Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, on 1 December, 2018
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 29119/2016
State V Bhupinder Singh s/o. Mehar Singh,
r/o C17, Gurudwara Mata Sundari,
Delhi.
Also at: VillageBhabour, PSNangal
Derri, Distt. Ropar, Punjab.
FIR No. 327/16
U/s 420/376 IPC
Police Station Pahar Ganj
Assigned to Sessions 19.12.2016
Charges framed on 17.01.2017
Arguments heard on 30.11.2018
Judgment pronounced on 01.12.2018
Decision Acquittal
JUDGMENT :
1. That, the case of the prosecution is that, the Station House Officer of Police
Station Pahar Ganj had filed a chargesheet before the court of Ld.
Metropolitan Magistrate vide FIR No.327/16 dated 29.08.2016 u/s. 376 IPC for
the prosecution of accused Bhupinder Singh in the court of ld. Metropolitan
Magistrate and after compliance of the requirement of section 207 Cr. P.C. the
case was sent to this court being the designated Special Fast Track Court for
trial of the offences of sexual assault against the women through the Office of
Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view
of section 228 (A) IPC and directions of Supreme court in "State of Karnataka
Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006,
Case No.29119/2016
State Vs. Bhupinder Singh 1/24
CRLJ. 2913", the name and identity of prosecutrix is not being disclosed in the
judgment.
BRIEF FACTS OF THE CASE:
2. That, the case was registered on 29.08.2016 on the basis of complaint of prosecutrix dated 28.08.2016 lodged by prosecutrix wherein she has stated that accused Bhupinder Singh had promised her to provide a job and asked for Rs. 2 lacs and in this regard, he had called her on 28.08.2016 in his office at Bharat Nagar, Pahar Ganj and from there he took her to house of his friend on first floor of house No.5338, Sora Kothi, his friend left from the room and then at about 1:00 p.m. accused Bhupinder Singh forcibly removed her clothes and committed sexual intercourse with her.
3. That, on the basis of complaint, W/SI Davinder Kaur prepared rukka and get the case registered. Prosecutrix was medically examined in Lady Harding Medical College at about 10:30 p.m. on 28.08.2016, her statement u/s 164 Cr.P.C. was recorded on 31.08.2018 by ld. MM, Tis Hazari Courts, Delhi.
4. That, on 29.08.2016, accused Bhupinder Singh was arrested in the case and on 29.08.2016, he was medically examined and on 30.08.2016, his potency test was conducted at RML Hospital.
5. That, chargesheet was filed in the court of ld. Metropolitan Magistrate. Exhibits of the prosecutrix and accused were sent to FSL on 28.10.2016. After compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Case No.29119/2016 State Vs. Bhupinder Singh 2/24 Judge (HQ), Tis Hazari Courts, Delhi.
CHARGE:
6. On the basis of material available on record, Ld. Predecessor of this court vide order dated 17.01.2017 framed charges against accused Bhupinder Singh for the offence punishable u/s. 420/376 IPC to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
7. That, in order to prove its case, prosecution has examined 15 witnesses namely PW1 ASI Ramesh Chand, PW2 HC Pramod Kumar, PW3 ASI Jaswant Singh, PW4 W/Ct. Sudha, PW5 Ct. Dharmender, PW6 Prosecutrix 'RP', PW7 ASI Bhadar Singh, PW8 Sh. N.K. Bansal, PW9 ASI Jal Singh, PW10 Dr. Supriya Goyal, PW11 Dr. Jayesh Kakadiya, PW12 Ms. Ambika Singh, Ld. MM, PW13 Dr. Deepanshu Gupta, PW14 W/SI Davinder Kaur and PW15 W/SI Suman.
PWs Name of the Nature of the Documents proved Witness witness PW1 ASI Ramesh Police witness He has proved recording of FIR vide Ex.PW1/B. Chand PW2 HC Pramod Police witness He has taken the accused to Lady Harding Medical College and Kumar Hospital for his medical examination where he was medically examined vide MLC Ex.PW2/A. Doctor who had conducted the medical Case No.29119/2016 State Vs. Bhupinder Singh 3/24 examination of accused had also taken blood sample seal, which he handed over to the I.O. who seized the same vide seizure memo Ex.PW2/B. He deposed that from Lady Harding Medical College and Hospital accused was referred to Ram Manohar Lohia Hospital for his potency test, where potency test of the accused was conducted vide MLC Ex.PW2/C. PW3 ASI Jaswant Singh Police witness He has proved true copy of DD No.25A vide Ex.PW3/A and copy of DD No.26A vide Ex.PW3/B. PW4 W/Ct. Sudha Police witness She has taken the prosecutrix to Lady Harding Medical College and Hospital for her medical examination and she was medically examined vide MLC Ex.PW4/A. She deposed that after her medical examination, the doctor had also handed over her the exhibits pertaining to prosecutrix and her wearing clothes in sealed condition along with sample seal, which she handed over to the I.O. who seized the same vide seizure memo Ex.PW4/B. PW5 Ct. Dharmender, Police witness He had taken the custody of parcel containing exhibits pertaining to this case in sealed condition along with sample seal from MHC(M) and carried them to FSL Rohini vide Road Certificate and deposited the same at FSL, Rohini.
He has proved copy of Road Case No.29119/2016 State Vs. Bhupinder Singh 4/24 Certificate vide Mark A and copy of acknowledgement with regard to receipt of the said exhibits vide MarkB. PW6 Prosecutrix 'RP', Complainant Prosecutrix being victim of the alleged sexual assault has testified about the incident and has testified about her complaint given to the police which is Ex.PW1/A as well as giving of her statement u/s 164 CrPC before Ld MM Ex.PW6/A. Prosecutrix has deposed about the incidence happened with her and deposed against the accused.
PW7 ASI Bhadar Singh Police witness He has taken the accused to Lady Harding Hospital from Tihar Jail and produced before the doctor for taking his blood samples. He deposed that blood sample of accused was given to him in sealed condition along with sample seal.
He handed over the same to the IO who seized the same vide seizure memo Ex.PW7/A. PW8 Sh. N.K. Bansal Public Witness He He deposed that he is the registered owner of House No.5338, First Floor, Laddu Ghati, Shora Kothi, Paharganj, Delhi. He deposed that on 28.08.2016, he received a call from his friend Sh. H.B. Singh, retired HDO and he asked him if he wish to rent out his said house. Thereafter, after some time his said friend along with one Sardarji and one lady came at his said house. He asked the said Sardarji that the rent of the house would be Rs.3,000/ per month Case No.29119/2016 State Vs. Bhupinder Singh 5/24 and after introducing him with the said Sardarji, his friend Sh. H.B. Singh had left the house leaving behind the said Sardarji and the lady. They said to him that they were hungry and asked him to arrange something for them and he returned after about 20 minutes.
He had not brought the Samosa because they were not ready at that time at the shop. He further deposed that when he returned, he found both the Sardarji and said lady sitting inside the room of the house and after about five minutes they also went away stating that they would let him know about their decision to take his house on rent.
In cross examination by ld.
counsel for accused, he deposed that accused and the said lady had been sitting in the drawing room and lady was sitting comfortably in the drawing room and she was not disturbed. She had not disclosed anything to him about the incident.
PW9 ASI Jal Singh Police witness He has proved the relevant entries pertaining to this case in register no.19 Ex.PW9/A. He has also proved copy of the road certificate and the acknowledgement qua receipt of the exhibits handed over to him by Ct. Dharmender Ex.PW9/B. (Colly) PW10 Dr. Supriya Goyal Medical She has proved the MLC of witness prosecutrix Ex.PW4/A. She Case No.29119/2016 State Vs. Bhupinder Singh 6/24 deposed that she had also collected the exhibits and clothes of the prosecutrix as per protocol, preserved, sealed and handed over to the police along with sample seal. She further deposed that no external injury was observed on the person of the prosecutrix at the time of her medical examination.
PW11 Dr. Jayesh Medical He has proved the MLC of Kakadiya, witness accused Ex.PW2/C. PW12 Ms. Ambika Singh MM She has recorded statement of prosecutrix u/s 164 CrPC Ex.
PW6/A and other documents Ex.PW2/B and Ex.PW12/B. PW13 Dr. Deepanshu Medical He has proved potency test of witness accused vide MLC Ex.PW2/C. Gupta PW14 W/SI Davinder Police witness She has proved DD No.25A Ex.PW3/A. She collected the Kaur exhibits pertaining to the prosecutrix and her outer and inner clothes from the doctor in sealed condition along with sample seal and seized the same vide seizure memo Ex.PW4/B. She has proved written complaint of prosecutrix Ex.PW1/A. She has prepared site plan Ex.PW14/A. She has arrested the accused vide arrest memo Ex.PW14/B and personal search memo Ex.PW14/C. She has also got conducted potency test of accused and HC Pramod had given her blood sample of the accused in sealed condition along with Case No.29119/2016 State Vs. Bhupinder Singh 7/24 sample seal which she seized vide seizure memo Ex.PW2/B. She had also got recorded the statement of the prosecutrix u/s 164 Cr.P.C.
Ex.PW6/A vide her application Ex.PW12/A. During the course of investigation, she had also taken into possession mobile phone of accused and seized the same vide seizure memo Ex.PW14/D. She deposed that accused had also pointed out the place of incident vide pointing out memo Ex.PW14/E. She has correctly identified the dual sim mobile phone of ASUS make which was recovered from the accused Ex.P1.
PW15 W/SI Suman. Investigating This witness has deposed about the Officer details of steps taken by her during investigation and proved various documents prepared by her in this regard.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
8. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement was recorded u/s 313 Cr.P.C. Accused denied all the incriminating evidence against him. Accused claimed that he is innocent and it is a false case against him. Accused further claimed that prosecutrix had contacted him for borrowing Rs.15,000/ for which he had refused as he was not having money at that time. Mr. Ramesh Gulati who had been in Bangkok asked him on phone to pay Rs.15,000/ to the Case No.29119/2016 State Vs. Bhupinder Singh 8/24 prosecutrix insisted him to arrange the said amount from anywhere. He asked her since he was not having any money, he told her not to come to his office. He further claimed that on the day of incident prosecutrix had called her on phone and insisted to arrange the money for her as she was not having any other source to arrange the money and he was called in Connaught Place by the prosecutrix where police were present in civil dress and he was apprehended there. Accused has preferred to lead defence evidence.
DEFENCE EVIDENCE:
9. DW1 Sh. Chander Prakash has brought the record of case file of FIR No.258/15, u/s 420/406 IPC PS Chandni Mahal, Delhi against Rajesh Pandey s/o Bachcha Pandey, accused and had been settled in mediation on 05.07.2018.
In cross examination by ld. Addl. PP for the State, he admitted that prosecutrix in the present case is not the accused in the aforesaid case.
10. DW2 Sh. Mukesh Sharma, Assistant Manager in Indian Bank, Rudarpur, Kashipur Bypass has brought record in respect of account No.6267643138 in the name of M/s. Raja Air Systems. He deposed that its proprietor is Ragni Pandey w/o. Sh. Rajesh Pandey. He has brought the statement of the aforesaid account for the period 01.02.2016 to 30.11.2016 and marked the same Mark D1.
11. DW3 Sh. Charanjeet Singh, Assistant Account Staff in Mudhoot Finance Company, Rudrapur, Kashipur, Uttrakhand has brought the summoned record in respect of Ragini Pandey w/o Rajesh Pandey. She had obtained a gold loan from their company and borrowed a loan for a sum of Rs.65,000/ on 08.04.2016. It was given in cash. He deposed that the application was Case No.29119/2016 State Vs. Bhupinder Singh 9/24 processed vide KYC No.034480000001095 and the said account was closed on 17.02.2017 after repayment of loan amount. He has placed on record seven copies of documents containing aforesaid details on judicial record vide Ex.DW3/A. Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
12. Ld. counsel for the accused has argued and submitted that there are material contradictions in the testimony of prosecutrix, the version of the prosecutrix is not reliable as if there had been sexual contact of the accused and prosecutrix and then there was every possibility that the fact of sexual intercourse could have been proved by the FSL report which is not helpful to the prosecution as no semen was detected on the exhibits as mentioned in the FSL report A3 (admitted document).
13. Ld. counsel for accused further submitted that the prosecutrix was trying to extort the money from accused and when he refused for the same she falsely implicated accused in the case by calling him at Connaught Place in a pre planned manner. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
14. On the other hand, ld. Addl. PP for the State submitted that prosecutrix has given a graphic description of all the facts and circumstances how she come in contact with accused and then induced and compelled by him for soliciting sexual favours from her. She has specifically stated that accused had obtained money from her falsely telling her to provide a job and in this way had called her in his office in the area of Pahar Ganj on 28.08.2016 and there forcibly committed sexual intercourse with her.Case No.29119/2016
State Vs. Bhupinder Singh 10/24
15. Ld. Addl. PP for the State further submitted that there is no delay, made by prosecutrix in lodging the complaint against the accused and the case was registered by police immediately on 29.08.2016 in the night as such the version of the prosecutrix is natural and convincing and her testimony has to be relied upon. As such, the testimony of prosecutrix is reliable and accused is liable for convicted.
PERUSAL OF RECORD:
16. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW1/A, present FIR Ex.PW1/B was registered against the accused.
17. It is further revealed that prosecutrix was got medically examined and doctor seized her wearing clothes, which she identified as Ex.P1, P2, P3 and P4 in the court and statement of prosecutrix u/s 164 Cr.PC. Ex.PW6/A was also recorded before the Magistrate.
18. It is further revealed that PW6 prosecutrix had given the documents, MarkA and MarkB of pledging her jewellery with Muthoot Finance to the IO, which she seized vide seizure memo, Ex.PW6/B.
19. It is further revealed that accused was medically examined from Lady Harding Medical College and Hospital vide MLC, Ex.PW2/A and the doctor who had conducted his medical examination had also taken his blood sample in gauge, preserved, sealed and handed over to HC Pramod Kumar along with sample seal which he had handed over to the IO, who seized the same vide seizure memo, Ex.PW2/B. Potency test of accused was conducted by PW13 Dr. Case No.29119/2016 State Vs. Bhupinder Singh 11/24 Deepanshu Gupta vide MLC, Ex.PW2/C.
20. It is further revealed that PW3 ASI Jaswant Singh deposed that on 28.08.2016 at 07:30 p.m. he recorded DD No.25A, Ex.PW3/A; during his duty hours at 07:35 p.m. DD no.26A, Ex.PW3/B was recorded by W/SI Davinder Kaur; the said DD no.25A was marked to W/SI Davinder Kaur for necessary action.
21. It is further revealed that PW4 W/Ct. Sudha deposed that on 28.08.2016 on the directions of the IO W/SI Davinder Kaur she took the prosecutrix to Lady Harding Medical College and Hospital for her medical examination; after her medical examination vide MLC, Ex.PW4/A doctor had handed over her the exhibits pertaining to prosecutrix and her wearing clothes in sealed condition along with sample seal, which she handed over to the IO, who seized the same vide seizure memo, Ex.PW4/B.
22. It is further revealed that PW5 Ct. Dharmender deposed that on 28.10.2016 on the directions of the IO, he had taken the custody of parcel containing exhibits pertaining to this case in sealed condition along with sample seal from MHC(M), PS Pahar Ganj, carried them to FSL Rohini vide Road Certificate, MarkA and deposited the same at FSL Rohini against acknowledgement, MarkB.
23. It is further revealed that PW9 ASI Jal Singh has proved the relevant entries of register no. 19, Ex.PW9/A pertaining to this case and copy of the road certificate through which the exhibits were sent to FSL Rohini and were deposited there against the acknowledgement, Ex.PW9/B (colly.).Case No.29119/2016
State Vs. Bhupinder Singh 12/24
24. It is further revealed that PW14 W/SI Davinder Kaur deposed that on
28.08.2016 she was posted as SI at PS Paharganj and on that day pursuant to a call received vide DD no.25A, Ex.PW3/A, she along with Ct. Pushpak reached Lady Hardinge Medical College, where W/Ct. Sudha was found present and prosecutrix was under medical examination; prosecutrix was medically examined by PW10 Dr. Supriya Goyal vide MLC, Ex.PW4/A.
25. It is further revealed that PW14 W/SI Davinder Kaur further deposed that she collected the exhibits pertaining to prosecutrix and her outer and inner clothes from the doctor in sealed condition along with sample seal and seized the same vide seizure memo, Ex.PW4/B; she had also called a counselor, Ms. Geeta Puri from an NGO, who had given counseling to the prosecutrix. PW14 W/SI Davinder Kaur further deposed that prosecutrix had given her written complaint, Ex.PW1/A and thereafter, she made endorsement at point C to C on the said complaint and gave the rukka to Ct. Pushpak and sent him to PS Paharganj for registration of FIR and I.O. she prepared site plan, Ex.PW14/A.
26. It is further revealed that I.O. had arrested accused vide Ex.PW14/B and Ct.
Pushpak had conducted his personal search; she prepared personal search memo vide personal search memo Ex.PW14/C.
27. It is further revealed that on her directions of I.O., Ct. Pushpak took accused to RML Hospital and got his formal medical examination conducted from PW11 Dr. Jayesh Kakadiya vide MLC, Ex.PW2/C.
28. It is further revealed that PW14 W/SI Davinder Kaur further deposed that she had also got recorded the statement of the prosecutrix, Ex.PW6/A under section Case No.29119/2016 State Vs. Bhupinder Singh 13/24 164 Cr.P.C. vide her application, Ex.PW12/A; it was recorded by PW12 Ms. Ambika Singh, Ld. M.M., Tis Hazari Courts, Delhi; copy of the said statement was provided to the IO on her application, Ex.PW12/B; thereafter, the case was assigned to W/SI Suman for further investigation.
29. It is further revealed that at the time of arrest of accused, I.O. had also taken into possession his mobile phone and seized the same vide seizure memo, Ex.PW14/D; accused had also pointed out the place of incident vide pointing out memo, Ex.PW14/E.
30. It is further revealed that PW15 W/SI Suman further deposed that HC Bhadar Singh had handed over her blood sample of accused in sealed condition along with sample seal, which she seized vide seizure memo, Ex.PW7/A.
31. It is further revealed that PW15 W/SI Suman further deposed that on 27.10.2016 prosecutrix met her in front of McDonald, Kashmere Gate and joined the investigation of this case; she had handed over her documents, Mark A and MarkB pertaining to Muthoot Finance regarding loan she had taken from there; PW15 seized the aforesaid documents vide seizure memo, Ex.PW6/B.
32. It is further revealed that on 28.10.2016, I.O. got the exhibits of this case sent to FSL through Ct. Dharmender; on 04.11.2016 she had also recorded the statement of Sh. Harwant Bir Singh who had got the room i.e. place of incident arranged for accused.
33. It is further revealed that on 16.11.2016 accused had filed an application in the court of Ld. CMM for collecting the relevant CCTV footage of Axis Bank Case No.29119/2016 State Vs. Bhupinder Singh 14/24 Branch, near R.K. Ashram Metro Station and from Rajiv Chowk Metro Station Gate No. 5 and 6.
34. It is further revealed that I.O. had collected the said CCTV footage of the branch of Axis Bank from Sh. Manash Rai, Bank Manager in Pen Drive, Ex.PX and seized the same vide seizure memo, Ex.PW15/A and filed the same in the court vide application, Ex.PW15/B. I.O. has also filed CDR, Ex.PW15/C pertaining to mobile phone number, 7060609883 which was of the prosecutrix for the period 01.06.2016 to 28.08.2016. I.O. has also filed copy of customer application form in the name of Aakash Singh, son of prosecutrix along with identify proof as Aadhaar card and along with certificate under section 65 B of the Evidence Act issued by Nodal Officer, Airtel Company, which are MarkY (colly.).
35. Before reaching at any conclusion, let the relevant sections i.e. 420/376 IPC be reproduced, which are as under: Section 420 IPC:
Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer Case No.29119/2016 State Vs. Bhupinder Singh 15/24 subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Case No.29119/2016State Vs. Bhupinder Singh 16/24 Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] FINDINGS OF THIS COURT:
36. Having heard the arguments advanced by ld. counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence led by the prosecution to prove the case against the accused beyond reasonable doubt and after gone through the case file, this court is of the considered view that the prosecutrix made a written complaint on 28.08.2016 wherein she has stated that she is known to the accused for the last 23 years who worked in Rakab Ganj Gurudwara and on the pretext of secure some job, she had given him Rs.2 lacs and on 28.08.2016 accused put a message to the prosecutrix and call her to his office, situated in Pahar Ganj and when she reached there, the accused asked her and taken her to his friend house i.e. 5338, Sora Kothi, Pahar Ganj and thereafter, the friend of the accused went away and the prosecutrix was raped by the accused forcibly and thereafter, she went to the PS to lodge the complaint. Upon her complaint the case FIR u/s 376 IPC was registered against the accused to which he pleaded not guilty
37. That, the court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. It has also been laid down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of Case No.29119/2016 State Vs. Bhupinder Singh 17/24 conviction, provided testimony of the prosecutrix is worth of credence and believable.
38. Statement of prosecutrix u/s 164 Cr.P.C. was recorded and prosecutrix was medically examined and charge sheet has been filed and upon the complaint as well as allegations of the prosecutrix, the accused was charged u/s 376 IPC and u/s 420 IPC to which he pleaded not guilty and claimed trial.
39. PW1 ASI Ramesh Chand is a formal witness who has registered the FIR. PW2 HC Pramod Kumar has got medically examined the accused vide MLC Ex.PW2/A from LHMC on 30.08.2016. PW3 ASI Jaswant Singh has recorded DD entry No.25A in respect of the incident. PW4 W/Ct. Sudha joined the investigation and conducted medical examination of the prosecutrix in LHMC on 28.08.2016 Ex.PW4/A. PW5 Ct. Dharmender has sent the parcel containing exhibits in sealed conditions vide Road Certificate.
40. PW6 is the material and star witness as she is complainant upon whose complaint, the FIR was registered against the accused and she examined herself and deposed that one Mr. Sunil Batra who is friend of her husband had met her in Nainital. She requested him for her employment. He introduced her with one Ramesh Gulati in a hotel at Nainital where she was staying. She also deposed that accused Bhupinder Singh is a friend of Ramesh Gulati and when she returned back to Delhi then Ramesh Gulati went to the Thailand where he is living. She has also deposed that she used to go to the office of the accused to remind him to get her employed. Sometime in January or February, 2016. She was told by the accused that "aise naukri nahi lagegi kam se kam 22 1/2 lac Case No.29119/2016 State Vs. Bhupinder Singh 18/24 rupe ka intezaam karna padega kyunki media mein salary 2530 hazaar se suru hoti hai". Then she said to the accused that "itna nahi ho payega thoda dekh lijiye" and he said to her that she would have to pay Rs.2 lacs for her employment. Then she went to her husband to arrange Rs.2 lacs, who was working as AC contractor in Rudrapur, Uttrakhand and discussed the matter with him. She requested him to give her Rs. Two lacs stating that "mera job lag jayega sab kuch theek ho jayega" but her husband have not much money at that time but he was interested in her employment and thereafter, whatever jewellery she had at that time, she had pledged the same with Muthoot Finance and received about Rs.1.75 lacs. She took Rs.25000/ from her husband. She had also borrowed Rs.40000/ from her Nandoi, Bharat Mishra who is working in Navy and she had given Rs. Two lacs to the accused at his personal office in Pahar Ganj, Delhi and on 26 or 27.08.2016 accused asked her to meet in his office at Pahar Ganj. On 28.08.2016 at about 10.00 am or 11.00 am she went there and meet the accused. At that time some construction work was going on in his office. She said to him that "aapne mujhe yahan bula liya yahan bahut gandgi hai tod fod ka kaam chal raha hai". Then he said to her that "paas me dost ka office hai wahan chal ke baat kar lete hain". She went there on foot and accused was on bike and she followed him and there was no office in the flat but there was a table and chair in the drawing room of the flat. It was first floor flat and when they reached there, friend of the accused was present there and they sat there for sometime and discussed the matter and after sometime friend of the accused went from there stating that he had some work and left the house and thereafter, friend of accused went from there and bolted the door from outside and at that time accused committed intercourse with the prosecutrix forcibly. She tried to save herself but she could not do so as the flat was bolted from the outside. After the incident she remained seated there Case No.29119/2016 State Vs. Bhupinder Singh 19/24 and kept on weeping for 2025 minutes. Thereafter, the said friend of the accused came there and opened the door and asked the accused that "sab theek thaak hai" and he was also smiling.
41. Prosecutrix further deposed that she came out of the flat and took rickshaw.
She asked the rickshawwala about the nearest police station. He dropped her at Pahar Ganj Police Station and she made a complaint at the police station Ex. Ex.PW1/A bearing her signature at point B in writing and thereafter, her medical examination was got conducted by the police vide MLC Ex.PW4/A and she had narrated the incident to the doctor who had conducted her medical examination and the said doctor had also taken into possession wearing clothes of the prosecutrix.
42. That, after gone through the examinationinchief as well as cross examination, this court is of the considered view that the testimony of prosecutrix cannot be relied upon inasmuch as she has deposed that she was using mobile number in the year 2016 when the incident of alleged rape had been committed and she was using same mobile number and the same mobile number was given to the I.O. Prosecutrix joined the investigation, during the investigation she had pointed out place of incident and accused was arrested in her presence.
43. It has also been deposed that accused also did not return his money and she is receiving anonymous threat call stating that "settlement kar lo warna anjaam bura hoga".
44. That, the court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any Case No.29119/2016 State Vs. Bhupinder Singh 20/24 corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. It has also been laid down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence and believable.
45. That, in the cross examination the prosecutrix has admitted that she did not mention in her complaint made to the police, upon which the FIR was registered that one Mr. Sunil Batra who is friend of her husband had met her in Nainital and that he requested him for her employment and he introduced her with one Ramesh Gulati in a hotel at Nainital and Ramesh Gulati introduced present accused and she has admitted that "I do not remember the date when Ramesh Gulati had called me at Sector 11, Metro Station, Dwarka." and she also admitted that she cannot tell the address of personal office of the accused and she has also deposed in her cross examination that she was using the mobile phone in the year 2016 but still she is using the same mobile number but mobile number is not remember to her and whether she had informed her mobile number to the I.O. is not remember to the prosecutrix.
46. That, in the examinationinchief of I.O. W/SI Suman where she has deposed that she obtained the CDR pertaining to mobile number 7060609883 which was of the prosecutrix mobile number for the period 01.06.2016 to 28.06.2016 and has also placed on record the same. That, the ld. Defence counsel put suggestion to the prosecutrix that prosecutrix was having conversation on mobile phone and through text messages to which she denied but perusal of the CDR it revealed that on the day of the incident of alleged rape, she made a call to the accused at about 8:42 am. And 09:50 a.m. and as per her allegation rape Case No.29119/2016 State Vs. Bhupinder Singh 21/24 was committed by the accused between 10:00 a.m. to 1:00 p.m. and at 1:00 p.m. she went to Police Station and immediately made written complaint upon which case FIR registered against the accused and she was medically examined on the same day and she had admitted the suggestion that she did not make any call to the accused after the incident but the testimony of the prosecutrix itself is unreliable and is not inspiring confidence on the ground that perusal of the CDR, it reveals that prosecutrix continue make call from her mobile phone number to the mobile number of the accused on 2:24 p.m., 4:35 p.m., 5:21 p.m., 5:29 p.m., 5:33p.m., 5:35 p.m., 6:00 p.m. and 6:04 p.m. on the same day and if heinous offence of rape alleged to have been committed by the accused with the prosecutrix between 10:00 a.m. to 1:00 p.m. to the police and she reported the matter at 1:00 p.m. to the police and gave written complaint to the police upon which FIR was registered then there was no point to call the accused after registration of the FIR but she continued to make mobile call from her mobile number to mobile number of the accused. Therefore, prosecution has not been able to prove the guilt against the accused beyond reasonable doubt.
47. That, the alleged rape has been committed by the accused with the prosecutrix on 28.08.2016 between 10:00 a.m. to 1:00 p.m. and she went to PS at 1:00 p.m. and she was medically examined and she allowed the doctor for her internal examination and the internal examination of prosecutrix carried out by the doctor and her wearing clothes including undergarments were taken into possession and same were sent to the FSL as well as the samples of the internal examination of prosecutrix was also sent to the FSL for expert and scientific opinion and report filed. Perusal of the report of FSL, it does not show any "semen" at exhibits and the prosecutrix did not change her clothes after the Case No.29119/2016 State Vs. Bhupinder Singh 22/24 alleged incident of rape committed by the accused. Nor she had taken bath and if she had been raped by the accused then the "semen" must be shown on the undergarments of the prosecutrix as well as on the exhibits but the report of the FSL is negative. Therefore, the testimony of prosecutrix is unreliable and prosecution is not able to prove the guilt of accused in any manner beyond reasonable doubt. Hence, accused is acquitted from the charge u/s 376 IPC.
48. That, the charge u/s 420 of IPC is also against the accused and the allegation as well as the evidence led by the prosecution that prosecutrix been cheated by the accused and accused had received Rs. 2 lacs and she has deposed that she had arranged and took the loan from the Muthoot Finance. She had pledged her jewellery and received Rs.1.75 lacs from Muthoot Finance and took Rs.25,000/ from her husband and borrowed Rs.40,000/ from her Nandoi, Bharat Mishra who is working in Navy but prosecution has not been able to examine the husband of the prosecutrix nor her relative i.e. Nandoi, Sh. Bharat Mishra who is working in Navy from whom, prosecutrix borrowed Rs.40,000/ and given the same to the accused. More so, there is no documentary proof with the prosecutrix to prove that she had made the payment of Rs. 2 lacs to accused for providing job to her. The prosecution has also not been able to prove charge against the accused u/s 420 IPC. Therefore, accused is hereby acquitted from the said charge. The benefit of doubt is given to the accused, as prosecution has been failed to prove their case against the accused beyond reasonable doubt. Therefore, accused is hereby acquitted from the charges u/s 420/376 IPC by giving him benefit of doubt.
49. In terms of section 437A Cr. P.C. accused is directed to execute bail bond in sum of Rs.20,000/ with one surety in the like amount.
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50. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
51. Every page of this judgment is signed by me.
52. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 01.12.2018.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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