Delhi District Court
State vs Sujeet Kumar Mishra on 29 April, 2017
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
SC No. 218/2017 Date of assignment : 14.12.2010
FIR No. 371/07 to the Sessions Court
PS: Mandawali Date of assignment : 05.04.2017
U/S:376,376/511 IPC to this court
Date on which arguments
were heard : 28.04.2017
Date of judgment : 29.04.2017
State Versus Sujeet Kumar Mishra
S/o Markandey Mishra
R/o E-104, 1st Floor,
Nandini Bhawan,
Sant Nagar, Burari, Delhi-84
Second Address:
B-49, 2nd Floor, Gali No.1, West
Vinod Nagar, Delhi.
JUDGMENT
1. Briefly stated the case of prosecution against the accused as enumerated in the chargesheet is that on 03.08.2007 vide DD No.41A, ASI Kanta Prasad alongwith Constable Raj Kumar went to LBS Hospital where they met the prosecutrix (name is withheld to protect her identity). The prosecutrix told them that accused Sujeet Kumar Mishra had done 'wrong act' with her. The SC No.218/2017 State vs. Sujeet Kumar Mishra page 1 of 23 brother of the prosecutrix was also at the hospital. The prosecutrix was got medically examined at LBS Hospital vide MLC No.169/07. The prosecutrix then filed her complaint against the accused wherein she stated as follows:-
(i) The prosecutrix aged about 26 years is a graduate from Calcutta University. She is doing a private job as a senior executive at a firm at Noida. The accused who was known to the prosecutrix through his friend was studying with her at Calcutta.
The accused told the prosecutrix that be belongs to Bihar. The accused used to come to the prosecutrix on Sundays for learning English language as he was weak in English. Thus the accused also became acquainted with the family of the prosecutrix. The accused advised the prosecutrix that she can earn good salary at Delhi. The prosecutrix was also thinking of shifting to Delhi.
(ii) On 04.07.2007, the prosecutrix alongwith the accused came to Sipalda Railway Station. Before their arrival at that railway station, the accused had taken Rs.25,000/- from the prosecutrix in the taxi saying that he would arrange a well furnished flat for her at Delhi. The prosecutrix and the accused reached Delhi. The accused was residing at West Vinod Nagar in a rented flat. The accused told the prosecutrix that he is going to his native place and thus she can reside in that flat. However, the accused did not go to his village and continued residing in the same flat.
(iii) In the night of 15.07.2007, the prosecutrix after dinner slept in a room at that flat. At about 4:00 AM, the accused knocked SC No.218/2017 State vs. Sujeet Kumar Mishra page 2 of 23 the door of the room of the prosecutrix on the pretext that he needs his clothes which are in that room. The prosecutrix did not open the door of her room. On this, the accused kicked the door due to which the bolt of the door was broken. The accused came inside the room and started misbehaving with her. The accused raped the prosecutrix against her will and consent. Due to fear of reputation, the prosecutrix did not disclose the incident to any person.
(iv) Thereafter one day the accused again raped her.
(v) On 02.08.2007 at about 8:15 PM, the prosecutrix came back from her office. Her brother who had come from Calcutta two days back had gone out of the flat along with a puppy (young dog). At that time, the accused came to her room and started behaving in indecent manner with her. He attempted to rape her but the prosecutrix resisted. She tried to make a call at 100 number but the accused snatched her mobile phone and threw the same on floor and her mobile phone was broken. The accused beat the prosecutrix. She went to LBS Hospital.
(vi) The accused had raped her against her will and consent. On 02.08.2007 also he had attempted to rape her. She requested that action be taken against him.
2. Further case of the prosecution is that on the basis of the above complaint, the present FIR under sections 376/506 IPC was got registered against the accused at police station SC No.218/2017 State vs. Sujeet Kumar Mishra page 3 of 23 Mandawali. During medical examination, the samples from the body of the prosecutrix were collected. At this time, the accused came to LBS Hospital to enquire about the health of the prosecutrix. He was taken in custody and was also got medically examined same day. The samples collected from the hospital during medical examination were sent to FSL, Rohini for chemical analysis.
3. After completion of investigation, the prosecution filed the present chargesheet under sections 376/506 IPC against the accused.
4. By order dated 29.11.2010, the learned Metropolitan Magistrate committed this case to the Court of Sessions.
5. Vide order dated 29.01.2011, a charge under section 376 IPC was framed against the accused. It is relevant to note here that this charge was confined to the alleged incidents dated 15.07.2007 and one other day, though there was a typographical error about the date of first incident. The charge was read over to the accused to which he pleaded not guilty and claimed trial. Vide order dated 31.01.2015, the date of alleged first incident in the charge was corrected to 15.07.2007 in place of 15.02.2007.
6. It is also seen from the record that on 04.02.2015 i.e. SC No.218/2017 State vs. Sujeet Kumar Mishra page 4 of 23 after the evidence on behalf of the prosecution had been completed, statement of the accused under section 313 Cr.P.C had been recorded and the deposition of the accused as a defence witness (the accused opted to be his own witness) was also completed, an application was filed by the prosecution under section 216 Cr.P.C for framing of an additional charge under sections 376/511 IPC in respect of the alleged incident dated 02.08.2007. My learned predecessor vide the order of the same date allowed the said application. An additional charge under sections 376/511 IPC in respect of the alleged incident dated 02.08.2007 was framed against the accused to which the accused pleaded not guilty. The learned judge also recorded the statement of learned Addl. Public Prosecutor to the effect that the State does not want to produce any further evidence in support of the additional charge. The learned defence counsel however stated that he wants to further cross examine the prosecutrix in view of the additional charge and therefore she be summoned for further cross examination. This request was allowed and prosecutrix (PW1) was directed to be re-summoned as a witness.
7. After substantial efforts, the prosecutrix appeared in this court on 02.01.2016 but on that day the accused was absent and an application was moved on his behalf for exemption from appearance on health grounds. That application was dismissed by my learned predecessor and non bailable warrants were issued SC No.218/2017 State vs. Sujeet Kumar Mishra page 5 of 23 against the accused. However, the prosecutrix thereafter did not appear in this court despite efforts made. Perusal of the ordersheet shows that the prosecutrix would have been aware of dates of hearing but she did not appear in the court. Ultimately vide order dated 21.01.2017, the evidence on behalf of the prosecutrix was closed and the case was put up for final arguments.
8. In support of this case, the prosecution has examined ten witnesses. PW2 to PW10 are public official who got involved with this case in their official capacity during investigation of this case. PW1 is the prosecutrix.
9. PW2-HC Jaiveer Singh had taken the accused to LBS hospital for his medical examination on 03.08.2007. He was handed over the MLC, sample seal and one sealed packet (pullanda) which he handed over to ASI Kanta Prasad who seized the same vide seizure memo Ex.PW2/A.
10. PW3-SI Sheopal Singh had recorded the present FIR No. 371/07 on receipt of rukka from ASI Kanta Prasad at 4:10 AM on 03.08.2007. Copy of FIR is Ex.PW3/A and rukka is Ex.PW3/B.
11. PW4-Dr. Mukta Rani, Associate Professor from Lady Hardinge Hospital, New Delhi deposed that on 03.08.2007 she was working at LBS Hospital. On that she had examined the SC No.218/2017 State vs. Sujeet Kumar Mishra page 6 of 23 accused vide MLC Ex.PW4/A. On examination of accused, she had opined that there is nothing to suggest that the accused was incapable to perform sexual intercourse.
12. PW5-Woman Constable Manju had accompanied ASI Kanta Prasad to LBS Hospital in the night of 02/3.08.2007. She deposed that the statement of the posecutrix at LBS hospital was got recorded in her presence. After medical examination of the prosecutrix, the doctor handed over the MLC, exhibits in sealed condition and sample seal of the hospital to this witness which she further handed over to Investigating Officer ASI Kanta Prasad vide seizure memo Ex.PW5/A.
13. PW6-Constable Raj Kumar had also accompanied ASI Kanta Prasad to the LBS Hospital in the intervening night of 02.08.2007 and 03.08.2007. He assisted ASI Kanta Prasad during investigation.
14. PW7-Dr. Tapasi Chatterji, CMO from LBS Hospital deposed that she had been deputed by Medical Superintendent, LBS Hospital in lieu of Dr.Deepa Seth as Dr. Deepa Sethi has left services at the hospital and her present whereabouts are not known. PW7 had seen Dr. Deepa Seth writing and signing and therefore she can identify her signature. She proved the MLC Ex.PW7/A of the prosecutrix. She deposed that MLC records that SC No.218/2017 State vs. Sujeet Kumar Mishra page 7 of 23 fresh injury marks were seen on the person of the prosecutrix. In her cross examination, this witness admitted that from the MLC Ex.PW7/A it appears that the prosecutrix was habitual of sexual intercourse.
15. PW8-Dr. Binod Kalita, Orthopaedic Specialist from LBS Hospital deposed that Dr. Bhupender Singh who had examined the accused had left the services of the hospital and the present whereabouts of Dr. Bhupender Singh are not known. He proved the MLC of the accused as Ex.PW8/A. On the basis of MLC he deposed that on local examination, bite marks over dorsum of both hands, right and left forearm lower 1/3 rd red in colour, abrasions over back of lumber region red in colour were seen on the person of the accused.
16. PW9-ASI Kanta Prasad was the Investigating Officer of this case. After completion of investigation he had filed the chargesheet in the court. During cross examination, this witness admitted that the Station House Officer police station Mandawali had directed that the investigation be conducted by Woman Inspector and Addl. SHO Alka Azad. However, Inspector Alka Azad informed him that she was not well and asked him to conduct the investigation. Thus he conducted the investigation. He proved the FSL report dated 05.06.2008 as Ex.PX.
SC No.218/2017 State vs. Sujeet Kumar Mishra page 8 of 23
17. PW10-HC Rakesh Kumar was working as MHC(M) on 03.08.2007 at police station Mandawali. PW10 deposed that on that day ASI Kanta Prasad had deposited six parcels sealed with the seal of LBS, a sample seal, one mobile phone and personal search articles of the accused at the malkhana of police station Mandawali. He proved the relevant entry in register no.19 of the malkhana as Ex.PW10/A. This witness deposed that on 18.09.2007 the Investigating Officer took the exhibits (parcels) to FSL, Rohini for examination. On 18.06.2008 this witness was handed over the FSL result.
18. The prosecutrix has appeared as PW1. She is the only witness who has personal knowledge about the alleged incidents. In her examination in chief she stated that earlier she was working in British Airways but now she is not working anywhere. She is a graduate from Calcutta University. The prosecutrix knew the accused since he was in class 11 th in Calcutta. She claims that she used to help the accused in learning English who was residing in a slum at Calcutta. The prosecutrix further deposed that the accused advised her to work at Delhi. On this, she told the accused that she is working at Calcutta and earlier she was working at Delhi but had returned back to Calcutta. However, as the accused insisted, she came to Delhi in the beginning of July 2007. After shifting to Delhi she started residing at Vinod Nagar, Patparganj in a two room flat. The accused was residing at Ashram (a place in Delhi) but used to SC No.218/2017 State vs. Sujeet Kumar Mishra page 9 of 23 visit her flat at Vinod Nagar three or four days in a week. The accused used to sleep in the other room of her flat at Vinod Nagar. The prosecutrix deposed that the flat at Vinod Nagar was taken on rent by the accused but it was she who had paid Rs.25,000/- for that purpose to the accused and that flat on rent was taken for her.
19. The prosecutrix further deposed that on 15.07.2007 at about 3:30-4:00 AM she was sleeping in her room. At that time the accused started knocking on the door of her room. Before opening the door, the prosecutrix asked the accused about the reason for knocking the door. The accused told her that he had left his clothes in her room. The prosecutrix doubted the intentions of the accused as he was continuously staying in her house and was not going to his residence at Ashram. At that time the voice of the accused was not normal and he was shouting. The prosecutrix told him that she is not going to open the door in the night time and he can collect his clothes in the morning. On this the accused started banging the door with force and almost broke the bolt of the door. Thereafter, the accused entered her room and raped her by force. The prosecutrix deposed that the accused was not a person of her class and was not upto to her mark. The prosecutrix deposed that the accused beat her before raping her. He threatened her not to disclose the incident to anyone. The accused took the prosecutrix to a doctor who gave her some pain killer medicine and an injection. After the incident the prosecutrix was not able to SC No.218/2017 State vs. Sujeet Kumar Mishra page 10 of 23 concentrate on her work. She asked her mother to come to Delhi immediately. Her mother sent her brother with a puppy (young dog) to Delhi.
20. The prosecutrix further deposed that on 02.08.2007 or 03.08.2007 her brother came to Delhi but she could not narrate the incident to him. At that time she was working with British Airways. In the evening of 02.08.2007, her brother went out to take the puppy for a stroll. At that time the accused came inside her room while she was studying for her examination at British Airways. The accused snatched her papers and then started pushing her with his organ on different parts of her body. He threatened her that it will be bad for her if she will inform this to her brother. He also threatened of killing her. The prosecutrix pushed the accused. On this the accused caught hold of her body and scratched her. He gave blows on her face, back and front. She started bleeding and the accused tried to push his male organ in her. In order to save herself she threw her mobile phone. She also gave a bite on the wrist of the accused. At that time, somebody knocked at the door and she managed to escape from the clutches of the accused and ran away. She went to a doctor who asked her to go to a hospital. Then she went to LBS Hospital. Police officials met her at the hospital and she was taken to police station Mandawali where she filed the complaint Ex.PW1/A. She was subjected to medical examination vide MLC Ex. PW7/A. SC No.218/2017 State vs. Sujeet Kumar Mishra page 11 of 23
21. The prosecutrix further deposed that after about a week of the incident, she was taken by Sudha who is the sister of the accused, her husband and two or three more persons to the chamber of a lawyer. The prosecutrix was forced to write certain love letters and greeting cards in the name of the accused. The prosecutrix during her evidence identified her broken mobile phone as P1.
22. The prosecutrix was cross examined at length. She stated that the accused claims himself to be an Advocate but she had no knowledge from which college he did his law. The prosecutrix admitted that she herself had joined LL.B. course but she did not complete the same. She admitted that she had filed a case before the Hon'ble Calcutta High Court against the law college. She also admitted that she had earlier worked with HCL, Simphony BPO and Wipro Spectramind. She deposed that she joined I-Energizer on 16.07.2007. She deposed that she has no knowledge if the accused was selected for Bihar judiciary. She admitted that she was in touch with her mother on daily basis through phone. The prosecutrix was confronted with a document Ex.PW1/DA and she admitted her signature on this document at point A. (This document is a receipt of self cheque of Rs.15,000/-). The prosecutrix stated that this document is not in her handwriting but the accused had used her signature on a paper lying at her SC No.218/2017 State vs. Sujeet Kumar Mishra page 12 of 23 house. The prosecutrix was also confronted with a CD containing six tracks which are recordings of purported telephonic conversations between the prosecutrix and Sudha, sister of the accused. These purported telephonic conversations relate to the period after the FIR was already lodged. She identified the voice of the sister of the accused but recognised her voice only in track nos. 5 and 6 and stated that sound in other tracks is not clear. The prosecutrix stated that she does not know that if the accused himself was the tenant of the flat at Vinod Nagar. She was confronted with her complaint and stated that it was the accused who had told her that he was living as the tenant in that flat. She denied that she had filed the present case to extort money from the accused.
23. In his statement under section 313 Cr.P.C, the accused stated that he had been residing in the rented flat for the last one year with his brother and his family. However, his brother and his family had gone to village and he was also about to go to Patna to appear in the judicial examination interview. The prosecutrix had requested him to allow her to live in that flat as she was searching for an accommodation after shifting to Delhi. The prosecutrix lived in that flat for about one month. He also stated that the prosecutrix had made false allegations against him to extort money and blackmail him. He admitted that the brother of the prosecutrix came to Delhi on 02/03.08.2007. The accused also stated that on SC No.218/2017 State vs. Sujeet Kumar Mishra page 13 of 23 02.08.2007 in the evening he was preparing to leave for Patna for his interview for Bihar Judicial Service. However, he could not locate his interview call letter. He asked the prosecutrix about the letter on which the prosecutrix demanded Rs.1,00,000/- from him. She did not give his interview call letter despite his repeated demand and started fighting with the accused alongwith her brother. She bit him on his wrist. The accused states that he is innocent and he has not committed any offence.
24. The accused chose to examine himself as his own defence witness. He deposed that he knew the prosecutrix since their college days. He started his legal practice in the year 2001 at Calcutta and he assisted the prosecutrix in her case relating to LL.B. examination. In 2001 he shifted from Calcutta to Delhi and started his legal practice at Delhi. During one of his visits to Calcutta, he met the mother of the prosecutrix who informed him that the prosecutrix has received an offer for appointment in a company at Delhi. Her mother also took his residential address. In the first week of July 2007, the prosecutrix came to Delhi at the residence of the accused with her baggage. The prosecutrix requested him to allow her to live in his flat till the time she is able to arrange a separate accommodation for herself. On 01.08.2007, her brother also arrived at that flat. In the meantime he had received the letter calling him to appear in the interview for Bihar judiciary and thus he told them that he shall be leaving for Patna SC No.218/2017 State vs. Sujeet Kumar Mishra page 14 of 23 on 02.08.2007 for his interview. In the evening of 02.08.2007, the accused came back to that flat and started packing his bag to leave for Patna but he was not able to find his interview letter. Thereafter, the prosecutrix asked him to pay Rs.1,00,000/- and said that only then she will vacate the flat. The accused refused to pay the money.
25. The accused further deposed that after sometime he heard loud voices coming from the other room at the flat. He went in that room and saw the prosecutrix having a fight with her brother. The accused asked them to stop fighting with each other on which the prosecutrix became furious at the accused. She beat him due to which he suffered injuries on his forehead. Thereafter, he went to the police station. The prosecutrix also came there and accused handed over a cheque of Rs.15,000/- to the prosecutrix for which Ex.PW1/DA was executed by her. The accused also claimed that the prosecutrix was demanding Rs.60,000/- from him in the police station.
26. The accused was cross examined by the learned Addl. Public Prosecutor. The accused denied that he had raped the prosecutrix on 15.07.2007 and 02.08.2007.
27. I have heard Shri Kamal Akhtar, learned Additional Public Prosecutor and Shri Rajesh Khanna, learned counsel for SC No.218/2017 State vs. Sujeet Kumar Mishra page 15 of 23 the accused.
28. In support of its case, the learned Addl. Public Prosecutor relied on the deposition of the prosecutrix. He also relied on her MLC Ex. PW7/A and MLC of the accused Ex.PW8/A which show injuries on the person of the accused and the prosecutrix during their medical examination conducted on 03.08.2007.
29. The accused is facing trial for commission of offences punishable under sections 376 and 376/511 IPC. Charge under section 376 IPC is in relation to the alleged incident dated 15.07.2007 and incident of rape on another day (date is not mentioned).The charge under section 376/511 IPC is for the alleged incident dated 02.08.2007.
30. The present case relates to the period between 15.07.2007 to 02.08.2007. The Criminal Law (Amendment) Act, 2013 came into force w.e.f. 03.02.2013. Thus, the present case shall be governed by sections 375/376 IPC as existed prior to the amendment of the IPC by the Criminal Law (Amendment) Act, 2013. At the relevant time Section 375 IPC defined the offence of rape as follows:
"375. Rape- A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under SC No.218/2017 State vs. Sujeet Kumar Mishra page 16 of 23 circumstances falling under any of the six following descriptions:-
First.---- Against her will.
Secondly.---- Without her consent.
Thirdly.---- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.---- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.---- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.---- With or without her consent, when she is under sixteen years of age.
xx xx xx xx xx xx ''
31. Depositions of the prosecutrix and the accused would show that it is a common case between them that the accused in the year 2007 was residing at Delhi. The prosecutrix had shifted to Delhi from Calcutta in July 2007 in connection with her SC No.218/2017 State vs. Sujeet Kumar Mishra page 17 of 23 employment at Delhi. She had earlier worked in Delhi and then shifted to Calcutta. There is also no dispute that in the intervening night of 14/15.07.2007, both the prosecutrix and the accused were at the flat at Vinod Nagar which is a two room flat on the second floor of a building and no other person was residing in that flat.
32. The accused had been residing in that flat since January 2007 as a tenant. This would be apparent from the three receipts dated 10.01.2007, 10.02.2007 and 10.10.2007 (mak-D3- colly.) by one Asha Gupta, landlady which are in the name of the accused. Though the prosecutrix during her deposition claimed that the said flat was taken on rent for her by the accused but there is no evidence to substantiate this allegation. Her complaint shows to the contrary. The prosecutrix was a mature woman of 26 years of age who had earlier been working at Delhi and Calcutta. The accused was about 31 years of age.
33. It is significant that even after the alleged incident dated 15.07.2007, the prosecutrix and the accused continued residing together. The prosecutrix was employed with a foreign airlines (as is her case) and would have been earning a substantial salary as she had been working with well known firms. However, she neither left the premises nor made the accused leave the premises. She did not file any complaint against the accused at that time. In her cross examination, she admitted that she attended SC No.218/2017 State vs. Sujeet Kumar Mishra page 18 of 23 her office next day. The prosecutrix has stated that she had asked her mother to come to Delhi after the incident but her mother sent her younger son (brother of the prosecutrix) and a puppy (young dog) to Delhi on 02.08.2007. Neither the mother nor the brother of the prosecutrix have been produced as witnesses.
34. The learned defence counsel also drew the attention of this court to that part of the deposition of the prosecutrix in which she has claimed that after a week of the FIR, the prosecutrix was taken by the sister of the accused and her husband and other people to the chamber of the Advocate and she was forced to write love letters and greeting cards in the name of the accused. No such complaint was made by the prosecutrix to the police officials during investigation. He also drew the attention of the court to the print out from a social network site in which the prosecutrix had written some poetry and couplets (shayari) on the page of the accused in February 2007. Learned defence counsel also drew the attention of this court to the cross examination of the prosecutrix to show that various embellishments and improvements have been made by the prosecutrix in her statement. He submitted that all these evidences would show that the prosecutrix has not disclosed true facts in her evidence. He also referred to the contents of the CD confronted to the prosecutrix.
35. Considering the totality of the facts and circumstances SC No.218/2017 State vs. Sujeet Kumar Mishra page 19 of 23 including the conduct of the prosecutrix in continuing to reside at the premises and not taking any step of either making a complaint or separating herself from the accused, I am of the opinion that the case of prosecution in respect of the incident dated 15.07.2007 has not been proved beyond reasonable doubt. Benefit of doubt is to be given to the accused in regard to alleged incident dated 15.07.2007.
36. The prosecutrix had also alleged in her complaint Ex.PW1/A that after the incident of 15.07.2007, one day the accused again raped her. The prosecutrix had not given any particulars about the time, date and place of the said alleged incident. Even after this alleged incident, the prosecutrix continued residing with the accused. The accused is acquitted of the charge relating to this incident.
37. The accused is facing another charge for committing offfence of attempt to rape on 02.08.2007 on the prosecutrix. The prosecutrix in her complaint (Ex.PW1/A) and statement under section 164 Cr.P.C had not made allegation of actual penetration during the alleged incident dated 02.08.2007. However, during her cross examination in the court, the prosecutrix stated that the accused had sexual intercourse with her on 02.08.2007.
38. MLC Ex.PW7/A of the prosecutrix and Ex.PW8/A of the SC No.218/2017 State vs. Sujeet Kumar Mishra page 20 of 23 accused show that during their medical examination on 03.08.2007 both were found having fresh injuries on their persons.
39. The prosecutrix in her deposition has stated that on 02.08.2007 the accused came in her room. At that time she was studying for her examination. The accused started pushing his organ on different parts of her body. When the prosecutrix tried to push him, the accused gave blows on her face and back. In order to save herself she threw her mobile phone. At that time someone, may be her brother or someone else which she does not remember, knocked at the door. The prosecutrix opened the door and escaped.
40. The accused on the other hand has deposed that he had appeared in the competitive examination for Bihar Judicial Service by Bihar Public Service Commission. He was selected in the written examination and was called for interview on 08.08.2008 at the office of the Commission at Patna. He has produced a photocopy of the call letter dated 20.07.2007 (mark-D2) in which his name appears with roll no.140369. He has deposed that on 02.08.2007 he was about to leave for Patna for his interview but he realised that his original call letter is not traceable. When he asked about his call letter in original from the prosecutrix, the prosecutrix asked for money. Subsequently, there was a fight between the prosecutrix and her brother in which the accused intervened and SC No.218/2017 State vs. Sujeet Kumar Mishra page 21 of 23 then she hit the accused. On a query by this court, it was informed that the accused could not appear for his interview as on the date of the interview he was in judicial custody in this case.
41. It has been noted above that the charge in respect of alleged incident dated 02.08.2007 was framed after the evidence on behalf of the prosecution and the defence was completed. Thus, the prosecutrix was directed to be summoned for her further cross examination but she did not appear for her further cross examination and her evidence remained inconclusive on this aspect.
42. In any event, I am of the opinion that the evidence on record only shows that there was a scuffle between the prosecutrix and the accused in which both of them suffered injuries. In the facts of this case, sexual assault does not appear to be the reason for this scuffle. The burden to show beyond reasonable doubt that the accused committed attempt to rape the prosecutrix was on the prosecution. The prosecution has not been able to discharge this burden. The brother of the prosecutrix was also present at that time and he would have been an important witness in this case. He has not been made a witness in this case. In the circumstances, I am of the opinion that the charge in relation to offence under sections 376/511 IPC dated 02.08.2007 is also not proved beyond reasonable doubt.
SC No.218/2017 State vs. Sujeet Kumar Mishra page 22 of 23
43. In view of the above discussion, it is held that the case of the prosecution has not been proved beyond reasonable doubt. Thus, accused Sujeet Kumar Mishra is acquitted of the charge of having committed offences punishable under sections 376, 376/511 IPC after giving him benefit of doubt.
44. In compliance of the provisions of section 437A Cr.P.C and directions of this court, the accused has submitted his personal bond and a surety bond for the sums of Rs.30,000/- each.
45. File be consigned to record room after necessary compliance.
Announced in the open court on 29.04.2017 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi SC No.218/2017 State vs. Sujeet Kumar Mishra page 23 of 23