Delhi District Court
State vs Rupesh on 12 March, 2020
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE: SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No: 57660/16
State
Versus
Rupesh
S/o. Sh. Dineshwar Singh
R/o H. No. 217, Haddu Mohalla
Madanpur Khadar, Sarita Vihar,
Delhi.
FIR No. : 89/14
Police Station : Bhalswa Dairy
Under Section : 376/506 IPC
Date of Committal to Sessions Court: 07.06.2014
Date on which Judgment reserved : 29.02.2020
Date on which Judgment announced : 12.03.2020
JUDGMENT
1. The accused has been forwarded to face rape trial.
2. Prosecution case is that the victim came to her sister Pooja in July 2013 all the way from Jharkhand to work as main in Delhi. Her sister was also working so. The accused used to run placement agency State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 1 of 14 by the name of M/s Sulami in H. No. 217, Haddu Mohalla Madanpur Khadar, near Shiv Mandir, Sarita Vihar, Delhi. With his help, she started working as a maid in September 2013 in H. No. WZ106/136, Rajouri Garden. Hardly one month and seven days had passed when she felt uncomfortable there and hence, told her sister Pooja that she was no more wanted to work in that house. At that time, Pooja was in her native village and assured that she would take her back within 23 days. It was 10:00 pm of either 11th or 12th October 2013 when accused and his friend Mangal brought her from there to Mukundpur in an auto in the house of Mangal where accused Rupesh raped her in night. Rupesh sent her next day to his wife in Sarita Vihar where she lived for 56 days. She was got employed by accused in the house of Naveen in Rani Bagh on 19.10.2013. When she came to know in December 2013 that she was pregnant, she told accused about the same, who threatened to kill her. She sealed her mouth due to fear but disclosed to her owner Anuradha about pregnancy and Anuradha gave information to police on 100 number.
3. Charge under section 376/506 IPC was framed against accused on 10.11.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined 13 witnesses.
5. PW8 Smt. Reeta deposed that Mangal and accused Rupesh used to run placement agency in village Jasola and they got employed State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 2 of 14 victim in her house as maid, who worked for about 1 - 1½ months. The victim requested her to leave the house and she permitted her to do so. She next deposed that accused took victim from her house.
PW9 Anuradha deposed that accused used to run placement agency and hence, she got employed victim in his house as maid on 13.10.2013. She told her in December 2013 that she wanted to visit her native village for which she gave permission. Victim further told her that before joining job in her house, the accused had raped her. After hearing such a sensational disclosure, she talked to accused on phone but he switched off his mobile phone later. On victim's request, she informed her sister on phone about the incident. She next deposed that victim's sister Pooja came to her house after 1015 days and in her (PW9) presence, she told Pooja also that accused had raped her. Then she gave intimation of the incident on 100 number pursuant to which PCR van and local police came there and made enquiry from victim.
PW10 Sh. Shyam Sunder Kejriwal deposed that the victim had started working in his house as maid in December 2013 and worked for about 3037 days. A person namely Mangal came to his house on 13.10.2013 and took victim after undertaking that the victim herself wanted to leave his house as she did not want to work any more. He next deposed that after some days, police came to him and he handed over police some documents regarding employment of the victim. The documents were seized vide seizure memo Ex.PW10/A. State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 3 of 14
6. PW13 SI Upkar Kaur deposed that on receipt of DD No. 53A regarding rape on 21.02.2014, she reached H. No. 3320, Mahendra Park, Rani Bagh and met SI Jitender and victim. SI Jitender handed over victim to her from whom she made enquiry and came to know that the incident had taken place in Mukundpur. She alongwith victim reached the place in Mukundpur and when she became sure that the incident had taken place in the area of Mukundpur, she took prosecutrix and her sister Pooja to PS Bhalswa Dairy and handed over their custody to SI Sangeeta.
PW1 W/Ct. Santosh deposed that she alongwith SI Sangeeta took victim and her sister Pooja to BJRM hospital on 22.02.2014 and got her medically examined. The IO made rukka after recording statement of the victim and she took rukka to the police station, got the case FIR registered and came to the spot i.e. Jheel Road, Janta Vihar, Mukundpur and handed over original rukka and copy of FIR to the IO.
PW3 ASI Narender Kumar registered case FIR Ex.PW3/A on 22.02.2014 at 3.30 pm after receipt of rukka from Ct. Santosh sent by SI Sangeeta.
PW2 Dr. Avnish Tripathi deposed that the victim was brought to hospital on 22.02.2014 with the history of sexual assault and preliminary examination was conducted by Dr. Mohd. Amin, J.R. under his supervision. After preparing MLC Ex.PW2/A, the lady was referred State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 4 of 14 to S.R. Gynae.
PW12 Dr. Seema identified the handwriting and signatures of Dr. Sushil Pal, S.R. Gynae as she had seen her signing and writing during the course of official duty. After seeing MLC no. 740252/14 Ex.PW2/A, she deposed that it was in the handwriting of Dr. Sushil Pal and was bearing her signature.
7. PW5 Ct. Satender alongwith SI Sangeeta reached gali no. 3, Jheel Road, Janta Vihar, Mukundpur on 22.02.2014 and met victim and her sister Pooja who led them to a house in Rajouri Garden where the landlady met them. Landlady's statement was recorded and thereafter, victim led them to the house of accused in village Madanpur Khadar from where he was arrested vide arrest and personal search memos Ex.PW5/A and Ex.PW5/B respectively. The accused pointed out the place of incident in village Mukundpur, leading to preparation of pointing out memo Ex.PW5/D. He was medically examined in BJRM Hospital and the doctor handed over his blood sample in sealed condition which was seized vide seizure memo Ex.PW5/E. PW6 Dr. R.S. Mishra identified handwriting and signatures of Dr. Anshuman Kumar and Dr. Muninder Kumar who had medically examined accused Rupesh on 23.02.2014 vide MLC Ex.PW6/A and found no external injury on his body. He deposed that after collecting his blood sample, the accused was referred to forensic department for potency test.
State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 5 of 14 PW4 Dr. Bhim Singh conducted potency test of the accused on 23.02.2014 and gave opinion Ex.PW4/A that there was nothing to suggest that he was not capable of performing sexual intercourse.
8. PW7 Ld. MM Ms. Shilpi Jain recorded statement Ex.PW7/B under section 164 Cr.P.C. of the prosecutrix in Rohini Court on 26.02.2014.
9. PW1 IO SI Sangeeta deposed that SI Upkar Kaur from PS Rani Bagh brought victim to PS Bhalswa Dairy on 22.02.2014. She was sent to BJRM Hospital with W/Ct. Santosh where she was medically examined. Thereafter, she recorded statement Ex.PW11/A of the prosecutrix, prepared rukka Ex.PW11/B and got the case FIR registered through W/Ct. Santosh. She next deposed that she visited the spot and prepared rough site plan Ex.PW11/C on the pointing out of the victim. The accused was arrested on the same day on the pointing out of the victim and he pointed out the place of incident by leading the police party to Mukundpur. Then she deposed about potency test of the accused and statement under section 164 Cr.P.C. of the victim. She deposed that one Shyam Sunder Kejriwal produced documents regarding employment of the victim which were seized vide seizure memo Ex.PW10/A.
10. For being unable to produce victim for evidence, SI Sangeeta stated as PS1 that summons for appearance on 22.09.2016 that the victim was served through her sister Pooja in her village in State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 6 of 14 Jharkhand. Her summons for 23.03.2017, directed on Mahendra Park address could not be served as she was not found residing there. She further deposed that her summons for 06.07.2017, directed on her Jharkhand address could not be served as she had not visited her village for a long time. Her summons for 12.10.2017, directed on her Jharkhand and Mahendra Park Delhi addresses could not be served as it was reported by the process server that she had gone to Delhi and had not returned to her village and that she was not found residing on Mahendra Park address. Her summons for 12.05.2018, directed on her Jharkhand and Mahendra Park Delhi addresses, could not be served as her brother Baijnath Chaurasia told the process server in his village that the victim had not returned from Delhi and her summons for Mahendra Park address also could not be served as she was not found residing there. Her summons for 11.01.2019, directed on her Jharkhand and Mahendra Park Delhi addresses, could not be served as she could not go to Jharkhand for service but when she visited her address in Mahendra Park, Delhi, she was not found residing there. Her summons for 16.05.2019, directed on her Jharkhand addresses, were not delivered to her by the officer of PS Bhalswa Dairy on the ground that they were busy in Election duty. Her summons for 24.09.2019, directed on her Jharkhand addresses, were served through her brother Baijnath Chaurasia and father Nand Kishore and she came to know her new mobile phone number as 9654424549 on which she talked to her and State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 7 of 14 asked her to come to the court for evidence consequent to which she appeared in the court but was discharged on the request of ld. additional PP on the ground that her ossification report and DNA report of her child were not on the file. She told her new address as AC39, Suncity, Gurgoan, Haryana and new mobile number as 9650024549. The victim was bound down for the next date i.e 14.11.2019, but she was absent on 14.11.2019. Her summons for appearance for 29.01.2020 directed on her Mahendra Park address were received by SI Sangeeta. She tried to search the address i.e. AC39, Suncity, Gurgoan, Haryana, which was told to the court by victim. In ABlock, there was only a plot. There was no house there. In CBlock, the house numbers were upto 34. There was no house no. 39 in CBlock. On inquiry, the neighbours and guards did not tell anything about the victim. The mobile phone was continuously coming out of reach. IO stated that the prosecutrix had told wrong address to the court. In the end, SI Sangeeta stated that the police did not have any other address of the victim. Only three addresses i.e of Mahendra Park, Jharkhand and Gurgoan were available with the police. She is not residing on first two addresses. The address located in Gurgoan was found false. She concluded the statement saying that due to that reason, the victim cannot be produced for evidence.
11. For not producing victim's sister Pooja for evidence, SI Sangeeta deposed as PS2 that for summons for appearance on State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 8 of 14 01.07.2016, she was served by her. Her summons for 15.12.2016, directed on her Jharkhand address could not be served as she was not residing at the that address. Her summons for 23.03.2017, directed on her Jharkhand address served by her fatherinlaw. Her summons for 06.07.2017, directed on her Jharkhand address were served through her fatherinlaw who had stated that at present she was not residing at that address. She further deposed that her bailable warrants for 12.10.2017, directed at her Jharkhand address, were duly served through her husband namely Amit Kumar. Her bailable warrants for 22.05.2018, directed at her Jharkhand address, were duly served through Kajal Rani Kumari. Her bailable warrants for 07.08.2018, directed on her Jharkhand address, could not be served as the house was found locked. Her bailable warrants for 11.01.2019, directed on her Jharkhand address could not be served due to shortage of time as the summons were delivered to her on 08.01.2019. Her NBWs for 16.05.2019, directed on her Jharkhand address, were not delivered to her by the officer of PS Bhalswa Dairy on the ground that they were busy in Election duty. Her NBWs for 24.09.2019, directed on her Jharkhand address, could not be executed as she was not found residing at that address. Her husband namely Amit Kumar stated that he was not knowing her whereabouts. She concluded the statement saying that despite best efforts, she cannot produce the witness.
State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 9 of 14
12. SI Sangeeta stated on oath as PS3 regarding public witness Mangal that summons dated 31.01.2020 of that witness for appearance on 15.02.2020, could not be served upon him as he was found residing on the given address. His summons for appearance for 29.02.2020 also could not be served as he was not residing on that address. In that regard, she recorded statement of Sh. Satya Narayan, Head of Janta Vihar Colony, Mukundpur.
13. Under section 313 Cr.P.C, the accused denied every incriminating material put to him.
14. Not a single witness was examined in defence.
15. The star witness of the case was victim but she was untraceable.
The next star witness was Pooja i.e. sister of the victim. But she also remained untraceable. Third in line in respect of importance was Mangal as his statement under section 161 Cr.P.C. is to the effect that he alongwith accused brought victim to his house in October 2013 from her place of employment in Rajouri Garden. In night, he slept with his children and that he was not aware what happened between victim and accused. This witness also remained untraceable.
Now only evidence on file against the accused is the statement of PW9 Anuradha to the effect that victim told her in December 2013 that the accused had raped her. Her further evidence is State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 10 of 14 that she talked to accused on phone for sometime, but thereafter, he switched off his mobile phone. She gave information of incident to Pooja, sister of the victim who came to her house in 1015 days. The victim told her sister Pooja also in her presence that she was raped by the accused.
Above discussion shows that the evidence of PW9 is hearsay. She is not corroborated by any witness. The victim did not appear in the witness box to tell that she had told PW9 Anuradha that she was raped by the accused. Due to her evidence being hearsay, the same is not admissible and in this regard, the case of the accused is covered by Sangannagari Narasimulu vs State of Andhra Pradesh 2005(2) ALD Cril. 387, 2005 Cri.L.J. 4168, I(2006) DMC 834, wherein Hon'ble Andra High Court held as under :
13. "...The only source of information for this witness is the alleged information given by the deceased Mangamma. Even if it is assumed that the deceased Mangamma had informed her mother about the alleged harassment, the statement of Mangamma to her mother cannot be taken as gospel truth and the said statement is a very weak piece of evidence as the deponent is not subjected to crossexamination. Further such statement of the deceased made to her mother even if true, is not admissible in evidence.
Admittedly, the statement is not in relation to the cause of death of the deceased in this case. When the said statement was not regarding the cause of her death, it does not come within the purview of Section 32(1) of the Evidence Act. The evidence of State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 11 of 14 PW3 that her daughter informed her about the harassment becomes hearsay, which is not admissible in evidence. The Apex Court in Inderpaul v. State of M.P.(1st supra) categorically held that unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence there is no other provision under which the same can be admitted in evidence and that in order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death. Their Lordships further observed in the cited case that by no stretch of imagination can the statements of the deceased contained in letters, where reference had been made by her regarding her life in the house of her inlaws, and the statements quoted by the witnesses, who had not spoken of anything which they had seen directly, be connected with any circumstance of the transaction which resulted in her death...."
In Gananath Pattnaik Vs. State of Orissa, Appeal (Crl.) No. 1 of 1995, decided on 6 February 2002, Hon'ble Supreme Court held as under: "...Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 PW5 had stated:
"Whenever I had gone to my sister, all the times she was complaining that she is not well treated State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 12 of 14 by her husband and inlaws for nonfulfillment of balance dowry amount of scooter and twin one."
and added:
"On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from and her, and that her mother inlaw has come and some conspiracy is going against her (the deceased). She further told that "MATE AU BANCHEI DEBENAHIN".
Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the Hearsay Rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused..."
State Vs Rupesh S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 13 of 14
16. In view of the above discussion, it is held that prosecution has failed to prove charge against the accused. Hence, the accused is acquitted of the offence he was charged with.
17. The personal and surety bonds of the accused are hereby canceled. Surety is hereby discharged. The endorsement made, if any, on any document(s) of soundness of surety, be cancelled and the document be returned to surety.
File be consigned to record room.
Digitally signed by UMED UMED SINGH
SINGH GREWAL
Date: 2020.03.12
GREWAL 13:02:29 +0530
Announced in the open Court (Umed Singh Grewal)
On this 12th March 2020 ASJ: Spl. FTC (North)
Rohini Courts: Delhi
State Vs Rupesh
S.C. No.57660 /16 // FIR No. 89/14 // PS Bhalswa Dairy Pages 14 of 14