Delhi District Court
State vs . Kundan on 20 February, 2017
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE :ROHINI : DELHI
Sessions Case No : 124/15.
Unique ID No : 59385/16.
State Vs. Kundan
S/o Sh. Mandan Yadav
R/o Gali No. 1, School Wali Gali near Pani Ki Tanki,
Kasim Vihar, Loni Gaziabad, UP.
FIR No :489/2016
Police Station :Bhalaswa Dairy.
Under Sections :376 (D) and 506 IPC
Date of Committal to Sessions Court : 24.11.2016
Date on which Judgment reserved : 18.02.2017
Date on which Judgment announced : 20.02.2017
J U D G M E N T
1.In the present case, charge was framed against the accused on 30.01.2017, in respect of offences under Section 376 (D) IPC and 506 read with 34 IPC with the allegations that on the intervening night of 25/26.9.2016 in between 3.00 pm to 3.00am, in a house at Mukund Pur, he in furtherance of his common intention with coaccused Gulab (not arrested so far) committed gang rape upon the prosecutrix without her consent and also threatened to kill her, in case, she disclosed the facts to anyone.
State Vs. Kundan Page No. 1 out of 6FIR NO.489/2016, PS Bhalaswa Dairy.
2. Accused pleaded not guilty to the said charge and claimed trial.
3. To prove its case, prosecution has examined the prosecutrix, as the only witness, to bring home the guilt of accused. However, she has not supported the prosecution story either examinationinchief or in crossexamination by Ld. Addl. PP. She has deposed that her husband is running a kabari shop. Accused Kundan used to supply the scrap to his shop. She has been on talking terms with accused Kundan for the last six months and was having physical relations with him. Accused Kundan had taken a room on rent in Mukund Pur, where she used to meet Kundan.
4. She has further deposed that she came to Mukund Pur along with Kundan. After consuming liquor, accused Kundan went to his house at Kasim Vihar, Loni, Ghaziabad, UP. The door was left open by her. She went to asleep. In the morning, when she got up, she found that Gulab was standing in the room. She knows Gulab, as he used to purchase scrap from the shop of her husband. Thereafter, a quarrel took place between her and Gulab. Gulab committed rape upon her. She went to PS, where police officials obtained her signatures on some papers, which were not read over to her. The statement, Ex. PW 1/A bears her signature at point 'A'. She was taken to BJRM Hospital for her medical examination.
State Vs. Kundan Page No. 2 out of 6FIR NO.489/2016, PS Bhalaswa Dairy.
5. She has further deposed that on 27.9.16, she came to Rohini Court, where her statement under Section 164 Cr. PC, Ex. PW 1/B was recorded by the Magistrate, wherein she stated, whatever was told to her by the police. Accused Kundan is present in the Court. Accused Kundan had not committed rape upon her.
6. In crossexamination by ld. Addl. PP, PW1 has deposed that arrest memo of accused of Ex.PW1/C bears her signature at "A" but has volunteered that it was a printed paper having blank columns. She has denied of having given the statement Ex.PW1/A to the police. She has further deposed that she had not stated to police in her statement Ex. PW 1/A that accused Karan offered cold drink to her after mixing liquor and she consumed the same, and that she became inebriated and when she regained consciousness, she found herself in nude condition and that accused Kundan and Gulab were present in the room and when she asked Kundan as to what he did with her, accused Gulab ran away from there and she wore her clothes and that accused Kundan threatened her that, if she disclosed the incident, he (Kundan) would kill her, and she (prosecutrix) pushed accused Kundan and she ran away towards outside the room and that accused Kundan and Gulab committed rape upon her.
7. She has denied that accused Kundan had committed rape upon her or that she is deposing falsely to save accused Kundan, as she has been won over by him.
State Vs. Kundan Page No. 3 out of 6FIR NO.489/2016, PS Bhalaswa Dairy.
8. In crossexamination by Ld. Counsel for the accused she has stated that she deposed before the court without any pressure, threat or coercion. She has further admitted that she had given the statement, before Ld. MM, on the asking of police officials, as she was under their pressure.
9. Statement of the accused, under Section 313 Cr.P.C., has been recorded, wherein he has denied the allegations of prosecution and stated that he does not know any Gulab. He is innocent and has been falsely implicated in the present case.
10. Accused has preferred not to lead any witness in his defence.
11. I have heard arguments from ld counsel for accused, who has prayed for acquittal of the accused by submitting that prosecutrix did not support the prosecution case. There is no evidence against the accused.
12. On the other hand, Ld. Addl. PP has submitted that the prosecutrix has initially supported the prosecution story, but, later on she has been won over by the accused.
13. It is settled law that prosecution has to prove its case beyond reasonable doubt.
14. In Balraj Singh Vs. State of Punjab, 1976 Cri. LJ 1471 (DB) (Punj), it was held that:
"The guilt of accused is to be established by the prosecution beyond the possibility of State Vs. Kundan Page No. 4 out of 6 FIR NO.489/2016, PS Bhalaswa Dairy.
any reasonable doubt on the basis of legal evidence and material on the record. Even if there may be an element of truth in the prosecution story against the accused and considered as a whole the prosecution may be true but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
15. In the present case, prosecution has examined only one witness i.e. Prosecutrix but she has not supported the prosecution story. She has categorically deposed in her examinationinchief as well as crossexamination by Ld. Addl. PP that accused Kundan has not committed rape upon her.
16. It is significant to note that prosecutrix refused for her internal examination at the time of her medical examination in the hospital.
17. Further, PW1 has also deposed that she gave the statement U/s 164 Cr.PC., Ex. PW 1/B on the asking of police.
18. Since the prosecutrix has not supported the prosecution case, I am of the considered view that prosecution has miserably failed to bring home the guilt of the accused. Their is no material on record State Vs. Kundan Page No. 5 out of 6 FIR NO.489/2016, PS Bhalaswa Dairy.
to connect the accused with the commission of offence.
19. The prosecution has miserably failed to prove beyond reasonable doubt that on the intervening night of 25/26.9.2016 in between 3.00 pm to 3.00am, in a house at Mukund Pur, accused in furtherance of his common intention with coaccused Gulab (not arrested so far) committed gang rape upon the prosecutrix without her consent and also threatened to kill her, if she disclosed the facts to anyone.
20. Hence, the accused is acquitted of the offences, he was charged with. He be released forthwith, if not required in any other case.
21. However, in term of Section 437 (A) Cr.PC, the accused has furnished fresh personal bond in the sum of Rs.10,000/ with one surety of the like amount, which are accepted for a period of six months with the directions to appear before higher court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on this 20th February, 2017 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State Vs. Kundan Page No. 6 out of 6
FIR NO.489/2016, PS Bhalaswa Dairy.