Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, on 13 August, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 16/2017
Assigned to Sessions. 12.01.2017
Arguments heard on 25.07.2018
Date of Judgment 13.08.2018
FIR No. 261/2016
State V Suresh Sharma s/o S.P. Sharma, r/o. B
55, North Chajjupur, Delhi110094.
Police Station Pahar Ganj
Under Section 328/376 (2)(n)/506 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Pahar Ganj had filed
a challan vide FIR No.261/2016 dated 21.06.2016 u/s. 376/377/506 IPC for the
prosecution of accused Suresh Sharma in the court of ld. Metropolitan
Magistrate. 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,
CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. In this case criminal law was set into motion on the basis of statement of Case No.16/2017 State Vs. Suresh Sharma 1/24 prosecutrix Ex.PW1/A recorded by police on 21.06.2016 and FIR No.261/2016 u/s 376/506 IPC was registered. In her statement prosecutrix had narrated that she is a housewife having two children and his husband is doing private job. She further stated friend of his husband namely Suresh Sharma used to visit her house. She further stated that about one and half years ago, she was alone in her house, accused came there and gave her cold drink mixed with intoxicating substance due to which she become unconscious and accused done sexual intercourse with her and told her that he had recorded her video and click some photographs in her unconscious condition and after showing the same to your husband. She further deposed that accused had threatened her to defame her and used to blackmail her and in this way he had called her on 07.06.2018, and taken her to Uday Palace Guest House and done wrong act with her. Thereafter, on 21.06.2016, accused taken her to Uday Palace Guest House at about 3:00 p.m. and committed sexual intercourse with her without her consent. At this time, she mustered courage and she had telephoned on 100 number. She further stated that her husband has given Rs.2.5 lacs to accused and he had not returned the same to him and when he demanded back money he threatened her that he will upload her nude photos on facebook.
3. During investigation, W/SI Davinder Kaur prepared Rukka on 21.06.2016 and got the case registered. She got the prosecutrix counselled. She inspected the place of incident and prepared site plan and arrested the accused on the identification of prosecutrix.
4. W/SI Davinder Kaur taken the prosecutrix to Lady Hardinge Medical College where she was medically examined and the exhibits prepared by the doctors of sexual assault kit were preserved by the doctor which were seized by her. W/SI Case No.16/2017 State Vs. Suresh Sharma 2/24 Davinder Kaur has also seized the bed sheet from room no.301 of Hotel Udey Palace Guest House, she also seized the copy of the relevant entry of the stay of accused and prosecutrix from the original visitor register.
5. On 21.06.2016, accused was arrested from the Uday Palace Guest House itself, he was also medically examined in the RML Hospital.
6. On 23.06.2016 statement of prosecutrix u/s 164 Cr.P.C. was got recorded by Ms. Ambika Singh, Ld. MM wherein she had again reiterated the same facts and circumstances against the accused.
7. During the course of investigation, exhibits were sent o FSL Rohini and chargesheet was filed in the court of ld. Metropolitan Magistrate. 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. During course of trial, I.O. of the case has also filed the FSL report in the court.
CHARGE:
8. On the basis of material available on record, this court vide order dated 23.01.2017 framed charges against accused Suresh Sharma for the offence punishable u/s 328/376 (2)(n)/506 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
9. In order to prove its case prosecution has examined 15 witnesses namely PW1 Case No.16/2017 State Vs. Suresh Sharma 3/24 ASI Phool Singh, PW2 Prosecutrix 'M', PW3 W/Ct. Mamta, PW4 Ct. Ram Swaroop, PW5 Sh. Ashok Lohani, PW6 Ct. Rakesh, PW7 ASI Jal Singh, PW8 Dr. Sumit Gahlawat, PW9 HC Vijender, PW10 Dr. Ruchi Bhatt, PW11 Dr. Sulekha, PW12 Ct. Hoshiyar Singh, PW13 ASI Ram Vilas, PW14 Sh.
Satish Kumar and PW15 W/SI Davinder Kuar.
10. PW1:ASI Phool Singh is Duty Officer. He has proved rukka vide Ex.PW1/A for registration of FIR, computerized copy of the FIR vide Ex.PW1/B, endorsement on the rukka vide Ex.PW1/C and certificate u/s 65B of Evidence Act qua the present FIR vide Ex.PW1/D.
11. PW2: Prosecutrix 'M' is a material witness being victim and complainant. She is a housewife and was married in the year 1997 at Delhi and she is having two children. Her husband is in private job. She deposed that accused Suresh Sharma is known to her as he had been residing in her neighbourhood. He had also been friend of her husband and for that reason he came into her contact. He used to visit her house. She further deposed that accused had borrowed Rs.2,50,000/ from her husband. Rs. One lac for the marriage of his son and Rs.1.5 lac for college fee of his daughter. She correctly identified the accused present in the court.
12. PW2 further deposed that one and half years prior to registration of the present case on 21.06.2016 at about 09.30 a.m. - 10.00 a.m., accused came to her house. At that time her both the children had gone to school and her husband had gone to his office. She was alone at her house at that time. She further stated that accused had come with a colddrink bottle and accused told her that Case No.16/2017 State Vs. Suresh Sharma 4/24 he had brought the said colddrink for her children. However, she told him not to bring the colddrink for her children as it does not look nice. Then accused asked her to have the colddrink. She brought a glass and gave it to the accused and asked him to take colddrink. Accused also asked her to have the cold drink. Then he had brought another glass. She deposed that firstly, she consumed the colddrink and thereafter, she became subconscious and thereafter, accused committed rape on her forcibly. She does not remember if accused had also consumed the colddrink.
13. She further deposed that at about 12.30 p.m., she came into senses. She realized that accused had committed rape with her. PW2 further deposed that after a couple of days accused again came to her house and when she told him that she would make complaint against him, he showed her 56 nude photographs and her obscene video in his mobile phone and threatened her to upload the same on Facebook for general viewing and he would also disclose the incident to her husband. She deposed that she had not disclosed the incident to her husband as she had apprehension that her husband would throw her out from the house after coming to know about the incident. After the said incident accused kept on forcing her stating that he would come to her house for sexual intercourse with her.
14. She further deposed that on 07.06.2016 at about 08.30 a.m. accused telephoned her and asked her to accompany him to Hotel Uday Palace at Paharganj, Delhi and further threatened her that if she would not accompany him, he would make her photographs and video viral. Accordingly, she went to Anand Vihar Metro Station, where accused met her and from there he took her to the said hotel. He had got a room booked. He took her in that room and committed Case No.16/2017 State Vs. Suresh Sharma 5/24 sexual intercourse with her forcibly. They stayed there for about 45 hours. From the said hotel accused brought her to her house and dropped her there. She had not disclosed the said incident to her husband as she had apprehension that her husband would throw her out from the house after coming to know about the incident.
15. She further deposed that on 21.06.2016, again accused telephoned her at about 08.30 a.m. and again asked her to accompany him to the said hotel on the same threat. Accordingly, she went to Anand Vihar Metro Station, where accused met her and took her to the said hotel. She further deposed that on that day accused had got a room no. 302 booked in that hotel and accused took her in that room and again committed sexual intercourse with her forcibly and also threatened her not to disclose the incident to anyone, otherwise he would make her aforesaid photographs and video viral. She further deposed that accused had also told her that he had a pistol with him on that day and on both the said dates accused had committed carnal intercourse with her forcibly. She further deposed that on the last date of incident i.e. 21.06.2016 she herself came out from the room of the hotel, mustard courage and telephoned the police on telephone number 100 from her mobile phone no. 9313804824. Police came there after about half an hour. she narrated the incident to the police officials. From there they took her to police station Paharganj and from there they took her to Lady Hardinge Hospital and got her medical examination conducted vide MLC Ex.PW2/A. She has proved her statement vide Ex.PW1/A. She has also proved her statement under section 164 Cr.PC vide Ex.PW2/B. She has correctly identified her clothes i.e. saree, blouse and petikot to be the same clothes which she was wearing at the time of incident vide Ex.P1 (colly.). She has correctly identified her inner garments of the prosecutrix i.e. panty and Case No.16/2017 State Vs. Suresh Sharma 6/24 brassier which she was wearing at the time of incident vide Ex.P2 (colly.).
16. On being cross examined by Sh. Atul Kumar Gupta, ld. counsel for accused, she deposed that her husband was in Cen View Multinational Company at Noida. He is drawing salary of Rs.48,000/ to Rs.50,000/ per month. She deposed that accused had been known to her for 22 1/ 2 years prior to registration of the present case. This witness admitted that on ground floor her brother in law (Jeth) had been residing with his family in the same house.
17. She deposed that she had stated to the police in her complaint Ex.PW1/A that accused had come with a colddrink bottle and that accused told her that he had brought the said colddrink for her children. She was confronted with the complaint Ex.PW1/A wherein it is not so recorded in the same manner but it is recorded as "koi nashe ki cheej mujhe colddrink me pila di".
18. She admitted that she had not stated in her complaint Ex.PW1/A that she brought a glass and gave it to the accused and asked him to take colddrink and that firstly, she consumed the colddrink.
19. She further that she had stated to the police in her complaint Ex.PW1/A that accused showed her, her 56 nude photographs and her obscene video in his mobile phone. She was confronted with the complaint Ex.PW1/A wherein the said facts are not mentioned. However, it is mentioned that "tere photo khiche hain aur recording bhi ki hai".
20. She further stated that she had stated to the police in her complaint Ex.PW1/A about the telephone calls of the accused received by her on the aforesaid two Case No.16/2017 State Vs. Suresh Sharma 7/24 dates. She was confronted with the complaint Ex.PW1/A wherein it is not so recorded.
21. She had stated to the police in her complaint Ex.PW1/A the facts of the pistol being carried by the accused. She was confronted with the complaint Ex.PW1/A wherein it is not so recorded.
22. She further deposed that she had stated to the police in her complaint Ex.PW1/A that on both the said dates accused had committed carnal intercourse with her forcibly. She was confronted with the complaint Ex.PW1/A wherein it is not so recorded.
23. She admitted that she has been known to entire family of the accused and that she had attended the marriage of son of accused. This witness had denied to the suggestion that on 07.03.2016, she had organized a party on the occasion of birthday of the accused at Park Plaza Hotel, CBD Ground, Karkardooma, Delhi or that she had got a room booked in that hotel through her ID i.e. DL. This witness had denied to the suggestion that on 25.03.2015 she had demanded Rs.50000/ from the accused for admission of her daughter at Amity College, Noida. This witness had denied to the suggestion that she had promised to return the aforesaid amount to the accused or that for that reason she had called the accused at Hotel Uday Palace on 07.06.2016 or that she had not paid Rs.50000/ to the accused on that day or that she asked him to pay the same on 21.06.2016 or that she implicated the accused on 21.06.2016 or that due to this reason she did not make any complaint with any authority or that she is deposing falsely.
Case No.16/2017 State Vs. Suresh Sharma 8/2424. PW3: W/Ct. Mamta has proved true copy of DD No.18PP vide Ex.PW3/A (OSR).
25. PW4:Ct. Ram Swaroop, on the directions of the IO, had taken the custody of parcels containing exhibits pertaining to this case in sealed condition alongwith sample seal from MHC(M), PS Pahar Ganj, Delhi carried them to FSL Rohini vide Road Certificate MarkX. She deposited the said exhibits against an acknowledgement MarkY. She deposed that the said exhibits/case property were not tampered with in any manner till they remained in her custody.
26. PW5:Sh. Ashok Lohani deposed that in the year 2016, he was residing at the house of his brother in Gali No.20, Baljeet Nagar, West Patel Nagar, Delhi. During those days she was working as a Manager at a guest house namely Uday Palace situated at Gali no. 9/10, Sangat Rashan, Chuna Mandi, Pahar Ganj, Delhi. He further deposed that he does not remember the date and month, however in the year 2016 one Suresh Sharma, present in the court today (correctly identified) had come along with a lady in their guest house. He stayed there in room no. 301 for about half an hour. He had made his entry in hotel guest register. He further deposed that he had handed over photocopy of the same to the IO during the course of investigation which the IO had seized vide seizure memo Ex.PW5/A. He further deposed that accused along with the said lady had also stayed in the said hotel earlier for about 34 times. He proved copy of the relevant entry of the hotel guest register running into two pages vide Ex.PW5/A1 (OSR). The entry at serial no. A 313 dated 21.06.2016 was made by him. At the time when he had made the said entry in the register accused had not appended his signature stating that he was from Delhi Police and was not needed to put his signature in the register. However, when a call Case No.16/2017 State Vs. Suresh Sharma 9/24 was made on telephone number 100 by the said lady police had come there and at that time accused had appended his signature in the hotel guest register. He deposed that as per the said register there is no entry regarding the stay of the accused along with the said lady (prosecutrix) on 09.06.2016 and accused did not allow them to make entry on 09.06.2016 stating that he was from staff (Police).
27. On being cross examined by Sh. Atul Kumar Gupta, ld. counsel for accused, attention of the witness is drawn towards the relevant entries mentioned in Ex.PW5/A1 wherein room no.302 is mentioned. Witness submits that it is the correct room number where accused along with the said lady had stayed. He admitted that he had attested the copy of the said register by putting his signature thereon at point A. He deposed that he had not mentioned the details of the lady in hotel guest register who had accompanied the accused. This witness had denied to the suggestion that the said entry has been manipulated by him at the instance of police in the police station.
28. PW6:Ct. Rakesh, has taken the accused Suresh Sharma to RML Hospital and got his medical examination conducted.
29. PW7: ASI Jal Singh is the MHC(M). He has proved copy of the register no.
19 containing relevant entries running into two pages vide Ex.PW7/A.
30. He has proved copy of entries of register no. 21 i.e. road certificate bearing no.
74/21/16 dated 20.07.2016 and copy of acknowledgement handed over to him by Ct. Ram Swaroop already marked as MarkX and MarkY respectively are now exhibited as Ex.PW7/B and Ex.PW7/C respectively (OSR). He deposed Case No.16/2017 State Vs. Suresh Sharma 10/24 that the exhibits were not tampered with in any manner till they remained in his custody.
31. PW8: Dr. Sumit Gahlawat has conducted potency test of accused and found nothing to suggest that he was incapable of performing sexual intercourse under normal circumstances. He made endorsement at point A to A bearing his signature at point B at the back of the MLC Ex.PW8/A.
32. PW9:HC Vijender, has taken the accused Suresh Sharma present in the court (correctly identified) to RML Hospital and got his potency test conducted vide MLC already Ex.PW8/A. The doctor had also handed over him blood sample of the accused in seal condition alongwith sample seal, which he handed over to the IO vide seizure memo Ex.PW9/A bearing his signature at point A.
33. PW10: Dr. Ruchi Bhatt has proved MLC of accused qua his potency test vide Ex.PW8/A and referred him to the department of urology for further evaluation. He had also taken blood samples of the accused, preserved, sealed and handed over to the police along with sample seal.
34. PW11: Dr. Sulekha has proved MLC of prosecutrix vide Ex.PW2/A. He also prepared sexual assault kit qua the aforesaid examination of the prosecutrix and also taken into possession the inner and outer clothes of the prosecutrix, sealed and handed over the same to the police along with sample seal.
35. PW12:Ct. Hoshiyar Singh along with IO and HC Vijender had taken the accused Suresh Sharma to RML Hospital where he was medically examined vide MLC already Ex.PW8/A. During medical examination doctor had Case No.16/2017 State Vs. Suresh Sharma 11/24 collected blood sample of the accused and handed over the same to him in sealed condition along with sample seal which he handed over to IO which she seized vide seizure memo already Ex.PW9/A.
36. On being cross examined by Sh. Atul Kumar Gupta, Ld. counsel for accused, this witness had denied to the suggestion that he had not gone to hospital alongwith IO as stated by him or that he has deposed falsely at the instance of the IO.
37. PW13:ASI Ram Vilas deposed that on 21.06.2016 he was posted at police station Shang Tarashaan of PS Pahar Ganj on emergency duty and at about 05:05 p.m. he received DD no. 18PP regarding "galat kaam with a lady at Hotel Metro Palace"; then he along with Ct. Vinay reached at Hotel Metro Palace. PW13 ASI Ram Vilas further deposed that he contacted the caller of DD no. 18PP and he came to know that "galat kaam" had taken place at Hotel Uday Palace; accordingly, he along with Ct. Vinay reached at room no. 301, Hotel Uday Palace where he found accused was present.
38. PW13 ASI Ram Vilas further deposed that he informed regarding the circumstances to SHO; then SHO along with PW 15 W/SI Davinder Kaur and one lady constable reached Hotel Uday Palace and the matter was taken over by PW15 W/SI Davinder Kaur.
39. PW14: Sh. Satish Kumar deposed that accused was known to him being his neighbour and used to visit his house; on 21.06.2016 his wife/prosecutrix had informed him that accused had done "galat kaam" i.e. rape with his wife/prosecutrix several times in the period of one and a half years and he had Case No.16/2017 State Vs. Suresh Sharma 12/24 taken his wife/prosecutrix to police station and got registered the case against accused. Accused had also taken Rs.2.5 lacs from him, which he did not return.
40. On being cross examined by Sh. Atul Kumar Gupta, Ld. counsel for accused, this witness admitted that he had not stated to police in his statement that "galat kaam" i.e. rape had been done by accused with his wife several times. He further deposed that he had not shown in his ITR the amount of Rs.2.5 lacs as loan given to accused. He had given entire amount of Rs.2.5 lacs in one installment. This witness had denied to the suggestion that he had taken Rs.50,000/ from the accused to get his daughter admitted in Amity School which he did not pay to accused and in this way he along with his wife/prosecutrix had implicated the accused in this false case.
41. PW15:W/SI Davinder Kaur is the Investigating Officer. She has deposed on the lines of investigation. She deposed that on 21.06.2016 she was posted in PS Paharganj; Duty officer gave her information regarding DD no. 18PP Ex.PW3/A recorded by PW3 W/Ct. Mamta about the rape and accordingly she along with W/Ct. Veena reached Hotel Uday Palace where HC Ram Niwas was already present; prosecutrix was also present there; she informed about rape committed by accused with her; accused was also identified by the prosecutrix being present in the hotel. PW15 W/SI Davinder Kaur called a counselor from NGO; prosecutrix was counseled by counselor of NGO Shakti Vahini; she gave her statement Ex.PW1/A to the IO; she was taken to Lady Hardinge Hospital and was medically examined vide MLC Ex.PW2/A. She seized the exhibits prepared by the doctor regarding medical examination of the prosecutrix vide seizure memo Ex.PW15/A; then she prepared rukka Ex.PW15/B and gave to Ct. Vinay for registration of FIR. She had prepared site plan of the place of Case No.16/2017 State Vs. Suresh Sharma 13/24 incident at the instance of prosecutrix vide Ex.PW15/C. She had also seized bed sheet from the room of the hotel vide seizure memo Ex.PW15/D and converted the same into a sealed parcel and sealed with the seal of DK. She had also seized copy of hotel guest register of the relevant date vide seizure memo already Ex.PW5/A.
42. During the course of investigation, she arrested the accused vide arrest memo Ex.PW15/E, his personal search was also conducted vide personal search memo Ex.PW15/F and his disclosure statement was recorded vide Ex.PW15/G. Accused was medically examined vide MLC vide Ex.PW8/A. Doctor who had conducted medical examination of the accused had given her exhibits pertaining to accused in sealed condition along with sample seal which she seized the same vide seizure memo already Ex.PW9/A.
43. During the course of investigation, on 23.06.2016 she had got recorded statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW15/H. She had sent the exhibits through Ct. Ram Swaroop to FSL Rohini vide RC, she does not remember the number of RC. She has proved FSL result vide Ex.PW15/J. She has correctly identified the bed sheet which was seized by her from the room of the hotel vide Ex.P3.
44. On being cross examined by Sh. Atul Kumar Gupta, Ld. counsel for accused, she deposed that she had received phone call regarding DD no. 18PP in the evening time, she does not remember its exact time. She alongwith police staff had reached at Hotel Uday Palace at about 06:00 p.m. - 06:30 p.m. She had recorded the statement of the prosecutrix in hotel Uday Palace at about 09:30 p.m. She deposed that she had not collected any document pertaining to giving Case No.16/2017 State Vs. Suresh Sharma 14/24 Rs.2.5 lacs by the husband of the prosecutrix to the accused. She had denied to the suggestion that she had not investigated the case properly or fairly or that accused has been implicated in the present case in connivance with prosecutrix over the issue of returning of money of Rs.2.5 lacs or that she has deposed falsely.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
45. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him. Accused claimed that he is innocent and it is a false case against him. He deposed that prosecutrix was demanding money from him. She used to talk to him for several hours from her phone at his mobile phone number 9990399960. He had given Rs.50,000/ as loan to the prosecutrix on 25.03.2016 for the admission of her daughter in college and when he demanded his money back from the prosecutrix, he was falsely implicated by her in the present case. Accused has not preferred to lead defence evidence.
ARGUMENTS:
46. Ld. counsel for accused argued and submitted that as per the allegation of the complainant, the accused came in the house of the complainant before one and half year back and the accused gave drugs in the cold drink and thereafter, she was unconscious and accused done sexual intercourse with her and thereafter, accused said that he recorded her video and click some photographs and same were shown to her husband and defame the complainant in the society and blackmail her, however, the complainant did not mention the date, time, month and year when the alleged incident had happened.
Case No.16/2017 State Vs. Suresh Sharma 15/2447. Ld. counsel for accused further submitted that the complaint of the prosecutrix, on which FIR was registered against the accused and the contents of 164 Cr.P.C. of the prosecutrix are totally different.
48. Ld. counsel for accused further submitted that in her cross examination PW14 Sh. Satish Kumar has deposed that there is no written document with him so that Rs.2.5 lacs were given by him to the accused. He admitted that he had not stated to the police in his statement that galat kaam i.e. rape had been done by accused with his wife several times. PW15 W/SI Davinder Kaur has also deposed in her cross examination that she had not collected any document pertaining to given Rs.2.5 lacs by the husband of the prosecutrix to the accused. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
49. On the other hand, Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution. She has deposed about her complaint Ex.PW1/A and she had identified the accused as the same person against whom she lodged complaint of rape. Deposition of prosecutrix is very cogent. She has explained all the circumstances how the accused committed rape with her she has not made any delay in lodging the complaint with the police as the incident took place on 21.06.2016 at about 3:00 p.m. and the case was registered on 21.06.2016 a 10:30 p.m. itself.
50. Ld. Addl. PP for the State further submitted that the version of prosecutrix is also corroborated by the deposition of other witnesses i.e. PW4 Ashok Lohani, manager of Hotel Udey Palace, he identified accused and deposed that accused had come in the Hotel with one lady and stayed in the hotel 34 times. He has Case No.16/2017 State Vs. Suresh Sharma 16/24 also produced the relevant records Ex.PW5/A and PW5/A1 regarding the stay of the accused and prosecutrix in the hotel.
51. Ld. Addl. PP for the State further submitted that the testimony of prsoecutrix also corroborated by the scientific evidence in the shape of FSL report Ex.PW15/A as the DNA profile of the accused blood sample were accounted in the alleles of the exhibits 3j, 3k, 3k2, 5a and 6 which are the exhibits of internal examination of the prosecutrix and her clothes.
52. Ld. Addl. PP for the State further submitted that the case of prosecution is also finds strength from the deposition of PW14 Satish Kumar to whom prosecutrix had informed that accused had done galat kaam i.e. rape with her and he had gone with prosecutrix for lodging complaint against accused.
53. Ld. Addl. PP for the State further submitted that the accused could not explain any reason of his false implication and the testimony of prosecutrix and other witnesses indicates beyond reasonable shadow of doubt that accused had committed rape with the prosecutrix over a period of time keeping her under threat. As such, accused may be convicted.
PERUSAL OF RECORD:
54. Arguments heard. Record perused. On perusal of record, it is revealed that on the complaint o prosecutrix Ex.PW1/A, present FIR was registered against the accused.
55. It is further revealed that on 21.06.2016 PW15 W/SI Davinder Kaur was posted in PS Paharganj; Duty officer gave her information regarding DD no. 18PP Ex.PW3/A recorded by PW3 W/Ct. Mamta about the rape and accordingly she Case No.16/2017 State Vs. Suresh Sharma 17/24 along with W/Ct. Veena reached Hotel Uday Palace where HC Ram Niwas was already present; prosecutrix was also present there; she informed about rape committed by accused with her; accused was also identified by the prosecutrix being present in the hotel.
56. It is further revealed that PW15 W/SI Davinder Kaur called a counselor from NGO; prosecutrix was counseled by counselor of NGO Shakti Vahini; she gave her statement Ex.PW1/A to the IO; she was taken to Lady Hardinge Hospital and was medically examined vide MLC Ex.PW2/A by PW11 Dr. Sulekha.
57. It is further revealed that PW15 W/SI Davinder Kaur seized the exhibits prepared by the doctor regarding medical examination of the prosecutrix vide seizure memo Ex.PW15/A; then she prepared rukka Ex.PW15/B and gave to Ct. Vinay who left for registration of FIR.
58. It is further revealed that on 21.06.2016 PW1 ASI Phool Singh registered FIR Ex.PW1/B on the basis of rukka Ex.PW1/A received from Ct. Vinay; he also made his endorsement Ex.PW1/C; he also gave certificate Ex.PW1/D under 65 B of the Evidence Act regarding correct contents of computerized copy of FIR.
59. It is further revealed that on 23.06.2016 PW15 W/SI Davinder Kaur produced prosecutrix in the court of Ld. Magistrate and moved an application for recording her application Ex.PW15/H under section 164 Cr.P.C.; accordingly Ld. M.M., Ms. Ambika Singh recorded the statement of the prosecutrix, Ex.PW2/B (admitted document). IO obtained the copy of this statement vide her application Ex.PW15/I.
60. It is further revealed that on 22.06.2016 PW15 W/SI Davinder Kaur arrested Case No.16/2017 State Vs. Suresh Sharma 18/24 accused in the case vide arrest memo Ex.PW15/E; his personal search was conducted vide personal search memo Ex.PW15/F and his disclosure statement Ex.PW15/G was recorded.
61. It is further revealed that on 22.06.2016 PW15 W/SI Davinder Kaur alongwith PW12 Ct. Hoshiyar Singh produced accused in RML Hospital and accused was medically examined by PW8 Dr. Sumit Gahlawat who prepared MLC Ex.PW8/A; on the same day accused was also medically examined by PW10 Dr. Ruchi Bhatt for his potency test and she made her observation at portion A to A on the MLC Ex.PW8/A.
62. It is further revealed that PW4 Ct. Ram Swaroop had taken the exhibits of this case to FSL Rohini and deposited the same there vide road certificate MarkX; he obtained the acknowledgement MarkY.
63. It is further revealed that PW5 Sh. Ashok Lohani produced the copy of guest register Ex.PW5/A1 which was seized by the IO vide memo Ex.PW5/A; he also deposed that accused had also stayed in his hotel along with the said lady 34 times and he had made entry of his stay in the hotel at that time; he identified signature of accused and signature of the prosecutrix in the hotel guest register.
64. Before reaching at any conclusion, let the relevant sections i.e. 328/376 (2)
(n)/506 IPC be reproduced, which are as under: Section 328 IPC.
Causing hurt by means of poison, etc. with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or with thing with intent to cause hurt to such person, or with intent to commit or to facilities the commission of an offence or knowing it to Case No.16/2017 State Vs. Suresh Sharma 19/24 be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 376 (2) (n) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may 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.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS:
65. Arguments heard. Record perused. On perusal of record, it is revealed that present case was registered on the complaint of prosecutrix Ex.PW1/A. Prosecutrix has been examined as PW2. During her deposition, prosecutrix had submitted that accused Suresh Sharma is known to her as he had been residing in her neighbourhood and he had also been friend of her husband and he used to visit her house. She further stated that accused had borrowed Rs.2,50,000/ from her husband.
66. She further stated that one and half years prior to registration of the present case on 21.06.2016 at about 9:30 a.m. 10:00 a.m. accused came to her house. At that time her both the children had gone to school and her husband had gone to his office. She was alone at her house. Accused had come with a cold drink bottle. Accused told her that he had brought the said cold drink for her children. Then accused asked her to have the cold drink. She brought a glass and gave it Case No.16/2017 State Vs. Suresh Sharma 20/24 to the accused and asked him to take cold drink. Accused also asked her to have the cold drink. Then she had brought another glass. First, she consumed the colddrink and thereafter, she became subconscious and thereafter, accused committed rape on her forcibly.
67. Testimony of prosecutrix if considered in totality it is found that the prosecutrix is a major person of aged about 42 years having school going children and when she stated that one day accused had come at her house and gave her som intoxicated cold drink and she became unconscious and then accused committed rape with her and admittedly she did not make any complaint to the police nor informed about the incident to her husband or any of her relatives for which she has not been given any plausible explanation for not reporting the incident to her husband and relatives. The testimony of prosecutrix further not inspiring confidence as she has alleged that accused again on 07.06.2016 at about 8:30 a.m. telephoned her to come Uday Palace Guest House and she went there where accused again committed sexual intercourse with her forcibly. The version of prosecutrix cannot relied as she has herself gone from her house to said hotel and when she is saying accused committed intercourse forcibly why she should not report the matter to the police or why in the first instance she had gone to the said hotel to meet accused as such her version is not believable.
68. Prosecutrix version is also not free from doubt when she said that again on 21.06.2016 accused telephoned her at 8:30 a.m. and asked her to accompany him to the said hotel and on the same threat she went to Anand Vihar Metro Station where accused met her and took her to said hotel and accused again committed sexual intercourse with her forcibly and accused has told her that he was having a pistol with him and on this day she had called police on 100 Case No.16/2017 State Vs. Suresh Sharma 21/24 number. If the prosecutrix would have been genuine she should have given information to police in advance or could have told to any of her relative regarding the incident and that accused was forcing her to come to said hotel which has not been done by the prosecutrix it shows that she had tried to stage the incident on 21.06.2016 in order to implicate the accused by first going to the said hotel and after the sexual activity call the police. The conduct of the prosecutrix is not natural and shows her intention to implicate the accused in a planned manner.
69. Version of prosecutrix is also not corroborated and is under shadow of doubt when she has alleged that accused had taken 56 photographs and made her obscene video in his mobile phone but no such mobile phone or photographs or video have been recovered by the police during investigation either from the possession of accused or produced by prosecutrix. The investigation of this aspect are silent and the perusal of the disclosure statement of accused Ex.PW15/G wherein he has no where admitted having done sex with prosecutrix though the disclosure statement is not admissible but for the purpose of investigation if any material information could have been disclosed by the accused which leads to any material fact or recovery of any article could have been admissible but in the present case even disclosure statement recorded by the I.O. is such that it does not implicate accused in any manner at all.
70. Version of prosecutrix is also not corroborated by any independent witness except her husband to whom she has disclosed about at a very late stage. Admittedly, the prosecutrix had stated in examination in chief tht accused used to visit her house and borrowed Rs.2.5 lacs from her husband it shows that there has been money transactions between the accused and the family of the Case No.16/2017 State Vs. Suresh Sharma 22/24 prosecutrix. As such false implication of accused to get recovery of money cannot be ruled out.
71. Considering the overall testimony of prosecutrix, her husband Ashok, it cannot be said that in the facts & circumstances accused had been using force upon the prosecutrix to call her indulge in sexual activities in the said hotel is not proved beyond shadow of doubt. The incident dated 21.06.2016 seems to be well thought and planned in advance by prosecutrix and her husband to implicate the accused in the case.
72. Version of the prosecutrix is also belied from the fact that PW14 her husband deposed that on 21.06.2016, prosecutrix had informed him about the incident of rape done by the accused and he had taken her to PS Pahar Ganj and the case was registered whereas the DD No.18PP dated 21.06.2016 Ex.PW3/A shows that one lady has called regarding galat kaam happened with her and in the rukka Ex.PW15/B, I.O. PW15 W/SI Davinder Kaur has recorded that she reached Uday Palace Guest House where complainant met her and then she has taken her to hospital and thereafter, rukka was prepared. So it seems that version of the husband of the prosecutrix is in great contradictions of the version of the prosecutrix and the version of the I.O.
73. So far as the FSL report Ex.PW15/J and traces of semen is concerned, it is very natural when the prosecutrix has tried to implicate accused by going in hotel and thereafter, calling the police at the spot but once the version of prosecutrix is such that she had deliberately called the police to implicate the accused so it was natural that the traces of semen could be found on the exhibits collected by the I.O. during investigation. This rather shows that prosecutrix deliberately Case No.16/2017 State Vs. Suresh Sharma 23/24 had sexual activity with accused so as to make a strong case against him.
74. In the instant case, the facts and circumstances are beating the drum that the prosecutrix was a consenting party.
75. Since there is no evidence regarding stupefying substance served upon the prosecutrix, hence, prosecution has been failed to prove its case against accused u/s 328 IPC beyond reasonable doubt.
76. From the close scrutiny of testimony of the prosecutrix, it is proved that prosecutrix was consenting with the accused. Accordingly, from the close scrutiny of evidence available on record, it is established that prosecution has been failed to prove its case beyond reasonable doubt. Accordingly, accused Suresh Sharma is acquitted from the charges u/s. 328/376(2)(n)/506 IPC by giving him benefit of doubt.
77. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
78. Since prosecutrix has been consenting with accused and she has misused the due process of law, hence, no compensation is awarded to her.
79. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 13.08.2018.
(RAMESH KUMARII)
Digitally signed by
RAMESH RAMESH KUMAR ASJ/SFTC2(CENTRAL),
TIS HAZARI COURTS, DELHI.
KUMAR Date: 2018.08.14
16:06:13 +0000
Case No.16/2017
State Vs. Suresh Sharma 24/24