Delhi High Court
Wakila & Ors. vs State & Ors. on 14 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th January, 2011
Date of Order: February 14, 2011
+ Crl. Appeal No. 92/2011
% 14.02.2011
Wakila & Ors. ...Petitioners
Versus
State & Ors. ...Respondents
Counsels:
Mr. M.T Malik and Mr. MA Khan for appellants.
Mr. Sunil Sharma, APP for State/respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. This appeal under Section 372 Cr.P.C has been preferred by the appellants
against the judgment dated 26th October 2010 passed by learned ASJ-II-NE, Rohini
Courts acquitting the accused persons from the charges under Sections
366/365/376/343 read with Section 34 IPC. The appellant Wakila was the complainant in
the case.
2. The learned Sessions Judge after recording entire evidence analyze the evidence
and came to following conclusions:
(i) Initially the prosecutrix at the time of her medical examination at
Safdarjung Hospital disclosed to the doctor that she was raped by three
police officials in a car. However, later on while making statement under
Crl.Appeal No.92 of 2011 Page 1 Of 5
Section 164 Cr.P.C she gave a different version and stated that she was
raped in a room at the police station.
(ii) The prosectrix refused to submit herself to internal examination at Babu
Jagjivan Ram Memorial Hospital.
(iii) The prosecutrix took a stand that she had not disclosed about the incident
to anybody till the release of her husband Nisar on 16th April, 2004
whereas as per the communication sent by her father in law Noman Khan
to Chief Justice of Punjab & Haryana High Court on 15th April, 2004, it was
alleged that the prosecutrix had been raped by the police officials.
(iv) The judicial TIP of accused Tek Chand was held and the prosecutrix in
TIP could not identify Tek Chand, however, later on while deposing in the
Court she identified Tek Chand. The other accused person i.e. Om
Prakash being the investigating officer of the case against her husband,.
was known to the prosecutrix and was named by her.
(v) In her testimony before the Court she stated that while rape was
committed upon her, Om Prakash gave a teeth bite on her cheeks.
However, none of her family member deposed of any bodily injury
observed in the evening nor a bite mark on her check was found during
her medical examination by the doctor nor she mentioned it to the doctor.
(vi) In her testimony, she stated that she became unconscious on being raped
by Om Prakash and thereafter other accused persons raped her. The
learned Sessions Judge observed that if she had become unconscious,
she could not have been able to know as to who raped her subsequently,
however, still she named and identified other accused Rakesh and Tek
Chand as the persons who raped her during her unconscious state.
Crl.Appeal No.92 of 2011 Page 2 Of 5
(vii) The learned Sessions Judge observed that she had deposed that she was
bleeding for many days after the incident and got treatment from a private
doctor. She did not mention this fact to the doctor who conducted her MLC
neither it is recorded in her MLC. Her grandmother in law Smt. Akbari was
examined as PW-17. She specifically stated that the prosecutrix was not
taken to a private doctor for treatment. Neither any private doctor was
examined by the prosecutrix as a witness.
(viii) The prosecutrix identified all accused persons by name in the Court and
admitted that she was told the names of accused persons by her father-in-
law Noman Khan before the deposition.
(ix) The prosecutrix alleged that she had gone to police station Jahangir Puri
for registration of FIR but her FIR was not registered. The trial court
observed that no complaint was made against SHO police station
Jahangir Puri despite the fact the father in law of the prosecutrix had been
sending communications to Chief Justice Punjab and Haryana High Court
and Mumbai High Court on judicial side.
(x) PW-17 her grandmother in law deposed before the court that the
prosecutrix never disclosed to her about rape and was never examined by
a local doctor. The court observed that the prosectrix had ample
opportunities to inform senior lady members of the family about the rape
committed on her and they would have also noticed injuries on her cheek
if the alleged incident had taken place. While prosecutrix deposed that her
clothes were torn in the incident and she had changed her clothes, her
father in law Noman Khan specifically deposed that neither he nor
prosecutrix changed their clothes.
Crl.Appeal No.92 of 2011 Page 3 Of 5
(xi) In her deposition prosecutrix had taken the stand that she and her father
in law Noman Khan were kept in detention at CIA Office, Ferozepur Jhirka
on 13th April, 2004. However, PW-24 Shabir and PW25 Ismile who were
detained at CIA Office specifically deposed that no lady had been
detained in the office at that time. A raid was conducted by learned
Sessions Judge, Gurgaon at CIA Office, Ferozepur Jhirka. The
proceedings of this raid are not disputed by the prosecutrix and the report
of learned Sessions Judge does not show presence of either Nissar,
husband of the prosecutrix or prosecutrix in CIA office. The report shows
that Mubarak, Shabir, Ismile and one other person (out of which three
were directed to be released) found detained. PW24 and PW25 deposed
that each and every room of CIA Office was inspected by the learned
Sessions Judge, Gurgaon. Had the husband of the prosecutrix or any of
her family member been detained, that would have been noticed by the
learned Sessions Judge, Gurgaon.
(xii) The other witnesses of the case i.e. neighbours of the prosectrix did not
support the case of the prosecutrix. PW23 Ms. Karuna stated that her
affidavit filed by the prosecutrix did not bear her signatures and it was a
forged document. The court compared her signatures with the admitted
signatures and found that they were not tallying. The Court came to
conclusion that father in law of the prosecutrix, who was involved in
criminal cases, got the signatures of various neighbours forged with an
intent to mislead the the High Court into passing an order regarding
registration of FIR. PW23 Ms. Karuna deposed that on the alleged day in
the morning there was an incident at the house of the prosecutrix and in
the evening when she met the prosecutrix, she informed her that the
police officials of Haryana had come to her house to trace Aslam, a
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brother of her father in law. Thus, testimony of this witness showed that
the prosecutrix was very much at her house on 9th April, 2004 when
prosecutrix alleged that she was taken away by police officials.
2. After noting down all facts and testimony of witnesses, the learned Sessions
Judge came to conclusion that the prosecution failed to prove and substantiate the
allegations made against the accused persons of commission of offence. Rather the
learned Sessions Judge came to conclusion that Nissar Ahmed, husband of the
prosecutrix and Noman Khan, father in law of the prosecutrix lodged a false case
implicating the respondents/ accused persons falsely in the commission of a grave
offence punishable for sentence not less than seven years knowing fully well and there
was no lawful ground for such proceedings. The learned Sessions Judge therefore
directed for lodging a complaint under Section 195 Cr.P.C against the prosecutrix, her
father in law Noman Khan to learned ACMM.
3. From the testimony of witnesses and the evidence, the conclusion arrived at by
learned Sessions Judge is the only natural conclusion and there is no force in this
appeal. The appeal is hereby dismissed.
February 14, 2011 SHIV NARAYAN DHINGRA, J
rd
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