Delhi High Court
Ms Sonu Suri vs State (Nct Of Delhi) on 25 July, 2017
$~R-5 to R-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: July 18, 2017
% Judgment Delivered on: July 25, 2017
+ CRL.A. 34/2017
RAKESH CHHABRA @ NITU CHHABRA ..... Appellant
Through: Mr.Vikas Manchanda,
Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State.
AND
+ CRL.A. 1213/2016
HARBINDER SINGH @ WALIA MAMA ..... Appellant
Through: Mr.Joginder Tuli, Mr.Ashu
Kumar Sharma, Ms.Joshini Tuli
& Ms.Babita Rani, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State.
AND
+ CRL.A.1215/2016
MS SONU SURI ..... Appellant
Through: Mr.Joginder Tuli, Mr.Ashu
Kumar Sharma, Ms.Joshini Tuli
& Ms.Babita Rani, Advocates.
versus
CRL.A.Nos.34/2017, 1213/2016 & 1215/2016 Page 1 of 25
STATE (NCT OF DELHI) ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT
1. Feeling aggrieved by their conviction and sentence awarded
vide judgment dated 23rd November, 2016 and order on sentence dated
29th November, 2016 passed in Sessions Case No.124/2013, the
appellants Rakesh Chabra @ Nitu, Harbinder Singh @ Walia Mama
and Sonu Suri have filed these three appeals, which are being disposed
of by this common judgment.
2. Vide impugned judgment dated 23rd November, 2016, the
appellant Rakesh Chabra @ Nitu has been convicted for committing
the offence punishable under Sections 328/376/506 read with Section
120-B IPC, appellants Sonu Suri and Harbinder Singh @ Walia Mama
have been convicted for committing the offence punishable under
Section 120-B IPC, under Section 328 read with Section 120-B IPC
and under Section 109/376/120-B IPC. Vide impugned order on
sentence dated 29th November, 2016, the appellants have been
sentenced as under:-
Appellant Rakesh @ Nitu
(1) U/S 328 IPC : to undergo RI for five years
with fine
of Rs.5,000/- and in default of
payment of fine to undergo SI
for two months.
(2) U/S 376 IPC : to undergo RI for eight years
with fine
of Rs.10,000/- and in default of
payment of fine to undergo SI
for three months.
(3) U/S 506 IPC : to undergo RI for two years.
(4) U/S 120-B IPC : to undergo RI for eight
yearswith fine
of Rs.10,000/- and in default of
payment of fine to undergo SI
for three months.
Appellants Sonu Suri & Harbinder Singh @ Walia Mama
(1) U/S 328 IPC : to undergo RI for five years
with fine
of Rs.5,000/- each and in
default of payment of fine to
undergo SI for two months.
(2) U/S 120-B IPC : to undergo RI for seven years
with
fine of Rs.10,000/- each and in
default of payment of fine to
undergo SI for three months.
(3) U/S 109/376 IPC : to undergo RI for seven years
with
fine of Rs.10,000/- each and in
default of payment of fine to
undergo SI for three months.
All the sentenced were ordered to run concurrently.
3. Briefly stating, the FIR No.95/2013 under Section
328/376/506/109/120-B/34 IPC was registered at PS Moti Nagar on
the basis of the written complaint Ex.PW15/A submitted on 30th
March, 2013 by the complainant 'P' (name withheld to conceal her
identity) to the SHO, PS Moti Nagar.
4. In view of the allegations made in the complaint Ex.PW15/A,
the complainant was sent for medical examination to Acharyashree
Bhikshu Govt. Hosptal, Moti Nagar, New Delhi. Her statement under
Section 164 CrPC Ex.PW14/A was also got recorded. The accused
persons were arrested and after completion of investigation, they were
sent to face trial for the offences complained of.
5. After the case was committed to the Court of Sessions, while
the appellant Rakesh Chabra @ Nitu was charged for committing the
offence punishable under Sections 120-B, 328/376/120-B and 506
IPC, appellants Harbinder Singh @ Walia Mama & Sonu Suri were
charged for committing the offence punishable under Sections 120-B,
328/120-B and 109/376/120-B IPC. All the appellants pleaded not
guilty to the charges framed and claimed trial.
6. The prosecution examined 20 witnesses to prove its case. The
appellants were also examined under Section 313 Cr.P.C. wherein
they have stated that they are innocent and this false case has been got
registered by the complainant to extort money from them.
7. After conclusion of trial, the learned ASJ returned the finding of
guilt against the appellants and convicted and sentenced them in the
manner stated above.
8. I have heard learned counsel for the appellants as well as
learned APP for the State and carefully gone through the Trial Court
Record. I have also heard the appellants in person, who have been
produced from judicial custody pursuant to the production warrants
issued.
9. It is often quoted that every trial is voyage of discovery in
which truth is quest. In our quest to ascertain the truth, we prefer to be
guided by the following observation made by the Supreme Court in
Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421:
'To enable the courts to ward off unjustified interference in their
working, those who indulge in immoral acts like perjury,
prevarication and motivated falsehoods have to be
appropriately dealt with, without which it would not be possible
for any court to administer justice in the true sense and to the
satisfaction of those who approach it in the hope that truth
would ultimately prevail. People would have faith in courts
when they would find that
(truth alone triumphs) is an achievable aim there; or
(it is virtue which ends in victory) is not only inscribed in
emblem but really happens in the portals of courts.
10. Since the testimony of the complainant/prosecutrix is crucial for
the decision of these three appeals, the complaint Ex.PW15/A made
by the complainant to the police, her statement recorded under Section
164 CrPC Ex.PW14/A before the Magistrate and then recorded before
the Court has to be referred to appreciate whether it is consistent and
trustworthy and satisfies the test of a 'sterling witness'.
Version of the complainant/prosecutrix 'P' in the complaint
Ex.PW15/A made to the police
11. As per the complaint Ex.PW15/A, the complainant 'P' (name
withheld to conceal her identity) is a married woman living with her
husband and a daughter. She knew the appellant Walia Mama and the
lady accused/appellant Sonu Suri for a period of about 1½ years prior
to the registration of this case but she was not in touch with them for a
period of six months because of her family circumstances. On 19th
February, 2013, she received a call from appellants Sonu Suri and
Walia Mama and after routine talk, she told them that her husband was
unemployed and they were passing through financial crisis. She was
offered to accompany them to Mata Vaishno Devi Shrine to seek
blessings to resolve her problem. When she expressed her inability to
even afford the fare, they agreed to bear her travel expenses and she
could just spend on her 'Prasad'. When she expressed her
unwillingness to go without her daughter, they offered to take her
daughter as well. After seeking permission from her husband, she
alongwith her daughter accompanied them to Mata Vaishno Devi
Shrine. She alongwith Walia Mama, Sonu Suri and other persons
(total nine persons number) reached Katra. On way to Shrine, she
noted some undesirable activities by the appellant Rakesh Chabra @
Nitu who was having a revolver in a packet. On 5th day she alongwith
her daughter safely returned home.
12. The complainant narrated the incident during the second trip
with the appellants to Golden Temple Amritsar. The version of the
complainant in the FIR is that after they returned from Mata Vaishno
Devi Shrine, she again received a call after 3-4 days from appellant
Nitu @ Chabra who informed that Mata (Vaishno Devi) has accepted
his prayers, hence he was going Amritsar. He also offered to pay
Rs.11,000/- for her visit to Mata Vaishno Devi trip and `11,000/- for
Golden Temple. He even asked her to take any of her friend to
Amritsar. Her friend Suman agreed to accompany but later refused.
On Sunday, her husband left her at New Delhi Railway Station. They
reached Amritsar where a room was booked which was having two
double beds. After face wash, Nitu, Walia Mama and Sonu started
talking in her presence about some delivery. She asked Sonu as to
what business Nitu was doing that he is earning so much profit and
offering `11,000/- to each of them for each trip. Walia Mama and
Sonu informed that they were dealing in drugs and create a family
atmosphere and fix a religious place for it so that nobody can suspect
them.
13. The complainant felt nervous and asked them to buy a ticket for
her return to Delhi. Then, the SIM was taken from her mobile and
whatever money she was having in her purse was also taken by Sonu
and Walia. They told her that they would leave for Delhi after arrival
of Nitu.
14. The incident of rape for which the appellant Rakesh Chabra @
Nitu and conspiracy/abetment for which the appellants Harbinder
Singh @ Walia Mama and Sonu Suri have been charged, has been
narrated by stating that at about 9.00 pm, when Nitu arrived, Sonu and
Walia informed him about the conversation and she was threatened
that her husband and daughter would be killed by making a telephone
call to Delhi and she would also be killed. On hearing this, she
became unconscious. When she regained consciousness, she saw
them sprinkling drops of water on her face. Sonu assured her of her
safety as well as her safe return to her home in Delhi and full payment
to her. She was also made to talk to her husband but she did not share
anything with him and talked normally. Thereafter Nitu asked Walia
to bring Limca bottle to make her feel better. Walia came with Limca
bottle and four disposable glasses. Sonu served Limca and all of them
which they consumed. However, she felt that the taste of Limca was
different. After taking Limca, she fell unconscious.
In the morning, when she got up she found Sonu and Walia on
the one double bed and she alongwith Nitu was lying on another
double bed and both of them were without clothes. She felt that 'galat
kaam' has been done with her. When she woke up Sonu to show her
(Sonu) her condition, Sonu told her that it was necessary to make her
video film as she (complainant) has come to know all their secrets.
She also assured that the money will be payable by opening a bank
account and for that purpose, Sonu took out the PAN Card from her
purse and handed over to Nitu. Since she was feeling heaviness in her
head, Sonu brought tea in a kettle with four disposable glasses. She
was sent to fetch water and by the time, she returned with water, all of
them were having tea. She also started taking tea. At about 12.00
noon, they left the room and reached Railway Station where again
Nitu has exchanged some bag. When they were in the train, her
husband called her on the phone of Walia but it was disconnected.
When her husband called second time, she was made to talk to her
husband. After getting down at Subzi Mandi Railway Station, she
reached home and when her husband asked, she informed her husband
everything except one. Her husband discussed the issue with a family
friend but Walia was away due to death of some of his relation. After
4-5 days, Walia and Sonu talked to the family friend but narrated a
concocted story but assured to honour the commitment and pay
Rs.22,000/- to her.
Thereafter one day when her husband left for duty, Nitu came to
her house after about one hour and inquired as to whether she had
informed the incident to anyone, she denied. Then Nitu asked for
photo and identity proof for opening a bank account in the name of her
husband which she handed over and also informed her husband when
he returned from duty.
15. The written complaint Ex.PW15/A was personally produced by
the complainant to the SHO, PS Moti Nagar wherein she also
mentioned her own mobile number as 7503882527 and that of Walia
Mama as 9212443758, of Nitu as 09582150212 and of Sonu Suri as
9999514313.
Version of the complainant in her statement recorded under
Section 164 CrPc Ex.PW14/A before the Magistrate on 2nd April,
16. In her statement recorded under Section 164 CrPC Ex.PW14/A,
the complainant, after narrating the talk with Sonu on 19 th February,
2013 and visit to Mata Vaishno Devi Shrine, has stated that at Mata
Vaishno Devi Shrine, Nitu handed over a revolver to Sonu and she
was frightened to see the revolver. Sonu asked her to go with Nitu.
After Darshan, they returned on 26th February, 2013.
17. Thereafter 3-4 days of their return from Vaishno Devi, Nitu @
Chabra offered to pay Rs.11,000/- for Mata Vaishno Devi Shrine trip
and further Rs.11,000/- for visit to Golden Temple, Amritsar. Her
friend Suman was to accompany her to Amritsar but later on she
refused.
18. In her statement under Section 164 CrPC recorded on 2 nd April,
2013 in respect of the incident for which the appellants have been
charged and convicted, she stated that on 3rd March, 2013 at about
6.00 her am her husband left her at the station. She alongwith all the
three appellants reached Amritsar where Sonu told her that they were
dealing in drugs. During night, appellant Nitu slapped her and made
her to drink a glass of Campa. When she woke up, she found that on
one bed Nitu and Walia were lying in nude condition. Sonu was also
in nude condition. She had lost consciousness after having Campa
and she also found herself in nude condition. On being asked, Sonu
told her that they had made her video to blackmail her. When she
insisted for going to Delhi and talk to her husband on phone, they took
out money from her purse and SIM of her mobile. Due to fear, she did
not tell anything to her husband. On 5th March, 2013, she was dropped
at her house. They had mixed something in the tea and made her to
drink. She felt that on 3rd March, 2013 Sonu and Walia Mama had
done some 'galat kaam' with her but she did not tell the incident of
rape to her husband. After 3-4 days, Nitu came to her house and took
the photo and PAN Card of her husband for opening the account for
depositing the money. Her PAN Card had already been taken in
Amritsar by Sonu and handed over to Nitu. Due to fear, they left their
home. Sh.Karambir Tyagi - friend of her husband talked to Walia
Mama but he refused to meet and thereafter she reported the matter to
the police.
Version of the complainant 'P' recorded before the Court as
PW-15
19. The third version of the complainant 'P' is in her deposition
before the learned Trial Court as PW-15. The statement of PW-15 'P'
is from Page No.385 to 481 of the Trial Court Record. In her
examination-in-chief, PW-15 - the complainant 'P' has stated about
the call received from Sonu and Walia Mama on 19 th February, 2013
and their planning to go to Mata Vaishno Devi Shrine. She was also
offered to accompany them and they offered to bear all expenses so
that her financial crisis can be resolved with Darshan and blessings of
Maa Vaishno Devi. She took her daughter aged about six year
alongwith her and returned from there on 26 th February, 2013. During
Mata Vaishno Devi trip, as per complainant, she saw a revolver with
Nitu which was given to Sonu.
20. The version of PW-15 - the complainant 'P' in respect of
incident of rape and she being served with Limca and tea and the
threat extended to her reads as under:-
'On day prior to 03.03.2013 I telephoned
Ms.Suman and told her the timings of the train.
Ms.Suman told me that she would not be in a position to
go to Amritsar. On 03.03.2013 it was Sunday, my
husband dropped me at New Delhi Railway Station at
about 6.00 am, where all the three accused persons were
there. On the same day, we reached Amritsar at about
3.30-4.00 pm. In Amritsar, accused persons got booked
one room in a hotel. I do not remember the name of the
hotel, however it was some NRI Hotel. There were two
double beds in the room which was big in size. I
alongwith accused Sonu Suri and Walia Mama went
inside the room, where accused Rakesh Chabra had gone
some where telling us that he was going to collect some
payments. After some time, I told accused Sonu Suri I
was feeling nervous and I wanted to go to Delhi. At
about 9.00 pm accused Rakesh Chabra came to that
room and thereafter all three accused persons started
conversing with one another and I was not able to
understand anything. I asked them as to what was the
work they were doing for which they had offered
₹11,000/- to me and to others for coming to Amritsar.
Accused Sonu Suri and Nitu Chabra informed me that
they were involved in the work of drugs (drugs ka dhanda
karte hain) and they choose to visit any pilgrimage
projecting themselves to be the part a family. After
hearing this, I felt giddy and thought that I was trapped
(man kahan fuss gai). I lost consciousness and regained
it when the accused persons sprinkle water on my face.
Thereafter, accused Walia Mama asked to give me
Limca. Accused Walia Mama and Nitu Chabra brought
Limca with disposable glasses and accused Sonu Suri
asked me to bring one jug of water from water dispenser
which was outside the room. I came out of the room to
get a jug of water and thereafter when I came back to
room, accused Sonu Suri offered me a glass having
Limca and she asked me to drink the same at one. I
drank the same and felt that it tastes was different. I told
accused Sonu Suri that I was not able to drink the same
on which she said that I should drink it at once in one
breath, since I was feeling nervous therefore it was
tasting different to me After I consumed the entire glass
of Limca, accused Walia Mama gave me one morsel of
naan with butter and sugar and I ate the same.
Thereafter I started feeling sleepy and had some blurred
vision. I fell unconscious after that. Next morning when
I regained my consciousness, I found myself on a bed in a
naked condition and accused Rakesh Chabra was beside
me on the same bed in a naked condition. On the other
bed, accused Walia Mam and Sonu Suri were lying
together and both of them were also without clothes.
Even at that time also I was not fully conscious and was
still feeling but giddy. I woke up accused Rakesh Chabra
and asked him as to what had been done with me. I
started weeping. I also woke up accused Sonu Suri, who
told me that since I had come to know each and
everything about them (main sara raaz jaan gait hi) and
therefore it was necessary for them to prepare my video
in this condition. Thereafter, accused Rakesh Chabra
threatened me that I should not disclose about this
incident to any one otherwise he would get kill my
daughter and my husband. He further stated that nobody
else except my husband was knowing about my visit to
Amritsar and even I should not narrate the incident to my
husband. As soon as I picked up my mobile phone to
contact my husband, accused Rakesh Chabra snatched
the same from me and took out the SIM Card from it.
Even accused Rakesh Chabra has taken out cash of
₹300-400/- from my purse. When I had seen myself and
accused Rakesh Chabra without any clothes on the same
bed, I could understand that something wrong like rape
has happened with me.
Thereafter, accused Rakesh Chabra tied a duppata
around my neck and accused Walia Mama asked me to
talk to my husband from his mobile. I was instructed by
them that I should tell my husband that I was well here
and would come back to Delhi on that day as I was to
board the train from Amritsar. Thereafter, accused
Rakesh Chabra assured me that he would give me
₹11,000/- for visiting Vaishno Devi and ₹11,000/- for
visiting Amritsar and I should not worry about that.
Accordingly, I talked to my husband from the mobile
phone of accused Walia Mama as per their instructions.
At about 12.00 noon on 04.03.2013 we left the hotel and
went to Railway Station from where we came back to
Delhi. In Delhi we got down the train at Subzi Mandi
Railway Station and from there I was dropped at a short
distance from my house in an auto by the accused
persons. I had reached my house at about 11.00 pm. I
had dinner and slept.
Next morning I told my husband everything what
had happened with me at Amritsar including about all
the accused persons dealing with drugs, my being made
to take a laced Limca etc. except for the rape. Thereafter
my husband called our family friend Mr.Karamvir Tyagi
to our house and told him everything which I narrated to
my husband. Thereafter, Mr.Karamvir Tyagi telephoned
accused Walia Mama who was known to him and
accused Walia Mama said that he was somewhere in
Punjab on the occasion of death of someone and after 3-
4 days he would come back to Delhi and talk to him
(KAramvir Tyagi).
21. It is a settled legal proposition that once the statement of
prosecutrix inspires confidence and is accepted by the court as such,
conviction can be based only on the solitary evidence of the
prosecutrix and no corroboration would be required unless there are
compelling reasons which necessitate the court for corroboration of
her statement. Corroboration of testimony of the prosecutrix as a
condition for judicial reliance is not a requirement of law but a
guidance of prudence under the given facts and circumstances. Minor
contradictions or insignificant discrepancies should not be a ground
for throwing out an otherwise reliable prosecution case. A prosecutrix
complaining of having been a victim of the offence of rape is not an
accomplice after the crime. Her testimony has to be appreciated on the
principle of probabilities just as the testimony of any other witness; a
high degree of probability having been shown to exist in view of the
subject matter being a criminal charge. However, if the court finds it
difficult to accept the version of the prosecutrix on its face value, it
may search for evidence, direct or substantial, which may lend
assurance to her testimony. (Ref.: Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. and Anr. MANU/SC/0015/2003 : AIR 2003
SC 818; and Vishnu v. State of Maharashtra MANU/SC/2156/2005 :
AIR 2006 SC 508).
22. In the case Jai Krishna Mandal and Anr. v. State of
Jharkhand (2010) 14 SCC 534, the Apex Court while dealing with
the issue held as under:
'The only evidence of rape was the statement of the
prosecutrix herself and when this evidence was read in its
totality, the story projected by the prosecutrix was so
improbable that it could not be believed.'
23. In the decision reported as Rajoo and Ors. v. State of Madhya
Pradesh AIR 2009 SC 858, the Supreme Court held that ordinarily the
evidence of a prosecutrix should not be suspected and should be
believed, more so as her statement has to be evaluated on par with that
of an injured witness and if the evidence is reliable, no corroboration
is necessary. The court however, further observed:
' ...It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time
a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The
accused must also be protected against the possibility of
false implication...there is no presumption or any basis
for assuming that the statement of such a witness is
always correct or without any embellishment or
exaggeration.'
24. In Tameezuddin @ Tammu v. State (NCT of Delhi) (2009) 15
SCC 566, it was held as under:
'It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that this evidence has to be accepted even if the
story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter.'
25. When the statement of the prosecutrix/complainant 'P' is
examined in the light of above settled legal principles, her testimony is
found to be highly improbable and untrustworthy. The evidence
collected during investigation in the form of CDR and the record
produced by PW-13 Sh.Iqbaljit Singh, Manager of NRI Yatri Niwas,
Amritsar is sufficient to hold her version unreliable and impeachable
evidence i.e. CDRs and record of NRI Yatra Niwas, Amritsar.
26. As noted in the preceding paras, different versions have been
given by the complainant 'P' in the complaint Ex.PW15/A, in her
statement recorded under Section 164 CrPC Ex.PW14/A and during
her deposition before the Court as PW-15 as to how she became
unconscious and in what circumstances, she was given Limca and tea.
27. As per complainant, during Mata Vaishno Devi trip she saw a
revolver with appellant Rakesh Chabra @ Nitu which was given to the
appellant Sonu Suri.
28. Since neither 'P' nor her daughter was harmed during this trip
and they reached home safely, at the most relevance of this trip could
be that she acquired the knowledge that the accused persons were
dealing in illegal arms. Despite having knowledge of the illegal
activities of the appellants/accused persons, she agreed to accompany
them to Golden Temple, Amritsar.
29. The complainant is a married woman having daughter aged
about six years. She preferred not to take her husband and daughter to
Amritsar despite her version that she was offered `11,000/- for the trip
and was asked to take anyone with her. The reason explained by her
for going alone with the appellants is that she asked her friend Suman
to accompany who backed out later. In this case, there is absolutely
no evidence about the reservation of ticket being in the name of
Suman and cancellation of her ticket on her refusal. There is no
investigation about their visit to Amritsar by train. No reservation
chart was collected/seized to prove that the complainant and
appellants had gone to Golden Temple, Amritsar by train and stayed
there in NRI Yatri Niwas from 3rd March, 2013 to 5th March, 2013, as
claimed by her.
30. It is not the case of PW-15 - the complainant 'P' that she was in
any way coerced, pressurized or threatened to accompany them to
Golden Temple, Amritsar. It is improbable that she fell unconscious
just on hearing from Sonu that the appellants were dealing in drugs.
So far as serving of Limca is concerned, she has stated that big Limca
bottle was brought by Walia Mama with empty four disposable
glasses and all of them had Limca from the same bottle so where was
the question of she being administered any intoxicant in Limca. The
taste of Limca or its contents were the same for all of them. It is
necessary to note here that as per the complaint Ex.PW15/A, she
stated about the incident of Limca as under:
(i) Nitu asked Walia Mama to bring Limca bottle so that she (PW-
15) feels better.
(ii) Walia Mama brought big bottle of Limca with four disposable
glasses.
(iii) Sonu got up and served Limca to each of them in the disposable
glasses.
31. Thus, in the complaint there is no mention that she was sent to
bring a jug of water before administering Limca to her. It may also be
mentioned that in her statement under Section 164 CrPC, she stated
that Walia Mama served her with Campa and there is no reference of
big bottle of Limca being brought and served by her to each of them.
32. She could not have lost consciousness on consumption of Limca
when the bottle was opened in her presence and served by Sonu to
each of them at the same time out of the same bottle. So there was no
question of her becoming unconscious during night time or having
blurred vision. Next day morning when she woke up, she only had a
feeling that she had been raped. 'P' being a married lady was sleeping
in a room having two double beds with three persons and one of them
i.e. Sonu was a lady, she could not have remained unconscious or
sleepy, had she been raped. There is absolutely no evidence that
something was mixed in her drink (Limca) and she fell unconscious.
33. There are three different versions as to when she woke up what
she saw. In the complaint Ex.PW15/A, the complainant has stated
that in the morning, when she woke up she found Sonu and Walia on
the one double bed and she alongwith Nitu was lying on another
double bed and both of them were without clothes. In her statement
recorded under Section 164 CrPC Ex.PW14/A, she stated that when
she woke up, she found that on one bed Nitu and Walia were lying in
nude condition. Sonu was also in nude condition. She lost
consciousness after having Campa and she also found herself in nude
condition. The complainant when examined as PW-15 has stated
before the Court that next morning when she regained consciousness,
she found herself on a bed in naked condition and appellant Rakesh
Chabra was beside her on the same bed in naked condition. She found
appellant Walia Mama and appellant Sonu Suri lying together on the
other bed and both of them were without clothes.
34. Regarding allegation of rape, the complainant in her complaint
Ex.PW15/A dated 30th March, 2013 has stated that appellant Rakesh
Chabra @ Nitu has done 'galat kaam' with her whereas in her
statement recorded under Section 164 CrPC Ex.PW14/A recorded on
2nd April, 2013, the complainant has stated that after mixing
something in the tea given to her, Sonu (lady accused) and Walia
Mama had done 'galat kaam' with her.
35. It is complainant's own case that she was not having necessary
finance even to pay for her visit to Mata Vaishno Devi Shrine or to
Golden Temple, Amritsar. It is also not her case that she became
aware about the alleged illegal activities by secretly overhearing their
conversation i.e. they were dealing in drug/illegal arms. If everything
was done openly in her presence by the appellants and she or her
husband had no money to pay for the trip, there was no reason for the
appellants to prepare her video film to 'blackmail' her. Rather as per
the version of Pw-15 - the complainant 'P' they were paying for her
for trips to religious places so that her financial misery could be over
with the blessings of Maa Vaishno Devi and visit to Golden Temple,
Amritsar.
36. Another aspect which needs consideration is statement of
PW-13 Sh.Iqbaljit Singh. He has stated that a lady police official
from Delhi came to Guru Gobind Singh NRI Yatri Niwas for inquiry.
He has further stated that as per the record, Room no.408 was not
booked w.e.f. 03rd March, 2013 to 5th March, 2013 in the name of any
of the accused persons, though it was booked in the name of
Mr.Harpreet Singh on 3rd March, 2013, in the name of Parkoor Singh
S/o Sh. Bhag Singh, Raikot, Ludhiana and NRI from Canada on 4th
March, 2013 and in the name of Mr.Gurcharan Singh, s/o Sh.Lala
Singh, Durby, U.K. on 5th March, 2013. He has proved the relevant
record as Ex.PW13/A.
37. The complainant has stated that she was taken by the
Investigating Officer to Amritsar where she pointed out the Hotel
where she stayed alongwith the appellants. Even this statement was
not corroborated either by the Management of the Hotel or by the
entries in the register regarding taking of the room. The appellants
could not have manipulated the entries in the register as it being a
religious place visited by thousands of devotees and it being NRI Yatri
Niwas the appellants and the complainant could not have stayed
without booking and making entry in the register during the period 3rd
March, 2013 to 5th March, 2013.
38. PW-7 Mr.Rajeev Ranjan, Nodal Officer, Tata Teleservices Ltd.,
has been examined to prove the CDR as well as location chart of
mobile No.9212443758 (in the name of appellant Harbinder Singh)
and 9211221713 (in the name of Mr.Tapan Jana. PW-8 Mr.Israr Babu,
Alternate Nodal Officer, Vodafone Mobile Services Ltd. has been
examined to prove the CDR as well as location chart of mobile
No.9999514313 (in the name of appellant Sonu Suri) and 9582150212
(in the name of Mr.Avinash Singh). As per the CDRs, the location of
mobile, which was being used by the appellant Harbinder Singh @
Walia Mama at that time, was in Delhi on 3rd March, 2013 and in
Nasik on 4th and 5th March, 2013. The location of mobile, which was
being used being used by the appellant Sonu Suri at the relevant time,
was in Madhya Pradesh on 4th March, 2013 and in Nasik on 5th March,
2013. The CDRs of mobile being used by the prosecutrix, shows its
location in Delhi from 3rd March, 2013 to 5th March, 2013.
39. The learned ASJ has rejected this vital piece of evidence
observing that location of mobiles does not prove the location of the
appellants despite the fact that the prosecutrix herself has given the
mobile numbers of the appellants in her complaint and claimed that
she was made to talk with her husband on 3 rd March, 2013 from the
mobile of Walia Mama and that while they were returning to Delhi by
train, her husband called twice on the mobile of Walia Mama and
though the first call was disconnected, she talked to her husband when
he called second time.
40. The reasoning given by learned ASJ for rejecting the
documentary evidence, which is of unimpeachable character, is on the
verge of perversity. The learned ASJ has failed to take note of the fact
that parties were talking on mobile phone on regular basis not only
prior to visit to Mata Vaishno Devi Shrine but even thereafter. The
complainant has specifically stated in her deposition before the Court
as well in her complaint Ex.PW15/A that while in the room in
Amritsar she talked to her husband on his mobile from the mobile of
Walia Mama and she talked normally. Even in the train, while
returning to Delhi, her husband called twice on the mobile of appellant
Walia Mama and though first call was disconnected, second time she
talked to her husband. These mobile numbers are the same which she
had given in the complaint Ex.PW15/A. In that circumstance, the Call
Detail Record and location of the appellants as well that of the
complainant could not have been discarded by the learned ASJ so
lightly.
41. Another aspect that needs attention is the self contradictory
statement of the complainant about unemployment of her husband.
While in the complaint Ex.PW15/A, she stated that her husband is
unemployed and they were passing through financial crises and had no
money to pay for fare for going to Mata Vaishno Devi Shrine, in the
same complaint she stated that after they returned from Amritsar,
when her husband was away to his duty, appellant Nitu came to her
house after about one hour of leaving the house by her husband and
collected the identity proof and photo of her husband for purpose of
opening the account. This in itself is self contradictory as in the
complaint, she nowhere mentioned that after she returned from Mata
Vaishno Devi Shrine, her husband got some employment and was
employed when she left for Golden Temple, Amritsar.
42. The MLC of the prosecutrix was prepared after about 27 days
from the date of incident and she being a married lady living with her
husband, no incident of rape was confirmed on her medical
examination.
43. Similarly, ingredients of Section 328 IPC could not have been
proved. As per version of PW-15 'P', the Limca was served to her on
the night of 3rd May, 2013 and tea was served in the morning on the
day they returned to Delhi. After taking tea, she had gone to the
Railway Station, remained in train. Had she been administered some
intoxicant in tea, its effect would have been visible during her journey
requiring medical attention either during journey or immediately after
she reached home. The mere fact that after taking tea, no incident of
sexual assault has taken place, no medical attention was required by
her before undertaking journey to Delhi or after reaching home, the
appellants could not have been convicted for committing the offence
punishable under Section 328 IPC.
44. The appellants have also been convicted for committing the
offence punishable under Section 506 IPC but her version before the
Court rather shows that she was properly taken care of by the three
appellants during her trip to Mata Vaishno Devi Shrine and Amritsar
and whatever illegal activities they were allegedly carrying out, it was
neither kept a secret by them nor they had any occasion to apprehend
any threat of being exposed by the complainant so as to necessitate
any criminal intimidation. So they could not have been convicted
even under Section 506 IPC.
45. The appellant Sonu Suri is a woman. She and her maternal
uncle i.e. appellant Walia Mama have been charged for entering into
conspiracy and abetting the offence of rape. However, in view of the
above discussion, there is absolutely no material to infer that any of
them have abetted appellant Rakesh Chabra @ Nitu to commit rape on
the complainant.
46. Now the question comes whether appellant Rakesh Chabra @
Nitu committed rape on her. Except stating that she found herself
without clothes sleeping on the same bed with appellant Rakesh
Chabra @ Nitu, it is nowhere stated by her that she was raped. It has
also been noted that on hearing the talks in the room about the alleged
delivery by the appellants and about the nature of business carried out
by the three appellants i.e. drugs supply, she could not have fallen
unconscious. The Limca which was served by opening the bottle in
her presence and pouring in four disposable glasses would also not
even made her lose her conscious and she would not have been raped
by the appellant Rakesh Chabra @ Nitu. Otherwise also, PW-15 'P'
only talked about hr impression that 'galat kaam' was done with her.
47. From the documentary evidence, which is in the form of CDRs
of the mobiles used by the appellants and the complainant/prosecutrix
and the record produced by PW-13 Sh.Iqbaljit Singh, from NRI Yatri
Niwas, Golden Temple, Amritsar, it is proved that neither the
complainant/prosecutrix nor the appellants were present in Amritsar
during the period 3rd March, 2013 to 5th March, 2013.
48. In view of the deliberate improvements made by the Prosecutrix
on material points and finding her testimony to be suffering from
serious infirmities, I am of the considered opinion that her testimony
is highly improbable and does not inspire confidence. Thus, on the
basis of her testimony, the appellants could not have been convicted.
49. Resultantly, the impugned judgment dated 23rd November, 2016
and order on sentence dated 29th November, 2016 are set aside.
50. All the three appeals are allowed. The appellants are acquitted
of the charges framed.
51. TCR be sent back alongwith copy of this order.
52. A copy of this order be sent to the concerned Jail
Superintendent with the direction that the appellants be released
forthwith if not wanted in any other case.
Nowe
PRATIBHA RANI
(JUDGE)
JULY 25, 2017
'st'
