Rai Sandeep @ Deepu vs State Of Nct Of Delhi

2. The case of the prosecution was that on 15.08.2001 in the night at about 1.30 a.m. the prosecutrix (PW-4) aged about 34 years was in her sister’s house, namely, Seema, that she heard the noise of knocking at the door, that the minor daughter of her sister, namely, Noju (PW-10), opened the door and both the accused persons entered and the accused Rai Sandeep @ Deepu told the prosecutrix that he wanted to have sexual intercourse with her. According to the prosecutrix (PW-4), she rebuked their demand stating that she was not of that type and that the appellants threatened her, that in the meantime one Jitender (PW-11), minor son of her sister Seema appeared and both the minor children asked the appellants to go out of their house but the appellants pushed the minor children into a room and bolted the door of the room from outside. The further allegation of the prosecutrix (PW-4) was that the appellant-Rai Sandeep @ Deepu in Criminal Appeal No.2486 of 2009 made her lie down in the Verandah outside the room and had forcible sexual intercourse with her while his companion, the appellant in Criminal Appeal No.2487 of 2009 was guarding the main door of the house. It was further alleged that after the appellant in Criminal Appeal No.2486 of 2009 had forcible intercourse with the prosecutrix (PW-

4), he took the turn of guarding the door while his companion, the appellant in Criminal Appeal No.2487 of 2009 also had forcible sexual intercourse with her, that both the appellants wiped their private parts with a red colour socks which was lying in the Verandah and while leaving the place of occurrence, they took away a gold chain and a wrist watch which was lying near the TV inside the room. The appellants stated to have left the place by bolting the main door from outside. According to the prosecutrix (PW-4), since it was dark in the night she did not venture to go out at that time and in the morning she asked her nephew Jitender (PW-

11) to get out of the house from roof top and open the door which was bolted from outside. Thereafter, she is stated to have reported the incident to the police.

3. Based on the investigation, the appellants were arrested and thereafter the gold chain and the wrist watch was recovered at the instance of the appellant in Criminal Appeal No.2486 of 2009 and subsequently on his disclosure the appellant in Criminal Appeal No.2487 of 2009 was also arrested. The prosecutrix (PW-4) and the appellants were stated to have been medically examined, that the appellant in Criminal Appeal No.2487 of 2009 refused to participate in the test identification parade, that FSL report of Exhibits were also obtained and the charge sheet was filed for the offence of gang rape. Seventeen witnesses were examined on the side of the prosecution which included the prosecutrix (PW-4) as well as her niece Noju and nephew Jitender, minor children of prosecutrix’s sister Seema who were examined as PWs-10 and 11. PWs 1 and 5 were the doctors who testified the medical report of the prosecutrix (PW-4). PWs-2, 3 and 13 were the doctors who deposed about the medical report of both the appellants. SI Rajiv Shah (PW-14) was the investigating officer. None were examined on the side of the appellants. The appellants have been convicted as stated above and the said conviction having been confirmed by the order impugned in this appeal, the appellants are before us.

8. Keeping the above basic features of the offence alleged against the appellants in mind, when we make reference to the evidence of the so called ‘sterling witness’ of the prosecution, namely, the prosecutrix, according to her version in the chief examination when the persons who knocked at the door, were enquired they claimed that they were from the crime branch which was not mentioned in the FIR. She further deposed that they made a statement that they had come there to commit theft and that they snatched the chain which she was wearing and also the watch from Jitender (PW-11). While in the complaint, the accused alleged to have stealthily taken the gold chain and wrist watch which were lying near the T.V. It was further alleged that the appellant in Criminal Appeal No.2486 of 2009 was having a knife in his hand which statement was not found in the complaint. After referring to the alleged forcible intercourse by both the appellants she stated that she cleaned herself with the red colour socks which was taken into possession under Exhibit PW-4/B in the hospital, whereas, Exhibit PW- 4/B states that the recovery was at the place of occurrence. The police stated to have apprehended the appellants at the instance of Jitender (PW-

9. All the above versions were found in the chief examination of the prosecutrix (PW-4). In her cross examination, there was a U-turn in the version of the prosecutrix where she went to the extent of stating that she never knew the appellant in Criminal Appeal No.2486 of 2009 prior to the incident and that she was not aware that accused Rai Sandeep was also known as Deepu, that she never stated before the police that Jitender (PW-11) knew Deepu prior to the incident or at the time of incident, that since it was dark on the date of occurrence, she could not indentify the accused, that her statement of orally identifying the accused was at the instance of the police. When the learned APP wanted to cross examine her, the same was declined by the crime Court and there was also no re-examination of the prosecutrix (PW-4).

26. Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW-4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants.

27. The prosecution has miserably failed to establish the guilt of gang rape falling under Section 376 (2) (g), IPC against the appellants. The conviction and sentence imposed on the appellants by the trial Court and confirmed by the impugned order of the High Court cannot, therefore, be sustained. The appeals are allowed. The judgment and order of conviction and sentence passed by the trial Court and confirmed by the High Court are hereby set aside. The appellants are acquitted of all the charges and they be set at liberty forthwith, if not required in any other case.

August 7, 2012