Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, on 14 August, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 456/2018
Assigned to Sessions. 04.07.2018
Arguments heard on 04.08.2018
Date of Judgment 14.08.2018
FIR No. 79/2018
State V Gaurav Tiwari s/o Prakash Chand
Tiwari, r/o Girija Niwas, Badri Pura,
Haldwani, Nainital, Uttra Khand.
Police Station Pahar Ganj
Under Section 328/323/376/506 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Pahar Ganj had filed
a challan vide FIR No.79/2018 dated 27.03.2018 u/s. 376/323/506 IPC for the
prosecution of accused Gaurav Tiwari in the court of ld. Metropolitan
Magistrate. After compliance of the requirement of section 207 Cr. P.C. the
case was sent to this court being the designated Special Fast Track Court for
trial of the offences of sexual assault against the women through the Office of
Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view
of section 228 (A) IPC and directions of Supreme court in "State of Karnataka
Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006,
CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. On 27.03.2018, present FIR was registered on the complaint of prosecutrix Case No.456/2018 State Vs. Gaurav Tiwari 1/10 Ex.PW1/A, who alleged that accused was known to her being her distant relative and he had given her his mobile 8847619731 and she used to talk to him frequently. On 26.0.2018, accused telephoned her and called her at Bus stand Pahar Ganj when she reached there, accuse met there and after some time he gave her a water bottle and when she drink the same, she started feeling dizziness and then he took her to a hotel in Pahar Ganj where he forcibly raped her and the after the rape he showed her, her nude photo and video. He also threatened her that if she disclosed about the incident to anyone he would send the photo and video to her Mausi and would defame her. Finally, she lodged complaint against accused.
3. Therefore, present case was registered by SI Veena who visited the spot, got prosecutrix medically examined, she refused for her internal medcial examination. I.O. seized the copy of record of the Hotel Geetanjali Inn of the dated 26.02.2018.
4. On 30.03.2018, accused was arrested in the case, his disclosure statement rerecord. His mobile phone make Vivo was seized by the I.O. He also pointed out the place of incident. He was medically examined in LHMC. On 05.04.2018 his potency was got conducted in LNJP Hospital where he found capable of performing sexual intercourse. On 03.04.2018 prosecutrix u/s 164 Cr.P.C. was recorded by Ld. Magistrate wherein she narrated the incident of physical assault in detail. After completing investigation charge sheet was filed and the matter was committed to this court for trial.
Case No.456/2018 State Vs. Gaurav Tiwari 2/10CHARGE:
5. On the basis of material available on record, this court vide order dated 09.07.2018 framed charge against accused Gaurav Tiwari for the offence punishable u/s 328/323/376/506 IPC, to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
6. So far prosecution has examined only two witnesses.
7. PW1: Prosecutrix 'L' is a material witness being victim and and complainant.
She deposed that she is pursuing B.A. second year and she is born and brought up in Delhi. Her family consists of her parents, her elder sister and two elder brothers. She has correctly identified the accused Gaurav Tiwari in the court to be the same person against whom she had lodged the present complaint.
8. PW1 further deposed that in January, 2018 she came in contact with accused through telephone. Accused had called her on phone and when she attended the same he asked her that it was wrong number. Thereafter, accused started sending messages to her on her mobile phone number 9711368132. She deposed that she does not remember mobile phone number of accused. She further deposed that in January, 2018 accused called her on phone and asked her to come at Kashmere Gate Metro Station. She met the accused in a park outside the Metro Station and they talked there and returned back to their respective house.
Case No.456/2018 State Vs. Gaurav Tiwari 3/109. PW1 further deposed that on 26.02.2018 she had gone herself to Pahar Ganj Bus Stand. Accused called her on her mobile phone. Accused came there on foot. Thereafter, they proceeded to Hotel Geetanjali, Paharganj, Delhi and reached in a room, she does not remember room number. They sat together there and took lunch. Thereafter, they returned back to their respective house.
10. PW1 further deposed that one Vinod who had been residing in her locality had seen her in the company of the accused. He told the said fact to herfamily members who hearing the same became anger and they took her to PS Sarai Rohilla. She further deposed that she had told her family members due to fear that accused was embarrassing her by sending messages and calls on her phone. Police officials of PS Sarai Rohilla asked her to approach PS Pahar Ganj. She proved her complaint vide Ex.PW1/A. She was medically examined in Lady Hardinge Hospital vide MLC MarkX. She deposed that she had refused to undergo her internal medical examination. She had taken the police officials to Hotel Geetanjali, Paharganj and pointed out the room and pointing out memo Ex.PW1/B was prepared in this regard. She has proved her statement u/s 164 Cr.P.C. vide Ex.PW1/C.
11. PW1 further deposed that accused had not established physical relationship with her at any point of time.
12. This witness was declared hostile by ld. Addl. PP for the State. On being cross examined by Sh. M. Zafar Khan, Ld. Addl. PP for State, this witness admitted that complaint Ex.PW1/A is in her own handwriting. She had denied to the suggestion that she had stated in her complaint Ex.PW1/A that accused had met Case No.456/2018 State Vs. Gaurav Tiwari 4/10 in Paharganj or that he had given her water bottle or that she had consumed the water or that after consuming the water she felt giddiness or that accused took her to Hotel Geetanjali, Paharganj, Delhi or that he had beaten her there or that he had committed rape with her forcibly or that he had snapped her nude photographs in the room of the hotel and also made her obscene video or that he had extended threat to viral her nude obscene video and photographs if she would disclose the facts of incident to anyone. She was confronted with statement Ex.PW1/A wherein all these facts are so recorded.
13. This witness admitted that mobile phone number of accused was 8847619731. She had not stated to police that accused had shown her nude photographs and video to her Mausi namely Netri and that he had also kept the photographs and video in his Laptop and that Netri and Gaurav wanted to defame her father. Vol. She was told to write in this way by the police officials. She was confronted with statement Ex.PW1/A wherein all these facts are so recorded. She admitted that accused Gaurav is relative of her Mausi. She admitted that police officials had prepared site plan of the room of the hotel at her instance which is Ex.PW1/D bearing her signature at point A. She had denied to the suggestion that accused had established physical relationship with her in the room of the hotel at Paharganj, Delhi. She deposed that she had stated to the Magistrate in her statement Ex.PW1/C that when she objected accused while taking her obscene photographs, he slapped her 23 times.
14. She deposed that she had made her statement before the Magistrate at the instance of police official who had instructed her to make same statement which she had made in her complaint Ex.PW1/A. Case No.456/2018 State Vs. Gaurav Tiwari 5/10
15. She denied to the suggestion that she had stated correct facts before the police as well as before the Magistrate about the facts of incident or that she is deliberately deposing falsely to help the accused or that she has been won over by the accused or that on account of a compromise with the accused she has deposed falsely today. She denied to the suggestion that she had stated to the doctor who had conducted her medical examination that accused had committed sexual assault with her in a hotel at Paharganj on 26.02.2018.
16. PW1 stated that she cannot tell the name of police official who had instructed her to make same statement before the magistrate. She admitted that she know W/SI Veena who had registered her case at PS Paharganj and that W/SI Veena had not instructed her to make a false statement against accused before police and Ld. Magistrate. She had not made complaint to IO about the police official who had instructed her to make the same complaint before the Magistrate. Neither her family members nor herself made any complaint to senior police officials that her statement was not being recorded in a correct manner. She admitted that statement which she made today is correct, prior to this all the statements which she had made are wrong.
17. This witness had denied to the suggestion that on account of a secret compromise with the accused, she has deliberately changed her statement today in the court to help the accused in the case.
18. PW2: W/SI Veena is the investigating Officer. She has deposed on the lines of her investigation. She has proved written complaint of prosecutrix vide Ex.PW1/A. She prepared rukka Ex.PW2/A bearing her signature at point A. Case No.456/2018 State Vs. Gaurav Tiwari 6/10 She deposed that she along with prosecutrix left to Lady Hardinge Hospital where prosecutrix was medically examined vide MLC already MarkX. Prosecutrix had refused to undergo her internal medical examination. Prosecutrix was counseled by a counselor of NGO in the hospital. She further deposed that thereafter, prosecutrix led her to place of incident i.e. Geetanjali Inn, Gali Kaseru Walan, Pahar Ganj, Delhi. On her pointing out she had prepared site plan already Ex.PW1/D bearing her signature at point B. She deposed that she checked the hotel guest register and found entry of prosecutrix and accused of the date of incident. She served notice under section 91 Cr.P.C upon the hotel manger for producing relevant documents. She had received copy of FIR and original rukka at the spot from a constable. She recorded statement of prosecutrix under section 161 Cr.P.C. in police station.
19. PW2 further deposed that on 28.03.2018 Mausi of the prosecutrix, namely Netri was examined and her mobile phone was seized by hervide seizure memo Ex.PW2/B bearing her signature at point A.
20. PW2 further deposed that on the directions of the SHO, ASI Sahan Singh and HC Jitender went to Haldwani, Uttarakhand. She further deposed that on 30.03.2018 they brought accused Gaurav Tiwari and produced him before her. She arrested accused in the case vide arrest memo Ex.PW2/C. His personal search was conducted vide personal search memo Ex.PW2/D. His disclosure statement Ex.PW2/E was recorded. All these documents bear her signature at point A and of accused at point B. She also seized mobile phone of accused vide seizure memo Ex.PW2/F bearing her signature at point A. Accused also pointed out Geetanjali Inn and memo Ex.PW2/G was prepared bearing her Case No.456/2018 State Vs. Gaurav Tiwari 7/10 signature at point A. She deposed that accused was also medically examined in the case vide MLC MarkAA and he was medically examined regarding his potency test vide MLC MarkAA1.
21. PW2 further deposed that on 03.04.2018 prosecutrix was produced in the court of Ld. Magistrate and her statement already Ex.PW1/C under section 164 Cr.P.C. was recorded.
22. During the course of investigation, on 28.03.2018 she had also seized the hotel record from manager, Shamim Akhtar vide seizure memo Ex.PW2/I bearing her signature at point A. She further depose that on 08.05.2018 exhibits of this case were sent to FSL Rohini and after completing investigation charge sheet was filed against the accused in the court.
23. On being cross examined by Sh. Rahul Tyagi, ld. counsel for accused, she deposed that she had reached in the hotel in question on the same day when prosecutrix made her complaint. There were CCTV cameras installed in the hotel but CCTV footage was not available in the system as it was more 26 days old which was the capacity of recorder. She deposed that she did not seize any bed sheet or quilt from the said hotel. This witness had denied to the suggestion that she did not investigate the case properly or that she falsely implicated the accused under pressure from the family of the prosecutrix. She denied to the suggestion that prosecutrix had told her the real facts that accused was not responsible for any act of rape with her or that she has wrongly recorded her statement or that she has deposed falsely.
Case No.456/2018 State Vs. Gaurav Tiwari 8/1024. Ld. counsel for accused requested to close P.E. on the ground that prosecutrix being a star witness, has not supported the case of the prosecution and no purpose would serve in continuing further trial.
25. On the other hand, Ld. Addl. PP for the State has objected to the prayer of ld. counsel for accused and submitted that the case of prosecution cannot be thrown overboard merely on the ground that prosecutrix has not supported the case of prosecution and that prosecution should be allowed to continue with the trial. Heard.
PERUSAL OF RECORD:
26. Since prosecutrix herself has turned hostile and has not supported the case of prosecution on any aspect, hence, no needful purpose would be served to continue with the trial. The allegation of rape cannot be proved by any other witness cited in the chargesheet except prosecutrix. Even if the testimony of other prosecution witnesses is accepted. It would not be of any help in the absence of supported version of prosecutrix which has not come on record as prosecutrix turned hostile and changed her version. Hence, the request of Ld. Addl. PP for the State for further examination of other witnesses is declined and P.E. is closed.
27. Since no incriminating evidence has come on record. Hence, S.A. u/s 313 Cr. P.C. is dispensed with. Accordingly, accused Gaurav Tiwari is acquitted from the charges u/s 328/323/376/506 IPC.
Case No.456/2018 State Vs. Gaurav Tiwari 9/1028. Accused is directed to execute bail bond u/s 437 A Cr. P.C. in sum of Rs. 25,000/ with one surety in the like amount.
29. Since prosecutrix has been turned hostile. Hence, prosecutrix does not deserve for any compensation from the court.
30. The testimony in the present case is clear example of misuse of due process of law and such kind of cases is giving wrong message in the society. Earlier, prosecutrix has lodged the complaint with the allegation of rape by the accused and further before the Magistrate she had also given the same version and in the court, she had been turned hostile. On one call entire machinery of criminal system come in active mode and in the court prosecutrix turned hostile. Hence, it is a grave misuse of process of law by the prosecutrix. Therefore, SHO is directed to take necessary action against the prosecutrix/complainant in the present case.
31. Copy of this order be sent to SHO concerned for necessary action and compliance.
32. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 14.08.2018.
(RAMESH KUMARII)
Digitally signed ASJ/SFTC2(CENTRAL),
RAMESH by RAMESH
KUMAR TIS HAZARI COURTS, DELHI.
KUMAR Date: 2018.08.14
16:05:26 +0000
Case No.456/2018
State Vs. Gaurav Tiwari 10/10