Full Text
JUDGMENT
MEERA GIRI ..... Appellant
For the Appellant : Mr. Braj Kishan Ray, Advocate.
For the Respondents : Mr. Sulaiman Mohd. Khan, Advocate (DHCLSC) along with Ms. Taiba Khan and Mr. Ashish Choudhary, Advocates for R-1, 2 and 3.
Mr. S.A. Rajput, Advocate for R-4, 5 and 7.
Mr. Riaz Mohd., Advocate for R-6.
Mr. Ravi Nayak, APP for State/R-9 with S.I. Bimati, PS Uttam
Nagar.
HON'BLE MR. JUSTICE BRIJESH SETHI
1. The present appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’), assails the judgment and order dated 19.12.2016, passed by the Sessions Court, Tis Hazari, Delhi, in Session Case No.75/2013, CC No.412/04/09 titled as ‘Meera Giri vs, Wahid and Ors.’ and in Session Case No.111/14 titled as ‘Meera Giri vs. Rashid’, under Section 2019:DHC:3697-DB 452/ 376(2)(g)/506/34 IPC; whereby all the respondents were acquitted of all charges.
2. Briefly encapsulated, the case of the prosecution is as follow: (a) On 14.12.2008, the prosecutrix/complainant (hereinafter referred to as ‘PW-1’) filed a complaint case against the respondents, namely, Jaffar, Iklakh, Sarwar Noor, Rashid, Wahid @ Wazid, Vishal @ Vishaluddin, Naim and Gujjar. (b) On the directions of the Court of Competent Jurisdiction, an FIR bearing No.158/2009 under Section 376(2)(g)/452/506/34 IPC (hereinafter referred to as ‘subject FIR’) was registered against the aforementioned 8 accused persons, along with some ladies.
(c) PW-1 alleged that the respondents used to threaten her to withdraw the said FIR and eventually on the intervening night on 25th /26th May, 2009, when she was asleep along with her minor daughter, namely, Baby (hereinafter referred to as ‘PW-8’) at their residential house, the respondents forcibly entered therein after breaking down the door. (d)It was alleged that the respondents terrorized PW-1 into withdrawing the said FIR and when she refused to compromise the matter with them, accused Iklakh and Wajid @ Wahid caught hold of her both hands, the accused Rashid closed her mouth with his hands and Vishal caught her from her hair. (e) Accused Gujjar was then, alleged to have removed her salwar and raped her, whilst the other accused stood outside preventing next door neighbours from coming to her aid. (f) It was the prosecution’s case that PW-8 had been hidden by PW- 1 in the small space next to the refrigerator, which was in the adjoining room and witnessed the entire incident therefrom. (g)PW-1 is alleged to have made the following calls to the PCR on 100 number being DD No. 47A dated 25.05.2009 and DD Nos.5A and 6A dated 26.05.2009, PS Uttam Nagar. (h)PW-1 further alleged that, whilst leaving, the accused told her that the SHO of the concerned Police Station is known to them and consequently, her complaints with regard to the incident would fall on deaf ears.
(i) PW-7, SI Ved Prakash recorded the statement of PW-1. It was the allegation of the PW-1 that, despite the visit by PW-7, she was not medically examined, owing to the circumstance that he was not accompanied by a lady police official and was assured that, she would be escorted for the same once, one was available. (j) PW-1 further went on to allege that when the police did not return, she called PW-7 around 4-4:30 am and was asked to come to Police Station Uttam Nagar. She further alleged that even thereafter, the police refused to get her examined medically and asked her get it done on her own. PW-1 thereafter went to Deen Dayal Upadhyay Hospital, New Delhi and had herself medically examined vide MLC [Ex.PW-4/A]. (k)PW-1 lastly, alleged that despite repeated entreaties, the police declined to register a case on her complaint and she was constrained to institute an appropriate proceeding before the Court of the learned Metropolitan Magistrate under Section 200 Cr.P.C.
(l) On the directions of the Court of Competent Jurisdiction, the subject case was eventually registered as aforestated.
3. The learned Trial Court framed charges against the respondents vide order dated 05.10.2011. In order to establish its case, the prosecution examined 10 witnesses in all.
4. Upon completion of the prosecution’s evidence, the statement of the accused persons was recorded under Section 313 Cr.P.C. It was submitted on their behalf that they have been falsely implicated in the present case and that they would lead evidence in their defence.
5. DW-1 to DW-4 were examined in evidence on behalf of the respondents.
6. Having heard learned counsel appearing on behalf of the parties and after due consideration of the evidence on record, the learned Trial Court vide the judgment and order impugned in the present proceedings returned findings, which is reproduced hereinbelow, in extenso:
2.30 a.m prosecutrix had not stated to PW-7, SI Ved Parkash that any offence of ‘rape’ had been committed against her by the accused persons.
38. Testimony of PW-7 is very important in this regard. PW-7 SI Ved Parkash had categorically stated, in his examination in chief, that he had gone to the spot of incident three times on receipt of above said DDs. PW-7 when appeared as PW-4 in Sessions Case No. 111/14, in his cross examination by Ld counsel Sh S.A. Rajput, had specifically stated that when he reached the house of the prosecutrix on receipt of DD no 5A and DD no 6A, he met the prosecutrix and her son Chandan, Inspector Bhram Prakash Additional SHO and other beat staff were also present there. Also in the examination in chief PW-7 (while appearing in the Sessions Case No. 75/13, where he was examined as complainant witness), had specifically stated that after receiving the DD no.5A and 6A he had reached the spot of incident at about 2.40 a.m, there he met the prosecutrix and her son Chandan. At that time, complainant has informed him that it was a ‘property dispute’. Witness SI Ved Parkash has specifically stated in his examination in chief that prosecutrix did not disclose about being raped by any person at that time. Despite categorical statement of PW-7 SI Ved Parkash, in examination in chief, neither the witness was cross examined by the prosecutrix on these aspects nor any suggestion was given to the witness that he is deliberately trying to depose incorrectly or he has been won over by the accused persons. Since the testimony of PW-7 SI Ved Parkash, who is police official, who has reached the spot after receiving the DD entries regarding the quarrel and had inquired from the complainant about the incident, is uncontroverted and unchallenged by the prosecutrix herself, it inspires confidence and proves that even till 2.40 a.m, on 26/05/2009, no incident of rape had taken place. Except there being some quarrel between the parties, no serious offence was committed by accused persons against the prosecutrix. Testimony of PW-7 also proves that the son of prosecutrix was present in the house, although, the prosecutrix had tried to deny his presence at the spot of incident and has given the excuse that her son namely Chandan had already been sent by her to her brother’s house. Despite taking this stand, PW-7 had not been cross examined or suggested by the prosecutrix about speaking falsely before the court. Thus, I am of the opinion that testimony of PW-7 is credible testimony, which proves the dent in the story of the complainant. Repeated calls were made by the complainant for reporting the matter and in all the matters, complainant has reported that it was quarrel, which had taken place between herself and the accused persons. She had not narrated the serious offence being committed by accused persons. Nor she had placed or proved on record any offence regarding breaking open of the door by accused persons. Presence of son of prosecutrix namely Chandan at the place of incident has been proved by PW-7 SI Ved Parkash. Sh Chandan was material witness and since he has not been examined by prosecutrix, the only inference which could now be drawn is that his testimony must have been detrimental to the case of the complainant, hence he has not been examined by the complainant.
39. One more important aspect, required to be discussed is that in the cross examination, when the prosecutrix was asked about calling her brothers at the time when accused were trying to break open the door of her house before the alleged incident of rape or after the alleged incident, she had specifically stated that, “her brothers are not her chowkidars”, therefore, she had not called them either prior to or after the incident. But as per the testimony of PW-9, who is son of landlord, prosecutrix-complainant had called him after the incident and told him about the occurrence of alleged rape. However, PW-1, prosecutrix is silent towards this aspect. PW-1, in her testimony, has no where stated that she had informed about the alleged incident to PW-9. Thus, testimony of PW-9 becomes suspicious. Even otherwise, it becomes highly improbable that a person after being victim of serious offence will not inform her own brothers but will inform the son of the landlord, who is not ever residing in Delhi. Whereas her brothers are residing in Delhi, at the distance, which could be covered in 30 minutes on motorcycle. Therefore, I am of the opinion that there are material discrepancies between the testimony of PW-1 & PW-9 regarding being informed about the alleged incident. Even brother of prosecutrix namely Subhash and Anil have not been examined in this case. Admittedly Sh Anil is real brother of the prosecutrix. She had stated that she had gone to the hospital on 26/05/09 with her brother Sh Anil. Despite that, he has not been examined by the complainant. Even this fact of taking her brother to the hospital by prosecutrix, has been countered by PW-8 Ms ‘Baby’. She had stated that she does not know as to with whom, her mother had gone to the hospital. Hence, I am of the opinion that testimony of Sh Anil, with whom the prosecutrix had allegedly left her son and with whom prosecutrix had gone to the hospital allegedly would have been material witness in order to complete the chain of sequence. In the absence of testimony of Sh Anil, brother of the complainant, various lacunas have cropped up in the case of the complainant, which has not been explained by the complainant. Therefore, I am of the opinion that prosecutrix has not been able to prove her case beyond reasonable doubt that accused persons have committed house trespass or that they have committed rape upon the prosecutrix or that they have ever threatened her of dire consequences not to tell the incident to any one.
40. As regards the charge u/s 174A IPC as against accused Rashid is concerned, accused Rashid was in judicial custody, as per the application moved by Sh S A Rajput on 26/08/2013. It was mentioned in the application that accused Rashid was in Judicial custody in case FIR no 37/2011 PS Ranhola, hence production warrants were issued against the accused Rashid. No evidence has been led by the complainant to prove that accused Rashid had deliberately absented himself prior to his arrest in FIR No. 37/2011. As regards the charge u/s 174A IPC as against accused persons ie Wahid and Sarvar Noor, no evidence has been led by the prosecutrix. Hence, I am of the opinion that prosecutrix/complainant has not been able to prove the case as regards the offence u/s 174A IPC as against accused Rashid, Wahid and Sarvar Noor.
7. A perusal of the above extracted findings, insofar as they relate to the alleged commission of the offence under Section 452 IPC, clearly and unequivocally lead to but one inescapable conclusion, that the prosecution failed miserably to establish, by leading cogent evidence that, the door of PW-1’s house was either cut or damaged by the respondents, in order to commit house trespass.
8. Insofar as, allegation under Section 376 (2)(g) IPC is concerned, it is relevant to observe that at no stage in her calls—as evidenced by DD No.47A, 54A, 5A and 6A, which are spread out over a period of 5 hours— did she report anything therein, apart from the occurrence of a quarrel with the respondents.
9. Even when, PW-7 SI Ved Prakash admittedly visited the spot of the incident and met with PW-1 and her son Chandan, the latter only informed him of the occurrence of a quarrel owing to a property dispute and nothing further.
10. In addition, the conduct of PW-1, in the matter of reporting the incident does not inspire confidence. In short, the testimony of PW-1 does not establish the charge of ‘gang rape’ against the respondents in any manner much less beyond the shadow of doubt.
11. Further the medical testimony, as evidenced by Ex PW4/A, does not support the case of the prosecution either, in as much as, it does not establish the commission of rape upon the PW-1 by anybody, let alone the accused persons.
12. The Hon’ble Supreme Court of India in ‘Ghurey Lal vs. State of Uttar Pradesh’ reported as (2008) 10 SCC 450, authoritatively laid down the well settled principles, in relation to the reversing, overruling or disturbing the learned Trial Court’s verdict of acquittal in criminal cases as follows:
(vi) The trial court has ignored the evidence or misread by material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached – one that leads to acquittal, the other to conviction – the High Courts/appellate courts must rule in favour of the accused.”
13. Predicated on the evidence available on record and having had the benefit of hearing the learned counsel appearing on behalf of the parties, who have taken us through the relevant testimony, we are of the view that there are no compelling or very substantial reasons to discard the finding arrived at by the learned Trial Court and we have no hesitation in saying that the findings returned in the impugned judgment are clear, cogent and do not suffer in any manner from the vice of being perverse, so as to enable this Court to arrive at a conclusion different from the one arrived at in the impugned judgment and order.
14. In view of the foregoing discussion, we find no infirmity with the impugned judgment and order dated 19.12.2016, so as to warrant interference by this Court in the present appeal.
15. The appellant has been unable to establish the guilt of the respondents beyond the reasonable doubt, and due appraisal of the evidence on record, does not persuade us to arrive at a different view.
16. The appeal is accordingly dismissed with no order as to costs.
SIDDHARTH MRIDUL (JUDGE)
BRIJESH SETHI (JUDGE) JULY 29, 2019/as/ym/ad