In the Court of Dr. Gagandeep Mittal, Additional Sessions Judge
(Fast Track Court), Panipat. UID No.HR0203.
Sessions Case No : 08 of 2020. CIS No. : SC-27 of 2020.
CNR No. : HRPP01-000512-2020.
Date of Institution: 20.01.2020.
Date of Decision : 24.05.2022.
State Versus 1. Rakesh Dahiya son of Dodha Ram,resident of Village Gignau, Police Station Luharu, District Bhiwani at present NFL Colony, Model Town, Panipat.
2. Kaptan son of Jasbir Singh, resident of H.No.10, Gali No.1, Ward No.8, Shastri Nagar, Bahadurgarh….Accused.
FIR No : 595 dated 10.08.2019.
Under Sections : 328, 34, 376 and 506 of IPC. Police Station : Model Town Panipat.
Case committed vide orders dated 06.01.2020 and 25.08.2020 passed by Shri Kapil, the then learned Judicial Magistrate Ist Class, Panipat.
Present:
Ms. Mamta Rathee, Public Prosecutor for the State, assisted by Shri Subhash Maan, Advocate, Counsel for complainant.
Accused Rakesh Dahiya on bail, represented by Shri R.K.Trehan, Advocate.
Accused Kaptan on bail, represented by Shri Tejinder Malik, Advocate.
Argued by:
For prosecution : Ms. Mamta Rathee, Public Prosecutor for the
State, assisted by Shri Subhash Maan, Advocate, Counsel for complainant.
For the accused : Shri R.K.Trehan and Shri Tejinder Malik,
Advocates.
JUDGMENT
The above named accused Rakesh Dahiya and Kaptan have been sent up to face trial in the Court under Sections 328, 34, 376 and 506 by the Station House Officer, Police Station, Model Town, Panipat.
FACTUAL MATRIX
2. Shorn-off unnecessary details, on 10.07.2019, complainant/ prosecutrix (name withheld) showed up in police station and moved an application for initiating legal action against accused (i) Rakesh Dahiya son of Doda Ram and (ii) Kaptan son of Jasbir Singh. In her application, she disclosed that she used to go to Village Sondhapur, District Panipat for taking tuition of economics and accounts. Accused no.1 used to meet her on the way. One day, accused no.1 disclosed her that he was an engineer and used to provide employment to jobless people. He guaranteed to find a suitable job for her. He also told her that he had good acquaintance with her Mausa i.e. accused no.2 Kaptan. Thereafter, complainant asked her Mausa/accused no.2 Kaptan about accused no. 1 and accused Kaptan corroborated accused no.1’s claim. In this way, the accused won her confidence and on 11.05.2019, he took her to Royal Hotel where he offered her cold drink containing some stupefying substance. After having cold drink, she became unconscious. When she regained consciousness, she found herself nude and accused no.1 told her that he had clicked her photographs and video in naked condition and if she would divulge the matter to anyone, he would make the video viral. Thereafter, accused no.2 in collusion with accused no.1 threatened the complainant to murder her family members and further to spoil their reputation in the society. Since she was scared, she did not report the incident to anyone and on 21.06.2019, both the accused took her to Vrindavan. Accused kept her in Padmini Ashram and committed rape upon her against her consent. She further averred that accused no.1 started claiming that he had solemnized marriage with her whereas no such marriage had ever taken place. Broadly on these allegations, the prosecutrix prayed for taking legal action against the accused.
3. Acting on this application, FIR under Sections 328, 376, 506, 34 of IPC was registered. L/SI Saroj started the investigation. During investigation, place of occurrence was inspected and statements of witnesses were recorded. On 11.08.2019, statement of prosecutrix under Section 164 of Cr.P.C. was got recorded from learned Magistrate. Thereafter, medical examination of prosecutrix was got conducted from General Hospital, Panipat and parcels were collected. Thereafter, ASI Ranbir continued the investigation. On 14.08.2019, accused Rakesh son of Dodha Ram was arrested. He suffered his disclosure statement and in pursuance thereof, he got demarcated the place of occurrence. Potency test of accused Rakesh was conducted from General Hospital, Panipat and parcels were collected. On 19.08.2019, parcels were sent to FSL, Madhuban for examination. Thereafter, ASI Sant Ram carried out the investigation and scaled site plan was got prepared. After completion of investigation, challan qua accused Rakesh was presented in the Court on 19.10.2019. SI Ramesh, ASI Subhash Chander, ASI Prem Chand and ASI Surender Singh conducted further investigation. On 27.07.2020, accused Kaptan was joined in the investigation as he was on anticipatory bail vide order dated 21.07.2020 passed by Hon’ble High Court. Thereafter, accused Kaptan was arrested in the present case and ultimately released on bail. After completion of investigation, supplementary challan qua accused Kaptan was presented in the Court.
4. Copies of challan were supplied to the accused as envisaged under Section 207 of Cr.P.C. and vide orders dated 06.01.2020 and 25.08.2020, passed by Shri Kapil, the then learned Judicial Magistrate Ist Class, Panipat, the case was committed to the Court of Sessions for trial.
5. From the perusal of report under Section 173 of Cr.P.C. and other material placed on file, a prima facie case for the commission of offences punishable under Sections 328, 376(2)(n) and 506 of IPC, was found to be made out against accused Rakesh Dahiya and a prima facie case for the commission of offence punishable under section 376(2)(n) r/w section 120-B and 506 of IPC was made out against accused Kaptan. Accordingly, charges were framed against them vide order dated 08.01.2021. Accused abjured their guilt and intended to face trial.
PROSECUTION EVIDENCE
6. In an attempt to prove the accusations, the prosecution examined as many as sixteen witnesses in this case, their details are as under:-
PW1 Rajpal son of Rameshwar, owner/partner of New Hotel Royal, G.T.Road, Panipat has deposed that on 10.08.2019, he handed over copy of visitor register dated 14.05.2019 (Ex.P1) and dated 18.05.2019 (Ex.P3) alongwith two copies of ID proof i.e. driving licence Ex.P2 and Ex.P4 in the name of Rakesh Dahiya, to police and the same were taken into police possession vide memo Ex.P5, which bears his signature at point-A. He also brought the original record of the Hotel.
PW2 Shri Kapil, learned JMIC, Panipat has deposed that on 11.08.2019, Investigating Officer produced victim before him for recording her statement under section 164 of Cr.P.C. and she moved an application in this regard. Thereafter, he recorded statement of victim under section 164 of Cr.P.C (Ex.P7), issued certificate (Ex.P8) and passed zimni order (Ex.P9), under his signatures. Thereafter, he handed over copy of statement of victim recorded under section 164 of Cr.P.C. to the Investigating Officer. Prosecutrix/victim (name withheld) has appeared as PW3. In her statement, she deposed that she used to take tuition in the year 2018. On her way to tuition, she met accused Rakesh Dahiya. Accused Rakesh Dahiya told her that since she was studying properly, he would arrange an employment for her. Thereafter, she inquired from him as to how he would secure job for her. Accused showed her some papers. After sometime, he again met her and at that time, accused offered her something like frooti. After consuming the same, she lost her consciousness and did not know what all happened thereafter. When she regained her consciousness, she found herself in a hotel. Thereafter, accused started black-mailing her on the premise of some inappropriate photographs and videos stating, that he would upload those photographs and videos on internet and ruin her reputation. He also intimidated her stating that he would forward those photographs and video to her father and brother. She requested him not to do all this. Thereafter, accused asked her to follow his instructions. All these things happened on 14.05.2019. Since she was scared, she followed his instructions. On 01.06.2021, accused sent messages to her sister’s phone that he would implicate her father in a false case in collusion with police. She also proved on record photo copies of those messages as mark-A and mark-B. She further narrated that accused told her that he had acquaintance with her Mausa Kaptan and he did everything to her in league with Kaptan. Accused also claimed that he had performed marriage with her but in-fact no such marriage was ever performed. Accused published certain content in the newspaper and uploaded certain objectionable videos on You Tube. On 10.8.2019, she moved an application Ex.P10 at Police Post Assandh Road, Panipat and identified her signatures at point-A. On the same day, she handed over her caste certificate Ex.P11 to the police and same was taken into police possession vide memo Ex.P12. On 11.08.2019, her medical examination was got conducted at General Hospital, Panipat. She identified her signatures on the MLR at point-A. Thereafter, her statement Ex.P7 was recorded by Shri Kapil, the then learned JMIC, Panipat. She identified her signatures on statement Ex.P7 at points-A and B. Thereafter, her statement Ex.P13 was recorded by Legal Aid Counsel and she identified her signatures on statement Ex.P13 at point-A. She identified both the accused present in the Court.
PW4 Constable Sunil Kumar has deposed that on 10.08.2019, MHC of Police Station Model Town, Panipat handed over three sealed envelopes to him to deliver the same to learned Illaqa Magistrate, Superintendent of Police and Deputy Superintendent of Police, Panipat and he delivered the said envelopes to higher authorities without any delay. Till the time envelopes remained in his possession, the same were not tampered with. He has further deposed that on 11.08.2019, he remained associated with Investigating Officer SI Saroj in the investigation of the present case. On that day, Investigating Officer took victim to General Hospital, Panipat and moved an application for medical examination of victim. After medical examination, Dr. Neha Kaushik handed over one sealed parcel containing two swabs and two slides, one sealed envelope containing forwarding letter with copy of MLR and sample seal to SI Saroj and the same were taken into police possession vide memo Ex.P14. He had signed memo Ex.P14 being an attesting witness.
PW5 Ms. Pooja Arora, Legal Aid Counsel, District Courts, Panipat has deposed that on 11.08.2019, she had recorded statement of victim Ex.P3, which bears her signatures as well as signatures of victim.
PW6 EHC Rajender Singh has deposed that on 14.08.2019, he remained associated with ASI Ranbir in the investigation of the present case. On that day, ASI Ranbir arrested accused Rakesh vide arrest memo and conducted personal search of accused in his presence. On interrogation, accused Rakesh suffered disclosure statement Ex.P15 and in pursuance thereof, he led the police party to Royal Hotel, Panipat and got demarcated the place of occurrence vide demarcation memo Ex.P16. He further deposed that on the same day, medical examination of accused was got conducted from General Hospital, Panipat. After medical examination, doctor handed over one sealed envelope, one sample seal, one sealed parcel containing underwear and one glass vial containing blood to ASI Ranbir and the same were taken into police possession vide memo Ex.P17. He had signed Ex.P15, Ex.P16 and Ex.P17 being an attesting witness. ASI Ranbir had recorded his statement under section 161 of Cr.P.C. He identified the accused Rakesh present in the Court. Mool Chand (father of prosecutrix) has appeared as PW7. He deposed that he has five children and out of them, his daughter/victim at no.3 was studying in 12th class and used to go to attend some coaching classes. He further deposed that in August, 2019, one police official visited his house and informed that his daughter had solemnized marriage with Rakesh and they should send her with Rakesh. He inquired from his daughter and she told that accused Rakesh Dahiya met her on the way to tuition and assured that he would arrange an employment for her. Rakesh Dahiya also posed himself to be a Contractor. He also claimed that he had some acquaintance with her Mausa Kaptan. With these excuses, he won the faith of his daughter and took her to a hotel in his car and committed rape upon her. Accused also clicked some inappropriate photographs and video of his daughter and threatened his daughter not to reveal the incident to anyone, else he would kill her. Thereafter, Kaptan asked him to send his daughter to prepare for the exam and coaching classes. He sent his daughter with Kaptan and then Kaptan took his daughter to Delhi at some unknown location. He verified from Kaptan about his daughter, who told him that his daughter was with him only. He further deposed that accused Kaptan took his daughter in the month of June and his daughter returned home on 10.08.2019. He has further added that after verifying the facts from his daughter, they moved an application. He further deposed that accused Rakesh Dahiya and Kaptan committed wrong act upon his daughter in collusion with each other. He identified both the accused present in the Court.
PW8 EASI Jagbir Singh has deposed that on 20.09.2019, on the request of ASI Sant Ram, he visited the place of occurrence at Royal Hotel, G.T.Road, Anaj Mandi, Panipat and prepared scaled site plan Ex.P18 on the demarcation of ASI Sant Ram.
PW9 SI Ranbir Singh has deposed that on 14.08.2019, he arrested accused Rakesh from NFL Colony vide arrest memo and conducted his personal search. On interrogation, accused Rakesh suffered disclosure statement Ex.P15 and in pursuance thereof, he led the police party to Royal Hotel, Panipat and got recorded the place of occurrence vide demarcation memo Ex.P16. He further deposed that on the same day, he took accused to General Hospital, Panipat and moved an application Ex.P19 for potency test of accused. After medical examination of accused Rakesh, doctor handed over one sealed envelope, one sample seal, one sealed parcel containing underwear and one glass vial containing blood to him and the same were taken into police possession vide memo Ex.P17. EHC Rajender had signed Ex.P15, Ex.P16 and Ex.P17 as an attesting witness. He had recorded statements of witnesses under section 161 of Cr.P.C. He identified the accused present in the Court.
PW10 SI Dilbag Singh tendered into evidence affidavit Ex.PW10/A stating therein on 11.08.2019, L/SI Saroj had deposited with him one sealed parcel containing slides and swabs of victim, one envelope containing documents alongwith sample seal. He further deposed that on 14.08.2019, ASI Ranbir had deposited with him one sealed parcel containing underwear of accused, one blood sample, one envelope containing documents alongwith sample seal in the Malkhana. He further deposed that on 22.08.2019, he had handed over abovesaid samples to Constable Dinesh for depositing the same in FSL, Madhuban. On the same day, Constable Dinesh had deposited the abovesaid parcels in FSL, Madhuban and handed over the receipt to him. He further deposed that till the time samples remained in his possession, the same were not tampered with.
PW11 Inspector Saroj has deposed that on 10.08.2019, victim moved complaint Ex.P10 before her on which she registered formal FIR Ex.P20 and made endorsement Ex.P21 thereupon. On the same day, victim produced caste certificate Ex.P11 to her and the same was taken into police possession vide memo Ex.P12. On the same day, she visited placed of occurrence i.e. Room no.102, Royal Hotel, Panipat and prepared rough site plan Ex.P22 on the demarcation of victim. She further deposed that on the same day, Rajpal, Manager, Royal Hotel, Panipat handed over to her a copy of hotel visitor register dated 14.05.2019 and 18.05.2019 (Ex.P1 & Ex.P3 respectively) alongwith two copies of ID proof i.e. driving licence Ex.P2 and Ex.P4 in the name of Rakesh Dahiya and the same were taken into police possession vide memo Ex.P5. She further deposed that on 11.08.2019, she took victim to General Hospital, Panipat for her medical examination and moved an application Ex.P23 in this regard. After medical examination, Dr. Neha Kaushik handed over a sealed parcel containing two swabs and two slides, one sealed parcel containing forwarding letter with copy of MLR and one sample seal to her and the same were taken into police possession vide memo Ex.P14. Memo Ex.P14 was signed by Constable Sunil Kumar as an attesting witness. She further deposed that on the same day, she took victim to Judicial Complex, Panipat and counseling of victim was got conducted from Ms. Pooja Arora, Legal Aid Counsel, who recorded statement of victim as Ex.P13. Thereafter, she produced victim before learned Magistrate and moved an application Ex.P24 for recording statement of victim under section 164 of Cr.P.C. Thereafter, Shri Kapil, the then learned JMIC, Panipat recorded statement of victim under section 164 of Cr.P.C. and collected copy of statement of victim vide application Ex.P6. She had recorded the statements of witnesses under section 161 of Cr.P.C. and deposited the case property to Mohrar Malkhana, Police Station Model Town, Panipat.
PW12 Dr. Deepak Gupta, Medical Officer, General Hospital, Panipat has deposed that on 06.04.2019, Investigating Officer produced accused Rakesh for conducting his potency test and moved application Ex.P19. Thereafter, he conducted medical examination of accused Rakesh and prepared report Ex.P25, which bears his signatures. Thereafter, he prepared sealed parcel of underwear of accused Rakesh, one sealed parcel containing blood sample of accused, one sealed envelope containing forwarding letter alongwith original MLR and sample seal and handed over the same to Investigating Officer for examination at FSL, Madhuban. As per his opinion, nothing was suggestive that the persons were incapable of doing sexual intercourse. He proved parcel of alleged underwear as Ex.MO/1, parcel cloth as Ex.MO/2 and parcel of blood vial as Ex.MO/3.
PW13 EHC Labh Singh has deposed that on 27.07.2020, he remained associated with ASI Surender Singh in the investigation of present case. On that day, Investigating Officer ASI Surender Singh arrested accused Kaptan vide arrest memo Ex.P26 and conducted personal search of accused in his presence. On interrogation, accused Kaptan suffered disclosure statement Ex.P27 and he signed the same being an attesting witness. ASI Surender Singh had recorded his statement under section 161 of Cr.P.C. He identified accused Kaptan present in the Court.
PW14 Inspector/SHO Sunil Kumar has deposed that on 09.10.2019, after completion of investigation, he prepared report under section 173 of Cr.P.C. against accused Rakesh. He further deposed that on 31.07.2020, he prepared supplementary report under section 173 of Cr.P.C. against accused Kaptan. and identified his signatures.
PW15 ASI Surender Singh has deposed that on 27.07.2020, accused Kaptan appeared in Police Post Assandh Road, Panipat as he was on anticipatory bail by the Hon’ble High Court vide order dated 21.07.2020. Accused Kaptan was joined in the investigation. He arrested accused Kaptan vide arrest memo Ex.P26 and conducted his personal search. On interrogation, accused suffered disclosure statement Ex.P27and same was witnessed by EHC Labh Singh. He had recorded the statements of witnesses under section 161 of Cr.P.C. On 31.07.2020, after completion of investigation, Inspector/SHO Sunil Kumar prepared supplementary report under section 173 of Cr.P.C. PW16 Dr. Neha, Medical Officer, General Hospital, Panipat has deposed that on 11.08.2019, Investigating Officer produced victim for conducting her medical examination and moved an application Ex.P23. Thereafter, she conducted medical examination of victim and prepared report Ex.P28, which bears her signatures. Thereafter, he prepared one sealed envelope containing forwarding letter, original copy of MLR, sample seal, one sealed parcel containing two slides and two swabs from vaginal part and handed over the same to Investigating Officer for examination at FSL, Madhuban. After seeing the FSL report Ex.PX, she was of the opinion that possibility of sexual intercourse cannot be ruled out. She proved parcel of alleged slides and swabs as Ex.MO/4, Ex.MO/5 and parcel cloth as Ex.MO/6.
7. Besides them, prosecution tendered into evidence FSL report Ex.PX and gave up witnesses Director FSL, Madhuban, Criminal Ahlmad of the Court of Shri Kapil, the then learned JMIC, Panipat and ASI Sant Ram, being unnecessary.
8. In documentary evidence, the prosecution has relied upon the following documents:-
Sr.No. Exhibits Documents
1 Ex.P1 Copy of visiting register of New Hotel Royal
2. Ex.P2 Copy of driving licence of accused Rakesh Dahiya
3. Ex.P3 Copy of visiting register of New Hotel Royal
4. Ex.P4 Copy of driving licence of accused Rakesh Dahiya
5. Ex.P5 Recovery memo of hotel record and ID of accused Rakesh
6. Ex.P6 Application for collection of statement recorded u/s 164 of Cr.P.C.
7. Ex.P7 Statement of prosecutrix recorded u/s 164 of Cr.P.C.
8. Ex.P8 Certificate of learned Magistrate
9. Ex.P9 Zimni order dated 11.08.2019
10. Ex.P10 Complaint
11. Ex.P11 Copy of Scheduled Caste Certificate
12. Ex.P12 Recovery memo of Caste Certificate
13. Ex.P13 Statement of prosecutrix recorded by Legal Aid Counsel
14. Ex.P14 Recovery memo of sealed parcels pertaining to prosecutrix
15. Ex.P15 Disclosure statement of accused Rakesh
16. Ex.P16 Demarcation memo
17. Ex.P17 Recovery memo of sealed parcels pertaining to accused Rakesh
18. Ex.P18 Scaled site plan
19. Ex.P19 Application for potency test of accused Rakesh
20. Ex.P20 FIR
21. Ex.P21 Endorsement on complaint Ex.P10
22. Ex.P22 Rough site plan
23. Ex.P23 Application for medical examination of prosecutrix
24. Ex.P24 Application for recording statement of prosecutrix under section 164 of Cr.P.C.
25. Ex.P25 Carbon copy of MLR of accused Rakesh
26. Ex.P26 Arrest memo of accused Kaptan
27. Ex.P27 Disclosure statement of accused Kaptan
28. Ex.PX FSL Report
29. Mark-A, B & C Copies of WhatsApp chat
9. Thereafter, learned Public Prosecutor closed the prosecution evidence.
10. Statements of accused under Section 313 of Cr.P.C. were recorded, in which incriminating evidence was put to them, who denied the prosecution evidence. Accused further stated that a false case has been foisted against them and witnesses had deposed falsely. Accused Rakesh has further stated that victim and her father have lodged the false FIR as a counter blast to complaint dated 30.07.2019 filed by him against victim and her family members in Police Station Sector-29, Panipat. He and victim had friendly relations since January, 2019 and had performed the gandharv marriage. Thereafter, victim’s family demanded Rs.15,00,000/- from him and his family members with a warning that they would embroil them in a false case. He has further deposed that victim and her father got lodged this false complaint against him in Police Station Model Town, Panipat in collusion with police whereas police of Model Town, Panipat has no jurisdiction to register the present FIR. Victim has leveled false allegations and she has no documentary evidence to substantiate the allegation.
DEFENCE EVIDENCE
11. In defence, accused have examined SI Satpal as DW1. He deposed that on 09.06.2021, investigation of FIR no. 68 dated 27/02/2021 was assigned to him. He went through the contents of the FIR and discussed the same with SHO Sunil Kumar, Police Station Sector-29, Panipat. After discussion, SHO directed him to cancel the case. Thereafter, he prepared report under section 173 of Cr.P.C.(Ex.D91). The highlighted portion of Ex.D91 was recorded by him at the time of cancellation of FIR.
12. In documentary evidence, reliance was placed upon the following documents:-
Sr.No. Exhibit Documents
1 Ex.D1 WhatsApp chat
2. Ex.D2 to Ex.D83 Photographs
3. Ex.D84 WhatsApp chat
4. Ex.D85 to Ex.D90 Photographs
5. Ex.D91 Final report u/s 173 of Cr.P.C.
6. Ex.D91 to Ex.D102 Complaints on CM Window
13. Thereafter, defence evidence has been closed today i.e. 24.05.2022.
POINTS FOR DETERMINATION
14. From the facts, charges framed against the accused, and the evidence led by the prosecution, following points can be framed for the determination of the present case:-
(i) Whether accused Rakesh Dahiya administered some intoxicating substance after mixing the same in cold drink to prosecutrix, committed repeated rape upon her and advanced her life threat or not (sections 328, 376(2)(n) and 506 of IPC)?
(ii) Whether accused Kaptan hatched a criminal conspiracy with Rakesh Dahiya and escorted prosecutrix to Mathura where accused Rakesh Dahiya committed repeated rape upon her and advanced her life threat or not (section 376(2)(n) r/w section 120-B of IPC and 506)?
PROSECUTION ARGUMENTS
15. While leading arguments on behalf of State, Ms. Mamta Rathee, learned Public Prosecutor (assisted by learned counsel for the complainant) has submitted that prosecutrix used to visit village Sondhapur to take tuitions when she encountered accused Rakesh Dahiya. Accused introduced himself to be an employment provider and assured her that he would secure a good job for her. Accused also claimed to have good acquaintance with her relative (Mausa)/accused no.2 Kaptan. When she verified from accused Kaptan about accused Rakesh Dahiya, he also confirmed accused Rakesh Dahiya’s claim. In this way, the unfortunate prosecutrix/victim fell prey to his deceptive talks. Accused kindled false hopes in her and when he won her faith, he took her in New Royal Hotel, Panipat on 11.05.2019. He served her some laced cold drink and after consuming the same, she became unconscious. After sometime, when she regained her senses, she found herself nude. Accused told her that he had clicked her inappropriate photographs and video and in case she would reveal the incident to anyone, he would upload those videos on the internet. He also advanced her a life threat. When she reported about the incident to her Mausa accused no.2 Kaptan, instead of seconding her, he also intimidated to kill her parents. Prosecutrix got scared with the threat of accused. Thereafter, both the accused took her to Vrindavan on 21.06.2019 and kept her in Padmni Ashram. Even at Vrindavan, accused Rakesh Dahiya made physical relations with her against her consent. He again intimidated her that in case she would share the incident to anyone, he would viral her photographs and video on the internet and malign her reputation. Since the prosecutrix was terrorized with the threat of accused, she did not share the incident with anyone. However, vulnerability of the prosecutrix encouraged the accused and he started claiming to have married the victim whereas prosecutrix had never tied nuptial knot with him. Finally, after gathering some courage, she revealed the incident to her parents and ultimately, lodged the FIR. While concluding her factual-recap, she urged that accused incessantly exploited the victim for nearly four months.
16. She has further argued that in order to prove the allegations, prosecutrix herself stepped into the witness box as PW3. In her statement, she vividly disclosed all the details of the incidents in chronological order. She further added that her story has been further countenanced by her father PW7 Mool Chand, who has also deposed that accused duped his daughter and committed rape upon her on multiple occasions. She has further added that both these witnesses have been cross-examined at length by learned defence counsel but nothing fruitful to accused could be extracted from their mouths.
17. She has further argued that learned defence counsels may argue that the police station Model Town, Panipat had no jurisdiction in this case and therefore investigation was biased, whereas no leverage can be bestowed upon the accused on this account as no prejudice has been caused to accused with the investigation conducted by Model Town Police Station, Panipat.
18. She has further argued that in sexual offences, solitary statement of prosecutrix is sufficient to convict the accused, if it is consistent, unblemished and de hors concoction. She has further elaborated that prosecutrix of this case has remained consistent in all her statements like application Ex.P10, her statement recorded under section 164 of Cr.P.C. Ex.P7, her statement recorded by legal aid counsel Ex.P13 and in her statement before the Court as PW3. So she can be characterized as a “sterling witness”. She has further added that nevertheless her sole statement is sufficient to convict the accused, yet the statement of her father is icing on the cake as he has bolstered her version. She further added that in as much as prosecutrix of this case is a tenacious witness, accused are liable to be held guilty on her sole statement.
19. While winding up her submissions, she urged that accused may be convicted for all the offences, they have been charged with.
DEFENCE ARGUMENTS
20. In oppugnation, the whole story has been junked by the learned defence counsels. Mr. R.K.Trehan, Advocate appearing on behalf of accused Rakesh Dahiya has submitted that prosecutrix has concocted a cock and bull story to put a lid on her own sins. He has further submitted that prosecutrix got involved with accused voluntarily and consciously and depth/nature/intensity of their relationship can be gauged from their admitted WhatsApp chat for the period running from 08.01.2019 to 12.05.2019 Ex.D1, photographs Ex.D2 to Ex.D83, WhatsApp chat for the period running from 13.05.2019 to 29.06.2019 Ex.D84 and photographs Ex.D85 to Ex.D90. He has further added that the contents of WhatsApp chat and photographs not only give an insight into their proximity but also depict the level of maturity of the prosecutrix. He further explained that language and content of the conversation (including sexual content) allude that she voluntarily entered into relationship with the accused and accompanied him to hotels and Vrindavan out of her own volition. He further urged that since the prosecutrix was always a willing/consenting partner to every activity, allegations of rape cannot sustain against the accused Rakesh Dhayia.
21. He has further argued that in as much as story of prosecutrix is fake, it has inherent dents and weaknesses that emerged during the trial. He further explained that prosecutrix has alleged that accused took her to Royal Hotel, Panipat on 11.05.2019, administered her some laced cold drink and she became unconscious. When she regained her consciousness, she found herself nude and accused told her that he had clicked some inappropriate photographs and video. However, prosecutrix dithered about the date of visit of New Royal Hotel, Panipat as at the time of her medical examination (MLR Ex.P28) she revealed that the incident was of 11.05.2019 whereas in her statement before legal aid counsel (Ex.P13) she disclosed the date as 14.05.2019. New Royal Hotel record Ex.P1 reflects the dates of visit as 14.05.2019 and 18.05.2019. He has further added that hotel record simply proves that accused Rakesh Dahiya had visited the hotel on 14.05.2019 and 18.05.2019 but it nowhere proves that prosecutrix had also accompanied him on both the dates. He wound up his submissions arguing that inconsistency about the date of incident of New Royal Hotel in the statements of prosecutrix raises suspicion over the incident.
22. He has further submitted that WhatsApp chat Ex.D1 clearly depicts that she had been planning to see the accused in a hotel for quite some time. In her messages dated 22.1.2019 (Ex. D1) she even asked accused to pay Rs.2,000/- to buy some dress in the Hotel at the time of their visit and their conversation clearly falsifies her story that accused lured her on the promise of arranging a job for her and escorted her to hotel.
23. He has further contended that story of New Royal Hotel, Panipat further becomes suspicious as no video (of that date) as alleged by the prosecutrix was recovered from accused during investigation. No such video was ever produced by the prosecutrix to strengthen her version. He has further added that want of video not only raises doubt over the incident of New Royal Hotel, Panipat but even snaps the chain of events as prosecutrix allegedly succumbed to demands of accused because of photographs and video.
24. He further submitted that prosecutrix has claimed that she was served with some laced cold drink in New Royal Hotel and after consuming the same, she became unconscious but no intoxicating substance was admittedly recovered from accused. No medical report has come on record to countenance the allegations that she was ever drugged. He has further added that allegations of section 328 of IPC cannot sustain without medical evidence.
25. He has further contended that as alleged by the prosecutrix, the first incident took place on 11.05.2019 at Royal Hotel and thereafter accused took her to Vrindavan on 21.06.2019 and on both the occasions, he allegedly committed rape upon her against her consent. However, the FIR has been lodged by the prosecutrix on 10.08.2019, after three months of the first incident and about 50 days after the last incident for the reasons best known to her. He has further added that prosecution has not put forth any explanation for delay in lodging the FIR and delay is certainly fatal for the case of prosecution.
26. He has further argued that prosecutrix never raised any alarm despite having umpteen opportunities. He further stressed that prosecutrix did not report the incident to Receptionist, her parents or anybody after the incident of New Royal Hotel. Similarly, she did not venture to share the incident with anyone when she was sauntering in the open market with her sister at Vrindavan. He has further added that prosecutrix did not approach the authorities despite having manifold opportunities to report the incidents. Reticence of prosecutrix from raising alarm or from reporting the offence was not the natural conduct of a victim rather it suggests that she was always a voluntarily partner and involved with accused out of her own will.
27. At last, he argued that investigation in this case has been conducted in an abysmal manner. He further contended that fair investigation is the minimum requirement of criminal trial but in this case both the Investigating Officers and the SHO glossed over obvious facts and conducted the investigation in a biased and self styled manner. He has further elaborated that both the Investigating Officers were well informed that place of occurrence in this case was New Royal Hotel, Panipat which admittedly falls within the jurisdiction of Police Station Sector-29, Panipat but despite knowing this fact, they continued the investigation in Police Station Model Town, Panipat for the reasons best known to them. He has further referred to instructions of Government of India issued on 12.10.2015 to the Chief Secretaries, All State Governments/UT Administrations to follow the procedure of “zero FIR” in case offence is committed outside the jurisdiction of a particular police station. Whereas PW9 SI Ranbir Singh, PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar have admitted that they did not follow the procedure of zero FIR.
28. He has further added that prosecutrix in her statement recorded under section 164 of Cr.P.C. (Ex.P7) has categorically disclosed about the complaint already filed by accused Rakesh Dahiya in Police Station Sector- 29, Panipat against the complainant and her family for demanding money from him. Both the Investigating Officers have claimed that they had read the about said complaint in statement under section 164 of Cr.P.C. (Ex.P7) but they did not bother to verify or inquire about the contents. He further added that since no-one was hearing the accused, he moved multiple applications including at CM Window. Some of the applications reached PW14 Inspector/SHO Sunil Kumar but all these applications were thrown in dustbin by Inspector/SHO Sunil Kumar without even conducting any preliminary investigation with the perception that the matter was pending for investigation at the instance of complainant. Inspector/SHO Sunil Kumar has admitted that he did not record any statement viz-a-viz in all the complaints of accused. He concluded while submitting that the ultimate purpose of investigation is to discover the truth and not to suppress the truth and therefore police officers at the helm of investigation were supposes to consider the application moved by accused also.
29. He has further argued that truth never dies and fakeness of investigation emerged during statements of PW9 SI Ranbir Singh, PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar. He has further highlighted that a perusal of endorsement Ex.P21 reveals that DD entry in this case was registered on 10.08.2019 at 11:05 p.m. on the application Ex.P10 and thereafter, the FIR was lodged. Whereas Investigating Officer PW11 Inspector Saroj has claimed that she recorded the statement of prosecutrix on 10.08.2019 itself under section 161 of Cr.P.C. whereas no such statement is available on record. Similarly, she claimed to have reached the place of occurrence alongwith Constable Sunil at 10:00 a.m. on 10.08.2019 (prior to lodging the DD entry) to verify the incident of 11.05.2019. She spent nearly two hours in the hotel. On the other hand, PW14 Inspector/SHO Sunil Kumar has claimed that he also visited the spot on 10.08.2019 and the place of occurrence was near Binjhol Canal whereas Binjhol Canal is nowhere shown in either of the site plans. He has further submitted that act and conduct of PW11 Inspector Saroj and SHO Sunil Kumar clearly show that they were hand in gloves with the complainant party and therefore, the investigation was conducted in a slipshod manner to benefit the complainant side. He has further submitted that had the police officers performed their duties diligently they could have easily discovered that it was an open and shut case of consensual relationship. However, due to the reasons best known to them, they turned a blind eye to the version of accused and ultimately forced him to face the agony of trial. Winding up his submissions, he urged that case in hand demands that a departmental action may be ordered against the police officers who made mockery of criminal justice system.
30. While concluding his submissions, he urged that no-doubt in case of sexual offences, the statement of prosecutrix is sufficient to convict the accused if it is trustworthy, unblemished and free from concoction. However, it is equally a settled preposition of law that not every utterance of prosecutrix can be accepted as a gospel truth, if she is inconsistent and her story is improbable. In such an eventuality, accused cannot be convicted on the solitary statement of the prosecutrix and court should search for corroboration. He has further added that it is the solemn duty of the Court to protect the accused from false implication. Ultimately, he urged that accused Rakesh Dahiya may be acquitted from the charges.
31. Mr. Tejinder Malik, Advocate appearing on behalf of accused Kaptan has submitted that the name of accused Kaptan has been unnecessarily embroiled in this case whereas he has nothing to do with the case in hand. He has further submitted that prosecutrix has alleged that accused Rakesh Dahiya and Kaptan were in league and they hatched a conspiracy to ruin her life and accordingly, accused Rakesh Dahiya trapped the prosecutrix and ultimately violated her person. However, while making her statement under section 164 of Cr.P.C. Ex.P7, she stated that ‘perhaps’ her Mausa Kaptan is behind all these incidents. In other words, she was not sure about the role of accused Kaptan. He has further highlighted that in her statement-in chief examination as PW3, she has not stated even a single word against accused Kaptan, rather in cross-examination, she has specifically stated that she did not make any allegation against accused Kaptan as he did not commit any offence with her. He has further added that since the prosecutrix has stated that accused Kaptan had not committed any offence against her and no evidence is available has come on record to prove his complicity, no offence of Section 120-B is made out against accused Kaptan. Concluding his submissions, he prayed that accused Kaptan may be acquitted from the charges.
OBSERVATIONS WITH REASONS
32. After having the valuable assistance of learned Public Prosecutor for the State (assisted by learned counsel for the complainant), learned defence counsels and having perused the entire record painstakingly, it has transpired to this Court that application Ex.P10 led to the registration of FIR wherein complainant requested to take action against accused Rakesh Dahiya and Kaptan. In that application, she broadly alleged that accused Rakesh Dahiya, who was known to her mausa accused Kaptan, allured her on the promise of arranging an employment for her. Under that deception, he took her to New Royal Hotel, Panipat on 11.05.2019 and administered her some spiked cold drink and clicked her photographs in nude condition. Thereafter, both the accused Rakesh Dahiya and Kaptan took her to Vrindavan on 21.06.2019 and kept her in Padmni Ashram. Accused Rakesh Dahiya committed rape upon the prosecutrix at Vrindavan also. As and when she tried to resist the accused, he always browbeat her that he would upload her nude photographs and video on the internet. She did not reveal the incident to anyone to save the honour of her family. However, her silence encouraged accused Rakesh Dahiya and he started claiming that he got married to prosecutrix whereas she had never performed any marriage with accused Rakesh Dahiya. Ultimately, she disclosed everything to her parents and got lodged the FIR.
33. Now in order to prove the allegations contained in application Ex.P10, the prosecution has mainly relied upon the statement of PW3- prosecutrix. In her statement, she broadly reiterated the contents of her application Ex.P10. She has disclosed how accused lured her on the promise of arranging a job for her. She also deposed about the incidents of New Royal Hotel, Panipat and Vrindavan. She also claimed that accused clicked some photographs and video and ultimately black-mailed her on the premise of those photographs and video.
34. Apart from the statement of prosecutrix, prosecution has further relied upon the statement of PW7 Mool Chand. He deposed that in August, 2019, one police official visited their house and informed that his daughter/ victim had solemnized marriage with Rakesh and he should send his daughter with Rakesh. Thereafter, he inquired from his daughter, who told him that accused Rakesh Dahiya met her on her way to tuition. Accused Rakesh Dahiya posed himself to be a contractor and also an acquaintance of her mausa accused Kaptan. Under the garb of such talks, he took his daughter to a hotel and committed rape upon her. Accused even clicked some inappropriate photographs and video of his daughter and threatened that if she would reveal the incident to anyone, he would kill her and her family members. He has further deposed that in the month of June, accused Kaptan took his daughter on different locations on the promise of providing her coaching and brought her back on 10.08.2019.
35. Now here the question is whether the statement of prosecutrix corroborated by her father would be sufficient to prove the allegations of rape against accused or not. Law with regard to worth of statement of prosecutrix is no more res integra. Indubitably, conviction can be recorded solely on her statement if she is a ‘sterling witness’. Now, who is a sterling witness, in order to find answer to this question, reference to some of the celebrated judgments of Hon’ble Supreme Court of India would be profitable.
36. Hon’ble Supreme Court in Raju and others Vs. State of Madhya Pradesh, (2008) 15 SCC 133 has held that the accused must be protected against the possibility of false implication. It has been further held that in so far as the allegations of rape are concerned, the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception be taken as the gospel truth. It was held:
“10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statements has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court.
11. 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, particularly where a large number of accused are involved. It must further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but 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”.
37. Similarly, in Tameezuddln alias Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, it has been held that though evidence of 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. It has been held as follows:
“9. 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 belles logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.
38. In case titled Rai Sandeep alias Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21), Hon’ble Apex Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it was observed and held as under:
“22 In our considered opinion, the “sterling witness” should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
39. After revisiting all the ibid earlier precedents, the Hon’ble Apex Court, recently, in case titled Santosh Prasad alias Santosh Kumar versus
The State of Bihar, Criminal Appeal No.264 of 2020, decided on 14.02.2020 has defined “sterling witness” as- whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. The version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. Now in this conspectus when this Court examines the statement of prosecutrix in this case, unfortunately, she cannot be characterized as a sterling witness as on certain aspects, her version is contradictory to the rest of the evidence whereas at times, her story appears to be too far-fetched. In the case titled Tameezuddin alias Tammu Vs. State (NCT of Delhi) (supra), the
Hon’ble Apex court held that reliance upon the statement of prosecutrix 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. Since the story of prosecutrix is surreal, her sole statement won’t suffice to prove the allegations. Multiple reasons have impressed this court to reach at this conclusion. Reasons are detailed below:
(a) Preface of story contradicted.
40. (i) In her application Ex.P10, prosecutrix has claimed that she came in contact with accused Rakesh Dahiya on her way to tuition to village Sondhapur and accused projected himself as an engineer and an employment provider. He also assured the prosecutrix to find a good job for her. Accused also allegedly claimed that he had acquaintance with accused no.2 Kaptan (mausa of prosecutrix). With these talks, accused allegedly, won her faith. She even verified the credentials of accused Rakesh Dahiya from her mausa accused Kaptan who confirmed the same. However, this whole story falls flat when this Court reads the conversation Ex.D1 (Whats App chat) held between prosecutrix and accused Rakesh Dahiya. The contents of chat between the two reflects that she had been talking to him in the mid-night, asking money from accused to buy some dress, planning to see him in a hotel, about sex etc. Surprisingly, in her entire chat (running from 1 to 313 pages), she has not asked accused even once about her job which was allegedly the sole reason for her attraction/trust on accused. So, the WhatsApp chat between the duo clearly falsifies the introductory part of her application and gives first blow to the case of prosecution.
(b) Incident of New Royal Hotel is suspicious.
41. Story further unravels that on 11.05.2019, accused took her to New Royal Hotel, Panipat, administered her some laced cold drink and after consuming the same, she became unconscious. When she regained her consciousness, she found herself nude. Accused told her that he had clicked her photographs and video in naked condition and in case she would narrate the incident to anyone, he would upload her photographs and video on the internet and ruin the reputation of her family members. However incident of New Royal Hotel, Panipat has been found to be mysterious due to myriad reasons:
(i) Amorous language of the WhatsApp chats reflects her maturity. WhatsApp Chat Ex.D1 also shows that she had been planning to see the accused in Hotel for quite some time. She was alive of the ramification of her relationship with accused. She was pretty calculative in making her moves. She knew the advantages and disadvantages of her relationship.
(ii) Nevertheless, in her application Ex.P10, prosecutrix has claimed that accused took her to Royal Hotel on 11.05.2019 and administered her some laced cold drink and when she regained her consciousness, he found herself naked, she has nowhere stated that she was raped by accused in Royal Hotel. In her statements recorded under section 164 of Cr.P.C. Ex.P7 and recorded by legal aid counsel Ex.P13, she improvised her version and alleged that accused committed rape upon her in inebriated condition. However, while appearing as PW3, she again took a somersault and stated that after consuming the cold drink, she lost her consciousness and does not know what all happened to her thereafter. The ipse-dixit statements about the incident of New Hotel Royal, Panipat of the prosecutrix raises a suspicious over the entire incident.
(iii) Prosecutrix has made prevaricating statement about the date of incident too. At the time of revealing the history of incident when her medical examination was conducted on 11.08.2019, she revealed the date of incident as 11.05.2019. However, in her statement before legal aid counsel Ex.P13 and while appearing in the Court as PW3, she changed the date of incident as 14.05.2019. Even the hotel record does not prove any visit of accused in the hotel on 11.05.2019 and has record of 14.05.2019. The contradiction in the statements of prosecutrix with regard to the date of incident causes another dent in the prosecution story.
(iv) Prosecutrix has claimed that accused served her a laced cold drink and after consuming the same she became unconscious. However, admittedly apart from the statement of prosecutrix, no other medical evidence is available on record to prove that prosecutrix was administered any drug on the date of incident. No intoxicating or stupefying substance has been recovered from the possession of the accused. No gastric lavage of the prosecutrix was taken and sent for forensic examination. It may be added here that Hon’ble Punjab and High Court in case titled as Santosh versus Vinod and others (supra) has observed that ‘B. Indian Penal Code, 1860 Sections 328 and 506 Administration of poison-Order of acquittal-Appeal against it-Sustainability of-The very essential element of Section 328 is that the victim should be administered poison or any stupefying, intoxicating or unwholesome drug-The forensic examination of the stomach wash in order to determine the substance that administered was poison is, therefore, imperative for ascertaining the commission of offence- Simply because the victim was rendered unconscious would not lead to the conclusion that poisonous substance was administered to her-In present case, there is no medical evidence on record which can confirm that some poisonous substance was administered to the complainant-Appeal dismissed’. In the absence of any medical evidence, the allegation of the prosecutrix that accused administered some intoxicating substance is not believable, as it remains a bald assertion without any substantiation. (Section-328 IPC)
(v) Prosecutrix has further narrated that accused allegedly clicked some photographs and video in naked condition and thereafter, threatened that if she would narrate the incident to anyone, he would upload those photographs and video on internet. But admittedly, no such video has come on record. Investigating Officer PW11 Inspector Saroj has admitted in the cross-examination that no such video was either handed over by the prosecutrix to her during investigation nor she discovered or recovered from the accused. In short, no such video has come on record. Want of video not only raises a question mark over the incident of New Hotel Royal, Panipat on 11.05.2019 and 14.05.2019 but also raises a suspicion over the entire story because prosecutrix has claimed to have remained silent because of photographs/video.
(vi) Furthermore, PW1 Rajpal, owner of New Hotel Royal, Panipat has deposed that both the visitors who checked in their hotel on 14.05.2019 and 18.05.2019 were having sound mind when they checked out the room. Prosecutrix did not complain about any offence committed by accused either to the hotel manager, owner or the staff on that day.
(vii) The silence on the part of prosecutrix after the incident of Royal Hotel Panipat coupled with her chat dated 22.1.19 (Ex. D1) with accused wherein she was planning to see the accused in hotel, suggest that she voluntarily went to see the accused in Royal Hotel Panipat.
42. Owing to all these reasons, incident of New Hotel Royal, Panipat becomes doubtful.
(c) Allegations of 21.06.2019 at Vrindavan are doubtful.
43. As unfolded by the prosecutrix, both the accused took her to Vrindavan where they kept her in Padmni Ashram. Accused Rakesh Dahiya committed rape upon the prosecutrix against her consent and also threatened her not to disclose the incident to anyone; else he would upload her photographs and video on the internet. However, these allegations are also found to be suspicious due to multiple reasons:-
(i) Prosecutrix has made prevaricating statements qua these allegations. In her application, she has stated that both the accused took her to Vrindavan whereas in her statement recorded under section 164 of Cr.P.C. Ex.P7, she narrated a completely different story. In that statement, she has stated that when she and her sister were on their way to Delhi, they got a call from their mausa Kaptan to deboard the bus as his acquaintance would take them to Delhi for coaching. Believing him, they alighted from the bus and found that accused Rakesh Dahiya was the fellow, who was to drive them to Delhi for coaching. Instead of Delhi, accused took them to Vrindavan. In her statement as PW3, she did not state anything about her visit to Vrindavan and allegations or rape. Since the prosecutrix has given different versions regarding her visit, the story becomes doubtful.
(ii) In her application Ex.P10, she has alleged that both the accused took her to Vrindavan and kept her in Padmni Ashram and accused Rakesh Dahiya committed rape upon her. However, in her statement recorded under section 164 of Cr.P.C. Ex.P7, she has simply stated that when accused took them to Vrindavan instead of Delhi, they raised alarm and had a scuffle with accused and therefore, accused brought them back. She did not state anything about Padmni Ashram or about the physical relations allegedly made by accused against her consent. Her statement before legal aid counsel Ex.P13 and her statement in the Court as PW3 are totally silent about their visit to Vrindavan. So, apparently the statements of prosecutrix about the incident of rape at Vrindavan are ipse-dixit which again creates a dent in the whole story.
(iii) Prosecutrix has admitted in her cross-examination that she visited Vrindavan on 07.06.2019 alongwith accused Rakesh Dahiya, Kaptan and his family whereas on 21.06.2019, she went to Vrindavan with her sister and accused. She admitted her photographs Ex.D2 to Ex.D83. All these photographs speak volume about their visit. In photographs, she can be seen enjoying her journey, hugging the accused and making comfortable poses with him. No sign of force, struggle or threat is visible in any of the photographs. In short, pictures belie the accusations that accused forcibly took her to Vrindavan.
(iv) Even the conversation of victim with accused Ex.D84 wherein she was continuously planning with accused to go to Vrindavan, has falsified the accusations that accused forcibly took her to Vrindavan. She had vulgar chat on 18.06.2019 with the accused and even planned about driving schedule to Vrindavan. So, the WhatsApp chat and photographs have repudiated her story that she was forcibly taken to Vrindavan by accused.
(v) Prosecutrix has admitted in the cross-examination that they stayed for two days in Vrindavan. She visited local market along with her sister but she never called her family members. She did not report the offence to anyone. In other words, she neither raised alarm nor reported the crime to police despite having ample opportunities. Circumstances allude that she was a voluntary partner. In the case titled Santosh versus State of Maharashtra and another 2018(4) RCR (Criminal) 612, Hon’ble Bombay High Court observed that when there was no hurdle in reporting the offence, the reticence of prosecutrix from lodging the FIR, cannot be accepted as the natural conduct of the victim under such circumstances. It suggests that she was a voluntary partner. Findings of this judgment are squarely applicable even to the present situation as prosecutrix did not venture to raise alarm or to report the authority about the commission of offence by accused despite having opportunity and this behaviour of prosecutrix certainly suggests that she was a consenting partner and willfully visited Vrindavan with accused.
44. All these reasons have compelled this Court to hold that accused neither took her to Vrindavan forcibly nor made physical relations with her against her consent. The contents of chatting and her photos insinuate that she stepped out from her house and stayed with accused at Vrindavan voluntarily.
(d) Delay in lodging the FIR
45. According to prosecution, first incident took place on 11.05.2019 at New Hotel Royal, Panipat and last at Vrindavan on 21.06.2019. On both the occasions, he committed rape upon the prosecutrix allegedly. Apparently, there is a delay of three months from the first incident and of fifty days from the last incident. No viable explanation has been proffered by the prosecution for this delay. Delay in lodging the FIR can often result in embellishment, which is a creature of an afterthought. On account of delay, the report not only gets bereft of advantage of spontaneity rather danger of introducing coloured version, exaggerated account or concocted story as a result of deliberation and consultation, also creeps in. It is, therefore, essential that delay in lodging the FIR should be satisfactorily explained. Hon’ble Supreme Court in the case titled Prakash Chand Vs. State of Himachal Pradesh 2019(2) RCR Criminal 40 has held that in cases where sole testimony of prosecutrix is available, it is dangerous to convict accused, especially when prosecutrix could venture to wait for seven months (three months from first incident and about 50 days from second incident in this case) for filing the FIR of rape. So, unexplained delay in lodging the FIR is another minus point in the case of prosecution.
(e) Possibility of counter-blast.
46. Prosecutrix has candidly accepted in her statement recorded under section 164 of Cr.P.C. Ex.P7 that accused had moved a complaint against them and on 05/06.08.2019, police visited their house and told that she had solemnized marriage with accused whereas she had not solemnized the marriage. In her cross-examination, prosecutrix has candidly accepted that five days before moving the present application (whereupon the present FIR was registered), police had come from Police Station Sector-29, Panipat as a complaint had been filed by someone against them. It is also correct that police met her family members including her father, brother, mother, sister and herself. She has also admitted that she did not present any complaint to the police official on that day. She has also admitted that police visited their house in context of a complaint moved by accused Rakesh against her and all her family members. She has also admitted that police had read over the contents of complaint to her and her family members. Thereafter, on 10.08.2019, she visited Police Post Assandh Road, Panipat for moving an application. Her statement has been endorsed by her father Mool Chand while appearing as PW7, who has stated that in August, 2019, one police official visited their house and informed that his daughter had solemnized marriage with Rakesh and they should send their daughter with Rakesh. Apart from the oral statements, Ex.D91 reflects that accused had been moving constant applications since 17.08.2020 to lodge FIR against the complainant and her family members and since no action was taken, he presented an application before the Court with a request for registration of FIR and in pursuance of order dated 25.02.2021 passed by Ms. Jyoti Grover, the then learned JMIC, Panipat, FIR no.68 dated 27.02.2021 under Sections 383, 420, 506 and 511 of IPC was registered at Police Station Sector 29, Panipat and same FIR was ultimately got cancelled by the police with the observation that since the accused could not produce any proof of extortion apart from chatting, no case is made out against the accused. Police had also observed that accused was already married and divorced and started talking with prosecutrix in the year 2019. They both went to the hotel and had sex. Thereafter, they both chatted day and night. They both went for holidaying and made physical relations. They even exchanged gifts. Accused also claimed to have done Gandharv marriage. However, no proof was brought on record. The prosecutrix had denied the factum of marriage. Since no evidence of life threat came on record, FIR was ultimately cancelled. A careful reading of FIR lodged by accused demonstrates that accused had moved an application against prosecutrix and her family much prior to the instant FIR. In the wake of that application, police had even visited the house of complainant and inquired from her family members about the complaint moved by the accused. Admittedly, prosecutrix did not move any application on the day when police visited her house and moved application five days thereafter. All these facts give rise to the possibility that present FIR was lodged to counter the application moved by accused against the victim and her family.
(f) Investigation is improper and unfair.
47. The main aim of the investigation in criminal justice system is to search for the truth. In as much as the edifice of Criminal Justice System is based on investigation; unfair, improper and opaque investigation of criminal cases, can increase the probability of acquittal of criminals and conviction of innocent which would obviously undermine the trust of people in the criminal justice system. Improper Investigation creates a pavement to Unfair Judgment. The importance of fair investigation has been repeatedly emphasized by the Hon’ble Apex Court in many judgments. In the case titled Babu Bhai versus State of Gujarat and others, Criminal Appeal No.1599, decided on 26.10.2010 the Hon’ble Apex Court has observed as follows:-
“Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation”
48. Similarly, in State of Uttar Pradesh versus Bhagwant Kishore Joshi AIR 1964 SC 221, it was held by the Hon’ble Supreme Court of India;
“Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in this opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing. He is also entitled to search the place of the offence and to search other places with the object of seizing articles connected with the offence. No doubt, for this purpose he has to proceed to the spot where the offence was committed and do various other things. But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an investigating officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquire upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation.
In the considered opinion of the court, although an accused would have no right of hearing, however, a duty is cast on the investigating agency to conduct fair and impartial investigation. If the investigator receives relevant information in regard to the facts of a case under investigation, be it from the complainant informant, a witness or even the accused, a duty is cast on the said investigating officer to investigate that aspect. In case the investigation is select and one sided, the truth cannot be unearthed. If facts or some evidence/material is brought to the notice of the investigator, on consideration of which it can be demonstrated that the accused is not connected with commission of the crime, surely in such cases, the investigating agency would be obliged to investigate that aspect, in the interest of fair play and purity of administration of criminal justice. For this purpose, the information given by the accused cannot be ignored on the analogy that he has no right to be heard.”
49. The judgment rendered by the Hon’ble Supreme Court in Ram Lal Narang etc. versus State of Delhi 1979 AIR 1791, says:-
“The right of a complainant is precious; in so far he is a victim of crime. However, in case an innocent person is subjected to investigation, and consequent prosecution and trial, not only his life but also the life of his family is adversely affected. His social standing is diminished, because the trial is protracted and all through, that person is an “accused”. For all these reasons an investigation is required to be proper, fair, unbiased, effective, systematic, and objectively reasoned. The investigating agency is required to be conscious of the fact throughout the investigation that at the stage of investigation, an ‘accused is merely a suspect’. In case the investigation is not as expected in law, administration of criminal justice becomes the victim and the affected person is constrained on approaching a court of law.”
50. In this case, initially the investigation was conducted by Inspector Saroj and then by SI Ranbir Singh and challan was ultimately prepared by Inspector Sunil Kumar, SHO, P.S. Model Town, Panipat. However, all these police officers of P.S. Model Town, Panipat compromised the principle of fair, impartial and judicious investigation to the hilt. They glossed over major obvious facts which would have never skipped had the matter been probed in an unbiased manner by them. These instances are not omissions on the part of Investigating Officers or the SHO, rather appear to be deliberate and conscious moves taken by them for the reasons best known to them. The instances are given below:-
(i) Investigating Officers i.e. PW8 SI Ranbir Singh & PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar have admitted with condor that the place of occurrence in this case was New Hotel Royal, Panipat which falls within the jurisdiction of Police Station Sector-29, Panipat. Investigating Officer PW11 Inspector Saroj also admitted that she verbally intimated Inspector Sunil Kumar about the place of occurrence, who told her that case can be registered anywhere in any of the police station in the same district. However, she did not record any such instruction in the case diary. Similarly, PW9 SI Ranbir Singh, who received the case file on 12.08.2019, admitted that the place of occurrence was falling within the jurisdiction of Police Station Sector-29, Panipat and not within the jurisdiction of Police Station Model Town, Panipat. He also admitted that in such an eventuality, mechanism of “zero FIR” was to be followed. However, no such procedure of zero FIR was observed in this case. PW14 Inspector/SHO Sunil Kumar has not directly admitted that the place of occurrence was New Hotel Royal, Panipat but has accepted that Investigating Officer had read over the contents of complaint to him. Meaning thereby, he also had information that place of occurrence was falling within the jurisdiction of Police Station Sector-29, Panipat. All these police officers were alive of the fact that place of occurrence was not falling within their jurisdiction from the very beginning still they proceeded with the investigation of the case for the reasons best known to them. This court is at a loss to understand as to why the police officers of Model Town, Police Station continued with the investigation once they realized that place of occurrence was not falling in their jurisdiction and did not follow the procedure of zero FIR. Investigation of a case without having jurisdiction not only violates the principles of fair and impartial investigation but even contravenes the directions issued by the Government of India in Advisory dated 12.10.2015 (No. 15011/91/2013-SC/ST-W) that enjoins police authorities to follow the procedure of zero FIR if the offence has been committed outside the jurisdiction of that police station.
(ii) PW11 Inspector Saroj has candidly accepted that prosecutrix had revealed about the complaint moved by accused against her, Geeta Ranga, Sukriti, Kaptan, Manish and Sushila in her statement recorded under section 164 of Cr.P.C. but the IO did not endeavour to verify the contents of that application. Similarly, PW9 SI Ranbir Singh, who received the case file on 12.08.2019 for further investigation, though has denied to have any information about the complaint that was moved by accused against the prosecutrix and her family members for raising illegal demand of Rs.15,00,000/-, yet he too admitted that he had read over the statement given by prosecutrix under section 164 of Cr.P.C wherein complaint moved by accused was mentioned. So it can be presumed that he also had information about complaint moved by the accused against the prosecutrix and her family members but he too did not bother to verify the contents or took pain to investigate the complaint made by the accused. Likewise PW14 Inspector/SHO Sunil Kumar though has denied to have any information about the complaint moved by the accused in Police Station Sector-29, Panipat prior to the lodging of the instant FIR, yet he admitted that he received similar complaints Ex.D91 to Ex.D102 moved by accused but he did not investigate those complaints as the matter was under investigation with them. He did not venture to record the statements of accused or his family members pertaining to those complaints. Not even a single word has been written in charge sheet filed against accused in this case about the complaint/complaints moved by him. As held in the case titled State of Uttar Pradesh versus Bhagwant Kishore Joshi(supra) If the investigator receives relevant information in regard to the facts of a case under investigation, be it from the complainant informant, a witness or even the accused, a duty is cast on the said investigating officer to investigate that aspect. If the investigation is select and one-sided it won’t be construed as a fair investigation. Act of shutting their eyes by the Investigating Police Officers qua the complaints moved by accused apparently also violated the principle of proper and fair investigation.
(iii) Since the investigation has been conducted in a slipshod and clandestine manner, the cross-examination of PW9 SI Ranbir Singh, PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar illuminated the loopholes. Admittedly, the DD entry in the present case was made on 10.08.2019 at 23:05. However, PW11 Inspector Saroj has admitted in the cross-examination that she reached the place of occurrence on 10.08.2019 at about 10:00 a.m. She went to the hotel. She checked the register, collected record and spent two hours in the hotel on 10.08.2019. She even recorded the statements of prosecutrix and her father. In nutshell, she started the investigation, even prior to lodging of FIR. Similarly, PW14 Inspector/SHO Sunil Kumar has also admitted that he visited the place of occurrence on 10.08.2019 with the Investigating Officer and he certified the police proceedings on the spot itself in the case diary. Furthermore, according to PW11 Inspector Saroj, the place of occurrence was New Hotel Royal, Panipat, on the contrary, according to PW14 Inspector/SHO Sunil Kumar, the place of occurrence was near Binjhol Canal. Inconsistency qua the place of occurrence in the statements of Investigating Officer PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar who claimed to have visited the place of occurrence on the same day throws beacon light on the fakeness of the investigation.
51. Section 156(2) of Cr.P.C. contains an embargo that no proceeding of a police officer can be challenged on the ground that he has no territorial power to investigate the case, but this provision is meant to shield the bonafide actions of a police officer who conducts proceedings to meet out some urgency or to serve the cause of justice. Such officer would always have an explanation for his actions. However in this case, no explanation has been given by either of the police officers for assuming jurisdiction not vested in them and therefore, their actions cannot be protected under section 156(2) of Cr.P.C. Furthermore, their adventure has certainly prejudiced the interest of the accused because had the investigation been done by the officers of Police Station, Sector 29, Panipat, they would have been in a better position to conduct a thorough investigation into the matter as they had received a complaint from accused against complainant and her family members prior to lodging of the current FIR.
52. This court is also alive of the legal proposition that faulty investigation by itself does not give any leverage to the accused but there is distinction between faulty investigation and unfair/biased investigation. Faulty investigation means failure to collect all the relevant incriminating evidence or follow the procedure enshrined under the law. Unfair/biased investigation suppresses the truth which is against the intrinsic feature of investigation as investigation is meant to discover the truth. Assuming jurisdiction of a matter, not vested in the police of Model Town, Panipat and then disregard to complaints moved by the accused against the complainant and her family prior to registration of current FIR, certainly lean towards unjust/one-sided investigation. It is a settled law that not only fair trail, but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Accordingly, investigation must be fair, transparent and judicious and it is the immediate requirement of rule of law. Differently put, unfair investigation is violation of Fundamental Rights of accused.
53. Now if this Court puts long story short, case of prosecution has major defects like preface of story contradictory to evidence, incident of New Royal Hotel is suspicious, allegations of 21.06.2019 at Vrindavan are doubtful, possibility of this case being a counter-blast, delay in lodging the FIR, want of medical evidence and unfair investigation. Owing to all these chinks in prosecution’s armour, as already observed by this court in the beginning of discussion, prosecutrix cannot be said to be a ‘sterling witness’. In other words, her sole statement won’t suffice to convict the accused. In such an eventuality, court is enjoined to search for corroboration. However, even after searching exhaustively, no corroboration is traceable. Therefore, accused deserves concession of benefit of doubt. For this observation, this Court has taken support from the case law titled as Santosh Prasad alias Santosh Kumar versus The State of Bihar, Criminal Appeal No.264 of 2020, decided on 14.02.2020 wherein it has been held that:-
“There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix- PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.”
54. Since the prosecution has not been able to quell all reasonable suspicions, it cannot be held that charges against accused Rakesh Dahiya have been proved beyond shadow of doubt. Hence, point no.1 for determination is decided against the prosecution and in favour of the accused.
(ii) Whether accused Kaptan hatched a criminal conspiracy with Rakesh Dahiya and escorted prosecutrix to Mathura where accused Rakesh Dahiya committed repeated rape upon her and advanced her life threat or not (section 376(2)(n) r/w section 120-B of IPC and 506) ?
55. As alleged by the prosecutrix in her complaint, accused Kaptan was equally a party to the crimes committed by accused Rakesh Dhayia and therefore, he is equally liable for the offence committed by accused Rakesh Dahiya. Nevertheless, she leveled allegations against accused Kaptan (mausa) in her complaint but in her statement recorded under section 164 of Cr.P.C. Ex.P7, she has simply stated that her mausa Kaptan “perhaps” might be behind all the acts of accused Rakesh Dahiya. Her statement before legal aid counsel Ex.P13 is totally silent about any allegation against accused Kaptan. Finally, while appearing as PW3, she did not state even a single word against accused Kaptan. Contrarily, in the cross-examination, she has specifically admitted that ‘it is correct that I have not made any allegation against accused Kaptan in my examination-in-chief as he did not commit any offence with me’. Apparently, prosecutrix has neither leveled any allegation against accused Kaptan nor she stated anything against him while appearing as a prosecution witness. Furthermore, in order to convict an accused under Section 120-B IPC, the prosecution should prove that there was a direct meeting of minds between the two accused whereas in this case, prosecution has not adduced any evidence direct or indirect to show that both the accused conspired together to exploit the victim. So no case of Section 120-B IPC is made out against accused Kaptan. So, this point for determination is decided against the prosecution and in favour of the accused.
FINAL ORDER
56. As an upshot of the entire discussion, since both the questions for determination are decided against the prosecution and in favour of the accused, accused Rakesh Dahiya and Kaptan are acquitted of the charges levelled against them. Their bail bonds and surety bonds stand discharged. Case property be disposed off as per law but after expiry of the period of limitation to appeal.
57. Before parting with this judgment, this Court would like to record its displeasure/anguish over the manner in which the investigation was conducted by PW9 SI Ranbir Singh, PW11 Inspector Saroj and summed up by PW14 Inspector/SHO Sunil Kumar. PW9 SI Ranbir Singh, PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar turned a blind eye to the intrinsic canons of fair investigation (explained in paragraph no. 50). They conducted the investigation without having Jurisdiction over the matter and jettisoned the complaints moved by accused. They could not render any explanation for their actions in their statements. Seeing their act and conduct, this Court finds it proper to order departmental action against PW9 SI Ranbir Singh, PW11 Inspector Saroj and PW14 Inspector/SHO Sunil Kumar for conducting investigation in slipshod manner and for compromising the minimum requirement of fair investigation imbibed in Criminal Law. Copy of judgment be sent to Superintendent of Police, Panipat for compliance under the intimation to this court. Copy of judgment be also sent to DGP, Haryana through proper channel for information. File be consigned to the record room after due compliance.
Pronounced. 24.05.2022.
(Dr. Gagandeep Mittal ) Additional Sessions Judge, (Fast Track Court) Panipat.
UID No.HR0203.