Delhi District Court
State vs . Neeraj Kumar And Krishan Kumar Gupta ... on 31 August, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0034142014
SC No. : 31/14
FIR No. : 12/14
U/s. : 376D/385/328/201/120B/506/34 IPC
PS : Jaitpur, New Delhi.
State (Govt. of NCT of Delhi) ..................... Complainant
Versus
1). Neeraj Kumar
S/o Shri Sant Ram Sharma
R/o Village & PO Tilpat,
Faridabad, Haryana
2). Krishan Kumar Gupta
S/o Late Sh. Ram Prasad Gupta
R/o House no. F29, Harsh Vihar,
Hari Nagar PartIII, Jaitpur
Badarpur, New Delhi. .............. Accused persons
Date of Institution : 31.01.2014
Judgment reserved for orders on : 31.08.2016
Date of pronouncement : 31.08.2016
J U D G M E N T
Facts
1. On 06.01.2014, the prosecutrix (name with held to protect her identity) gave a complaint at the police station Jaitpur, New Delhi alleging therein that on 07.06.2013, her husband Krishan Kumar came with his friend Neeraj Prashar in her house at F29, Harsh FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 1/11 Vihar, Hari NagarIII, Jaitpur, Badarpur, Delhi. They took liquor. When she went to the kitchen, her husband gave her Pepsi. She became unconscious. After 2 - 3 hours when she came into senses, her husband told her that she was not well. She alleged that after some days, she received a call from the accused Neeraj who asked her to become his friend. When she refused, he told her that he has committed sexual intercourse with her and prepared a video; if she would not come to him, he would upload the video on net. When she complained to her husband, he told her that he has taken loan from Neeraj and unable to repay. Neeraj has asked him to make his wife i.e. the prosecutrix to have sexual relations with him (Neeraj) and he would waive off the loan. She thought to meet Neeraj. She went to Barkhal Lake to meet him. They went in a hotel where Neeraj told her that he loves and likes her; if she would not permit him to have sexual relation with him, he would defame her. He thereafter committed sexual intercourse with her. He then started giving her threats and extorting money. She alleged that one day when she threatened to commit suicide, he told her that he loves her and would marry her. He put blood on her parting by cutting his thumb. She alleged that some days before the complaint, he told her that his family members have fixed his marriage with some other girl, but he wants to live with her. She alleged that after some days, her husband came with the divorce papers and asked her to transfer the house which her father had purchased, in his name. He also asked her the custody of her son and to take her daughter with her. When she told it to Neeraj, he called her in Ekant Hotel, Sector17, Faridabad on FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 2/11 15.12.2013 where they lived at night. She alleged that before that, he had taken her in a flat at Tilak Nagar where also, he spent a night with her. She alleged that on 03.01.2014, he demanded Rs. 50,000/ from her for shopping. He also told her that he was coming in her house. When she told him that her children were in the house, he asked her to make them understand. She alleged that accused Neeraj has been harassing her.
2. On her statement, the case was registered u/s 376/385/506/34 IPC. The prosecutrix was got medically examined at AIIMS. No evidence of external injury was found. It was found to be a case of old tear of hymen. The exhibits of prosecutrix were collected. On 07.01.2014, accused Neeraj Kumar was arrested from flat no. 51/5, Ashok Nagar, Laxmi Nagar, New Delhi. He disclosed of his involvement in this case. His mobile phone make Samsung Glaxy Grand was seized. He was got medically examined. Doctor found him capable of performing sexual intercourse under normal circumstances. His exhibits were collected. On 09.01.2014, the statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Records from the hotels were collected. On 17.01.2014, accused Krishan Kumar Gupta surrendered in the Court. He also disclosed his involvement in this case. The exhibits were sent to FSL, Rohini for DNA profiling / experts opinion. As per the report, blood and semen was not detected on the exhibits i.e. vaginal smear, pubic hair, nails, vaginal swab of the prosecutrix and under wear of the accused Neeraj. The blood was detected on the blood in gauze of the accused Neeraj and on the sanitary pad. Semen was detected on the sanitary FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 3/11 pad. After the investigation, the accused Neeraj Kumar and Krishan Kumar were sent for trial for the offences punishable u/s 376D/385/506/201/120B/34 IPC and u/s 376D/328/120B/34 IPC respectively.
Charge
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide order dated 20.07.2015, prima facie case was made out against the accused Neeraj Kumar u/s 376/292/506/384 IPC and against the accused Krishan Kumar Gupta u/s 328/109 r/w Section 376 IPC. Charges were framed. They pleaded not guilty and claimed trial. Prosecution Evidence
4. To substantiate its allegations against the accused persons, prosecution examined the prosecutrix as PW1.
She testified on oath that she was married to Krishan Kumar Gupta on 09.03.2000. There used to be quarrel between them. Accused Neeraj was the friend of Krishan Kumar. Her husband used to beat her. She complained to Neeraj but he did not listen and took the side of her husband. Both of them used to take liquor, abuse and beat her. She was disturbed. She stated that one of her friends came from Mumbai to meet her. She advised her to file complaint against both of them. On 06.01.2014, she went to the police station with her friend and on her asking and dictation, she made FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 4/11 the complaint Ex.PW1/A. She stated that she was disturbed and under lot of mental pressure, what was told to her, she did. She stated that she gave the statement u/s 164 Cr.P.C. Ex.PW1/C, but it was whatever she was asked to give.
She was declared hostile by the prosecution. On being crossexamined by Ld. Addl. PP, she stated that her husband used to demand dowry from her. When she fell ill, he beat her stating that she was creating drama. She stated that there used to be altercations and heated arguments between them. She stated that it was a normal domestic quarrel between them. She stated that she was blessed with a son on 21.03.2001 and a daughter in the year 2005. Her father bought a house at Jaitpur and gave it to her. He also helped her husband financially. She stated that she had given the complaint Ex.PW1/A on the advise of her friend and the police but nothing of this sort happened with her and she was in anger. She denied that the accused had threatened her and her parents to kill her brother and that they would not allow her sister to marry. She, however, admitted that she came to her parents house and joined a beauty parlour. She stated that she wanted to file a complaint but her father stopped her. She admitted FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 5/11 that her husband had filed a complaint against her that she has run away with Rs. 50,000/ cash and jewellery after keeping the property papers with her. She stated that she joined the beauty parlour since she wanted to be financially independent. She admitted that the accused Krishan Kumar Gupta used to take liquor and her father had given him a vehicle to earn livelihood. She stated that to purchase the vehicle, she had sold her jewellery. She admitted that the friends of her husband used to tease her, but her husband never asked her to obey them. She stated that there used to be quarrel but accused never beat her. She denied that the accused gave her Pepsi as a result she felt giddy. She stated that on that day she was not well and she went to bed. She denied that on 07.06.2013, accused Neeraj told her that he committed rape upon her and prepared a video and asked her to agree on his terms. She also denied that her husband also told her that he has taken lot of money from Neeraj and asked her to have physical relations with him. She also denied that the accused Neeraj took her to Barkhal Lake and showed her video on which she was in compromising situation with him. She denied that the accused Neeraj gave her some water as a result FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 6/11 she felt giddy and he committed sexual intercourse with her for long. She also denied that accused Neeraj blackmailed her and put blood on her parting. She denied that her husband came with the divorce papers to sign and asked for the custody of son and to leave the house with her daughter. She denied that she had called the accused Neeraj. She denied that she became pregnant from the relations made by the accused Neeraj and when she told it to Neeraj, he took her to Ekant Hotel, Faridabad and asked her to terminate the pregnancy. She denied that Neeraj beat her as a result she started bleeding, he poured liquor in her mouth and did sexual intercourse with her. She denied that on 03.01.2014 when the accused Neeraj came in her house, she was bleeding but the accused did not care and committed sexual intercourse with her. She stated that she had filed the complaint on the advise of her friend Komal. She denied that her husband forced / allured her to do wrong with Neeraj or that the accused Neeraj used to blackmail her. She was confronted with her complaint and the statement u/s 164 Cr.P.C. but she denied about the incident or the accused giving her threats to upload the video on net. She denied having given FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 7/11 sanitary pad to the IO. She also denied that she has been won over by the accused persons.
5. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 8/11 Exception 1 ..............
Exception 2 .............."
6. The essence of rape is absence of consent. The consent means an intelligent and positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
7. A bare perusal of testimony of PW1 would show that the husband of the prosecutrix used to take liquor. There used to be quarrel between them. Accused Neeraj was the close friend of her husband. She complained to Neeraj about the act and behaviour of her husband but he did not listen her rather supported her husband. She opened a beauty parlour to become financially independent. She did not like the friends of her husband as they used to tease her. She wanted her husband to do some work. She got arranged a vehicle for her husband after selling her jewellery but he did not leave the habit of taking liquor. Her testimony shows that she made the complaint on the advise of her friend, but nothing of this sort as alleged in the complaint and the statement u/s 164 Cr.P.C. happened with her. She was fed up from her husband because of his habit of taking liquor. Her testimony shows that she made the allegation against the co accused Neeraj since he always took the side of her husband. Her testimony is very categoric to the fact that accused Krishan Kumar i.e. her husband never gave her sedative in the soft drink on 07.06.2013 nor allowed Neeraj to commit sexual intercourse with her.
FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 9/11 She has stated that accused Neeraj never took her in a hotel at Barkhal Lake and nor committed sexual intercourse with her. She also denied that accused Neeraj had taken her to different places on different dates and committed sexual intercourse with her. She also denied that accused Neeraj on 03.01.2014 in her house committed sexual intercourse with her. She also denied that the accused had shown her, her obscene video.
8. Perusal of the material available on record shows that no obscene material of the prosecutrix was recovered from the possession and at the instance of accused Neeraj. She has denied that accused Neeraj made demand of Rs. 5,000/, 10,000/ or 50,000/ giving her threats to upload her video on the net. Nothing has come in the testimony of the prosecutrix that her husband aided / facilitated Neeraj to commit sexual intercourse with her. Further, the mobile phone allegedly seized from the accused Neeraj does not have any obscene videos / photographs of the prosecutrix.
9. Although the FSL report shows that semen and blood were detected on the sanitary pad and the alleles from source of blood gauze cloth piece of the accused Neeraj Kumar were accounted in alleles from source of sanitary pad but testimony of PW1 shows that she did not hand over any sanitary pad to the IO nor the accused Neeraj Kumar committed sexual intercourse with her against her wishes and without her consent. Looking into the testimony of the prosecutrix, no much emphasis can be given to the FSL report.
10. Rest of the witnesses as cited in the list of witnesses are either the doctors or the police officials or the officials of the hotel. Perusal FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 10/11 of the hotel record would show that whenever the entry was made, it was made by the accused Neeraj. There is no evidence to infer that the prosecutrix had gone with Neeraj Kumar in the aforesaid hotels. On considering the testimony of the prosecutrix, I did not find any purpose to examine the remaining prosecution witnesses as their testimony even if unrebutted could not become the basis of the conviction of the accused. Prosecution evidence was accordingly closed. I did not find any incriminating evidence against the accused persons even to record their statements u/s 313 Cr.P.C. Their statements were dispensed with.
Conclusion
11. In the light of what has been stated above, I am of the view that the necessary ingredients of the offences with which the accused persons have been charged are not proved against the accused persons. I therefore, acquit the accused Neeraj Kumar of the offences punishable under section 376, 292, 506/384 IPC and accused Krishan Kumar Gupta of the offences punishable under section 328/109 r/w Section 376 IPC. Their bail bonds be cancelled. Their sureties be discharged. They are, however, directed to furnish bail bond in the sum of Rs.25,000/ with one surety in the like amount, in compliance of section 437A CrPC. The case property be confiscated to the State after the expiry of period of appeal.
12. File be consigned to record room.
Announced in the open court today i.e. 31.08.2016 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 12/14 PS : Jaitpur State Vs. Neeraj Kumar and Krishan Kumar Gupta Page No. 11/11