Delhi District Court
State vs Pankaj on 7 May, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SOUTH EAST DISTRICT: SAKET COURTS:
NEW DELHI.
SC No. : 262/17
FIR No. : 967/15
PS : Okhla
U/s : 354D/452/323/506 IPC
State Versus Pankaj
S/o Shri Ashok Jha
R/o B5, Harkesh Nagar,
Okhla Indl. Area, PhaseII,
New Delhi.
Date of Institution : 03.07.2017
Judgment reserved for orders on : 17.04.2018
Date of pronouncement : 07.05.2018
J U D G M E N T
Brief facts of the case:
1.On 07.01.2016, the prosecutrix (name withheld to keep her identity confidential) gave her complaint at the Police Station Okhla wherein she stated that she was living with her family consisting of her parents and five siblings and was pursuing her graduation. Her elder sister got married on 17.04.2012 with accused Pankaj Kumar who was residing in Bihar. Prosecutrix got registered two cases under Section 354 IPC against the accused as accused was compelling her to make physical relations with him. The prosecutrix used to study in BA first year Ramanuj college, Delhi. On 27.11.2015 her jija came after releasing on SC No. 262/2017 State Vs. Pankaj Page No. 1 of 17 bail and used to follow her while she go to her college and threatened her to take back the cases registered against him by her otherwise he will kill her sister. On the complaint of prosecutrix, case was registered and site plan was prepared. Statement of prosecutrix under Section 164 Cr.P.C was got recorded. Accused was arrested and thereafter released on bail and after completion of investigation, the present case under Section 354D/506/451/323 IPC was filed in the court.
C harge:
2. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 22.08.2017 prima facie case was made out against the accused Pankaj for the offence under Section 354D/452/323/506 IPC. The charge was framed. The accused pleaded not guilty and claimed trial. Prosecution Evidence:
3. To substantiate its allegations against the accused, prosecution has examined following witnesses: M aterial Witnesses:
4. PW1 prosecutrix testified on oath that she has three sisters and one brother. She is youngest amongst all her sisters. Her sisters are married. Accused Pankaj is her brotherinlaw (jija). He is the husband of her elder sister Shalu. On 17.12.2015, she and her sister Shalu were present in the house. Her parents had gone for their duties. Her brother was in the village. Shalu used to live with them. At about 9:00 AM, accused came in the house. He asked her to withdraw the cases, which were got registered by her against him u/s354 IPC in PS Okhla. Those SC No. 262/2017 State Vs. Pankaj Page No. 2 of 17 cases are pending trial in Saket Courts. The accused was on bail in those cases. After release on bail, he used to follow her when she used to go to her college i.e. Ramanuj College, Nehru Place. He used to threaten her to withdraw the cases registered against him. When she and her sister refused to withdraw the cases, he threatened that if she would not withdraw the cases against him, he would kill her and Shalu. He then asked her and Shalu to go with him for outing. Shalu told him that she would go with him and not the prosecutrix. He started shouting on them and slapped Shalu. They asked their neighbour Anil to call their landlord Naresh Bhadana who lived in the same building. Naresh Bhadana came to their room. She told him the entire incident. The accused also misbehaved with Shalu and beat her in the presence of Naresh Bhadana. Naresh Bhadana apprehended the accused. She called at 100 number. Police came at their house and took the accused to police station. She and Shalu reached the police station. She gave written complaint in the police station, which is Ex.PW1/A. Police registered the case. They returned to the house. The accused managed to escape from police station. He had evil eye on her. He used to come to their house and harass her and her sister. On 27.12.2015, she was returning home from the college. The accused met her on the way. He forced her to go to his room. When she refused, he showed her nude photographs and videos, which he had already prepared. He then took her to his room at Harkesh Nagar and committed rape upon her. He used to blackmail her. She told the entire incident to Shalu. Her sister went to the house of the accused and managed to take the mobile phone containing her obscene videos SC No. 262/2017 State Vs. Pankaj Page No. 3 of 17 and photos. They informed the police. After about 15 minutes, the accused came to their house and told her that he has saved her obscene videos and photos in several other instruments. On 06.01.2016, her statement was recorded by the Magistrate. On 07.01.2016, the case FIR no. 13/16 was registered against the accused in PS Okhla Indl. Area u/s 376/506 IPC. The copy of statement is Ex.PW1/B A. Her statement u/s 164 Cr.P.C. was recorded in the case FIR no. 13/16. On 08.01.2016, the accused was arrested by the police at her instance and at the instance of Shalu. She was crossexamined by the Ld. Counsel for accused.
5. PW4 SI Bijender Singh had deposed that on 17.12.2015, he was posted as SI at police station Okhla Industrial Area. On that day, the prosecutrix came at PP Okhla PhaseIII of PS Okhla Industrial Area. She gave a complaint to him, which is Ex.PW1/A. He made endorsement vide Ex.PW4/A on the complaint and handed over it to Ct. Ravi and sent him to police station for registration of FIR. He alongwith the complainant reached at the spot in the area of Harkesh Nagar, New Delhi. He inspected the spot at the instance of the prosecutrix and prepared the site plan Ex.PW4/B. Ct. Ravi came at the spot and handed over the original rukka and copy of FIR to him. He recorded the statement of witnesses. He searched for the accused Pankaj but he could not be found. On 06.01.2016, he moved an application Ex.PW4/C before the Magistrate for recording the statement of the prosecutrix. On the same day, the statement of the prosecutrix was recorded. He collected the copy of statement vide Ex.PW1/B. He perused the statement of prosecutrix and came to know that the prosecutrix made allegations of SC No. 262/2017 State Vs. Pankaj Page No. 4 of 17 rape upon her by the accused. On 07.01.2016, W/SI Kiran Sood registered another case bearing FIR no. 13/16 PS Okhla Industrial Area u/s 376 IPC. He handed over the photocopy of the statement of the prosecutrix Ex.PW1/B to W/SI Kiran Sood. On 08.01.2016, He alongwith HC Harish Chander reached at house no. G75, Harkesh Nagar where the prosecutrix with her sister met them. They told them that the accused was living in house no. B5, Harkesh Nagar. They all reached there and apprehended the accused. On interrogation, the accused was arrested vide arrest memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW4/E. He recorded the statement of witnesses. They returned to the police station. He handed over the accused to W/SI Kiran Sood since he was required in case FIR no. 13/16. He completed the investigation, prepared the chargesheet and filed the same in Court.
Formal Witnesses:
6. PW2 Ms. Shalu wife of accused and sister of prosecutrix testified on oath that on 08.01.2016, she had told the police that the accused has been living at G5, Harkesh Nagar on rent. She and her sister went with the police to the said address where the accused was present and on their identification accused was arrested. She also stated that the rent of Rs. 10,000/ was due against the accused for which the landlord of the accused was harassing them to pay the arrears of the rent.
7. PW3 Constable Ravi Kumar had got registered the FIR on the basis of rukka given by IO/SI Vijender and handed over the same to him.
8. PW5 Ms. Neha, Ld. MM has deposed that on 06.01.2016, she SC No. 262/2017 State Vs. Pankaj Page No. 5 of 17 recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW1/B. She had also appended the Certificate and copy of the statement was supplied to IO on application Ex. PW4/C.
9. PW6 Sh. Naresh had deposed on oath that he was the owner of house no. G75, Harkesh Nagar, New Delhi. He rent our one room at the first floor of his house to the father of the prosecutrix who was living there with prosecutrix and his another daughter. On 17.12.2015, the prosecutrix and her sister came to him and told him that the husband of her sister was quarreling with them. He came to G75. In the meantime, the accused had left the house. He had not seen the accused quarreling with the prosecutrix and his wife.
10. PW7 ASI Harish Chander had deposed that on 08.01.2015 he along with IO went to the house no. B75, Harkesh Nagar, New Delhi where Smt. Shalu and prosecutrix met them. Then they took them and went to the house of accused and apprehended him on the instance of Shalu and the prosecutrix vide memo Ex. PW4/D. His personal search was conducted vide memo Ex. PW4/E.
11. PW8 SI Rakesh Kumar is Duty Officer and had stated that on 17.12.2015, he recorded FIR Ex. PW8/A. He endorsed the rukka Ex. PW8/B and gave a Certificate u/s 65B of Indian Evidence Act Ex. PW 8/C. Statement of accused and Defence of accused :
12. Statement of accused persons u/s 313 Cr.P.C. recorded separately in which he denied all the allegations levelled against them and alleged false implication. He also stated that it is a false case against him. After SC No. 262/2017 State Vs. Pankaj Page No. 6 of 17 her marriage with Shalu, she stayed with him at his native village for about 15 days and thereafter, she returned to Delhi of her own. A panchayat was convened and it was decided that he should sent the maintenance to Shalu at Delhi. He was working at Mumbai in BMC at that time as a contractor. He used to send money to his wife Shalu in Delhi. He used to send money to his handicap brother and his father who were residing in the native village. Whenever Shalu came to know about sending of money to his father and brother, she used to quarrel with him and threatened him to implicate me in a false case. He had purchased a Tractor out of loan in his name and on coming to know about this, Shalu started asking him to return to Delhi otherwise she will commit suicide by hanging herself. He came to Delhi and it was decided by father of Shalu that he should pay maintenance to her and is free to work from any place. He wanted to work from NOIDA while residing at the house of his sister but Shalu and her father was not agreeing to this and hence, he took a room on rent in Harkesh Nagar near the house of Shalu. He went to Mumbai to work there. But again his wife Shalu started quarreling with him on the ground of sending money to his native village. He returned to Delhi. One day in OctoberNovember, 2013 a quarrel had taken place between him and his wife Shalu whereupon a false FIR No. 492/13 under POCSO was registered against him by the prosecutrix. He was even giving money for the expenses of his father in law. In 2014 the prosecutrix had again filed a false complaint against him on which an FIR No. 293/2014 under Section 8 POCSO Act was registered against him. In 2015, the prosecutrix again filed a false SC No. 262/2017 State Vs. Pankaj Page No. 7 of 17 complaint against him on which the present FIR was registered and since he was granted bail in this case, the prosecutrix had levelled allegations of rape against him falsely on which the FIR No. 13/16 was registered which is also pending trial in this court. In fact, the prosecutrix wanted him to take divorce from Shalu stating that Shalu is moving out in his absence and is not willing to reside with him and that she will reside with him as my wife. She made physical relations with him with her consent. She was visiting his room as well as his place of working at AIIMS. He did not make any video nor the mobile was belonging to him. Accused did not prefer to lead evidence in his defence and his defence evidence was closed vide order dated 21.03.2018. Arguments of Ld. Addl. PP for State:
13. It is argued by Ld. Addl. PP for the State that accused has committed the crime by abducting prosecutrix from her college and committed sexual intercourse with prosecutrix forcibly and also threatened her to upload her photographs on the Internet and to kill her brother and father. It is argued that seeing the nature and severity of the offence, accused is liable to be convicted.
Arguments of the Ld. Counsel for accused:
14. It is argued by the Ld. Counsel for accused that the allegations of rape levelled by the prosecutrix are false as there is a delay in informing the incident to the police from 27.12.2015 to 06.01.2016. It is stated that the prosecutrix is in the habit of levelling false allegations against the accused. She has already lodged three FIRs against the accused in collusion with her sister. It is stated that the sister of the prosecutrix is SC No. 262/2017 State Vs. Pankaj Page No. 8 of 17 trying to settle her scores through the prosecutrix. The allegations are not specific and there are discrepancies. Landlord of the prosecutrix namely Narender Bhadana is hostile on the point of quarreling. It is stated that the mobile phone having the obscene video is not of the accused. The video was made by the sister of the prosecutrix only and have revealed that relations were consensual. It is argued that the mobile is of the father of the prosecutrix. It is stated that Shalu sister of the prosecutrix is not in talking terms with father of accused and as such the story of going to the house of the accused to talk to her father in law is concocted. As per the statement of the prosecutrix and her sister mobile phone is handed over on 06.01.2016 but the seizure memo was prepared later on. It is stated that after watching the CD the court could find that relations were consensual. It is stated that the accused has been falsely implicated in this case. The accused never took her obscene photographs or obscene video nor harassed her or sister of prosecutrix to make physical relations with the accused. Prosecutrix used to come to the house of accused and make physical relations with her consent. She also told the accused that his wife will not live with him and that she is willing to live with the accused and take care of his daughter. It is stated that the wife of the accused is having extra marital affair which accused used to object and the wife of the accused falsely implicated him through prosecutrix. Hence, it is prayed that the accused be acquitted. Conclusion:
15. I have heard the arguments of Ld. Addl. PP for the State and Ld. Counsel for accused and perused the record.
SC No. 262/2017 State Vs. Pankaj Page No. 9 of 1716. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence.
17. Section 354D Stalking - (1) Any man who
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
18. Section 323 Punishment for voluntarily causing hurt Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
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19. Section 452 - Housetresspass after preparation for hurt, assault or wrongful restraint - Whoever commits housetresspass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
20. Section 506 IPC defines: 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 of 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.
21. Before scrutinizing the evidence of this case, it is necessary to point out that though the complaint made by prosecutrix to police is under Section 354D, 323, 506 IPC but during the statement recorded under Section 164 Cr.P.C by the Magistrate, the prosecutrix has levelled allegations of rape by the accused on 27.12.2015 and on this statement, the FIR under Section 376 IPC bearing No. 13/16 was also registered and the present case as well as the FIR No. 13/16 are both committed to this court as they are connected to each other. The said case is also SC No. 262/2017 State Vs. Pankaj Page No. 11 of 17 decided by this court vide a separate judgment today and the accused is convicted in that case by the court.
22. To prove the offences charged, prosecutrix is most material witness, who in her statement has reiterated the averments of her complaint that on 17.12.2015 at about 9 PM accused came to her house, asked her to withdraw the case which were got registered by her against the accused under Section 354 IPC in PS OIA. She had deposed that those cases are pending trial in Saket Courts and the accused was on bail in those cases. After being released on bail, he used to follow her when she used to go for her college and also used to threaten her to withdraw the cases registered against him. She also deposed that when she and her sister refused to withdraw the cases, accused threatened to kill her and her sister. He then asked the prosecutrix and her sister to go out for shopping and on refusal started shouting on them and slapped sister of the prosecutrix whereupon they called their landlord on whose presence also the accused had misbehaved with sister of the prosecutrix and beaten her. She deposed that on 27.12.2015 when she was returning from her college the accused took her to his room and raped her. She had deposed that accused used to blackmail her. She was cross examined by the Ld. Counsel for accused but nothing incriminating had come in the cross examination. She had denied the suggestion that physical relations between the prosecutrix and the accused were made with her consent on 27.12.2015. She had denied that accused never prepared her obscene video or photographs. Nothing adverse came out in the cross examination of the prosecutrix.
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23. It is admitted position between the parties that prosecutrix had registered two other cases also against the accused which are pending trial in POCSO Court. The case of the prosecutrix throughout is that soon after the marriage of the sister of the prosecutrix with the accused, who had an evil eye on her, he used to harass her and her sister and wanted to make physical relations with the prosecutrix and when sister of the prosecutrix refused to accept the illegal proposal, the accused used to beat her leading to discord between them. The accused was blackmailing the prosecutrix on the basis of her obscene video and photographs and ultimately on 27.12.2015 he succeeded in making relations with the prosecutrix after blackmailing her. The testimony of the prosecutrix is consistent throughout. There is nothing on record to disbelieve her statement. There is no ground to believe that prosecutrix would falsely implicate the accused, who is brother in law.
24. Prosecution has also examined the sister of prosecutrix as PW2 in this case who in her cross examination has denied the defence of the accused that she got the accused falsely implicated in this case through her sister as she wanted to send him to jail. She also denied the suggestion that prosecutrix started taking the position which she had with the accused from December, 2015 and she started visiting him and that PW2 forced her sister/prosecutrix to make complaint against the accused.
25. Admittedly, the prosecutrix has lodged two more FIRs bearing No. 492/13 and 293/14, PS OIA against the accused as to the molestation. Both the said cases were registered by her when she was minor and are SC No. 262/2017 State Vs. Pankaj Page No. 13 of 17 pending in Children Court dealing with POCSO Court. Her case is that the accused is continuously molesting her and even after registration of cases, he continued with the acts whenever bailed out in those matters. He wanted to make physical relations with her and forcing his wife/sister of prosecutrix for this illegal demand and ultimately succeeded in the same on 27.12.2016. A girl who is continuously facing molestation at the hands of her jija who had an evil eye upon her and wanted to be physical with her since after the marriage of her jija with sister of prosecutrix, had no option but to file the complaint with the police, which the prosecutrix of this case is doing right since the time when she was minor and which continued till the registration of this FIR. Her various police complaints, culminating in registration of four FIRs against the accused, tell tale of the helpless situation of a girl, who despite taking recourse to law and police, fell prey in the hands of the accused, who ultimately succeeded in committing rape with her, despite all her resistance and efforts. Nothing adverse came out in the cross examination of the prosecutrix so as to show that she was deposing falsely in the court. Her testimony is consistent throughout.
26. The prosecutrix is sister in law of the accused. Admittedly, marriage of the accused and her sister was lovecumarrange marriage but soon after 23 months of the marriage the accused started pressurizing sister of the prosecutrix to ask the prosecutrix to make physical relations with her. The prosecutrix has deposed that on account of this illegal demand by accused, her sister was residing separately from him. The accused has taken the defence that his wife was not inclined to SC No. 262/2017 State Vs. Pankaj Page No. 14 of 17 stay with him as she wanted to reside in Delhi and not in his native village and was also objecting in giving financial help to his family members. If that would have been the position, there was no ground to comprehend that prosecutrix and her sister would come to the Court with the allegations of molestation and rape which allegations had adverse impact even on the career and future life of unmarried prosecutrix. The making of physical relations is admitted fact by the accused. If that would not have been a ground of discord between the accused and his wife PW3, there was no other reason on account of which the sister of the prosecutrix was staying away from the accused. Sister of the prosecutrix could have easily departed from accused if there were other allegations. There was no ground to make such like allegations against the accused knowing full well that these allegations will also adversely impact the name of unmarried prosecutrix. In such circumstances to my mind the complaints against the accused cannot be termed as false. If the prosecutrix was making physical relations with accused voluntarily, she could not have lodged four cases against the accused since 2012 onwards nor the wife of accused who is sister of prosecutrix would have supported her at the cost of spoiling her married life. The act of making physical relations was under coercion and the consent was not voluntary and it was passive giving in by the prosecutrix on account of inevitable compulsion and clouded by the fear of threats of blackmailing by the accused that he will upload her nude photos on the internet. Despite the continuous FIRs against the accused, the accused was not desisting from his act of molesting the prosecutrix and the conduct of the accused SC No. 262/2017 State Vs. Pankaj Page No. 15 of 17 certainly had a scary impact on the mind of the prosecutrix. The CD containing the obscene video of the prosecutrix and the accused was handed over by sister of prosecutrix to IO in the other connected FIR No. 13/16 which is an offshoot of this FIR. If the relations would have been made voluntarily by prosecutrix, she would not have given this CD to IO as it is an evidence against her ownself.
27. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
28. It is for the court to consider in each case whether as a result of cross examination, the witness stands discredited or can still be believed in regard to any party of his testimony. In appropriate cases, the court SC No. 262/2017 State Vs. Pankaj Page No. 16 of 17 can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
29. The testimony of the prosecutrix inspires confidence and duly corroborated by other evidence on record. Accused could not produce any evidence in his defence to substantiate his averments. From the averments it is proved that on 17.12.2016 accused committed trespass in the house of the prosecutrix, caused hurt to his wife and he was also stalking the prosecutrix from 27.11.2015 to 17.12.2015 and had also criminally intimidated her. Hence, the prosecution has duly proved its case beyond reasonable doubt against the accused. Accordingly, accused is convicted for the offences punishable under Section 354D/452/323/ 506 IPC for which he has been charged.
30. Case be listed for arguments on the point of sentence.
Announced in the open
court today i.e. 07.05.2018 ( Renu Bhatnagar)
ASJSpl. FTC / Saket Courts
New Delhi
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