Delhi District Court
State vs Jagjeet Singh @ Jaga @ Lucky on 3 June, 2017
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
S.C No: 128/14
FIR No : 703/14
PS: Nihal Vihar
U/s: 354B/354C/354D/323/
376/450/506/511 IPC
376/450/506/511
State
Versus
Jagjeet Singh @ Jaga @ Lucky
son of Sh Surender Singh
resident of H. No. 34C, Dilip Vihar
Chander Vihar, Delhi41.
Date of receipt of file
after committal : 19/12/2014
Date of judgment : 03/06/2017
JUDGMENT
1. Accused Jagjeet Singh has been charge sheeted by Police Station Nihal Vihar, Delhi for the offences under sections 354B/354C/354D/323/376/450/506/511 354B/354C/354D/323/376/450/506/511 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that since two years prior to 15/11/2014 accused had made obscene video of the prosecutrix, while she was
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bathing and forcibly made physical relations with her on the pretext of making the said obscene video public and thereafter accused outraged the modesty of the prosecutrix by tearing her wearing clothes and also gave beatings to her. It is also the case of the prosecution that on 20/10/2014, accused had committed rape upon the prosecutrix. It is also alleged against the accused that on 21/10/14 accused had committed house trespass in order to commit the offence of rape with the prosecutrix and thereafter attempted to rape her and also threatened to pour acid on her face and to kill her, if she raised any alarm.
2. After hearing arguments, vide order dated 28/05/2015, accused was charged for offence under sections 354B/354C/354D/323/376/450/506/511 354B/354C/354D/323/376/450/506/511 of the IPC. Accused pleaded not guilty and claimed trial.
3. In evidence prosecution has examined 4 witnesses to prove the guilt of the accused.
4. PW1 is the prosecutrix. She has deposed that accused is friend of her husband. Witness has further deposed that once, there was a Prabhat Pheri in the house of the accused about 2- 3 years back. Accused was on visiting terms with her and her husband. The sisters of the accused also reached at his house to do sewa for prabhat pheri. She was also present at the house of the accused in preparation of prabhat pheri. On that night, the sister of the accused told her to bring her clothes and she should take bath
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at their house and prepare to attend the prabhat pheri. She had brought her clothes from her house. She had taken bath at the house of accused and changed her clothes. Thereafter, she attended the prabhat pheri at his house. After 3-4 days of prabhat pheri, accused had come to her house in the absence of her husband and children. Her husband had gone for his duty as he used to drive Meru cab and her children also had gone to attend their school. The accused told her that he liked her. The accused again told her that he wanted to show something to her. The accused was having phone make Nokia N-73 and showed a video on that mobile, in which her photographs of taking bath at his house were visible. She asked the accused why he did this and she told him that he will make a complaint to her husband. The accused threatened her to show those photographs to her husband. Thereafter, the accused left her house. After the abovesaid incident, the accused molested her and misbehaved with her by holding her hand and touching her on her back. The accused used to misbehave with her off and on. Her husband had gone to Sindhu Border along with his friend for making arrangement of liquor on the occasion of marriage of brother in law of his friend. The accused called her as he was aware that her husband was going to Sindhu Border. The accused told her on telephone that he will come at her house, which was objected by her by saying that what is the purpose of his visiting at her house at odd hours in the absence of her husband. On which the accused asked her to come out of the house in a lane and he also reached in that lane. She came out from her house on the asking of the accused and the accused also reached there and he had taken her to his house on
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the pretext that he will delete her video from his mobile, if she agree to go to his house. When she reached at the house of the accused, he had locked the door already situated near the drawing room of his house. The accused maintained physical relations with her forcibly at his house in the drawing room. On receiving the call of her husband, accused dropped her in the corner of the gali and she came back to her house. Thereafter, the accused used to visit at her house off and on in the absence of her husband and her children and maintained physical relations with her forcibly. The accused hit himself whenever her husband touched her, thereafter, the accused hit her also whenever he talked with her husband or went outside with him. The accused chased her and her husband whenever they used to go outside. The accused called her as his sister in front of her husband and the other persons. The accused had disclosed at his house regarding his physical relationship with her. The accused had taken her to the house of his aunt (bua) Ms. Rozy at Krishna Nagar, Trans Yamuna about 1 ½ -2 years back on the motorcycle on the pretext of shopping. The aunt of the accused was not present in the house. He asked his uncle's son namely Puneet to open the door of the house. Mr. Puneet had opened the door and after their entering in that room, he had locked the room from outside and went upstairs where his grandmother was residing. The grandmother of the accused was not aware regarding their visiting to that house. The accused had raped her in that house also. Thereafter, they came back and the accused dropped her at her house. Accused also used to take her several times to Laxmi Nagar near Metro station at the house of his another aunty and he used to have physical relations
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forcibly with her there. Accused had been sent to J.C in a case of a chain snatching and he had been released on 19.09.2014. She is also an accused in that case and had also been sent to J.C and had been released on 30.05.2014. Her husband was in J.C in a murder case since 14.08.2014. She was called by the accused at his house through Mr. Puneet on 19.09.2014. The parents of the accused namely Ms. Harjinder Kaur, Ms. Suriender Singh, the brother in law of accused namely Mr. Umesh and Mr. Rishi Bhardwaj, the friend of Umesh along with Mr. Puneet were present at his house. On that night the accused had made physical relations with her forcibly and dropped her at her house at 4.30 a.m. Thereafter, the accused chased her and arranged a mobile for her and continuously harassed and molested her. The accused proposed her to marry with him as her husband will not come from J.C for 2-3 years. She refused for the same on which the accused used abusive language. On 20.10.2014 the accused had taken her to Rohini from Tis Hazari Court. She visited at Tis Hazari Court to attend the date of the case of her husband. Mr. Rishi Bhardwaj was also present in the house of Rohini. The accused raped her after drinking at Rohini. The accused told her to maintain physical relations with Mr. Rishi Bhardwaj and Mr. Umesh, if she was not going to marry with accused. She came back to her house from Rohini at about 8.30 p.m. On 21.10.2014 she left her house at about 10.00-10.30 a.m for Uttam Nagar. The accused came to her house in her absence and shown the obscene photographs to her son aged about 13 years and disclosed about his relationship with her. She disclosed the above facts to her husband when she visited Tihar Jail to meet him.
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5. Witness has further deposed that on 21.10.2014 the accused met her at PVR Vikas Puri and on the point of gun, he forced her to get down from the rickshaw and brought her to her house on his bike. Accused forcibly entered into her house and starting slapping her. The accused torn her suit in the gali when she chased him and raised the alarm. The public persons gathered there.
The accused threatened to shoot her if she does not become his. The accused asked her to maintain physical relations with Rishi Bhardwaj and Umesh. On refusal by her, accused gave beatings to her. On 21.10.2014, accused also tried to maintain physical relations with her forcibly. She lodged the report at the PS, which is Ex. PW1/B. She was taken to the Sanjay Gandhi Memorial hospital on 15.11.2014 for her medical examination vide MLC Ex.PW1/C. Her gynecological examination was also conducted and her samples were taken. Accused used to take her obscene photographs when he used to take her to Laxmi Nagar. She was forced by the accused to pose for the photographs as he used to threaten to kill her. The photographs are s Ex.P1 to Ex.P24. Her statement under section 164 Cr.PC was recorded by Ld MM, which is Ex. PW1/D. The site plan is as Mark X at her instance. The accused was arrested on her pointing out by the police vide arrest memo Ex.PW1/E. His personal search was taken vide personal search memo Ex.PW1/F. The accused had confessed his crime vide disclosure statement Ex.PW1/G. The accused has written a letter dt. 26.06.2014 to her in his handwriting, which is Mark X1. Accused has sent three photographs to her threatening that he shall commit suicide, which are Mark X2 to X4.
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6. PW2 is ASI Rampal Singh. He had deposed that on 21.11.2014, he along with WSI Maya and Ct. Jitender had taken the accused for his medical examination to Sanjay Gandhi Memorial hospital. After medical examination of the accused, IO had recorded the disclosure statement of accused, Ex. PW1/G. The accused was taken to Rohini as the complainant stated that the accused maintained physical relations with him at Rohini. The accused took them there but did not point out any specific place. Thereafter, the accused led them to his house at 34-C, Dilip Vihar, Chander Vihar, Delhi, from where he got recovered one mobile lying in a Godrej almirah, the accused disclosed that he made a video film of the prosecutrix in that mobile and also deleted the same. The mobile phone of the accused was taken into possession vide seizure memo Ex. PX2. The site plan regarding the abovesaid recovery was prepared by the IO, which is Mark 2A. The accused pointed out the house no. N-175, Devender Colony, Chander Vihar, Delhi and stated that he had maintained physical relations with Ramanjeet Kaur in that house.
7. PW3 SI Amit Kumar has deposed that on 31.10.2014 complaint of the prosecutrix, Ex. PW1/B, was marked to him. On the basis of facts mentioned in the complaint, he has prepared rukka Ex. 3X and handed over the same to the duty officer to get the present FIR registered u/s 354B/506/34 IPC. He had tried to contact the prosecutrix but he could not trace her. On 14.11.2014, he had gone to Devender Colony along with Ct. Rajeev and had arrested the accused vide arrest memo Ex. PW1/E. The personal search of the accused was taken vide personal search memo Ex.
PW1/F. After arresting the accused, he along with Ct. Rajeev took him to SGM hospital for his medical examination. On 15.11.2014.
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he along with W. Ct. took the prosecutrix to SGM hospital where she was medically examined vide MLC Ex. PW1/C. Statement u/s 164 Cr.P.C. of the prosecutrix was recorded by Ld MM, which is Ex. PW1/D.
8. PW4 SI Maya Devi has deposed that during investigation, accused was interrogated and his disclosure statement was recorded. Mobile phone Ex.P2 was seized at the instance of the accused. The place of incident was pointed out by the accused vide memo Ex.PX3.
9. Sh Vikas Kumar, Ld counsel for accused has admitted the statements of evidence of PWs-Ct. Sunita, Ct. Jitender, Ct.
Jogender, MHC(M), SI Jai Parkash, Dr. Khushboo, Dr. Rajesh, Ms. Seema Nain, FSL expert and Ms. Swati Singh, Ld. MM who had recorded the statement of the prosecutrix under section 164 Cr. PC. The documents prepared / signed by them are not in dispute. All the abovementioned prosecution witnesses may not be examined by the prosecution as their evidence is admitted by the accused and their evidence may be read against the accused.
10. Thereafter prosecution evidence was closed.
11. Statement of accused u/s 313 Cr.P.C was recorded wherein he has denied the allegations. He has submitted that he has been falsely implicated in the present case and prosecutrix had demanded huge amount from him to engage counsel for the bail of her husband, who was languishing in jail in murder case. Accused had stated that he wanted to
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lead evidence in defense. Thereafter, accused had not availed this opportunity and evidence of accused was closed by his counsel vide statement dated 12/04/2017.
12. I have heard arguments from Sh Vikas Kumar, Ld Defense counsel for accused as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
13. It is submitted by Sh Vikas Kumar, Ld Defense counsel that in the complaint filed by the complainantprosecutrix, on which present FIR has been registered, all the incidents have not been mentioned by her, although same have been mentioned by her in the statement under section 164 Cr.P.C. Ld defense counsel has also pointed that flat no. of Rohini has not been mentioned by the prosecutrix nor the same has been mentioned in the charge sheet by the IO. There is no document filed by the prosecutrix in respect to the complaint. MLC of prosecutrix was done after the delay of 15 days and this fact has not been explained by the prosecution. In respect to the merits of the case, Ld counsel for accused had further submitted that incident alleged by the prosecutrix have occurred 23 years prior to the date of lodging of the FIR and the prosecutrix has not been able to substantiate any reason for this delay in lodging FIR. Therefore, it is prayed by Ld defense counsel that accused be acquitted, for the offences, he is charged with.
14. On the other hand, Sh Subhash Chauhan, Ld Additional
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P.P had submitted that prosecutrix had specifically stated in her examination in chief that she was sexually assaulted by the accused for about 23 years prior to the date of lodging of the FIR, on the pretext of having her obscene video with him, which the accused had allegedly taken at the time when the prosecutrix was taking bath. Ld Additional P.P had also submitted that by keeping the prosecutrix, under pressure of making the video viral, accused had committed sexual assault upon the prosecutrix on several occasions and had also given beatings to her and had tried to outrage her modesty by tearing her clothes, which has been specifically stated by the prosecutrix in her examination in chief. Therefore, it is prayed by ld Additional P.P that accused be convicted for the offences, he is charged with.
15. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
16. In the present case, accused has been charged for the commission of offence punishable under section 354B/354C/354D/323/376/450/506/511 IPC. The allegations against the accused can be bifurcated in three parts. The first incident as alleged against the accused is in respect to the incident, which had taken place three years prior to 15/11/2014, when allegedly accused had made video of the prosecutrix, while she was taking bath and accused had forced allegedly the prosecutrix to maintain physical
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relations with him on the pretext of making this obscene video public. Second incident of the offence alleged against the accused is that of 20/10/2014 at Flat in Rohini, where accused had sexually assaulted/raped the prosecutrix. The third incident alleged against the accused is of 21/10/2014. it is alleged that on 21/10/2014 accused had forcibly entered in the house of the prosecutrix with the intention to commit rape upon her and had also tried to commit rape with her. It is also alleged against the accused that he threatened the prosecutrix to pour acid on her face and thereby to kill her, if she raised any alarm.
17. I will now discuss each offence, with which the accused had been charged, along with the evidence led by prosecution on that offence, in order to appreciate, whether offences have been proved against accused by prosecution or not. Section 354 B IPC
18. Section 354 B IPC prescribes the punishment for assault or use of criminal force to woman with the intent to disrob or compel her to be naked. In the entire allegation levelled against the accused, it has not been stated, anywhere, by the prosecutrix, either in the complaint Ex.PW1/B or in the statement under section 164 Cr.P.C or in the evidence recorded in the court that accused had ever tried to disrob her or had compelled her to be naked, on any day or time during two years prior to 15/11/2014, as per the first charge framed
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against the accused. Except the allegations regarding incident of 21/10/2014 where specifically prosecutrix had stated in FIR, that accused had torn her suit, at no other time, it is is alleged by prosecutrix that accused had tried to disrob her or had compelled her to be naked, hence I am of the view that ingredients of section 354 B IPC are not fulfilled in the present case. Incident of 21/10/2014 has been separately charged against accused and hence I will discuss the same while discussing third limb of charge. Therefore, I am of the opinion that section 354 B IPC is not attracted in the present case and the accused is to be acquitted under section 354B IPC.
Section 354 C IPC
19. Section 354C IPC prescribes the punishment for voyeurism. For better understanding, section 354 C IPC is reproduced as under:
"Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a
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term, which shall not be less then one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less then three years, but which may extend to seven years, and shall also be liable to fine.
20. As per the allegations levelled by the prosecutrix against the accused, he had made film of the prosecutrix, while she was taking bath and on this basis, accused had put the prosecutrix under pressure and forced her to establish physical relationship with the accused. In the entire case filed by the prosecution & evidence led by the prosecution, this video has not been produced or proved on record. There is absolutely no evidence led by the IO in respect to the alleged video nor such video was recovered from the mobile phone of the accused nor any witness has been examined by the prosecution to prove that any such video was actually made by the accused or it was shown to any person. Even the prosecutrix has not stated in her entire evidence if she has seen any such video at any point of time or not. In the evidence as well as in the statement under section 164 Cr.P.C, prosecutrix had stated that on 21/10/2014 accused had come
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to her house and had showed her photographs to her son. Even, at this stage, prosecutrix had not stated that any video was shown by the accused to her son. Even the son of the prosecutrix has not been examined by the prosecution, therefore, it has not been proved beyond reasonable doubt against the accused that accused had prepared any obscene video of the prosecutrix being engaged in private act in circumstance where she would usually have the expectation of not being observed by any other. Therefore, I am of the opinion that even section 354 C IPC has not been proved by the prosecution against the accused. Hence the accused is liable to be acquitted under section 354 C IPC. Section 354 D IPC
21. As regards the offence punishable under section 354 D IPC is concerned the requirement of section 354 D IPC is that the accused must have followed a woman or had tried to contact the woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. Meaning thereby, accused would have committed the offence of stalking, if he would have followed the prosecutrix with the intention to have personal interaction with her. Second requirement of this offence is that accused should have followed the prosecutrix despite there being clear indication of disinterest by the prosecutrix. After considering the entire evidence led by the prosecution, I am of the opinion that even
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these circumstances have not been proved beyond reasonable doubt by the prosecution. Admittedly accused is friend of husband of the prosecutrix. He was having regular interaction with the prosecutrix and her husband, as is admitted by the prosecutrix in her examination in chief. It has been admitted case of the prosecution that accused used to visit the house of the prosecutrix on regular basis. In the entire evidence led by the prosecution, it has not been stated by the prosecutrix that accused used to follow her or that she had at any point of time told him that she is not interested in talking to him. On the contrary, prosecutrix in her cross examination conducted by Ld counsel for accused had specifically stated that she had visited the house of the accused with her free consent. If the prosecutrix was visiting the house of the accused with her free consent and accused was visiting the house of the prosecutrix with the consent of the prosecutrix, then it cannot be presumed that accused was committing the offence of stalking, where the prosecutrix had shown her disinterest in the accused. It is also clear from the letters mark X1 and X5, which have been produced by the prosecutrix in the court, the letters have been written by the accused while he was in Judicial Custody at Tihar Jail and these letters very well show that the prosecutrix and the accused were knowing each other very well and they were having friendship with each other. In these circumstances, I
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am of the opinion that it cannot be considered that accused had committed offense of stalking, therefore, section 354D IPC has also not been proved against the accused by the prosecution beyond reasonable doubt & accused is liable to be acquitted for the offence punishable under section 354D IPC. Section 323 IPC
22. As regards the offence punishable under section 323 IPC as alleged to have been committed by the accused against the prosecutrix, I am of the opinion that in the first set of incident as alleged against the accused ie within two years prior to 15/11/2014, there is no allegation of the prosecutrix that accused had given her beatings as she has not stated anything in this regard, in her entire examination in chief. In her statement recorded as examination in chief, PW1 (prosecutrix) is silent about the date, when allegedly accused had taken her photographs or video. She is silent about when the accused had committed offence of giving beatings to her. Therefore, I am of the opinion that even the offence punishable under section 323 IPC has not been proved by the prosecution beyond reasonable doubt & accused is liable to be acquitted for the offence punishable under section 323 IPC.
23. Now coming to the section 376 IPC there are two allegations against the accused. One incident is for the period of two years prior to 15/11/2014 and second incident is of 20/10/2014, where allegedly accused had committed rape
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upon the prosecutrix in a flat at Rohini. After considering the submissions made by Ld counsels for the parties and evidence on record, I am of the opinion that Ld counsel for accused had rightly pointed out that prosecutrix had not mentioned the incident of 20/10/2014 in her complaint. No reasonable explanation has been tendered by the prosecutrix or by the IO for the omission in not mentioning the incident dated 20/10/2014 to the police. No flat no. situated at Rohini , where the alleged incident of rape had been committed by the accused, has been mentioned in the entire charge sheet or in the entire evidence led by the prosecution. No site plan of the flat at Rohini has been prepared by the IO. It is admitted case of the prosecutrix, examined as PW1, that accused had disclosed about his physical relationship with the prosecutrix to his entire family and friends and they all were aware of the relationship between the prosecutrix and the accused. At the time of making her statement in her examination in chief, prosecutrix has not stated that physical relationship was established by the accused forcibly with her or these relationship was established without her consent. In the cross examination, as pointed out by me earlier, prosecutrix had specifically stated that she used to visit the house of the accused with her free consent. She has also stated in her cross examination that there are several FIRs against "both of us" ie accused and the prosecutrix. The fact that the accused had
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written letters to the prosecutrix, copies of which have been produced by the prosecutrix, in her examination in chief, where the accused had stated that he will commit suicide and the love letters written by the accused clearly show that accused and prosecutrix were having intimate relationship as husband of the prosecutrix was in jail since 14/08/2014. Therefore, it cannot be stated that at any time, whenever the relationship were established between the prosecutrix and accused, same were without her consent.
24. No explanation has been tendered by the prosecutrix for the delay in lodging the FIR against the first incident of physical relationship, which allegedly had taken place under the threat of making the video viral. Since no video has been recovered or taken nor any such video has been placed on record, therefore, it cannot be appreciated that under the threat of existence of any video, the prosecutrix was forced by the accused to establish physical relations with him. Even if for the sake of the argument, it is presumed that the prosecutrix was sexually assaulted by the accused somewhere, during the period of two years prior to 15/11/2014, then the question arises as to why this incident has not been disclosed by the prosecutrix to her family, her husband or to police? There is absolutely no explanation given by the prosecutrix, of not narrating these facts or telling these facts to her husband. As per the case of the prosecution, prosecutrix has
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narrated all these incidents to her husband on 31/01/2014 when she had gone to meet him in Tihar Jail and only thereafter she had lodged the present complaint. There is absolutely no explanation given by the prosecutrix as to why specially on 31/10/2014, she had narrated the incident to her husband. Although her husband was in custody since 14/08/2014. Even, it is admitted case of the prosecutrix that accused was in judicial custody in respect to chain snatching case and had been released on bail on 19/09/2014 and in the same case, prosecutrix was also accused and was sent to JC and she was released on bail on 30/05/2014. Therefore, from 30/05/2014 till 19/09/2014, accused was in JC admittedly and prosecutrix was living with her husband till 14/08/14, therefore, if there was any pressure exerted by the accused or threat given by the accused regarding making the video viral, pressure had ceased to exit when accused was in custody and during that period, prosecutrix could have disclosed entire facts to her husband. But she had chosen to keep silent for the reasons best known to her and not explained by the prosecution. Therefore, I am of the opinion that there are material discrepancies in the testimony of the prosecutrix and other witnesses and in the case of the prosecution many questions have been left unanswered by the prosecution, in respect to the delay in lodging the FIR, actual date and place of incident of first rape and why the prosecutrix had not
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narrated the incident to any family members or to police. Therefore, I am of the opinion that prosecution has not been able to prove beyond reasonable doubt the commission of offence of rape by the accused, either in the First incident of charge nor in respect to incident dated 20/10/2014. The third incident of 21/10/2014
25. In respect to this incident, although the allegation of the prosecutrix are that accused had entered in the house of the prosecutrix forcefully and had attempted to commit rape upon her while giving threat of pouring acid on her face and kill her. But in the evidence led by the prosecution, incident has been narrated in different manner. She had stated in her examination in chief recorded on 05/10/2015, she met with accused at PVR cinema Vikas Puri and on the point of gun, accused had forced her to get down from the rickshaw and brought her to her house on his motorcycle. Very strangely, in the entire incident, prosecutrix has not made any hue and cry nor any person had tried to intervene, while the prosecutrix was allegedly being taken from the rickshaw to motorcycle of the accused at the gun point. Further, the prosecutrix had stated that accused forcefully entered into her house and started slapping her and accused had torn her suit in the gali when she chased him & raised the alarm. It is difficult to understand that if a person had forcibly entered the house of the prosecutrix, made her get down from the rickshaw at
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gun point, then why he will leave the house of the prosecutrix without committing any attempt of commission of offence in the house of the prosecutrix itself, where he had allegedly already committed such offence? Why accused will run in the gali and prosecutrix will chase him and in the gali, accused will torn her clothes? As per the allegation, accused had asked her to maintain physical relations with some other person but there is no allegation levelled by the prosecutrix in her evidence recorded as PW1 that on 21/10/2014 accused had done any act which could constitute the commission of attempt to rape. Therefore, the offence with which the accused has been charged i.e. section 376 read with section 511 IPC, has not been proved by the prosecutrix herself, as she had not stated anything about this offence being allegedly committed by the accused on 21/10/2014, therefore, accused is liable to be acquitted for this offence also.
Section 450 IPC
26. Section 450 IPC prescribes punishment for commission of house trespass in order to commit offence punishable with imprisonment for life. The requirement of section is that person must have committed house trespass in order to commit any offence which is punishable with imprisonment for life. For better understanding of this section, I will firstly discuss the definition of term house trespass which is defined
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under section 442 IPC. Section 442 IPC prescribes that who ever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling is said to commit house trespass.
27. Section 441 IPC defines the term 'criminal trespass'. For better understanding, section 441 IPC is reproduced as below:
"Whoever enters into or upon property, in the possession of another with intent to commit an offence or to intimidate, insult to annoy person in possession of such property or having lawfully entered into or upon such property, unlawfully, remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, or , having entered into or upon such property, whether before or after the coming into force of the criminal law (U.P. Amendment), 1961, with the intention of taking unauthorized possession or making unauthorized use of such property faced to withdraw from such property or its possession or use , when called upon to do so by that another person , by notice in writing, duly served upon him, by the date specified in the notice, is said to commit criminal Tress pass"
28. As per section 441 IPC, criminal trespass is committed by a person if the person enters into the property which is in possession of some other, with intention to commit the offence or to intimidate, insult or annoy any person. In the present case allegations levelled against accused by the
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prosecutrix is that the accused has come to his house with her and had started slapping her. No reason has been mentioned by the prosecutrix in her entire case, as to why accused had started giving her beatings. It is also not been explained by the prosecutrix as to why accused had brought her from PVR Vikaspuri on 21/10/2014 and what conversation had takenplace between the parties. Admittedly accused and prosecutrix were having visiting terms with each other. Therefore, it cannot be said that accused had unauthorisedly entered the house of the prosecutrix on the alleged date of the incident ie 21/10/2014. It is not the case of the prosecutrix that while so entering in her house on 21/10/2014, accused had tried to commit any offence which is punishable with life imprisonment. Since no evidence has been led by the prosecution to prove that accused had actually entered the house of the prosecutrix on 21/10/2014 with intention to commit offence punishable with life imprisonment or had shown any photographs to her son as son of prosecutrix had not been examined nor any neighbour had been examined, therefore, I am of the opinion that in this case prosecution has failed to prove beyond reasonable doubt its case in respect of commission of offence under section 450 IPC.
Section 506 IPC
29. In respect to the offence under section 506 IPC it has been
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alleged that accused had given threats to the prosecutrix of pouring acid on her face and to kill her on 21/10/2014 but in the entire statement made by the prosecutrix in her evidence i.e. when she was examined as PW1, she has not mentioned anything in this regard ie any threat was given to her by the accused of pouring acid or to kill her. The prosecutrix is silent in the entire evidence in respect to this allegation levelled by her against the accused, more specifically, in respect to the incident of 21/10/2014. Therefore,I am of the opinion that even the commission of offence punishable under section 506 IPC has not been proved by the prosecution against the accused.
30. The case of the prosecution is that after the incident of 21/10/2014, prosecutrix has lodged the police complaint which is Ex.PW1/B, on which present FIR has been registered but even this complaint raises very important question as to why on the same date of 21/10/2014 the complaint was not lodged by the prosecutrix to the police, when admittedly accused had torn her clothes in the gali in the presence of public and the matter was not reported to the police by the public or by the prosecutrix, this has not been explained by the prosecution in any manner. The delay of 10 days in lodging the FIR from 21/10/2014 till 31/10/2014 has not been explained by the prosecutrix or by the prosecution. It has also not been explained by the prosecution as to why on
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31/10/2014, she had narrated the entire incident to her husband and had finally lodged the complaint. Why she has not stated this incident to her husband prior to 31/10/2014. It is also important to mention here, at this stage, that torn suit of the prosecutrix was never produced or proved by the IO, no such clothes were taken into possession by the IO in court. Therefore, the allegation of tearing the clothes of the prosecutrix has not been proved by the prosecution. Although it has been alleged by the prosecution that on 21/10/2014, accused had entered the house of the prosecutrix and had shown her photographs to her son. But this fact has not been proved by the prosecution as son of the prosecutrix has not been examined. Even the photographs, which were shown by the accused to son of the prosecutrix has not been pointed out by the prosecution. Therefore, I am of the opinion that prosecution has not been able to prove any of the offences as alleged against the accused even in respect to third incident.
31. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent
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onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
32. In view of the judgment mentioned above & in view of my above discussion, it is clear that prosecution has not been able to point out beyond reasonable doubt that accused was the person who had committed the offence alleged against him, benefit of which is to be given to the accused. Hence accused Jagjeet Singh @ Jaga @ Lucky is acquitted of the offence u/s 354B/354C/354D/323/376/450/506/511 354B/354C/354D/323/376/450/506/511 IPC. However, As per provisions of section 437A Cr.P.C, bail bond of accused is extended for further six months on the previous terms and conditions
33. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 3rd June, 2017 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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