Delhi District Court
State vs . Nand Kishore S/O Sh. Kabul Singh on 15 May, 2012
1
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 11/12
Unique Case ID No. 02405R0364312011
FIR No.10/11
PS Jafapur Kalan
State Vs. Nand Kishore s/o Sh. Kabul Singh
Flat No. 61, Pocket-6/3, DDA Flats,
Naseerpur, Delhi.
15.05.2012
ORDER ON CHARGE
1.The accused, a doctor by profession and presently Assistant Project Director in Chaudhary Brahm Prakash Ayurvedic Charak Sansthan, Khera Dabar, Delhi has been charge sheeted by the Police for having committed offences punishable u/s 376 (D)/506 IPC. It is alleged that the accused has committed rape upon Class-IV employee of the hospital i.e. prosecutrix and then threatened her that she would be killed if she made any IIIrd person aware about their relations.
2. As per the prosecution case, the police machinery was set into motion in this case by the prosecutrix on 2.3.2011 when she filed a written complaint in PS Jafarpur Kalan. The prosecutrix had stated in the complaint that she is a widow aged about 25 years and having five years old son. She has been employed as a class IV employee in the hospital for the past 6 to 7 months. After SC No.11/12 Page 1 of 16 2 15 to 20 days of getting the said job, the accused called her to his office and asked her about the death of her husband, her family and also made comments about her beauty. Accused took her mobile as well as residence telephone number. From that day itself, the accused started calling her from different telephones and started forcing her to have physical relations with him. On her refusal to oblige him, he threatened her to remove her from job. One day accused called her to his office, closed the door, made obscene gestures and committed rape upon her while assuring to make her job a permanent one. She had been subjecting herself to the lust of the accused for the past several months, being scared of him as he used to threaten her. After several months, she realised that the accused is sexually abusing her, taking advantage of her situation and she got suspicious that he would not regularise her job. Accordingly, she started recording their conversation over telephone. When the accused came to realize that she is taping their telephonic conversation, he called her to his office and threatened her that he would get her killed. He also threatened her that he would get her implicated in a false case and she would be thrown out of the job.
3. Alongwith the aforesaid written complaint, the prosecutrix also submitted two audio CDs containing the taped conversation between herself and the accused. It may be noted here that the aforesaid written complaint of the prosecutrix contains an endorsement on the next page in her own handwriting SC No.11/12 Page 2 of 16 3 and bears her signatures stating that the complaint has been written by one Raj Kumar s/o Sant Ram at her instance. She further made a clarification that on the date of incident i.e. 12.2.2011, the accused caller her to his room in the hospital at about 2.30 pm for some work and then committed rape upon her.
4. On the basis of the aforesaid complaint, FIR No. 10/2011 was registered in the police station u/s 376 (D)/506 IPC and the investigation was entrusted to the WSI Sudesh. During the course of investigation, the prosecutrix was got medically examined on 4.3.2011. Her nail clippings, blood sample, urine sample, oral wash saline, vaginal wash, pubic hairs, vaginal swab, rectal swab and vaginal smear were preserved by the doctor which were later on sent by the IO for forensic examination. The IO also seized the three seats of the sofaset, from the office of the accused in the hospital at the instance of the prosecutrix as according to her, she had been raped by the accused on the said sofaset. The accused was also got medically examined in RTRM Hospital, Jafarpur on 20.04.2011. The prosecutrix was also produced before the concerned Magistrate who recorded her statement u/s 164 Cr.P.C. The accused came to be arrested on 20.5.2011.
5. After the completion of the investigation, the charge sheet was laid before the concerned Ilaka Magistrate.
SC No.11/12 Page 3 of 16 46. I have heard ld. APP for the State, ld. counsel for the accused and have perused the entire material on record. Both of them have taken me through the judicial file extensively in order to bring home their respective submissions. Ld. APP tried to convince me that prima facie charge u/s 376 (D)/506 IPC are made out against the accused whereas the ld. counsel for the accused strenuously argued that no charge is made out against the accused and he is liable to be discharged. According to ld. Counsel for the accused, the allegations against the accused are absolutely false and motivated and he has been got implicated falsely in this case by his rivals in the Hospital, who do not want the accused to be promoted to the post of Director of the Hospital, to which he is otherwise entitled to.
7. Before analyzing the rival submissions of the ld. counsels and the record of the case, be it noted that the prosecutrix is no more. She has committed suicide on 18.5.2011.
8. It is a trite law that court is not required to frame the charge at the mere asking of the prosecution. It has to direct its judicial mind to the question as to whether or not the charge is required to be framed. Framing of charge is not a mere formality or a mere dressing on the salad. The Court has to give reasons for coming to the conclusion that prima facie case has been made out against the accused. It is also true that at the stage of framing of charge, probative value of the material on record cannot be gone SC No.11/12 Page 4 of 16 5 into, the material brought on record by the prosecution has to be accepted as true at that stage. However, it has been held by the Supreme Court in a number of judgments that the court can evaluate the material and documents on record for the limited purpose of getting the satisfaction about the existence of sufficient ground for framing of charge against the accused.
9. The Supreme Court, after referring to its several earlier decision, in Union of India Vs. Prafulla Kumar, AIR 1979 SC 366 held as under:-
"Thus on a consideration of the authorities mentioned above, the following principles emerge:-
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the un-doubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial:
(3) That test to determine a prima facie case would naturally depend upon the facts of each case SC No.11/12 Page 5 of 16 6 and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code, the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case. The total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
10. In 1996(3) C.C. Cases 52 (SC) titled as Satish Mehra vs. Delhi Admn & anr. it was held that :-
"Similar situation arises under Section 239 of the Code (which deals with trial of warrant SC No.11/12 Page 6 of 16 7 cases on police report). In what situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.
The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced SC No.11/12 Page 7 of 16 8 only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.
But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time, it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself".
11. In 1994 Supreme Court Cases (Cri)1701 titled as State of UP Vs. Dr. Sanjay Singh & anr., it was held that :-
"This Court in Century Spinning & Manufacturing Co. Ltd. Vs. State of Maharashtra while examining the scope of Section 251 (A) sub-sections (2) and (3) of the old Code corresponding to Sections 239 and 240 of the new Code has made the following SC No.11/12 Page 8 of 16 9 observation: (SCC p.291, para 17 AIR p.552 para 16) "....If on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the Section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."
12. The Supreme Court again in 2008 (10)SCC 394 SC No.11/12 Page 9 of 16 10 Yogesh vs. State of Maharashtra held that :-
"It is trite that words "not sufficient ground for proceeding against the accused"
appearing in Section 227 Cr.P.C. postulate exercise of judicial mind on the part of Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
However, in assessing this fact, the judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case depends upon the facts of each case and in this regard it is not feasible or desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if un-rebutted, make a conviction reasonably possible."
13. Now let me evaluate the material on record in the light of legal principles enunciated by the Supreme Court in the SC No.11/12 Page 10 of 16 11 aforesaid judgments.
14. As noted herein above, the prosecutrix had submitted a written complaint in the police station on 2.3.2011 against the accused. Admittedly, the complaint is not in her handwriting. However, the complainant has endorsed on the reverse of the complaint in her hand that it has been written by one Sh. Raj Kumar s/o Sh. Sant Ram at her instance. It is, therefore, apparent that the prosecutrix, could read and write Hindi language. There is no explanation why did not she write the complaint in her own hand and why did she chose Sh. Raj Kumar for the said job. How Raj Kumar was known to the prosecutrix, is not discernible from, either the complaint or in any other document on record.
15. I also find the contents of the complaint of the prosecutrix confusing and not very clear. On one hand, she claims to have been sexually abused by the accused for the past several months and at the same time she states that one day, accused called her to his office and committed rape upon her. She also gives the date of commission of rape upon her by the accused as 12.2.2011 in her endorsement on the reverse of the complaint. She nowhere explained what happened after 12.2.2011. Whether or not the relations continued between herself and the accused thereafter.
16. What seems to be more intriguing is that the SC No.11/12 Page 11 of 16 12 prosecutrix did not subject herself to the medical examination either on 2.3.2011, when she submitted a written complaint to the Police or on the subsequent date i.e. 3.3.2011. She ultimately got herself medically examined on 4.3.2011. She has not put forth any specific reason for not getting herself medically examined on 2.3.2011 and 3.3.2011. The MLC of the prosecutrix, prepared pursuant to her medical examination on 4.3.2011, nowhere mentions that she was subjected to sexual intercourse in the recent past.
17. On the other hand, the MLC of the accused, which had been prepared pursuant to his medical examination on 20.4.2011 mentions as under:-
"keeping in view the age and long standing diabetes mellitus of the person, the possibility of secondary male erectile dysfunction cannot be rule out. However, the final opinion regarding sexual potency will be given after the report of above mentioned tests is made available by the IO.
18. It may be noticed that the doctor, who examined the accused and gave aforesaid opinion, had advised following three tests to be conducted upon the accused:-
(i) Noclumat Lumrcues test SC No.11/12 Page 12 of 16 13
(ii) Intracoverneal injections tests (PGE)
(iii)Color duplex doppler ultrasound tests.
19. It was submitted by the IO that the aforesaid tests could not be conducted upon the accused as facility for conducting such tests is not available in Delhi. In view of the same, I do not find any concrete evidence on record regarding the sexual potency of the accused. The accused being about 60 years of age and suffering from diabetes disease for long, it is necessary to get prima facie satisfaction about his sexual potency, before charges for committing rape can be framed against him. In the absence of any cogent and reliable material on record in this regard, it would be gross miscarriage of justice to frame charges against the accused for having committed rape.
20. So far as the transcripts of the telephonic conversation, allegedly between the prosecutrix and the accused, which are on record, are concerned, these pertain to four dates i.e. 21.10.2010, 23.10.2010, 24.10.2010 and 25.10.2010. I have gone through these transcripts minutely. The conversations nowhere seem to be intimate or obscene, not even remotely. Further there is no evidence on record that the female voice in these transcripts is that of the prosecutrix, for the reason that the voice sample of the prosecutrix was never obtained by the IO for the purpose of comparison, during her life time. It may also be noted here that if we go by the contentions of the prosecutrix in her complaint that SC No.11/12 Page 13 of 16 14 she became suspicious about the conduct of the accused towards the end which would mean in January and February, 2011 when the accused lastly committed rape upon her and she started taping the conversation between the two, how come she recorded the telephonic conversation in October, 2010 on aforesaid dates. In that case she would have discontinued physical relations with the accused in October, 2010 itself, which is not the case. As per the own statement of the prosecutrix, accused last committed rape upon her on 12.02.2011.
21. The FSL result demonstrates that no semen could be found on the salwar of the prosecutrix and other samples which were collected by the doctor, who medically examined her on 4.3.2011. Similarly, no semen could be found during the FSL examination on the seats of the sofa-set which were seized by the IO, on which accused had allegedly raped the prosecutrix.
22. The above noted basic infirmities in the prosecution case demolish its very edifice and make it far from being true. These infirmities could have been cured by the unimpeachable testimony of the prosecutrix in Court. But alas, she is no more. Even if the case is put to trial, the prosecutrix cannot be brought to testify for the prosecution as she has already left for the heavenly abode. She would have been the star witness for the prosecution. Her evidence was the substantive piece of evidence SC No.11/12 Page 14 of 16 15 and that alone carried weight. Other documentary as well as oral evidence, which would be lead by the prosecution, would be only of corroborative nature.
23. Even if the infirmities in the prosecution case, as pointed out herein above, are ignored, still I find that it will only be a futile exercise to put the accused to trial in this case. Since the prosecutrix, who invariably is the main witness in cases relating to sexual offence, is not available for her deposition, it will be impossible for the prosecution to prove the charges against the accused and the trial would mean only sheer wastage of time and expense. No other witness cited by the prosecution in the charge sheet has witnessed the alleged sexual encounters between the accused and the prosecutrix.
24. In my opinion, it is highly unlikely that the trial, if conducted, would result in the conviction of the accused. Even if, the material on record remains unrebutted and is taken on its face value, still conviction would not be the result.
25. Upon meaningful assessment of over all facts and circumstances of the case, I am of the opinion that interest of justice would be best served in this case by discharging the accused.
SC No.11/12 Page 15 of 16 1626. Accordingly, the accused is hereby discharged of all the offences, for which he has been charged sheeted. Bail bond released. Surety discharged.
File be consigned to Record Room.
Announced in open (VIRENDER BHAT) Court on 15.05.2012. A.S.J. :Dwarka Courts New Delhi SC No.11/12 Page 16 of 16