Delhi District Court
State vs Rahul Gambhir. -:: Page 1 Of 10 ::- on 3 July, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
State versus
Mr. Rahul Gambhir
Son of Mr. Jagdish Gambhir,
R/o WZ-32H, Sharda Puri, Ramesh Nagar,
Delhi.
First Information Report Number : 323/2013.
Police Station Kirti Nagar.
Under sections 376/354B/323/419/420 of the Indian Penal Code.
Date of filing of the charge sheet : 12.12.2013.
before the Court of the Metropolitan Magistrate
Date of receipt of charge sheet after committal : 11.02.2014.
Arguments concluded on : 03.07.2014.
Date of judgment : 03.07.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on interim bail uptil today with counsel, Mr.Puneet
Mahindru.
Prosecutrix in person.
Ms. Poonam Sharma, counsel for Delhi Commission for
Women.
IO SI Vandana is also present.
************************************************************
Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar
Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 1 of 10 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."............ Kurt Cobain *************************************************************
1. The charge sheet has been filed against the accused, Mr.Rahul Gambhir, by Police Station Kirti Nagar, Delhi for the offence under sec- tions 376/354B/323/419/420 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that between the period of January/Febru- ary 2012 and 12.09.2013 at various places including a resort 'Apna Ghar' at Manesar, Gurgaon, he committed rape upon the prosecutrix (name withheld to protect her identity) under the false promise to marry her and also cheat- ed the prosecutrix by impersonation by disclosing his fake name as Ricky Sharma. On 12.09.2013 at the house of accused i.e WZ-32H, Sharda Puri, Ramesh Nagar, Delhi within the jurisdiction of Police Station Kirti Nagar, he gave voluntarily beatings to the prosecutrix and outraged her modesty.
2. After completion of the investigation, the charge sheet against accused Mr.Rahul Gambhir was filed before the Court of the learned Metropolitan Magistrate on 12.12.2013 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, THC, Delhi for 11.02.2014.
3. After hearing arguments, charge for offence under sections 376, 419, 420, 354 and 323 of the IPC was framed against the accused Mr.Rahul Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 2 of 10 ::-
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Gambhir vide order dated 18.03.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the prosecutrix as PW1.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW1, has deposed that her maiden name and her earlier address (both deposed in evidence but are not elaborated in the judgment to protect the identity of the prosecutrix). She has deposed that about two years ago, she had met accused Rahul Gambhir through facebook. Gradually, they developed friendship and started having physical relations which were with their free consent. She had physical relations with the accused till about 22.06.2013 and the same were with her free consent. Accused Rahul Gambhir had promised to marry her and he has honoured his promise by marrying her on 08.06.2014. Copies of the documents of marriage i.e marriage certificate, registration certificate of her marriage with the accused and three photographs of the marriage are Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 3 of 10 ::-
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Ex.PW1/A, Ex. PW1/ B and Ex. PW1/ C1 to C3 respectively. Due to wrong advise and at the instance of some well wishers, she had gone to Police Station Kirti Nagar and made a complaint (Ex.PW1/X) against the accused. She was produced by the police before the Court of learned Metropolitan Magistrate who recorded her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex.PW1/Y). She had made this statement at the instance of her well wishers, on their wrong advise. The accused has not committed any offence. He has not raped her on a false promise of marriage. He has married her as he had promised. She had physical relations with the accused with her free consent and there was no misrepresentation by the accused. She did not have any grievance against the accused since he has not committed any offence. She has prayed that the accused may be acquitted.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
8. In her cross examination by the prosecution, the prosecutrix has admitted that she had written in the complaint and stated in her statement under section 164 of the Cr.P.C. that the accused had physical relations with her on a false promise of marriage and that he may be punished. However, the same had been made under wrong advise and at the instance of some well wishers. The accused is innocent. She has admitted that she Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 4 of 10 ::-
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was taken by the police to DDU hospital where she was medically
examined. She has admitted that the accused was arrested by the police in my presence vide arrest memo (Ex. PW1/D) and his personal search was taken vide the personal search memo (Ex. PW1/E). She has denied that between the period of January/February 2012 and 12.09.2013 at various places including a resort Apna Ghar at Manesar, Gurgaon accused committed rape upon her under the false promise to marry her and also cheated her by disclosing his fake name as Ricky Sharma. She has denied that on 12.09.2013 in the house of the accused at WZ-32 H, Shahdhar Puri, Ramesh Nagar, accused voluntarily gave beatings to her and outraged her modesty. She has denied that she had made the complaint to the police and had stated before the learned Metropolitan Magistrate voluntarily against the accused and not due to wrong advise or at the instance of some well wishers. She has denied that she has forgiven the accused as he has married her and due to this reason she is not deposing against him. She has denied that she is deposing falsely.
9. In her cross examination by the accused, the prosecutrix has admitted that the accused has not committed any offence. She has admitted that the accused has not raped her or cheated her or gave her beatings or outraged her modesty at any point of time. She has admitted that the accused had promised to marry her and he has honoured his promise. She has admitted that she had physical relations with the accused with her free consent. She has again prayed that the accused may be acquitted.
Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 5 of 10 ::-
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10. The prosecutrix, has not deposed an iota of evidence of her being raped at all by accused Mr. Rahul Gambhir or that he has cheat her by impersonation by disclosing his fake name as Ricky Sharma and gave beatings to her or outraged her modesty. She has not even mentioned the word "rape" by accused in her evidence nor has deposed anything incriminating against the accused Mr. Rahul Gambhir.
11. In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.
12. Statement under section 313 of the Cr.P.C. of accused is dispensed with as there is nothing incriminating against him when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
13. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 6 of 10 ::-
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14. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
15. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
16. Consequently, no inference can be drawn that accused is guilty of raping the prosecutrix, cheating her, giving beatings to her or outraging her modesty. There is no material on record to suggest that the prosecutrix was ever raped, cheated and beaten by accused or that he outraged her modesty. No case is made out against accused Mr.Rahul Gambhir as there is no incriminating evidence against him.
17. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused is innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue. Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 7 of 10 ::-
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18. Consequently, no inference can be drawn that accused
Mr.Rahul Gambhir is guilty of the charged offence under sections 376, 419, 420, 354 and 323 of the IPC. There is no material on record to show that between the period of January/February 2012 and 12.09.2013 at vari- ous places including a resort 'Apna Ghar' at Manesar Gurgaon, he commit- ted rape upon the prosecutrix under the false promise to marry her and also cheated the prosecutrix by impersonation by disclosing his fake name as Ricky Sharma. It has also not been proved that on 12.09.2013 at the house of accused i.e WZ-32H, Sharda Puri, Ramesh Nagar, Delhi, he gave volun- tarily beatings to the prosecutrix and outraged her modesty.
19. From the above discussion, it is clear that the case of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the ofences of rape, cheating, beating or outraging the modesty. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. In fact, she has deposed that she had physical relations with the accused with her free consent.
20. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Rahul Gambhir, for the offence under sections 376,419, 420, 354 and 323 of the IPC.
21. Consequently, the accused, Mr. Rahul Gambhir is hereby acquitted of the charge for the offence under sections 376, 419, 420, 354 Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 8 of 10 ::-
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and 323 of the IPC.
22. Compliance of section 437-A Cr.P.C. is made in the order sheet.
23. Case property be destroyed after expiry of period of limitation of appeal.
24. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
25. Here, I would also like to mention that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape as the prosecutrix retracted and turned hostile. In the circumstances such a person, an acquitted accused, who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 9 of 10 ::-
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26. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
27. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 03rd day of July, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 23 of 2014.
Unique Case ID Number : 02401R0063472013.
FIR No. 323/2013, Police Station Kirti Nagar Under sections 376/354B/323/419/420 of the Indian Penal Code.
State versus Rahul Gambhir. -:: Page 10 of 10 ::-