Delhi District Court
Sc No: 587/17 State vs . Azad Khan on 28 February, 2018
SC No: 587/17 State Vs. Azad Khan
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 587/17
FIR No. 318/17
Police Station Bindapur
Under Section 376/341/506IPC
State
Versus
Azad Khan
S/o late Sh. Vahid Khan
R/o H. No. D-130, J.J. Colony,
Sector-3, Dwarka, New Delhi. .....Accused
Date of institution 10.10.2017
Judgment reserved on 20.02.2018
Judgment Pronounced on 28.02.2018
Decision Acquitted
Judgment 1 of 20
SC No: 587/17 State Vs. Azad Khan
JUDGMENT
1. Accused is facing trial in present case on allegations of wrongfully restraining, threatening and committing repeated rape upon prosecutrix "P" aged about 28 years.
2. FIR in question was registered on 18.05.2017 on complaint of prosecutrix who alleged that she was working in different houses as house maid in Sector-12, Dwarka. In September 2016 she was working in a house in Park View Apartment. At about 3-4 pm, driver working in the same house (accused Azad) talked to her and thereafter they started meeting each other. Then accused started blackmailing her by stating that he is having her photographs and in case prosecutrix will not abide by his dictates, he will show photographs to her husband and upload it on Internet. Under threat of accused, prosecutrix agreed to accompany him.
Judgment 2 of 20
SC No: 587/17 State Vs. Azad Khan
Accused Azad took her in a flat in Sector-3, Dwarka and pressurized her to establish physical relations with him under threat that he would upload photographs. In October 2016, Azad again took her to the same flat and established physical relations with her. On 31.12.2016, Azad called on mobile of mother-in-law of prosecutrix and told her that he wanted to meet husband of prosecutrix. Husband of prosecutrix went at location where he was called by accused. Accused was accompanying with some other boys and there accused stated all things about prosecutrix to her husband. At that time, mother-in-law of prosecutrix called at 100 number and then the matter was settled. Again on 4-5 January, prosecutrix was coming with her mother-in-law on a rickshaw. Accused followed them and told prosecutrix to accompany him. Due to behavior of Azad, prosecutrix left her work. Prosecutrix alleged that accused then started coming to her house and used to threaten her to abide by his dictates otherwise he would kill her husband and both children. Prosecutrix prayed for an action against accused.
Judgment 3 of 20
SC No: 587/17 State Vs. Azad Khan
3. During investigation of the case, prosecutrix was got medically examined. Her statement was got recorded u/s 164 Cr. P.C. Accused was arrested and charge-sheeted. Charge for offence punishable U/s 376(2)(n)/341/506(II) IPC was framed against accused who pleaded not guilty and claimed trial.
4. Prosecution examined three witnesses.
5. PW1 prosecutrix deposed on the lines of her complaint. She proved her complaint as Ex. PW1/A. Her medical examination vide MLC Ex. PW1/B. Prosecutrix proved her statement recorded u/s 164 Cr. P.C. as Ex PW1/C and complaint lodged by her against accused on 14.05.2017 as Ex. PW1/D.
6. PW2 is mother-in-law of prosecutrix who supported the prosecution case and has deposed in respect of incident dated 31.12.2016.
Judgment 4 of 20
SC No: 587/17 State Vs. Azad Khan
7. PW3 ASI Gyatri Investigating Officer recorded statement of prosecutrix, made her endorsement on it as Ex. PW3/A and got registered FIR. She got prosecutrix medically examined and got recorded her statement U/s 164 Cr. P.C. She arrested accused, recorded his disclosure statement and got him medically examined.
8. Statement of accused was recorded wherein he admitted recording of FIR, certificate U/s 65B of Indian Evidence Act in respect of correctness of computerized record, DD No. 27A dated 31.12.2016, and DD No. 52B dated 31.12.2016, statement of prosecutrix recorded U/s 164 Cr. P.C., MLC of prosecutrix and his MLC. In view of statement of accused witnesses to prove the aforesaid documents were dropped from the array of witnesses.
Judgment 5 of 20
SC No: 587/17 State Vs. Azad Khan
9. On conclusion of prosecution evidence, statement of accused was recorded under section 313 Cr. P.C. Accused stated that prosecutrix took around Rs 25,000/- from him and upon asking for repayment of said amount she falsely implicated him.
10. It is contended on behalf of accused that as per prosecutrix, her relationship with accused was consensual and at no point of time he established physical relations with her against her consent. It is argued that there is delay in lodging of FIR and testimony of prosecutrix is inconsistent to her previous statements as such it is neither trustworthy nor worthy of any credence.
11. Per contra, Ld. Addl. P.P for State submitted that accused under threat established sexual relations with her and thereafter & confined her. It is contended that testimony of prosecutrix which is truthful & reliable establishes guilt of accused beyond any reasonable doubt.
Judgment 6 of 20
SC No: 587/17 State Vs. Azad Khan
12. I have heard rival contentions. I have also gone through relevant material on record.
13. Versions of prosecutrix: After initial complaint, statement of prosecutrix Ex.PW1/C was recorded U/s 164 Cr.P.C, and its loose English translation reads as under:
I work in sector-12. There one person by the name of Azad works. We both used to work in same kothi. Azad is driver there. We used to talk with each other and Azad had clicked my photographs with him. Due to those photographs he used to blackmail me that he will tell everybody about our affair. This is of September 2016. By those photographs he blackmailed and established physical relations with me forcibly. This is also of September 2016. This all happened against my wishes. Azad told me that he has made my obscene CD and he would post on Net and would also send to my family members. Due to this fear I left my job in December 2016. He used to frighten and threat me that he would kill my husband and daughters. He pressurized me to establish physical relations with him. On 31.12.2016 he called my mother-in-law and called my husband at DPS, Matiala, Dwarka Sector-3. On reaching there, many boys and Azad surrounded my husband. My mother-in- law called at 100 number. Matter was settled with intervention of police. On 4-5.01.2017 at about 9-9.30 pm, I along with my mother-in-law were going back to our house. Azad along with one of his friend, whose name I do not know, stopped our rickshaw having Judgment 7 of 20 SC No: 587/17 State Vs. Azad Khan danda in his hand. He started abusing and threatened me that if I will not abide by his dictates then he will make my life tough. Since then I did not go for my work. Last Tuesday, Azad threatened me that he will kill my husband and daughters. On 13.05.2017, he took me from the way to some place. I escaped from that place and went to my sister's house. Day before yesterday, in the evening while returning from police station, he again stopped my way. He was accompanied with two more boys. He threatened me to take FIR back. I went to police station."
14. Testimony of prosecutrix reads as under:
I got married in year 2005 to my Seeshpal Singh. In 2014 I started working as housemaid. In September 2016, I started working in flat no. 61, Parkview Apartment, Sector 12, Dwarka. Accused Azad (present in the Court, correctly identified through wooden partition) was working as a driver of the owner of said house. There was a party in the house of my owner. In that party accused clicked some of my photographs. We were on talking terms as me and accused were working in same house. When I stopped talking to accused, he started harassing me on basis of those photographs. Accused told me that he will tell my family members that he is having an affair with me and would also upload my photographs with him on internet. Accused then took me to a flat in Sector 3 Dwarka and established forcible sexual relations with me.
In October 2016, accused took me in a flat in Sector 3 Dwarka and after giving me threat that he will kill my daughters established forcible sexual relations with me. After that I stopped going to my Judgment 8 of 20 SC No: 587/17 State Vs. Azad Khan work and on the day, when I joined my work, accused met me and threatened me that he is having a CD of our physical relations.
On 31.12.2016, accused called on the mobile of my mother-in-law and talked to my husband. Accused called my husband near DPS Dwarka. I along with my mother-in-law, Sister in law (devrani) followed my husband. Accused who was standing with 3-4 associates met my husband and told my husband about my relationship with him. My mother in law called at 100. Police came there and at that time, my husband did not make any complaint and settled the issue with accused.
In 04.01.2017, I was returning along with my mother-in-law on a rickshaw. Accused and his friend stopped our rickshaw and he tried to hit me with a danda and when my mother-in-law picked her phone to call at 100 and accused fled from there. Then I stopped going to work. Accused used to come to our gali and used to create scene. In May, 2017 accused again came to our gali and created ruckus there. On 14.05.2017 when I was taking my daughter to Doctor, accused threatened us to kill and took me and my daughter to an unknown place. From there I went to my sister's house. And when I returned to my house from there, I lodged a police complaint against accused on 18.05.2017.....
15. Incidents of sexual assaults: Prosecutrix in all her statements alleged that in September, 2016 accused who was working as a Driver in house where she was working as a maid clicked her photographs. On basis of those photographs, accused Judgment 9 of 20 SC No: 587/17 State Vs. Azad Khan blackmailed her and took her in a flat and established forcible sexual relations with her. In October 2016, also accused took her in the same flat and after giving her threat that he would kill her daughters established forcible sexual relations with her.
16. During course of her cross-examination, prosecutrix deposed in respect of photographs as under:
........... It is correct that accused clicked some of my photographs while I was in the party. It is correct that till today, I have not seen those photographs. Vol. Accused showed me some photographs after about 10 days of the party but that were photo-shop and I was appearing with him in those photographs. In one of those photographs accused has put his hand on my shoulder and in the other, he was touching my face with his face. I had seen only those two photographs. It is incorrect to suggest that accused did not take my photographs without my permission or that he did not photo-shop any of my photograph...
17. As per prosecutrix, accused clicked her photographs in a party and not in isolation. Prosecutrix further admits that she did not see those photographs and photographs which accused shown to her were morphed. If that was the case, then there was Judgment 10 of 20 SC No: 587/17 State Vs. Azad Khan no occasion for prosecutrix to be fearful of those photographs especially when there was no obscenity attached to it. It is hard to believe that a mature married woman would get blackmailed to extent of establishing physical relations on basis of morphed photographs rather natural course in such a scenario for prosecutrix was to make a complaint to her employer if not to police. Investigating Officer deposed that on interrogation their employer informed that prosecutrix and accused were having cordial relations and he told IO that while prosecutrix worked in their house, she did not make any complaint.
18. Admittedly prosecutrix did not make any complaint against accused after both alleged sexual encounters. Prosecutrix deposed that due to shame, she did not disclose the first incident to her family or reported to police and also due to the reason that accused had threatened her. Reason given by prosecutrix for not reporting the incident is hard to believe as a married woman who has been blackmailed on basis of morphed photographs would Judgment 11 of 20 SC No: 587/17 State Vs. Azad Khan report the matter rather to abide by dictates of offender.
19. During her cross-examination prosecutrix further deposed that again on 13-14.10.2016 accused stated that he is having a CD of their physical relation and on that pretext took her in the same flat and established physical relations with her. In same breath, prosecutrix testified that accused did not show her any such CD nor she notice accused preparing any video of their sexual act. Any CD containing video of sexual act of accused & prosecutrix is not unearthed in investigation.
20. Prosecutrix did not notice accused preparing her video in sexual act nor she saw any such video then a CD cannot be a reason for prosecutrix to accompany accused to a flat. It is obvious that prosecutrix is not telling truth on that account and her testimony in this regard is hardly believable.
21. Moreover, during course of her cross-examination, Judgment 12 of 20 SC No: 587/17 State Vs. Azad Khan prosecutrix was shown 11 photographs Mark A-1 to A-11.
Prosecutrix admitted that photographs are of her with accused but she denied to have visited any place with accused and doubted existence of photographs. Prosecutrix also admitted that she used to have telephonic conversations with accused and used to call him. Photographs of accused & prosecutrix and admission of prosecutrix of having telephonic conversations with accused indicate friendly relations between prosecutrix and accused.
22. Prosecutrix further testified that on 31.12.2016, accused called her husband near DPS Dwarka and she along with her mother-in-law, sister in law (devrani) followed her husband. Accused was standing with 3-4 associates met her husband and told her husband about her relationship with him. Her mother-in- law called at 100. Police came there and at that time, her husband did not make any complaint and settled the issue with accused.
23. During her cross-examination prosecutrix admitted Judgment 13 of 20 SC No: 587/17 State Vs. Azad Khan that on that day, she did not lodge any complaint to police regarding sexual assault by accused. Reason given by her for not complaining is that she did not want to call for disrepute for her. On that day also, she did not disclose to her husband or mother-in- law that accused under threat took her to a flat.
24. Prosecutrix on one hand says that accused disclosed his relationship with her to her husband and if that was the case then it was much comforting for the prosecutrix to have narrated the acts of accused of blackmailing her to her family. Once accused made allegations against prosecutrix then prosecutrix could have easily told her family that accused under threat was forcing her to accompany him but prosecutrix neither told her family about the incidents of sexual assault on her not she lodged any complaint against accused to police officials who arrived at the spot at the call of her mother-in-law. This goes to show that by that time prosecutrix was not offended by any act of accused.
Judgment 14 of 20
SC No: 587/17 State Vs. Azad Khan
25. It is held in Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the Hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
26. In present case also, as narrated above testimony of Judgment 15 of 20 SC No: 587/17 State Vs. Azad Khan prosecutrix is wavering and it does not inspire confidence in respect of allegations of her rape by accused under threat.
27. Allegations of restraining prosecutrix, her abduction & confinement: Prosecutrix alleged that on 04.01.2017, when she was returning along with her mother-in-law on a rickshaw, accused and his friend stopped their rickshaw and tried to hit her with a danda. When her mother-in-law picked her phone to call at 100, accused fled from there.
28. PW2 (mother-in-law) of prosecutrix deposed that while she was going with prosecutrix on a rickshaw, accused restrained their way and started pulling prosecutrix and abused her. Accused followed them for some distance and when she told accused to go away and not to create a scene accused did not pay heed to her request.
Judgment 16 of 20
SC No: 587/17 State Vs. Azad Khan
29. Neither prosecutrix nor her mother-in-law lodged any complaint in respect of the incident date 04.01.2017 till the lodging of present FIR. If at all, prosecutrix was restrained or misbehaved by the accused then she would not have waited for next four months to lodge a complaint. Prosecutrix did not disclose the exact location of the alleged incident nor any public witness has been cited nor examined by the prosecution to substantiate allegations in respect of restraining the prosecutrix.
30. In respect of allegations of her abduction by accused, prosecutrix deposed that on 14.05.2017 when she was taking her daughter to Doctor, accused threatened her to kill and took prosecutrix & her daughter to an unknown place. From there she went to her sister's house and when she returned from there, she lodged a police complaint against accused on 18.05.2017.
31. In her cross-examination, prosecutrix deposed as Judgment 17 of 20 SC No: 587/17 State Vs. Azad Khan under:
....... On 14.05.2017 at about 10 am accused came in a car with his friend and took me and my daughter aged about 5 years to an unknown place which was at distance of 45 minutes. On that day, accused did not commit any assault on me and I escaped from that place and reached my sister's house at about 09:30 pm by hiring an auto. I do not know from which place I boarded auto but after reaching my sister's house at Kashmere Gate, auto driver took Rs. 300/-. I did not tell my sister that accused abducted me and I slept there. For the entire day, accused did not offer us to eat neither we ate anything. On the next day, I lodged zero FIR in PS Civil Lines......
Police did not investigate the matter from my daughter who was also abducted by accused along with me.
32. Prosecutrix though alleged that accused abducted her but she didn't tell from which place she was abducted and how accused managed to make her to sit in his car. Presuming that accused some how made prosecutrix to sit in his car then why prosecutrix didn't raise an alarm to thwart attempt of accused to kidnap her and her daughter is not explained by her.
33. Prosecutrix claims that she managed to escape form Judgment 18 of 20 SC No: 587/17 State Vs. Azad Khan captivity of accused but she did not tell from which location he took her and from where she boarded an Auto. Prosecutrix claims that she paid Rs 300/- to Auto and reached her sister's house then it could not be the case that prosecutrix was not aware the place from where she hired Auto.
34. Nonetheless, prosecutrix also deposed to the effect that police did not investigate the incident from her daughter who was also abducted by accused along with her. IO also testified that prosecutrix did not tell her about the incident of 13.05.2017 while giving her complaint. More so, prosecutrix did not make any complaint against accused on the same night when she reached house of her sister. From testimony of prosecutrix it becomes evident that she has not come clear in giving an account of incident dated 14.05.2017. There is absolutely no evidence on record to substantiate allegations of her confinement by accused.
35. Thus, in the light of aforesaid discussions, case of Judgment 19 of 20 SC No: 587/17 State Vs. Azad Khan prosecution fails. Accordingly, accused stands acquitted. His personal bond is canceled. In terms of Section 437(A) Cr.P.C accused is directed to furnish personal bond in sum of Rs. 10,000/- with one surety in like amount for a period of six months.
File be consigned to record room.
Announced in the open court on 28th day of February, 2018.
Digitally signed (GAUTAM MANAN)
by GAUTAM
GAUTAM MANAN ASJ (SFTC) /SOUTH WEST
MANAN
Date:
2018.03.01
DWARKA COURTS:DELHI
14:43:27
+0530
Judgment 20 of 20