State Nct Of Delhi vs Kiran @ Kishan on 12 June, 2017

$~6 7 (common order)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th June, 2017
+ CRL.A. 793/2014

MONIKA ….. Appellant
Through: Mr. Rajat Bali, Advocate along with
appellant produced from JC.

versus

STATE NCT OF DELHI ….. Respondent
Through: Ms. Aashaa Tiwari, APP for the State.
SI Satish Yadav, PS Dwarka North.
+ CRL.A. 787/2016

STATE NCT OF DELHI ….. Appellant
Through: Ms. Aashaa Tiwari, APP for the State.
SI Satish Yadav, PS Dwarka North.

versus

KIRAN @ KISHAN ….. Respondent
Through: Mr. Joginder Tuli, Amicus Curiae.
CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

JUDGMENT (ORAL)

1. On 07.05.2012, at about 2:35 p.m. upon intimation being
received through Police Control Room (PCR), daily diary entry no.15-
A was recorded at 2:35 p.m. in Police Station Dwarka Noth (Police
Station) about some quarrel in the area of A Block, Sector 15, near

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Mother Dairy booth. Upon inquiry being made, Sub Inspector Umesh
Kumar (PW-15) met one Arun Tiwari (PW-8) who informed that a
girl wanted to lodge a complaint and had gone into house No.E-202,
Bharat Vihar, Sector 15, Dwarka. PW-15 proceeded to the said house
and came across a girl (PW-6), aged about 19 years, a native of
District Sidhi in Madhya Pradeh. The questioning of PW-6 revealed
that she, besides two other girls (PW-7 and PW-14), also of same
District of Madhya Pradesh had been victims of forcible sexual
intercourse. PW-15 brought the said girls to the Police Station and the
matter, for further inquiry, was handed over to Sub Inspector Nirmal
Sharma (PW-19). PW-19 (the investigating officer) recorded the
statement of the first mentioned girl (PW-6) vide Ex.PW-6/A which
revealed that all the three girls had been victims of offences of rape,
they having allegedly been seduced from their native place, and
subjected to criminal intimidation, so as to be forced into sexual
intercourse wherein the appellant Monika @ Rita Singh (Criminal
Appeal No.793/2014) being wife of Kiran @ Kishan, respondent in
State appeal (Criminal Appeal No.787/2016), having abetted the latter,
he also having indulged in the offence of rape, besides co-convict
Balram (Criminal Appeal No.190/2014). The girls were sent up for
medical examination, their statements including under Section 164 of
the Code of Criminal Procedure, 1973 (Cr.P.C.) having been recorded
before the Metropolitan Magistrate.

2. On conclusion of investigation, report(s) under Section 173
Cr.P.C. were laid in the court of Metropolitan Magistrate seeking trial
of four persons including appellant Monika and her husband Kiran @

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Kishan, the others being Balram (appellant in Criminal Appeal
No.190/2014) and Pooja (since acquitted).

3. Upon the case being committed to the court to sessions, charge
was farmed against Balram for offence punishable under Sections 376
and 506 of the Indian Penal Code, 1860 (IPC), the gravamen being of
he having criminally intimidated PW-6 and having committed rape
upon her on the night intervening 03.05.2012 and 04.05.2012 in an
unknown property within the jurisdiction of the Police Station and he
also having facilitated, aided and abetted rape by Kiran @ Kishan on
the other two girls, they being PW-7 and PW-14.

4. Pooja was put on trial on the charge for offences punishable
under Section 109 IPC and Section 6 of the Immoral Traffic
(Prevention) Act, 1956 on the allegations of she having wrongfully
detained PW-6 in a room of the property rented out by her and having
aided and abetted her rape, besides on the accusations constituting
offence under Section 3 of the Immoral Traffic (Prevention) Act, 1956
for keeping or managing a brothel house in the said tenanted room.

5. Appellant Monika @ Rita Singh was put on trial similarly for
the offence of abetment of rape under Section 109 IPC by appellant
Balram and her husband Kiran @ Kishan, vis-à-vis PW-6, PW-7 and
PW-14.

6. Kiran @ Kishan could not be immediately apprehended. He
was arrested on 27.12.2012 and brought to trial on the basis of
supplementary charge sheet, formal charge having been framed
against him on 22.02.2013 for offences punishable under Sections 376
and 506 IPC, the gravamen whereof was that on 03.05.2012 he had

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committed rape against PW-7 and PW-14, having threatened the girls
with death and, thus, having subjected them to criminal intimidation.

7. A joint trial of all the four persons was held in the course of
which the prosecution examined, in all, twenty three witnesses
namely, ASI Sanjeev (PW-1); WHC Usha Rani (PW-2); Ajay Singh
Shekhawat (PW-3); Lady Const. Sumitra (PW-4); Dr. Soma Mitra,
(PW-5); the first prosecutrix (PW-6), the second prosecutrix (PW-7);
Arun Kumar Tiwari (PW-8); Lady Constable Mukesh (PW-9); Ajay
Kumar (PW-10); Dr. Uday Kumar Singh (PW-11); HC Mahavir (PW-

12); HC Bijender (PW-13); the third prosecutrix (PW-14); SI Umesh
Yadav (PW-15); Lady Const. Deepa (PW-16); Inspector Naresh
Kumar (PW-17); HC Sat Narayan (PW-18); WSI Nirmal Sharma
(PW-19); HC Yudhvir Singh (PW-20); ASI Rajender Singh (PW-21);
Constable Ved Prakash (PW-22) and SI Monika (PW-23).

8. By judgment dated 07.12.2013, Pooja and Kiran @ Kishan were
acquitted. Appellant Monika was held guilty and convicted for
offence punishable under Sections 109/376 IPC and, by order dated
16.12.2013, she was awarded rigorous imprisonment for seven years
with fine of Rs.20,000/- and in default further imprisonment for nine
months, with benefit under Section 428 Cr.P.C. Balram was also held
guilty and convicted for the offence under Section 376 IPC, he having
been sentenced to undergo rigorous imprisonment for ten years with
fine of Rs.30,000/-.

9. The criminal appeal (Criminal Appeal No.793/2014) of Monika
@ Rita Singh and the State appeal (Criminal Appeal No.787/2016) of
the State challenging the acquittal of Kiran @ Kishan have come up

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together for hearing against the above backdrop.

10. Mr. Rajat Bali, counsel for the appellant Monika @ Rita Singh
and Ms. Aashaa Tiwari, Additional Public Prosecutor for the State and
Mr. Joginder Tuli, appointed as Amicus Curiae for respondent Kiran
@ Kishan, have been heard at length. The trial court record has been
perused.

11. Whilst it is true that in their respective statements before the
police under Section 161 Cr.P.C., and before the Magistrate under
Section 164 Cr.P.C., PW-6, PW-7 and PW-14 had made allegations
against all the four persons who were sent up for trial including
appellant Monika @ Rita Singh and respondent Kiran @ Kishan, on
close scrutiny of the evidence adduced at the trial, it is noted that there
is no substantive evidence brought on record to incriminate appellant
Monika @ Rita Singh or respondent Kiran @ Kishan. The evidence of
the three girls, PW-6, PW-7 and PW-14, as given in the court, clearly
brings out that all of them were brought from their native place by
some third person, they eventually having reached the house of
Monika @ Rita Singh in Delhi where she was living with her husband
Kiran @ Kishan. It is clear from their court testimonies that the
purpose of the girls coming to Delhi, and finding shelter in the house
of Monika, was essentially to find some gainful employment.

12. The evidence of the three girls in the court reveals that on the
date in question they had been sent out by Monika so that they could
visit local weekly bazar (Shani Bazar). It is from there that they
appear to have been accosted by some persons, allured so as to be
taken to some other place where the sexual assault statedly took place.

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Since the co-convict Balram (Criminal Appeal No.190/2014) is not
pressing his appeal for hearing today, his counsel seeking adjournment
on the ground he is not ready, this court refrains at this stage from
making any observations with regard to allegations made against him
or the role attributed to him.

13. Be that as it may, in the court, none of the three girls (PW-6,
PW-7 and PW-14) made any allegations whatsoever vis-à-vis
appellant Monika @ Rita Singh. PW-6 spoke about she having been
subjected to rape but there is no role attributed in that regard either to
appellant Monika @ Rita Singh or to her husband Kiran @ Kishan.
PW-7 and PW-14, on the other hand, are totally silent with regard to
allegations constituting the offence of rape, criminal intimidation or
abetment.

14. It would be relevant to mention here in this context, that the
evidence also reveals that the appellant Monika @ Rita Singh and her
husband, respondent Kiran @ Kishan, were living in a rented
accommodation. The evidence further reveals that they had a dispute
with their landlord who wanted to have the rented accommodation
vacated forthwith. The evidence of the three prosecutrix girls shows
that while Monika @ Rita Singh had sent them out to visit the local
weekly bazar, she had stayed back to look after her belongings in the
house which she was expected to vacate. The statement, as made
originally to the police, would further reveal that when appellant
Monika @ Rita Singh later learnt about the forcible sexual intercourse
against the girls, she had picked up quarrel with her husband. This
would rather show that she could not have been a party to the design,

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if there was one entertained by any one, for the girls who had taken
shelter in her house to be subjected to forcible sexual intercourse. This
would take the steam out of charge of she aiding or assisting or
abetting any person involved.

15. In the above facts and circumstances, it is difficult to affirm the
findings returned by the trial court vis-à-vis appellant Monika @ Rita
Singh. Thus, the conviction of Monika @ Rita Singh for offence
punishable under Section 109 read with Section 376 IPC will have to
be set aside.

16. Since the evidence adduced in the court does not incriminate
respondent Kiran @ Kishan in any of the offences, with which he was
charged, the State appeal seeking his conviction cannot be allowed.
After all, the statements made during investigation under Section 161
Cr.P.C. or under Section 164 Cr.P.C. cannot be treated as substantive
evidence.

17. For the foregoing reasons, the Criminal Appeal No.793/2014 of
appellant Monika @ Rita Singh is allowed. The impugned judgment to
the extent it found her guilty and convicted her and the order on
sentence whereby punishment was awarded to her are set aside. She
shall be released from custody forthwith, unless she is required to be
detained in any other case.

18. The Criminal Appeal No.787/2016, filed by the State against
respondent Kiran @ Kishan, is dismissed.

R.K.GAUBA, J.

JUNE 12, 2017/vk

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