Delhi District Court
State vs Shashikant Panday @ Saurabh@ on 1 October, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 25/2014
Unique ID No. : 02401R0108262014
State versus Shashikant Panday @ Saurabh@
Chandan
S/o Sh. Surender Panday@Parmod
Kumar
R/o H. No. 225, Bharat Vihar,
Uttam Nagar, Rajapuri, Delhi
Case arising out of:
FIR No. : 101/2014
Police Station : Sarai Rohilla
Under Section : 354A/354D/506/376 IPC
Judgment reserved on : 23.09.2014
Judgment pronounced on : 01.10.2014
JUDGMENT
1. The case in hand was registered on the basis of the complaint of the Prosecutrix 'D' [name withheld to protect the identity of the Prosecutrix ] wherein she stated that she lives at Shastri Nagar, Delhi alongwith her parents and works at Jukaso Inn, Malviya Nagar, Delhi. She stated about 02 years ago, she used to work at M2K, Sector3, Rohini and Accused used to come there to supply order of his company and she met him there. Prosecutrix alleged that Accused started developing friendship with him and also obtained her phone number from somewhere and started talking to her. Accused used to ask her to go out with him.
2. Prosecutrix further alleged that about 06 months ago, Accused stopped her outside M2K Rohini and asked her to accompany him on his motorcycle. When she refused him, he threatened to throw acid on her and due to fear, she sat on his motorcycle. Prosecutrix alleged that Accused took her in a room at Dwarka and forcibly established physical relations with her without her consent. Thereafter, Accused took her objectionable photographs and threatened her not to disclose this to anyone, otherwise he would kill her and upload her photographs on Facebook and due to fear, she did not disclose anything to her family. Accused used to trouble her again and again and due to this, she left her job in November. Prosecutrix further stated that thereafter, Accused used to come at her house and used to pressurize her to talk with him. Accused also pressurized her family to talk with him.
Charges:
3. Initially, vide order dated 31.03.2014, Accused was charged for offences punishable under Section 354A/354D/366/376/506 IPC. However, on 23.09.2014 an application under Section 216 CrPC was filed by Ld. Addl. PP seeking amendment of charge.
4. It was submitted by Ld. Addl. PP that on 31.03.2014, charges were framed against the Accused as per complaint/statement made by Prosecutrix wherein she stated that the date of incident was about 06 months before the date of complaint i.e 05.02.2014, but during investigation and in her statement recorded under Section 164 CrPC, she specifically stated that date of incident was in first week of January, 2014 and inadvertently, this date could not be mentioned while framing of charges dated 31.03.2014.
5. Ld. Addl. PP further submitted that the date of incident i.e. first week of January, 2014 is necessary to mention in framing of charge in place of about 06 months before 05.02.2014 in the interest of justice and for the just decision of the case andd the charge dated 31.03.2014 may kindly be amended upto that extent.
6. Upon considering the submissions made, the application was allowed and consequently, amended charge dated 23.09.2014 was framed to which Accused pleaded not guilty when the same was read over to him.
7. Ld. Addl. PP stated that he does not want to recall any witness for further examination after amendment in the charge. Accused states that he does not want to crossexamine any witness after amendment in the charge. Statement of Ld. Addl. PP as well as Accused has been recorded separately to this effect.
Prosecution Evidence:
8. In order to bring home the guilt of Accused, Prosecution examined 06 [Six] witnesses on record.
9. PW2 Prosecutrix 'D' deposed that about two years ago, she was working as a Promotor in a company at M2K Mall, Food Bazar, Sector 3 Rohini, Delhi. She correctly identified Accused when produced in court. She deposed that she met Accused who told his name as Chandan through one of her colleagues. As she had requested her colleague to find another job for her, she told her to give her number to the Accused stating that he would let her know in case any job would be available. Accused started calling her and sending her text messages on her number which she ignored. But after sometime, they started talking and Accused used to say that he loves her and wants to marry her but she ignored him.
10. PW2 Prosecutrix 'D' further deposed that after about two months, she joined 'Country Club' at Rithala which deals with holidays packages. Accused continued to call her and also used to visit her place of residence. Accused started pressurizing her for having physical relations with him but she refused. In the month of November, 2013, she left her job due to regular torture given by the Accused. Accused also started roaming near her house. He also visited her house once and continued to pressurize her to have physical relations with her.
11. PW2 further deposed that in the month of January, 2014, Accused threatened her that he will cause harm to her sister and throw acid on her and under the said threat, he took her to a room on the ground floor of a house at Dwarka. Accused forcibly established physical relations with her. He also took her nude pictures and threatened to show them to her family members and to upload her said pictures on the internet.
12. PW2 made a complaint against the Accused at Women's Helpline No.181. Accused did not follow her thereafter for about 45 days. However, after 45 days he again started sending her messages and again started roaming in the gali outside her house.
13. On 04.02.2014, while she was returning from her place of work, she saw Accused in a gali near Shastri Nagar Metro Station. Accused chased her. She took shelter in a house in the said gali. On the next day, she went to PS Sarai Rohilla and made complaint against the Accused. The said complaint is Ex.PW2/A. Prosecutrix was taken for her medical examination to Hindu Rao Hospital. Her statement was recorded under Section 164 Cr.PC before the learned MM which is Ex PW2/B.
14. On the next day, Accused was apprehended near Shastri Nagar Metro Station and was arrested vide arrest memo Ex.PW2/C and his personal search was also conduced vide memo Ex.PW2/D. Prosecutrix pointed out the place of incident at Dwarka. Police prepared the site plan.
15. PW3 Randhir Rana deposed that H. No. 225, Bharat Vihar, Delhi belongs to his brother namely Satish. His brother is not living in this house and the house has been let out by him. In FebruaryMarch, 2013, his brother let out the said house to one Ravi, brother of Accused, who lived in that house for about one year. PW3 correctly identified Accused when produced in court.
16. PW1 Dr. Payal gynecologically examined Prosecutrix 'D' and gave her report on the back of MLC No. 749/14 which is Ex. PW1/A. She handed over all the samples alongwith outer and inner clothing of Prosecutrix to the police.
17. PW5 HC Vijay Singh was Duty Officer, who recorded FIR, computerized copy of which is Ex. PW5/A.
18. PW4 Insp. Indu Rani deposed that on 05.02.14 she was posted as SI at PS Sarai Rohilla. On that day, Prosecutrix 'D' alongwith her mother came at PS. She recorded her statement which is already Ex. PW2/A. She prepared the rukka Ex. PW4/A on the said statement and got registered the FIR. She alongwith W. HC Tagren took the Prosecutrix to Hindu Rao Hospital where Prosecutrix was medically examined. W. HC Tagren handed over some sealed exhibits which she received from examining doctor. She seized the same vide seizure memo Ex. PW4/B. They came back to PS. Ct. Rajender gave her the original rukka and copy of FIR. She recorded the statement of witnesses. Exhibits were deposited in malkhana. The investigation of this case was transferred to SI Alma Minz as she had to proceed on leave.
19. PW6 W. SI Alma Minz deposed that on 06.02.14 she was posted at PS Sarai Rohilla as SI. On that day, the investigation of this case was assigned to her after registration of FIR. She took the Prosecutrix to Tis Hazari Courts where her statement under Section 164 CrPC was recorded on her application. She collected copy of statement. Prosecutrix was given counselling. Accused Shashikant Pandey @ Saurav @ Chandan was apprehended near Shastri Nagar Metro Station at instance of Prosecutrix 'D'. PW6 correctly identified Accused when produced in court. On interrogation Accused was arrested vide arrest memo Ex. PW6/A and his personal search was conducted vide memo Ex. PW6/B. She recorded disclosure statement of Accused.
20. PW6 further deposd that on the next day, she inspected the spot i.e A225, Raja Puri, Uttam Nagar and prepared the site plan Ex. PW6/B. Accused was medically examined vide MLC Ex. PW6/C [not disputed by Accused] and his potency test was also conducted vide report Ex. PW6/D [not disputed by Accused]. She collected some exhibits from the examining doctor and seized vide seizure memo Ex. PW6/E. Exhibits were deposited in malkhana. She recorded the statement of witnesses. Accused also pointed out the place of incident. She collected the age proof of Prosecutrix from her school which is Ex. PW6/F [not disputed by Accused]. Exhibits were sent to FSL. She completed the investigation, prepared the chargesheet and filed it in court.
Plea of Accused:
21. In statement recorded under Section 313 CrPC, Accused pleaded innocence and false implication. Accused stated that he and Prosecutrix were having friendly relations since December, 2011. Thereafter, he was transferred to his office at Jaipur. He used to come on holidays and weekends to meet the Prosecutrix. In the end of 2013, he saw her with some other person and they had a quarrel and that is why Prosecutrix has falsely implicated him in this case. Accused also stated that physical relations were never established between him and the Prosecutrix at any point of time.
22. Accused chose not to lead any evidence in his Defence. Arguments, Analysis and Findings:
23. I have heard the arguments advanced by Ld. Defence Counsel and Ld. Addl. PP for the State and have also gone through the evidence on record.
24. In order to decide the issues in question in the present case, it is the testimony of Prosecutrix PW2 'D', which needs to be scrutinized in the minutest detail, she being the star witness of the Prosecution.
25. The Prosecutrix deposed that about 02 years ago, she was working in Food Bazar, Sector3, Rohini. She was introduced to the Accused by one of her colleagues. She gave her number to the Accused, as suggested by her colleague that he can arrange another job for her. Prosecutrix deposed that Accused started calling her and sending her text messages, which she ignored for sometime, but thereafter, they started talking and Accused wanted to marry her.
26. Thus, as per the testimony of the Prosecutrix herself, she was well aware of the fact that Accused was interested in marrying her since the very inception.
27. She further deposed that after 02 months, she joined Country Club, Rithala and Accused used to call her and also used to visit her place of residence. She further deposed that Accused started pressurizing her for having physical relations with him, but she reused for the same and in the month of November, she left her job due to regular torture of Accused. She also deposed that Accused started roaming near her house. He also visited her house once and continued to pressurize her to establish physical relations with him.
28. A bare perusal of the aforesaid testimony of the Prosecutrix is sufficient, in my opinion, to reveal that Accused had already expressed, it in clear terms to the Prosecutrix, that he wanted to establish physical relations with her and as per Prosecutrix herself, Accused was pressurizing her for the same.
29. She further deposed that in January 2014, Accused threatened her that he will cause harm to her sister and throw acid on her and took her to a room at a house at Dwarka where he raped her and also took her nude pictures and threatened to show them to her family members and to upload the said pictures on the internet. In her crossexamination, Prosecutrix PW2 'D' admitted that she did not make any complaint against Accused to anyone for sending her text messages. She also deposed in her cross examination that on the date of alleged incident of rape in January, 2014, Accused had called her to Inderlok Metro Station from where he took her to Dwarka on a motorcycle. It has also come on record during cross examination of Prosecutrix 'D' that she talked to Accused on phone for about half an hour before he met her at Inderlok Metro Station. He told her that they have to go to Dwarka and when she enquired about the reason for going there, he refused to tell her stating that she should do only what he asks her to do.
30. PW2 also stated in her crossexamination that she received the said phone call of Accused, when she was at her house. She did not tell anything to her family members nor made any complaint to the police.
31. A conjoint reading of the entire testimony of the Prosecutrix thus reveals that Prosecutrix was at her home when she was allegedly threatened by Accused to accompany him to Dwarka in January 2014. As per the deposition of the Prosecutrix, Accused threatened to throw acid on her and also to cause harm to her sister, in case he does not do whatever he says. To my mind, the lack of complete action on part of Prosecutrix by not making any complaint either to her family or even to the police, in these circumstances, is extremely surprising. The mere alleged threat on phone is not sufficient, in my opinion, to constitute a threat of such magnitude, which could have compelled Prosecutrix 'D' to meet Accused, firstly at Inderlok Metro Station and thereafter, to accompany him to Dwarka on his motorcycle, as deposed by her.
32. Moreover, as per her admissions, she spoke to the Accused before leaving her house for half an hour on that day. At this juncture, it is also pertinent to note that as per Prosecutrix 'D', Accused had already expressed his desire to her that he wants to establish physical relations with her. In this backdrop, the testimony of the Prosecutrix to the effect that Accused took her to all the way to Dwarka from her house at Shastri Nagar under a threat allegedly extended on phone, does not seem convincing enough.
33. Moreover, the Prosecutrix also admitted in her cross examination that she did not try to seek help from any public person when the motorcycle stopped at traffic intersections on the way to Dwarka though she claimed that she was crying while going to Dwarka. She further admitted that though there are several other houses near the place where Accused raped her, she did not raise any alarm after getting down from motorcycle at Dwarka and on the way to the room where Accused raped her. Moreover, she made no complaint to the police or to her family members even after the incident.
34. It is further important to note that Prosecutrix at the time of crossexamination voluntary added that she made complaint against the Accused after her family members came to know about her and Accused.
35. It is thus, apparent in these circumstances and in the light of the aforesaid admissions of the Prosecutrix in her crossexamination, that Accused can certainly not be held liable for having committed offence under Section 366/376/506 IPC.
36. The claim of the prosecutix that she was being threatened by the Accused or that Accused abducted her in the month of January, 2014 or took her to Dwarka or committed rape upon her, cannot be said to be proved on record beyond reasonable doubt.
37. Moreover, the claim of the Prosecutrix that Accused was talking or demanding sexual favours by sending SMS in form of electronic communication, also does not stand the test of proof beyond reasonable doubt, keeping in view the testimony of Prosecutrix as a whole. It is a matter of record that Investigating Agency has not brought on record any such electronic evidence on record in form of SMS, nor is it claim of the Prosecutrix that she made any complaint against Accused at any point of time. Prosecutrix made the complaint against the Accused after her family members came to know about her and Accused. Her claim that she made complaint against Accused at Women Helpline No. 181, also does not stand substantiated on record, in the light of the fact that even the date of making such complaint by the Prosecutrix has not surfaced during entire length of trial, much less any proof of any such complaint.
38. In the light of above discussion, the Accused to my mind definetely deserves benefit of doubt and is liable to be acquitted on all counts on which he has been facing trial in this case. It is thus ordered accordingly. Accused be released forthwith, if not wanted in any other case.
39. File be consigned to Record Room.
Announced in the Open Court on 01.10.2014 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.