Delhi District Court
State vs . Uday Bhan @ Bittu on 7 October, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 57/15.
Unique Case ID No. 02405R0081092015.
State Vs. Uday Bhan @ Bittu
S/o Sh. Inder Dev Sharma,
R/o H.No.35, Near NSG Gate,
Samalkha,
New Delhi.
Date of Institution : 13.7.2015.
FIR No. 505 dated 26.10.2014.
U/s. 328/376/34 IPC.
P.S. Kapashera.
Date of reserving judgment/Order : 03.10.2015.
Date of pronouncement : 07.10.2015.
JUDGMENT
1. Accused Uday Bhan had been chargesheeted by the prosecution for having committed the offences u/s.376/328/34 IPC.
2. It is the case of the prosecution that the prosecutrix namely 'S' (real name withheld in order to conceal her identity) knew the accused for the last 15 years and she had given a loan of Rs.7 Lacs to him. For the last few days before the registration of the FIR, she had been demanding back the money from the accused but he was avoiding to repay the loan. On 25.10.2014, the accused asked her to reach the petrol pump near Pushpanjanli Farm House on Barthal Road between the airport and Chhawla to SC No.57/15. Page 1 of 15 receive the money. Accordingly, the prosecutrix reached the said petrol pump at about 2.15 p.m. She met the accused and demanded money from him. However, the accused asked her to first have tea. The accused brought the cup of tea from a tea vendor near the petrol pump which the prosecutrix took. Thereafter, she drank some water. Soon she started feeling giddy and became unconscious. When she regained consciousness, she found herself inside a room with all her clothes taken off. She realized that a wrong act has been committed with her. A person aged about 35 years was also standing in the room. He told the prosecutrix that he is taking pity on her and asked her to wear her clothes and leave. She put on her clothes, came down from the stairs and asked an auto rickshaw driver to take her to the Metro Station. The auto rickshaw driver told her that the place is Bhogal. He dropped her at Pragati Maiden Metro Station, from where she made a call to telephone no.100.
3. It is further case of the prosecution that the information was received at P.S. Tilak Nagar on 25.10.2014 at 7.10 p.m. from the Control Room to the effect that the lady caller has been raped near entry gate of Pragati Maidan. The call had been made from mobile no. 8750607054. The information was recorded as DD No.25A and was entrusted to SI Rajesh Kumar for suitable action. He alongwith Const. Jaivir reached the spot near Pragati Maidan Metro Station and met the prosecutrix. PCR Van had already reached there. The prosecutrix was taken to RML Hospital in PCR van where her examination was conducted vide MLC No.E229401/14. NGO Counsellor Ms. Lalita also reached the hospital and counselled the prosecutrix. Thereafter, the SC No.57/15. Page 2 of 15 prosecutrix was declared fit for statement by the doctor and hence her statement was recorded by SI Rajesh Kumar. Since it appeared that the offence has not been committed within the territorial jurisdiction of P.S. Tilak Marg, a Zero FIR was registered on the statement of the prosecutrix, which was later on sent to P.S. Kapashera. A fresh FIR No.505/14 was registered in P.S. Kapashera on 26.10.2014 and the investigation was marked to SI Indu Mehra. She received a sealed pullinda from SI Rajesh Kumar containing Sexual Assault Evidence Collection Kit and the gastric lavage of the prosecutrix as well as the MLC of the prosecutrix. She prepared the rough site plan of the spot of incident and recorded the statement of witnesses u/s.161 Cr.PC. She got the statement u/s.164 Cr.PC of the prosecutrix recorded. She obtained the call details record and location chart of the mobile phone of the prosecutrix as well as the accused. Accused was formally arrested by the IO and his medical examination was got conducted in Safdarjung Hospital.
4. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned Ld. Magistrate.
5. Upon committal of the case to the court of Sessions, Charges u/s.328 IPC and u/s.376 IPC were framed against the accused on 04.9.2015. Accused denied the charges and hence trial was held.
6. At trial, the prosecution examined 11 witnesses to prove the guilt of the accused. Ld. APP has tendered in evidence SC No.57/15. Page 3 of 15 the FSL result Ex.PA. The accused was examined u/s.313 Cr.PC on 22.9.2015 wherein he admitted that he knew the prosecutrix for the last 15 years but denied that he had taken any loan from her or that he had committed the offence alleged against him. He stated that he did not meet the prosecutrix on 25.10.2014 and was present at his house and at his shop throughout the day as it was the festival of Bhai Dhuj on that day. He admitted that he is using mobile no. 9718845777. He chose not to lead any evidence in his defence.
7. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
8. The prosecutrix has been examined as PW2. She deposed that she knew the accused for the last 15 years and the accused had been visiting her house since December, 2000. Her husband had already expired. The accused used to take her to outing and also used to spend nights at her house. She further deposed that she had given a sum of Rs.7 Lacs to the accused in the year 2012 for purchase of a house for her. However, the accused did not purchase any house for her and used to avoid her queries in this regard on one pretext or the other. When she started demanding back the money from the accused, he started quarrelling with her and also used to abuse her. The accused then made a call to her on 22.10.2014 expressing his intention to return the money to her in one or two days. He again made a call to her on 24.10.2014 asking her to meet him the next day at petrol pump near Pushpanjali Farm House to receive back her money.
SC No.57/15. Page 4 of 159. She further deposed that she reached the said petrol pump on 25.10.2014 at about 2.15 p.m. The accused also reached there in about one or two minutes. When she asked him to pay her the money, he suggested to have tea first. Accordingly, the accused brought a cup of tea from the nearby tea shop. She drank the tea and after some time took water also. Thereafter, she became unconscious. She further stated that when she regained consciousness at about 7 p.m. or 8 p.m., she found herself inside a room with very little light. Her clothes had been taken off. A person aged about 30 to 35 years was present in the room whom she did not know. That person handed over her clothes to her and then she left. Upon coming on to the road, she requested an auto rickshaw driver to drop her at some bus stand. He dropped her at Pragati Maidan Metro Station. She was having her mobile phone with no. 8750607054 with her, from which she made a call at telephone no.100. Police officials came to the spot and took her to a hospital where she was kept for the whole night for treatment.
10. She further deposed that from the hospital, she was taken to a nearby police station in the morning where her statement Ex.PW2/A was recorded. Then she returned home. She was summoned to P.S. Kapashera on 27.10.2014 and was then brought to Dwarka Court where a Ld. Magistrate recorded her statement which she proved as Ex.PW2/B.
11. In the cross examination, she stated that her husband expired in the year 2003 but she has been residing separately since the year 1999. She did not marry after the death of her husband Anoop. She denied that she had solemnized marriage SC No.57/15. Page 5 of 15 with Govind Saran Aggarwal and after taking about Rs.10 Lacs to Rs.12 Lacs from him, she came to Delhi from U.P. She admitted that her official name is 'SH' and this name is recorded in all her school documents. According to her, 'S' is her pet name at home.
12. She further deposed that she was having Rs.7 Lacs in cash with her at her house which she gave to the accused in the year 2012. She stated that she has been earning Rs.5,000/- to Rs. 6,000/- per month from her Beauty Parlour shop. She pays Rs. 3,000/- per month as rent for the house in which she is residing. She was paying the rent as Rs.1,100/- per month in the year 2012. She pays Rs.200/- to Rs.250/- per month as electricity charges and saves Rs.20,000/- to Rs.22,000/- per year. She denied that it was not possible for her to save such a huge amount of Rs.7 Lacs. She deposed that she has an account in State Bank of India, Vasant Kunj, which she had opened in the year 2004 but was not depositing her savings in the said account as the bank was at a distance from her residence. She did not open her account in any bank in her neighbourhood as she was not having any such knowledge. She did not requested the accused to help her in opening an account in a nearby bank. She used to keep her whole savings in a small box in the almirah. She could not tell the number of bundles of notes which she gave to the accused. She also could not tell how many bundles were of Rs.1000/- notes, how many bundles were of Rs.500/- notes, how many bundles were of Rs.100/- notes. She had not taken any receipt from the accused in lieu of the said money. She had given the money to the accused at her house in presence of her son who is 20 years old. She did not file any complaint against the accused in the year 2012 and year SC No.57/15. Page 6 of 15 2013 when he avoided returning money to her and started quarrelling as well as abusing her.
13. She admitted that she did not talk to the accused on 24.10.2014 and has stated incorrectly and in the examination in chief that the accused made call to her on 24.10.2014. She further stated that the tea vendor was at a distance of 10 to 15 paces from the spot where accused met her and was visible from the spot where she was standing. She admitted that the tea vendor prepared the tea and the cup of tea was brought to her by the accused. She stated that she alongwith her Counsel had taken the IO to that spot and had shown the tea vendor to the IO. She admitted that the lady seen in bridal dress in photographs Ex.PW2/D1 and Ex.PW2/D2 (colly) is herself. However, she did not know the male person in those photographs sitting besides her with garland around his neck. She stated that she had visited the shop of accused only once.
14. The version of the prosecutrix, on the face of it, seems to be improbable and far from being credible or trustworthy. This is so for various reasons.
15. She has stated that the accused had called her to the petrol pump near Pushpanjali Farm House on 25.10.2014 to return money to her. In the FIR statement Ex.PW2/A, she has stated that she had given Rs.7 Lacs on loan to the accused whereas in her statement u/s.164 Cr.PC Ex.PW2/B and in her deposition before this court, she has stated that she had given this sum of money to the accused for purchase of a house for her. It is thus clear that SC No.57/15. Page 7 of 15 she is not sure in her mind herself regarding the purpose for which she had paid this amount of money to the accused. Assuming that she had paid the said money to the accused for the purchase of a house for her, her testimony in this regard is too vague to be believed. She has nowhere explained as to in which area had the house to be purchased. It appears from her testimony that she had straightway handed over the sum of Rs.7 Lacs to the accused with the request to purchase a house without specifying the area in which the house should be situated or the rough estimate of the total purchase price of the house. Normal conduct would have been that the prosecutrix would go alongwith accused to see and select the house to be purchased and then only talks could have been initiated with the owner of the house and if the deal would have been finalized, only then the occasion for payment of money would have arisen. Since nothing like this has been done by the prosecutrix, it is highly improbable and unbelievable that she would have made any payment of money to the accused for purchase of a house.
16. The prosecutrix has deposed in the cross examination that the amount of Rs.7 Lacs was available in cash with her at her house and this amount of money accumulated out of her savings from her monthly earnings. At the same time, she has further deposed that she has been earning Rs.5,000/- to Rs.6,000/- per month, out of which she was paying Rs.1,100/- per month as rent in the year 2012. Her household expenses were between Rs. 4,000/- to Rs.5,000/- per month. Therefore, with her monthly expenses being almost equal to her monthly earnings, it would not have been possible for her to save any money from her monthly SC No.57/15. Page 8 of 15 earnings. According to her, she used to save Rs.20,000/- to Rs. 22,000/- per year. Assuming it to be true, it would have taken her about 35 years to save Rs.7 Lacs from her earnings. She has mentioned her age as 35 years during her deposition which means she should have started earning and saving right from the day of her birth, which is even beyond imagination. She has further stated that she used to keep her savings in a small box in the almirah in her house and did not deposit the same in her bank account. The earning capacity of the prosecutrix and her financial status, which has come out in her cross examination as mentioned herein above, clearly demonstrates that it was not possible for her to save such a huge amount of Rs.7 Lacs from her monthly earnings. Further no prudent person, who has a bank account, would keep such a huge amount in cash at his residence for so many years.
17. Therefore, it cannot be believed that the prosecutrix had the sum of Rs.7 Lacs in cash at her house and had handed over the same to the accused in the year 2012 for purchase of a house for her. Hence the foundation stone of the prosecution case, upon which it rests, gets terribly shaken and as a necessary result, the prosecution case must fall flat on the ground.
18. The prosecutrix, in her cross examination, has deposed that she had given the money to the accused at her house in presence of her son. The age of the son is stated to be 20 years which implies that he is major. Her son has neither been joined in the investigation by the IO nor has been produced as a witness before this court.
SC No.57/15. Page 9 of 1519. The prosecutrix has deposed in the examination in chief that the accused made a call to her on 24.10.2014 asking her to meet him the next day i.e. 25.10.2014 at the petrol pump near Pushpanjali Farm House and accordingly, she went to meet him on that day at the said place. However, interestingly, she has admitted in the cross examination that she did not talk to the accused on 24.10.2014. She also admitted that she has stated incorrectly in her examination in chief that the accused made call to her on 24.10.2014 and reiterated that the accused did not make any call to her on that day. Thus, when the accused had not made any call to the prosecutrix on 24.10.2014, it is not understandable how did she got to know that she has to meet the accused on 25.10.2014 at the petrol pump near Pushpanjali Farm House. Even if it is assumed here also for a moment that the accused made a call to her asking her to meet her at the petrol pump near Pushpanjali Farm House to receive the sum of Rs.7 Lacs, the normal conduct of the prosecutrix should have been to tell him to come to her house and to handover the money to her at her house or she should have suggested him that she would visit either his house or his shop to receive money from there. It seems very intriguing that the prosecutrix readily agreed to meet the accused at such an unknown place to receive such a huge sum of Rs.7 Lacs in cash. She was not a stranger to the family of the accused. She has admitted in her cross examination that she had visited the shop as well as the house of the accused and had met his wife also. Therefore, the safe, proper, prudent and normal course for the prosecutrix would have been to insist upon the accused to handover the money to her at her house or at his own house or SC No.57/15. Page 10 of 15 the shop. The conduct of the prosecutrix in readily agreeing to meet the accused at such an unknown place near the farm house on the outskirts of city to receive huge amount of Rs.7 Lacs in cash also makes her version immensely doubtful and untrustworthy.
20. The prosecutrix then deposed that upon reaching the fixed spot i.e. petrol pump near Pushpanjali Farm House when she demanded money from the accused, he suggested her to first have a cup of tea and she agreed. Accordingly, the accused brought a cup of tea from a nearby tea vendor which was visible to her and she took the same. Thereafter, she drank some water also and then became unconscious. Prosecutrix has herself deposed that there was acrimony between her and the accused as the accused was avoiding the repayment of money to her and had abused as well as threatened her. Therefore, there was no occasion for her to take tea offered by the accused. Further, she appears not to have asked the accused why he is not taking the tea himself also.
21. According to the prosecutrix, she does not know what happened to her after she drank tea as well as water as she became unconscious thereupon. When she regained consciousness, she found herself in a room with all her clothes having been taken off. A person whom she did not know, was present in the room who handed over her clothes to her. She put on the clothes and left the room. Thus, she does not know who had taken her from the petrol pump near Pushpanjali Farm House upto that room and who had taken off her clothes and whether anything else had been done to her. Admittedly, the accused was SC No.57/15. Page 11 of 15 not present in that room when she regained consciousness. Therefore, it cannot be said that it was the accused who had taken off her clothes or had done anything else to her. Thus the Charge u/s.376 IPC framed against the accused does not survive at all.
22. It is very strange and not understandable that the prosecutrix did not ask that person, whom she saw in that room after regaining consciousness, as to who he is and how was she brought to that room, by whom and who had removed her clothes. It is not the case of the prosecution that the said person had issued any threats to the prosecutrix. The conduct of the prosecutrix in simply receiving the clothes from that person and leaving the room after wearing the clothes without saying a word to that person makes her version in this regard also doubtful and far from being reliable.
23. It is a case of the prosecution that the accused had mixed something stupefying or intoxicating in the tea which he offered to the prosecutrix at the petrol pump, upon taking which prosecutrix became unconscious. Obviously, the substance mixed with the tea would not have been liquor as if it was so, the smell of liquor would have been emanating from the tea and the tea would have been bitter in taste. Further the amount of liquor, which could be mixed in a cup of tea, cannot be more than 100 ml., which would not make a person unconscious immediately after consuming the same and would not keep that person unconscious for continuously five hours. Here it would be pertinent to refer to the testimony of PW7, the Incharge, PCR Van, who was first to reach the spot near entry gate of Pragati Maidan Metro Station, SC No.57/15. Page 12 of 15 from where the prosecutrix had made call at telephone no.100 and the testimony of PW10 SI Rajesh Kumar, who had also reached that spot immediately from P.S. Tilak Marg. Both these witnesses have deposed that the prosecutrix seems to be drunk as she fell down repeatedly. The amount of liquor which would have been mixed in her tea at the petrol pump at about 2.30 p.m. by no stretch of imagination, would have kept her drunk even after 5 hours and to the extent that she would fall down repeatedly. There is no evidence to show that the clothes worn by the prosecutrix or her body was smelling of alcohol which rules out the possibility that the alcohol may have been forcibly ingested into her mouth during her unconsciousness. The condition, in which PW7 and PW10 discovered the prosecutrix after she made call at telephone no.100, indicates that she was sitting somewhere and was consuming liquor and no such incident as mentioned by her had taken place.
24. Further, the FSL result Ex.PA shows that no tranquilizers were found in the gastric lavage of the prosecutrix, which has been collected by the doctor soon after she was taken to hospital by PW10 from Pragati Maidan wherefrom she had made call at telephone no.100. The report, thus, demonstrates that no sedatives or tranquilizers etc. had been administered to her on that day which too falsifies her version totally.
25. The prosecutrix has deposed that she was having her mobile phone with no. 8750607054 with her on 25.10.2014 and she made call at telephone no.100 from the same mobile number. The call details record of the said mobile number has been proved SC No.57/15. Page 13 of 15 on record by the investigating officer PW6 as Ex.PW6/C and the Cell Location Chart has been proved as Ex.PW6/H. Perusal of the said call details record of the mobile number of the prosecutrix and the Cell Location Chart of the cellular services provider company shows that the location of the prosecutrix was at Barakhamba Road, New Delhi, at 2.26 p.m., then at Bahadur Shah Zafar Marg at 2.36 p.m. and near Delhi High Court at 2.44 p.m. According to the prosecutrix, she had met the accused at the petrol pump near Pushpanjali Farm House in Najafgarh area at 2.15 p.m. She could not have reached, by any means, Barakhamba Road in just ten minutes. Therefore, the falsehood of her version is also nailed by her location evidenced by the call details record of her mobile number. It is also necessary to note here that the prosecutrix has made two calls at mobile no. 8802346267 at 2.26 p.m. and 2.27 p.m. respectively. She has then made call at mobile no. 9811112853 at 2.36 p.m. and received a call from same number at 2.44 p.m. She again made a call at the same number at 2.44 p.m. She has then made a call at mobile no. 9582952503 at 3.47 p.m. and called again at mobile no. 8802346267 at 5.51 p.m. She then made call at mobile no. 9582952503 and 9958580518 at 6.41 p.m. and 6.55 p.m. respectively. She again made a call at mobile no. 8802346267 at 7.06 p.m. and then two calls at mobile no. 9958580518 at 7.07 p.m. and 7.11 p.m. respectively. She then made again a call on the same mobile no. 9958580518 at 7.20 p.m. before making call at telephone no.100 at 7.22 p.m.
26. Thus it is amply clear that the prosecutrix was continuously talking on her mobile phone right since 2.25 p.m. SC No.57/15. Page 14 of 15 when she is stated to have met the accused at the petrol pump near Pushpanjali Farm House till 7.22 p.m. when she made call at telephone no.100. This falsifies her version that she was unconscious during this period. It is not her case that she does not know the persons with the aforesaid mobile numbers or that she had not made these calls upon these mobile numbers during the said period of time.
27. Hence viewed from any angle, the prosecution case is nothing but a false story scripted carefully by the prosecutrix in order to frame the accused falsely in this rape case and to extort money illegally from him. It is quite evident that the prosecutrix has lodged a false complaint against the accused and did not deter from testifying falsely on oath before this court also. In my opinion, this is a fit case where the prosecutrix should be proceeded against for having given false evidence on oath before this court. This would be done by a separate order of even date.
28. Resultantly, the accused is hereby acquitted of all the charges.
Announced in open (VIRENDER BHAT)
Court on 07.10.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.57/15. Page 15 of 15