State (Govt Of Nct Delhi) vs Banti & Anr.
2014 Latest Caselaw 7084 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
R-218 & 218A
+            CRL.A. 1124 of 2010
        AJAY KUMAR & ANR.                      ..... Appellants
                Through: Mr. Rakesh Dudeja and Mr. Raj
                       Kumar Tomar, Advocates for A-1

                                         Mr. Mohammad Faraz, Amicus Curiae
                                         for A-2

                                  versus

        STATE (NCT OF DELHI)                    ..... Respondent
                 Through: Mr. Rajat Katyal, APP

                                  WITH

                         CRL.A. 71 of 2012

        STATE (GOVT OF NCT DELHI)              ..... Appellant
                 Through: Mr. Rajat Katyal, APP
                                  versus
        BANTI & ANR.                          ..... Respondents
                 Through: Mr. Mohammad Faraz, Amicus Curiae
                         for R-1.

                                         Mr. Rakesh Dudeja and Mr. Raj Kumar
                                         Tomar, Advocates for R-2

        CORAM: JUSTICE S. MURALIDHAR

                                  ORDER

% 23.12.2014

1. Criminal Appeal (Crl. A.) No. 1124 of 2010 is by Ajay Kumar

(Appellant No.1) (Accused No.2) and Banti (Appellant No.2)

(Accused No.1) against the judgment dated 28th July 2010 passed by

the learned Additional Sessions Judge in SC No.139 of 2007

convicting both the Appellants for the offences under Sections

323/341 and 363/34 of the Indian Penal Code („IPC‟) and the order on

sentence dated 4th August 2010 sentencing them to undergo five years

rigorous imprisonment („RI‟) and to pay a fine of Rs.3,000/- each and

in default to undergo three months further RI for the offence under

Section 363/34 IPC; to undergo RI for nine months‟ for the offence

under Section 323/34 IPC and to undergo one month‟s RI for the

offence under Section 341/34 IPC. All the sentences were directed to

run concurrently.

2. The State has filed Crl. A. No.71 of 2012 against the same

judgment of the trial Court in so far as the two accused have been

acquitted of the offences under Sections 366/328/368 IPC.

3. The genesis of the case is Daily Diary („DD‟) entry No. 30A (mark

X) recorded at the Police Station („PS‟) Shahdara at the behest of

Babita, the sister of the prosecutrix L (PW-2) on 21st October 2005 to

the effect that PW-2 had gone missing since 10th October 2005 from

her house at Naveen Shahdara, Delhi. The said DD was marked to

Sub-Inspector („SI‟) Dinesh Kumar for investigation. It appears that

no FIR was immediately registered. Subsequently, on 29th October

2005, Kaluat Ram (PW-3) the father of PW-2 got a complaint

registered and on that basis FIR No. 524 of 2005 was registered.

According to Ramesh Kumar (PW-11) on 11th November 2005 he

received a telephonic message from PW-2 from Agra stating that she

was present there in a critical stage. According to PW-11 he

proceeded to Agra in a private vehicle with 8-10 persons of the

locality. They searched for PW-2 in Agra throughout the day. PW-11

claimed that PW-2 was found behind Taj Mahal surrounded by 8-10

boys, who on noticing PW-11 and the others, ran away leaving PW-2

behind. They brought back PW-2 to Delhi and took her straightway to

PS Shahdara.

4. PW-1, the IO, stated that Babita, the sister of PW-2, and her

husband (PW-11) came to the PS along with PW-2. According to PW-

1, PW-2 had informed her parents that she had been kidnapped by

Banti (A-1), Alia, Ajay (A-2), Umar Daraj, Reshma, Salma and

Kayyum. In her statement to the police under Section 161 of the Code

of Criminal Procedure („Cr PC‟) recorded on 11th November 2005,

PW-2 stated that on 7th October 2005 while she was returning home

after buying vegetables, she was intercepted by five boys viz., Banti

(A-1), Vikas, Ajay (A-2), Umar Daraj and Alia who took her to a

godown. They had her confined there. According to PW-2, the

godown keeper called the police but no one came for help.

Meanwhile, A-1 took her forcibly from there and others also caught

hold of her. She was forced to inhale something intoxicating after

which she fell unconscious. When she became conscious, PW-2 found

herself in Firozabad. She noticed that A-1, A-2 and Vikas had left.

Only Umar Daraj and Alia remained there. She alleged that Umar

Daraj and Alia subjected to rape her continuously thereafter for

several days. On one occasion she was able to call her family and tell

them that she was in Agra in dire states. PW-2 was then rescued by

them and brought back to Delhi.

5. PW-2 was medically examined in Guru Teg Bahadur (GTB)

Hospital. Her Medico Legal Certificate („MLC‟) shows that she was

brought there at around 3.35 pm on 12th November 2005. The history

of the case was recorded therein as: "being kidnapped by 5 people on

7th October 2005 at 4.30 pm, from Shahadra near Raju Cinema. H/O

rape by 2 people (Ali and Vardraj) daily since then". Her age has been

shown as 15 years in the MLC. The MLC was prepared by Dr. Rajni

Gill (PW-9). PW-9 confirmed that the hymen was found ruptured and

the pregnancy test was found negative. No external marks of injury

were found on PW-2. Ultra sound, HIV and VDRL were advised. It

appears that the bone test of PW-2 was also got conducted by Dr. A.

Tandon who issued a report dated 16th November 2005 stating "bone

age is above 20 years" as on that date.

6. On 21st November 2005 an application was filed before the learned

Metropolitan Magistrate („MM‟) for recording of the statement of

PW-2 under Section 164 Cr PC. Her statement (Ex.PW7/A) was

recorded by the learned MM on 22nd November 2005. In the said

statement she more or less stuck to the version given by her to the

police on 11th November 2005, stating that five boys had forcibly

abducted her and taken her to a godown. Even while the godown

keeper dialled the police and their arrival was awaited, A-1 Banti

forcibly took PW-2 away from there and took her to a place where the

other four boys were present. They all started misbehaving with her.

Her face was covered with the cloth with something intoxicating and

she became unconscious. PW-2 stated that when she regained

consciousness she found that A-1, A-2 and Vikas had already left that

place and only „Varadaraj‟ and Alia remained. PW-2 reiterated that

Alia and Varadaraj then repeatedly subjected to rape her for several

days thereafter till she was rescued by her family.

7. According to PW-1, A-1 was arrested on 15th December 2005 at

the instance of PW-2 and A-2 on 21st March 2006. Learned APP

informs that non-bailable warrants were issued in respect of both the

said accused. However, it is not in dispute that both A-1 and A-2 lived

in the same area as PW-2. A-2 obtained anticipatory bail and

surrendered to the police. A-1 was arrested at his residence.

8. As regards the remaining persons who were named by PW-2, the

police was unable to trace them and they were declared proclaimed

offenders („PO‟). Only A-1 and A-2 were sent up for trial. By order

dated 21st August 2007 charges were framed against both the accused

under Sections 363/366/34 IPC, 323/341/34 IPC and 328/368/34 IPC.

9. The prosecution examined eleven witnesses. Both the accused

denied the evidence in their statements under Section 313 Cr PC and

claimed to have been falsely implicated.

10. The prosecution case hinges on the evidence of PW-2. She was

examined in-chief on 12th March 2010. She stuck to her version under

Sections 161 and 164 Cr PC as far as the present Appellants i.e. A-1

and A-2 were concerned. In other words, she stated that A-1 and A-2

were involved upto the stage of abduction and taking her to Firozabad

and when she regained consciousness A-1 and A-2 and Vikas had fled

the spot. However, she stated that A-1 and A-2 did not commit rape

upon her but had sold her to Vardraj and Alia who repeatedly

subjected her to rape.

11. The cross-examination of PW-2 did not take place on the same

day i.e. 12th March 2010. The record of the proceedings of that day

shows that PW-2 was then discharged. The examination-in-chief of

her father Kaluat Ram was deferred at the request of learned APP

since his statement to the police under Section 161 Cr PC could not be

traced. The next date for his examination-in-chief was fixed for 27th

April 2010. However, on the next date it appears that Kaluat Ram was

not present. For the next few dates the other prosecution witnesses

were examined. On 17th May 2010 an application was filed by counsel

for the accused under Section 311 Cr PC for recalling both PWs 1 and

2 and the said application was allowed. Their cross-examination was

slated for 21st May 2010.

12. In her cross-examination on 21st May 2010 PW-2 stated that she

left studies about 15 years ago. "My marriage took place about 4/5

years ago. I am having two children". She recollected that when she

regained consciousness in Firozabad, Uttar Pradesh she found two

ladies and four male persons inside the room. She could not name any

of them. She stated that she remained confined in the room for 10-12

days. She was then taken to Agra. Her jija (brother-in-law), uncle and

aunt then took her back from Agra. She then stated "Accused persons

today present in Court had not committed any rape upon me. Accused

persons today present in court are not involved in my kidnapping. It is

correct that the real culprits are not arrested by the police".

13. In view of the above statement, learned APP requested that he may

be permitted to cross-examine PW-2. With the permission of the

Court he proceeded to cross-examine her. She now stated that she had

named the two Appellants in her examination-in-chief recorded on

12th March 2010 "on the asking of police as they terrorized me that if I

will not make such statement I will be put behind bars". She was

unable to name the police official who terrorized her because he was

not wearing any police uniform. She also claimed to having made the

statement before the learned MM at the time of recording her

statement under Section 164 Cr PC at the behest of the police. She

denied telling the MM that she was making the statement without any

fear and pressure and on her own free will. She maintained "It is

wrong to suggest that accused persons Ajay and Banti today present in

court are involved in the incident of kidnapping".

14. Although Kaluat Ram (PW-3) the father of PW-2 was examined

briefly on 12th March 2010, he was unable to be brought before the

Court for his further examination-in-chief or cross-examination.

15. The godown keeper Sandeep Khurana (PW-6) also turned hostile.

He stated in his examination-in-chief on 12th May 2010 that he noticed

3-4 boys and one girl concealing themselves behind the door of the

godown. PW-6 further stated that after the boys ran away and the girl

remained there he asked her why she had come here and she informed

PW-6 that those boys were teasing her. After saying that she was

residing in the same locality she also left the godown. He resiled from

his previous statement to the police.

16. PW-11, the uncle of PW-2 stated that after rescuing PW-2 from

Agra they took her to PS Shahdara. Thereafter he along with PW-2

and his maternal aunt and some police officials of PS Shahdara went

to Firozabad in a private vehicle. The police raided the premises of the

boys involved in the incident but they ran away from the house. He

claimed that the mother and sister of one of the boys met them and

they took the police party to Sabzi Mandi. The brother-in-law of one

of the boys was apprehended there who then took the police team to a

hotel. Thereafter one boy Taj was apprehended from Firozabad and

brought to Agra.

17. PW-11 claimed that the police officials went to an STD shop from

where PW-2 had made a call to PW-11. Though the police stated to

have recorded the statement of the shop owner, incidentally there is no

record of movement of police with PW-11 from Firozabad to Agra to

apprehend the accused. The statement of the owner of the STD shop

from where PW-2 made the call is not on record. Though the police

was stated to have recorded the statement of an employee of the hotel

where PW-2 was purportedly raped, that statement is also not on

record. According to PW-11, Taj was released by the police at Agra

itself. The mother and sister of one of the boys stated to be taken into

custody in Firozabad were also released by the police. He stated that

the accused present in Court i.e. A-1 and A-2 were not the boys that

were apprehended by the police.

18. Although PW-2 did not support the prosecution in her cross-

examination the trial Court proceeded to convict the Appellants for the

offence under Sections 323/34, 341/34 and 363/34 IPC. The trial

Court in its impugned order referred to the decision of the Supreme

Court in Khujji @ Surendra Tiwari v. State of M.P., AIR 1991 SC

1853 to hold that since PW-2 has turned hostile after a gap of more

than two months after her examination-in-chief, her version in the

examination-in-chief could be relied upon to convict the Appellants.

It was apparent that PW-2 had been won over by the accused persons

whereas her version before the police under Section 161 and before

the learned MM under Section 164 Cr PC was consistent. The trial

Court also referred to her statement under Section 164 Cr PC to

conclude that she was in fact 15 years of age on the date of incident.

When she gave her statement in Court on 12th March 2010, she stated

that she was 20 years old, therefore, she was 15 years at the time of

the incident. However, the trial Court found that the prosecution had

not proved that PW-2 had been made to inhale any intoxicating

substance and therefore the offence under Sections 366/328/368/34

IPC was not attracted. The trial Court sentenced the Appellants in the

manner indicated hereinabove.

19. This Court has heard the submissions of Mr. Mohammad Faraz

and Mr. Rakesh Dudeja, learned counsel for the Appellants and Mr.

Rajat Katyal, learned APP for the State.

20. The evidence of PW-2 is relied upon heavily by the prosecution to

prove the guilt of the two Appellants before the Court. Her statements

before the police and the learned MM have been examined carefully

by the Court with the help of learned counsel for the parties. The fact

that she turned hostile in her cross-examination makes it all the more

necessary for her evidence to be scrutinized carefully to ascertain as to

whether she was a truthful and reliable witness.

21. As regards the date of the incident there itself appears to be

inconsistency. In her statements to the police under Section 161 Cr PC

and before the learned MM under Section 164 Cr PC, PW-2 stated

that she had been abducted on 7th October 2005 while she was

returning home after buying vegetables. However, the first DD entry

recorded by the police at the instance of PW-2's sister Babita was that

she went missing on 10th October 2005 at around 4 pm. There is

indeed no explanation as to why no case was registered on the said

report and in fact no member of the family of PW-2 followed up the

matter till 21st October 2005. Even thereafter no steps were taken for

eight more days. Kaluat Ram the father of PW-2 again made a

complaint on 29th October 2005. The FIR registered on the basis of the

said complaint again. It gives the date of the abduction as 10th October

2005. This anomaly has not been explained by the prosecution.

22. On the aspect of her age the evidence on record does not

conclusively prove that PW-2 was 15 years of age at the time of her

abduction. In her evidence recorded in the Court and her examination-

in-chief on 12th March 2010 she stated that at the time of the incident

that occurred five years earlier she was 15 years old. On 21st May

2010 she stated that she had left studies about 15 years ago and her

marriage took place about 4-5 years ago and that she had two children.

As already noticed, the bone test of PW-2 conducted by doctor A.

Tandon (who incidentally was not examined) placed her age as on 16th

November 2005 to be 20 years.

23. All the above factors show that there is a considerable doubt

whether PW-2 was in fact 15 years on the date of the incident. In

order to prove the municipal records Rakesh Saxena (PW-10) record

clerk from the office of Sub-Registrar (Birth and Death), MCD was

examined. He, however, brought the wrong record relating to birth of

a male child. Consequently, the prosecution was unable to

conclusively prove that PW-2 was minor on the date of the incident.

Nonetheless, the trial Court appears to have gone by the deposition of

PW-2 herself in this regard overlooking the bone test conducted by

doctor A. Tandon and the other inconsistencies in her own statements

which put serious question marks as to whether she was minor on the

date of the incident.

24. This Court is also therefore not satisfied that the essential

ingredients of Section 363 IPC has been proved. That the prosecutrix

was minor on the date of the incident has not been conclusively

proved by the prosecution and therefore the guilt of the Appellants for

the offence under Section 363 IPC cannot be held to have been proved

beyond reasonable doubt.

25. One more factor which raises doubts about the veracity of the

evidence of PW-2 is the application made to the learned MM by the

IO for recording the statement of PW-2 under Section 164 Cr PC. It is

a one-page hand written application which states that in her statement

to the police PW-2 had stated that she had been taken away by one

Varadaraj and repeatedly raped by him at several places in Delhi and

thereafter at Firozabad. There is no mention in this application of PW-

2 having been abducted by five boys. If PW-2 had disclosed the name

of all the boys, why this was not mentioned is not clear. In fact the

MLC notes that PW-2 named the two boys who raped her. Yet this

application only mentions one of those boys, Varadaraj. It may also be

observed that the name of Varadaraj itself figured for the first time in

the statement of PW-2 under Section 164 Cr PC whereas in her

statement to the police under Section 161 Cr PC she gives the names

of other accused Umar Daraj. Be that as it may, as far as the

Appellants are concerned, the role attributed to them by PW-2 in her

statements under Sections 161 and 164 is that they along with Vikas

and the other two accused had abducted her while was returning

home after buying vegetables on 7th October 2005. In her cross-

examination, as already noticed, she completely resiled from the

above position and repeatedly stated that the two Appellants had not

been involved in her abduction. The prosecution has not been able to

explain why efforts were not made to trace the two Appellants

immediately after the above disclosure of PW-2, particularly, since

both the Appellants are residing in the same area as PW-2. If indeed

NBWs were issued it is very unlikely that both the Appellants would

be arrested more than one month and four months later respectively

from the same area where PW-2 lives.

26. The evidence of PW-11 also creates serious doubt on the veracity

of the statement of PW-2. He states that they found her with 8-10 boys

behind Taj Mahal in Agra and they rescued her and brought her back

to Delhi. When they went back again with the police to Firozabad and

Agra the police is stated to have recorded the statement of the owner

of the shop where the STD facility was available and from where PW-

2 was supposed to have made a call. The said statement is not on

record. The statement of the employee of the hotel where PW-2 was

made to stay in Agra purportedly recorded by the police is not also

produced. All this should have happened at the instance of PW-2

itself, yet it is not clear that these statements do not form part of the

record and the persons have not been examined as witnesses.

27. There are many elements in the prosecution case that remained

unproved. This coupled with the fact that in her cross-examination

PW-2 states that she was forced to sign on blank papers and was

threatened by the police makes her evidence even more unreliable. It

is not surprising that the trial Court itself found the investigation in the

case to be unsatisfactory. Towards the end of the impugned judgment,

the trial Court directed the DCP to look into the matter and regulate

the investigation process to prevent such lapses. Action was also

initiated against PW-10 for bringing an irrelevant record to the Court.

28. The Court finds that in the above background it would be unsafe to

place reliance only on the testimony of PW-2 to return a finding of

guilt against the two Appellants. A more than reasonable doubt has

been created regarding the truthfulness of her versions and there is no

independent corroboration of her evidence by the other witnesses.

Consequently, this Court is persuaded to grant both the Appellants

benefit of doubt and acquit them of the offences under Sections

363/323/341/34 IPC. Crl. A. No. 1124 of 2010 is allowed. The bail

bond and the surety bond of the two Appellants shall remain in force

for a period of six months in terms of Section 437A Cr PC.

29. The Court finds no merits in the appeal of the State (Crl.A.71 of

2012) and dismisses the said appeal.

30. The fees of the amicus curiae be paid to him forthwith as per the

schedule of the Delhi High Court Legal Services Committee.

31. The trial Court record along with a certified copy of this order be

sent to the trial Court forthwith.

S. MURALIDHAR, J.

DECEMBER 23, 2014 mg