]. Accused [ENTITY] was in custody in another case on 17.05.200[SECTION]. IO interrogated him and recorded his disclosure statement. Accused also took the IO to the place of occurrence and pointing out memo was prepared. Accused [ENTITY] was again interrogated and disclosure statement was recorded. Thereafter, accused [ENTITY] was arrested and his arrest memo and personal search memo were prepared. He was also interrogated and his disclosure statement was prepared. He also led the police party to the place of occurrence. He was also got medically examined in the hospital and the articles i.e. blood sample, semen and pubic hair were also seized which were given under seal of hospital. After collecting the report from FSL, recording of statement of witnesses and on completing the investigation police filed the charge sheet against all the four accused for their trial for the offences punishable u/s [SECTION]
2. Ld. Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to this Court.
3. My Ld. Predecessor vide his order dated 21.10.200[SECTION] opined that prima facie no case was made out u/[SECTION] [ACT] and case u/[SECTION] [ACT] was made out alongwith other offences. He was also of the view that prima - facie case for offences punishable u/[SECTION] [SECTION] [ACT] was made out against them. Therefore, charge against all the accused for the said offences was framed and read over to all of them in vernacular language. All of them pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Smt. [ENTITY] w/o Sh. [ENTITY] as PW1; Sh. [ENTITY] as PW2; [ENTITY] [ENTITY] as PW3; [ENTITY] [ENTITY] as PW4; Dr. [ENTITY] as PW5; [ENTITY] as PW6; [ENTITY] as PW7; Lady [ENTITY] [ENTITY] as PW[SECTION]; [ENTITY] as PW9; W/[ENTITY] as PW9; Dr. [ENTITY], Casualty Incharge, SDN Hospital as PW10; [ENTITY] as PW11; [ENTITY] [ENTITY] as PW12; [ENTITY] [ENTITY] as PW13; [ENTITY] as PW14; Dr. [ENTITY], CMO, [ENTITY] as PW15; Dr. [ENTITY], Senior Resident, GTB Hospital as PW16; Dr. [ENTITY], SR Neuron Surgery, GTB hospital as PW17; Inspector [ENTITY] as PW1[SECTION]; and [ENTITY], MHCM as PW19.
5. After closing of prosecution evidence statements of all the four accused persons were recorded u/[SECTION] [ACT] All the material and incriminating evidence was put to them. All the accused persons denied the correctness of prosecution evidence.
6. Accused [ENTITY] admitted that he was residing near house in gali No.12, Kailash Nagar, Gandhi Nagar, Delhi where PW1 Smt. [ENTITY] w/o Sh. [ENTITY] was residing on 17.04.200[SECTION]. He was also admitted that he was arrested and arrest memo and personal search memos were prepared and he was medically examined by PW15 Dr. [ENTITY] and that his pant, blood sample, semen sample and pubic hair samples were taken. He also admitted that at his instance accused [ENTITY] was arrested but he pleaded that he told the name of [ENTITY] due to fear and beating by the police. He pleaded that he was falsely implicated by police because there had been a quarrel between his mother and sister on many occasions. He either denied rest of the evidence or expressed the ignorance about the same.
7. Accused [ENTITY] also admitted that he was residing in the house where PW1 was residing and that he was arrested by the police and his arrest memo and personal search memo were prepared and he was medically examined by Dr. [ENTITY], PW10 at SDN hospital and that samples of blood, semens and public hair were taken. He also pleaded that he was falsely implicated as there was a quarrel between his brother and uncle of PW1 namely Dr. [ENTITY]. He also either denied or expressed the ignorance about the rest of the evidence.
[SECTION]. Accused [ENTITY] denied the prosecution evidence and pleaded that he does not have any concern and he was even not known to the co- accused. He was falsely implicated as his name was [ENTITY].
9. Accused [ENTITY] admitted that he was neighbour of PW1 and pleaded that there was a professional rivalry between him and [ENTITY].
10. Accused persons examined Smt. [ENTITY] w/o [ENTITY] as DW1; Sh. [ENTITY] s/o [ENTITY] as DW2; and Smt. [ENTITY] w/o Sh. [ENTITY] as DW3.
11. After closing of evidence of both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the [ENTITY] and lengthy arguments addressed by Ld. Defence Counsels for accused persons.
12. On perusal of the file, scrutinizing and evaluating the evidence on record and on considering the arguments, I have formed my opinion which are discussed here in below.
13. It has been argued on behalf of accused persons that prosecution has failed to file and prove any proof that Smt. [ENTITY] ever owned, possessed the alleged jewellery. On perusal of statement of PW1 Smt. [ENTITY] and her husband I find that both of them admitted that they did not have any receipt of jewellery. PW1 even could not told the approximate weight of her jewellery. Thus it stands established in record that prosecution could not prove any document of jewellery allegedly robbed by accused persons.
14. It has been argued on behalf of accused persons that as per prosecution case accused persons used handkerchief to make PW1 unconscious but no such handkerchief was recovered or proved by the prosecution. On perusal of testimonies of prosecution witnesses, I find that there is no evidence regarding recovery of handkerchief therefore, this also stands established on record that prosecution neither could recovered the handkerchief allegedly used by accused persons nor it can be proved on record.
15. It has been further argued on behalf of the accused persons that there was no corroboration of testimony of PW1 regarding sustaining of injuries by PW1 or outraging her modesty by medical evidence.
16. I have perused the MLC Ex.PW5/A of prosecutrix [ENTITY]. It has been mentioned therein that she was complaining of vomiting and there was bleeding from her left ear and there was alleged sexual assault on her. She was referred to [ENTITY] and ENT Department. Portion B of MLC Ex.PW5/A also established that grievous injuries was caused on her body and particularly on her left ear. MLC is silent about commission of sexual assault on her. Thus arguments of Ld. Defence Counsel on the aspect that there was no corroboration of committing of rape of PW1 prosecutrix is convincing.
17. It has been argued on behalf of accused persons that PW1 & PW2 falsely implicated the accused persons as there was enmity between the parties. Ld. Defence Counsel referred some portions of the cross examination of PW1. On perusal of cross examination, I find that she stated that family of accused [ENTITY] resided in the same premises for two months and there was only one hand pump for use by both of them. She denied the suggestion that there used to be quarrel regarding wash of toilet at the hand pump as mother of accused [ENTITY] used to object that. She also admitted that she knew [ENTITY], father of accused [ENTITY] but she denied the suggestion that she falsely implicated [ENTITY] due to enmity. She expressed her ignorance about the fact regarding relations of family of accused persons and Dr. [ENTITY]. PW2 admitted that his wife PW1 used to call Dr. [ENTITY] as Uncle ([ENTITY]). He denied the suggestion that Dr. [ENTITY] is an influential person and in connivance with police officials the accused persons were got falsely implicated. He admitted that some dispute had taken place between his wife and mother of accused [ENTITY] on petty matters of domestic reason. The utensils and clothes were used to be washed commonly by accused persons and his wife. He expressed his ignorance if shopkeeper [ENTITY] who is his neighbour intervened and got settled a dispute between his wife and family of accused persons. The portions of evidence discussed here in above has established that relations between the accused [ENTITY] on one hand and complainant [ENTITY] on the other hand were strained.
1[SECTION]. It has also been argued on behalf of accused persons that there are material contradictions and embellishments in the statements of material prosecution witnesses which create doubt about the truthfulness of prosecution case. On scrutinizing the evidence on record I find contradictions/embellishments on the following points:
Raising of Alarm by Prosecutrix
19. PW1 in her examination in chief deposed inter alia that when she refused to handover her articles to accused they started beating her with fist and blows and kicks. She started weeping and crying. They threatened him that if she will raise alarm they would kill her and her children. In cross examination she once stated that she did not raise alarm but in cross examination conducted on other date she deposed that she raised alarm.
Removal of Jewellery
20. In her statement Ex.PW1/A she told to the police that [ENTITY] removed [ENTITY] from his left ear and [ENTITY] removed [ENTITY] from her right ear. [ENTITY] took off Pajeb (silver) from her feet. [ENTITY] picked up her bag. In the court as PW1, she deposed that [ENTITY] removed pair of her pajeb. [ENTITY] removed her ear rings from her ears. [ENTITY] took out articles from her bag. Thus PW1 omitted the name of accused accused [ENTITY] and instead deposed that her both the ear rings were removed by accused [ENTITY].
Use of Handkerchief
21. In her statement u/[SECTION] [ACT] Ex.PW1/A PW1 stated that when [ENTITY] picked up his bag and started opening it then they put a white colour cloth on her nose and pressed it and she became unconscious. In her statement as PW1 she deposed that accused [ENTITY] took out one handkerchief from his pocket and put the same on her nose and she immediately became unconscious.
22. It has to be seen whether the contradictions referred to here in above are of such nature which create doubt in the truthfulness of prosecution case or these can be ignored?
23. My attention goes to cases reported as Ramesh v. [ENTITY] of Himachal Pradesh, (HP) 2004(4) Crimes 60, wherein the the HP High Court observed:
"15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy."
24. In case of [ENTITY] (Dead) through Duli Chand v. [ENTITY] of Haryana, (SC) 1999(4) R.C.R.(Criminal) 5[SECTION][SECTION] the Apex Court Observed:
9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the [ENTITY] of U.P. v. M.K. Anthony, 19[SECTION]5(1) RCR(Crl.) [SECTION][SECTION] :
AIR 19[SECTION]5 SC 4[SECTION]. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
25. In case of Appabhai and another v. [ENTITY] of Gujarat, AIR 19[SECTION][SECTION] SC 696, the Apex Court observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
26. It has to be seen if minor contradictions and the points discussed here in above have created any doubt about the genuineness of the occurrence under adjudication. After carefully scrutinizing the evidence available on record, and in view of the principles of law laid down in Ramesh v. [ENTITY] of Himachal Pradesh, (HP), (supra), [ENTITY] (Dead) through Duli Chand v. [ENTITY] of Haryana, (supra), and Appabhai and another v. [ENTITY] of Gujarat, (supra), I am of the view that neither the points raised by Ld. Defence Counsels nor the minor discrepancies in the testimonies of the prosecution witnesses could create any dent in the prosecution case particularly when all the material witnesses deposed consistently. Their testimonies have been supported by the police witnesses and corroborated by the Doctors.
27. It has been argued on behalf of Ld. Defence Counsel that I.O. has failed to join any public person as witness in the investigation of present case.
2[SECTION]. I have considered the effect of non joining of public witnesses by the IO. My attention goes to a case reported as Appabhai and another v. [ENTITY] of Gujarat, AIR 19[SECTION][SECTION] SC 696, wherein the Apex Court observed:
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court however must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
29. In view of the observation of the Apex Court reproduced here in above and further that prosecution witnesses corroborated testimonies of each other, I am of the view that non joining of public witnesses by the IO is not fatal to the prosecution case. Except PW1 and PW2 no ill-will or hostility or enmity has been shown or alleged against any of the prosecution witnesses. Therefore, I am of the view that their testimonies are reliable and creditworthy.
30. Let us now examine whether prosecution could established its case against accused persons beyond reasonable suspicion or shadow of doubt.
31. PW1 deposed that she was housewife and used to remain in house and her husband was doing the job of Barber at a shop on 17.04.200[SECTION]. It was around 11 a.m. She was present alongwith her two children at her house. There was no other family member present in the house at that time. Her children were sleeping. Door of the house was not locked from inside. [ENTITY], accused present in the court came inside the house. He started beating her with fist blows and kicks. She started weeping and crying. She threatened her if he will raise alarm they will kill her and her children. Accused [ENTITY] picked up a belan (an article for preparation of chapati) which was lying in the room and hit on her right ear and blood started oozing out from her ear. Two other persons namely [ENTITY] and [ENTITY] came inside her house alongwith [ENTITY]. They also gave her beatings with fist blows and kicks. [ENTITY] removed her pair of pajeb. [ENTITY] removed her ear rings from her ears. [ENTITY] took out articles from her bag kept inside the room namely one necklace, one gold ring, one nose pin and three-four thousand in cash which were there in the bag. Accused [ENTITY] took out one handkerchief from her pocket and put the same upon her nose. Foul smell was coming from that handkerchief. She immediately became unconscious. After sometime she regained consciousness. She found her lower portion naked. She could not find out her salwar on her body. She felt that these persons had committed rape on her. Accused persons, after regaining consciousness, were not found there. She asked her daughter [ENTITY] to bring water from neighbour house. Her neighbour [ENTITY] came and she offered her water and thereafter she went away. In the meantime a telephonic message was received from [ENTITY] (brother of her husband) and she told him that she sustained injuries and requested him to save her. Someone made a call to the police and police arrived at the house. She had also talked with her husband on telephone and also informed him about the sustaining of injuries and asked her husband to save her. Since the date of incident she had not been feeling well. She was in semi conscious condition. She regained consciousness in the hospital on the next date. Police recorded her statement in the hospital. After incident she went to her matrimonial house where mother of [ENTITY] with some other persons approached her for compromise and when she refused, she was threatened. At the request of Ld. Additional Public Prosecutor she was declared hostile as she resiled from portions of her statement. During cross examination she stated that [ENTITY] was not one of the accused persons. She denied the suggestion that four accused persons including [ENTITY] had committed the said offence. She denied the suggestion that she had also told the police that [ENTITY] had removed her ear kundals from her ear. She further denied the suggestion that [ENTITY] was also involved in the incident of rape and robbery with her.
32. PW2 deposed that he was working as a Barber and on the date of incident he had gone to shop. At 12:30 p.m., his brother [ENTITY] informed him that something wrong had happened with his wife. He arrived at the spot and his wife [ENTITY] disclosed about the incident. She also informed that [ENTITY], [ENTITY] and [ENTITY] were involved in the commission of offences. He sent three complaints to SHO, Gandhi Nagar and SSP [ENTITY] on different date. He proved the complaint as Ex.PW2/A, Ex.PW2/B and Ex.PW2/C. Mother of [ENTITY] threatened them to withdraw the case failing which his children will be kidnapped and killed. When he arrived at the house, he saw the condition of his wife and blood was also oozing out from the injuries. She was admitted in the hospital. PW4 deposed that on 17.04.200[SECTION] he was posted at P.S. Gandhi Nagar. On that day, on receipt of DD no.32B he alongwith SI [ENTITY] and [ENTITY] [ENTITY] reached at house No.2[SECTION]15/2, Street No.12, Chander Puri, Kailash Nagar, Gandhi Nagar, Delhi. They found the house hold articles scattered in the room. They also found blood stained pillow and blood stained bed sheet, broken bangles on the floor. The injured was being taken to GTB Hospital. No eye witness met them at the spot. [ENTITY] [ENTITY] was left at the spot for guarding the spot and he went the hospital with IO and collected MLC of victim. She was found unfit for giving her statement. Doctor handed over sealed parcels to him which were handed over to IO.
33. PW9 W/[ENTITY] deposed that on 17.04.200[SECTION] he was posted at PS Gandhi Nagar as Duty Officer from [SECTION] a.m. to 4 p.m. At about 13.16 hours he received a call from wireless control room from [ENTITY] [ENTITY] that one female was lying unconscious on beating, on entering in house No.2[SECTION]15/2, Street No.12, Chander Puri, Kailash Nagar. She recorded the information vide DD No.32B and copy of the same was assigned to SI [ENTITY] who left with [ENTITY] [ENTITY] for the spot for necessary action. He proved the copy of DD as Ex.PW9/A.
34. PW5 deposed that on 17.04.200[SECTION] he was working as CMO, GTB Hospital. On that day Dr. [ENTITY] was working under his supervision as Junior Resident who examined the prosecutrix [ENTITY] aged about 25 years female with alleged history of assault. The patient was referred to [ENTITY] emergency, ENT emergency and Neuro Trauma emergency. He proved her MLC as Ex.PW5/A.
35. PW9 [ENTITY] deposed that on 17.04.200[SECTION] he was working as HC in mobile crime team East district, Delhi. On that day he was called by the IO at house No.2[SECTION]15/2, Street No.12, Chander Puri, Kailash Nagar, Gandhi Nagar, Delhi and on the request of IO, he took [SECTION] photographs of the spot from different angles. Photographs were proved as Ex.PW[SECTION]/A-1 to Ex.PW[SECTION]/A-[SECTION]. He also proved negatives of the photographs as Ex.PW[SECTION]/B.
36. PW1[SECTION] deposed that on 17.04.200[SECTION] he was posted as ASI in the PS Gandhi Nagar. On that day he received DD No.32B, so he alongwith [ENTITY] [ENTITY] arrived at the spot at house No.2[SECTION]15/2, Street No.12, Chander Puri, Kailash Nagar, Delhi. He found crowd at the spot and on inquiry he came to know that a lady [ENTITY] was injured. She was taken to hospital by PCR. He casually inspected the spot which was small room. Mattress was lying on floor and many clothes and pieces of clothes and broken bangles were lying on floor. One blood stained pillow and one blood stained bed sheet was also lying on the mattress. [ENTITY] [ENTITY], Lady [ENTITY] [ENTITY] also arrived there. He tried to search eye witnesses but could not found. Thereafter he alongwith [ENTITY] [ENTITY] and [ENTITY] [ENTITY] went to GTB Hospital after leaving [ENTITY] [ENTITY] at the spot. He obtained MLC of injured [ENTITY]. Doctor opined her as unfit for statement. Injured [ENTITY] was also referred to [ENTITY], ENT and Neuro. Thereafter, he met Doctor of [ENTITY] where a sealed pullinda duly sealed with the seal of the hospital containing salwar and another pullinda containing vaginal swab slide and sample seal were handed over to him and he seized the same vide seizure memo Ex.PW4/C. He waited for her regain her consciousness but Doctor declared her unfit for statement so he prepared rukka on DD No.32B Ex.PW1[SECTION]/A and sent [ENTITY] [ENTITY] to PS for registration of case. He returned at the spot alongwith lady [ENTITY] [ENTITY]. He prepared site plan Ex.PW1[SECTION]/B. He called the crime team at the spot and got the photographs taken of the scene of occurrence. [ENTITY] [ENTITY] also arrived there after registration of the case and he handed over FIR and original tehrir to him. He collected Exhibits, i.e. pillow, bed sheets, bichona and towel vide seizue memo Ex.PW4/A. The pieces of broken bangels were kept in a match box and a pullinda in white cloth was prepared and after sealing with seal of MT, it was seized vide seizure memo Ex.PW4/B. Thereafter, he recorded the statement of photographer [ENTITY] at the spot and returned back to the PS and deposited the case property in the malkhana and recorded the statement of [ENTITY] [ENTITY]. On 1[SECTION].04.200[SECTION], he alongwith [ENTITY] [ENTITY] reached at the GTB Hospital where he found injured [ENTITY] who was declared unfit for statement by Doctor. He recorded her statement and statement of her husband [ENTITY] and returned to the PS where he recorded statement of lady [ENTITY] [ENTITY]. In the evening he was present with [ENTITY] [ENTITY] near Jhuggis Chander Puri. When he received an information that accused [ENTITY] was present in his house. He asked 4-5 passers by to join the investigation but they refused. He alongwith informer and [ENTITY] [ENTITY] reached at Street No.12, Chander Puri, Kailash Nagar, and at the instance of informer apprehended accused [ENTITY] from the street vide arrest memo Ex.PW3/B. His personal search was conducted vide personal search memo Ex.PW3/C. Accused [ENTITY] was sent to hospital with [ENTITY] [ENTITY] for medical examination. [ENTITY] [ENTITY] after return from the hospital produced the accused with MLC and a sealed pullinda containing pant of accused, blood sample, semen sample, and pubic hair duly sealed with the seal of hospital. He seized these articles vide seizure memo Ex.PW1[SECTION]/C and deposited the same in the malkhana and recorded statement of [ENTITY] [ENTITY].
37. PW1[SECTION] further deposed that on 17.05.200[SECTION] the investigation was again assigned to him. He interrogated accused [ENTITY] in the presence of [ENTITY] [ENTITY] and recorded his statement Ex.PW4/I. Accused [ENTITY] took them to the place of occurrence and pointing out memo Ex.PW4/J was prepared. After returning to PS, she was again interrogated and her disclosure statement Ex.PW1[SECTION]/E was recorded. At the pointing out of accused [ENTITY] co -accused [ENTITY] was arrested vide arrest memo Ex.PW12/A and his personal search was conducted vide seizure memo Ex.PW12/B. Accused [ENTITY] was also interrogated and he made a disclosure statement which was recorded as Ex.PW12/C. He also pointed out the place of occurrence vide pointing out memo Ex.PW12/C. Both the accused persons were got medically examined through [ENTITY] [ENTITY] and [ENTITY] [ENTITY] and after medical examination they produced accused alongwith MLCs and parcels of blood samples, semen sample and pubic hair alongwith sample seal. These articles were seized vide seizure memo Ex.PW12/C and the same were deposited in the malkhana. On 17.06.200[SECTION] [ENTITY] gave a written complaint against accused [ENTITY] at PS which was placed on file. On 1[SECTION].06.200[SECTION] Exhibits were sent to FSL Rohini through [ENTITY] [ENTITY]. He identified correctly all the accused namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY] in the court.
3[SECTION]. PW3 [ENTITY] [ENTITY] corroborated the prosecution case by further proving disclosure statement of accused [ENTITY] as Ex.PW3/A, his arrest memo as Ex.PW3/B, personal search memo as Ex.PW3/C and pointing out memo as Ex.PW3/D.
39. PW1[SECTION] further deposed that on 19.04.200[SECTION] accused [ENTITY] was taken out from the lock up. He was interrogated in the presence of [ENTITY] [ENTITY]. His disclosure statement Ex.PW3/A was recorded. Accused [ENTITY] took them at the spot and at his instance he prepared pointing out memo Ex.PW3/D. Thereafter, accused [ENTITY] got recovered a belan from the slab (tand) of the house of injured [ENTITY]. He prepared a pullinda of said Belan and took into possession vide seizure memo Ex.PW1[SECTION]/D. At the instance of accused [ENTITY] co-accused [ENTITY] was apprehended from house No.2[SECTION]15/2, Street No.12, Chander Puri, Kailash Nagar, vide arrest memo Ex.PW4/F. His personal search was conducted vide personal search memo Ex.PW4/G. He was interrogated and his disclosure statement Ex.PW4/D was prepared. Accused [ENTITY] also pointed out a place of incident and pointing out memo Ex.PW4/E was prepared. Thereafter, accused [ENTITY] and [ENTITY] were sent to hospital for their medical examination with [ENTITY] [ENTITY] and [ENTITY]. After medical examination [ENTITY] [ENTITY] handed over MLCs of both the accused persons and sealed pullindas of blood sample and pubic hair and another pullinda also with sample seal of the hospital. These wee also seized vide seizure memo Ex.PW4/H. These articles were also deposited in the malkhana. [ENTITY]ment of prosecution witnesses were recorded.
40. PW1[SECTION] further deposed that on 20.04.200[SECTION] accused [ENTITY] was taken out from lock up and he was interrogated. He made disclosure statement Ex.PW13/A. On 13.05.200[SECTION] D.O. handed over a typed complaint of [ENTITY] injured at PS. It was also signed by her and her husband, besides, putting her thumb impression. On 14.05.200[SECTION] he called [ENTITY] & recorded his statement at the PS.
41. PW7 deposed that on 16.05.200[SECTION] he was posted at PS Gandhi Nagar as Duty Officer. On that day [ENTITY] [ENTITY] informed him that he alongwith [ENTITY] [ENTITY] had arrested accused [ENTITY] in the present case. DD no.11A as Ex.PW7/A in this regard was recorded. He sent HC [ENTITY] at Mahavir Swami Park.
42. PW11 deposed that on 16.05.200[SECTION] he was posted at PS Gandhi Nagar. On that day duty officer gave him DD No.11A regarding apprehending of accused [ENTITY] by [ENTITY] [ENTITY] and [ENTITY] [ENTITY] at Mahavir Swami Park, Kailash Nagar, Gandhi Nagar, Delhi. He arrived there and after making inquiries from the accused [ENTITY] present in the court he arrested him vide arrest memo Ex.PW11/A and his personal search was conducted vide personal search memo Ex.PW11/B. Accused [ENTITY] was sent to SDN hospital where he was got medically examined. [ENTITY] [ENTITY] produced three small bottles having seal of CMO, SDN hospital and one sample seal. He sealed these articles vide seizure memo Ex.PW11/C. He also recorded statement of [ENTITY] [ENTITY].
43. PW12 [ENTITY] [ENTITY] corroborated the statement of PW11 and deposed on the same line and inter alia proved arrest memo of accused [ENTITY] as Ex.PW12/A and his personal search memo Ex.PW12/B. He was interrogated by IO and his disclosure statement Ex.PW12/C was recorded. He also pointed out the place of commission of crime and a pointing out memo Ex.PW12/C was prepared. He also proved seizure memo Ex.PW12/C
44. PW6 proved the copy of FIR as Ex.PW6/A and endorsement on rukka as Ex.PW6/B. PW[SECTION] further corroborated the statement of prosecutrix in her presence.
45. PW10 proved MLC dated 17.05.200[SECTION] of [ENTITY] as Ex.PW10/A; MLC dated 16.05.200[SECTION] of [ENTITY] as Ex.PW10/B. PW15 proved MLC dated 1[SECTION].04.200[SECTION] of accused [ENTITY] as Ex.PW15/B.
46. PW10 & PW15 inter alia deposed that there was nothing to suggest that accused [ENTITY] & [ENTITY] could not perform sexual intercourse.
47. Having discussed the evidence on record let us examine whether the prosecution has successfully proved its case against all the accused or it could prove only against some of the accused. Let us examine case of prosecution accused-wise.
[ENTITY]
4[SECTION]. Although prosecutrix in her statement Ex.PW1/A recorded by police u/[SECTION] [ACT] and in her complaint dated 13.05.200[SECTION] Ex.PW2/A deposed that accused [ENTITY] was one of the assailants in commission of the above mentioned offences yet when he deposed in the court he did not implicate accused [ENTITY]. Her examination in chief is totally silent about accused [ENTITY]. Rather in cross examination conducted by Ld. Additional Public Prosecutor after declaring her hostile she exonerated accused [ENTITY] by stating that she did not state that the person who were entered in her house were including [ENTITY]. She expressed her ignorance if house of [ENTITY] was situated near house of [ENTITY]. She denied the suggestion that she did not name [ENTITY] as an accused as she made compromise with his parents. Similarly statement of PW2 is also silent about the involvement of accused [ENTITY] in commission of crime in cross examination conducted by counsel for accused [ENTITY]. He admitted that his wife did not tell name of [ENTITY] for his presence at the time of incidence.
49. Disclosure statement Ex.DW4/D made by accused [ENTITY] is not admissible in evidence as it is hit by [SECTION] of the [ACT], as nothing consequent upon disclosure statement was recovered that could have made his disclosure statement admissible as provisions of [SECTION] of the [ACT]. PW1[SECTION] in cross examination admitted that nothing was recovered consequent upon disclosure statement of accused [ENTITY]. Pointing out memo Ex.PW4/E is also not admissible in evidence as place of incident was already in the knowledge of police officials in whose presence the place of incident was pointed out and pointing out memo was prepared.
50. Consequent upon above reason and discussion, it is held that prosecution has failed to prove its case against [ENTITY] that he either committed all or any of the above mentioned offences.
[ENTITY], [ENTITY] and [ENTITY]
51. On analyzing and evaluating the evidence on record, I come to the conclusion that prosecution has successfully proved its case against accused [ENTITY], [ENTITY] and [ENTITY]. The reasons which support my decision are firstly that prosecutrix deposed in the court incriminating them as to how they entered into her house gave beating to her, robbed her articles, caused injuries on her body and outraged her modesty after intimidating her. The relevant portion of her testimony has already been discussed here in above. There is nothing in her cross examination which could give any benefit to these three accused persons.
52. Secondly, her testimony has been supported by her husband Sh. [ENTITY]. PW2 who deposed that his wife disclosed name of these three accused persons as assailants.
53. Thirdly, in the MLC Ex.PW5/A, it has been mentioned that there was bleeding from her left ear. She omitted twice. At portion B of Ex.PW5/A, it has been opined by Doctor that she sustained grievous injuries. Ex.PW1/D2 has also established that she was having history of giving some stupefying drugs. The testimony of PW1 coupled with the testimonies of doctors PW5 and PW17 have proved that on the body and mind of PW1 mental hurts by putting, stupefying or intoxicating drugs were caused, in addition to causing physical grievous injuries on her ear and other part of her body.
54. Fourthly, the FSL report dated 16.02.2009 which is admissible in evidence in view of provisions of [SECTION] of the [ACT], here in after referred to as the Code, has further supported the prosecution case as it has been mentioned in the report that human blood was found on Ex.PW2/A, lady's shirt Ex.PW4/A, pillow cover Ex.PW4/B, towel Ex.PW4/C, piece of cloth Ex.PW4/D, bed cover Ex.PW4/E, bed sheet Ex.PW4/F, another bed sheet Ex.PW4/G.
55. Fifthly, the disclosure statement of accused [ENTITY] Ex.PW3/A is also admissible in evidence as the belan used for causing injuries on the ear of prosecutrix was recovered from the slab/tand of the room of the prosecutrix. This portion of his disclosure statement is admissible u/[SECTION] of the [ACT] as he led the police party to the room of the prosecutrix and got recovered the belan from the place where he had thrown it.
56. My decision on this point got support from a case [ENTITY]am @ [ENTITY] v. [ENTITY] of Haryana (P&H), 2006 (1) 2006 Cri. L.J. [SECTION]52, wherein it was observed by Punjab & Haryana High Court that:
"Recovery of looted money and car as a result of disclosure statement of accused persons relates to the conduct of accused and recoveries got effected by accused are admissible in evidence u/[SECTION] & [SECTION] of [ACT]."
57. Sixthly, all the three accused persons have been pleading that there was enmity between the parties i.e. prosecutrix and accused and their families. DW3 Smt. [ENTITY] also deposed regarding enmity. Thus there was a motive for commission of offence by the three accused persons on the prosecutrix.
5[SECTION]. The arguments of Ld. Counsel of these accused persons that these accused persons were falsely implicated by prosecutrix is not convincing because it was not feasible for the injured to inflict on herself such types of injuries which were found on her body and mentioned in the MLCs referred to here in above.
59. The testimony of DW1 & DW2 is not convincing as they completely denied having any kind of incident or quarrel on the date of incident. Their testimonies have been belied by other prosecution witnesses.
60. The arguments of Ld. Defence Counsels that non production of documents of jewellery and non recovery of handkerchief have demolished the prosecution case, will also not provide any benefit to the accused in the present case as the people generally do not possess the documents of jewellery and it is not always possible by I.O. to recover each and every article relating to the crime.
61. In view of the above reasons and discussion, it is held that prosecution has successfully proved its case against accused [ENTITY], [ENTITY] and [ENTITY] for the said offences.
Summary of Conclusions
62. Consequent upon the above reasons, discussion and evidence on record, and particularly discussed here in above, it is held that prosecution has proved its case against accused [ENTITY], [ENTITY] and [ENTITY] that they, in furtherance of their common intention, committed the offence of causing grievous injury, injury by administrating of stupefying substance punishable u/[SECTION] [ACT], attempt to commit culpable homicide of prosecutrix punishable u/[SECTION] [ACT] after house trespassing into her house punishable u/[SECTION] [ACT]; robbery of her articles punishable u/[SECTION] [ACT], outrage of her modesty punishable u/[SECTION] [ACT]; and threatened her to kill punishable u/[SECTION] [ACT] read with [SECTION] [ACT]. Accordingly, accused [ENTITY], [ENTITY] and [ENTITY] are held guilty and convicted for the offences punishable u/s [SECTION]
63. It is further held that as prosecution has failed to prove its case against accused [ENTITY] beyond any suspicion and reasonable doubt therefore, accused [ENTITY] is entitled to get benefit of doubt and resultantly he is acquitted for the offences punishable under [SECTION] [ACT].
64. However, he is directed to furnish his personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of [SECTION] of [ACT] for a period of six months for ensuring his presence before the Appellate Court.
65. Accused [ENTITY], [ENTITY] and [ENTITY] are on bail. They be taken into custody.
Announced in the Open Court on 04.06.2012 (DR. [ENTITY]) Additional Sessions Judge-02,East Karkardooma Courts, Delhi IN THE COURT OF DR. [ENTITY],ADDITIONAL SESSIONS JUDGE-02,EAST DISTRICT,KARKARDOOMA COURTS, DELHI PS Gandhi Nagar U/[SECTION] [ACT] [ENTITY] Versus [ENTITY] & Others ORDER ON SENTENCE 05.6.2012 Present: Sh. [ENTITY], Addl. P.P. for the [ENTITY].
All the three accused/convicts are present in J/C. Sh. [ENTITY], Adv. for accused Mohd.
[ENTITY] and [ENTITY].
Sh. [ENTITY], Adv. for accused [ENTITY] I have heard arguments on the quantum of sentence and perused file.
2. It has been argued on behalf of convict/accused [ENTITY] that he is a young boy of 2[SECTION] years of age; he has not been previously convicted and no other case is pending against him; he has a family and old parents to maintain and he is sole bread earner of his family. It has been prayed that lenient view in sentence may be taken.
3. It has been argued on behalf of convict/accused [ENTITY] that he is an unmarried boy of 26 years of age; he has family and old parents to maintain; he has not been previously convicted and no other case is pending against him. It has been prayed that lenient view in sentence may be taken.
4. It has been argued on behalf of convict/accused [ENTITY] that he is a young boy of 26 years of age, he has family including a widow mother, wife and two children to maintain and he is sole bread earner of his family. It has been prayed that lenient view in sentence may be taken.
5. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that no leniency should be taken in the present case and deterrent punishment may be awarded to the accused persons.
6. Keeping in view the submissions and all relevant facts and circumstances of the present case, it would be just and proper if moderate view is taken in awarding sentence to the accused/convicts. I am of the view that none of the accused/convicts is entitled for getting the benefit of [ACT].
7. Accordingly, each of the Convicts/accused namely [ENTITY], [ENTITY] and [ENTITY] is sentenced to undergo Rigorous Imprisonment for the period of three years and each of them is sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for six months for the offence punishable under [SECTION] [ACT].
[SECTION]. Each of the Convicts/accused namely [ENTITY], [ENTITY] and [ENTITY] is further sentenced to undergo Rigorous Imprisonment for the period of three years and each of them is sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for six months for the offence punishable under [SECTION] [ACT].
9. Each of the Convicts/accused namely [ENTITY], [ENTITY] and [ENTITY] is further sentenced to undergo Rigorous Imprisonment for the period of nine months and each of them is sentenced to pay a fine of Rs.2,000/- in default simple imprisonment for three months for the offence punishable under [SECTION] [ACT].
10. Each of the Convicts/accused namely Mohd.
[ENTITY], [ENTITY] and [ENTITY] is further sentenced to undergo Rigorous Imprisonment for the period of nine moths and each of them is sentenced to pay a fine of Rs.2,000/- in default simple imprisonment for three months for the offence punishable under [SECTION] [ACT].
11. Each of the Convicts/accused namely [ENTITY], [ENTITY] and [ENTITY] is further sentenced to undergo Rigorous Imprisonment for the period of three years and each of them is sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for six months for the offence punishable under [SECTION] [ACT].
12. Each of the Convicts/accused namely [ENTITY], [ENTITY] and [ENTITY] is further sentenced to undergo Rigorous Imprisonment for the period of nine months and each of them is sentenced to pay a fine of Rs.2,000/- in default simple imprisonment for three months for the offence punishable under [SECTION] [ACT].
13. All the sentences will run concurrently.
14. It is further ordered that if convict/accused [ENTITY], [ENTITY] and [ENTITY] have undergone any period in judicial custody, that period will be set off against the sentence as provided U/[SECTION] [ACT]
15. If fine is recovered from the accused/convicts, a sum of Rs. 25,000/- will be payable as compensation to the injured/victim of crime after the expiry of period of appeal.
16. The convict/accused [ENTITY], [ENTITY] and [ENTITY] be sent to imprisonment to serve the sentence.
17. A copy each of judgment and order on sentence is supplied to convict/accused [ENTITY], [ENTITY] and [ENTITY] free of cost.
File be consigned to the Record Room.
Announced in the open court on 5th day of June, 2012 (DR. [ENTITY]) Additional Sessions Judge-02 East District,KKD Courts, Delhi