Delhi District Court
State vs . 1. Santosh Kumar, on 10 December, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 63/14.
Unique Case ID No. 02405R0228052014.
State Vs. 1. Santosh Kumar,
S/o Sh. Ram Kishan,
R/o Mukesh Thakur Ka Makan,
Som Bazar Road, Arjun Park,
Nagali Dairy,
Delhi.
2. Ajay,
S/o Sh. Kishan Lal,
R/o H. No.119, Gali No.20,
Vipin Garden, Uttam Nagar,
New Delhi.
Date of Institution : 20.9.2014.
FIR No.858 dated 21.8.2014.
U/s. 376/384/506 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 03.12.2014.
Date of pronouncement : 10.12.2014.
JUDGMENT
1. The above named two accused Santosh and Ajay had been chargesheeted by the prosecution for the offences u/s. 376/384/506 IPC.
2. It is the case of the prosecution that the prosecutrix namely 'A' (real name withheld in order to conceal her identity) a SC No.63/14. Page 1 of 11 married lady having three children aged 18 years, 17 years and 16 years respectively, has been working in Gandhi Nursing Home, Om Vihar, Delhi. Accused Ajay was also working in the said Nursing Home as a Ward Boy. One day in December, 2012, the prosecutrix had gone alongwith Ajay to the house of Jugnu on the occasion of birthday of his son. There accused Ajay offered tea to her, on consuming which she became unconscious and then Ajay committed raped upon her. She asked Ajay what has he done and her husband would beat her. She also advised Ajay not to narrate the incident to anybody but Ajay disclosed the incident to his cousin (son of Bua) i.e. accused Santosh, who had been harassing the prosecutrix for about 3 or 4 months before the registration of the FIR. Santosh had been snatching money from her, sometimes Rs.500/-, sometimes Rs.1,000/- and sometimes Rs.1,500/-. This month Santosh has demanded Rs.10,000/- from her saying that otherwise he would apprise her husband about the incident of rape. Prosecutrix had given him Rs.6,000/- just 15 days before but even thereafter he was harassing her intensely. Thereafter Santosh's brother Jugnu told everything to her husband. When the husband of the prosecutrix asked her whether she had been raped by Ajay two years ago, she replied in affirmative. Prosecutrix's husband took her to the police station for lodging a report whether the statement of the prosecutrix was recorded and FIR was registered.
3. After the registration of the FIR, investigation was entrusted to SI Nirmal Sharma. She summoned an official from NGO Sabina, who counselled the prosecutrix. She visited the spot of incident and prepared its rough site plan. She apprehended SC No.63/14. Page 2 of 11 accused Ajay from his residence, brought him to the police station, interrogated him and arrested him in this case. Accused Santosh also came to be arrested. Statement of the prosecutrix u/s.164 Cr.PC was got recorded on 22.8.2014.
4. After completion of the investigation, Charge Sheet was prepared and submitted to the concerned Ld. M.M. who then committed the case to the court of Sessions.
5. After committal of the case to the court of Sessions, Charge u/s.328 IPC, u/s.376 IPC and u/s.506 IPC was framed against accused Ajay on 16.10.2014. On the same day, Charge u/s. 384 IPC was framed against accused Santosh. Both the accused denied the charges and accordingly trial was held.
6. At trial, the prosecution has examined 4 witnesses to bring home the guilt of the accused. The accused were examined u/s.313 Cr.PC ON 24.11.2014 wherein they denied the prosecution case and claimed false implication. They examined Jagram @ Jugnu as DW1 to prove their innocence.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire record.
8. The prosecutrix appearing as PW1 has deposed that she got married to Mohd. Shamim about 20 years ago and has three children aged 18 years (son), 17 years (daughter) and 16 years (daughter) respectively. Her husband runs his shop on a Rehri in the weekly market in Nagali Dairy. She did not remember SC No.63/14. Page 3 of 11 the exact date and month of the incident and stated it happened two years ago. At that time, she was working as maid in Gandhi Nursing Home, Om Vihar, Delhi. Accused Santosh and Ajay were also working as Scavengers in the same Nursing Home. She deposed that on the date of incident, she was to do night duty in the Nursing Home. When she came down from bus at Om Vihar Bus Stand at about 7.45 p.m., accused Ajay met her there. She told her that he has organized a party at his home and requested her to join the party. Being the staff member of the Nursing Home, she believed him and accompanied him to his home. He told her that it is the birthday of his nephew Jugnu. On reaching his home, accused Ajay offered her tea, upon taking which she became unconscious. She regained consciousness at about 3 a.m. in the night and found herself totally nude on the bed in a room. Accused Ajay was sitting on the floor of the room. When she asked him what he has done with her. He did not say anything but threatened her not to reveal the incident to anybody or otherwise, he would kill her, her husband and children. She remained in that room till 6 a.m. and then left for home.
9. She further deposed that as she was in intense mental tension and agony, she did not disclose the incident to anybody at home. Accused Santosh, who is the cousin of accused Ajay, had come to know about the aforesaid incident. He used to meet her on the way to Nursing Home and used to blackmail her by demanding money saying that he would narrate the incident to her husband. Once she paid him Rs.500/-, second time Rs.1,000/-, third time Rs.10,000/- and lastly Rs.6,000/- to ensure that he remains quiet about the incident. Thereafter, Ajay's brother vijay SC No.63/14. Page 4 of 11 and Amit also started blackmailing her. They used to even snatch her lunch also, as a result of which she used to remain hungry in the Nursing Home. She deposed that when the cruelties inflicted upon her by accused Ajay and his brothers became intolerable, she was constrained to narrate the incident to her husband. Thereafter she alongwith her husband reached the police station and lodged the complaint. Her statement Ex.PW1/A was recorded in the police station. Next day, she was brought to the court where her statement was recorded by a Ld. Magistrate, which she proved as Ex.PW1/B. She also deposed that accused Ajay was arrested in her presence from Mohan X-ray Clinic on the same day vide arrest memo Ex.PW1/C.
10. In the cross examination, she deposed that accused Ajay had been working with her in Mata Roop Rani Hospital, Om Vihar, for 2/3 years and not in Gandhi Nursing Home. She has been working in Gandhi Nursing Home for the last 4/5 years. She deposed that accused Ajay is at present working as a Conductor with a school bus. She knew Jugnu also as he was working as a Scavenger in Gandhi Nursing Home. She deposed that on the date of incident when she came down from the bus, accused Ajay met her and told her that it is the birthday of Jugnu. When they reached the house of Jugnu, the cake cutting ceremony was already over. About 4/5 relatives of Jugnu were present in the house at that time and all were taking meals. She was not offered cake as it had already been distributed. She took meals at about 2.30 a.m. or 3 a.m. and till then she was talking to Ajay and other persons present in the house. She admitted that she had left her house to attend her duty in the Nursing Home but instead of going SC No.63/14. Page 5 of 11 to Nursing Home, she reached the house of accused Ajay. She deposed that she made a call to her husband at about 9 p.m. saying that she has gone to the house of a friend and did not tell him the name of that friend. She did not tell her husband that she has reached the house of accused Ajay to attend the birthday party. She also had made a call to her office at 9 p.m. informing there that she would not be able to come to the office on that day as she is in a birthday party. She deposed that she had taken tea as well as cold drink about 2 or 3 times till 2.30 a.m. when she had her meals. Ajay's sister in law (Bhabhi) namely Sunita was also present in the house and she was talking to her also. She denied that she had engaged in physical relations with accused Ajay before the aforesaid day also. She denied that she used to take money from accused Ajay as they were finding it difficult to run their household from her salary and lodged a false complaint of rape against him when he refused to give her further money.
11. In the cross examination conducted on behalf of accused Santosh, she deposed that she had visited his house twice before the date of incident. She admitted that accused Santosh had come to her house on the day of Raksha Bandhan of this year and she had tied Rakhi on his wrist. She denied that accused Santosh was facing some financial constraints and for that reason, she had paid him Rs.5,000/- to extend financial help to him. She deposed that accused Santosh had been arrested in a case of theft about 2 or 3 months before the registration of FIR in this case and she alongwith her husband had gone to the police station and paid him Rs.5,000/- to enable him to seek bail in that case. She did not remember the date and month when she had paid amount of Rs.
SC No.63/14. Page 6 of 11500/-, Rs.1,000/-, Rs.1,500/-, Rs.10,000/- and Rs.6,000/- to Santosh. She did not remember whether she had paid these amount of money to Santosh before the date of incident or after the date of incident in this case. She added that she had paid Rs. 6,000/- to him about two months before the date of incident. She deposed that she had withdrawn Rs.10,000/- and Rs.6,000/- from her bank account in Canara Bank, Uttam Nagar, to be given to Santosh but could not tell the date and month when she had withdrawn this money. She denied the suggestions put to her.
12. PW2 is the husband of the prosecutrix Mohd. Shamim. She deposed that his wife told him on 21.8.2014 that she had been raped by accused Ajay in December, 2012. She also told him that thereafter accused Santosh had been blackmailing her and accused Ajay had snatched her salary. After mutual discussion, they came to Dwarka Court and consulted a lawyer in the office of D.L.S.A., on whose advice, they reached P.S. Bindapur and lodged the complaint. He deposed that the statement of his wife Ex.PW1/A was recorded in the police station and he also had signed that statement. According to him, both the accused were brought to the police station by police officials on the same day and accused Ajay had admitted to him in the police station that he had raped his wife.
13. In the cross examination, he deposed that accused Santosh treated his wife as his sister and him as his brother-in-law (Jija). He also deposed that Santosh alongwith his wife used to visit their house. He further stated that his wife told him on 20.8.2014 that she had paid Rs.21,000/- to accused Santosh on various SC No.63/14. Page 7 of 11 dates. He also deposed that one day, he alongwith his wife had visited the police station as accused Santosh had been arrested in a case of theft and he paid him Rs.6,000/- in the police station. In the cross examination conducted on behalf of accused Ajay, he deposed that his wife used to get Rs.6,000/- to Rs.7,000/- per month as salary. She used to handover her salary to him sometime and sometime she did not do so. He did not ask her why she is not handing over to him the entire salary as he thought that she must be saving money for purchasing jewellery for their daughter.
14. Scrutiny of the testimony of the prosecutrix reveals that she is not a credible or trustworthy witness. It is evident from her deposition that either there had been no incident of sexual intercourse between her and accused Ajay on the date of incident in the house of Ajay's cousin or it was a consensual affair. She has deposed that after she got down from the bus, accused Ajay met her and requested her to accompany him to the birthday party of his nephew Jugnu. She states that she believed Ajay as he was a staff member of Gandhi Nursing Home where both of them were working. However, in the cross examination she has deposed that Ajay is not working in Gandhi Nursing Home and had worked with her in Mata Roop Rani Hospital about four or five years before. Thus accused Ajay was not a staff member or colleague of the prosecutrix and she had no reason to believe his representations. She did not tell her husband that she has gone to the house of accused Ajay to attend the birthday party. It appears that the prosecutrix had very close relations with the accused Ajay and for that reason she skipped her office and readily agreed to SC No.63/14. Page 8 of 11 accompany him for the birthday party without even intimating her husband about the same.
15. The prosecutrix, in her examination in chief, has deposed that on reaching Ajay's home, he offered her tea, upon taking which she became unconscious and regained consciousness at about 3.00 a.m. in the morning when she found herself totally nude on the bed. In the cross examination, she has deposed that she took meals at about 2.30 a.m. or 3.00 a.m. and before that she had taken tea as well as cold drinks two or three times. She also stated that she had been talking to accused Ajay, his sister in law (Bhabhi) Sunita and other persons present in the house till that time. Thus, she has herself contradicted her version that she had become unconscious soon after she took first cup of tea offered to her by accused Ajay and regained consciousness at about 3.00 a.m. in the morning. In view of the aforesaid nature of deposition of the prosecutrix it can't be believed that she had became unconscious after taking the tea or that she had been raped during her unconsciousness.
16. When the incident of rape itself has been found to be doubtful and unbelievable, the allegations of blackmailing against accused Santosh too became doubtful. The prosecutrix claims to have paid various sums of money to accused Santosh on different occasions to keep his mouth quiet as he had been blackmailing her that he would apprise her husband about her sexual relations with accused Ajay. If there had been no sexual relations between the prosecutrix and accused Ajay or the sexual relations between the two were against her consent, there was no reason or occasion SC No.63/14. Page 9 of 11 for her to pay money to accused Santosh. She should have informed her husband about the rape incident as well as the illegal demands of money or should have reported the matter to police. There is no evidence to suggest that accused Santosh had issued any threats to her not to report the matter to police. The prosecutrix did not recollect whether she had paid these amounts of money to Santosh before the date of incident in this case or after the date of incident. She has deposed that she paid sum of Rs. 6000/- to Santosh about two months before the date of incident. Therefore, it could not have been related to the incident involved in this case. Even otherwise also it seems to be highly improbable that accused Santosh would blackmail the prosecutrix by demanding money from her. Prosecutrix's husband PW-2 has deposed in the cross examination that accused Santosh used to treat his wife as his sister and him as his brother in law (jija). Prosecutrix has deposed in the cross examination that she has been visiting the house of accused Santosh and he too had come to her house on the day of Raksha Bandhan in this year i.e. 2014 and she had tied rakhi on his wrist. Both the prosecutrix and her husband have deposed that they had visited the police station when accused Santosh had been arrested in a case of theft about two or three months before the registration of FIR in this case and had paid him Rs. 5,000/- to enable him to seek bail. Such kind of close, cordial and brotherly-sisterly relations between the prosecutrix and accused Santosh make it highly improbable that accused Santosh would have been extorting any money from the prosecutrix.
17. Hence the evidence led by the prosecution is intensely SC No.63/14. Page 10 of 11 doubtful and untrustworthy. The prosecution has failed to prove the charges against the accused beyond reasonable doubt. Resultantly, both the accused are liable to be acquitted and are hereby acquitted as such.
Announced in open (VIRENDER BHAT)
Court on 10.12.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.63/14. Page 11 of 11