* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 17th JANUARY, 2017
DECIDED ON : 19th APRIL, 2017
+ CRL.A.1382/2013, CRL.M.B.1608/2016 3126/2015
CRL.M.A.No. 1479/2016
JAISHREE ….. Appellant
Through : Mr.K.K.Sud, Sr.Advocate with
Ms.Vaishali Soni, Advocate.
versus
STATE ….. Respondent
Through : Mr.Amit Gupta, APP.
AND
+ CRL.A.1268/2013
BALBIR SINGH ANR. ….. Appellants
Through : Mr.K.K.Sud, Sr.Advocate with
Ms.Vaishali Soni, Advocate.
versus
STATE ….. Respondent
Through : Mr.Amit Gupta, APP.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Crl.A.1382/2013 has been preferred by the appellant – Jaishree
(hereinafter referred to ‘A-1’) to challenge the legality and correctness of a
judgment dated 17.09.2013 of learned Addl. Sessions Judge in Sessions
Crl.A.1382/2013 connected matter Page 1 of 20
Case No. 05/2013 arising out of FIR No.399/2002 PS Prashant Vihar
whereby she was held guilty for committing offences punishable under
Sections 498A, 376 read with Section 109 IPC and Section 355 IPC. By an
order dated 18.09.2013, she was sentenced to undergo RI for three years
with fine `10,000/- under Section 498A IPC; RI for seven years with fine
`10,000/- under Sections 376/109 IPC and RI for two years with fine
`5,000/- under Section 355 IPC. The sentences were to operate
concurrently.
2. In Crl.A. 1268/2013, the appellants – Balbir Singh (hereinafter
referred to ‘A-2’) and Sandeep (hereinafter referred to ‘A-3’) have
challenged their conviction under Sections 498A IPC by the impugned
judgment dated 17.09.2013. By an order dated 18.09.2013, they were
sentenced to undergo RI for three years with fine `10,000/- each.
3. Briefly stated, the prosecution case as projected in the charge-
sheet was that A-1 to A-3 along with Sanjeev (Juvenile) (hereinafter referred
to ‘A-4’) subjected ‘X’ (assumed name) – A-3’s legally wedded wife with
cruelty on account of dowry demands during her stay in the matrimonial
home from 09.05.2002 to 30.06.2002. Her dowry articles were not returned
on demand. It is also alleged that on 17.05.2002 and subsequent to that on
several occasions, in house No.G3/37-38 Sector-11, Rohini, ‘X’ was raped
by A-4 on A-1’s instigation.
4. On 05.08.2002 at around 07.00 p.m., ‘X’ went to the Police
Station Prashant Vihar and recorded her statement forming basis of FIR
(Ex.PW-2/A). In her complaint, she gave detailed account as to how and in
what manner, she was physically and mentally tortured and harassed by the
appellants and A-4 on account of non-fulfilment of dowry demand of `5
Crl.A.1382/2013 connected matter Page 2 of 20
lacs. She further disclosed that A-4 committed rape upon her on 17.05.2002
at A-1’s instigation. After A-4’s departure from the scene, A-1 arrived in
the room; took off her clothes and lied upon her. She kissed her mouth and
licked her body at various places. It happened on several occasions. She
further disclosed that the appellants used to put mice in her salwar, lizard in
kurta and ice in her clothes to harass her. On 30.06.2002 finding an
opportunity, she escaped the spot and went to her parents’ house. She
narrated the incident to her parents who in-turn talked with her in-laws.
They threatened to kill her family members.
5. The investigation was assigned to PW-16 (SI Vinod Kumar).
‘X’ was medically examined. The appellants were arrested; dowry articles
were recovered. ‘X’ recorded her 164 Cr.P.C. statement (Ex.PW-12/B).
Statements of the witnesses conversant with the facts were recorded. Upon
completion of investigation, a charge-sheet was filed against the appellants
for commission of offences punishable under Sections
406/498A/506/376/120B/34 IPC. Separate proceedings were initiated
against A-4 before Juvenile Justice Board. In order to establish its case, the
prosecution examined eighteen witnesses. In 313 Cr.P.C. statements, the
appellants denied their involvement in the crime and pleaded false
implication. They examined DW-1 (Ramesh) and DW-2 (Balbir Singh) as
defence witnesses. CW-1 (Madan Lal Sharma) and CW-2 (Sarika Kapoor)
were examined as Court witnesses. The Trial resulted in conviction as
aforesaid. Being aggrieved and dissatisfied, the appellants have preferred
the instant appeals.
6. I have heard the learned counsel for the parties and have
examined the file minutely. Admitted position is that ‘X’ was married to A-
Crl.A.1382/2013 connected matter Page 3 of 20
3 on 09.05.2002. Soon after marriage, she visited her parents’ house on
16.05.2002 along with A-3 and returned to the matrimonial home in the
evening. She remained at her matrimonial home till 30.06.2002. The instant
FIR was lodged on 05.08.2002. From 30.06.2002 till her death, the victim
was at her parents’ house.
7. It is also not disputed that A-4 was acquitted of the charge by
Juvenile Justice Board by a judgment dated 08.02.2011. It appears that the
said acquittal has not been challenged by the State and it has attained
finality.
8. It is pertinent to note that the victim ‘X’ recorded her statement
before the Trial Court as PW-1 on 27.01.2005. She again appeared for
further examination on 22.10.2005. Her statement could not be recorded
completely and further cross-examination was deferred that day.
Unfortunately, on the same day, at her parents’ house, she committed
suicide. Her father PW-4 (Om Pal Malik) lodged FIR No.914/2005 for
commission of offences punishable under Sections 304B/306/34 IPC in
which the appellants and A-4 were implicated. A charge-sheet was filed
against all of them and the case was committed to the Court of Sessions. By
an order dated 26.07.2010 in Sessions Case No.12/2010 arising out of FIR
No.914/2005 PS Prashant Vihar, the appellants and A-4 were discharged of
the said offences. It is informed that the complainant has challenged the said
order before this Court. It is further to be noted that A-3 – victim’s husband
has filed a complaint case under Section 190(1)(a) Criminal Procedure Code
against his in-laws for committing X’s murder. By an order dated
05.07.2011, cognizance has been taken only against her father Om Pal Malik
Crl.A.1382/2013 connected matter Page 4 of 20
(PW-4 herein) for commission of offence punishable under Section 304 IPC
and he has been summoned to face trial in the Complaint Case No.90/1/10.
9. Appellants’ conviction is primarily based upon the sole
testimony of the victim. Needless to say, conviction can be based upon the
sole testimony of the prosecutrix provided it lends assurance of her
testimony. In case, the Court has reasons not to accept the version of the
prosecutrix on its face value, it may look for corroboration. As observed
above, before ‘X’ could be completely examined, she committed suicide and
her cross-examination remained incomplete. Apparently, the appellants had
no effective opportunity to cross-examine her on all the relevant facts.
Under these circumstances, her evidence under Section 33 Evidence Act is
to be scrutinised with great care and caution.
10. ‘X’ was married to A-3 on 09.05.2002. Before solemnization
of marriage, there were various prior meetings between the families through
mediator Ranveer Singh. PW-4 (Om Pal Malik) had verified the appellants’
status. There was no demand of dowry by the appellants before marriage or
at the time of marriage. Admittedly, both A-3 and ‘X’ had visited her
parents’ house on 09.05.2002 and 16.05.2002. The victim and her family
members had no complaint whatsoever against the accused persons. ‘X’ had
no complaint whatsoever regarding any demand of dowry by the accused.
From 16.05.2002 to 30.06.2002 ‘X’ remained at her matrimonial home and
did not visit her parents’ house even once, despite they living nearby at a
distance of about 4 kms. Victim’s parents also did not visit her during this
period. The demand of `5 lacs was not made by the accused persons from
the victim’s parents. It is not the prosecution’s case that at the time of
victim’s visit to her parents on 16.05.2002, she was directed by any of the
Crl.A.1382/2013 connected matter Page 5 of 20
accused to bring `5 lacs from her parents. It is astonished to note that on
return to the matrimonial home on 16.05.2002 in the evening, suddenly, the
victim would be physically beaten for not bringing `5 lacs when there were
no direction / demand to do so. In her complaint (Ex.PW-2/A), the
complainant disclosed that when she returned to her in-laws’ house in
evening on 16.05.2002, her father-in-law asked her to bring `5 lacs from her
father’s house for A-3’s business. On that, she expressed her inability as her
parents had already spent money in excess beyond their financial capacity.
She was given beatings and was directed by A-3 to bring `5 lacs. In her
Court statement as PW-1 improving her version, she deposed that on
16.05.2002, she was confronted in the evening by her father-in-law whether
or not, she had brought `5 lacs in cash from her house. It is unclear as to on
what date and time demand of `5 lacs was made, if so, by whom. Fact
remains that at the time of visit to her parents’ house on 16.05.2002, ‘X’ did
not apprise them if there was any demand of `5 lacs by her father-in-law.
11. Main allegations in the complaint are that on 17.05.2002 when
A-3 and A-2 had gone to the factory, ‘X’ was given beatings by A-1 and A-
4. They both dragged her to the bedroom; tied her hands and legs with
‘chunnies’. After tying her, A-1 went out closing the door from outside. A-
4 raised the volume of the TV and committed rape upon ‘X’; it continued for
about an hour. After that A-1 came inside the room; she removed her own
clothes and laid over her. She started biting her at various parts of the body.
After some time, she left and locked the door from outside. ‘X’ narrated the
incident to A-3 in the evening who did not take note of it and informed that
A-1 and A-4 had indulged in only in playful activities and the moment she
brought `5 lacs, the said activities would come to an end. The victim
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reiterated in her Court statement that A-1 and A-4 continued to indulge in
such activities on several occasions. She further disclosed that finding an
opportunity on 30.06.2002, when the appellants had gone outside, she fled
the spot and reached her parents’ home. She narrated the entire occurrence
to her parents. The appellants followed her and arrived within half an hour
there; they tendered a written apology to settle the dispute.
12. These serious allegations have, however, been not substantiated
or corroborated by any credible, firm and cogent ocular or circumstantial
evidence. Number of major discrepancies and inconsistencies have emerged
in the statements of the prosecution witnesses making it unsafe to base
conviction on the sole incomplete testimony of the prosecutrix even if read
under Section 33 of the Evidence Act. Settled position is that evidence of a
witness who could not be subjected to cross-examine due to his death is
admissible in evidence; though the evidentiary value will depend upon the
facts and circumstances of each case. The evidence is admissible but the
weight to be attached to such evidence would depend upon the
circumstances of each case. The prosecution witnesses have given
conflicting and divergent statements; they have made vital improvements in
their deposition before the Court. It is pertinent to note that from 16.05.2002
to 30.06.2002, ‘X’ remained at her matrimonial home and never visited her
parents. Her parents did not pay any visit to her in the matrimonial home
despite having residence at a short distance at Prashant Vihar. No plausible
explanation has been offered as to why during this period, no visit was made
by the victim’s parents, more so, when they were not allegedly permitted to
talk with the victim on telephone. During her stay at the matrimonial home,
‘X’ never lodged any complaint whatsoever with the police or any other
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authority regarding appellants’ conduct and behaviour. She did not get
herself medically examined for the alleged beatings given to her. She never
raised any alarm. The investigating agency did not examine any person
from the neighbourhood to ascertain if the victim was treated with cruelty or
harassed on account of dowry demands.
13. In the cross-examination, the victim reiterated that she was not
permitted to go out of the four walls of her matrimonial home; she used to
be confined there. Only on 30.06.2002, when the appellants were away and
had forgotten to lock the back-door of the house accidently, she managed to
escape. Even at that time, she did not raise any alarm or reported the matter
to the police. It was emphasized that the victim had no access to anyone
during her stay at the matrimonial home and she had no contact whatsoever
with outsiders to lodge complaint. The truth came out in the cross-
examination when the victim was confronted with certain photographs.
Initially, she denied if she had left the matrimonial home for any purpose on
any day except 09.05.2002 and 16.05.2002. On being shown photograph
(Ex.PW-1/DA); she identified A-4’s photo taken by A-3 on way to her
parents’ house. She admitted that photograph (Ex.PW-1/DC) was taken at
the matrimonial home on the ‘terrace’. She further admitted that photograph
(Ex.PW-1/DE) was her photo with A-3. Ex.PW-1/DF was photograph with
A-4 and other family members. She expressed ignorance as to where
photograph (Ex.PW-1/DG) was taken. She further admitted that photo
(Ex.PW-1/DJ) was that of A-4 with her. She avoided to respond if photo
(Ex.PW-1/DL) was taken at Pinjore Garden. Admitting that her photograph
was with her mother-in-law, she expressed ignorance as to who had taken
the photograph and where it was taken. She was evasive to respond as to
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where the photographs were taken. She admitted that photograph (Ex.PW-
1/DN) was taken in a park. She was not aware if it was Pinjore. During her
cross-examination, the witness felt nervousness and expressed need to meet
her mother. She further admitted that photograph (Ex.PW-1/DP) was taken
in a car driven by A-3. She was unaware as to whom the car belonged. She
volunteered to add that the photograph was taken when they had gone to A-
3’s native village in a temple. She disclosed that young girl on whose
shoulder, she had placed her hands was A-3’s relative. Declining that
photograph (Ex.PW-DQ) was taken at Pinjore Garden gate, she disclosed
that it was taken at somebody’s house without revealing as to where the said
house was. She disclosed that between 10.05.2002 to 16.05.2002, they had
visited temple, park and some other places. She did not recall whether
photograph (Ex.PW-DQ) was taken at Geeta Mausi’s house at Chandigarh.
Apparently, the witness has declined to give specific answers regarding her
visits to Pinjore, Chandigarh, etc. Photographs on record show ‘X’ to be in
happy mood clad in decent dresses. It falsifies her initial claim that she was
not permitted to venture outside her matrimonial home during her stay there.
14. In the cross-examination, she denied her visit to Haridwar on
24.06.2002 along with A-3 and her parents in car No.DL 9 CE 2992 and her
stay in room Nos.332-333 at Maharaja Bhawan, Haridwar. PW-4 (Om Pal
Malik), her father, admitted his visit to Haridwar on 24.06.2002. He
volunteered to add that his daughter Akansha, son Nishant and his wife were
with him that time. He denied if the complainant and her husband A-3 had
also accompanied them to Haridwar. Document (Ex.PW-1/DR) speaks
contrary to it. He admits his signatures on it at point ‘A’. He further admits
that the address and the information mentioned therein was given by him to
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the author. He had travelled to Haridwar in a Maruti Zen allegedly given in
dowry to A-3. He admitted that this vehicle was handed over to him in the
third week of June, 2002 by A-3 at his residence and it remained with him
till 28.06.2002. Thereafter, A-3 came and took the vehicle along with him.
Apparently, relations with A-3 were cordial and there was no complaint
whatsoever regarding his conduct and behaviour till June, 2002. As per PW-
4’s testimony relations with the accused persons were cordial in between
09.05.2002 to 30.06.2002.
15. When confronted with photographs (Ex.PW-1/DG to PW-1/DP)
PW-4 (Om Pal Malik) admitted that these were the photographs of his
daughter along with A-3, A-4, A-1 and other unknown persons. He was
unable to admit or deny if all the photographs were taken in June, 2002 and
related to the visits to Pinjore Garden, Sukhna Lake and Rock Garden in
Chandigarh.
16. Reliance has been heavily placed upon a document dated
30.06.2002 (Ex.CW-1/A) in which A-1 and A-4 allegedly made confessional
statement for commission of rape upon the victim. It is, however, a mystery
as to how and under what circumstances, this document came into existence.
In the complaint forming basis of the FIR (Ex.PW-2/A), ‘X’ did not reveal if
any such document was ever executed. In 164 Cr.P.C. statement (Ex.PW-
12/B) recorded on 08.08.2002, there was no whisper of any such document
to have come into existence any time. The vital document confessional in
nature, was never handed over to the Investigating Agency any time. No
reliance was placed on this crucial piece of evidence in the charge-sheet and
none of the individuals named therein were cited as witnesses. PW-16 (SI
Vinod Kumar), the Investigating Officer, did not claim if any such document
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was brought to his notice by the victim or her family members. ‘X’ in her
examination-in-chief as PW-1 for the first time disclosed that on 30.06.2002,
after her escape to her parents’ house, her mother-in-law (A-1), brother-in-
law (A-4) and husband (A-3) came following her there. When confronted
by her parents as to why they had ill-treated their daughter, they admitted
that they had done so and promised not to repeat in future. They gave an
undertaking (mark ‘A’).
17. The Trial Court noted “…..the said writing has been introduced
for the first time and does not form part of the challan. Learned counsel for
the accused has stated that the copy of the said writing had never been
provided to him which fact learned APP concedes and now has handed over
the copy to the counsel for the accused. Learned counsel for the accused has
objected that since the document has not been filed after seeking permission,
the same cannot be taken on record. The objection is not sustainable as the
document has been introduced during the deposition and only its effect can
be seen at the time of final arguments.”
18. No plausible explanation has been offered by the victim as to
why this document was not furnished to the Investigating Agency during
investigation. It has not been explained as to why this vital document was
suppressed and the accused persons were taken by surprise at the time of
victim’s examination. PW-4 (Om Pal Malik), in examination-in-chief
deposed that on 30.06.2002, A-1 and her sons had tendered apology in
writing at his residence.
19. Conflicting and divergent versions have emerged on record
regarding the execution of the document in question. PW-1, the victim, in
her Court statement did not elaborate as to in whose handwriting this
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document was executed; who were the individuals present at the spot that
time. In the cross-examination, she claimed that this fact was disclosed by
her to the learned Metropolitan Magistrate in her 164 Cr.P.C. statement. She
was confronted with her statement (Ex.PW-1/L) where there was no mention
of it. Contrary to that, it was recorded that her father had gone to the house
of the accused persons.
20. PW-4 (Om Pal Malik) – victim’s father informed that on
30.06.2002, when they were having lunch along with family friend Sarika
Kapoor, the victim arrived. On entering the house, she started weeping;
neighbours collected on hearing her cries. The victim narrated the
occurrence. He further deposed that on that day, A-1 along with her sons
arrived at his residence within half an hour and executed the ‘writing’ after
tendering apology. He further claimed that this document was handed over
to the Investigating Officer by him. PW-1, on the contrary, claimed that she
had attempted to handover the document to the Investigating Officer but he
advised her to produce it in the Court at the time of her examination. The
witness was confronted with statement (Ex.PW-4/X) where these facts did
not exist. In the cross-examination, he introduced another version that the
apology letter written by the accused persons was also produced by him
twice between 05.08.2002 to 08.08.2002 before the Investigating Officer but
he did not seize it.
21. PW-6 (Kusum), victim’s mother, has given a different account
of the incident dated 30.06.2002. She deposed that on that day i.e.
30.06.2002 when the victim came at her residence, she was very much upset
and disturbed. She narrated the incident to her. She told those facts to her
husband who in-turn talked to the accused persons. The accused persons
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asked her husband to finish the matter or else they would be killed. She did
not claim if the accused persons had arrived at their residence or had
executed any apology letter in writing. She also did not talk about the
presence of any individual in whose presence the said document was
executed. In the cross-examination, she disclosed that the victim had
reached her residence in the ‘noon’ and she had apprised her husband about
the incident as disclosed to her by the victim in the ‘evening’. She did not
disclose as to at what time the accused persons had arrived at the spot.
22. CW-1 (Madan Lal Sharma) and CW-2 (Sarika Kapoor) were
examined as Court witnesses. CW-1 (Madan Lal Sharma) resident of D-
158, Prashant Vihar identified his signatures at point ‘A’ on Ex.CW-1/A.
He clarified that this document was signed by him at PW-4 (Om Pal
Malik)’s house on 30.06.2002 after going through its contents. In the cross-
examination by learned APP, he disclosed that the victim was not present in
the house when he had put his signatures over it. In the cross-examination
by defence, he admitted that the accused A-1 to A-4 were not known to him;
he had never met them before. He further admitted that Ex.CW-1/A was not
written in front of him. He further admitted that it was signed by him on the
asking of PW-4 (Om Pal Malik). He was fair to admit that signatures at
point B, C, D E were already in existence on the document CW-1/A when
he had put his signatures at point ‘A’. Similar is the testimony of CW-2
(Sarika Kapoor). She admitted that Ex.CW-1/A was signed by her at point
‘E’ in the house of PW-4 (Om Pal Malik) on 30.06.2002. Signatures at
point B, C D were already in existence that time. In the cross-
examination, she also admitted that the accused persons were not acquainted
with her and she had not met them. She further admitted that Ex.CW-1/A
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was not written in her presence and she put signatures over it on the asking
of PW-4 (Om Pal Malik).
23. Apparently, document (Ex.CW-1/A) was not executed by the
accused persons in the presence of CW-1 (Madan Lal Sharma) and CW-2
(Sarika Kapoor) and their signatures over it were obtained later on. PW-4
(Om Pal Malik) has not clarified as to when their signatures were procured
and if so, why. It contradicts his version that the document was executed in
the presence of CW-1 (Madan Lal Sharma) and CW-2 (Sarika Kapoor).
Even after execution of the document (Ex.CW-1/A), the victim was not sent
to the matrimonial home and she continued to stay at her parents’ house till
her death. It is unbelievable that the accused persons after coming to know
the victim’s escape from the matrimonial home in their absence would dare
to approach the victim’s parents. It is unclear as to when the accused
persons returned to the matrimonial home and from where they got inkling
that the victim had gone to her parents’ house. It is highly difficult to
believe that PW-4 (Om Pal Malik) after coming to know that the victim was
ravished / defiled by A-1 and A-4 would maintain complete silence and not
lodge any FIR / complaint against the perpetrators of the crime. Admittedly,
no complaint whatsoever was lodged either by the prosecutrix or by her
father PW-4 (Om Pal Malik) on 30.06.2002. This abnormal and
unacceptable conduct creates serious doubt about the genuineness and
authenticity of the document (Ex.CW-1/A). The accused persons had no
occasion to confess commission of rape upon the prosecutrix. Possibility of
the accused persons putting signatures on blank paper with the hope to get
the matter settled as claimed cannot be ruled out. Otherwise there were no
compelling reasons to conceal the existence of this document during
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investigation. It is not clear as to who is the scribe of the document. Since
the authenticity and genuineness of document (Ex.CW-1/A) is surrounded
by suspicion circumstances, no implicit reliance can be placed upon it.
24. Inordinate delay in lodging the FIR has remained unexplained.
During her stay at the matrimonial home for short duration, the complainant
never lodged any complaint with any authority. On 30.06.2002 when she
escaped the spot, she did not raise hue and cry and allegedly went to her
parents’ house on her own. After hearing her ordeal, her parents did not
move the police machinery and remained mum. When the accused persons
allegedly arrived at their house after half an hour as claimed and CW-1/A
was executed by them, again, the complainant or her parents did not put the
police machinery into motion. The victim continued to stay with her parents
till 05.08.2002 when all of a sudden, she went to the Police Station to lodge
complaint against the accused persons implicating all of them. Relevant to
note is that victim’s father working as Assistant Engineer with MCD was
acquainted with the system. Despite it, he did not lodge complaint / FIR
promptly or within a reasonable time.
25. The FIR in criminal case is vital and valuable piece of evidence
though may not be substantive piece of evidence. The object of insisting
upon prompt lodging of the FIR in respect of the commission of an offence
is to obtain early information regarding the circumstances in which the
crime was committed, the names of actual culprits and the part played by
them as well as the names of eye-witnesses present at the scene of
occurrence. If there is a delay in lodging the FIR, it looses the advantage of
spontaneity, danger creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of large number of
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consultations/deliberations. Undoubtedly, the promptness in lodging the FIR
is an assurance regarding truth of the informant’s version. A promptly lodged
FIR reflects the first hand account of what has actually happened, and who
was responsible for the offence in question.
26. In the case of ‘Mehraj Singh (L/Nk.) vs. State of U.P.’, 1994 (5)
SCC 188, the Supreme Court has held :
“12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose of
appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, they weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
results in embellishment, which is a creature
of an afterthought. On account of delay, the
FIR not only gets bereft of the advantage of
spontaneity, danger also creeps in of the
introduction of a coloured version or
exaggerated story…..”
27. At no stage the prosecutrix got herself medically examined to
infer if she was treated with violence or rape was committed upon her or any
resistance was ever offered at the time of crime. If the victim is unwilling to
yield to sexual intercourse, she is expected to receive injuries on her person.
No visible injuries whatsoever were ever noticed on her body. PW-4 (Om
Pal Malik), in the cross-examination, disclosed that the victim was medically
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treated and counselled. He was, however, evasive to inform as to from
where medical treatment was taken; who was the concerned doctor and what
was the dates of visits to him. No medical documents were made available
to the Investigating agency during investigation. PW-6 (Kusum) did not
reveal if the victim was ever medically treated. In the cross-examination,
she came up with the plea that the victim was got medically treated but she
was unable to disclose the name of the doctor or the hospital. She herself
did not go with the victim to any doctor or hospital. In the cross-
examination, she further disclosed that once the victim had visited Japanees
Park with the accused persons and they were called there. She elaborated
that she herself did not go but her husband had gone there. PW-4 (Om Pal
Malik) is silent about his visit to Japanees Park.
28. No independent witness from the neighbourhood was
associated in investigation to ascertain as to what was the conduct and
behaviour of the accused persons towards the victim. Nothing has emerged
if the victim used to remain confined in the house during her stay at the
matrimonial home and was not permitted to have any interaction with
neighbours. The matrimonial home was admittedly located in a crowded
residential locality. The victim’s parents lived at a short distance. During
her short stay from 16.05.2002 to 30.06.2002 in the matrimonial home, none
of her family member visited her. This conduct seems unnatural and
unreasonable. No Call Detail Record has been placed on record of any
individual. The victim was quick to approach the police on 05.08.2002. On
06.08.2002 she along with the Investigating Officer reached the matrimonial
home to effect arrest of the accused persons. On 08.08.2002, she along with
police went at A-3’s house; got the lock opened by a key maker and
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recovered various articles seized vide seizure memo (Ex.PW-1/J) in the
presence of PW-Surya Kant and PW-Devender Gupta. In the cross-
examination, the Investigating Officer disclosed that on the intervening night
of 05/06.08.2002, he reached the residence of the accused persons at around
03.00 a.m.; and arrested them at 04.10 a.m. or 05.00 a.m. He was aware that
one of the accused persons was lady. He did not take any permission from
the concerned department to conduct raid and arrest the accused persons
during night. He added that the complainant party had insisted him to take
action and since he was apprehending the accused persons to escape, he
conducted raid at night on oral directions of the SHO. It shows the high-
handedness of the Investigating Officer who not only conducted raid but
also arrested accused persons including a woman during night. Presence of
PW-13 (Devender Gupta) and PW-15 (Surya Kant Sharma) at the spot is
highly suspicious. Both of them were known to PW-4 (Om Pal Malik). The
Investigating Officer admitted that the victim did not have the list of Stri-
dhan on 06.08.2002. He did not enquire as to why the list was not made
available prior to 05.08.2002. PW-1 the victim and PW-4 (Om Pal Malik)
who had the audacity to raid at night were not expected to remain mute
spectators and not lodge any complaint with the police for 35 days after
coming to know about X’s plight on 30.06.2002.
29. PW-1 in the cross-examination disclosed to have attended first
year at college before marriage and thereafter to have pursued her studies as
ex-student at Dayal Singh College. She denied to have disclosed to the
learned Metropolitan Magistrate to have done graduation. When confronted
with her statement (Ex.PW-1/L), it was found that she had described herself
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as ‘graduate’. Apparently, the victim had not presented true facts regarding
her qualification in her 164 Cr.P.C. statement.
30. Nothing has come on record to show if any time any
‘panchayat’ was organised before lodging the FIR in question or the matter
was brought to the notice of the mediator Ranvir Singh. The investigating
agency did not join him in investigation; he was not cited as a witness.
Allegations regarding demand of dowry are vague and uncertain. Nothing
has surfaced as to when any specific dowry demand was raised by any of the
accused. No such demand was made from the victim’s parents. ‘X’ never
disclosed them during her visits if there was any specific demand of any
individual. No evidence is on record to show if any dowry articles were
declined to be returned on demand by the accused persons. The prosecution
witnesses have given conflicting statements and have improved their version
in their depositions before the Court which did not find mention in their
previous statements recorded during investigation. In the complaint lodged
belatedly on 05.08.2002, serious allegations have been levelled against A-1
aged about 50 years; she was projected to be a lady of immoral character
who could indulge in indecent sexual assault to gratify her lust / passion and
that too to the knowledge of juvenile son. The prosecution did not examine
any independent witness from the neighbourhood to find out as to what kind
of lady A-1 was. PW-4 (Om Pal Malik) had verified the status of the
accused persons before solemnization of marriage and he did not find
anything objectionable that time. The allegations without any foundation on
the face of it seem false and motivated. Implicit reliance cannot be placed
on the incomplete testimony of the victim. Victim’s parents claimed that on
30.06.2002 and thereafter, the victim was got medically treated at private
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hospitals. It is not expected that the doctors after coming to know sexual
assault upon the victim would not put the police machinery into motion.
31. Since the prosecution case suffers from serious infirmities,
contradictions and discrepancies, I am of the view that the prosecution has
failed to prove its case against the appellants beyond reasonable doubt. The
appellants deserve benefit of doubt. The appeals are allowed. Conviction
and sentence recorded by the Trial Court are set aside.
32. A-1 shall be released forthwith if not required to be detained in
any other case. Bail bonds and surety bonds of A-2 A-3 stand discharged.
33. Trial Court record be sent back forthwith with the copy of the
order. Intimation be sent to the Superintendent Jail.
(S.P.GARG)
JUDGE
APRIL 19, 2017 / tr
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