Delhi District Court
State vs . Raj Kumar on 24 February, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 812/2006
Unique Case ID: 02404R0378542007
State Vs. Raj Kumar
S/o Sangram Singh
R/o House No. 57,
Paryog Vihar, Hari Nagar
Delhi.
FIR No. : 1196/2006
Under Section : 366/376 Indian penal Code.
Police Station : Rajouri Garden
Date of committal to Sessions Court : 1.8.2007
Judgment reserved on : 27.1.2011
Judgment pronounced on : 24.2.2011
JUDGMENT
Brief Facts: The case of the prosecution is that on 5.12.2006 at Khatir Restaurant, Paschim Vihar, Delhi, the accused Raj Kumar had kidnapped the prosecutrix 'S' (name of the girl is withheld as this is a case under Section 366/376 Indian Penal Code), aged about twenty years with intent that she shall be seduced to illicit intercourse or forced to marry him and had committed sexual intercourse with her against her wishes.
State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 1 of 42 Case of prosecution in brief: The case of the prosecution in brief is that on 31.12.2006 the complainant / prosecutrix came to the police post MIG Flats, Rajouri Garden and gave her statement to ASI Baljeet Singh. The prosecutrix in her complaint to the police had stated that she was married to Hari Chand resident of Uttam Nagar in the year of 2004, which marriage was broken due to some reasons and thereafter she came back to her parental house and started living there. She further told the police that after some months her neighbour Raj Kumar (present accused) started approaching her and developed friendship with her knowing that her earlier marriage was broken despite which he told her that he was in love with her and wanted to marry her. She told him that she is already married on which the accused stated that he knew everything and promised to marry her. The prosecutrix has further stated that she thereafter under allurement of the accused started going out with the accused when the accused made physical relations with her against her consent. She further stated that on 16.4.2006 Raj Kumar went to Yeman and assured her that on his return he will marry her but on 5.12.2006 when he came back from Yeman he again started meeting her and once took her to Khatir Restaurant and made physical relations with her against her wishes. She further told the police that on 28.12.2006 when she asked Raj Kumar to marry her, he refused saying "tujh jaisi bahut larkiya State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 2 of 42 ghumti hai'. On the basis of the aforesaid complaint, the present FIR was registered. The prosecutrix was taken to the hospital and her medical examination was got conducted and during investigation the accused Raj Kumar was arrested on the identification of the prosecutrix. Statement of prosecutrix was got recorded before the Ld. MM under Section 164 Cr.PC and after completing the investigation, charge sheet was filed in the court. CHARGE:
Ld. Predecessor of this court settled charges under Section 366/376 Indian Penal Code against the accused Raj Kumar who pleaded not guilty and claimed trial.
EVIDENCE:
The prosecution in order to prove the onus, has examined as many as fourteen witnesses:
Public Witnesses/ Prosecutrix:
PW1 is the prosecutrix 'S' (name of the girl is withheld as this is a case under Section 366/376 Indian Penal Code). She has deposed that she is residing with her parents and is privately employed. According to her, on 09/05/2004 she was married with one Hari Chand the marriage failed and thereafter she returned to her parental home. She has deposed that the accused Raj Kumar lived in State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 3 of 42 her neighbourhood and started meeting her and made advances and tried to develop friendship with her and also promised to marry her. According to the witness, she discouraged him saying that she had been previously married, but the accused told her that the breakup of her previous marriage was not because of her fault and he still loved her. The witness has further deposed that the accused often used to take her out and also used to drop her at her office. According to her, he regularly meet her and took her to various places and restaurants and also to the house of one Komal, who he claimed was his sister.
The prosecutrix has further deposed that about one and half month after, the accused had met her for the first time and he made physical relations with her i.e sexual intercourse without her consent, at the house of Komal, and when she refused for sexual favours and he had torn away her salwar. According to her, she started crying and told him that she will tell her parents on which the accused cut the veins of his wrist and claimed that he loved her. She has further deposed that the accused also asked her not tell about this incident to any person or he will commit suicide and also promised that he will marry her. The prosecutrix has further deposed that thereafter she did not meet him for a period of one week and he again tried to commit suicide by consuming pheynol and thereafter he kept meeting her regularly. She has further deposed that the accused used to drop her to her office and pick her up from there and on almost State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 4 of 42 every alternate day he maintained sexual intercourse with her at various places namely the house of his friends, restaurants and also claimed that he will marry her. She has further deposed that on 16/04/2006 he left for Yamen promising to marry her on his return and he return on 05.12.2006 from Yaman and procrastinated the issue to marriage According to her on 25.12.2006, the accused took her to Khatir restaurant at Paschim Vihar and againd committed sexual intercourse with her without her consent and also gave her slap blow and thereafter refused to marry her. According to her on 28.12.2006 the accused again called her and told that he will not marry her because his parents would not agree.
The prosecutrix has further deposed that on 29.12.2006 she informed her mother about the incident and when her mother confronted the accused, he stated the he know her (prosecutrix) as a neighbour and had no relations with her. She has further deposed that they went to police station on 31.12.2006 and lodged a report and handed over her joint photograph with the accused and also the letters which he had written to her from Yamen. Her complaint made to the police is Ex.PW/A which bear her signature at point A. The photographs are Mark A and B and according to her the negatives are in the custody of the accused. She has deposed that the letters written by the accused to her are Ex.PW1/B the envelop wherein the letter was received is Ex.PW1/C. She had also handed State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 5 of 42 over to the investigating officer the photo copy of her diploma in computer application regarding her date of birth and also her school certificate, and the copies are Mark C and D and all these were seized by the IO vide seizure memo Ex.PW1/D. The prosecutrix has further deposed that on 31/12/2006 she was taken to DDU hospital for her medical examination and the medical examination could not be carried out on that day because of her periods. Thereafter, she again went to the hospital on 02.01.07 and her medical examination was conducted and the doctor had seized her panty. According to her, she was accompanied by lady constable Rajni and her mother and investigating officer and the MLC Ex.PW1/E dated 31.12.2006 was prepared which bears her refusal for examination at Point X to X and her signature at Point Y. According to the prosecutrix, on 9.01.2007 she came to the Rohini courts, where her statement u/s 164 Cr. P.C was recorded, which is Ex. PW1/F bearing her signatures at point A. According to her, on 14.01.2007 the accused was arrested on her identification vide arrest memo Ex.PW1/G and his personal search was conducted vide memo Ex.PW1/H both bear her signature at point A. She has further deposed that after the arrest of accused his family members namely Mama, cousin Sunil and his father have been threatening her. According to her, on her complaint, a kalendra u/s 107/151 Cr.P.C State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 6 of 42 was registered against step father of the accused namely Hari Ram Yadav. She has correctly identified her panty which is Ex.P1.
The prosecutrix was cross examined by the Ld. PP for the State with the permission of the court, wherein the witness has deposed that her statement was recorded by the police on different dates. She has further admitted that w.e.f 5/12/2006 accused had committed forcible sexual intercourse with her on several occasions at Khatir restaurant with the promise to marry her. She has further admitted that on 25/12/2006 accused came to her house in the morning, when her parents were not available and he again forcibly committed rape upon her. She further admits that she had handed over the letters and photographs and photo copies of her certificates along with the envelop on 2.01.2007 and not on 31.12.2006. The prosecutrix has further admitted that she joined investigation in the present case on 15.01.2007 and went to the house of the accused with the IO and on pointing out accused was arrested and the the documents pertaining to arrest were prepared on 15.01.07 and not on 14.01.07. She deposed that she had forgotten certain facts because of lapse of time.
During her cross examination by Ld. defence counsel, the witness has deposed that she is residing at the given address since her birth. According to her at the time of occurrence, she worked at C173 Hari Nagar Clock Tower, New Delhi64 which was the office State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 7 of 42 of Indian Institute of Technology Management & Health Sciences and in September 2006 she had taken a job at Kalkaji. According to her she is now working at Ajmeri Gate. She has further deposed that she only lived with her first husband for about six to seven days as there were some differences regarding dowry. She has stated that she had made a complaint at CAW Cell regarding dowry, where it was sorted out. According to her the marriage was not consumated with Hari Chand and has further stated that no decree for divorce was obtained but social understanding of separation was arrived. He has stated that she might have returned to her parental home by 18.05.2004 and lived at Paryog Vihar. She has denied the suggestion that she had not told the accused about her previous marriage with Hari Chand she did not want to marry the accused. According to the prosecutrix, it was on the first meeting that she had no intention to marry him. She has further deposed that after the accused made physical relations with her she agreed to marry him but she does not remember the date of the first sexual intercourse by the accused. According to the prosecutrix, she had not told of this incident to any person including the police as the accused had threatened to commit suicide and had cut his veins. She has deposed that the sexual intercourse at the house of Komal was against her consent. The witness has further deposed that she had never taken any sum of Rs. 60,000/ (Rs. Sixty thousand) from the accused. She has denied the State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 8 of 42 suggestion that accused did not commit any sexual intercourse with her at any time. The witness has further deposed that after his return from Yamen, she met the accused on 06.12/2006 when he took her to Khatir restaurant and he picked her up from her house about 11.00 a.m. She has further testified that the accused told her that he had reached Delhi on 06/12/2006 at 2.00 a.m. (night). She has deposed that she did not meet on 5/12/2006. She has further stated that accused did not threaten her but used to tell her that if she did not join him he would commit suicide. According to the prosecutrix, on 06/12/2006, the accused had not committed sexual intercourse at Khatir restaurant as she was mensturating and she had refused, he had then hit her. She has further deposed that during the movie on 06.12.2006 in the afternoon she requested the accused to marry her, he had said yes and she asked him to speak to his parents but he procrastinated. She has denied the suggestion that they had both spoken to their respective parents for the marriage or that both the parents had declined the marriage. She has denied that the parents of both the parties quarreled with each other on the issue of marriage. According to the prosecutrix, they did not go the police station before 31.12.2006 regarding any complaint for refusal to marriage. She has denied the suggestion that on 10.12.2006 she was called to the police station Rajouri Garden to discuss the matter of marriage or that her parents had given in writing that they did not want her to marry the State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 9 of 42 accused as they were neighbour. She has denied the suggestion that accused wanted to marry her. According to her, the accused had made promise to marry her. She has denied the suggestion that her parents were against her marriage with the accused. According to the prosecutrix, her marriage with Hari Chand had been broken with the consent of her parents. She has stated that she was accompanied by her parents on 31.12.2006 when she went to the police station. She has denied the suggestion that she had relations with other boys also or that she used to take money from them. She has further denied the suggestion that she had demanded Rs.2 lacs from the accused. She admits that she had also filed a complaint under Section 125 Cr.P.C. against the accused but she does not know the amount claimed in the said application. She has denied the suggestion that the photographs and the letters handed over by her to the IO are forged. She has further denied the suggestion that Khatir restaurant does not have any accommodation to commit sexual intercourse. She has stated that the restaurant has cabins and accused used to give Rs. 400/500 to the waiter on hourly basis and tell him not let to any person enter the cabin. She has denied the suggestion that she was deposed falsely or accused never committed sexual intercourse with her against my consent.
PW4 Hira Lal has deposed that his daughter 'S' (prosecutrix) was initially married in the year 2004 with one Hari State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 10 of 42 Chand R/o Mahindra Park but on account of the incompatibility, their marriage could not worked and they were divorced and after her divorce she started living with them. According to him, his neighbour Raj Kumar (present accused) was on visiting terms with his daughter (prosecutrix) being neighbour and the accused used to visit frequent his house and his daughter also frequent to visit his house. According to the witness, the accused promised his daughter that he would married her but later his (witness) wife told him that she had been told by prosecutrix that during this period the accused Raj Kumar had developed intimacy with her (prosecutrix) and had even done 'chher chhar' with her but hereafter refused to marry her. The witness has further deposed that on coming to know of the aforesaid, he took the prosecutrix 'S' to police station Rajouri Garden where prosecutrix told the police officials what had happened and her statement was recorded and thereafter they all were sent to DDU hospital alongwith 'S' where her medical was done and his statement was thereafter recorded by the police.
In cross examination by Ld. fefence counsel the witness has deposed that they are eight family members in all and his daughter was initially married to Hari Chand and after her marriage she remained at the house of Hari Chand for one week and thereafter the said marriage had broken because the credentials of the boy as given to them before the marriage were not found proper. According State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 11 of 42 to him initially there was a Panchayat Faisla after which there was a settlement in Women Cell. He has denied the suggestion that he had told to investigating officer that he has opposed to the marriage between the accused and prosecutrix as they were residing in the same locality being neighbour. According to him he had only told to investigating officer that he has opposed to this kind of relationship which is being maintained without marriage. He has deposed that prior to 29.12.06, he had never felt that the accused was treacherous. The witness has admitted that he has no direct knowledge of what had transpired between the accused and his daughter and he has deposed only on the basis of what was told to him by his wife as conveyed to her by his daughter 'S' (prosecutrix). The witness has denied the suggestion that Raj Kumar had never told him that he wanted to marry his daughter. According to him the accused in front of his wife had pleaded that he wanted to marry his daughter. He has stated that Raj Kumar had made no refusal to marry his daughter in his presence and that he was so told by his wife as conveyed to her by his daughter that Raj Kumar will not marry his daughter.
PW5 Smt. Asha W/o Hira Lal has deposed that her daughter 'S' i.e. prosecutrix was initially married in the year 2004 with one Hari Chand resident of Mahindra Park but her marriage could not work and was broken and after which she started living with them. She further deposed that the accused Raj Kumar is her State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 12 of 42 neighbour and who was initially residing in Dubai and had come from there and started visiting their house and her daughter informed her that Raj Kumar wanted to marry her. According to the witness, the prosecutrix told her that Raj Kumar developed intimacy and physical relationship with her but thereafter he refused to marry her and told that "tumhari jaisi pachason ghumti hain". Her daughter also informed her that accused Raj Kumar had given Dhokha to her. The witness has further deposed that on coming to know of it, she informed her husband Hira Lal and thereafter they took the prosecutrix to police station Rajouri Garden where her statement was recorded after which they all were sent to DDU hospital alongwith the prosecutirx where her medical was done and her statement was also recorded by the police.
In her cross examination by Ld. defence counsel, the witness PW5 has deposed that they went in the police chowki before the date of FIR in this regard, because the near relatives of Raj Kumar had threatened them saying that her daughter is having a bad name in society. According to her, she put her thumb impression under threat on some papers in police station by the relatives of Raj Kumar. She does not remember whether any other members of her family had signed any paper in the police station on that day. According to the witness, the divorce was effected through Women Cell and it was also effected through Panchayat. She does not State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 13 of 42 remember the date on which her statement was recorded by the police. She deposed that her daughter told her on 29.12.2006 that Raj Kumar had refused to marry her. According to the witness, prior to 29.12.2006 Raj Kumar has assured her that he would marry her daughter. The witness has further deposed that she cannot say how many times her statement was recorded by the police. She has deposed that when the report was lodged, her daughter i.e. prosecutrix and her husband were also present. According to the witness, she had asked parents of the Raj Kumar to get her daughter married with Raj Kumar and she had stated so prior to registration of the FIR. The witness has denied the suggestion that she had never asked the parents of Raj Kumar to get her daughter married with Raj Kumar. She further denied that Raj Kumar had never refused to marry her daughter. According to the witness, when Raj Kumar used to visit her house, she never objected to the same because he promised that he will marry her daughter.
PW10 Anoop Nagpal has deposed that he is working as Manager at Khati restaurant, Paschim Vihar, New Delhi and on 31.03.2007 also he was working as Manager at the aforesaid restaurant. According to him in this restaurant, the Banquet Hall is different and as it is a family restaurant and there are separate cabins for the customer in which one family can sit and can take meal, breakfast etc and only the waiter can have visit in the cabins during State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 14 of 42 the service. According to the witness, there is no space for staying in the said restaurant. The witness has deposed that the young boys and girls usually come to their restaurant and leave after taking their lunch or dinner etc. He has deposed that they do not maintain any record of the customers coming for breakfast, lunch, dinner etc. According to him he has no knowledge if any girl or boy has committed any wrong act inside the cabin of our restaurant.
(During examination of this witness, Addl. Public Prosecutor has pointed out that as per the statement of this witness recorded by the investigating officer on 31.03.2007 under Section 161 Cr.PC, this witness has stated that he has no knowledge of any wrong act committed upon the prosecutrix. The Addl. PP submits that the witness so examined and cited by the IO is in the nature of defence witness and he wants to drop this same and also seek permission to place the copy of this deposition before the DCP (west) to highlight the conduct of the investigating officer, to which counsel for the accused has no objection. The request of the Ld. Public Prosecutor was allowed and the witness was dropped with the observations that the testimony of this witness shall not read in to evidence.
PW11 Ms. Komal has deposed that she was previously residing at House No. 6/3, PNT Quarter, Jahangirpuri, Delhi and now having been married she residing at her matrimonial house. According to this witness, at the relevant time she was working in a Beauty Parlour and one boy by the name of Raj Kumar Yadav (present accused) used to come to her Parlour and treated her like a State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 15 of 42 sister. He has stated that, he also started to coming to her house and became known to her parents.. According to the witness, for some time he stopped to come her house but in the year 2004 he brought one girl 'S' (prosecutrix) at her house and when she asked as to who she was, he introduced the prosecutrix as a friend who was working with him. The witness has further deposed that after having tea, they left her house and stayed at her house for about 2025 minutes and there was no jhagra or hot talk between Raj Kumar and prosecutrix.
(During examination of this witness, Addl. Public Prosecutor has pointed out that as per the statement of this witness recorded by the investigating officer on 31.3.07 u/s 161 Cr.PC she has stated that she had no knowledge of any wrong act committed upon the prosecutrix. The Addl. PP submits that the witness so examined and cited by IO is in the nature of defence witness and he wants to drop the same and also seek permission to place the copy of this deposition before the DCP (West) to highlight the conduct of the investigating officer. The counsel for the accused has no objection to the same. The request of the Ld. Public Prosecutor was allowed and the witness was dropped with the observations that the testimony of this witness shall not read in to evidence.
PW14 Mom Raj Singh has proved the original record of the prosecutrix 'S' and as per the entry at Serial No. 2080/4122 dated 02.07.2001, the date of birth of the prosecutrix is 20.07.1986. According to the witness, at the time of admission, the prosecutrix was residing at House No. 53, Paryog Vihar, Hari Nagar, New Delhi. State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 16 of 42 The witness has further deposed that as per record the said 'S' left the school on 14.09.2001 and the school leaving certificate was issued to her. The witness has proved the copy of secondary school examination 2001 Ex.PW14/A and the photocopy of the relevant entry of the said register as Ex.PW14/B1 & Ex.PW14/B2. The witness was not cross examined on behalf of the accused despite an opportunity in this regard.
Medical evidence / witnesses:
PW2 Dr. Poonam Lal, Specialist Gynae, DDU Hospital, has proved / identified the handwriting and signatures of Dr. Arpita, Senior Gyane having worked with her. According to the witness, on 2.1.2007 the prosecutrix 'S' was referred to the Gynae. Department by Dr. Ankush Mehta SR Casualty and had been examined by Dr.Arpita vie MLC Ex.PW2/A bearing the signatures of Dr. Arpita at point A. The witness has further deposed that Dr. Arpita examined the patient who had given the history of regular intercourse since two and half years with a boy with whom she had an affair and no history of intercourse with a person with whom she was previously married to. The witness has proved that on examination, the hymen was torn, vagina admitted two fingers easily and no external injury has been mentioned and after examination, vaginal swab was prepared, undergarments sealed and handed over to InCharge, Rajni. The witness was not cross examined by the accused despite opportunity. State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 17 of 42
PW3 Dr. Dhananjay Kumar, Medical Officer, DDU Hospital, has deposed that on 15.01.07 he was posted as CMO, DDU Hospital and on that day at about 10:30 am one Raj Kumar Yadav, 24 years male, was brought by Ct. Man Murad for medical examination with alleged history of accused of sexual assault. He had examined Raj Kumar Yadav vide MLC No. 1039 which is Ex.PW3/A bearing his signatures at point A and had opined that there is nothing to suggest that the accused cannot perform sexual intercourse. He also collected semen sample of the patient Raj Kumar and handed over to Ct. Man Murad after sealing the same. He also had taken undergarments of the patient Raj Kumar Yadav and sealed it and handed over to Ct. Man Murad. PW3 has also proved and identified the signatures of Dr. Ankush Mehta on the MLC No.19, Ex.PW2/A of prosecutrix . at point B. Police witnesses:
PW6 ASI Bijender Singh has deposed that on 2.1.2007 he was posted at police station Rajouri Garden as MHCM and on that day ASI Baljeet Singh had deposited two sealed pullandas sealed with the seal of CMO DDU Hospital alongwith the seal in the Malkhana and he had entered the same vide entry No. 5278, copy of which is Ex.PW6/A. Thereafter, on 16.1.2007 ASI Baljeet Singh had deposited two sealed pullandas sealed with the seal of CMO DDU Hospital alongwith the seal in the Malkhana which he had entered State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 18 of 42 vide entry No. 5315, copy of which is Ex.PW6/B. Thereafter, on 22.1.2007 Ct. Krishan Avtar took the aforesaid four pullandas alongwith sample seal to FSL Rohini vide RC No.11/21/07 and after depositing the same at FSL handed over him the receipt and the RC No. 11/21/07 is Ex.PW6/C. According to him, on 29.4.2007 Ct.
Ghanshyam brought the aforesaid four pullandas alongwith FSL results and handed over to him which he deposited in the Malkhana. The witness was not cross examined on behalf of the accused despite opportunity.
PW7 HC Balwan Singh has deposed that on 31.12.2006 he was posted at Chowki MIG Flat Rajouri Garden police station Rajouri Garden and on that day he alongwith ASI Baljeet Singh was present at Chowki MIG Flat Rajouri Garden where one . had lodged a complaint on the basis of which ASI Baljeet Singh prepared the tehrir and handed over to him which tehrir he took to the PS Rajouri Garden for registration of FIR No.1196/06 and after registration of the FIR, he came back to the Chowki MIG Flat Rajouri Garden alongwith copy of FIR and original tehrir and handed over the same to the ASI Baljeet Singh.
During this cross examination by Ld. defence counsel, the witness has deposed that he remained posted in the Chowki MIG Flat Rajouri Garden for almost two years but cannot tell about the period of his posting till 31.12.2006. He is also unable to tell if prosecutrix State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 19 of 42 was accompanied by anybody else or not. He does not know whether prosecutrix had also came to the Chowki before 31.12.2006 or not. According to him when he took the tehrir, he was alone and he went on his motorcycle to the police station Rajouri Garden and it took him 1015 minutes to reach there and handed over the tehrir to the duty officer. He has deposed that he has no other personal knowledge about this case.
PW8 HC KrishanAvtar has deposed that on 22.1.2007 he was posted at Chowki MIG Flats Rajouri Garden, PS Rajouri Garden and on that day on the instructions of the IO ASI Baljeet Singh he took four pullandas alongwith sample seal to FSL Rohini vide RC No.11/21/07 and after depositing the same at FSL handed over the receipt to the MHCM. This witness was not cross examined by the counsel for the accused despite opportunity.
PW9 L/Ct. Rajni has deposed that on 31.12.2006 she was posted as constable at police station Rajouri Garden and on that day on the instructions of investigating officer ASI Baljeet Singh, she accompanied prosecutrix to DDU hospital for her medical examination but she refused for the same on that day. According to the witness, on 02.01.2007 again on the instructions of investigating officer ASI Baljeet Singh, she accompanied the prosecutrix to DDU Hospital for her medical examination and the doctor handed over two sealed pullandas duly sealed with the seal of the hospital and the State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 20 of 42 MLC which she handed over to the investigating officer ASI Baljeet Singh on the same day who seized the same vide memo is Ex.PW9/A bearing her signatures at point A. According to the witness, the prosecutrix was handed over to her mother on the same day as she wanted to go with her parents. In her cross examination, the witness has deposed that at the time when the prosecutrix was taken to the hospital on both days her mother was with her.
PW12 Ct. Manmurad Rana on 31.12.2006 he was posted at Police post MIG flats, PS Rajouri Garden and he along with ASI Baljeet Singh started search for the accused Raj Kumar and while searching they reached at Paryog Vihar, Hari Nagar where the prosecutrix met them and they along with her reached House No. 57, Paryog Vihar. According to the witness, the accused Raj Kumar was found standing in front of his house and the prosecutrix has identified him as the same person who committed rape upon her on the pretext of getting married with her after which Raj Kumar was apprehended and arrested in this case vide memo Ex.PW1/G bearing his signatures at point A and personally searched vide memo Ex.PW1/H which also bears his signatures at point A. According to the witness, he took the accused Raj Kumar Yadav to DDU hospital for his medical examination and took two sealed parcels containing exhibits of accused duly sealed with the seal of hospital and sample seal and same were handed over to investigating officer who took the same State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 21 of 42 into possession vide seizure memo Ex.PW12/A bearing his signatures at point A. This witness was not cross examined on behalf of the accused despite opportunity in this regard.
PW13 SI Baljit Singh has deposed that on 31.12.2006 he was posted as ASI in PS Rajouri Garden and on that day complainant 'S' had come in the police port MIG Flats, police station Rajouri Garden and has given her statement Ex.PW1/A on the basis of which he prepared the rukka Ex.PW13/A and sent the the same to the police station through Ct. Balwan for getting the case registered. He has further deposed that he thereafter sent prosecutrix 'S' to DDU Hospital through Lady Ct. Rajni alongwith her mother Smt. Asha and the prosecutrix had refused to get her medical examination conducted vide MLC Ex.PW1/E. He recorded the statement of mother of prosecutrix and Ct. Rajni. According to him, Ct. Balwan brought the FIR and original rukka and handed over to him the same, copy of FIR is Ex.PW13/B. The witness has deposed that he is well conversant with the handwriting and signatures of the then Duty Officer HC Ram Avtar Singh and has identified his signatures at point A on the FIR Ex.PW13/B. According to the witness, on 2.1.2007 the prosecutrix was again sent to DDU Hospital for her examination through Ct. Rajni and on that day her medical examination was done vide MLC Ex.PW2/A. He took two parcels State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 22 of 42 and one sample seal duly sealed with the seal of hospital from Ct. Rajni which were seized be him vide memo Ex.PW9/A bearing his signatures at point B. The witness has further deposed that on 2.1.2007 the prosecutrix was produced before the Ld. MM for getting her statement recorded under Section 164 Cr.P.C and his application to this effect is Ex.PW13/C bearing his signatures at point A. He also took the photograph (Mark as A & B), photocopy of the school certificate (Mark C & D) and love letter (Ex.PW1/B running into three pages and the aerogramme/ envelope is Ex.PW1/C) into possession vide memo Ex.PW1/D bearing his signatures at point A. The witness has further deposed that on 9.1.2007 the statement of the prosecutrix was recorded by the Ld. MM which is Ex.PW13/D bearing his signatures at point A and he moved an application seeking a copy of the statement under Section 164 Cr.P.C which is Ex.PW13/E bearing his signatures at point A and received the copy of the said statement. According to the witness, he again started the investigations on 15.1.2007 and on that day he along with Ct. Man Murad and prosecutrix . reached at Paryog Vihar where they found the accused Raj Kumar standing at the door of his house and the prosecutrix had identified him as the same person who committed rape upon her on the pretext of getting her married with him and at the instance of the prosecutrix, the accused Raj Kumar was arrested State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 23 of 42 in this case vide memo Ex.PW1/G and personally searched vide memo Ex.PW1/H and was also medically examined vide MLC Ex.PW3/A. The witness has further deposed that he also collected the exhibits taken by the doctor from accused Raj Kumar, duly sealed with the seal of hospital from Ct. Man Muran and seized the same vide seizure memo Ex.PW12/A bearing his signatures at point B. The witness has deposed that, the accused was produced before the concerned court and was sent to judicial custody after which he recorded the statement of witnesses. According to the witness, on 22.1.2007, he sent the exhibits of this case to FSL Rohini through Ct. Krishan Kumar and thereafter he prepared the challan and filed the same in the court through SHO. The witness was not cross examined on behalf of the accused despite opportunity in this regard. Statement of accused & defence evidence:
After completion of prosecution evidence the statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to the accused which he denied. The accused has examined as many as five witnesses in his defence.
DW1 Raj Kumar (accused) has deposed that he is residing in that area since last 20 years. According to him on 15.08.2002 he went to Behrin for a job and returned back on 26.09.2004 and stayed in India for about one or two years. He has State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 24 of 42 deposed that the prosecutrix used to reside in his locality in House Number 53 and used to talk to him being a neighbour. He has further deposed that on 07.04.2006, he and other members of the locality organized a Jagran in the area in which the prosecutrix was photographed with him which photograph has been misused in the present case by her. The witness has further deposed that the prosecutrix was married on 09.05.2004 with one Hari Chand who was resident of Uttam Nagar and after 78 days of the marriage she ran away from her matrimonial house with some other person and thereafter she has been left by her in laws and since then she is living with her parents. The witness has further deposed that sometimes he helped her by dropping her to her office at Hari Nagar, being a neighbourer and also helped her by giving her some money also.
According to the witness, thereafter he went to Yamen on 19.04.2006 and she wrote some letter to him in Yamen which he replied properly and now she is taking advantage of the said letters to falsely implicate him in this case. He has further deposed that on 06.12.2006, he again returned to India when she started demanding money from him and threatening him to marry her or else she will implicate him in a case. The witness has further deposed that, a complaint case under Protection of Women from Domestic Violance Act was also been filed by the prosecutrix which case is pending in the court of Ms. Jyoti Kler, Ld. MM, Tis Hazari Courts, Delhi, State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 25 of 42 certified copy of the said case is Ex.DW1/A in which she is demanding Rs.1,00,000/ and Rs.20,000/ per month from him .
During his cross examination by Ld. Addl. PP for the state, this witness has deposed that he was not on visiting terms in the house of the prosecutrix. He has admitted that the house of prosecutrix was situated after three houses from his house. He has denied the suggestion that he was visiting terms in the house of prosecutrix being his neighbour. He has admitted that he know her father namely Hira Lal who is working in Delhi Jal Board and her mother is house wife and that the family of prosecutrix did not come in his house. The witness has deposed that they do not go the house of any neighbour nor any person come in their house. According to the witness, the prosecutrix was married with Hari Chand in his absence when he was in Behrain. The witness has deposed that he never met Hari Chand after the marriage nor he know his house. According to the witness, the prosecutrix after her marriage ran away with one Sonu who was also residing in the same locality and he knew him as a neighbour but he is unaware that when she came back. According to the witness, the father of prosecutrix made a complaint to the police regarding taking away of his daughter by Sonu in the police station Rajouri Garden but he does not know the fate of that complaint and its date. In reply to the question that if there were no visiting terms between the family of prosecutrix and his family and State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 26 of 42 when he had never gone to the house of the prosecutrix, why he (witness / accused) helped the prosecutrix by giving her some money and by dropping her at her office at Hari Nagar. On this, the witness / accused stated that he was not having any relation with the prosecutrix and he only left her office and took her from her office only being neighbour. According to the witness, he had given her sometimes Rs.2,000/ and sometimes Rs. 5,000/, but she did not return the said amount back. The accused is unable to give the date when he gave the said amount to the prosecutrix nor he can produce any document or witness to prove that he had given the said amount to her. He has denied the suggestion that he had allured the prosecutrix and took her at the house of Komal and committed rape upon her. He further denied that he had taken her at various places /restaurant. The witness/ accused has admitted that he knew Komal sister of his friend who is residing in Janakpuri. According to the witness, he did not make any complaint to the police regarding threat given by the prosecutrix, nor he made any complaint regarding threat of false implication by the complainant in some false case, to any police official or higher authorities either verbally or in writing. He has denied the suggestion that he is making a false allegations against the complainant regarding her threat to implicate him in false case or regarding demand of money from him, therefore, he did not make any complaint before the complaint of prosecutrix in this case. State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 27 of 42
DW2 ASI Jai Prakash has brought the record i.e. copy of FIR No. 162/2010 which is Ex. DW2/A which FIR was lodged by one Ramesh Chand S/o Sh. Shetu Ram and per the record the FIR was lodged against Sh. Heera Lal, Asha, and Sunita and the charge sheet of the present FIR has been filed in the court.
In his cross examination by Ld. Addl. PP for the state, this witness has deposed that he does not know computer typing. According to him said FIR was recorded by Ct. Pramod the then operator. According to him the complaint had come U/s 156(3) Cr. P. C. He does not know as to who was the complainant in that case as he has not come in the police station.
DW3 HC Moti Ram has brought the summoned record i.e. original DD register bearing DD No. 49B dated 24.07.2009 copy of which is Ex.DW3/A bearing signatures of complainant at point A. In his cross examination by Ld. Addl. PP for the state, the witness has stated that he was not the DD writer of the said DD however he was Duty Officer.
DW4 Ramesh Chand has deposed that he is residing in the area for the last about 20 years and his brother Heera Lal is residing in the same locality in the House No. 53 who is having four daughters and one son. According to him, he is not having any cordial relation with his brother Heera Lal. He has deposed that he and his family member did not join the marriage of the prosecutrix State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 28 of 42 but according to him after 78 days of the marriage, she ran away from her matrimonial house with some unknown person. The witness has further deposed that, on 16.04.2009 his brother Heera and his family members including his wife Asha, his daughters Sunita and the prosecutrix came to his house at about 12 midnight and beaten him and his family members after which he reported the matter to the police but no action was taken by the police in this regard after which he filed a complaint case U/s 156(3) Cr. P. C. in the court and thereafter an FIR in this regard was lodged copy of which is Ex.PW2/A, and copy of Medical record is Ex.PW4/A. He has also deposed that Heera Lal and his family members threatened him to withdraw the case. He has further deposed that when he did not withdraw the FIR, he was falsely implicated in a false case U/s 354 IPC. According to him he had filed a representation with the SHO police station Rajouri Garden, New Delhi in this regard copy of which is Ex.PW4/B. The witness has further deposed that the accused Raj Kumar is his neighbour who is a gentle man. He has deposed that he does not have much knowledge about the present case but it is a false case and accused Raj Kumar has been falsely implicated in this case as Heera Lal and his family is having a habit to lodge false cases against innocent persons. He has further deposed that prosecutrix has also lodged a false case before the Delhi Women Commission, Delhi which is still pending.
State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 29 of 42
This witness (DW4) in his cross examination by Ld. Addl. PP for the state, has deposed that his parents are living at village at Allahabad. He has stated that he is having good relation with parents parents but his brother Heera Lal is not having good relation with them. He has denied the suggestion that he is not having good relation with his parents and for this reasons they are residing separately from him. He has admitted that he is not on talking terms with his brother since 2004 and has not met him ever since 2004 and he is not on visiting terms with him. According to him his niece (prosecutrix) had run away with the boy named Sonu who is his neighbour but he is unable to tell the name of the father of Sonu or his address. He has denied the suggestion that there is no person by the name of Sonu and for this reasons or that he is unable to give his particulars before the court. According to this witness, a case U/s 354 IPC was also registered against him upon the complaint of the prosecutrix. He has denied the suggestion that it is for this reasons in order to save himself and to take revenge from prosecutrix that he is deposing before the court in favour of the accused and against the prosecutrix. He has denied the suggestion that there was a property dispute in connection with his shop with brother his Heera Lal and it is for this reasons that he has come to deposed against him. He has stated that Heera Lal has also started the business of flower in his neighbourhood. He has admitted that he is on friendly terms with Raj State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 30 of 42 Kumar as he is his neighbour but he has no relationship with him and he is from a different caste. He has denied the suggestion that he regularly sits with Raj Kumar and consume alcohol with him or that he and Raj Kumar had an evil eye on the prosecutrix from the very beginning and it is for this reasons that cases have been registered against both of them. He has further denied the suggestion that he had created a problem for the prosecutrix in the neighbour.
DW5 Smt. Kala Wati has deposed that she is residing with her two sons namely Raj Kumar & Vijay. According to her, Raj Kumar had initially gone Bahrain for employment where he stayed for about 2 years 10 days and Vijay has also remained with him. She has deposed that there was no interaction between her son Raj Kumar and the prosecutrix at any point of time and that the prosecutrix never used to come to her house. According to the witness, when her son came from abroad the prosecutrix started visiting her house and she had warned her son that he should not have interaction with prosecutrix. According to the witness the prosecutrix used to trouble her and threatened her in respect of which she made a complaint to the police which complaints are Ex.DW5/A & Ex.DW5/B. According to the witness, she has left her house out of her fear since the prosecutrix abuses her publicly due which reason she was compelled to stay with her mother after the incident. State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 31 of 42
In her cross examination by Ld. Addl. PP, DW5 has deposed that she is residing in that area for the last more than 20 years and admits that family of prosecutrix is also residing there since the very beginning. According to her, she has never had any dispute with the family of prosecutrix except on one occasion when there was a dispute in relation to a plot. She has admitted that the prosecutrix had made a complaint against some boys of the neighbourhood but she is not aware of the complaint and when the boys of the neighbourhood were picked up. According to her, it was in connection with her missing report lodged by her father in police station when she went missing after her marriage but at that time her son Raj Kumar was abroad. She has denied the suggestion that her son exploited the situation of prosecutrix and started approaching her. She has further denied the suggestion that her son physically abused and used the prosecutrix taking advantage of her circumstances and when she insisted upon marriage, he refused. She further denied that her son had given a proposal for marriage to the prosecutrix and her parents and it is on account of her (DW5's) refusal to accept the relationship that he ultimately refused to marry the prosecutrix on account of which the problem arose. The witness has further denied the suggestion that there was a dispute in their family that her son Raj Kumar initially marriage to the prosecutrix as he had made physical relation with her but since she was already State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 32 of 42 married and had not obtained the divorce, they were averse to this relation. The witness has further denied the suggestion that it is for this reasons that she wanted to keep her son away from the prosecutrix that she shifted to her mother's house. The witness has further denied that she had made false complaints Ex.DW5/A & Ex.DW5/B only as a counter blast.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. defence counsel. I have also perused the testimonies of various witnesses and considered the written synopsis/ memorandum of arguments filed on behalf of the accused persons.
Identity of the accused:
In so far as the identity of the accused is concerned, there is no dispute since the accused was previously known to the prosecutrix being her neighbour and residing in the same area. He has identified by the prosecutrix in the court also. Age of prosecutrix:
It is the admitted case of the prosecution that the prosecutrix was a major at the time of the incident. She was married with one Hari Chand which marriage had failed on account of which State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 33 of 42 she had returned to her parental house and at the time of the incident she was between 20 to 21 years of age.
Inducement / enticement:
The case of the prosecution is that the accused had developed friendly relations with the prosecutrix and promised to marry her and used to take her out at various places restaurants etc. and even used to drop her at her office during which period he expressed his love with her and made physical relations with her at the house of Komal without the consent of the prosecutrix. In this regard the testimony of the prosecutrix who has been examined as PW1 is relevant. According to her after about one and half months after the accused met her first time, the accused took her to the house of Komal whom claimed herself to the sister of the accused, where the accused made physical relations with her without her consent and when she resisted, he also torn her salwar on which she told that she would tell her parents on which the accused cut the veins of his wrist and expressed his love for her and told that she should not tell the incident to anybody or he will commit suicide and promised to marry her. According to the prosecutrix, she did not meet him for the period of one week but the accused tried to commit suicide by consuming pheynol and regularly kept meeting her and even used to drop and pick her from her house. She has deposed that almost on alternative State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 34 of 42 days he maintained sexual intercourse with her at various houses of his friends, restaurant, etc. and claimed that he would marry her. According to the prosecutrix, on 16.4.2006 accused left for Yeman expressing his promise that he will returned and marry her and on 5.12.2006 when he came back he procrastinated the issue of marriage and on 25.12.2006 he took her to a restaurant at Paschim Vihar and again committed sexual intercourse with her without her consent and also gave a slap blow to her after which refused to marry her.
According to the prosecutrix on 28.12.2006 the accused again called her and told that he will not marry her because his parents were not agreeing and it was for this reason that on 29.12.2006 she narrated the entire incident to her mother who confronted the accused with the same but the accused stated that he only know the prosecutrix as a neighbour and had no relations with her. The complaint made by the prosecutrix has been duly proved as Ex.PW1/A. The prosecutrix has also proved her statement under Section 164 Cr.PC which is Ex.PW1/F and according to her after the arrest of the accused his family members i.e. his maternal uncle (Mama), cousin Sunil and father of accused have been threatening her on which a kalandra under Section 107/151 Cr.PC was registered. In her cross examination the prosecutrix has stated that her marriage with Hari Chand was not consumated since she stayed with him for six to seven days and it was some dispute regarding dowry and they were State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 35 of 42 separated as per the social understanding. She has denied having taken any amount from the accused or the fact that the accused did not commit any sexual act with her. She has further denied that both the accused and she had spoken to her parents who had declined the marriage and that the parties had quarreled with each other. She has denied the suggestion that on 10.12.2004 she was called to the police station Rajouri Garden to discuss the matter and issue of marriage and that her parents stated that they did not want her to marry the accused as they were neighbours. She has admitted in her cross examination that she used to travel with the accused with her consent and has admitted that on 31.12.2006 when she went to the police station she was accompanied by her parents.
It is evident from the above statement of the prosecutrix that the physical relations made by the accused with her, who was an adult appears to have been consensual, though it is a different matter that it was done by the accused with an understanding given by the accused that he would marry the prosecutrix. The prosecutrix is an adult and to say that at the first instance the accused committed sexual intercourse against her wishes and had torn her salwar at the house of Kimal, does not inspire confidence of this court since had this been the case, when she returned to her house in torn condition of her salwar, her parents or any other person who would have seen her in that condition, would have questioned her on it, which State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 36 of 42 surprisingly did not happen. Further, despite this incident, she continued her relationship with the accused and at no point of time objected to him not to meet her or to come to her office to pick up rather it appears that both the accused and the prosecutrix had been maintaining the consensual relationship and it was for this reason that later perhaps on account of the background of the prosecutrix since she had been separated from first husband by social understanding and not by order of the court, that the marriage between the parties could not be materialized. The fact of maintaining the relationship with the prosecutrix is borne out and stands corroborated not only by the statement of the prosecutrix which finds due corroboration from the photographs and letters placed on record which according to the accused were forged but he has not lead any evidence to prove the said forgery. The testimony of the prosecutrix finds due corroboration from the testimony of her parents i.e PW4 Hira Lal and PW5 Asha.
Defence of the Accused It is evident from the statement of the accused recorded under Section 313 Cr.PC the parents of the prosecutrix have even lodged a complaint in the police station that their daughter is not in their control and wants to marry the accused and that the accuse and his parents were opposing the marriage and that had also stated State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 37 of 42 further that prosecutrix had also married with Hari Chand of Uttam Nagar. He has also examined himself as his own witness as DW1 wherein he has admitted that the prosecutrix used to reside in the locality and the photographs placed in the court are only to mislead the court in the present case which had been taken in one Jagran organized in the area. He has also stated that being a neighbour he used to drop her to her house or used to give her certain money and after he went to Yeman, the prosecutrix had written him some letters which he replied and now she is taking advantage of the same. He has also made allegations against the prosecutrix of her having run away with one Sonu but was not able to substantiate these allegations by any documentary record and appears this has been done only as a defence. The defence of the accused does not inspire confidence of this court. The photograph show the extent of intimacy between accused and the prosecutrix and even the letters placed on record which according to him were only reply to the letters written by the prosecutrix to show that his relationship with the prosecutrix 'S' was highly intimate. The accused also examined the paternal uncle / chacha of the prosecutrix namely Ramesh Chand as DW4 as his witness who has levelled allegations against the complainant / prosecutrix of engineering the story, since she had also made similar allegations against him. It is evident that the accused is trying to take the advantage of the differences between the father of the prosecutrix State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 38 of 42 and his brother who are already into a property dispute or else there was no reason for him (DW4) to come to the court and make allegations which he would not be able to substantiate. In fact, DW4 He has admitted that he has friendly terms with the accused Raj Kumar and that he had been creating problem for the prosecutrix due to which reason she was compelled to make the complaint against him even to the Women Commission.
FINAL FINDINGS I may observe that the Indiana State has specifically codified the law relating for breach of promise to marry, which entitles the aggrieved parties to the proceedings to assert misconduct and claim compensation. The position in India is however different. Apart from making a claim for compensation and torturous liability, the accused can be held responsible for penal consequences.
In a recent judgment, the Hon'ble Apex Court has ruled that it is a cheating and not rape when a man who has had sex with a woman after promising marriage does not keep his word. It has been observed that a woman's consent is vitiated if a man makes representation of marriage deliberately to elicit a woman's assent for an intercourse. To accuse a man, it is necessary to establish that the very inception of making a promise to marry, he did not entertain the intention of marrying the woman and the promise was a mere hoax. State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 39 of 42 Then, under these circumstances the consent ostensibly given by the victim will be no avail to the accused to exculpate him from the ambit of Section 375 of Indian Penal Code.
N. P. Feinsinger in his paper "Current Legislation Affecting Breach of Promise to Marry, Alienation of Affections, and Related Actions" has observed that public has been objecting to the injustices allege to resulted from actions of breach of promise to marriage, seduction, alienation of affections and criminal conversation and it is this sentiment which has now been crystalized in the form of statute in the State of Indiana (USA) with New York and Illinois following the suit and ten other States including Wisconsin considering similar actions. Since the law of blackmail or extortion is ineffectual to remedy the evil.
In the present case, the evidence on record reveals that the prosecutrix had been wronged but the investigations carried by the investigating officer are totally lacking on the aspect of receipt, cheating. The investigation do not show the time when the promise of marriage was made and the breach thereof and whether the accused had any intention of marrying the prosecutrix from the very inception as the promise was a mere hoax.
Further, the letters written by the accused to the prosecutrix have been admitted by the accused but according to him, they were only to response to the letters written by the prosecutrix. State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 40 of 42 The question which arises and requires investigations, is what was the occasion for the prosecutrix to write such letters. Further, the photographs placed on record have already been admitted by him but in a different context and according to him they were taken at a public function i.e. a Jagran organized at a house, though these photographs revealed very intimating relationship. This was an aspect which was required to have been inquired into and investigated since the photographs reflect the extent of intimacy between the parties, but was not done. It is further admitted by the accused that he used to often leave the prosecutrix at work and pick up her, which according to him he was doing as a good neighbour. It was necessary under these circumstances that the prosecution should have examined the persons associated with the prosecutrix in her office who would have been a witness to such a conduct of the accused which again the investigating officer did not investigate. Further, allegations of the earlier complaint on behalf of the parents of the prosecutrix regarding her eloping with some boy, are also required to be confirmed, which is not done.
In view of this background, I hereby hold that the prosecution has not been able to prove and substantiate the ingredients of Section 366 and 376 Indian Penal Code for which benefit of doubt is being given to the accused Raj Kumar who is hereby acquitted. This is, however, without prejudice to the rights of State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 41 of 42 the prosecutrix to avail her other legal remedies both civil and criminal on the aspect of cheating and to claim damages in accordance with law. Accused is on bail, his bail bond is cancelled and surety is discharged. Documents of surety be returned, after cancellation of endorsement, if any.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 24.2.2011 ASJ (NW)II: ROHINI State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 42 of 42 State Vs. Raj Kumar FIR No. 1196/06 PS Rajouri Garden 24.2.2011 Present: Addl. PP for the State. Accused Raj Kumar on bail with Sh. M.S. Baliyan Advocate. Vide my separate detailed judgment dictated and
announced in the open court, the accused Raj Kumar is acquitted of the charges under Section 366 and 376 Indian Penal Code. This is, however, without prejudice to the rights of the prosecutrix to avail her other legal remedies both civil and criminal on the aspect of cheating and to claim damages in accordance with law. Accused is on bail, his bail bond is cancelled and surety is discharged. Documents of surety be returned, after cancellation of endorsement, if any.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJII(NW)/ 24.2.2011 State Vs. Raj Kumar, FIR 1196/2006, PS Rajouri Garden Page 43 of 42