Delhi District Court
And Directions Of Hon'Ble Supreme Court ... vs . Puttraj on 2 November, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 27277/2016
State V Waseem @ Waseem Benhga @ Mittal
s/o. Yameen, r/o. H. No.157, Katra
Gokul Shah, Jama Masjid, Delhi.
FIR No. 73/2016
U/s 376/328 IPC
Police Station Chandni Mahal
Assigned to Sessions 07.05.2016
Charges framed on 08.08.2016
Arguments heard on 02.11.2019
Judgment pronounced on 02.11.2019
Decision Acquitted.
Appearance : Sh. Ateeq Ahmad, ld. Addl. PP for the State.
Sh. Arun Sharma, ld. Counsel for accused.
JUDGMENT:
1. The case of the prosecution is that, the Station House Officer of Police Station Chandni Mahal had filed a chargesheet before the court of ld. Metropolitan Magistrate vide FIR No.73/2016 dated 24.03.2016 u/s. 376/328 IPC for the prosecution of accused Waseem @ Waseem Benhga @ Mittal 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", Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 1/20 the name and identity of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, on dtd. 24.03.2016, the case was registered on the statement of prosecutrix wherein she alleged that she is a house wife and she has a daughter aged about 2 ½ years out of her wedlock. She further alleged that about three months back prior to the registration of the FIR, she went to LNJP Hospital for the treatment of her daughter where Waseem @ Benhga (accused herein) met her and she and accused exchanged their mobile phone numbers and the accused said to her that he can provide her a flat of lower rent. Since the prosecutrix wanted to change her rented accommodation, she talked with the accused on his mobile 23 times. On dtd. 23.03.2016, at about 11:00 p.m., accused called her at Ganjmeer Khan to show the flat by telling her that he had no time in day so he called her at about 11:00 p.m.. Accordingly, the prosecutrix reached and talked with the accused. After sometime, two friends of accused in a Red Colour car came there and accused asked the prosecutrix to sit in the vehicle as it was not proper to stand on a public place. The prosecutrix sit in the said car and thereafter, accused gave her cold drink to consume which was already kept in the vehicle. The prosecutrix consumed the said cold drink and thereafter, she felt giddiness. After about 1520 minutes, she regained her consciousness and found that it was 1:30 a.m., she was at Ganjmeer Khan and somebody was got down her from the car and her string of Salwar was opened. Thereafter, the prosecutrix made call to her friend Rehana and went to her house and told all the above said fact to her and thereafter, she along with her Friend Rehana went to Police Station for lodging the FIR where the statement of the prosecutrix was recorded and on the basis of the statement, W/SI Seema Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 2/20 Bhati prepared rukka and get the case registered and then she along with prosecutrix reached at the place of incident and prepared site plan Ex.PW15/A.
3. That, on dtd. 24.03.2016, prosecutrix was medically examined in Lok Nayak Hospital. On dtd. 25.03.2016, statement of prosecutrix u/s 164 Cr.P.C. was recorded by Ld. MM.
4. That, on dtd. 25.03.2016, accused was arrested and he was medically examined in Lok Nayak Hospital and on 26.03.2016 her potency test was conducted. On dtd. 25.03.2016, statement of prosecutrix u/s 164 Cr.P.C. was recorded by Ld. MM.
5. After completing investigation, chargesheet was filed in the court later on.
During investigation, I.O. SI Mumtaz Bano also filed the call detail record of the mobile phone of victim and accused.
CHARGE:
6. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, Ld. Predecessor of this court vide order dated 08.08.2016 framed charges against accused Waseem @ Waseem Bengha @ Mittal for the offence punishable u/s. 328/376D/323/34 IPC to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
7. That, in order to prove its case, prosecution has examined 17 witnesses namely PW1 ASI Shri Gopal, PW2 ASI Rafeek Deen, PW3 W/PSI Seema Bhati, PW4 Prosecutrix 'M', PW5 Ct. Mahender Singh, PW6 Dr. Rakshit, PW7 Ct. Vivek Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 3/20 Kumar, PW8 Ct. Ravi Kumar, PW9 Dr. Tarun Garg, PW10 Dr. Pushpa, PW11 HC Yadram, PW12 Asif, PW13 Mohd. Tanveer, PW14 Riyazuddin, PW15 W/SI Mumtaz, PW16 Sh. M.L. Meena and PW17 W/SI Anita.
PWs Name of the Nature of the Documents proved Witness witness PW1 ASI Shri Gopal Police witness This witness has proved the DD No.4A vide Ex.PW1/A. He also deposed that the said DD entry was marked to W/SI Seema Bhati.
PW2 ASI Rafeek Police witness He has proved recording of FIR vide Ex.PW2/B. He also gave Deen certificate under section 65B of the Evidence Act regarding the correctness of the contents of FIR vide Ex. PW2/D. PW3 W/PSI Seema Police Witness This witness along with Ct. Javed Bhati and W/Ct. Sanuj had taken the prosecutrix to LNJP Hospital and got her medical examination conducted vide MLC Ex.PW3/A and casualty card Ex.PW3/B and the doctor who had conducted the medical examination of the prosecutrix had also handed over the exhibits pertaining to the prosecutrix to the prosecutrix in sealed condition which she took into possession vide seizure memo Ex.PW3/C. She has recorded the statement of prsoecutrix vide Ex.PW2/A. PW4 Prosecutrix 'M' Victim/ Prosecutrix being victim of the Complainant alleged sexual assault has testified about her statement given to the police which is Ex.PW2/A as well Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 4/20 as making of her statement u/s 164 Cr.P.C. before Ld MM Ex.PW4/A. PW5 Ct. Mahender Police witness This is the witness of arrest of accused. He has proved arrest Singh memo of accused vide Ex.PW5/A, personal search memo of accused vide Ex.PW5/B and his disclosure statement vide Ex.PW5/C. In his presence, IO had also taken into possession the scooty bearing registration No.DL2SN6052 vide seizure memo Ex.PW5/D. He has proved pointing out memo vide Ex.PW5/E. This witness had also taken the accused to LNJP Hospital and got him medically examined vide MLC MarkA and casualty card MarkB. PW6 Dr. Rakshit Medical This witness has conducted witness medical examination of prosecutrix vide MLC Ex.PW6/A. PW7 Ct. Vivek Police witness This witness had taken the custody of parcels containing exhibits Kumar pertaining to this case in sealed condition along with sample seal from MHC(M) PS Chandni Mahal and carried them to FSL, Rohini vide Road Certificate and deposited the same at FSL Rohini.
He has proved copy of the Road Certificate vide Mark A and copy of the acknowledgment with regard to receipt of the said exhibits vide Mark B. PW8 Ct. Ravi Kumar Police witness This witness had got the formal medical examination of the Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 5/20 accused conducted from LNJP Hospital vide MLC MarkC. PW9 Dr. Tarun Garg Medical This witness has conducted witness medical examination of the accused vide MLC Ex.PW9/A and during his medical examination, he had not examined any fresh external injuries.
PW10 Dr. Pushpa Medical This witness has conducted witness medical examination of the prosecutrix vide MLC Ex.PW3/A. She had also prepared sexual assault kit and had also taken into possession the wearing clothes of the prosecutrix, preserved, sealed and handed over to the police along with sample seal. She deposed that alleged history mentioned at point B to B in the said MLC Ex.PW3/A was given by the prosecutrix herself.
She had also made endorsement with regard to the medical examination of the prosecutrix at point B to B bearing her signature at point C at the back of the casualty Ex.PW3/B. PW11 HC Yadram Police witness This witness has proved the relevant entries in register No.19 vide Ex.PW11/A. He has also proved copy of road certificate vide Ex.PW11/B and copy of acknowledgment vide Ex.PW11/C. PW12 Asif Public witness He deposed that he is doing the business of selling optical articles at his shop at Balimaran and on dtd. 23.03.2016, he was present at Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 6/20 his house, some persons have come from Itawa, U.P. for the purpose of marriage proposal and to seek his sisterinlaw Shagufta.
He deposed that prosecutrix is the daughter of Zeenat who is his elder sisterinlaw.
He further deposed that on 23.03.2016, he had gone to PS Chandni Mahal as he was called by police and he came to know that some incident of rape had taken place with prosecutrix, daughter of Zeenat. He further deposed that he does not know who had committed rape with her. He had come from his wife that prosecutrix had come to his house and had met with his wife and she had left and thereafter, he came to know that she did not reached her house. He further deposed that earlier also, about 34 years back, prosecutrix eloped with one boy Faheem.
PW13 Mohd. Tanveer Public witness He deposed that he has done CMS Course i.e. Community Medical service course. His sister is doctor Hoor Bano and she runs a clinic by the name AlSaba in Farash Khana.
He further deposed that on dtd.
23.03.2016, prosecutrix called him if he was present at the clinic and she ask him to prepare medicine for her daughter. Accordingly, he prepared the medicine and after 1520 minutes, prosecutrix came to clinic and took medicine from him.
Case No.27277/2016State Vs. Waseem @ Waseem Benhga @ Mittal 7/20 Prosecutrix did not inform anything to him and left from there. Prosecutrix is wife of Mohd. Faheem who is his cousin brother.
PW14 Riyazuddin Public witness He deposed that he is doing the business of manufacturing cooler and he know one builder namely Naseer who construct buildings in the area of Farash Khana and prosecutrix used to come to meet Naseer in his office in Farash Khana near his place of work and he also used to work for Naseer at his house, construction site and he also became acquainted with prosecutrix and she had also met his wife once or twice. She used to call him on his mobile no.9210883503.
He further deposed that he does not remember the date but in the year 2016, he received a call from prosecutrix and she called him at PS Chandni Mahal. She did not tell him the reason for coming to Chandni Mahal but since she did not tell him the reason so he did not go to PS. He came to know from police officials that some eve teasing incident had taken place.
PW15 W/SI Mumtaz Police Witness This witness has collected documents from SI Seema which were relating to rukka, MLC, counselling report etc. She has prepared site plan vide Ex.PW15/A. During the course of investigation, Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 8/20 on dtd. 25.03.2016, she got recorded the statement of prosecutrix u/s 164 Cr.P.C. from Ld. MM. She has proved her application in this regard vide Ex.PW15/B. She obtained copy of her statement vide her application Ex.PW15/C. During the investigation, she arrested the accused in the present case vide arrest memo Ex.PW5/A, personal search memo Ex.PW5/B of accused was prepared and disclosure statement Ex.PW5/C got prepared.
During the course of investigation, she taken the accused to LNJP Hospital for potency test. She collected MLC of accused regarding his potency test vide Ex.PW15/X and doctor had also given blood sample of accused in sealed condition which she sealed vide memo Ex.PW15/D. She deposed that accused also pointed place of incident on 25.03.2016 and she had also seized his scooty on 25.03.2016 itself and memos Ex.PW5/E and Ex.PW5/D were prepared.
She further deposed that the exhibits of this case were sent to FSL, Rohini for examination and since other investigation was complete, chargesheet was filed in the court.
PW16 Sh. M.L. Meena Sr. Scientific This witness has proved his report Officer, FSL dtd. 31.05.2017 vide Ex.PW16/A. Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 9/20 PW17 W/SI Anita Police This witness is 2nd I.O. She has Witness/ deposed on the lines of Investigating investigation. She served a notice Officer u/s 91 Cr.P.C. upon Tata Telly Services Ltd. and Bharti Airtel ltd., to provide the CDR, CAFE along with certificate u/s 65B of Indian Evidence Act of mobile phone numbers of accused and victim.
She had collected the abovesaid records of the above said mobile numbers of accused and victim and proved the same vide Ex.PW17/A, Ex.PW17/B,Ex.PW17/C,Ex.PW17 /D,Ex.PW17/E, Ex.PW17/F and Ex.PW17/G respectively. She analyzed the CDR of mobile phone of the victim and found some discrepancies and thereafter, she recorded the statements of Riyazudeen, Tanvir and Asaf respectively u/s 161 Cr.P.C.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
8. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement was recorded u/s 313 Cr.P.C. Accused denied all the incriminating evidence against him.
Accused claimed that he is innocent and he has falsely implicated in this case to extort money from him. He did not commit any wrong with the prosecutrix. Accused has not preferred to lead defence evidence.
ARGUMENTS:
9. Ld. counsel for the accused has argued and submitted that accused has been falsely implicated by the prosecutrix just to extort money.Case No.27277/2016
State Vs. Waseem @ Waseem Benhga @ Mittal 10/20
10. Ld. counsel for accused has further argued that as per the CDR of prosecutrix as well as the accused, none of the person was found to be present at the alleged location of offence and there was no call found to have been made by the prosecutrix to her friend Rehana though is mentioned in the FIR.
11. Ld. counsel for accused further submitted that there is no scientific evidence on record which connect the accused with the present case. On these grounds, ld.
counsel for accused has prayed that accused may kindly be acquitted.
12. Per Contra, Ld. Addl. PP for the State has argued that testimony of prosecutrix reliable and inspire confidence.
13. Ld. Addl. PP for the State further submitted that prosecutrix has supported the facts and circumstances on all material aspects, as such, her testimony is reliable and can be relied upon. On the other hand, accused is not able to discharge the burden of presumption against him on the basis of testimony of prosecutrix why she had made allegations against him of rape and therefore, accused is liable to be convicted.
PERUSAL OF RECORD:
14. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW2/A, present FIR Ex.PW2/B was registered against the accused.
15. Before reaching at any conclusion, let the relevant section i.e. 328/376D/323/34 be reproduced, which is as under: Section 328. 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 Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 11/20 poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be 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 376D. Gang Rape: Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.
Section 323 IPC:
Punishment for voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 34 IPC:
Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
FINDINGS OF THIS COURT:
16. 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 prosecution witnesses, this court is of the considered view that the prosecutrix made a statement against the accused on dtd. 24.03.2016 whereby it has been alleged against the accused that under the intoxication, accused has committed rape on her without her consent and will and upon her statement, FIR was registered.
17. That, this 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. The law has been settled down by Hon'ble Apex Court of Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 12/20 India in 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.
18. That the allegation against the accused are that prosecutrix was known to the accused 34 months back from the registration of case FIR and the prosecutrix was in need of a new rented accommodation and in this regard she told to the accused and further alleged that on dtd. 23.03.2016, accused make a phone call to the prosecutrix and asked her to come at Ganjmeer Khan Chandni Mahal, Delhi for showing her some flat for rent and when she went there, she was asked to sit in a car, when she sit in the car with accused, she was offered Cold Drink bottle and after consuming the same, she felt giddiness and she was raped by the accused and was dropped at around 1:30 or 1:45 a.m (night). on unknown place and thereafter, she called her friend Rehana and she along with her friend Rehana went to the PS for registration of the FIR against the accused.
19. The statement u/s 164 Cr.P.C. was got recorded and thereafter, the prosecutrix was summoned to depose against the accused in the court and when she appeared in the court and deposed that she is graduate and at about 4 ½ years ago she got married with Rohit and she is having one daughter aged about 03 years.
20. It has also been deposed that during the winter season of year 2016 while she was going to LNJP Hospital, Delhi for the treatment of her daughter, accused met her as she was residing at rented accommodation at Chudi Walan near Darya Ganj, Delhi and accused told her that he is dealing in the property and Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 13/20 she told the accused that she is willing to change her rented accommodation and accused assured her that he will arrange the rented accommodation for her on lower rent and thereafter, they both exchanged their mobile numbers and started to talk with each other.
21. It has also been deposed that on dtd. 23.03.2016, accused called her and asked her to come at Ganjmeer Khan, Chandni Mahal, Delhi, for showing her some flats on rent and accordingly, she reached there at about 10:30 or 11:00 p.m. (night). Accused had called her at that time because he used to tell her that he used to be busy during day time. Accordingly, accused met her and they both stayed there for about 1020 minutes as accused had told her that his friend would bring the key of the flat and after about 1020 minutes a red colour car came there and one person along with driver had come in that car and accused asked her to sit in the car to show her flat and accordingly, she sit in the car and accused gave her cold drink bottle to consume and after consuming the same she felt giddiness and thereafter, it is not known to her as to where she was but at about 1:30 a.m. or 1:45 a.m. she felt that someone had dropped her from the car on the side of road in the area of Ganjmeer Khan. Her clothes were torn and she had sustained abrasion by nail on her both arms and some part of her body and she did not notice the condition of her lower clothes. She was feeling pain in her hands and legs.
22. That, during the examination in chief, the prosecutrix herself has deposed that "I am not sure that wrong act was done with me by accused or his associates".
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23. It is worth mentioning that in the complaint made by the prosecutrix to the police she has stated in her complaint that she was asked to sit by accused in the car and she never stated that rape was committed with her but in the statement u/s 164 Cr.P.C. she has stated before the Ld. MM that " halat se laga ki mere saath galat kaam hua hai" and after recording the statement u/s 164 Cr.P.C. accused was arrested and chargesheet was filed but in the examination in chief itself she has deposed that she is not sure that wrong act was done with her by accused or his associates.
24. It has also been deposed by the prosecutrix that when she was thrown by the accused from the car and thereafter, she reached at the house of her friend Rehana by Rickshaw who is the resident of Chitli Kabar, Delhi and after reaching there she called her friend Rehana from her mobile phone who came out from her house and she narrated the entire incident to her and thereafter, the prosecutrix along with her friend Rehana went to PS for registration of FIR Ex.PW2/A bearing her signature at point A. Police had taken the prosecutrix to hospital for her medical examination and during her medical examination doctor had collected her clothes which she was wearing at the time of incident.
25. It is pertinent to mention that in the complaint made by the prosecutrix to the police, she has no where stated in the complaint that her articles were found missing when she was thrown by the accused on the road from the car but in the statement u/s 164 Cr.P.C. she has stated before the Ld. MM that thereafter, it came to her notice that her earring and nosepin were found missing but in the examinationinchief she has deposed in the court that "I do not remember if some of my articles were found missing during the incident".
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26. The testimony of the prosecutrix itself is unreliable and untrustworthy on the ground that there is material improvement in the statement made by her to the police upon which the present FIR was registered as well as the statement made by her u/s 164 Cr.P.C. before the Ld. MM on the ground that when she was thrown by accused on the road and she reached at the house of her friend Rehana and make a call to her friend from her mobile phone and thereafter, her friend came to her and she narrated all the incident to her friend Rehana but in the examination in chief the prosecutrix has deposed that "My mobile phone was missing" Again said I am not sure it was missing."
27. That, during the cross examination, the prosecutrix has admitted that at the time of incident her husband Rohit living with her and she had not informed her husband Rohid before calling to her friend Rehana regarding incident and her husband Rohid called at police station by police at about 12:00 noon - 1:00 p.m. and on the day of the incident her husband Rohid along with her daughter were present in her house.
28. During the cross examination the court has put the question to the prosecutrix i.e. Court Question: When you were not in friendship with accused, why did you reach there on the call of accused?
Ans. I had reached there to see the flat for my rented accommodation. Court Question: Had you met accused ever personally? Ans. I had met only once accused personally in the hospital where I exchanged my mobile number with accused. Court Question: During conversation did you ask the accused to show you Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 16/20 the aforesaid flat?
Ans. No.
29. During the cross examination a specific suggestion was put by the Ld. Defence counsel for accused to the prosecutrix that she has filed a case against Mehndi Hassan just to extort money and a FIR No.160/14 PS Hauz Qazi for offence u/s 354/354B/323/34 IPC was registered and another suggestion was put to the prosecutrix that she has also filed a case FIR No.05/2016 against one Furkhan at PS Hauz Qazi for offence u/s 354/506/509 IPC and suggestion was also put to the prosecutrix that an FIR No.107/16 PS Chandni Mahal for offence u/s 186/353/332 IPC was registered against the prosecutrix when she was demanding Rs. Two lacs from one Nishi w/o Haider Ali to settle the case FIR No.05/2016 PS Hauz Qazi u/s 354/506/509 IPC.
30. The testimony of the prosecutrix itself is self contradictory, unreliable and untrustworthy and also not of sterling quality on the ground that the prosecutrix is a married lady having three years old child and living with her husband and question does not arise to leave the house at 10:30 p.m. or 11:00 p.m. after calling the accused to see the accommodation for rent and even if she had been called by accused to see the accommodation then she ought to have informed the said fact to her husband and she must have visited to see the rented accommodation with her husband but she has alone left her house at 10:30 p.m. or 11:00 p.m. upon calling of accused.
31. The prosecutrix is a Graduate, matured and married lady and there is strong and cogent Question Mark upon her testimony as to why she had went alone upon calling by the accused to see rented accommodation and therefore, testimony of Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 17/20 prosecutrix is untrustworthy and is also not of sterling quality.
32. The testimony of the prosecutrix not only unreliable but is false in toto on the ground that she has alleged that mobile call was made to her by accused on 23.03.2016 and she was called by the accused to let her shown the rented accommodation and she went at 10:30 or 11:00 p.m. at Ganjmeer Khan but perusal of the call detail record of mobile phone, particularly of the prosecutrix, it reveals that accused never made any call to the prosecutrix either on 23.03.2016 or on 24.03.2016 and it is on record that the prosecutrix herself has registered two FIR against two different persons also to extort money and an FIR No.107/16 PS Chandni Mahal for offence u/s 186/353/332 IPC was registered against the prosecutrix.
33. The suggestion was put to the prosecutrix but she has denied the same. However, counsel for accused has placed on record the copy of FIR No.160/14 PS Hauz Qazi for offence u/s 354/354B/323/34 IPC in which she is the complainant and in another case FIR No.05/2016 PS Hauz Qazi u/s 354/506/509 IPC the prosecutrix herein is also the complainant.
34. It is pertinent to mention that Ld. Counsel for the accused has also placed on record a copy of case FIR No.107/16 PS Chandni Mahal for offence u/s 186/353/332 IPC in which prosecutrix was demanding Rs. Two lacs from one Nishi w/o Haider Ali, r/o. 689, Chandni Mahal to construct her property and when she made 100 number call and when the police came there then the prosecutrix torned the clothes of police man who reached upon the call of 100 number and when she was taken to PS she has torned and thrown the Rojnamcha in the police station.
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35. It is also pertinent to mention that the friend of the prosecutrix Rehana to whom she had told about the incident and gone to PS with her friend Rehana was shown as witness in list of witnesses but she did not appeared in the witness box.
36. It is also pertinent to mention that PW13 Md. Tanvir examined by the prosecution who has deposed that he has done Community Medical Service course earlier and he had studied D. Pharma from Kanpur and her sister Dr. Hoor Bano runs a clinic by the name of AlSaba in Farash Khana and on dtd. 23.03.2016, prosecutrix called him if he was present at the clinic and she asked him to prepare medicine for her daughter and accordingly he prepared the medicine and after 1520 minutes, prosecutrix came to the clinic and took the medicine from him. Prosecutrix did not inform anything to him and left from there. In cross examination, PW13 has admitted that prosecutrix has come to clinic at about 11:00 p.m. and she was accompanied by her mother and she left his clinic after 10 minutes. If the prosecutrix was with the accused as alleged by her in her complaint at 10:30 or 11:00 p.m. when she was asked by the accused to sit in the car and wrong act was done with her then how she was present at the clinic of PW13 Md. Tanvir at 11:00 p.m. with her mother and it creates not only doubt but prove that she herself has made a false story and misuse the process of law, fabricate the false evidence and made interference in the administration of justice to which action should be taken against the prosecutrix in accordance with law.
37. It is also worth mentioning that the clothes taken by the doctor at her internal medical examination were sent to the FSL and PW16 Sh. M.L. Meena, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi has deposed that he has Case No.27277/2016 State Vs. Waseem @ Waseem Benhga @ Mittal 19/20 examined TLC and GCMS examination, metallic poison, ethyl/methyl alcohol, alkaloids, barbiturates, tranquilizers and pesticides the same could not be detected in exhibits 3P1, 3P2, 3q1 and 3q2 and he has also placed on record the report dtd. 31.05.2017 Ex.PW16/A and there is no scientific evidence that the prosecutrix was raped by the accused at any point of time. Therefore, prosecution is not able to establish, substantiate and prove the charge against the accused beyond reasonable doubts and this court has no option except to acquit the accused. Hence, accused Waseem @ Waseem Benhga @ Mittal is hereby acquitted from the charge punishable u/s.328/376D/323/34 IPC.
38. 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 of like amount.
39. 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.
40. Every page of this judgment is signed by me.
41. 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 02.11.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.27277/2016