Delhi District Court
State vs Sonal Monga @ Sunny -:: Page 1 Of 13 ::- on 20 November, 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 : 112 of 2014.
Unique Case ID Number : 02401R0487862014.
State versus
Mr. Sonal Monga
Son of Mr. Roshan Lal,
Resident of House No. A-23/C,
Tagore Garden, Near Central School,
New Delhi.
First Information Report Number : 652/2014.
Police Station Khayala
Under sections 363/365/328/376/506 of the Indian Penal Code.
Date of filing of the charge sheet :26.09.2014
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this :10.10.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on :20.11.2014.
Date of judgment :20.11.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State is on leave.
Mr. Ateeq Ahmed, Substitute Additional Public Prosecutor
for the State.
Accused Mr.Sonal Monga has been produced from judicial
custody.
Mr. Surender Kumar, counsel for the accused.
Prosecutrix in person with counsel Mr Rahul Tyagi.
Ms. Poonam Sharma, counsel for Delhi Commission for
Women.
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Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014
FIR No.652/2014, Police Station Khayala
Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code.
State versus Sonal Monga @ Sunny -:: Page 1 of 13 ::-
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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. Sonal Monga, by Police Station Khayala, Delhi for the offence under sections 363, 365, 328, 376 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 21.08.2014 at about 8.30 pm from near Tagore Garden School, Rajouri Garden, Delhi, accused abducted the prosecutrix (name mentioned in file but withheld to protect her identity) along with her daughter (name mentioned in file but withheld to protect her identity) with intention that the prosecutrix may be compelled to or forced to illicit intercourse and he offered water to both proecutrix and her daugh- ter in his car mixed with intoxicated material with intent to commit the of- fence of rape on prosecutrix and between the period of 21.08.2014 and 27.08.2014 in a village (name not known), in a hotel at Chandigarh, in a ho- tel at Delhi and at unknown place in Meerut, he committed rape upon the prosecutrix.
2. After completion of the investigation, the charge sheet against accused Mr.Sonal Monga was filed before the Court of the learned Metropolitan Magistrate on 26.09.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 10.10.2014.
Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 2 of 13 ::-
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3. After hearing arguments, charge for offence under sections 328, 366, 376 and 506 of the IPC was framed against accused Mr. Sonal Monga vide order dated 16.10.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the prosecutrix as PW1; the minor daughter of the prosecutrix, as PW2 and Mr. Mukesh, husband of the prosecutrix, as PW3.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statements of the prosecutrix and her minor daughter 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 about 17 years ago on 14th February she had got married with Mr.Mukesh. She has two children from the wedlock i.e. a daughter aged 15-16 years and a son aged about 10 years. About one year ago, when she was working earlier in Rajouri Garden for the purpose of cleaning in a company Shadi.com, which was on the 3rd and 4th floors, she had met accused Sunny as he was also Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 3 of 13 ::-
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working there on the ground floor for cleaning in a Sofa manufacturing unit. Accused Mr.Sunny is also known as Mr.Sonal Monga. On 21.08.2014 in the morning, she had gone with her daughter to Chandigarh to visit her sister and they stayed there for five days at her residence but she did not remember her address. Thereafter, they returned to Delhi. Her husband told her, on return, that he had made a complaint to the police which was under some misunderstanding. Then she along with her husband and daughter went to Police Station Khayala where she told the police that no offence had been committed against her by any one. She was taken by the police to DDU Hospital where she was medically examined where she had refused to get her gynecological examination conducted vide MLC (Ex.PW1/A). She had told the doctor that no offence had been committed against her. She was produced by the police in Tis Hazari Court, where her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex.PW1/B) was recorded by the learned Metropolitan Magistrate. She had made her statement before the learned Metropolitan Magistrate at the instance of some well wisher who had come with her to the Court. The actual position is that no one including accused Mr.Sonal Monga @ Sunny had committed any offence against her. The accused has not committed any offence against her and her daughter. She stated that she had signed on some documents but she did not know their contents. She admitted her signatures are at point A in the arrest memo (Ex.PW1/C). However, the accused was not arrested in her presence. She did not have any grievance against accused Mr.Sonal Monga @ Sunny as he has not committed any offence against her and her daughter. He is innocent. She has prayed that he may be acquitted.
Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 4 of 13 ::-
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7. As the prosecutrix was hostile and had resiled from her earlier statement, the Substitute 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 Substitute Additional Public Prosecutor, the prosecutrix denied that she had made the statement (Mark A) to the police. Accused has not committed any offence against her and her daughter. Whatever she has deposed in the Court today is the truth. She admitted that she has made the statement under section 164 of the Cr.P.C. (Ex.PW1/B). She voluntarily stated that she had made the statement at the instance of well wisher. She did not remember the name of her well wisher at whose instance she had made her statement under section 164 of the Cr.P.C (Ex.PW1/B). Accused has not committed any offence against her and her daughter and he is innocent. She has denied telling the doctor about the alleged incident in her MLC (Ex.PW1/A). In fact, she had told the doctor that no offence had been committed against her and her daughter and due to this reason she had refused her gynecological examination. She denied the suggestion that the accused was arrested in her presence. She again said that she had signed on some documents but she did not know their contents. She denied the suggestion that she had shown the place from where she and her daughter were abducted by the accused i.e near the school of daughter. She stated that she was not taken by the police to any place. She denied the suggestion that whatever is mentioned in her statement under section 161 of the Cr.P.C.(Mark A), MLC Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 5 of 13 ::-
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(Ex.PW1/A) and statement under section 164 of the Cr.P.C. (Ex.PW1/B) are correct. She denied the suggestion that she had stated the correct facts in Ex.PW1/A, Ex.PW1/B and Mark A. She denied the suggestion that she had stated the correct facts in the above documents voluntarily and not at the instance of any well wisher. She did not remember the name of well wisher. She denied the suggestion that she did not remember the name of well wisher as there was no such person and she had stated the correct facts before the police, doctor and the learned Metropolitan Magistrate. She denied the suggestion that on 21.08.2014 at 8.30pm from near Tagore Garden School, Rajouri Garden, the accused had abducted her and her daughter in a car and administered some intoxicating material to them and thereafter from 21.08.2014 to 27.08.2014 in a village (name not known), in a hotel in Chandigarh, in a hotel in Delhi and at unknown place at Meerut, the accused committed rape upon her several times and during this period he threatened to consume poison and implicate her in case she did not stay with him. She denied the suggestion that accused has intoxicated her and her daughter, abducted them and thereafter raped and threatened her. She denied the suggestion that she is deliberately deposing falsely in order to save the accused as she has been won over by him. She again deposed that accused has not committed any offence against her and her daughter.
9. In her cross examination by the accused, the prosecutrix has admitted that accused is innocent and has not committed any offence against her and my daughter. She admitted that she did not have any grievance against the accused. She has prayed that the accused may be acquitted.
Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 6 of 13 ::-
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11. PW2, minor daughter of the prosecutrix, an eye witness, has deposed that her date of birth is 21.11.1999. She knows accused Mr.Sonal Monga @ Sunny for about one year as he was working in the same building where her mother was working earlier. She addressed him as Uncle. She did not remember the date and month but it was in this year i.e. 2014 in summer, she along with her mother/prosecutrix and accused had gone to Punjab for 5-6 days. She stated that nothing wrong happened with her mother or herself. Accused did not do anything wrong with them. Her father told them on return that he had made a complaint to the police which was under some misunderstanding. Then she along with her parents went to Police Station Khayala where she told the police that no offence had been committed against her or her mother by any one. She admitted that she produced by the police in Tis Hazari Court, where her statement was recorded by the learned Metropolitan Magistrate. She had made her statement before the learned Metropolitan Magistrate at the instance of some well wisher who had come with her to the Court. The actual position is that no one including accused Mr.Sonal Monga @ Sunny had committed any offence against her and her mother. She admitted that she had made the statement under section 164 of the Cr.P.C. (Ex.PW2/A) at the instance of a well wisher. She stated that the accused has not committed any offence against her and her mother. She stated that she did not have any grievance against accused Mr.Sonal Monga @ Sunny as he has not committed any offence against her and her mother. She stated that accused is innocent and she has prayed that he may be acquitted.
Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 7 of 13 ::-
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12. As the witness was hostile and had resiled from her earlier statement, the Substitute Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
13. PW3, Mr. Mukesh, complainant of the case and the husband of the prosecutrix, has deposed that he lives along with his family comprising of her wife/the prosecutrix and his two minor children. He works as a sweeper in Delhi Police. His wife used to work earlier in Shadi.com which she had left subsequently. Accused Mr.Sonal Monga @ Sunny used to work in the same building where by his wife was working and they had cordial terms. On 21.08.2014, his wife along with his daughter who was born in the year, 1999, had gone for few days to meet her sister without telling him. Due to some misunderstanding, he thought that the accused had enticed his wife taken his wife and daughter some where and he had discussed this matter with some well wisher and on whose advise he had made a complaint (Ex.PW3/A) to the police on 23.08.2014 in Police Station Khayala. After his wife and daughter returned home, his wife told him that she had gone to her sister's house in Chandigarh where she and his daughter had stayed for 5-6 days. She also told him that no one had committed any offence against her and their daughter. He told them that he had already made a complaint to the police and all three of them went to PS to inform the police that his wife and daughter have come back and no one has harmed them nor committed any offence against them. He stated that he does not have any grievance against the accused. He further stated that he does not want to say anything else.
Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 8 of 13 ::-
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14. As the complainant was hostile and had resiled from his earlier statement, the Substitute Additional Public Prosecutor has cross-examined him. He has been cross examined at length but nothing material for the prosecution has come forth.
15. PWs 2 and 3, who are the eye witness and complainant respectively were hostile and nothing material came forth in their lengthy cross examination by the State. Both of them denied witnessing anything regarding this case and deposed that accused has not committed any offence against the prosecutrix and PW2.
16. The prosecutrix, PW1, and the eye witnesses-PW2 and complainant Mr. Mukesh-PW3 have not deposed an iota of evidence of prosecutrix and her daughter, PW2, being intoxicated, abducted, raped and threatened by accused Mr.Sonal Monga @ Sunny. They have not even mentioned the word "rape" by accused Mr. Songal Monga in their examination in chief nor has deposed anything incriminating against him.
17. In the circumstances, as PW1, the prosecutrix, PW2 and PW3, Mr.Mukesh, who are the star witnesses have turned hostile and have 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 Substitute Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time Sessions Case Number : 112 of 2014.
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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.
18. Statement under section 313 of the Cr.P.C of the accused is dispensed with as there is nothing incriminating against him when the prosecutrix, the eye witness and complainant are hostile and nothing material has come forth in their cross examination by the prosecution.
19. 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.
20. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, PW2 and Mr. Mukesh, PW3, who happen to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable and the evidence of the material witnesses cannot be treated as worthy of credence. 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."
21. Similar view was also taken in the judgment reported as Madari Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 10 of 13 ::-
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@ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
22. Consequently, no inference can be drawn that accused is guilty of intoxicating and abducting the prosecutrix and her daughter and raping and threatening the prosecutrix. There is no material on record to suggest that the prosecutrix and her daughter was ever intoxicated and abducted and the prosecutrix was raped and threatened by accused Mr. Sonal Monga @ Sunny. No case is made out against the accused Mr. Sonal Monga @ Sunny as there is no incriminating evidence against him. In fact, the prosecutrix has deposed that no one has committed any offence against her and her daughter. Evidence of PWs 2 and 3 is also similar as they too are hostile.
23. 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 accused has not committed any offence against her and her daughter. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
24. Consequently, no inference can be drawn that accused Mr. Sonal Monga @ Sunny is guilty of the charged offences under section 328, 366, 376 and 506 IPC There is no material on record to show that on 21.08.2014 at about 8.30 pm from near Tagore Garden School, Rajouri Garden, Delhi, he abducted the prosecutrix along with her daughter Ms. Simran with intention that prosecutrix may be compelled to or forced to il- Sessions Case Number : 112 of 2014.
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licit intercourse and he offered water to both proecutrix and her daughter in his car mixed with intoxicated material with intent to commit the offence of rape on prosecutrix and between the period of 21.08.2014 and 27.08.2014 in a village (name not known) in a hotel at Chandigarh, in a hotel at Delhi and at unknown place in Meerut, he committed rape upon the prosecutrix and threatened to consume poison and implicate the prosecutrix, if she did not stay with him.
25. 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 offence of intoxication, abduction, rape and threat. The evidence of the prosecutrix, eye witness and complainant make it highly improbable that such an incident ever took place. In fact, the prosecutrix and the eye witness have deposed that accused has not committed any offence against them.
26. 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. Sonal Monga @ Sunny due to complete lack of evidence for the offence under sections 328, 366, 376 and 506 of the IPC.
27. Consequently, the accused, Mr. Sonal Monga @ Sunny is hereby acquitted of the charge for the offence under sections 328, 366, 376 and 506 of the IPC.
Sessions Case Number : 112 of 2014.
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28. Compliance of section 437-A Cr.P.C. is made in the order sheet.
29. Case property be destroyed after expiry of period of limitation of appeal.
30. 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 or where the prosecutrix is hostile, as in the present case, 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.
31. One copy of the judgment be given to the Substitute Additional Public Prosecutor, as requested.
32. 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 on (NIVEDITA ANIL SHARMA) this 20th day of November, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 112 of 2014.
Unique Case ID Number : 02401R0487862014 FIR No.652/2014, Police Station Khayala Under sections 363, 365, 328, 376 and 506 of the Indian Penal Code. State versus Sonal Monga @ Sunny -:: Page 13 of 13 ::-