Delhi District Court
Directions Of Hon'Ble Supreme Court In ... vs . Puttraj 2004 on 5 January, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 192/2017
State V Abhijeet Singh s/o Krishan Gopal
Singh, R/o. H. No.B128, Brij
Enclave, Sunder Pur, Varanasi, U.P.
FIR No. 41/2017
U/s 328/376 (2)(n)/343/506 IPC
Police Station Pahar Ganj
Assigned to Sessions 09.03.2017
Charges framed on 01.04.2017
Arguments heard on 24.12.2018
Judgment pronounced on 05.01.2019
Decision Acquittal
JUDGMENT:
1. The case of the prosecution is that, the Station House Officer of Police Station Pahar Ganj had filed a chargesheet before the court of Ld. Metropolitan Magistrate vide FIR No.41/2017 dated 17.01.2017 u/s. 328/376/506 IPC for the prosecution of accused Abhijeet Singh and 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 Hon'ble 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 and identity of prosecutrix is not being disclosed in the judgment.
Case No.192/2017 State Vs. Abhijeet Singh 1/30BRIEF FACTS OF THE CASE:
2. That, in this case, criminal law was set into motion on the basis of hand written complaint of dated 17.01.2017 of prosecutrix Ex.PW1/A against the accused Abhijeet Singh given before SI Veena of PS Pahar Ganj and FIR No. 41/2017 u/s 328/376/506 IPC was registered. In her complaint, prosecutrix has alleged that accused who is a professor in Banaras Hindu University (BHU), Varanasi, U.P. had come in her contact while she was doing research work in September'2016. She used to contact him on phone from time to time regarding professional research work and he has started interfering in her personal life and insisted to meet him once. She also alleged that she refused to meet him and kept distance from him but he continuously compelled her for personal meeting. When she had planned to attend a conference at IIM, Noida Campus, accused called her and told that he was also visiting a private university in Alwar, Rajasthan for Viva voice and he would like to meet her at any place with other professionals. On 13.12.2016, she went to IIM, Noida and on the way, she met accused along with his colleague professor. Accused requested her to sit in the car and that he would dropped her after the discussion but he diverted the car towards Pahar Ganj and took her to hotel Hari Piorko Pahar Ganj where his colleague has checked in. He offered her a drink i.e. coffee in the room, after drinking coffee, she became unconscious and only on the next day, she found herself in objectionable position with accused. She remained in the hotel w.e.f. 13.12.2016 to 15.12.2016 under coercion (threat). Accused also kept her purse, mobile and deleted all SMS and details from phone. She alleged that from 13.12.2016 to 15.12.2016, accused raped her multiple times. During investigation, I.O. also collected a written type complaint dated 05.01.2017 address to DCP, Dwarka, New Delhi given by prosecutrix wherein also she had narrated the same facts in detail and also Case No.192/2017 State Vs. Abhijeet Singh 2/30 explained about her mental condition alleging that she felt humiliated and highly traumatized and not in a position to sustain life and study. Accused again visited her home on 26.12.2016 and was forcing to establish physical relationship with her but she scolded him. Accused slapped her and since 13.12.2016, she had been suffering psychological harassment, pain and agony and delay in making complaint was due to her poor physical and mental condition.
3. That, after registration of FIR, the prosecutrix was medically examined at LHMC Hospital on 17.01.2017 wherein she has refused for her internal examination. She was also counselled by Ms. Priyanka Sharma, counsel for DCW who prepared report dated 17.01.2017. I.O. visited the hotel Hari Piorko, Pahar Ganj, Delhi. At the instance of prosecutrix prepared site plan and seized the relevant record from the hotel regarding stay of prosecutrix and accused therein. The prosecutrix was also produced by I.O. before Ms. Shilpi Jain, Ld. MM on 19.01.2017 where her statement u/s 164 Cr.P.C. was recorded by Ld. Magistrate. I.O. also collected and placed on record one typed complaint given by prosecutrix in the Office of DCP on 05.01.2017 wherein apart from the allegation levelled by her in her complaint Ex.PW1/A she added that accused told her to forget the incident otherwise he will upload the MMS and her career will be ruined.
4. That, thereafter, on 03.02.2017, accused was arrested on the identification of prosecutrix in the case. His disclosure statement was recorded. His mobile phone make Samsung Galaxy was seized. He was also medically examined in RML Hospital on 07.02.2017 regarding his potency test where doctor opined that patient is able to achieve penile erection on his stimulation.
Case No.192/2017 State Vs. Abhijeet Singh 3/305. That, during the course of investigation, I.O. also analyzed call details of the mobile phone No.9690297262 and of accused mobile No.9415684938. The exhibits were sent to FSL Rohini and charge sheet was filed in the court. I.O. has also filed supplementary charge sheet along with call details of mobile phone No.9415689438, 7007810659 and 9690297262 of the prosecutrix.
CHARGE:
6. On the basis of material available on record, ld. predecessor of this court vide order dated 01.04.2017 framed charges against accused Abhijeet Singh for the offence punishable u/s. 328/376(2)(n)/343/506 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
7. That, in order to prove its case, prosecution has examined 14 witnesses namely PW1 Prosecutrix 'RS', PW2 HC Parmod Kumar, PW3 W/Ct. Sudesh, PW4 Dr. Sulekha, PW5 Dr. Vishal Garg, PW6 Sh. Ripu Sudan Mishra, PW7 Ct. Shyam Sunder, PW8 ASI Ramesh Chand, PW9 Ms. Shilpi Jain, Ld. MM, PW10 W/SI Saroj Bala, PW11 W/SI Veena Sharma, PW12 Sh. Pankaj Sharma, PW13 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. and PW14 Sh. Mukut Bhandari, Nodal Officer, BSNL.
PWs Name of the Nature of the Documents proved Witness witness PW1 Prosecutrix 'RS' Complainant Prosecutrix being victim of the alleged sexual assault has testified about the incident and has testified about her complaint given to the Case No.192/2017 State Vs. Abhijeet Singh 4/30 police which is Ex.PW1/A as well as giving of her statement u/s 164 CrPC before Ld MM Ex.PW1/C. Prosecutrix has deposed about the incident happened with her and deposed against the accused. She has proved arrest memo of accused vide Ex. PW1/D. PW2 HC Pramod Police witness He has proved recording of Kumar computerized copy of FIR vide Ex.PW2/B. PW3 W/Ct. Sudesh Police witness She has taken the prosecutrix to Lady Harding Medical College & Hospital where she was medically examined vide MLC MarkA. She deposed that after her medical examination, prosecutrix led the I.O. to the place of incident i.e. Hotel Hari Piorko, Main Bazar, Pahar Ganj, Delhi and pointed out room no.223. I.O. prepared pointing memo Ex.PW3/A in her presence.
PW4 Dr. Sulekha Medical She has proved MLC qua the witness medical examination of the prosecutrix Ex.PW4/A on behalf of Dr. Sonil Srivastava.
PW5 Dr. Vishal Garg Medical He has proved the potency test of witness accused and found nothing to suggest that he was unable to achieve penile erection or sexual intercourse under normal circumstances. He made endorsement to the said effect at point 'A to A' bearing his signature at point B at the back of MLC MarkXX.
Case No.192/2017 State Vs. Abhijeet Singh 5/30PW6 Sh. Ribu Sudan Public witness He deposed that he is working as a Sharma Manager at Hari Piorko, Main Bazar, Pahar Ganj, Delhi. He deposed that pursuant to the notice given to him by the police he had given the photocopy of the licence of the hotel, copy of online booking of the room, photocopy of hotel guest register containing relevant entries, photocopy of foreigner hotel guest register, copy of the ID proof of accused and prosecutrix and copy of ID proof of guest Bihari Vinod.
Police had taken into possession the said documents vide seizure memo Ex.PW6/A bearing his signature at point A. He proved the photocopy of the licence of the hotel is MarkH1, copy of online booking of the room is MarkH2, photocopy of hotel guest register containing relevant entries running into 4 pages vide Ex.PW6/A, photocopy of foreigner hotel guest register vide Ex.PW6/B (OSR), copy of the ID proof of accused MarkH3 and prosecutrix, copy of ID proof of prosecutrix vide MarkH4 and copy of ID proof of guest Bihari Vinod vide MarkH5. He has brought the original license of the hotel and proved the copy of the same vide Ex.PW6/C. He has proved original hotel guest register containing the entries vide Ex.PW6/A.
10. It was pointed out by Ld. Addl. PP Case No.192/2017 State Vs. Abhijeet Singh 6/30 for State that exhibits with regard to the entries of foreigner hotel guest register has inadvertently been given on the seizure memo of the documents dated 18.01.2017 as Ex.PW6/A, whereas this exhibit should have been exhibited as Ex.PW6/B and should have been given on the relevant entries of foreigner hotel guest register. Considering the submissions of Ld. Addl. PP for State document i.e. foreigner hotel guest register be read as Ex.PW6/B. The exhibits given on the seizure memo is now de exhibited. He deposed that the guest Vinod Bihari Pokhariyal had come had come with the accused Abhijeet to the hotel at the time of checkin. He was allotted room no. 224 on the second floor. The booking qua the said quest was not made through online.
11. He had given the relevant documents to the police vide seizure memo Ex.PW6/D bearing her signature at point A. The relevant entries were made in the said hotel guest register by both the guests in his presence.
PW7 Ct. Shyam Police witness He had taken the parcels Sunder containing exhibits pertaining to this case in sealed condition along with sample seal from MHC(M), PS Paharganj to FSL, Rohini vide Road Certificate Ex.PW7/A. He proved the copy of the Case No.192/2017 State Vs. Abhijeet Singh 7/30 acknowledgement with regard to receipt of the said exhibits at FSL Rohini vide Ex.PW7/. He stated that the said exhibits/case property were not tampered with in any manner till they remained in his custody.
PW8 ASI Ramesh Police witness/ He proved the relevant entries Chand MHC(M) made in register No.19 and 21 regarding deposit of exhibit and sending the exhibits to the FSL Ex.PW8/A. PW9 Ms. Shilpi Jain Ld. MM She recorded the statement of the prosecutrix u/s 164 Cr.P.C. vide Ex.PW1/C. PW10 W/SI Saroj Bala Police witness She deposed that on 17.01.2017, complaint of complainant was marked to her on the directions of SHO for inquiry. Accordingly, she made inquiry from the complainant at police station. She disclosed to her that she was subjected to rape in a hotel in Paharganj, Delhi. She does not remember of the name of the hotel today but the complainant had named the hotel in the complaint.
She deposed that SHO after discussing with ACP, they came to the conclusion that present matter was not pertaining to the jurisdiction of PS Dwarka. On the directions of ACP, she had produced the complainant before SHO, PS Paharganj on the same day.
PW11 W/SI Veena Police witness/ She has investigated the matter Case No.192/2017 State Vs. Abhijeet Singh 8/30 Sharma Investigating and has testified about the steps Officer taken by her during investigation.
She has also proved handwritten complaint of prosecutrix Ex.PW1/A and site plan on the pointing out of prosecutrix Ex.PW3/A and arresting of the accused vide Ex.PW1/D and getting the statement u/s 164 CrPC of the prosecutrix recorded by moving application Ex.PW9/A. She had also taken into possession Samsung mobile phone which was produced by the accused at the time of his arrest and seized the same vide seizure memo Ex.PW1/E. She had also recorded disclosure statement of the accused Ex.PW11/C. She got conducted potency test of accused by PW5 Dr. Vishal Garg vide MLC MarkXX.
She had also prepared pointing out memo of place of occurrence vide Ex.PW11/D. She had also filed the FSL report qua the mobile phone of accused MarkXXX. The data retrieve from the said mobile phone was provided in a pen drive MarkPX.
PW12 Sh. Pankaj Nodal Officer, He has proved the CDR on behalf Sharma Jio Infocom of Sh. Kamal, then Nodal Officer Ltd pertaining to mobile number 7007810659 Ex.PW12/A of the period 01.09.2016 to 28.02.2016 subscribed in name of accused.
He has also proved customer application form Ex.PW12/B Case No.192/2017 State Vs. Abhijeet Singh 9/30 along with proof of ID i.e. copy of adhaar card of accused.
He has also proved the certificate under section 65 B of Evidence Act Ex.PW12/C on behalf of Sh.
Kamal, then Nodal Officer qua the said record. He also proved the cell ID chart of the company Ex.PW12/B on behalf of Sh.
Kamal, then Nodal Officer.
PW13 Sh. Pawan Nodal Officer,
12. He has proved the CDR pertaining Singh Idea Cellular to mobile phone number Ltd. 9690297262 Ex.PW13/A of the period 01.09.2016 to 13.07.2017 subscribed in the name of prosecutrix. He has also proved customer application form Ex.PW13/B along with proof of ID i.e. copy of ration card and PAN card of subscriber. He has also proved the certificate under section 65B of the Evidence Act Ex.PW13/C qua the said record.
PW14 Sh. Mukut Nodal Officer, He has proved the CDR pertaining Bhandari BSNL to mobile phone number 9415684938, Ex.PW14/A of the period 04.09.2016 to 12.07.2017 subscribed in accused name. He also proved the certificate under section 65B of the Evidence Act, Ex.PW14/B qua the said record.
He also provided subscriber data Ex.PW14/C. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
13. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement was recorded u/s Case No.192/2017 State Vs. Abhijeet Singh 10/30 313 Cr.P.C. Accused denied all the incriminating evidence against him. Accused claimed that initially prosecutrix contacted him on 08.09.2016 on Linkedin and invited him to join her profile. He never responded to her request but again thereafter, prosecutrix contacted him on 28.09.2016 at 03:34 a.m. on Linkedin profile and asked for his mobile phone number. He did not give his mobile phone number to her but prosecutrix again sent him a message on 29.09.2016 at 08:40 p.m. and gave her mobile phone number 9690297262 and asked him to call or message whenever he wished. Even then he did not call her. However, on 30.09.2016 prosecutrix called him on his mobile phone number 9415684938 from her mobile phone number 9690297262 and she told him that she had obtained his mobile phone number and other details from BHU website. She also taken copy of his photographs from BHU website. Accordingly, their friendship developed.
14. He further stated that on 12.12.2016 when he was going to Alwar he had informed the prosecutrix about his visit to Alwar, on her persistent requests he had come to Delhi for going to Alwar and then she told him that she would come to his room in the hotel directly as she was aware of the city. Thereafter, she met him at Aerocity Metro Station. Myself, prosecutrix and another professor from Nepal came to Hotel Hari Piorko, Paharganj, Delhi. At the time of checkin in the hotel she produced her own ID which was not of Delhi. She had also informed him that ID of Delhi will not be accepted by the hotel. Therefore, she produced her ID which was having an address of Aligarh, U.P. In one room professor from Nepal stayed. In the other room he stayed and prosecutrix insisted to stay in his room and he allowed her. Next morning she left from the hotel and came back to the hotel in the evening. During the day when he called her to know her whereabouts, she asked him to come at Case No.192/2017 State Vs. Abhijeet Singh 11/30 Connaught Place at Kake Da Dhaba. He reached there and they had lunch together in the said Dhaba. She also took him to Van Hussain showroom in Connaught Place and got purchased a shirt for him. She made payment through her credit card. In the evening he and prosecutrix returned to hotel. he never had any sexual relationship with the prosecutrix during his stay in the hotel. She took him from the hotel to Shivaji Stadium by an auto. From there they took Metro and came to Airport ID where she made him see off. He further stated that thereafter, prosecutrix had been calling him number of times insisting him to come to Delhi and Lucknow. She had also insisted him to come to Lucknow to celebrate Valentine's day as she had one programme in IIM Lucknow from 03.02.2017 to 13.02.2017. When he refused she lodged the present case against him. He is innocent. Accused has not preferred to lead defence evidence.
ARGUMENTS:
15. Ld. counsel for accused argued and submitted that the FIR is delayed for about 34 days. The testimony of prosecutrix does not inspire confidence and her testimony is not corroborated either by ocular evidence or by medical evidence or by scientific evidence.
16. Ld. counsel for accused further submitted that the medical evidence of the prosecutrix does not suggest that she was sexually assaulted from 13.12.2016 to 15.12.2016. There is neither any medical examination of the prosecutrix nor any chemical examination or any serologist report to suggest that she was raped on the alleged dates, time and place.
Case No.192/2017State Vs. Abhijeet Singh 12/30
17. Ld. counsel for accused further submitted that there is unnatural conduct of PW1 prosecutrix "RS" which shakes her credibility as well as the genesis of the prosecution case. The story of prosecutrix of attending the seminar on 13.12.2016 is unbelievable as the 13.12.2016 was gazetted holiday on the occasion of MiladUnNabi (Birthday of Prophet Mohammad). Moreover, the RTI reply of the IIM, Noida which was filed during arguments on bail also says that no seminar/conference was on 13.12.2016 as it was gazetted holiday.
18. Ld. counsel for accused further submitted that as per the story of the prosecution and on the analysis of the CDRs supplied by the prosecution, it is revealed that the prosecutrix as well as the accused were in close proximity with each other and a careful perusal of the CDRs further revealed that the prosecutrix had made around 529 calls to the accused from 16.12.2016 till 29 th, January 2017 i.e. after the alleged incident, which further shows that the present case is a completely false and fabricated case.
19. Ld. counsel for accused further submitted that the alleged occurrence as per the case of prosecution took place from 13.12.2016 to 15.12.2016. It is further alleged that after the incident the prosecutrix remained in the company of her parents and relatives and she had various opportunities to lodge the FIR at the earliest but she did not do so. Admittedly, the prosecutrix did not disclose to any of her family members or relatives about the alleged occurrence. It is alleged that for the first time the prosecutrix disclosed the facts of rape having been committed on her person by the accused on 05.01.2017 to her brother Bharat Kumar Raghav but still the matter was not reported to the police on that day. Thus, it is evident that the complaints Ex.PW1/A and Ex.PW1/B are fabricated on the behest of her brother and investigating agency.
Case No.192/2017State Vs. Abhijeet Singh 13/30
20. Ld. counsel for accused further submitted that admittedly, the alleged place of occurrence is just near the police station Pahar Ganj, Delhi but the matter was not reported to the police station. However, on 05.01.2017 a written complaint was made by the prosecutrix to the DCP, Dwarka, New Delhi which is far away from the place of occurrence. However, on the basis of the compliant made to the DCP Dwarka, New Delhi no FIR was registered which suggests that the complaint made on 05.01.2017 to the Deputy Commissioner of Police, Dwarka, New Delhi was found to be false/concocted.
21. Ld. counsel for accused further submitted that no person from the office of DCP, South West, Dwarka, New Delhi has been examined in this case to prove the receipt of the said complaint.
22. Ld. counsel for accused further submitted that the material part of the statement of the prosecutrix has been confronted as the same was not deposed U/s 161 & 164 Cr.P.C. and as such she could not be held to be reliable witness. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
23. On the other hand, Ld. Addl. PP for the State has submitted that the testimony of prosecutrix is very specific on all counts. She has narrated the details of incident how accused kept on contacting her and compelled her to visit and meet him in Delhi. She has also specifically stated that on 12.12.2016 in the afternoon accused called her on phone and told her that he would visit Alwar, Rajasthan for Viva Voice and he would meet her somewhere in Delhi and accordingly accused asked her to meet at Aerocity Metro Station.
Case No.192/2017State Vs. Abhijeet Singh 14/30
24. Ld. Addl. PP for the State further submitted that prosecutrix had specifically stated that accused took her to Hotel Hari Piorko and in the said hotel accused offered her coffee in the lobby and then accused took her to the room of his colleague professor in the said hotel and accused introduced her with the said professor as his wife. Accused asked said professor to go from there and after consuming coffee she became unconscious and when she regained consciousness, she found herself naked and realized that accused had committed sexual intercourse with her. She remained in the hotel with accused from 13.12.2018 to 15.12.2018.
25. Ld. Addl. PP for the State further submitted that prosecutrix has also admitted that her statement was recorded by Ld. MM and she identified her statement. As such the testimony of prosecutrix is very cogent and inspiring confidence there is no reason for prosecutrix to falsely implicate the accused. Accused had also admitted in his statement u/s 313 Cr.P.C. that he had come to Delhi and stayed with prosecutrix in the said hotel at Pahar Ganj during the period 13.12.2016 to 19.12.2016.
26. Ld. Addl. PP for the State further submitted that only matter for consideration is that the accused had taken liberty and took advantage of the situation of the prosecutrix and then raped her against her wish. It has been clearly stated by the prosecutrix and there is nothing to suggest that her testimony should be disbelieved in this regard.
27. Ld. Addl. PP for the State further submitted that fact of accused and prosecutrix calling each other is also corroborated from the deposition of PW12 and PW13 and PW14 Mukut Bhandari who had proved call details of the relevant mobile Case No.192/2017 State Vs. Abhijeet Singh 15/30 phone of the prosecutrix and accused.
28. Ld. Addl. PP for the State further submitted that prosecutrix has very well explained the delay in lodging the complaint. She was not keeping well and delay was caused in lodging complaint because of the trauma suffered by the prosecutrix due to act of rape committed by accused with her. Ld. Addl. PP for the State submitted that the accused may kindly be convicted.
PERUSAL OF RECORD:
29. Arguments heard. Record perused. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW1/A, present FIR was registered against the accused.
30. It is further revealed that accused was arrested vide arrest memo Ex.PW1/D and police had also taken into possession his Samsung mobile phone vide seizure memo Ex.PW1/E.
31. It is further revealed that on 17.01.2017 PW2 HC Parmod Kumar has proved FIR vide PW2/B. He also gave certificate, Ex.PW2/D under 65 B of the Evidence Act regarding correct contents of computerized copy of FIR.
32. It is further revealed that W/Ct. Sudesh along with IO W/SI Veena took the prosecutrix to Lady Hardinge Medical College & Hospital, where she was medically examined vide MLC, Ex.PW4/A by PW4 Dr. Sulekha; after her medical examination prosecutrix led the IO W/SI Veena to the place of incident i.e. Hotel Hari Piorko, Main Bazar, Paharganj, Delhi and pointed out room no. 223; IO W/SI Veena prepared pointing out memo, Ex.PW3/A. Case No.192/2017 State Vs. Abhijeet Singh 16/30
33. It is further revealed that PW6 Sh. Ripu Sudan Mishra has proved the photocopy of the license of the hotel, Ex.PW6/C (also as MarkH1), copy of online booking of the room MarkH2, photocopy of hotel guest register Ex.PW6/A containing relevant entries, photocopy of foreigner hotel guest register Ex.PW6/B, copy of ID proof MarkH3, copy of ID proof of prosecutrix, MarkH4 and copy of ID proof of guest Bihari Vinod, MarkH5; police had taken into possession the said documents. PW6 Sh. Ripu Sudan Mishra had given the relevant documents to the police vide seizure memo, Ex.PW6/D.
34. It is further revealed that PW11 W/SI Veena Sharma took the prsoecutrix to Lady Hardinge Medical College and got her medical examination conducted vide MLC, Ex.PW4/A. Prosecutrix had refused to undergo her internal medical examination; thereafter, prosecutrix took them to the place of occurrence and pointed out the same; PW11 prepared the site plan, Ex.PW11/A; she had also prepared pointing out memo, Ex.PW3/A in this regard.
35. It is further revealed that PW11 W/SI Veena Sharma had got the statement of the prosecutrix recorded u/s 164 Cr.P.C. vide Ex.PW1/C.
36. It is further revealed that I.O. arrested accused vide arrest memo, Ex.PW1/D; his personal search accused was conducted by Ct. Veer Singh vide personal search memo, Ex.PW11/B; she had also recorded his disclosure statement, Ex.PW11/C.
37. It is further revealed that PW11 W/SI Veena Sharma had also taken into possession Samsung mobile phone which was produced by accused at the time Case No.192/2017 State Vs. Abhijeet Singh 17/30 of his arrest vide seizure memo, Ex.PW1/E.
38. It is further revealed that PW11 W/SI Veena Sharma got conducted potency test of accused vide MLC MarkXX.
39. It is further revealed that accused had also pointed out place of occurrence vide pointing out memo, Ex.PW11/D; she had also got sent the exhibits pertaining to this case to FSL; she had also filed the FSL report, MarkXXX qua his mobile phone in the court vide her application, Ex.PW11/E.
40. It is further revealed that PW11 W/SI Veena Sharma had obtained CDRs of the mobile phone number, 9690297262 of prosecutrix and two mobile phones of accused numbers, 7007810659 and 9415684938; she had filed the same on judicial record by way of supplementary charge sheet which are Ex.PW14/A, Ex.PW14/B, Ex.PW14/C and Ex.PW12/A, Ex.PW12/B, Ex.PW12/C and Ex.PW12/D and also Ex.PW13/A, Ex.PW13/B and Ex.PW13/C.
41. It is further revealed that PW12 Sh. Pankaj Sharma, Nodal Reliance Jio Infocom Ltd. has proved the CDR on behalf of Sh. Kamal, then Nodal Officer pertaining to mobile phone number 7007810659, Ex.PW12/A of the period 01.09.2016 to 28.02.2016 subscribed in name of accused. PW12 Sh. Pankaj Sharma also proved customer application form Ex.PW12/B alongwith proof of ID i.e. copy of aadhaar card of accused. PW12 Sh. Pankaj Sharma also proved the certificate under section 65 B of the Evidence Act, Ex.PW12/C on behalf of Sh. Kamal, then Nodal Officer qua the said record. He also proved the cell ID chart of the company Ex.PW12/B on behalf of Sh. Kamal, then Nodal Officer.
Case No.192/2017State Vs. Abhijeet Singh 18/30
42. It is further revealed that PW13 Sh. Pawan Singh, Nodal Office, Idea Cellular Ltd. has proved the CDR pertaining to mobile phone number 9690297262, Ex.PW13/A of the period 01.09.2016 to 13.07.2017 subscribed in the name of prosecutrix. PW13 Sh. Pawan Singh also proved customer application form, Ex.PW13/B along with proof of ID i.e. copy of ration card and PAN card of subscriber. PW13 Sh. Pawan Singh also proved the certificate under section 65 B of the Evidence Act, Ex.PW13/C qua the said record.
43. PW14 Sh. Mukut Bhandari, Nodal Office, BSNL, Eastern Court, Janpath, New Delhi has proved the CDR pertaining to mobile phone number 9415684938, Ex.PW14/A of the period 04.09.2016 to 12.07.2017 subscribed in name of accused. PW14 Sh. Mukut Bhandari also proved the certificate under section 65 B of the Evidence Act, Ex.PW14/B qua the said record. PW14 Sh. Mukut Bhandari also provided subscriber data Ex.PW14/C from the system to the police.
44. It is further revealed that PW7 Ct. Shyam Sunder had taken the exhibits of this case to FSL, Rohini and deposited there vide road certificate Ex.PW7/A. He also obtained acknowledgement vide Ex.PW7/B. PW8 ASI Ramesh Chand had produced the relevant entries of register no.19 vide Ex.PW8/A pertaining to this case.
45. Before reaching at any conclusion, let the relevant sections i.e. 328/376(2)
(n)/343/506 IPC be reproduced, which are as under: Section 328 IPC.
Causing hurt by means of poison, etc. with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or with thing with intent to cause hurt to such person, or with intent to commit or to facilities the commission of an offence or knowing it to be Case No.192/2017 State Vs. Abhijeet Singh 19/30 likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 376 (2) (n) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same 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.
Section 343 IPC:
Wrongful confinement for three or more days. Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS OF THIS COURT:
46. Having heard the arguments advanced by ld. counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the witnesses, this court is of the considered view that it is revealed that present case FIR No. 41/2017 u/s.328/376/506 IPC was registered on the handwritten complaint of the complainant wherein she has alleged that she is resident of the address given in the complaint and working as Assistant Professor in Degree College, Aligarh, U.P. and pursuing Ph.D. in management and came in professionally contact with the accused Dr. Abhijeet Singh, working as professor in Banaras Hindu University (BHU) regarding her Case No.192/2017 State Vs. Abhijeet Singh 20/30 research work and the accused occasionally contact her on phone and insisted her to meet her once and she refused outrightly to meet him but the accused continuously compelled her to meet him for professional meeting and she planned to attend conference at IIM, Noida Campus which is prescheduled and accused told her that he also visited to a private University, Alwar, Rajasthan for vivavoice of scholar and would like to meet her at any public place with other professors on 13.12.2016. She went from her home and on the way, she met Abhijeet Singh along with his colleague professor and he requested her to sit in the cab and dropped her after discussion but with malafide intention he diverted the car to Pahar Ganj at Hotel Hari Piorko and request her again to sit for a while in a hotel till his colleague checkin hotel. Accused offered her drink (coffee) and after taking the coffee, she became unconscious and found herself in objectionable position with him in that hotel room and she remained in the said hotel from 13.12.2016 to 15.12.2016 under coercion (threat). Accused kept her purse and mobile with him and delete all SMS and details from the phone and accused raped her multiple times and accused mentally tortured her and abused her. Upon this written complaint dated 17.01.2017, FIR was registered and investigation was carried out and accused was arrested. Medical examination of prosecutrix was carried out to which she refused for her internal medical examination but narrated all the incident to the doctor who has prepared the MLC.
47. That, the court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. It has also been laid down by Hon'ble Apex Court of India in Case No.192/2017 State Vs. Abhijeet Singh 21/30 various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence, believable and trustworthy.
48. That, during the course of examinationinchief prosecutrix 'RS' examined as PW1, she has deposed that during her stay in Delhi, she came into contact with accused Abhijeet Singh through Linkedin, social networking site for purpose of her research work. She needed inputs from professor accused for data collection for her research work. The statement made by the prosecutrix in the court that she came into contact with accused through Linkedin, social networking site for the purpose of her research work has not been mentioned in written complaint made by prosecutrix neither in the complaint dated 05.01.2017 made to the DCP, Dwarka nor in the complaint dated 17.01.2017 written to the SHO PS Pahar Ganj, therefore, this is major contradiction in the statement of prosecutrix made to the police as well as to the court as to how the prosecutrix came into contact with accused.
49. That, it has no where stated in the written complaint made to the police on 05.01.2017 that she met with the accused through Linkedin social networking site but in the statement u/s 164 Cr.P.C. made by her before the Ld. MM she has improved her statement and told to the ld. MM that she came in contact with the accused through Linkedin on social media and there is an improvement in the statement led by the prosecutrix as well as statement made by her to ld. MM at the time of recording of statement u/s 164 Cr.P.C. and where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no Case No.192/2017 State Vs. Abhijeet Singh 22/30 conviction can be based on the evidence of such witnesses.
50. That, in the examination in chief, prosecutrix has deposed that she received invitation on 06.12.2016 for convocation at IIM, Noida Campus, U.P. as she was member of Strategic Management Forum of IIM. Accordingly intimated the said programme to the accused and accused told her to let him know if it would be convenient to him to visit the said campus during the convocation and after the said conversation, one day, she came to know that accused was friend of her husband and earlier both were working in the same institute in Varanasi. Thereafter, she maintained distance in conversation with the accused.
51. That, the allegation against the accused are that from 13.12.2016 to 15.12.2016, the accused had committed sexual intercourse with the prosecutrix without her consent in Hotel Hari Piorko at Pahar Ganj and the accused also taken her mobile phone and other belongings in his possession and therefore, she could not made call to anyone during 13.12.2016 to 15.12.2016 and the another allegation is that the accused himself get booked the room in the hotel in Pahar Ganj where the alleged rape has been committed by the accused with the prosecutrix but in the cross examination itself, she has admitted that on 15.12.2016, accused took her firstly to Shivaji Stadium Metro Station and from there he took her to Aerocity Metro Station and he went away after dropping her there. He had also returned her aforesaid belongings along with her mobile phone. When she reached her home, she checked her mobile phone and found that accused had deleted recording of her chatting through whatsapp and SMS exchanged between them. The prosecutrix being highly educated lady could not make call to anyone during 13.12.2016 to 15.12.2016 because her mobile phone was taken by the accused but as per her own statement and testimony Case No.192/2017 State Vs. Abhijeet Singh 23/30 made in the court that on 15.12.2016, accused had returned her belongings along with mobile phone but she could not make any call to the police or any other person in respect of the complaint of the alleged incident of rape is itself unbelievable.
52. That, the prosecutrix has also stated that the room was booked in the hotel Hari Piorko at Pahar Ganj by the accused himself and at that time she was having suitcase, handbag and laptop bag with her and she was comfortable with the accused and "it is correct that from coming out of the hotel they both took auto and went to Shivaji Stadium Metro Station and from there both took metro and reached Aerocity Metro Station and accused went inside the airport and took his flight and the prosecutrix see off accused and went to her home at Dwarka and she did not make any phone call on 15.12.2016 to any of his friend or relative or to anyone else in respect of alleged incident of rape."
53. It is further deposed that as she made her first visit in the hotel as such she did not know the formalities required to be completed in the hotel and accused told her that till the formalities are completed she would sit in the lobby and accused offered coffee in the said lobby which she declined but after sometime she consumed coffee and then professor Pokhariyal, friend of the accused came out of the room and she went to the room along with said professor accused but number of said room is not remember to the prosecutrix and the prosecutrix, being highly educated lady, it is very improbable and unbelievable that she is not aware about the completion of the formalities for taking room in any hotel or that room number of that hotel is not remember to her particularly when she stay there from 13.12.2016 to 15.12.2016.
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54. That, the statement of prosecutrix is highly unreliable and untrustworthy and inspire no confidence on the ground that PW11 W/SI Veena Sharma, I.O. of this case who had obtained the copy of the entry register from the said hotel where offence of rape alleged to have been committed by accused with the prosecutrix and it reveals that the prosecutrix had also submitted her I.D. proof in that hotel and perusal of the said I.D. proof, which was seized by the I.O. during the investigation reveals that the same reflects the name and address of the prosecutrix and address on the said I.D. is of Aligarh, U.P. Therefore, testimony of the prosecutrix itself is unreliable.
55. That, during the cross examination, prosecutrix has deposed that she had not handed over her mobile phone to the police during the investigation of police as police did not ask her for the same but the I.O. who is PW11, herein has deposed that she had asked prosecutrix to hand over her mobile phone but she refused to handover the same. Therefore, the testimony of the prosecutrix is not of much credence.
56. Prosecutrix has admitted that she is the daughter of retired commandant from CRPF and she did not make any call to the police or to the PCR in respect of alleged offence of rape allegedly have been committed by the accused during 13.12.2016 to 15.12.2016 in the hotel Hari Piorko at Pahar Ganj. It has also been alleged that on 26.12.2016, the accused called her on phone to come at the gate of society and threatened her not to make any complaint to the police but she also did not make any complaint of extending alleged threat of the accused dated 26.12.2016.
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57. That, in the examination in chief prosecutrix has admitted that mobile number 9690297262 belong to her and in the cross examination she has deposed that "I do not remember if the mobile phone number 9690297262 belongs to me or not". That, in the cross examination of prosecutrix she has deposed that "I do not remember if the landline phone number 01147096435 is installed at her residence in the name of her father or not" but she has admitted that one landline phone is installed at her house but the number of the same is not remember to her. It has also been deposed that "I cannot say if I made 529 calls on his i.e. mobile phone of accused number 9415684928 from her mobile phone number 9690297262 between 16.12.2018 to 29.01.2017."
58. The prosecutrix being highly educated, married and of matured understanding lady and is daughter of retired commandant of CRPF and by making her statement in respect of non remembering her mobile number as well as landline number installed at her residence is unbelievable and it is not expected from highly educated and prudent person.
59. That, the prosecutrix has alleged that she met with accused when she get the invitation of attending the seminar on 13.12.2016 is also unbelievable as date 13.12.2016 was gazetted holiday on the occasion of MiladUnNabi (Birthday of Prophet Mohammad). Moreover, the RTI reply of the IIM, Noida which was filed during arguments on bail by ld. Defence counsel also reflects that no seminar/conference was held on 13.12.2016 at IIM, Noida, U.P. as it was gazetted holiday nor any invitation letter issued from IIM, Noida to the prosecutrix has been placed on record nor the same was handed over by the prosecutrix to the I.O. at the time of the investigation of the present case FIR.
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60. That, PW6 Sh. Ripu Sudan Mishra who has brought entries of the Hotel Guest Register has deposed that the guest Vinod Bhandari Pokhariyal had come with the accused Abhijeet to the hotel at the time of checkin and room No.224 on the second floor was allotted and at the time of making the entry in the Guest register the I.D. proof of person are to be taken on record and during the course of investigation, he has handed over the license of the hotel as well as copy of the Guest Entry Register and I.D. proof of the accused as well as prosecutrix to the police and in the cross examination, this witness has admitted that the entrance of the hotel is manned by security guard 24 hours and no one can enter in the hotel without permission of the guard and there are guidelines of Delhi Police not to allot any room to local resident of Delhi and they had checked the IDs of the guests before allotting them room and retained their copies and as the prosecutrix has supplied her I.D. proof and as per I.D. proof, she was not resident of Delhi and was allotted Room no.224 for one night and room no. 223 was booked for 2 nights and they did not receive any complaint from any guest of the aforesaid rooms during their stay.
This witness has also admitted that there is intercom facility in every room of the hotel and they provide buffet facility to the guest. Testimony of prosecutrix is itself unreliable on the ground that she is educated, married and is of matured understanding lady and if rape has been committed by the accused from 13.12.2016 to 15.12.2016 in the hotel then the guard was there, intercom facility was there and she could have brought the incident to the notice to the guard of that hotel or could have make a call to the police or to inform the manager or to the waiter or could have easily come out from the hotel room to make a call to the police or raised an alarm but she did not make any call nor bring to the notice of hotel staff or to any one of the alleged incident of rape.
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61. That, the alleged incident of rape as alleged in the complaint as well as in examination in chief made by prosecutrix in the court is dated 13.12.2016 to 15.12.2016 in hotel Piorko Pahar Ganj but initially the complaint of incident was made to the DCP Dwarka on 05.01.2017 and thereafter, another complaint was made to the SHO PS Pahar Ganj on dated 17.01.2017 and there is delay of 32 days and same has not been explained by the prosecutrix. There is delay of 32 days to report the matter to the police and the prosecutrix is not been able to explain the delay to lodge the complaint to the police for the alleged offence of rape.
That, as per law laid down by Hon'ble Apex Court of India that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed and when an occurrence is not reported for more than 32 days after the occurrence though the police station is only at a very short distance from the place of the occurrence then it is unsafe to base conviction upon the evidence. Reliance is placed upon Thulia Kali V State of Tamil Nadu, AIR 1973 S.C. 501.
62. That, in criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the Case No.192/2017 State Vs. Abhijeet Singh 28/30 chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why, if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution. Reliance is placed upon Dilawar Singh v/s State of Delhi, Criminal Appeal No.491 of 2002 decided on 05.09.2007 of Hon'ble Supreme Court of India.
63. That, there is no evidence in respect of intoxicated substance allegedly given by the accused to the prosecutrix in a coffee and there is no medical report in this regard and the prosecution is not able to prove the same against the accused.
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64. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charges of the offence u/s 328/376(2)(n)/343/506 IPC against the accused beyond reasonable doubt and hence, accused Abhijeet Singh is hereby acquitted from the charges punishable u/s 328/376(2)(n)/343/506 IPC.
65. 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.
66. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
67. Every page of this judgment is signed by me.
68. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 05.01.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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