Delhi District Court
State vs Shivraj Bansal on 25 July, 2014
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0124622014
SC No. 81/14 Date of assignment : 07.05.2014
FIR No. 150/14 Date on which argument
PS. Shakarpur were heard : 25.07.2014
U/S. 376/363/417 Date of judgment : 25.07.2014
506/509/465 IPC
State Versus Shivraj Bansal
S/o Sh. Mamraj Bansal
R/o C-8/301, Yamuna Vihar, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 22.01.2014 a complaint u/s 156 (3) Cr.P.C alongwith the order of learned MM was received at police station Shakarpur. In her complaint u/s 156 (3) Cr.P.C, prosecutrix made following allegations:-
(i) She was earlier married to one Mr. Harvinder Bhatia and they got divorced. Thereafter she got married to one Anil Arora who also divorced her and remarried another lady.
(ii) Due to ailing heath, she used to visit the clinic of Dr. Vijay Khanna at Kanti Nagar for her treatment.SC No.81/14 State vs. Shivraj Bansal Page 1 of 12
Dr. Vijay Khanna introduced the prosecutrix to accused Shivraj Bansal. Accused promised to marry the prosecutrix and made physical relations with her. Accused also assured that whenever a child will be born, accused will take care of that child alongwith the children of the prosecutrix from her earlier marriages. Accused also promised the prosecutrix to give ownership and possession of house no. S-492, School Block, Laxmi Nagar, Delhi. Accused used to visit the prosecutrix during 2011 to 2012 on regular basis and maintained sexual relations with her.
(iii) As a consequence of this sexual relationship, the prosecutrix got pregnant and she disclosed about her pregnancy to the accused. Accused got angry and disclosed that he is already married to one Kavita Bansal. The prosecutrix felt shocked and cheated and asked the accused not to see her anymore to which accused replied that he will divorce his wife Kavita Bansal and then marry the prosecutrix. He also disclosed that his wife is not capable to conceive a child.
(iv) Accused used to take the prosecutrix to the clinic of Dr. Vijay Khanna who used to do all diagnostic tests of the prosecutrix and instead of writing the name of the prosecutrix, they used to write the name of Kavita Bansal who is wife of the accused. When the prosecutrix objected to it, accused convinced her that they will get SC No.81/14 State vs. Shivraj Bansal Page 2 of 12 married after the birth of their child.
(v) On 14.9.2012, the prosecutrix delivered a child at Prasad Surgical & Maternity Centre, Subhash Chowk, Laxmi Nagar. in that hospital also, instead of writing the name of prosecutrix, accused asked the hospital staff to write the name of his wife Kavita Bansal. When the prosecutrix refused to do so, the accused assured her by saying that since they are not married, the child would be illegitimate. After the birth of the child, accused took the child without permission of prosecutrix and started ignoring her.
(vi) On 28.6.2013, accused executed a deed giving the prosecutrix right to use his property bearing no. S-492, School Block, Laxmi Nagar, Delhi. He promised her that no person will ask the prosecutrix to move out of that house as she is the mother of his child. He also promised the prosecutrix that he will marry her when the situation would become favourable.
(vii) On 06.11.2013, when the prosecutrix went to the house of accused to see her child, accused refused to show her child and threatened the prosecutrix that he will spoil her face with acid. He also used derogatory remarks for the prosecutrix and insulted her modesty. Accused called the police by dialing 100 number. The prosecutrix went to police station Bhajanpura and filed a SC No.81/14 State vs. Shivraj Bansal Page 3 of 12 written complaint dated 06.11.2013. She also filed another complaint dated 07.11.2013 at police station Shakarpur but the police did not lodge any FIR. She also filed various complaints before SHO police station Bhajanpura, SHO Shakarpur, ACP (Jagatpuri) and DCP ( East) but no action was taken.
(viii) On 10.11.2013 when the prosecutrix was going with her neighbour to ESI Hospital, Basai Darapur, two people came on a motorcycle and hit their motorcycle. They threatened the prosecutrix that if she will file any complaint anywhere, she will face adverse consequences.
2. The prosecutrix had filed a complaint u/s 156 (3) Cr.P.C before the court of Ld. CMM, KKD Courts, Delhi. Vide order dated 22.1.2014, learned MM directed the SHO P.S. Shakarpur to register an FIR and conduct proper investigation through a competent police officer. In compliance of directions issued by learned MM, SHO PS Shakarpur registered an FIR u/s 376/420/506/509/465/34 IPC against the accused. During investigation, prosecutrix was got medically examined at LBS Hospital and her statement u/s 164 Cr.P.C. was got recorded by learned MM. Accused was arrested and he was got medically examined. The case property was deposited at the malkhana. The exhibits of the case was sent to FSL, Rohini for SC No.81/14 State vs. Shivraj Bansal Page 4 of 12 examination. After completion of investigation, chargesheet u/s 376/363/420/465/506/509/34 IPC was filed against the accused.
3. Since the major offence in this case is triable by the Court of Sessions, vide order dated 30.04.2014, learned M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 10.07.2014, a charge u/s 376/ 363/417/506/509/465 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined the prosecutrix as PW1. She has not supported the case of the prosecution and was declared hostile. She was cross examined by the learned Addl. PP for the State with the permission of the court. During her cross examination also she did not support the case of prosecution. The prosecutrix deposed that she and the accused were in live- in relationship and they made physical relations with each other with her consent and free will. She denied that accused made physical relations with her based on the promise of marriage. She also deposed that there was an understanding between her and the accused that the new SC No.81/14 State vs. Shivraj Bansal Page 5 of 12 born child will be handed over to the accused after birth and that the accused did not kidnap her child. She also denied the other allegations levelled in the police complaint. In her testimony, no incriminating evidence has come on record against the accused.
6. The remaining prosecution witnesses are either the police officials, the doctors, the learned MM who recorded the statement of prosecutrix u/s 164 Cr.PC and the Chairperson, Child Welfare Committee. It is not the case of the prosecution that these witness have personal knowledge about the allegations made in the present complaint. Thus, in view of the testimony of the prosecutrix, no useful purpose would have been served in examining the remaining witnesses. Accordingly, prosecution evidence was closed. Statement of accused u/s 313 Cr.P.C. was dispensed with.
7. I have heard arguments addressed by learned Additional Public Prosecutor for the State and learned defence counsel and perused the record.
8. The prosecutrix aged about 34 years deposed that she has two sons aged about 14 years and 8 years old from her earlier two marriages. She deposed that earlier SC No.81/14 State vs. Shivraj Bansal Page 6 of 12 she was married to Harvinder Singh and she got divorced from him in the year 2004 by mutual consent. Thereafter she got married with Anil in 2006 and she has one son from that wedlock. She got divorced from Anil in 2013 by mutual consent. She deposed that in the year 2009, her husband Anil left her and she was under depression and had survical problem. She contacted Dr. Vijay Khanna for her treatment. In the year 2010, she also suffered minor heart attack. She further deposed that Dr. Vijay Khanna got introduced her with accused by saying that he will help her financially. Accused visited her house at Pandav Nagar and also told her to shift in his house situated at Laxmi Nagar i.e. house No. S-492, School Block in front of Metro Station, Laxi Nagar. Thereafter the prosecutrix shifted to his house within 15 days. She conceived a child after one year and eight months from the accused and a male child was born on 14.09.2012 at Prasad Nursing Home. She further deposed that there was an understanding between her and the accused that after the birth, the new born child will be handed over to the accused. She deposed that someone informed her on telephone that accused had sold her son and thus she went to the house of accused to see her child but she was not allowed to do so by the accused. The accused made a call to the police on 100 number. Thereafter the prosecutrix met an Advocate who called her SC No.81/14 State vs. Shivraj Bansal Page 7 of 12 after a week to prepare some papers. She deposed that she signed those papers without reading and those papers got filed in the court. The prosecutrix identified her signatures on the complaint u/s 200 Cr.P.C Ex.PW1/A, application u/s 156(3) Cr. P.C Ex.PW1/B.
9. As this witness did not support the case of prosecution, she was declared hostile and was cross examined by learned Addl. P.P. for the State. During her cross examination she maintained that she signed the complaint Ex. PW1/A without reading the same. She also deposed that she came to know about the allegations made in the complaint Ex. PW1/A only after arrest of accused. She also denied that the accused made physical relations with her under promise of marriage. Prosecutrix has maintained that she and the accused were in live-in relationship and accused made physical relations with her with her consent and will. She further deposed that accused also provided her his house for her residence. She denied that accused promised her to give ownership of his house. She further deposed that she knew since beginning that the accused was already a married person. She denied that the accused promised her to take divorce from his wife and will marry her. She admitted that the name of wife of accused Kavita Bansal was mentioned in the hospital SC No.81/14 State vs. Shivraj Bansal Page 8 of 12 record instead of her name during her pregnancy and delivery of her child with her consent. The prosecutrix denied that accused had taken her child immediately after her birth without her consent and she maintained that there was an understanding between her and the accused that immediately after birth, the child will be handed over to the accused and accused did not kidnap her child. She further denied that on 06.11.2013 when she visited the house of the accused, accused used derogatory remarks and insulted her modesty and threatened her to put acid on her face. She also deposed that she made statement u/s 164 Cr.P.C before the learned MM only after going through the contents of Ex. PW1/A at the instance of others which was not true. The prosecutrix again denied that accused made physical relations with her on promise of marriage.
10. This witness was cross examined by learned counsel for the accused. During cross examination she admitted that she has given her son in adoption to the accused and his wife vide adoption deed Ex. PW1/DB. She also admitted that she filed a complaint against the accused after two years of birth of the child and during that period the child remained with the accused with her consent. She further deposed that her child is still residing SC No.81/14 State vs. Shivraj Bansal Page 9 of 12 with the accused and his wife with her (prosecutrix) consent and they keep her child with love and affection. She also proved the memorandum of understanding Ex.PW1/DC executed between her and the accused. She deposed that she does not want any action against the accused and prayed that present case be closed.
Offences u/s 376/417 IPC
11. In her deposition, the prosecutrix has stated that she and the accused were in live-in relation for about two years and the accused made physical relations with her consent and will. She has denied that the accused made physical relations with her on promise of marriage. She also deposed that since beginning she knew that the accused was a married person. The prosecutrix was about 33 years of age at the relevant time and capable in law to give her consent for sexual intercourse. There is no allegation of use of coercion, force, deception or threat by the accused in the evidence of the prosecutrix. Thus, no incriminating evidence has come on record to connect the accused with the alleged offences u/s 376/417 IPC and he is liable to be acquitted for these offences.
Offence u/s 363 IPC SC No.81/14 State vs. Shivraj Bansal Page 10 of 12
12. The prosecutrix has stated that there was an understanding between her and the accused that after the delivery of the child, new born child will be handed over to the accused. She also admitted that she has given her child in adoption vide adoption deed Ex.PW1/DB to accused and his wife. She admitted that child is residing with the accused and his wife with her consent. She also deposed that the accused did not kidnap her son. Under these circumstances, the charge u/s 363 IPC against accused must fail.
Offences u/s 509/506 IPC
13. During her deposition, the prosecutrix denied the alleged incident of 6.11.2013 that the accused threatened her to spoil her life by putting acid on her face. She also denied that accused used derogatory remarks and insulted her modesty at that time. Thus, accused is also liable to be acquitted for the offences u/s 509/506 IPC.
Offence u/s 465 IPC
14. As far as offence u/s 465 IPC is concerned, during her deposition, the prosecutrix admitted that name SC No.81/14 State vs. Shivraj Bansal Page 11 of 12 of wife of accused Kavita Bansal was mentioned in the hospital records instead of her name during her pregnancy and delivery of child with her (prosecutrix) consent. Even otherwise mere mentioning of wrong name of the mother in a hospital would not constitute an offence punishable u/s 465 IPC. She also deposed that she does not want any action against the accused and prayed that present case be closed. Under these circumstances charge u/s 465 IPC also must fail.
15. In view of above discussion, I am of the view that the prosecution has failed to prove its case against the accused. Hence, the accused is acquitted of the offences punishable u/s 376/363/417/506/509/465 IPC.
16. File be consigned to Record Room after necessary compliance.
Announced in the open court on 25.07.2014 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
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