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Delhi District Court

State vs . Mukesh @ J.P. on 6 October, 2012

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
      JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 24/2012
Unique Case ID: 02404R062172012

State                        Vs.            Mukesh @ J.P.
                                            S/o Thakur Prasad
                                            R/o House No. F­4/11­12
                                            Sultanpuri, Delhi.

FIR No.                      :              2/2012
Police Station               :              Sultanpuri
Under Section                :              376/511/451/506/380 IPC


Date of committal to Sessions Court : 27.3.2012

Date on which orders were reserved  : 21.9.2012

Date on which judgment pronounced : 26.9.2012


JUDGMENT

(1) As per the allegations on 01.01.2012 at about 10:00 AM at House No. F­6/357, Sultan Puri, accused Mukesh committed house trespass and attempted to commit rape upon prosecutrix 'S' (name of the girl is withheld being the case under Section 376 IPC) and when she tried to save herself, the accused tried to strangulate and kill her by wrapping electric wire around her neck and thereafter he picked up Rs.1,600/­ lying on the bed and ran away from the spot. State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 1 Case of prosecution in brief:

(2) The case of the prosecution in brief is that on 1.1.2012 on receipt of DD No. 30A, SI Mukesh Meena along with Ct. Hem Raj reached at SGM Hospital and collected the MLC of prosecutrix 'S' wherein the doctor had mentioned "patient was brought with alleged history of physical assault and attempt to rape by Mukesh, around 24 years, at patient's house, no history of penetration as told by patient". Thereafter, SI Mukesh Meena recorded the statement of the prosecutrix 'S' in the presence of NGO official wherein the prosecutrix 'S' has stated that she was residing along with her family and had studied upto class 8th. She had alleged that on 1.1.2012 at about 10:00 AM, she was alone at her house as her mother had gone market and her father had gone to Jhandewala Mandir, when Mukesh @ JP R/o F4/11­12, Sultanpuri, who was previously known to her and who used to follow her for which she had made complaints against him, forcibly entered into her house and threw her on the floor and attempted to commit rape upon her. She also told the police and when she tried to save her, Mukesh lifted an electric wire lying near the spot and wrapped the same around her neck and strangulated her with intention to kill her. The prosecutrix 'S' has further told the police that Mukesh also threatened her and demanded money on which she told him that money was kept under the bed after which he left her and picked up Rs.1,600/­ from the bed and ran State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 2 away from the spot. The prosecutrix has further told the police that thereafter her mother reached the house and removed the electric wire from her neck and also called her father and after some time her father came home who made a call at 100 number. Police reached at the spot and took her to the SGM hospital where she was medically examined.

(3) On the basis of the above statement of the prosecutrix, rukka was prepared and FIR was recorded. During investigations, at the instance of the victim, the accused Mukesh @ JP was arrested and after completing the investigations, charge sheet was filed in the court.

CHARGE:

(4) Charges under Section 451/376/511/307/392 Indian Penal Code were settled against the accused Mukesh @ JP to which he pleaded not guilty and claimed trial.

EVIDENCE:

(5) In order to discharge the onus upon it, the prosecution has examined as many as thirteen witnesses.

Public Witnesses:

(6) PW5 Narender Kumar deposed that he was residing at the aforementioned address since last 7­8 years along with his family State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 3 comprising of his wife, his daughter prosecutrix and on 01.01.2012 he had gone to the Jhandewalan Mandir and his wife and daughter were alone at home and at about 10:30­11 AM in the morning, he received a telephone call from his wife informing him that the accused Mukesh @ JP, (correctly identified by the witness) who is residing in the same area had entered his house forcibly by opening the door of the staircase and threw his daughter on the floor and tried to commit rape with her and when his daughter tried to resist the accused tried to strangulate her with a wire of the extension cord which was lying in the same room, which he wrapped around her neck and had also committed robbery in the house. This witness has further deposed that he rushed back home, he found his daughter sitting on the floor and crying and she was having strangulation marks around her neck. Thereafter he came to know from his wife and daughter that the accused while trying to strangulate his daughter had asked her where the money was kept and in order to save herself, his daughter disclosed that it was kept in the box on the bed on the pillow side and he thereafter Rs.1600/­ (rupees one thousand six hundred), from the same and ran away. He has further deposed that he thereafter call the PCR on 100 number and the police came to his house after which they took his daughter to SGM hospital and he along with his wife accompanied his daughter and in the hospital his daughter was given medical treatment and her statement was State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 4 recorded in the presence of a lady police official and one lady who had been called by the police, whose details he does not know. This witness has further deposed that they all returned to their house after the medical of their daughter and the electricity coil with which his daughter had been strangulated was taken into possession by the police and that after they returned to their house and his daughter showed to the police the place/room where the incident had taken place. He has further deposed that the police prepared the site plan and also showed to the police the bed box from which the money had been removed by the accused and the coil of the extension cord with which the accused had tried to strangulate her and the police also inquired from his daughter about the details of the accused and his daughter in his presence pointed out the house of the accused and the accused to the police on which police went to his house and on her pointing out the accused was apprehended and thereafter they returned to their house and the police recorded his statement and also the statement of his wife at their house. He has further deposed that even on previous occasions, the accused had been after his daughter and attempted to molest her in respect of which they had been making repeated complaints to the police. On Court question the witness informed that he could produce the copies of the previous complaints which he had made to the police, if granted time. He has further deposed that he had made the various complaints on State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 5 14.09.2011 when he made a PCR call, which was attended to by SI Bharat Bhushan; 10.11.2011 on which an FIR was registered and the present complaint is the third one.

(7) In his cross­examination by Ld. Defence Counsel, this witness has deposed that his daughter is now aged 23 years. He has admitted that the incident did not take place in his presence and has voluntarily added that he had received a call from his wife. He has denied that his daughter was known to the accused for the last two years prior to the incident and has voluntarily stated that he is residing in the same area and is casually known to his daughter in such capacity. He has denied that his daughter was in love with the accused and they used to meet at various places including Japanese Park and Sultanpuri. He has further deposed that he does not recollect if there is any SIM card of a mobile phone in the name of his daughter and that he cannot confirm the mobile number 9268339713 whether it belongs to any family member or not and has voluntarily added that many persons in their house had a number similar to this series and therefore he cannot confirm. He has further deposed that he was not aware if the above number was being used by his daughter in her mobile set make MICROMAX and that he is not aware of the mobile number of Mukesh, or whether it was 9211884850. He has denied that his daughter used to speak to Mukesh on this mobile number for hours and has voluntarily added State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 6 that his daughter never spoke to Mukesh at any point of time. He has further deposed that he is not aware of the caste of the accused whether he is a Rajput or not. He has admitted that he is a Baniya by caste. He has denied that on account of caste differences he did not permit his daughter to marry the accused despite the fact that they were in love. He has denied that his daughter used to call the accused in his absence and his wife and has voluntarily added that it was an attempt to defame his daughter. He has denied that he had strangulated his daughter and she had received the said injuries because of the same or that he has wrongly shifted the blame of the same on the accused. He has further deposed that he does not remember if 01.01.2012 was Sunday. He has admitted that 01.01.2012 was a holiday for him and that he had gone to Jhandewalan Mandir in a public transport/bus where he had gone alone and that he had received a call from his wife on his personal mobile bearing No. 9868154635 and that it was around 10:15­10:30 AM and that he does not recollect the number from which his wife had made a call and has voluntarily explained that it was from a mobile phone and that he only know the mobile number of his wife, which she is presently using but do not recollect the number which she was using at that time. He has denied that he did not go to the Jhandewalan Mandir or that he did not receive any message from his wife and due to this reason he has not stated the mobile number of State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 7 his wife. He has further deposed that Ashok Kumar is residing on the ground floor as a tenant in the property bearing No. F6/357, Sultanpuri and that there are several houses adjoining to his house and whatever he has told the court he had earlier stated to the police in his statement U/s 161 Cr. P.C. (8) This witness has further deposed that he had told the police that he was informed by his wife on telephone that she had gone to the market and that accused had entered the house by forcibly opening the door of the staircase. However, when confronted with his statement U/S 161 Cr. P.C. which is Ex.PW5/DX1 these facts were not found so recorded. He has further stated that he had told the police that he was told by his wife and daughter that his daughter had been thrown on the floor by the accused when he tried to rape and then strangulate her. When confronted with his statement U/S 161 Cr. P.C. which is Ex.PW5/DX1 where this fact regarding the daughter being thrown on the floor has not been found so mentioned. He has further deposed that he had told the police that when he came back home he found his daughter sitting on the floor and there were strangulation marks on her neck. When confronted with his statement U/S 161 Cr. P.C. which is Ex.PW5/DX1 this fact was not found so mentioned. He has further deposed that he had told the police that the accused while trying to strangulate his daughter had asked her where the money was kept and in order to save herself, State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 8 her daughter disclosed that it was kept in the box on the bed on the pillow side and he thereafter Rs 1600/­ (Rs one thousand six hundred), from the same and ran away. When confronted with the statement Ex.PW5/DX1 wherein this fact is not so recorded in the aforesaid manner and this court has observed that the fact of Rs.1600/­ being robbed finds a mention in the earlier statement. He has denied that no such incident had taken place as narrated by him. He has denied that the entire incident has been concocted by him and his wife only to pressurize his daughter and separate her from the accused since they were not agreeable to their alliance. He has denied that the earlier complaints as alleged by him were on account of his opposition to the relationship of the accused with his daughter. According to him his daughter / prosecutrix had lodged the FIR against the accused JP @ Mukesh vide FIR No. 520 dated 10.11.2011 U/s 354/451/509/506/34 IPC and the copy of the FIR which was received by them is Ex.PW5/A. (9) PW6 Amita Gupta deposed that she is residing at the aforementioned address along with her family comprising of her husband and daughter since last 10­12 years. She has further deposed that on 01.01.2012 she had gone to the market to make purchases in the morning at about 10 AM after shutting the main entrance and her daughter / prosecutrix 'S' was alone at home and after about 30­45 minutes when she returned she found the door opened and when she State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 9 entered inside she found that her daughter was sitting on the floor and crying. There were electricity coil/cord wrapped around her neck and she immediately freed / removed the electricity coil wrapped around her neck and asked her what had happened on which her daughter told her that accused Mukesh @ JP (accused, who is correctly identified by the witness) had come and done cher char with her and thereafter tried to commit rape with her and when she resisted he banged her head on the floor and thereafter he picked up the electricity wire/ extension cord kept near the television and wrapped the same around her neck and tried to strangulate her. She has further deposed that her daughter further told her that the accused thereafter demanded money from her and inquired where the money was kept on which she informed that money was kept in the bed box on the pillow side and that the accused thereafter opened the said box and removed Rs 1600/­ from the same and ran away. She has further stated that she immediately made a telephone call to her husband and informed him about the incident and after her husband returned he made a call to the PCR on 100 number, on which police came to her house and took her daughter to SGM hospital where she and her husband accompanied her and that her daughter was provided medical treatment at SGM hospital, statement of her daughter was also recorded thereafter and that they thereafter returned to their house and in the evening the accused was arrested on the pointing out State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 10 of her daughter and her statement was recorded in the evening at her house.

(10) In he cross­examination by Ld. Defence Counsel, this witness admitted that Mukesh is residing in the same area and that her daughter was known to the accused as a neighbour since about 2­4 months prior to the incident and has voluntarily stated that it was only a casual alliance as he is residing in the same area and that her daughter never went to the Japanese Park with the accused. She has voluntarily stated that she had gone to one of the parks near their house on one occasion to tell the accused that he should not call her up and that she is not aware of the mobile number of her daughter. She has denied that accused used to speak to her daughter on the mobile phone and has voluntarily stated that they used to receive a lot of calls at their house and on many occasions she had threatened the caller not to call up. She has admitted that she did not know who used to make these calls and has voluntarily added that the caller used to give missed calls or he did not speak. She has further deposed that they did not make any complaint to the police regarding irritating calls by unknown persons. She has denied that her daughter and the accused was in love with each other and they used to meet at Japanese Park and various parks. She has further deposed that her husband had left their house at 7AM in the morning on 01.01.2012 and that she had left for the market at about 9­9:30 AM. She has State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 11 admitted that the incident did not take place in her presence nor she saw the accused entering or leaving her house and that there are some other tenants residing on the ground floor and for reaching to the first floor there is a staircase from outside and there is no need to go to the tenanted portion on the ground floor. She has further deposed that it is not possible for the residents of the ground floor to hear the voices on the first floor and that her daughter had told her that she had raised an alarm when the incident took place. She has further deposed that she had told the police that when her daughter resisted to the accused he banged her head on the floor. However, when confronted with statement Ex.PW6/DX1 wherein this particular aspect is not so recorded. She has further deposed that she had called up her husband from a mobile phone whose number she does not recollect. She has denied that she did not make any call to her husband and it is for this reason that she is deliberately not telling the number. She is further unable to tell the mobile number of her daughter and has voluntarily added that her daughter had damaged and broken the SIM card. She has further denied that she is deliberately not disclosing the mobile number of her daughter because her daughter and the accused used to frequently talk with each other. According to her, there has never been any incident of abortion of her daughter nor she was given any pills at any point. She has further deposed that she had gone to the house of the accused State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 12 once and met his mother and has voluntarily explained that she had gone to make a complaint against the accused. She has further deposed that at the time when she went to his house, the brother of the accused also present there and that she had gone to the house of the accused few days prior to this incident. She has denied that she and her husband were opposed to alliance of her daughter with the accused because of caste differences and has voluntarily explained that there is no question of any marriage because there was no such issue and it was the accused who was following her daughter. She has denied that no such incident had taken place as narrated by her. She has denied that the entire incident has been concocted by her and her husband only to pressurize her daughter and separate her from the accused since they are not agreeable to their alliance. She has denied that the earlier complaints as made by husband were on account of their opposition to the relationship of the accused with her daughter or that she is deposing falsely.

(11) PW7 Prosecutrix 'S' has deposed that she is residing in Sultan Puri area since her childhood and on the given address for the last two years and that she has studied till class VIII. She has further deposed that on 01.01.2012 at about 10 a.m. she was alone in her house and that her mother had gone to the market to make purchases and her father had gone to Jhandewalan Mandir. She has further deposed that her mother had shut the door of the staircase from State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 13 outside and the accused Mukesh @ J.P. (correctly identified) who is resident of F Block of the same area entered in her house and thereafter he made cher char with her and also tried to commit rape with her and threw her on the floor and when he resisted he picked up the electric cords present on the floor and tried to strangulate her by wrapping the same around her neck. Thereafter he demanded money from her and in order to save herself she informed him that the money had been kept in the box of the palang on which the accused went to the palang and took Rs.1600/­ which was kept in the bed box on the side of the pillow and went away and after about one hour her mother returned and she disclosed to her about the incident what had happened on which her mother made a call to her father and her father returned and thereafter, her father made a call to 100 number and the police came to their house after which she along with her parents and the police went to SGM hospital in the PCR and there her medical examination was got conducted and that she had received injuries on her head and therefore, she was treated for her injuries but since accused did not commit any rape upon her therefore, she did not permit her internal examination for this reason. The prosecutrix has further deposed that IO SI Mukesh Meena recorded her statement in the hospital which is Ex.PW7/A and at the time when her statement was recorded apart from SI Mukesh Meena there are two ladies one of whom was from NGO but she does not State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 14 recollect her name and thereafter, they returned to their house. She has further deposed that she pointed out the place where the incident had taken place and at her instance SI Mukesh Meena prepared site plan Ex.PW7/B and the electric cord vide which the accused had tried to strangulate was also shown by her to the IO who thereafter took the same into his possession and the memo of the same is Ex.PW7/C. She has further deposed that on the same in the night at around 9 - 9­30 p.m. she along with her father went with the police and she pointed out the house of the accused to the police and also pointed out the accused and at her instance the accused was arrested by the police vide memo Ex.PW7/D and interrogate him. She has further deposed that she thereafter returned to her house with her parents and her supplementary statement was recorded. This witness has identified the extension board with red and black electricity wires (cords) as the same which was seized by the IO and shown by her to the IO as the one with which she was being strangulated and the said extension cord is now Ex.P­1.

(12) In her cross­examination by Ld. Defence Counsel, this witness deposed that she is not known to the accused Mukesh and she is only aware that he is resident of the same area because he used to roaming around in their gali and there is a park in front of their house where he used to stand and make gestures to her. According to her, the first time noticed the accused Mukesh was when her first State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 15 complaint was got registered with the police. She has denied that she had told the police that first FIR bearing No. 520/11 which is Ex. PW7/DX­1 (admitted document), she was known to accused Mukesh for last two years and has voluntarily added that she did not know him at all except that she had seen him in the area and has further added that she was not known to the accused but she had seen him in the area for last two years prior to the complaint. She has denied that in her earlier FIR Ex.PW7/DX­1 she had told the police that she had gone with the accused to the various parks including Japanese park and has voluntarily explained that the accused was trying to defame her and she had not gone with the accused anywhere including Japanese Park. This witness has further explained that she had gone to the Park in front of her house to the accused once in order to make him understand that he should mend his ways and stop following her or else she would report the matter to the police. She has further deposed that she does not recollect her mobile number which she was using at the time of the incident. She has admitted that she had broken her SIM card. She has further deposed that she does not recollect if her mobile No. was 9268339713 and that she is not aware if the mobile number of the accused was 9211884850. She has denied that she is deliberately not disclosing her mobile number and the mobile number of accused for the fear of exposing herself as she was interacting with the accused on phone for hours on the said State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 16 numbers. She has denied that whenever her parents were not at home she used to call the accused at her house and has voluntarily explained that he is making such allegations only to defame her. This witness has further deposed that when the incident had taken place on 01.01.2012 she had raised an alarm but it was then that he had shut her mouth with his hand and also put the electricity wire/cords around her neck and tried to kill her. She has denied that no such incident had taken place. She has further deposed that the tenants residing on the ground floor did not come on the first floor and has voluntarily stated that there was hardly any occasion for her to raise her voice because the accused had shut her mouth and tried to strangulate her. She had further deposed that she had told the police that the accused had shut her mouth with his hand. However, when confronted with statement Ex.PW7/A, this fact regarding he accused having shut her mouth does not find any mention. She has denied that she has now improved upon her earlier statement on the tutoring of her parents. She has denied that fact has been concocted and created at the tutoring of her parents. She has denied it was her father who had given her beating because of her affair with the accused and the blame of the same has been shifted on the accused on his tutoring.

(13) According to this witness, the police had recorded her statement twice and first time her statement was recorded at Sanjay State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 17 Gandhi Hospital and second time at her house. She has denied that accused had never come to her house on the date of incident. She has further deposed that her mother had left the house at 9 a.m. and returned after about one hour and that her father had left the house at about 8 a.m. in the morning and she does not recollect the mobile number of her mother and father. She has denied that she is deliberately concealing all the mobile numbers for the fear of exposing the truth because no such calls had been made. She has further deposed that her father does not go to Jhandewalan Mandir in routine but on the said day he had gone. She has denied that her father had not gone anywhere. She has further deposed that her father permanently resides with them and that she is not aware of any Mrs. Bansiwal. This witness has further deposed that her mother had gone to the house of Mukesh once and has voluntarily explained that she had gone to the house of Mukesh to make the complaint to the mother of Mukesh because he was harassing her. She has denied that she was having an affair with accused Mukesh and her parents were opposed to this relationship on account of difference of caste as accused belongs to Rajput and she belong to Bania community. Furhter, she has voluntarily added that there was no question of any affair or marriage with the accused as he is one who has been harassing her. According to this witness, she is not aware of the name of the father of the accused and has denied that she was not State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 18 aware of the address of the accused. She has voluntarily stated that she is aware of the address as well the location which she had mentioned in her complaint and that Mukesh was apprehended in her presence but he did not try to run away. She has stated that she had never undergone any abortion and has voluntarily added that accused was trying to defame her. She has denied that because of this reason she did not subject herself to internal examination. She has further deposed that she is now running in 23 years and at the time of incident she was 22 years. This witness has further deposed that after Mukesh had left her house, her mother returned within 10­15 minutes and after accused left her house her hands and legs were not tied and has voluntarily stated that she was sitting on the floor and was crying. According to her, she did not go to the tenants on the ground floor or to any neighbours for any help during those 10­15 minutes before her mother came and has voluntarily stated that she was totally perplexed and scared at that time and not in her senses. She has further deposed that her father returned within 10 minutes of her mother making call to him. She has denied that no such incident had taken place as narrated by her. She has further denied that the entire incident has been concocted by her and her parents only to pressurize her and to separate her from the accused since they are not agreeable to their alliance. She has denied that the earlier complaints as alleged by her parents were on account of her opposition to the relationship State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 19 of the accused with her daughter or that she is deposing falsely. Medical Evidence:

(14) PW8 Dr. Mahipal Singh has deposed that on 01.01.2012 he was posted as CMO in Emergency Department of SGM Hospital, Mangol Puri, Delhi and on that day prosecutrix S, aged 22 years was brought of HC Narender of PCR at about 1.15 PM for medical examination with alleged history of physical assault and that he medically examined the above said prosecutrix 'S' and thereafter prepared the MLC No. 53/12 which is Ex.PW8/A. He has further deposed that in the local examination he found swelling and abrasion over center forehead and abrasion over left hand and after giving first aid to the patient she was referred to Gynae department for further examination and management. (15) In his cross­examination by Ld. Defence Counsel this witness has admitted that no strangulation mark was found on the neck of the patient. He has further deposed that the abrasion on the hand was superficial and did not indicate to have been caused by tying of hand. He has voluntarily added that the abrasion were as if somebody had forcibly caught hold of the hand and caused when the patient was trying to free herself and that he did not recall if her parents at the time the history was given by the patient. State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 20 (16) PW9 Dr. Priyanka has deposed that she has been deputed by the MS of the hospital to depose on behalf of Dr. Suruchi who is no longer working in the hospital and whose signatures she can identify having seen her writing and signing during her court of duties. She has further deposed that the MLC of the prosecutrix Ex.PW8/A bears the signatures of Dr. Suruchi at various points Mark B and her observations at pointed bracketed X. In her cross­ examination by Ld. Defence Counsel, this witness has admitted that as per the record, the prosecutrix had refused for her internal examination.

Police Witnesses:

(17) PW1 HC Kailash Chand has tendered his examination in chief by way of affidavit which is Ex.PW1/1 and has deposed that on 01.01.2012 he was working as duty officer from 4 p.m. to 12 midnight at police station Sultan Puri and that on that day he received a tehrir through const. Hem Raj at 16.45 hours endorsed by SI Mukesh Meena for registering a case u/s 376/511/380/506 IPC and on the basis of said rukka he got the FIR registered copy of FIR which is Ex.PW1/A and original tehrir was handed over to Const.

Hem Raj to be delivered to the IO and endorsement on rukka which is Ex.PW1/B. State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 21 (18) In his cross­examination by Ld. Counsel, the witness deposed that it took 30­35 minutes in recording the FIR and computer was not operated by him, it was operated by Ct. Rama Kant and that he cannot say the exact time when the copy of FIR and original rukka was handed over to Ct. Hem Raj and that he also cannot tell the departure of Ct. Hem Raj from police station to the place of occurrence.

(19) PW2 WHC Rekha has tendered his examination in chief by way of affidavit which is Ex.PW2/1 and deposed that on 01.01.2012 she was working as duty officer from 8 a.m. to 4 p.m. at police station Sultan Puri and that on that day he received a call through Outer District control room and made a DD No. 30 A at 12.18 police station sultan Puri and the same was handed over to HC Rakesh Kumar and due to the gravity of the call i.e. matter related to woman, the call was handed over to SI Mukesh Meena and the copy of DD No. 30 A which is Ex.PW2/A. (20) In her cross­examination by Ld. Counsel, this witness deposed that she did not hand over the call to SI Mukesh Meena and that she did not read the affidavit of evidence before signing the same and has voluntarily added that she was told by HC Rakesh that the matter was related to a women and it was for this reason that the call was then handed over to SI Mukesh Meena by HC Rakesh himself and it is hence that this fact came to known to her. She has admitted State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 22 that DD No. 30A was regarding the jhagra.

(21) PW3 HC Govind has tendered his examination in chief by way of affidavit which is Ex.PW3/1 and deposed that on 01.01.2012 he was working as MHC (M) and on that day he received a case property i.e. switch board in this case along with wire and he made entry in this regard in register No. 19 at Sr. No. 11334 dated 01.01.12, copy of which is Ex.PW3/A. This witness was not cross­ examined by Ld. Counsel for the accused and hence, his testimony remained unassailed.

(22) PW4 L/Ct. Yuganta has tendered her examination in chief by way of affidavit which is Ex.PW4/1 and has deposed that on 01.01.2012 she along with SI Mukesh reached at SGM hospital where SI Mukesh recorded statement of victim in the presence of NGO official.

(23) In her cross­examination by Ld. Counsel, this witness deposed that the parents of the prosecutrix was present with her at the time of recording of her statement the NGO activist reached the spot after they had reached and there was no opportunity for the prosecutrix to talk to the NGO representative since they reached the spot after they had reached and the statement of the prosecutrix was recorded after the reaching of the NGO representative and she does not recollect because she did not pay any attention to the aspect if the NGO representative had already spoken to the prosecutrix before her State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 23 statement recorded by the IO.

(24) PW10 Ct. Hem Raj deposed that on 01.01.2012 he was posted at police station Sultanpuri and on that day he was on emergency duty from 8 AM to 8 PM and that he along with SI Mukesh Meena reached at SGM hospital along with L/Ct. Yuganta after receiving the DD No. 30A and that prosecutrix 'S' and her parents met them in the hospital and one NGO official was also present there. He has further deposed that SI Mukesh Meena recorded the statement of prosecutrix 'S' and he converted the same into rukka and thereafter handed over the same to him for registration of the FIR and after going the police station land getting the FIR registered at the police station Sultanpuri, he reached at the house No. F6/357 Sultanpuri and handed over the copy of FIR and original rukka to SI Mukesh Meena for further investigations. He has further deposed that IO had taken into custody one electricity wire with switch board at the instance of the complainant prosecutrix 'S' and seized the same vide seizure memo already Ex.PW7/C and thereafter at the instance / pointing out of prosecutrix S accused Mukesh @ JP was arrested vide arrest memo Ex.PW7/D and his personal search was also conducted vide memo Ex.PW10/A, accused Mukesh was interrogated by the IO who recorded his statement vide Ex.PW10/B. This witness has correctly identified the accused and also the extension board Ex.P1.

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 24 (25) In his cross­examination by Ld. Defence Counsel, the witness has denied that accused did not make any disclosure statement to the IO or that his signatures were taken on blank papers which were converted into disclosure statement at the instance of father of the prosecutrix. He has denied that arrest memo and personal search were prepared in the police station and has voluntarily explained that they were prepared in the house of the accused. He has further deposed that he cannot tell to whom the information regarding arrest of the accused was given and that prior to the arrest of the accused they were at the police station and that he had reached to the police station at about 4.30 PM from Sanjay Gandhi Hospital. He has further deposed that at the time of arrest of the accused SI Mukesh Meena (IO), the prosecutrix and her parents were with them. He has voluntarily stated that the prosecutrix and her parents had pointed out the house of the accused from a distance. He has further deposed that in the evening when they went to the house of complainant they remained there for about half an hour to one hour and that he reached at the house of the prosecutrix at about 5.00 PM and at the time when he went to the SGM Hospital where he found the prosecutrix. He has stated that he did not notice any strangulation marks on her neck. He has denied that he did not join the investigations alongwith the IO. He has denied that he had signed the documents/ memo in the police station on the directions of State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 25 the senior officer. He has denied that the recovery of the extension cord has been planted on the accused at the instance of the father of the prosecutrix or that he was deposing falsely at the instance of the Investigating Officer.

(26) PW11 Ganga has deposed that she has appeared in the court to depose on behalf of Nazama Khatoon who is a community mobilizer in the NGO as she is not available in Delhi at present and that on receipt of information from PS Sultanpuri, Nazma Khatoon had gone to the police station for purposes of counseling of the prosecutrix as per the guidelines and that she can identify her handwriting and signatures having seen her writing and signing in official course and her signatures are present on Ex.PW7/A at point mark B which she identify. This witness was not cross­examined by Ld. Counsel for the accused, hence, her testimony remained unassailed.

(27) PW12 SI Badami Lal has deposed that on 30.01.2012 he was posted at police station Sultanpuri and on that day further investigations of the present case was mark to him and he had taken the case file from MHC (R) and perused the same and at that time the accused was already in judicial custody and that he recorded the statements of the witnesses and prepared the charge sheet and filed the same in the court.

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 26 (28) In his cross­examination by Ld. Defence Counsel, this witness deposed that he did not get any statement of the prosecutrix recorded U/s 161 Cr. P.C. nor conducted any further inquiry or investigations in this case.

(29) PW13 SI Mukesh Meena has deposed that on 01.01.2012 he was posted at police station Sultanpuri and on that day he was on emergency duty from 8 AM to 8 PM and at about 1 PM he received the directions of the SHO to conduct the police proceedings in respect of the DD No. 30A and that he along with Ct. Hemraj and L/Ct. Yuganta reached at SGM hospital, Delhi. HC Rakesh handed over DD No. 30A Ex.PW2/A to him and prosecutrix 'S' and her parents met him in the hospital and he called the NGO official Nazma Khatoon in the hospital and she also reached at the hospital. He has further deposed that he also collected the MLC of prosecutrix 'S' and inquired the facts from prosecutrix 'S' and her parents and in the presence of the Nazma Khatoon he recorded the statement of prosecutrix vide Ex.PW7/A and that he prepared the rukka Ex.PW13/A and Ct. Hem Raj was sent to police station along with rukka for registration of the FIR and he was directed to come to the spot at F6/357, Sultanpuri, Delhi and thereafter he along with Prosecutrix S and her parents reached at the spot. He has further deposed that meanwhile Ct. Hem Raj reached at the spot and handed over copy of FIR and original rukka to him and that he prepared the State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 27 site plan Ex.PW7/B at the instance of prosecutrix. According to this witness, prosecutrix 'S' produced one electricity wire about eight feet long with three pin plug on one side and he seized the same vide seizure memo Ex.PW7/C and thereafter they reached at the house of the accused Mukesh @ JP and at the instance of prosecutrix 'S' accused Mukesh was arrested by him vide Ex.PW7/D and his personal search was taken vide Ex.PW10/A and he interrogated the accused Mukesh and recorded his disclosure statement vide Ex.PW10/B and that he recorded the statements of witnesses and he deposited the seized articles in the malkhana and thereafter he was transferred from the police station and he submitted the case file to the MHC (R). He has correctly identified the accused Mukesh and also the extension board with red and black electricity wires/cords Ex.P1.

(30) In his cross­examination by Ld. Counsel for the accused this witness deposed that he was told by the duty officer i.e. L/HC Rekha to reach the SGM Hospital and Nazima Khatoon reached the hospital at about 3:30 PM and during the period of preparation of the MLC he inquired the facts from Prosecutrix 'S' and from her parents and that he did not write the facts inquired by him and that he prepared the documents at the hospital while sitting in the duty constable room in the hospital. He has further deposed that he did not see and observe the neck of Prosecutrix 'S' carefully because she was State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 28 a female and that he has not noticed any strangulation mark on her neck and has voluntarily explained that he did not check the above said strangulation marks on her neck, he just observe the injuries from the MLC. He has further deposed that he reached at the spot at about 5 PM and tried to inquire about facts from the neighbourhood but no body joined the investigations and left the place without informing their names and addresses. This witness has further deposed that he does not know who are residing on the ground floor of the house of the complainant prosecutrix 'S' and that he did not enter in the ground floor house to inquire about the facts and that he remained at the spot upto 8 PM. He has further deposed that he again visited the spot at about 9:45 PM and he remained there for about 45 minutes and he recorded supplementary statement of prosecutrix 'S' at the spot at about 9:45­10 PM. He has denied that accused did not make any disclosure statement or that he obtained his signatures on the blank papers. He has further deposed that he had prepared the site plan, seizure memo of the coil/cord at the house of the prosecutrix when he went there for the first time. He has denied that that there was no seizure of the coil/cord or that the same was handed over to him later by the father of the prosecutrix at the police station which he planted upon the accused. This witness has further deposed that he reached the house of the accused at about 8:30 PM and remained there till about half an hour and has voluntarily added State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 29 that thereafter he also tried to search for another person to whom the accused had handed over the robbed amount as per his own disclosure but could not locate him. This witness has further deposed that the accused was with him during the time, they searched for the other person in the same area. He has further deposed that he did not call the crime team to get the chance prints lifted nor the photographs of the spot of the incident were taken. He has admitted that during the course of investigations he came to know that previous complaints filed by the parties against each other and that he did not make any inquiries with regard to the previous complaint and has explained that he was transferred by that time. He has denied that the investigations were led by the father of the prosecutrix. STATEMENT OF ACCUSED:

(31) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material was put to him which he denied.

(32) The accused has stated that he is innocent and has been falsely implicated. According to him, the prosecutrix 'S' was known to him for about 1 to 1½ years. He has stated that he was working in a cloth shop at Punjabi Basti, Nangloi, Delhi and the prosecutrix used to come to her shop to purchase clothes and they became friends and State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 30 also used to talk on mobile phones. The accused has further stated that the prosecutrix used to call him from her mobile number 9268337913 to his mobile number 9211884850 and on some occasions, they also went to Japanese Park at Rohini and Phool­Wala park at Sultanpuri and decided to marry but it was not acceptable to the parents of the prosecutrix due to this reason they have falsely implicated him in this case. He has further deposed that the prosecutrix has deposed against him under pressure from her parents and that on the date of alleged incident he was at his house and was suffering from fever when police came to his house and lifted him and took him to the police station and later implicated him in this case. The accused has examined one witness in defence.

DEFENCE EVIDENCE:

(33) DW1 Naresh Kumar has deposed that he was working in a shoe factory and that accused Mukesh Kumar is his real brother.

He has further deposed that on 01.01.2012 I was present at his home and that accused Mukesh, his mother and his niece were also present in the house and that Mukesh was working on a cloth shop and on the said day Mukesh was suffering from fever. He has further deposed that at around 1.00­1.30 PM two police officials from PS Sultan Puri came at their house and enquired about Mukesh and he told them that Mukesh is not well and sleeping on the first floor of the house. He State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 31 has further deposed that on this police officials went to the first floor of the house and took Mukesh to the police station and at about 2.30 PM he reached the police station and met with one police official who told him to come at about 7.00 PM and matter would be settled at that time. He has further deposed that at about 7.00 PM when he reached the police station he found his brother Mukesh, the parents of the prosecutrix and the prosecutrix present there. According to this witness, there he was made to sign on some papers and he returned home but his brother Mukesh remained in the police station and that he know the prosecutrix because they reside in the same area in the adjoining gali and the prosecutrix and her mother had also come to their house with a proposal of marriage of prosecutrix with his brother.

(34) In his cross examination by Ld. APP for the State, this witness has deposed that his family is residing in the area for the last 30­40 years and that Mukesh is his younger brother and is working in a cloth shop as a sales person and that he is earning Rs.6 to 7 thousand per month. This witness has further deposed that his brother is totally illiterate and cannot even write his name properly and that Mukesh had taken treatment from Dr. Atul who has his clinic at the Shani Bazar Road. He has further deposed that he has not brought the prescription slip and Mukesh was suffering from body pain and that he had gone with Mukesh to the doctor. He has State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 32 further deposed that he had not given the prescription of Mukesh to the police and has voluntarily explained that police was not ready to listen to what they were saying. According to this witness, he did not make any complaint of this to any senior police officer and that he did not make any complaint in the court or to any other authority regarding false implication of Mukesh.

(35) He has denied that the Parents of the prosecutrix had been coming to their house repeatedly and complained against Mukesh as he was Stalking / following and harassing the prosecutrix. According to the witness, he has studied till class 8th and can read and write Hindi and that he did not read the documents which were got signed by him. He has admitted that police had told him that his brother had been arrested. He has denied that the prosecutrix and her mother had come to his house to complained about the behaviour and conduct of Mukesh to their family and there were no talks or any kind of marriage proposal. He has admitted that the prosecutrix and her family belong to a different caste. He has admitted that her brother used to maintained regular contacts with the prosecutrix. He has admitted that her brother used to call up the prosecutrix. He has voluntarily stated that even the prosecutrix used to call him up. He has denied that the prosecutrix only called up on a couple of occasions to warn his brother Mukesh.

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 33 FINDINGS:

(36) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and Ld. Defence Counsel. I have also considered the testimonies of various witnesses and the written memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the accused:

(37) In so far as the identity of the accused is concerned, the same has not been disputed. He was previously known to the family of the victim being resident of the same area and has been specifically named in the FIR. Even otherwise he has been duly identified by the victim and her parents in the court. This being the background, I hold that the identity of the accused Mukesh @ JP stands established.

Age of the prosecutrix:

(38) There is no dispute with regard to the age of the prosecutrix. She was a major at the time of incident. During her examination in the court, the prosecutrix has herself admitted that on the date of incident she was 22 years of age, which aspect is not disputed by the accused. I hold that the prosecutrix was a major (above 18 years of age) at the time of the incident.

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 34 Medical Evidence:

(39) The MLC of the prosecutrix which is Ex.PW8/A has been duly proved by Dr. Mahipal Singh (PW8) and Dr. Priyanka (PW9) which shows that the parents of the prosecutrix had given the history of physical assault and attempt to rape by accused Mukesh at their house. It is further evident that the prosecutrix had informed the doctor that there was no history of penetration and she has refused for PS/ PV test. Her physical examination reveals redness and swelling on middle of forehead and superficial abrasions on hand. In fact Dr. Mahipal Singh (PW8) has explained that the abrasion on the hand were highly superficial indicating that somebody had forcibly caught hold of the hand and the abrasions were caused when the patient was trying to free herself. The witness has specifically stated that no strangulation marks were found on the neck of the patient. It is this medical record which indicates that somebody had caught hold of the hand of the prosecutrix and she had tried to free herself on account of which she must have fallen and received abrasions marks on her forehead (as claimed by her). This medical evidence is not compatible to the history of any sexual assault and even attempt to rape upon the prosecutrix and only indicates some scuffle between the prosecutrix and other person on account of which abrasions were received at her wrist and forehead.

The medical evidence rules out use of any cord (coil) for the State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 35 purposes of tying the prosecutrix and the allegations that she was tied with the coil (electric cord) and was strangulated with the same, does not stands established from her MLC.

Allegations against the accused:

(40) The case of the prosecution is that the complainant who was residing at house No. F­6/357, Sultanpuri, was previously known to the accused Mukesh as he was residing in the same area. It is alleged that the accused Mukesh used to follow the prosecutrix and obstruct her for which even previously complainants had been lodged against him, despite which he did not mend his ways. As per the prosecution case, on the date of incident, the father of the prosecutrix had gone to Jhandewala Mandir and her mother had gone to market to purchase vegetables and the prosecutrix was alone at her house when the accused Mukesh came to her house and forcibly attempted to commit rape upon her and when she resisted he tired to strangulate her by electric wire and threatened to kill her and allegedly demanded money from her on which she told him that the money was lying on the bed under the pillow and thereafter he took Rs.

1,600/­ and ran away from the spot of the occurrence. Later on when the mother of the prosecutrix came home, she removed the electric wire from her neck and immediately called her husband. It is further alleged that when the father of the prosecutrix came home, he dialed State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 36 100 number and police came to the spot and the prosecutrix was taken to the SGM Hospital where she was medically examined. (41) In order to prove its case, the prosecution has examined as many as thirteen witnesses. HC Kailash Chand (PW1) is formal witness being duty officer and has proved the registration of the FIR; W/HC Rekha (PW2) is also a formal witness who was working as DD writer and has proved the DD No. 30A; HC Govind (PW3) is again a formal witness who was working as MHC (M) and has relied upon the entries in the Register No. 19 and L/C Yuganta (PW4) has proved that NGO activist was informed about the incident who spoken to the prosecutrix after which statement of the prosecutrix was recorded. The most relevant witness is the prosecutrix 'S' herself who has been examined as PW7 and her parents i.e. father Narender Kumar (PW5) and mother Amita Gupta (PW6). Coming first to the testimony of prosecutrix 'S' (PW7), relevant portion of which is as under:

"I am residing in Sultan Puri area since my childhood and on the given address for the last two years. I have studied till class VIII. On 01.01.2012 at about 10 a.m. I was alone in my house. My mother had gone to the market to make purchases and my father had gone to Jhandewalan Mandir. My mother had shut the door of the staircase from outside. The accused Mukesh @ J.P. (correctly identified) who is resident of F Block of the same area entered my State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 37 house and thereafter he made cher char with me and also tried to commit rape with me and threw me on the floor. Thereafter, when I resisted he picked up the electric cords present on the floor and tried to strangulate me by wrapping the same around my neck and thereafter demanded money from me. In order to save myself I told him that the money had been kept in the box of the palang on which the accused went to the palang and took Rs.1600/­ which was kept in the bed box on the side of the pillow and went away.

After about one hour my mother returned and I disclosed to her about the incident what had happened on which my mother made a call to my father and my father returned. Thereafter, my father made a call to 100 number and the police came to our house and I alongwith my parents and the police went to SGM hospital in the PCR.

There my medical examination was got conducted. I had received injuries on my head and therefore, I was treated for my injuries but since accused did not commit any rape upon me therefore, I did not permit my internal examination for this reason."

(42) The prosecutrix 'S' has been exhaustively cross examined by the Ld. Defence Counsel wherein specific suggestion has been made to her that she was known to the accused and had been going around with him to various places. She has denied the suggestion that she was regularly in contact with the accused and used to call him from her mobile bearing no. 9268339713 on his mobile bearing State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 38 no. 9211870154. She has further denied the suggestion that her father gave her beatings because of her affair with the accused or that she had blamed the accused on the tutoring and asking of her parents. Further, in her cross­examination the prosecutrix has admitted that there were tenants residing on the ground floor and that she did not raise an alarm at the time of the incident or even after the accused had left. I may note that it is this act of the prosecutrix in not raising an alarm particularly so when there was help which could have been made available to her, which is suspicious. Assuming that the prosecutrix was terrified or scared (as she claims) it is even more suspicious that even after the accused had left the premises she made no attempts to raise an alarm (her mouth not being tied) or to have sought help from the tenants on the ground floor or the neighbours around (being a thickly populated area). It is this behaviour of the prosecutrix which appears to be abnormal under the given circumstances and hence her oral testimony is required to be read with due care and caution.

(43) Coming next to the testimonies of the parents of the prosecutrix, namely Narender Kumar (PW5) and Amita Gupta (PW6). They have both corroborated each other, on the aspect that on the date of incident i.e. 1.1.2012 while Narender Kumar had gone to a temple to offer prayer and Amita had gone to market to purchase vegetables; that the prosecutrix was alone in the house at that time; State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 39 that after about 30­45 minutes when Amita came home she found that the prosecutrix was sitting on the floor and was crying with coils/ electric cords tied around her wrists and neck; that Amita Gupta immediately made a call to her husband Narender Kumar who within 10 minutes reached to his house as he was already on the way back home from Jhandewala Mandir and he immediately made a call at 100 number after which the police came to the spot; that they took the prosecutrix to SGM hospital where she was medically examined but no history of sexual assault was given and internal examination was also refused by the victim.

(44) This being the background, I now proceed to discuss the evidence which has come on record vis­a­vis the charges settled against the accused.

Charge under Section 376 read with 511 IPC:

(45) After giving my careful consideration to the submissions made before me by the Ld. Defence Counsel and the Ld. Addl.

Public Prosecutor, at the very Outset I may observe that the prosecutrix is a major aged about 22 years of age. During her examination before the court, this court has also observed her to be smart and a world wise women, duly aware of her rights and obligations.

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 40 (46) Secondly from the evidence on record, it is writ large that the prosecutrix was previously known to the accused and had been meeting him. She has in her deposition specifically admitted that she had met the accused in a park on a couple of occasions and has explained that she had met the accused because she wanted to make him understand that he should stop following her, which explanation however does not appear convincing. Had that been so that the prosecutrix was unhappy with the accused following her at various places, she would have rather disclosed this fact to her parents or would have raised a hue and cry which she did not do, but under no circumstances it is possible that she would have, of her own gone and met him at a secluded park in the area.

(47) Thirdly it is writ large that not only the prosecutrix but also her parents have tried to conceal her mobile number from the court and despite a specific suggestion was made by Ld. Defence Counsel, she did not admit her telephone number nor the telephone number of accused. This conduct is highly suspicious and it is required to be read against the prosecutrix. It is impossible that the prosecutrix or her parents would within a few months of the incident suddenly forget their mobile numbers. The Investigating Officer has not bothered either to ascertain these numbers or to collect the CDRs of the same. The possibility of this having been done deliberately only to conceal the past communications between the accused and State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 41 the prosecutrix, cannot be ruled out.

(48) Fourthly assuming that the prosecutrix was in some kind of a relationship with the accused, I hold that she has every right to end this relationship at any point of time. The accused under no circumstances has any business to follow or to stalk her to various places against her wishes or to insist upon continuing a relationship which the prosecutrix does not wish.

(49) Fifthly there is no reason to disbelieve the testimony of the prosecutrix to the extent that on 1.1.2012 the accused had come to her house and finding her alone he attempted to commit rape on her after tying her hands with the cords/ coil and also attempted to strangulate her with the same cord by tying the same around her neck and thereafter committed theft/ robbery of Rs.1,600/­. These aspects appear to be doubtful in the given background where the prosecutrix and the accused were known to each other. However, from the evidence which has come on record, the aspect of there being a scuffle between them (prosecutrix and the accused) resulting into simple injuries (abrasion) to the prosecutrix stand established. (50) Lastly the MLC of the prosecutrix reflects redness and swelling on middle of forehead and superficial abrasions on the wrist. Dr. Mahipal Singh (PW8) has explained that the abrasion on the hand were highly superficial indicating that somebody had forcibly caught hold of the hand and the abrasions were caused when State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 42 the patient was trying to free herself. He has also specifically stated that no strangulation marks were found on the neck of the patient. It is this medical record which indicates that somebody had caught hold of the hand of the prosecutrix and she had tried to free herself on account of which she must have fallen and received abrasions marks on her forehead (as claimed by her). This medical evidence is not compatible to the history of any sexual assault or even attempt to rape upon the prosecutrix. It only indicates that some scuffle had taken place between the prosecutrix and some other person (who according to the prosecutrix is the accused) on account of which abrasions were received at her wrist and forehead. The medical evidence also rules out use of any cord (coil) for the purposes of tying the prosecutrix and the allegations that she was tied with the coil (electric cord) and was strangulated with the same, do not stand established from her MLC.

(51) In view of the above I hereby hold that the allegations made by the prosecutrix with regard to sexual assault and attempt to commit murder do not appear to be credible and truthful nor they find support from any other circumstantial evidence including the medical evidence on record. Rather, on the contrary the medical evidence is very explicit and clear. There is no indication of any kind of sexual assault and the prosecutrix had given no history of penetration or even attempt thereof. Dr. Mahipal Singh (PW8) has State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 43 explained that the abrasion on the hand were highly superficial indicating that somebody had forcibly caught hold of the hand and the abrasions were caused when the patient was trying to free herself and no strangulation marks were found on the neck of the prosecutrix. There is no evidence to show that any coils were tied around the neck of the prosecutrix nor there was any abrasion found around her neck. Hence, under the given circumstances particularly keeping in view the background that the prosecutrix was known to the accused previously and the possibility of her having an affair with the accused cannot be ruled out. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the above allegations against the accused Mukesh @ J.P. beyond reasonable doubt and benefit of doubt is being given to the accused with regard to the aforesaid.

(52) This however does not mean that the acts of accused do not make him criminally liable. I may observe that this charge sheet has been filed on the basis of the second FIR which is on the basis of the third complaint made by the prosecutrix/ her family to the police against the accused. The perusal of the previous complaint/ FIR shows that the accused had been repeatedly trying to make a contact and communicate with the prosecutrix despite her reluctance and serious objections to the same, thereby causing harassment to her. The matter does not end here and as per the allegations in the present State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 44 case he has also used criminal force against the prosecutrix (as established from the MLC) and it is writ large that his intent is to compel the prosecutrix into a relationship or perhaps to continue into a relationship with him which the prosecutrix does not want. It is this act of the accused which is highly criminal and in common legal parlance is termed as 'Stalking'.

(53) This term Stalking covers acts of any person who willfully, maliciously and repeatedly follows or harasses another person; who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family; follows the victim or any other person; telephones, sends electronic messages to, or otherwise contacts, the victim or any other person; enters or loiters outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person; interferes with property in the victim's or any other person's possession (whether or not the perpetrator has an interest in the property); gives offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person; keeps the victim or any other person under surveillance; acts in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person with the intention of causing State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 45 physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person and the course of conduct engaged in actually did have that result. [Source: California Crimes Act 1998 Section 646.9 and Victoria Criminal Code 1958 Section 21 (a)]. Stalking becomes illegal when the perpetrator breaches the legal definition of harassment (as provided herein above) like sending messages to an unwilling recipient or tries to communicate or keeps a watch over the other person being aware that his behaviour is unacceptable. This is a form of a mental (or even physical) assault in which the perpetrator repeatedly, unwantedly and disruptively breaks into the life of a victim, with whom they may no longer have any relationships as has happened in the present case and this obsessive compulsive personality disorder if permitted to go unchecked and untreated, can ultimately result into a situation where the perpetrator may also inflict aggravated violence on the victim. Stalking consists of series of acts which occur over a period of time which if taken in isolation may not be illegal but cumulatively the effect of these acts is mental abuse/ harassment which is grossly illegal.

(54) In the case of the present accused it is writ large that even previously the father of the prosecutrix 'S' had given a complaint against the accused to the police alleging harassment but no FIR was registered on the basis of the same. Later, again in the month of State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 46 November 2011 (10.11.2011) the prosecutrix made another complaint to the police against the accused Mukesh @ J.P. alleging harassment and use of criminal force/ outraging her modesty on the basis of which FIR No. 520/11, PS Sultan Puri was registered under Sections 354/451/509/506/34 IPC was registered against the accused. Now this is the third complaint by the prosecutrix against the accused wherein she has again made allegations against the accused Mukesh @ J.P. of having entered her house on 1.1.2012 and of using criminal force on her (also of attempting to rape her which allegations have not been established). This incident dated 1.1.2012 cannot be taken in isolation and the cumulative effect of the act of the accused is required to be seen in the light of the previous complaints and allegations made against him by the prosecutrix. Assuming that the prosecutrix was in some kind of a relationship with the accused (as pleaded by him), she has every right to end this relationship at any point of time and under no circumstances can the accused follow her; monitor her movements; communicate with her despite her reluctance; unwantedly or disruptively break into her life or use any kind of criminal force on her on the pretext of a past relationship. The accused by committing these acts unwantedly of following the prosecutrix, giving crank calls to her/ her family and by using criminal force on her had rendered himself liable for the offence under Section 354 of the Indian Penal Code.

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 47 Charge under Section 392 Indian Penal Code:

(55) Coming now to the allegations under Section 392 Indian Penal Code against the accused Mukesh @ JP regarding theft of Rs.

1,600/­ from the bed lying in the room, I hereby hold that said allegations do not appears to be probable and truthful that the accused who was allegedly in love with the prosecutrix, would have stolen money from her house. In his statement under Section 313 Cr.PC, the accused has explained that he was working in a cloth shop at Punjabi Basti, Nangloi, Delhi, and the prosecutrix 'S' used to come to his shop to purchase clothes and befriended him after which they communicated on telephone and decided to marry which was not acceptable to her parents. According to him, the prosecutrix has deposed against him under pressure of her parents. (56) It is writ large from the evidence on record and as already observed, the testimony of the prosecutrix in the Court is not credible and probable. Her testimony does not find any support either from the medical evidence or from the circumstantial evidence on record. The prosecutrix has admitted that she had been meeting the accused in public parks and the explanation given by that it was only to explain the accused not to call her again, does not appear to be probable. Assuming what the prosecutrix is stating correct, yet keeping in view the background and the given circumstances it does not appear probable that the accused (who was allegedly in love with State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 48 the prosecutrix) have gone to her house and committed the theft of the amount lying on the bed. Rather, on the contrary the possibility of false implication of the accused only to keep him away from the prosecutrix, cannot be ruled out and I hereby hold that the prosecution has not been able to prove and substantiate the charge under Section 392 Indian Penal Code against the accused Mukesh @ JP for which benefit of doubt is liable to be given to him.

Charge under Section 307 Indian Penal Code:

(57) Coming now to the allegations under Section 307 Indian Penal Code against the accused Mukesh. Neither the prosecutrix nor any other witness has stated that the accused was trying to cause the death of the prosecutrix. The prosecutrix has only deposed to the extent that the accused has tired to strangulate her by a electric wire, which aspect appears doubtful and rather the medical evidence negates this version so given by the prosecutrix and Dr. Mahipal Singh (PW8) has specifically deposed that explained no strangulation marks were found on the neck of the prosecutrix nor there was any evidence to show that coils were tied around the neck of the prosecutrix nor any abrasion was found around her neck. This being so, I am not inclined to rely on the uncorroborated oral version given by the prosecutrix (who has not been found to be a totally reliable witness). Even the Investigating officer and the police officers who had first gone to the house of the prosecutrix to State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 49 attend the call did not observe any strangulation marks around her neck and only mention about the bruise marks on her forehead. I may observe that this bruise on the forehead could be caused on account of the fall of the prosecutrix pursuant to a scuffle which had taken place between her and the accused as also claimed by her. Apart from the aforesaid the only other injuries are superficial abrasions on the wrists which Dr. Mahipal has explained appear to have been caused when somebody has caught hold of the hand of the prosecutrix and she tried to free the same. These injuries on the face of it are simple in nature.

Neither the MLC nor the oral testimony of any of the witnesses indicate the necessary intent or knowledge so contemplated under Section 307 Indian Penal Code. I hereby hold that the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Mukesh @ JP, he is, however held guilty of causing simple injuries to the prosecutrix after entering her house and wrongfully restraining and preventing her from proceeding in any directions and confining her to her house which therefore make him liable under Section 323/341 Indian Penal Code.

FINAL CONCLUSION:

(58) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 50 which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(59) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. (60) The identity of the accused Mukesh @ J.P. stands established being known to the family of the victim and a resident of the same area. It stands established that on the date of incident the prosecutrix 'S' was aged 22 years of age and the accused was aged about State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 51 22 years. It further stands established that both the prosecutrix and the accused were known to each other even prior to the incident. It also stands established that the prosecutrix had been meeting the accused at various places including public parks. It further stands established that even on two earlier occasions, complaints were made by the parents of the prosecutrix against the accused (in respect of which an FIR bearing No. 520/11 was also registered on 10.11.2011 under Sections 354/ 451/ 509/ 506/ 34 IPC) with the allegations of the accused following and stalking the prosecutrix indicating that the prosecutrix did not want to have any further communications or relations with the accused. It also stands established that on 1.1.2012 Narender Kumar the father of the prosecutrix had gone to a temple to offer prayer and Amita (mother of the prosecutrix) had gone to market to purchase vegetables and the prosecutrix was alone in the house at that time. It further stands established that the accused Mukesh @ J.P. entered the house of the prosecutrix and there was a scuffle between the two on which she received abrasions on her forehead and wrists as if somebody had tried to pull her (as established from the MLC). It also stands established that when Amita came home she found that the prosecutrix was sitting on the floor and crying but the medical evidence does not support the version that she was tied with coils/ electric cords tied around her wrists and neck as alleged. It further stands established that Amita Gupta immediately made a call to her husband Narender Kumar who within 10 State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 52 minutes reached to his house as he was already on the way back home from Jhandewala Mandir and he immediately made a call at 100 number after which the police came to the spot. It further stands established that police took the prosecutrix to SGM hospital where she was medically examined but no history of sexual assault was given and internal examination was also refused by the victim.

(61) On the basis of the oral testimonies of the various witnesses, the medical evidence and the other circumstantial evidence on record, I hereby hold that the prosecution has not been able to prove and substantiate the allegations regarding attempt to commit rape of the prosecutrix under Section 376/511 IPC but I hold that the accused by unwantedly following the prosecutrix, giving crank calls to her/ her family and by using criminal force on her had rendered himself liable for the offence under Section 354 of the Indian Penal Code. Further, the prosecution has not been able to prove and substantiate the charge under Sections 307 and 392 Indian Penal Code against the accused Mukesh @ J.P. but he is, however held guilty of causing simple injuries to the prosecutrix after entering her house and wrongfully restraining and preventing her from proceeding in any directions and confining her to her house which therefore make him liable under Section 323/341 Indian Penal Code.

(62) There are two stages in criminal prosecution. First obviously is commission of crime and the second is the investigation State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 53 conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (63) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link in so far as the offences under Section 354/341/323 Indian Penal Code are concerned and I accordingly convict the accused for the same. The accused is however acquitted of the charges under Section 376/511/392/307 Indian Penal Code.

Announced in the open court                              (Dr. KAMINI LAU)
Dated: 26.09.2012                                      ASJ (NW)­II: ROHINI



  State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri                           Page 54
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
     JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 24/2012
Unique Case ID: 02404R062172012

State                        Vs.            Mukesh @ J.P.
                                            S/o Thakur Prasad
                                            R/o House No. F­4/11­12
                                            Sultanpuri, Delhi.
                                            (Convicted)


FIR No.                      :              2/2012
Police Station               :              Sultanpuri
Under Section                :              376/511/451/506/380 IPC

Date of conviction:          26.9.2012

Arguments heard on: 3.10.2012

Date of sentence:            6.10.2012

APPEARANCE:

Present:      Sh. Sukhbeer Singh, Addl. Public Prosecutor for the 

              State.

Convict Mukesh @ J.P. in judicial custody with Sh. G.K. Sharma Advocate.

ORDER ON SENTENCE:

Vide a detailed judgment dated 26.9.2012 this Court had held the accused Mukesh @ J.P. guilty of the offence under Section State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 55 354/341/323 Indian Penal Code and has been acquitted of the charges under Sections 376/511/392/307 Indian Penal Code.

As per allegations of the prosecution on 01.01.2012 at about 10:00 AM at House No. F­6/357, Sultan Puri, accused Mukesh committed house trespass and attempted to commit rape upon prosecutrix 'S' and when she tried to save herself, the accused thereafter tried to strangulate and kill her by wrapping electric wire/ cord around her neck and he thereafter picked up Rs.1,600/­ lying on the bed and fled from the spot.

However, on the basis of the testimonies of the various prosecution witnesses particularly the prosecutrix 'S', her father Narender Kumar and her mother Amita Gupta and also on the basis of medical and circumstantial evidence, this Court vide detailed judgment dated 26.9.2012 has observed that the identity of the accused Mukesh @ J.P. being known to the family of the victim and a resident of the same area stands established. It also stands established that on the date of incident the prosecutrix 'S' was aged 22 years of age and the accused was aged about 22 years; that both the prosecutrix and the accused were known to each other even prior to the incident and that the prosecutrix had been meeting the accused at various places including public parks. It further stands established that even on two earlier occasions, complaints were made by the parents of the prosecutrix against the accused (in respect of which an State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 56 FIR bearing No. 520/11 was also registered against the accused on 10.11.2011 under Sections 354/451/509/506/34 IPC) with the allegations of the accused following and stalking the prosecutrix indicating that the prosecutrix did not want to have any further communications or relations with the accused. It also stands established that on 1.1.2012 Narender Kumar the father of the prosecutrix had gone to a temple to offer prayer and Amita (mother of the prosecutrix) had gone to market to purchase vegetables and the prosecutrix was alone in the house at that time; that the accused Mukesh @ J.P. entered the house of the prosecutrix and there was a scuffle between the two on which she received abrasions on her forehead and wrists (medical evidence indicates that somebody had tried to pull her); that when Amita came home she found that the prosecutrix was sitting on the floor and crying (the medical evidence does not support the version that she was tied with coils/ electric cords tied around her wrists and neck). It further stands established that Amita Gupta immediately made a call to her husband Narender Kumar who within 10 minutes reached to his house as he was already on the way back home from Jhandewala Mandir and he immediately made a call at 100 number after which the police came to the spot;

that police took the prosecutrix to SGM hospital where she was medically examined but no history of sexual assault was given and internal examination was also refused by the victim. State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 57 In view of the above this Court has held that the prosecution has not been able to prove and substantiate the charges against the accused of having attempted to commit rape of the prosecutrix (under Section 376/511 IPC) but by committing acts of unwantedly following the prosecutrix, giving crank calls to her/ her family and by using criminal force on her had rendered himself liable for the offence under Section 354 of the Indian Penal Code. This Court has further held that the prosecution has not been able to prove and substantiate the charge under Sections 307 and 392 Indian Penal Code against the accused Mukesh @ J.P. but he has however been held guilty of causing simple injuries to the prosecutrix after entering her house and wrongfully restraining and preventing her from proceeding in any directions and confining her to her house which therefore make him liable under Section 323/341 Indian Penal Code.

Heard arguments on the point of sentence. Ld. Defence Counsel has vehemently argued that the convict Mukesh @ J.P. a young boy of 22 years is 6th class pass and is a salesman in Punjabi Basti at Nangloi. He has a family comprising of father, mother and two elder brothers. He is a young boy and is a helping hand of his poor family. It is argued that any harsh view would be detrimental not only to the young convict but also the family of the convict. Ld. Counsel has also pointed out that the convict Mukesh has already State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 58 remained in judicial custody for about nine months and four days. He requests that a lenient view be taken against the convict.

On the other hand the Ld. Addl. PP for the State has prayed for a strict punishment to the convict keeping in view the allegations involved. He has pointed out that the convict Mukesh @ J.P. is also involved in another case bearing FIR No. 520/11, Police Station Sultanpuri, under Sections 354/451/509/506/34 IPC and submits that any leniency shown to the convict can be detrimental to the victim/ prosecutrix.

I have considered the rival contentions. It may be noted that in the judgment dated 26.9.2012 this Court has specifically held that the accused had used criminal force against the prosecutrix (as established from the MLC) and his intent was to compel the prosecutrix into a relationship or perhaps to continue into a relationship with him which the prosecutrix did not want and even earlier to present case the father of the prosecutrix 'S' had given a complaint against the accused to the police alleging harassment (in October 2011) but no FIR was registered on the basis of the same. Later, again in the month of November 2011 (10.11.2011) the prosecutrix made another complaint to the police against the accused Mukesh @ J.P. alleging harassment and use of criminal force/ of outraging her modesty on the basis of which FIR No. 520/11, PS Sultan Puri was registered under Sections 354/451/509/506/34 IPC State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 59 was registered against the accused. Now this is the third complaint by the prosecutrix against the accused wherein she has again made similar allegations against the accused Mukesh @ J.P. of having entered her house on 1.1.2012 and of using criminal force on her (also of attempting to rape her which allegations have not been established). This incident dated 1.1.2012 cannot be taken in isolation and the cumulative effect of the act of the accused is required to be seen in the light of the previous complaints and allegations made against him by the prosecutrix. Assuming that the prosecutrix was in some kind of a relationship with the accused (as pleaded by him), she had every right to end this relationship at any point of time and under no circumstances could the accused follow her; monitor her movements; communicate with her despite her reluctance; unwantedly or disruptively break into her life or use any kind of criminal force on her on the pretext of a past relationship.

From what has been observed by this Court (from the evidence brought on record and also from the behaviour and conduct of the convict during the trial of the case) the convict Mukesh @ J.P. appears to be suffering from obsessive compulsive personality disorder and is obsessively seeking the attention of the prosecutrix to her annoyance (which may be to reverse, correct or avenge a State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 60 rejection or is an Incompetent suitor having a fixation or essence of entitlement to an intimate relationship regardless of the consent of the prosecutrix). Despite the reluctance and annoyance of the prosecutrix as communicated to him, he is repeatedly following her, monitoring her movements, keeping a watch on her and trying to make contact with her (verbal as well as actual), which series of acts are absolutely illegal (in common parlance known as Stalking).

This term Stalking covers acts of any person who willfully, maliciously and repeatedly follows or harasses another person; who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family; follows the victim or any other person; telephones, sends electronic messages to, or otherwise contacts, the victim or any other person; enters or loiters outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person; interferes with property in the victim's or any other person's possession (whether or not the perpetrator has an interest in the property); gives offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person; keeps the victim or any other person under surveillance; acts in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 61 own safety or that of any other person with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person and the course of conduct engaged in actually did have that result. [Source: California Crimes Act 1998 Section 646.9 and Victoria Criminal Code 1958 Section 21 (a)]. Stalking becomes illegal when the perpetrator breaches the legal definition of harassment (as provided herein above) like sending messages to an unwilling recipient or tries to communicate or keeps a watch over the other person being aware that his behaviour is unacceptable. This is a form of a mental (or even physical) assault in which the perpetrator repeatedly, unwantedly and disruptively breaks into the life of a victim, with whom they may no longer have any relationships as has happened in the present case and this obsessive compulsive personality disorder if permitted to go unchecked and untreated, can ultimately result into a situation where the perpetrator may also inflict aggravated violence on the victim. Stalking consists of series of acts which occur over a period of time which if taken in isolation may not be illegal but cumulatively the effect of these acts is mental abuse/ harassment which is grossly illegal.

In the recent years 'Stalking' has been accepted to be a crime having caught wide spread attention world over and cases involving stalking of celebs and also of ordinary people have fuelled State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 62 demands for creating/ strengthening the law relating to Stalking.

Many jurisdictions world over having taken up this issue with all seriousness passed anti­stalking laws and these provide a variety of definitions of the offence. In United Kingdom a specific legislation (Punishment from Harassment Act­1997) has been put in place to tackle this menace of Stalking which not only provides for a punishment upto 5 years for the first time offender but also enables the Court of Law to pass appropriate restrain orders wherever required for protection of the victim.

The Canadian Criminal Code specifically makes Criminal Harassment punishable and the definition of Criminal Harassment includes the specific crime of Stalking. Section 264 of the Canadian Code provides for an imprisonment upto five years in cases of Stalking. The Canadian Code recognizes the right of very person to end a relationship. Even a former spouse or a partner when told that their attention is not welcome has to stop communicating and in case of violation is liable to proceeded against under Section 264 of the Canadian Code.

Stalking is a specific crime in all 50 US States where it is classified as either a felony (serious crime) or misdemeanour, and in most parts of Australia where the punishment provided may extend to a maximum of 10 years [Victoria Crimes Act 1958 Section State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 63 21(a)].

Indian society too is struggling with ways and means to deal with this crime which is particularly directed towards young women but Stalking unfortunately appears to have missed the attention of the Indian Policy Makers and Legislators. It is therefore imperative that a Legislation be enacted which takes care of both the victim as well as the perpetrator (on lines similar to the Punishment from Harassment Act­1997 of UK) which empowers the Courts to intervene in time so as to prevent a greater harm to the victim. Needless to say, a Stalker cannot be permitted to roam around freely on the pretext of his suffering from a personality disorder for the reason that his activities can be dangerous to the life of another. In the absence of any direct and exhaustive legislation on the subject, the Investigating Agencies and the Courts of Law in India have been left grappling to deal with the exigencies of the situation themselves with little legislative assistance. The need of the hour today is to have an exhaustive Legislation on the subject covering the following:

➢ Both the civil and criminal aspects of Stalking. ➢ Provide for maintenance of record of the stalkers and victims.

➢ Enables the Courts of Law to pass appropriate orders of restrain (injunctions) with regard to movement of the accused (as in UK) so that the victims are suitably State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 64 protected from any kind of mental and physical harm. ➢ Provide for a compulsory risk assessment of the victims before deciding on the sentence of the accused.

➢ Provide for compulsory treatment of the convict (for Stalking behaviour) during the jail term (to prevent Recidivism).

➢ Provide for enhanced punishment for repeat offence/ violation of restrain orders.

From what has been noticed above, Stalking on the one hand essentially reflects a personality disorder of the perpetrator whereas on the other hand it tends to put the victim and his/her family at a very high mental and physical risk on the hands of such perpetrator. The suffering undergone by the victims and his/ her family when faced with such unwanted crank calls, communications, monitoring and distressing intrusions is immense. A potential stalker if not treated on time can cause serious physical and mental harm to the victim and any kind of soft approach by the Court can be dangerous and fatal for the victim. Usually instances of Stalking which do not involve physical assault go unreported. It is only when a Stalker poses a potential threat to the victim that the family approaches the Law Enforcement Agencies and the Courts. While in the process what gets ignored is the mental trauma which the victim State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 65 and his/ her family face during this period. Keeping in view the rise in number of reported cases in the recent past, the Courts of Law are expected to seriously and sternly deal with the issue and there is ample evidence to show that the behaviour of the perpetrator often tends to escalate and he becomes more obsessed and dangerous resulting into many a women being wounded or murdered.

During the trial of the case this Court has had an occasion of actually observing the behaviour of the convict Mukesh @ J.P. He appears to be having a mental fixation for the prosecutrix and is obsessed with his past relationship with her (actual or assumed) and despite being made aware that his behaviour is distressing, unwanted and objectionable to the prosecutrix (in view of her repeated previous complaints to the police), he is not ready to relent. It is in this background that observing his compulsive obsessive behaviour resulting into dis­balanced conduct, the possibility of the convict Mukesh @ J.P. repeating his conduct with the prosecutrix (who stands a potential risk in case of his immediate release) and perhaps with more vengeance, cannot be ruled out. Hence to ensure the safety of the prosecutrix there is a desirability of keeping him out of circulation of the society at least till such some time he receives a proper treatment for his Stalking behaviour and I hereby award the following sentence to the convict Mukesh @ J.P.:

State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 66

1. For the offence under Section 354 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two (2) Years and fine to the tune of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Two weeks.

2. For the offence under Section 341 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of one month.

3. For the offence under Section 323 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of six months.

All the sentences shall run concurrently.

Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.

Further, the Superintendent Jail shall also take immediate steps to ensure that the convict is provided the necessary medical/ psychiatric help (preferably from a specialized institution i.e. IHBAS for his Stalking Behaviour) under periodic intimation to this Court.

The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri Page 67 case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.

File be consigned to Record Room.

Announced in the open Court                            (Dr. KAMINI LAU)
Dated: 06.10.2012                                    ASJ (NW)­II: ROHINI




State Vs. Mukesh @ JP, FIR No. 2/12, PS Sultanpuri                  Page 68