Delhi District Court
State vs . 1. Virender Pal Sudha on 10 August, 2016
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.
SC No. 441313/16
State vs. 1. Virender Pal Sudha
2. Neelam Sudha
FIR No. 122/2016
U/s. 376/328/366/363/506/34 IPC
P.S. BHD Nagar
10.08.2016
ORDER ON CHARGE : (Oral)
1.The case of the prosecution, in brief, is that prosecutrix 'X' (real name withheld in order to conceal her identity) aged about 28 years was employed with the accused Virender Pal Sudha as an Accountant in his factory at Inderlok, Delhi. On 14.11.2015 in the evening hours he offered some tea laced with intoxicating substance due to which the prosecutrix became unconscious and when she regained consciousness, she found herself in nude condition. It is alleged that at the factory co accused Neelam Sudha wife of accused Virender Pal Sudha also came and she threatened the prosecutrix that she had made a video of accused Virender Pal Sudha with her (prosecutrix) in a compromising position. It is further the case of the prosecution that on the strength of said video, the prosecutrix was blackmailed and on 3.3.2016 she along with her son were State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 1 abducted by accused Virender Pal Sudha and his driver Satbir Singh Balli and they were kept in a rented accommodation in Chander Vihar, New Delhi for about one month where the prosecutrix was repeatedly raped by accused Virender Pal Sudha. She was threatened of dire consequences by the accused Virender Pal Sudha and Neelam Sudha if matter is reported to the Police.
2. On the aforesaid complaint of the prosecutrix, the present FIR was registered on 11.4.2016 for commission of offences punishable u/ss 363/365/376 IPC.
3. During investigation prosecutrix was medically examined at Rau Tula Ram Hospital, New Delhi on 9.4.2016. Her statement u/s 164 Cr.PC was recorded by Ld. MM, Dwarka Courts, New Delhi on 12.4.2016. The statements of witnesses conversant with the facts were recorded. After completion of investigation, a chargesheet was filed against the accused for commission of offences under Sections 363/366/376/506/328 IPC.
4. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Mahipal Singh, Ld. Counsel for the accused.
5. Ld. Counsel for the accused has contended that accused have been falsely implicated in this case. According to him, no prima facie case for the alleged offences is made out against the accused and they are State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 2 liable to be discharged.
6. On the other hand, Ld. APP for the State has contended that there is sufficient material on record for framing charges against the accused.
7. I have gone through the case file. The FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that a mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.
8. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is delay of about six State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 3 months from the date of first alleged incident in lodging the FIR.
9. The essential ingredient of Section 328 IPC is that the victim should be administered poison or any stupefying intoxicating or unwholesome drug or other thing. The forensic examination of the stomach wash in order to determine that the substance that administered was poison is, therefore, imperative for ascertaining the commission of the offence punishable u/s 328 IPC. Admittedly, no stomach wash of the prosecutrix was taken for forensic examination in the present case. The averment made by the prosecutrix that she became unconscious after having tea cannot be said to be final to reach to the conclusion that the tea administered was either poison or any stupefying intoxicating or unwholesome drug. For taking this view I am supported with the judgment Sanjay Singh v. State, Crl. Appeal No.636/2005 decided on 23.4.2008 by the High Court of Delhi speaking through Hon'ble Mr. Justice S. Murlidhar. As there is no medical evidence on record that the substance administered was either poison or stupefying intoxicating or unwholesome drug, no prima facie case u/s 328 IPC can be said to be made out against the accused.
10. The version of the prosecutrix about the alleged incident of rape that occurred on 14.11.2015 is belied by the documents placed on the record by prosecution itself. A DD No.2B was lodged at PS Keshav State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 4 Puram on 15.11.2015 regarding a quarrel at the office of accused Virender Pal Sudha. On the same day in the said Police Station, DD No.28B was recorded wherein it is mentioned that some altercation had taken place between the accused Virender Pal Sudha and his wife accused Neelam Sudha in connection with the prosecutrix and the matter was resolved. On the said day, the statement of the prosecutrix was also recorded and the said statement bears her signatures wherein she has not alleged any rape having been committed upon her by accused Virender Pal Sudha. The said statement is reproduced herein below :
"ससवव मम, शशररमवन (Shrimaan) S.H.O. सवहब थवनव कसशवपपरम ननवसदन इस पशरकवर हह मम नवरमदरश पवल कस ऑनफस मम 1111/73 दसववरवम नतशर. नगर नदललर मम job करतर हह ह जज आज मम अपनस office मम अपनस मवनलक कस सवथ लसट तक रकर हपई थर जज समय कररब 10.30 PM कज मसरस मवनलक कर पतनर यव लड़कर office मम आ गयर नजनहजहनस ग़लतफ़हमर मम आकर 100 न . मम PCR call कर दर जज झगड़स ववलर कजई बवत नहरह थर न हर कजई शक करनस ववलर बवत थर मम अब इनकस office मम job नहरह करहगर न हर आज कस बवद अपनस मवनलक सस नमलहग ह र यनद इस हपआ तज मम इसकर सवयह नजममसदवर हजहगर sd/ W/o Dheeraj झड़जदव कलवह नजफगढ़ 14.11.15"
11. The version of the prosecutrix also does not find support from other prosecution witnessesRajesh, Bhupender Pal Singh, Gurpreet State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 5 Singh Sudha and Anu in their statements u/s 161 Cr.PC which were recorded during investigation of the case. Rajesh happens to be the landlord of the place where the prosecutrix had allegedly stayed with accused Virender Pal Sudha and in the statement u/s 161 Cr.PC, it is stated by Rajesh that both the prosecutrix and accused Virender Pal Sudha had introduced themselves as husband and wife while staying in the rented accommodation. Further, there is statement of Bhupender Pal Singh, owner of Golden Heritage Hotel, Amritsar, Punjab who has stated that the prosecutrix and the accused Virender Pal Sudha had stayed in his hotel and he did not observe any kind of quarrel between them. Gurpreet Singh Sudha and Anu, both resident of Ludhiana, who happen to be the brother and sisterinlaw of accused Virender Pal Sudha have stated in their statements u/s 161 Cr.PC that in the month of February, 2016, accused Virender Pal Sudha had come to their residence along with prosecutrix and after staying over night they left in the morning. It is further stated that during their stay in their house, they slept in separate rooms.
12. The statement of Kunal, son of the prosecutrix, was also recorded by the prosecution during investigation and as per his statement, he used to call accused Virender Pal Sudha as 'Papa' and he used to reside with him.
State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 6
13. Prosecutrix was medically examined on 9.4.2016. Doctor has written on the MLC that she did not find any external injuries on the person of the prosecutrix at the time of the examination. There is no medical evidence to support the version of the prosecutrix that she was raped as she was taken to the hospital after about considerable time of the last alleged incident. Accused was also medically examined by doctor on 20.4.2016 at Rau Tula Ram Hospital, New Delhi which was a sheer formality.
14. It is the settled law that order framing the charges does substantially affect the persons and the Court must not automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173 Cr.PC, consider it proper to institute the case.
15. Though not referred to or relied upon, it has been observed by Madhya Pradesh High Court in judgment - Sunder Singh v. State of M.P., Cr.R No.607/2013 decided on 3.9.2013 as under :
"42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial.
State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 7 Please see: State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment."
16. After examining the documentary as well as oral evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted, before it is challenged by cross examination or rebutted by defence evidence, if any, is not showing that accused committed the alleged offences for which they are being prosecuted because of following reasons:
(a) No complaint was lodged by the prosecutrix till 11.4.2016 though she was allegedly raped several times by the accused during the period between 14.11.2015 to 3.4.2016. There is no valid justification for delay in lodging the FIR.
(b ) The evidentiary value of the medical evidence is zero.
(c) In her statement dated 14.11.2015 of prosecutrix recorded at PS Keshav Puram, she has not alleged any rape having been committed by accused Virender Pal Sudha upon her on 14.11.2015. The DD Nos. 2B and 28B, PS Keshav Puram, both dated 15.11.2015 also belies the version of the prosecutrix.
(d) Prosecution witnessesRajesh, Bhupender Pal Singh, Gurpreet Singh Sudha and Anu in their statements u/s 161 Cr.PC have not State v. Virender Pal Sudha and another (FIR No.122/16 PS BHD Nagar) Page 8 supported the prosecution.
(e) Prosecution witness Kunal, son of the prosecutrix, has also not alleged anything against the accused.
17. Considering the facts and circumstances of this case, after sifting and weighing the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused, I am of the opinion that the materials placed before the Court do not disclose the grave suspicion against the accused for framing a charge against them for committing the alleged offences. Accordingly, both accused in the present case are discharged. Their personal bonds are cancelled and sureties are discharged. In terms of Section 437(A) Cr.P.C., accused are directed to furnish personal bond within a week in the sum of Rs.25,000/ each with one surety in the like amount for a period of six months for their appearance before the High Court of Delhi in the event the prosecution wishes to challenge the present order by filing the appropriate petition in the High Court. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Dictated & announced today in (PRAVEEN KUMAR) open court on 10.8.2016. Addl. Sessions Judge (SFTC) Dwarka Courts :New Delhi.
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