Delhi District Court
State vs . 1. Prince Bhasin on 10 May, 2018
IN THE COURT OF MS. ANU GROVER BALIGA
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No. 9330/2016
FIR No. 1050/15
PS Vasant Kunj (N)
U/s. 323/342/506/120B/376D IPC
State Vs. 1. Prince Bhasin
S/o Sh. Jaggan Nath Bhasin
R/o F21/14, Sector15, Rohini,
New Delhi.
2. Harmeet @ Payal
W/o. Sh. Prince Bhasin
R/o. H.No. 111/9, Nisha Apartment,
Kishangarh, New Delhi.
Date of Institution - 14.02.2016
Date of Committal - 02.03.2016
Arguments heard/Order reserved - 27.04.2018
Date of judgment - 10.05.2018
Final order - Acquitted
JUDGEMENT
1. The accused persons have faced trial in the present case for having SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 1 of 16 committed the offences punishable U/s. 323,342,506,376D read with Section 120B of Indian Penal Code (hereinafter referred to as 'IPC').
2. Briefly stated the relevant facts are as follows:
(a) On 16.11.2015, the prosecutrix went to PS Vasant Kunj (N) and gave a complaint in her own handwriting inter alia alleging therein that both the accused persons had conspired to commit rape upon her and that though she had sought to file a complaint against the accused persons at PS Kotla on 15.11.2015, no action was being taken on the same.
(b) It was inter alia alleged in the aforementioned complaint that the prosecutrix was employed with accused Harmeet @ Payal and that she used to do the work of massage, for which the accused Harmeet @ Payal used to send her to different places and that on 14.11.2015 at about 1:30 in the afternoon, this accused had taken the prosecutrix alongwith her to her residence at Vasant Kunj (N) on the pretext that two clients had to be given massage.
(c) According to the allegations made in the complaint, the prosecutrix gave massage to two persons at the residence of accused Harmeet @ Payal and when later on she came to know that one of the said persons was the SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 2 of 16 husband of the accused Harmeet @ Payal only and asked accused Harmeet as to why she had got the massage done for her husband, the prosecutrix was beaten by the accused Prince Bhasin i.e. the husband of accused Harmeet @ Payal and thereafter the accused Harpreet and one another person, a friend of accused Prince Bhasin pushed the prosecutrix into a room where the said other person forcibly established physical relations with her and the accused Prince Bhasin also attempted to have sex with her and put his finger in her vagina.
(d) It was further alleged in the complaint that for the entire night of 14 15.11.2015 both the accused persons confined the prosecutrix at their residence and threatened her that in case she reports the incident to anybody, she and her daughter will not be spared and that it was only when the prosecutrix begged and pleaded with them, she was finally allowed to leave their residence and even at that time, the accused Harmeet @ Payal took out the SIM Card of the mobile of the prosecutrix before handing it over to her.
3. Pursuant to the filing of the aforesaid complaint, the present FIR was registered and the statement of the prosecutrix under section 164 Cr.PC was recorded by Ld. MM. In the said statement, the prosecutrix has more or less reiterated the allegations made by her in her complaint dated 16.11.2015.
SC No. 9330/201 FIR No.1050/15
State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 3 of 16
Charge:
4. On the basis of the complaint made by the prosecutrix, both the accused persons were arrested and after investigation, the present charge sheet was filed and the Ld. Predecessor of this court framed charges against both the accused persons for having committed the offences punishable under Section 323,342,506,376D read with Section 120B of IPC. It is also relevant to mention herein that in the chargesheet it was mentioned that though the prosecutrix had later on, during investigation, revealed the name of the other person who had committed rape upon her as Atul Sharma, no address whatsoever of the said person could be traced out despite best efforts and that in case he is ever traced out, a supplementary chargesheet will be filed against him. It is also mentioned therein that though the samples of the prosecutrix were collected after her medical examination, the same have not been sent to FSL till date and the same will be sent only after the alleged rapist Atul Sharma is arrested. It is a matter of record that till date no supplementary chargesheet has been filed.
Prosecution Evidence:
5. In support of its case, the prosecution has examined seven witnesses in all. PW1 is the prosecutrix herself. Her deposition in detail has been discussed in the latter part of the judgment.
6. PW2 Sh. Azmat Ali is the owner of Flat No. B1, Plot No.111/9, SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 4 of 16 Nisha Apartments, Village Kishangarh, Vasant Kunj, New Delhi and he has interalia deposed that he had rented out the said flat to both the accused persons.
7. PW7 is the main investigating officer of this case who has described in detail the investigation conducted by her including registration of FIR, recording the statement of the prosecutrix, taking her for medical examination, arresting and conducting personal search of both the accused persons, getting their medical examination conducted and preparing the site plan etc. PW3, PW4, PW5 and PW6 are the police officials who had assisted the IO PW7 in the investigation of the present case.
Statement of the accused persons:
8. The deposition of all the aforementioned witnesses and the documents proved by them were put to both the accused persons and their statements were separately recorded under section 313 Cr.PC. In the said statements, both the accused persons have stated that they are innocent and have been falsely implicated by PW1 because accused Harmeet @ Payal i.e. wife of coaccused Prince Bhasin had lodged one FIR No. 1049/2015 against PW1/ prosecutrix and her other associates at PS Vasant Kunj (S) and the present complaint is nothing but a counter blast made by PW1 to save herself as well as her associates. Accused Prince Bhasin also has inter alia stated in his statement U/s. 313 Cr.P.C. that he is incompetent for SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 5 of 16 sexual intercourse.
Defence Evidence:
9. In support of their defence, the accused persons have examined two witnesses. DW1 Sh. Israr Babu is the Nodal Officer, Vodafone Mobile Services Ltd. and he has produced before the court the original CAF, CDR, Cell ID Chart with respect to mobile no. 9873481992, assertedly used by the prosecutrix on the date of the incident. The accused Harmeet @ Payal has chosen to examine herself U/s. 315 Cr.P.C. and she has been examined as DW2. In her evidence this accused has interalia narrated that the prosecutrix had not at all come to her house on 14.11.2015 and in fact on this day, she and the prosecutrix were present at the birthday party of the son of one Sunny, the employer of both the prosecutrix and the accused and that the said birthday party had gone on from 8:00 pm to 12:00 midnight. She has further narrated that it is the prosecutrix and her associates who had committed offences against her and that in this respect she has narrated all her allegations in her complaint which is the subject matter of FIR No. 1049/2015, which was registered prior to the present FIR. She has also sought to state that it was only out of some financial disputes that she was falsely implicated in this case by the prosecutrix at the instance of their employer Sunny who also is an accused alongwith the prosecutrix in FIR No. 1049/2015 PS Vasant Kunj (N).
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10. After the conclusion of the aforementioned Defence Evidence, Ld. Addl. PP for the State Sh. Kamal Akhtar and the Ld. Defence Counsel Sh. G B Singh have advanced final arguments.
Contentions of the Prosecution and the Defence:
11. On behalf of the State, Ld. PP, Sh. Kamal Akhtar, has mainly contended that the statement of the prosecutrix should be taken as sufficient, for holding both the accused persons guilty of having beaten and threatened the prosecutrix, for having illegally confined her at their residence and for having conspired to get rape committed upon her and that accused Prince Bhasin should also be held guilty for having committed the offence of gang rape upon the prosecutrix.
12. On the other hand, Ld. Defence Counsel has vehemently contended that the defence evidence led by the accused persons in particular the call detail records of the mobile used by the prosecutrix clearly reveals that this is a false case lodged against the accused persons. Ld. Defence Counsel has pointed out that the call detail records, Ex.DW1/B and Cell ID chart, Ex.DW1/D clearly reveal that throughout the night of 1415.11.2015, the prosecutrix was constantly using her mobile and her location was not at the residence of the accused persons at all. According to Ld. Defence Counsel this scientific evidence clearly belies the allegations made by the prosecutrix that she was illegally confined at the residence of the accused SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 7 of 16 person on this night. It has also been contended that there are various discrepancies and inconsistencies between the statements tendered by the prosecutrix during investigation and during trial and it is being contended that the deposition of the preosecutrix is not at all sufficient to convict the accused persons. It has also been pointed out that the FIR No. 1049/15 PS Vasant Kunj (N) was registered against the prosecutrix and her associates by accused Harpreet @ Payal prior to the registration of this case and the contention is that this fact in itself shows that the present FIR is a counter blast to the said FIR.
13. In support of his contentions, Ld. Defence Counsel has relied upon the judgment pronounced by the Hon'ble Supreme Court in a case titled and reported as Prashant Bharti Vs. State 2013 (2013) 9 SCC 293.
Findings and conclusion:
14. Having considered the submissions made by the Ld. Addl. PP for the State and the Ld. Defence Counsel, this court is of the considered opinion that the deposition of the prosecutrix is not sufficiently credible and trustworthy to convict the accused persons on the basis of the same. Admittedly, the prosecution is only relying upon the sole testimony of the prosecutrix to contend that the accused persons are guilty of the offences for which they have been charged (there is no medical evidence in support SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 8 of 16 of the allegation of the rape made by the prosecutrix in her deposition, for initially the prosecutrix had not alleged at all that accused Prince Bhasin had sexual intercourse with her and therefore his blood samples were not sent for examination with the samples drawn from the vagina of the prosecutrix). It will, therefore, be relevant herein to briefly narrate the deposition of the prosecutrix given during her examination in chief - as per her deposition, she used to work for the accused Payal at her parlour and on the instructions of the said accused, used to give massage to her clients and that on 14.11.2015, the accused Payal had taken her to her house at about 1:30 p.m for the purposes of giving massage to some clients. She has further interalia deposed that at the said house of the accused Payal, she gave massage to two persons and later on, came to know that one of them was the husband of the accused Payal and it is her deposition that the accused Payal had forced her to have sex with her husband accused Prince Bhasin and that when she objected, accused Prince Bhasin gave her beatings and committed sex with her forcibly. She has further deposed that when she told the accused persons that she will make a complaint to the Police, they threatened to kill her and her child in her womb and that thereafter they confined her at their residence for the entire night of 14.11.2015 and it is only the next day that the accused Payal took her along to her parlour at South Extension and thereafter she went to the Police Station South Extension to give her complaint. She has also interalia deposed that police officials of PS South Extension did not register her SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 9 of 16 complaint and it is only on 16.11.2015 that she was taken by them to PS Vasant Kunj (N) and it is the said Police Station where her complaint was lodged.
15. The deposition hereinabove makes it apparent that the prosecutrix in her testimony, did not make any allegation on her own against Atul Sharma, a friend of accused Prince Bhasin, who as per her allegations in the complaint, had committed rape upon her. It is only when the Ld. Addl. PP for the State sought the permission of the court and crossexamined her, did she admit the suggestion that it was accused Atul Sharma who had given beatings to her and that accused Payal had pushed her in a room where this person Atul Sharma had committed rape upon her and the accused Prince Bhasain had put his hand in her private parts. She has sought to give an explanation that she could not mention these facts on her own in her examinationinchief because during her deposition her daughter was sitting in her lap and that she was continuously crying. Though it is being rightly submitted by the Ld. Addl. PP for the State that this court should take into consideration the explanation tendered by the prosecutrix for not deposing the complete facts on her own, what this court cannot ignore is that apart from the said lapse there are three different allegations made by the prosecutrix in the three statements given by her at different stages of investigation and trial. It is a matter of record that in her initial statement, Ex.PW1/A, the prosecutrix had alleged that the accused SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 10 of 16 Prince Bhasin had attempted to have sex with her by putting his finger in her vagina, in her statement under section 164 Cr.P.C, she had alleged that the accused Prince Bhasin had merely touched her private parts and in her deposition before this court she has alleged that the accused Prince Bhasin had had sex with her and there is no explanation forthcoming from the prosecutrix with respect to the said inconsistencies. She was confronted with the said discrepancies categorically during her crossexamination and she was specifically asked as to why she had not narrated in her complaint, Ex.PW1/A and in her statement under section 164 Cr.P.C that the accused Prince Bhasin had sex with her and she has chosen to state that she had narrated the said fact, which is obviously not the case.
16. The prosecutrix has also given different versions with respect to how she managed to leave the premises of the accused persons and there is also absolutely no clarity in the deposition of the prosecutrix or her earlier statements as to at what time was she freed by the accused persons on 15.11.2015. Though in her complaint, Ex.PW1/A, she has alleged that the accused persons kept her confined for one whole night in their house and that she somehow on her own managed to leave the said house and go to Police Station Kotla (in the said statement she does not give the time when she was able to leave their house), in her statement under section 164 Cr.P.C, she narrates that it was at about 2 - 2:30 p.m in the afternoon of 15.11.2015 that the accused persons took her to their massage parlour in SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 11 of 16 Kotla, while in her deposition in the court, in her crossexamination, she deposes that she does not at all remember the time when she was taken to the parlour of the accused persons the next day.
17. There is yet another discrepancy between the aforementioned statements of the prosecutrix and this is with respect to the her allegation regarding the illegal retention of her chain, her purse and her mobile by the accused persons. While in her original complaint, Ex.PW1/A, the prosecutrix has narrated that when she pleaded with the accused Harpreet @ Payal, the said accused returned her chain, her purse and her mobile after taking out its sim, she in her statement under section 164 Cr.P.C, has stated that accused persons illegally retained her purse, mobile and gold chain, while in her deposition in the court, in her crossexamination, she has again stated that the accused persons had not taken her purse and gold chain, but they had taken her mobile phone only. It is also a matter of record that though in her earlier complaint she had alleged that the accused persons had threatened to kill her and her daughter, in her deposition in the court, she has chosen to narrate that the accused persons had threatened to kill her and her child in the womb (the gender of whom she was apparently not aware of at the said time).
18. Though Ld. Addl.PP for the State has sought to contend that the aforementioned discrepancies are minor and do not take anything away SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 12 of 16 from the deposition of the prosecturix that she was forcibly confined by the accused persons in their house on 14.11.2015 and that the accused Prince Bhasin had committed rape upon her and the accused Harpreet @ Payal had abetted the same, in the considered opinion of this court, the aforementioned discrepancies cannot be said to be irrelevant at all for they do create a reasonable doubt on the credibility of the prosecutrix. In particular, her deposition in court that accused Prince Bhasin had sex with her is a very material improvement from her earlier allegation that he had only attempted to have sex with her and such an improvement cannot at all be stated to be a minor discrepancy.
19. Apart from the aforementioned inconsistencies, the most material evidence that has come to fore during trial which negates the allegations of the prosecutrix is the CDR and cell ID chart of the mobile admittedly used by the prosecutrix on the date of the alleged incident, which has been brought on record by the Defence during its evidence for the same clearly shows that the prosecutrix was not even present at the residence of the accused persons on the night of the alleged incident.
20. As narrated hereinabove, the Defence had summoned the Nodal Officer from Vodafone to produce on record the call detail records and cell ID chart with respect to the mobile No.9873481992 and the said records produced before this court have been exhibited as Ex.DW1/A to SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 13 of 16 Ex.DW1/D. The prosecution has not seriously challenged the said records and the prosecutrix in her crossexamination has categorically stated that she was using this mobile number only on the date of the incident. Now though, according to the prosecutrix her mobile had been taken away by the accused persons in the evening of 14.11.2015 and they had switched it off during the entire night of 14.11.2015 and that she therefore could not make any calls from her mobile the entire night of 14.11.2015, the call detail records of this mobile number, Ex.DW1/B, reveal that even after 6:30 p.m on 14.11.2015, there were many incoming and outgoing calls made from the said mobile through out the entire night of 14.11.2015 and during the day hours of 15.11.2015 also. The contention of the Ld. Addl. PP for the State that there is a possibility that the accused persons themselves were making calls from the mobile of the prosecutrix and were also receiving the incoming calls, has absolutely no basis for the cell ID chart, Ex.DW1/D clearly shows that its location on 14.11.2015 and 15.11.2015 was not at the residence of the accused persons. It infact reveals that the location of the mobile phone being used by the prosecutrix on 14.11.2015 w.e.f 2:05 p.m, (the time she alleges that she was taken to the residence of the accused persons),till 9:32 p.m was at Kotla, Arjun Nagar. Thereafter, the location of the said mobile number for about 10 minutes was at Gulmohar Park and Panchsheel and thereafter from 10 p.m. to 12 in the midnight, it was at Khirki Exetension. Thereafter, for about an hour or so it was again at Yusuf Saria and Hauz Khas and was again back at Arjun SC No. 9330/201 FIR No.1050/15 State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 14 of 16 Nagar from about 2:55 a.m on 15.11.2015 to 6 p.m, on 15.11.2015. Now admittedly the residence of the accused persons where the prosecutrix alleges that she was confined from 2 p.m on 14.11.2015 till the afternoon/evening of 15.11.2015, is at Vasant Kunj and admittedly, Vasant Kunj is at a distance of about more than 15 km from Arjun Nagar. At no point of time on 14.11.2015 or on 15.11.2015, as per the cell ID chart, is the location of the mobile being used by the prosecutrix is shown to be in an area near Vasant Kunj and this scientific evidence on record, in the considered opinion of this court, completely negates the allegations of the prosecutrix that she was wrongfully confined by the accused persons in their house w.e.f 1:30 p.m. on 14.11.2015 till the afternoon / evening of 15.11.2015 and that during this confinement, she was raped by the accused Prince Bhasin with the aid of accused Harpreet @ Payal.
21. Though no doubt, the Ld. Addl. PP for the State may be right in contending that since the chargesheet filed with respect to FIR No.1049/15, is still pending trial and that therefore, it would not be prudent to comment on the merits of the said case, suffice to state that in the present case, the deposition of the prosecutrix has not inspired any confidence in this court. The facts and the circumstances of the present case which have been discussed in detail hereinabove do reveal that the prosecutrix has not stated true facts before this court and, therefore, her deposition cannot at all be made the basis of holding the accused persons guilty of any offence.
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22. In view of the discussion hereinabove, this court is of the considered opinion that the accused persons cannot be held guilty of the offences that they have been charged with and they are therefore hereby acquitted of the charges for which they have faced trial.
Digitally signed by ANU ANU GROVER
GROVER BALIGA
Announced in Open Court BALIGA
Date:
2018.05.11
On 10th day of May, 2018 16:16:43 +0530
(Anu Grover Baliga)
Court No.7, Lock UP Building
ASJ / FTC / PHC / NDD
New Delhi /10.05.2018
SC No. 9330/201 FIR No.1050/15
State Vs. Prince Bhasin, etc.. P.S. Vasant Kunj (N) Page 16 of 16