Delhi District Court
Directions Of Supreme Court In "State Of ... vs . Puttraj 2004 (1) on 12 October, 2017
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 28630/2016
Assigned to Sessions. 19.04.2016
Arguments heard on 06.10.2017
Date of Judgment 12.10.2017
FIR No. 71/2016
State v. Akil S/o. Abdul Rashid, R/o. H.
No.B37, New Jafrabad, Near
DESU Park, Delhi.
Police Station Chandni Mahal
Under Section 376 (2)(n)(k) IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Chandni
Mahal had filed a challan vide FIR No.71/2016. dated 24.03.2016 u/s
376 IPC for the prosecution of accused Akil 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 given in the judgment.
Case No.28630/2016
State Vs. Akil 1/19
BRIEF FACTS OF THE CASE:
2. The criminal law was set into motion in the present case on the basis of complaint of prosecutrix Ex.PW2/B wherein she stated that she lives with her cousin and that her father had already died when she was 10 years old and thereafter, she started living with her uncle Anisur Rehman and Aunty Shabnam. Since, she did not want to live with them any more, therefore, for the last five months she had been residing at the Rain Basera, Meena Bazar, Near Kabutarkhana Market where she met the accused who was working as a caretaker. It is further stated in her statement by the prosecutrix that accused told her that he loves her and would marry her. He establish physical relation with her 56 times somewhere in the area of Suiwalan and that she is pregnant by three months. She further stated that accused establish physical relation with her on false promise of marriage and that now he is refusing to marry her. On the aforesaid statement, prosecutrix sought legal action against the accused.
3. On the basis of aforesaid statement Ex.PW2/B, FIR No.71/2016 u/s 376 IPC was registered. During the course of investigation, accused was arrested and charge sheeted.
CHARGE:
4. On the basis of material available on record, this court vide order dated 19.05.2016 framed a charge against accused Akil for the offence punishable u/s 376(2)(n)(k) IPC to which he did not plead guilty and claimed trial.
Case No.28630/2016 State Vs. Akil 2/19PROSECUTION WITNESSES:
5. In order to prove its case prosecution examined 12 witnesses namely PW1 ASI Shri Gopal, PW2 Prosecutrix 'F', PW3 Dr. Aishwarya Kapur, PW4 Sh. Murad Ahmed, PW5 Sh. Nitesh Kumar, PW6 W/PSI Seema Bhati, PW7 Sh. Ram Chander, PW8 SI Vivek, PW9 Ms. Shilpi Jain, Ld. MM, PW10 Dr. Arun Kumar, PW11 ASI Rafeekuddin and PW12 SI Pankaj Kumar.
6. PW1 ASI Shri Gopal is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex.PW1/A, certificate under Section 65B Evidence Act in this regard vide Ex. PW 1/B and endorsement vide Ex.PW1/C.
7. PW2 Prosecutrix 'F' is a material witness being victim and complainant.
PW2 testified that she has studied upto 5th class in Islamia School in Saharanpur, U.P. During those days she was living with her grandfather, grandmother and her aunt. PW2 further deposed that she belongs to Saharanpur, U.P. When she was 10 years old her father had died and her mother remarried and started living in Delhi.
8. PW2 further testified that after three years her second husband had also died. While she was studying in Saharanpur, her mother came there to meet her and she accompanied her to Delhi. PW2 further testified that she started living at Rain Basera, Meena Bazar, Jama Masjid, Delhi. However, her mother was residing at Suiwalan, Delhi. PW2 further testified that somehow got enraged and did not prefer to live with her Case No.28630/2016 State Vs. Akil 3/19 mother and went to said Rain Basera.
9. PW2 further testified that accused, present in the court (correctly identified), met her at the reception of Rain Basera, where he used to make entry in the register. PW2 further testified that she started living in the Rain Basera. There were separate place for ladies and gents. PW2 further testified that she started liking accused. She does not know if he also used to like her. PW2 further testified that when her mother came to know that she had become pregnant she got a call made at 100 number through somebody. She did not make any call or complaint to the police. PW2 further deposed that someone informed the police that she had established illicit relation with the accused.
10. Court question: How did you become pregnant and who is the responsible? This witness replied that accused is responsible for her pregnancy.
11. PW2 further testified that they both established physical relation with their consent.
12. PW2 further testified that police had got her medical examination conducted at Lady Irwin Hospital. She had not stated anything to the doctor, who had conducted her medical examination. PW2 has proved her statement u/s 164 Cr.P.C. vide Ex.PW2/A. Case No.28630/2016 State Vs. Akil 4/19
13. This witness was cross examined by Sh. A.T. Ansari, Ld. Addl. PP for State by permission of court as she was resiling from her previous statements.
14. On being cross examined by Sh. A.T. Ansari, Ld. Addl. PP for State, this witness admitted that accused had established physical relationship with her at a factory (Karkhana) at Suiwalan, Delhi. This witness admitted that before establishing physical relationship with her accused had promised to marry her. This witness admitted that she had given her consent to the accused to establish physical relation as he had promised to marry her. This witness deposed that accused did not refuse to marry her. This witness admitted that accused had told her to take Rs.1200/ from him and get her pregnancy aborted and that he would not able to marry her.
15. This witness admitted that before registration of the present case a lady from Delhi Commission for Women had come at Rain Basera and she had taken her to police station.
16. At this stage, attention of the witness is drawn by Ld. Addl. PP for State towards the contents of statement, Ex.PW2/B with the permission of the court and same is read over to the witness. On hearing witness admits the contents of aforesaid statement at point 'B to B' to be true.
17. This witness admitted that in her statement Ex.PW2/A she had stated that accused had refused to marry her stating that he was already Case No.28630/2016 State Vs. Akil 5/19 married. It is correct that accused had established physical relation with me 56 times at the first floor of the aforesaid factory/Karkhana in Suiwalan, Delhi.
18. This witness admitted that MLC and casualty card Ex.PW2/C and Ex.PW2/D respectively were prepared for her medical examination.
19. On being cross examined by Sh. B.S. Chaudhary, ld. counsel for accused, this witness admitted that in said Rain Basera one lady namely Darshna was also working as a care taker for ladies. This witness further admitted that there were separate care takers for ladies and gents. This witness admitted that she had not taken divorce from her previous husband. This witness admitted that she had stated before the Ld. Magistrate during recording of statement u/s 164 Cr.PC that she do not want any legal action against accused Akil.
20. This witness had denied to the suggestion that she was aware that accused was already married. She had disclosed to the accused that she was already married. She had not disclosed to anyone else in Rain Basera regarding her earlier marriage. This witness had denied to the suggestion that her born child is not from accused.
21. PW3 Dr. Aishwarya has proved MLC of prosecutrix vide Ex.PW2/C and casualty card vide Ex.PW2/B respectively on behalf of Dr. Harveen Kaur.
Case No.28630/2016 State Vs. Akil 6/1922. PW4 Sh. Murad Ahmed is the caretaker of Rain Basera, Night Shelter, Meena Bazar, Jama Masjid, Delhi. This witness deposed that he does not remember the date when he had handed over the photocopies of documents containing relevant entries regarding stay of the prosecutrix in night shelter i.e. Rain Basera in the morning and night shift from 28.11.2015 to 19.03.2016 as mentioned in the entry register to the police. This witness has proved photocopies of the same vide Ex.PW4/A (colly). This witness had handed over the said documents to the police vide seizure memo Ex.PW4/B.
23. PW4 further deposed that accused used to work in night shelter sometimes in the morning shift from 6:00 a.m. to 2:00 p.m. and sometimes in the evening shift from 2:00 p.m. to 10:00 p.m.
24. PW5 Sh. Nitesh Kumar is a Project Coordinator of Society for Promotion of Youth and Masses, Vasant Kunj, New Delhi. PW5 Nitesh Kumar had filed certificate Ex.PW5/A regarding accused working as a Caretaker at Night Male Shelter, Jama Masjid, Meena Bazar, Delhi from 01.08.2015 to 19.03.2016 during working hours from 10:00 a.m. to 05:00 p.m. He further deposed that accused had not worked there in night shift. PW5 also produced the copy of leaving certificate and date of birth certificate of accused vide MarkX and MarkY respectively. These these documents were seized by the police vide seizure memo Ex.PW5/B. Case No.28630/2016 State Vs. Akil 7/19
25. PW6 W/PSI Seema Bhati has proved statement of prosecutrix vide Ex.PW2/B which was recorded by her.
26. PW7 Sh. Ram Chander is the Sr. Manager with Canara Bank, Fountain Branch, Chandni Chowk, Delhi. He deposed that pursuant to a notice u/s 91 Cr.PC served by the IO, he had supplied the copy of account opening form in respect of account no. 0180101044600 in the name of Akil s/o Abdul Rashid, R/o B37, New Jafrabad, DDA Colony, DESU Park, Delhi, copy of the electricity bill, copy of Aadhaar card of the account holder and nomination paper alongwith computer generated copy of the statement of account for the period from 01.04.2015 to 31.03.2015. This witness has proved the same vide Ex.PW7/A (colly.).
27. PW7 has brought the certificate u/s 2 A (a) of Bankers' Books of Evidence Act and certificate u/s 65 B of Evidence Act qua the computer printout of the said statement of account and proved the same vide Ex.PW7/B and Ex.PW7/C respectively.
28. PW8 SI Vivek has medically examined the accused from MAMC Hospital vide MLC Ex.PW8/A. This witness deposed that the doctor who had conducted the medical examination of the accused had also collected his blood sample in gauge, preserved, sealed and handed over to me alongwith sample seal. This witness had collected the MLC of the accused and handed over the MLC and said blood sample of the accused to the IO SI Pankaj vide memo Ex.PW8/B. Case No.28630/2016 State Vs. Akil 8/19
29. PW9 Ms. Shilpi Jain, Ld. MM has proved statement of prosecutrix u/s 164 Cr.PC vide Ex.PW2/A.
30. PW10 Dr. Arun Kumar has proved potency test of accused vide Ex.PW8/A. This witness had also collected blood sample of the accused, preserved, sealed and handed over to the police alongwith sample seal for DNA examination.
31. PW11 ASI Rafeekuddin has proved copy of the relevant entries as mentioned in register no.19 running into two pages, copy of the road certificate through which the case property/exhibits were sent to FSL Rohini and the copy of the acknowledgement with regard to the receipt of the case property/exhibits at FSL Rohini vide Ex.PW11/A (colly.)
32. PW12 SI Pankaj Kumar is a material witness being I.O. This witness has proved statement of prosecutrix vide Ex.PW2/B. He has also got the medical examination of the prosecutrix conducted vide MLCs Ex.PW12/A, already Ex.PW2/C and casualty card already Ex.PW2/D.
33. This witness has made endorsement at point D to D on the statement of the prosecutrix, Ex.PW2/B and got the present FIR registered. Thereafter, prosecutrix took them to the place of incident and pointed out the same to him and he had prepared site plan Ex.PW12/B.
34. This witness had also arrested the accused vide arrest memo Ex.PW12/C and his personal search was also conducted vide personal Case No.28630/2016 State Vs. Akil 9/19 search memo Ex.PW12/D.
35. During the course of investigation, on 21.03.2016, he had got the statement of the prosecutrix under section 164 Cr.PC, recorded vide Ex.PW2/A vide his application Ex.PW9/A.
36. PW12 had also got the potency test of the accused conducted vide MLC Ex.PW8/A. SI Vivek had also handed over him the exhibits pertaining to the accused in sealed conditions which he had seized vide seizure memo already Ex.PW8/B.
37. During the course of investigation, this witness had also obtained the copy of entry and exit register of Shelter Home, Rain Basera, Jama Masjid, where accused was working from the caretaker of the said home. This witness had seized the said documents vide seizure memo Ex.PW4/B. This witness has proved the copy of the said document vide Ex.PW4/A (colly.).
38. This witness had also obtained the document with regard to the employment of the accused at the Rain Basera from its head office at Kishan Ganj. This witness has proved the said documents vide Ex.PW5/A, MarkX and MarkY. This witness had seized the said documents vide seizure memo Ex.PW5/B.
39. This witness further deposed that after delivery of the child prosecutrix and her child were taken to LNJP hospital for collection of blood Case No.28630/2016 State Vs. Akil 10/19 samples. This witness had seized the said blood samples vide seizure memo Ex.PW12/E. This witness deposed that accused was also taken to the said hospital and his blood sample was also taken which he seized vide seizure memo Ex.PW12/F. MLCs prepared qua the said collection of blood vide Ex.PW12/G and Ex.PW12/H. This witness has proved the DNA report alongwith forwarding letter running into three pages vide Ex.PW12/I.
40. On being cross examined by Sh. B.S. Chowdhary, ld. counsel for accused, this witness deposed that no family member of the prosecutrix was with her when she had come at police station. This witness deposed that no witness came voluntarily claiming that he was the eye witness in the present case. This witness had denied to the suggestion that witnesses in the present case are stock witnesses or that he is deposing falsely.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
41. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. were recorded. Accused claimed that he was the caretaker of male part of the shelter and one Ms. Darshna was the caretaker of female part. It is further claimed that the said Darshna was having confrontation with him regularly over the issue of time table. The said Darshna provoked the prosecutrix to implicate him in the present case otherwise she would not be allowed to stay in the female shelter home. That is why he has been falsely implicated in the present case. As accused has not claimed for defence evidence, accordingly, D.E. was Case No.28630/2016 State Vs. Akil 11/19 closed. Thereafter, case was fixed for arguments.
ARGUMENTS;
42. Ld. counsel for accused argued that prosecutrix was in love with the accused. In her examination in chief, she has deposed that they both established physical relation with their consent.
43. Ld. counsel for accused further submitted that prosecutrix was already married and she has not taken divorce from her previous husband.
44. Ld. counsel for accused further submitted that as per DNA report, accused is not the biological father of the child of prosecutrix.
45. Ld. counsel for accused further submitted that one Darshna who is the caretaker of female shelter home provoked the prosecutrix to falsely implicate him in the present case otherwise prosecutrix would not be allowed to stay in the female shelter home.
46. Ld. counsel for accused further submitted that prosecutrix in her statement u/s 164 Cr.P.C. has also categorically stated that she does not want any legal action against the accused Akil.
47. On the other hand, Ld. Addl. PP for the State argued that the testimony of prosecutrix is consistent and coherent on all material aspects of the case and she had given the graphic narration of the incident, happened with her.
Case No.28630/2016 State Vs. Akil 12/1948. Ld. Addl. PP for the State further submitted that despite being already marrried accused elicited the consent of prosecutrix on false promise of marriage and sexually exploited her and that when she became pregnant, he started avoiding her and later he flatly refused to marry her. Prosecutrix has clearly and categorically stated in her testimony that when she reminded accused to marry her he used to avoid the same one or another pretext.
49. Ld. Addl. PP for the State further submitted that sequence of events narrated by the prosecutrix clearly establish that accused never intended to marry her and more importantly he was even not competent to marry her because he was already married.
50. On the aforesaid premises, Ld. Addl. PP for the State submitted that prosecution has been able to prove its case beyond reasonable doubt.
PERUSAL OF RECORD:
51. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW2/B, the present FIR was registered.
52. It is further revealed that police had also got medical examination of prosecutrix PW2 conducted; her medical examination was conducted by Dr. Harveen Kaur vide MLC Ex.PW2/D and casualty card Ex.PW2/C; PW3 Dr. Aishwarya Kapur identified the signature and handwriting of Dr. Harveen Kaur on the said documents; since the prosecutrix PW2 was pregnant at that time her exhibits could not be collected.
Case No.28630/2016 State Vs. Akil 13/1953. It is further revealed that statement of prosecutrix u/s 164 Cr.P.C. was recorded PW9 Ms. Shilpi Jain, Ld. M.M. vide Ex.PW2/A., Tis Hazari Courts, Delhi.
54. It is further revealed that present FIR Ex.PW1/A was recorded by PW1 ASI Shri Gopal; PW1 also made endorsement Ex.PW1/C on the rukka to this effect and he also gave certificate under section 65 B of the Evidence Act, Ex.PW1/D qua the said FIR.
55. It is further revealed that PW4 Murad Ahmed, Caretaker of the said Rain Basera handed over copy of the relevant entries, Ex.PW4/A (colly.) regarding stay of the prosecutrix PW2 in the Rain Basera in the morning and night shift from 28.11.2015 to 19.03.2016; police had seized the said document vide seizure memo Ex.PW4/B.
56. It is further revealed that PW5 Nitesh Kumar also produced the copy of leaving certificate of accused and date of birth certificate of accused vide MarkX and MarkY respectively.
57. It is further revealed that PW5 Nitesh Kumar had seen the original of documents MarkX and MarkY at the time of accepting their photocopies; these documents were seized by the police vide seizure memo Ex.PW5/B. Case No.28630/2016 State Vs. Akil 14/19
58. It is further revealed that PW7 Ram Chander, Sr. Manager, Canara Bank, Chandni Chowk, Delhi provided copy of account opening form of accused with Canara Bank, copy of electricity bill, copy of Aadhaar card of accused, nomination paper and computer generated copy of statement of account of accused for the period from 01.04.2015 to 21.03.2015, Ex.PW7/A (colly.); PW7 Ram Chander also given certificate under section 2(A)(a) of Bankers' Books of Evidence Act, Ex.PW7/B and certificate, Ex.PW7/C under section 65B of the Evidence Act qua the said document.
59. It is further revealed that PW8 SI Vivek got medical examination conducted of accused vide MLC Ex.PW8/A. PW10 Dr. Arun Kumar also collected blood samples of accused in gauge and handed over to PW8 SI Vivek who handed over the same to the IO vide memo Ex.PW8/B.
60. It is further revealed that PW SI Rafeekuddin proved the copy of the relevant entries of register no.19 vide Ex.PW11/A.
61. It is further revealed that IO had prepared site plan Ex.PW12/B at the instance of prosecutrix PW2; IO PW12 SI Pankaj also proved arrest memo of accused vide Ex.PW12/C and personal search memo vide Ex.PW2/D.
62. It is further revealed that after delivery, child of prosecutrix was taken to LNJP Hospital for collection of blood sample; IO had seized the Case No.28630/2016 State Vs. Akil 15/19 blood sample vide seizure memo Ex.PW12/C; blood sample of accused was also seized by I.O. vide seizure memo Ex.PW12/F; MLCs Ex.PW12/G and Ex.PW12/H were prepared with regard to collection of blood of accused.
63. It is further revealed that IO has also proved the DNA report vide Ex.PW12/I and tendered the same in evidence (being per se admissible under section 293 Cr.PC).
64. Before reaching at any conclusion, let the relevant section i.e. 376 (2) (n)
(k) IPC be reproduced, which is as under: Section 376 (2) (n)(k) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same woman,
(k) being in a position of control or dominance over a woman, commits rape on such woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
FINDINGS:
65. I have heard both the parties and perused the record.
66. Prosecutrix, the sole material witness has turned hostile on all material aspect of case. Moreso, her testimony is full of contradictions and embellishments which cannot be reconciled to make out the case, which she had put forth in her statement forming the basis of FIR and her statement u/s 164 Cr.P.C.
Case No.28630/2016 State Vs. Akil 16/1967. In response to the specific questions put to her by Ld. Addl. PP for the State she replied that accused establish physical relation with her with consent and that she got pregnant on that account.
68. Though prosecutrix sought to establish that accused elicited her consent on account of false promise of marriage and establish physical relation with her and later refused to marry her but in the same breath she also deposed that accused did not refuse to marry her and physical relation was established with her consent. At the same time, in her statement u/s 164 Cr.P.C. prosecutrix also stated that when she came into contact with accused, they both fell in love and decided to marry. In this view of the matter, it cannot be said that accused elicited the consent of prosecutrix on false promise of marriage. Moreso, in view of statement of prosecutrix that she established physical relation with the accused consensually there is no question of she being induced by the accused to marry him on false promise of marriage. As such it is established that prosecutrix acted in promiscuity.
69. In her cross examination, she categorically stated that she was already married and that her husband had left her husband after one year of her marriage and that she was not given divorce from her previous husband. It is absolute settled proposition of law that once prosecutrix is already married and her marriage is still persisting on she did not take divorce from her husband, she cannot be said to be competent to marry second time and when she is competent to marry second time, she cannot believed to be induced to have establish physical relation on account of Case No.28630/2016 State Vs. Akil 17/19 false promise of marriage.
70. Even the stand of prosecutrix right from inception of case has also not been consistent even in her statement recorded u/s 164 Cr.P.C. she had stated that she does not want legal action against the accused. Had he been cheated or sexually exploited, she would not have made the said statement.
71. Qua the pregnancy of the prosecutrix, DNA was got conducted by the investigating agency to establish the paternity of the accused with the child of the prosecutrix but accused was not found to be biological father of the child delivered by the prosecutrix after that pregnancy. DNA being only scientific evidence in this regard, it clearly rules out any physical relation allegedly established by the accused.
72. In view of the facts enunciated hereinabove the defence of the accused that one Ms. Darshana used to have confrontation with him regularly being caretaker of female section of Rain Basera over the issue of time table etc. and that Ms. Darshana provoke the prosecutrix and prevailed upon her to falsely implicate him in the present case appears to be more probable, tenable and comprehendible.
73. Hence, in view of the circumstances described hereinabove, this court is of the view that prosecution has failed to prove its case beyond reasonable doubt against accused u/s 376 (2)(n)(k) IPC. Accordingly, accused Akil is acquitted from the aforesaid charge.
Case No.28630/2016 State Vs. Akil 18/1974. Since interim compensation is granted to the prosecutrix/complainant.
Final compensation be awarded to the prosecutrix. Copy of the judgment be sent to DLSA to consider the case and decide the suitable compensation to the victim who may be compensated as per the provisions of section 357A (2) of Cr.P.C.
75. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
76. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 12.10.2017.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.28630/2016 State Vs. Akil 19/19