Delhi District Court
State vs Vinay Kumar Dengri on 27 March, 2015
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi
Sessions Case No. : 42/2013
Unique ID No. : 02401R0071362013
State versus Vinay Kumar Dengri
S/o Sh.Ashok Kumar Dengri
R/o RZA85, Prem Nagar, PhaseIV,
Najafgarh, Delhi.
Case arising out of:
FIR No. : 122/2012
Police Station : CR Park
Under Section : 376/313 IPC
Judgment reserved on : 13.03.2015
Judgment pronounced on : 27.03.2015
JUDGMENT
CASE OF THE PROSECUTION:
1. The above named accused is facing trial in this case on the allegations that for quite some time before reporting the matter to police on 20.07.2012, he and the complainant 'V.R.' (name withheld in order to protect her identity) were employed in the same company in Noida where they became friendly and the accused proposed her for marriage, which she accepted and on the strength of said assurance of marriage, the accused compelled the complainant 'V.R.' to have sexual intercourse with him without her consent and against her will. It is further alleged that during the aforesaid period, the complainant 'V.R.' conceived from the said sexual intercourse with the accused and on 20.07.2012, he voluntarily caused the complainant to miscarry her fetus without her consent. CHARGES :
2. The accused was accordingly charged for the offence punishable under Section 376/313 IPC vide order dated 03.12.2012.
3. It may be relevant to mention at the very outset that though the case pertains to the PS Chitranjan Park, however the case was assigned to this court for trial in terms of directions of learned Sessions Judge (HQ) dated 07.02.2013.
PROSECUTION EVIDENCE :
4. In order to bring home its case, Prosecution examined 10 witnesses.
5. The complainant 'V.R.' stepped into the witness box as PW6 and deposed at length. Her testimony would be referred to in detail hereinunder during the course of discussion.
6. Mother of the complainant was examined as PW7. Apart from the aforesaid witnesses, the Prosecution examined Dr.Sharad Shrivastava, Medical Superintendent, La Femne, G.K.II, Delhi as PW2 in order to prove the prescription slip of complainant 'V.R.' regarding her medical examination. He deposed that as per record of the hospital, the complainant 'V.R.' visited the hospital many times. This witness also proved the prescription slips as Ex.PW2/A, which are for the period 10.05.2012 to 14.05.2012.
7. PW3 Dr.Sumita Aggarwal working as SR Gynae, AIIMS was examined in order to establish the factum of medical examination of Prosecutrix after the registration of the case FIR. She deposed that on 20.07.2012 the victim 'V.R.' was examined by her vide MLC Ex.PW3/A and that she conducted her internal checkup after obtaining her consent. PW3 also deposed that no samples were collected as no smear can be made as the victim was raped about 3½ months back and had her abortion on 02.07.2012 in Meerut.
8. Besides the above named doctors, Prosecution also examined police witnesses, including PW1 HC Sunil Kasana, who deposed that while he was working as Duty Officer on 20.07.2012 at PS C.R.Park, he got recorded FIR of this case. This witness also proved the computerized copy of the same as Ex.PW1/A and that his endorsement on the same as Ex.PW1/B.
9. PW5 is HC Manish Kumar who deposed regarding the arrest of the accused Viney Kumar Dengri on 31.07.2012 vide arrest memo Ex.PW5/A and conducting of his personal search and recording of his disclosure statement vide memos Ex.PW5/B and Ex.PW5/C respectively.
10. HC Puran Chand was examined as PW9. He deposed that on
21.05.2012 a complaint Ex.PW6/A made by Prosecutrix 'V.R.' was assigned to him for necessary action. However, he did not take any action on the said complaint as the complainant requested him not to take any action against accused Viney Kumar Dengri as she was hoping for some settlement. PW9 further deposed that the complainant again gave a written statement (Ex.PW6/B) and accused was also called to the PS and it was agreed between the parties that they will get married and that it was also stated by the complainant that in case accused refuses to marry her, she will get the case registered against him.
11. HC Rajinder was examined as PW10. He deposed that on 31.07.2012 while he was working as MHCM at PS C.R.Park, IO/SI Kala Joshi deposited the articles of the case mentioned at Srl.Nos.913, 922, 925, 929, 931, 954 and 972 in register No.19 on 31.07.2012, 06.08.2012, 08.08.2012, 16.08.2012, 17.08.2012, 10.09.2012 and 26.09.2012 respectively. He also proved the said entries as Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F and Ex.PW10/G.
12. PW10 further deposed regarding deposit of the aforesaid case property mentioned at FSL vide RC No.43/21/12 (with respect to case property mentioned at Srl. No.925, 929, 931 and 954.), RC No.44/21/12 (with respect to case property mentioned at Srl. No.922.) and RC No.47/21/12 (with respect to case property mentioned at Srl. No.972.) He also proved the copies of the aforesaid RCs as Ex.PW10/H, Ex.PW10/I and Ex.PW10/J respectively.
13. IO/SI Kala Joshi who conducted the investigation of this case was examined as PW8. She deposed that consequent upon assigning of complaint Ex.PW6/C made by the complainant to her on 20.07.2012, she made her endorsement on the same and got registered the FIR. This witness further deposed regarding having conducted the medical examination of Prosecutrix 'V.R.' at AIIMS and collection of MLC thereof which is Ex.PW3/A. PW8 also deposed regarding seizure of some documents vide seizure memo Ex.PW8/B, which were handed over to her by the Prosecutrix relating to her medical treatment.
14. PW8 further deposed regarding preparation of pointing out memo (Ex.PW6/D) at the instance of Prosecutrix of the place of incident i.e. B121, East of Kailash, South Delhi Guest House and collection of the relevant photocopies and customer entry register in respect of arrival and departure and seizure of the same vide memo Ex.PW4/A.
15. PW8 also deposed regarding recording of the statement under Section 164 Cr.PC of the Prosecutrix before the learned MM, getting verified the medical treatment papers from Fortis Hospital, which were handed to her by Prosecutrix, arrest of the accused on 31.07.2012 (vide memo Ex.PW5/A), conducting of his personal search (vide memo Ex.PW5/B), recording of his disclosure statement (Ex.PW5/C), getting the accused medically examined and getting the potency test of the accused done vide MLC Ex.PW8/C.
16. PW8 further deposed regarding recovery of two mobile phones which were recovered from the personal search of the accused and depositing of the same in the malkhana vide DD entry Ex.PW8/D and also sending of the same to FSL for comparison of voice of accused and prosecutrix.
17. PW8 also deposed that on 10.09.2012 prosecutrix produced CD containing recorded conversation of her and Bhabhi of accused along with transcript of the conversation. Prosecutrix also handed over printout of Facebook Chat, one jewellery bill, hone messages etc. All these documents were seized vide seizure memo Ex.PW8/E. During investigation, PW8 also recorded the statement of mother of Prosecutrix and send the exhibits to FSL. Voice sample of Prosecutrix was taken in FSL and as the accused has already admitted his voice in the court of Ms.Anu Aggarwal, learned MM, Delhi on 24.09.2012, his voice sample was not taken. PW8 collected the previous complaints of Prosecutrix from HC Puran, who had conducted an enquiry on the said complaints.
18. PW8 further deposed regarding preparation of site plan (Ex.PW6/E), preparation of pointing out memo (Ex.PW6/D), recording of the statements of the witnesses, collection of the FSL result (Ex.PW8/K) and filing the same in court and after completion of the investigation filing of the charge sheet in the court.
19. The Prosecution also examined PW4 Ms.Priyadarshini in order to establish the entry in the name of Prosecutrix in the guest house being run by her on 13.04.2012. PW4 proved the said entry in the said register as Ex.PW4/A, which is in the name of the victim 'V.R.' PLEA OF THE ACCUSED :
20. The entire evidence on record was put to the accused in his statement recorded under Section 313 Cr.PC. Though the accused admitted that he and the Prosecutrix were working together in the same Company and that they used to meet on Saturdays and that she had asked him to talk to his parents about their marriage, however, the accused denied that he an his family members ever demanded Rs.20 lacs and a Fortuner Car as dowry from her and her family members. Accused also denied having committed rape upon the Prosecutrix on 13.04.2012. However, the accused admitted that the Prosecutrix informed him about her pregnancy and that he also visited Fortis Hospital at G.K.II on 07.05.2012. He also admitted that he told the victim (PW6) that 27.06.201 would be the auspicious day for their marriage. Accused also denied having caused miscarriage to the Prosecutrix, as alleged. He however admitted that he was medically examined at AIIMS and that his potency test was also conducted vide MLC Ex.PW8/C.
21. The plea of the accused as per his statement under Section 313 Cr.PC is that the physical relations were established between him and Prosecutrix with her consent and not as deposed by her and that when the talks for their marriage were going on, the Prosecutrix insisted that he should leave his family and live with her in a separate accommodation somewhere in Central Delhi. He further pleaded that Prosecutrix refused to live in the flat which he showed to her in the area of Dwarka. She told the accused that she does not want to continue the pregnancy as she is interested in getting married to one boy who is settled in USA.
22. Accused further stated that now the Prosecutrix has married the same person and got registered a false case against him only for the purpose of extorting money.
DEFENCE EVIDENCE :
23. In order to establish his innocence, the accused examined two witnesses in his defence. He claimed that the case has been falsely got registered by the Prosecutrix against him in connivance with with police officials only to extort money and in this regard much reliance has been placed on DW1 ASI Sudarshan Kumar and DW2 Insp.Suresh Chand Verma. Their testimonies shall be discussed in detail later in this judgment.
ARGUMENTS : ANALYSIS : FINDINGS :
24. Detailed arguments were advanced by learned Addl. PP as well as learned defence counsel, who also filed summarized written submissions on behalf of accused Viney Kumar Dengri. I have considered the submissions made by the defence as well as the Prosecution and gone through the evidence on record in its entirety in addition to the relevant statutory provisions and case law.
25. As aforesaid, the accused has been facing trial for having committed the offence under Section 376/313 IPC. The most important witness of the Prosecution to bring home the aforesaid charges is undoubtedly the complainant herself, who was examined as PW6.
26. In order to assess whether prosecution has been able to prove her aforesaid charges against the accused or not, it would be necessary to scrutinize the testimony of the complainant 'V.R.' in minute detail.
27. Prosecutrix (PW6) deposed that she and the accused were working in the same company and that they used to meet each other. She also deposed that the accused was interested in marrying her. This claim of the Prosecutrix is not denied by the accused, as is borne out from his statement recorded under Section 313 Cr.PC. The testimony of the Prosecutrix to the extent that on the day of Holi festival in the year 2012, accused came to her house at Bareily and told her mother (PW7) that he wants to marry her and invited her mother (PW7) to his house at Delhi is also admitted by the accused.
28. That being the admitted position, it is further the claim of the Prosecutrix (PW6) that the father of the accused demanded Rs.20 lacs and a Fortuner car from her mother as dowry and her mother expressed her inability to meet this demand. Prosecutrix further deposed that on 13.04.2012 accused came to her at her PG accommodation at G.K.II and took her along with him to a room in a guest house at DBlock, East of Kailash, where he forcibly established physical relations with her consent. She further deposed that thereafter accused had assured her that he will marry her and even if his parents will not be agreeable for their marriage, he will marry her in court.
29. Prosecutrix (PW6) further deposed that after this incident accused started avoiding her calls. When she called him on his landline number after about two weeks his mother answered the call and when she disclosed about the aforesaid act of the accused to his mother, Prosecutrix was abused by her. Then accused met her after her persisted requests and she asked him to accompany him to the hospital as she was suspecting that she have conceived. Admittedly, on 07.05.2012, accused accompanied the Prosecutrix to Fortis Hospital at G.K.II, where her pregnancy was confirmed. Accused assured that he would marry her on 27.06.2012. However, as per the Prosecutrix (PW6), parents of the accused again raised dowry demand to her mother despite her repeated requests that she will not be able to meet the demand.
30. PW6/Complainant 'V.R.' further deposed that on 21.05.2012, mother of accused came to her PG accommodation, while accused kept sitting in the car outside. Mother of the accused abused her and also suggested her that she should go for abortion. Prosecutrix further deposed that then she again went outside the PG accommodation and told the accused that he should marry her immediately. She further deposed that this discussion took place inside the car of the accused between her, accused and his mother. Mother of the accused agreed for the marriage, but demanded Rs.5 lacs from her. Prosecutrix refused to make any payment stating that her mother was unable to meet the demands. Thereafter, accused pulled her hand and forcibly threw her out of the car.
31. It is pertinent to note that as per the testimony of the Prosecutrix (PW6) then she went to PS CR Park and handed over her written complaint, which has been exhibited on record as Ex.PW6/A. It is contended by learned defence counsel that a bare perusal of the complaint Ex.PW6/A would show that the complaint in the first place does not contain any allegation of any rape having been committed by the accused by the Prosecutrix on 13.04.2012.
32. Prosecutrix (PW6) further deposed that accused threatened her that he will marry her to but he will harass her and make her life miserable to the extent that she will commit suicide. She further deposed that on 31.05.2012, accused send her messages on GTalk, wherein he abused and threatened her. She stated that she went to the PS where accused was also called and he assured before the police that he will resolve the matter. But on coming back from the PS, accused again refuse the marry her until the demand of Rs.5 lacs was fulfilled.
33. PW6 further deposed that on 01.06.2012, she again went to the PS and gave her complaint after changing the date, which is Ex.PW6/B. Along with this complaint, she had also annexed printouts of the messages of the accused which are running into three sheets and are Ex.PW6/B1 (Colly.). However, perusal of Ex.PW6/B1 do not reflect that the accused had abused her or threatened her, as alleged.
34. It is further the claim of the Prosecutrix (PW6) that on 27.06.2012, she called the accused and reminded of his assurance that he will marry her on that day. She deposed that accused came to her PG accommodation along with his two friends and again assured her that he will marry her, but he left from there. Her landlady asked her to immediately vacate the PG accommodation and her mother took her to her house at Bareilly. From there also she tried to contact the accused but he disconnected her calls. Finally, she came to know through father of accused that accused had gone to Haridwar. She left for Haridwar alone to meet the accused by bus, but on the way, she suffered a miscarriage.
35. She further deposed that after about 10 days, she came to know through Bhabhi of accused Viney that he is not interested in marrying her and that he was only after money. She also deposed that she finally got the case registered against the accused on the basis of typed complaint Ex.PW6/C. Though the Prosecution has laid much emphasis on the testimony of Prosecutrix and her various complaints made by her to the police claiming that the same prove the case of the Prosecution beyond reasonable doubt, the defence has argued to the contrary.
36. It was contended by the learned defence counsel that the Prosecutrix was confronted with all her complaints Ex.PW6/A, Ex.PW6/B & Ex.PW6/C and it is apparent that none of these complaints contain the allegation of the Prosecutrix that she was raped by the accused at G.K.II Guest House on 13.04.2012.
37. It was further submitted that rather the Prosecutrix in her cross examination recorded on 22.08.2014 admitted that she did not make any report to the police regarding the incident dated 13.04.2012. Learned defence counsel further submitted that the allegation with regard to the alleged rape committed on 13.04.2012 by the accused surfaced for the first time in the statement of Prosecutrix recorded under Section 164 Cr.PC Ex.PW6/PX1 and she did not mention about the incident of 13.04.2012 in any of her complaints to the police.
38. It is further the submission of the defence that in fact no incident of rape took place in the guest house at G.K.II on 13.04.2012 as alleged by the Prosecutrix. The defence relied upon the testimony of PW4 Ms.Priyadarshini who was running the said guest house. She had during the course of trial exhibited the relevant entry in the guest register, which is Ex.PW4/B. PW4 admitted in her crossexamination that as per record, the address of the guest 'V.R.' in her guest register was of Bareilly and that she had come to Delhi for the purpose of job interview. PW4 further deposed that 'V.R.' had contacted her through 'Just Dial'.
39. Learned defence counsel contended that the aforesaid testimony of PW4 to the effect that 'V.R.' had contacted the owner of the guest house through 'Just Dial' clearly reflects that in fact the room in the said guest house had been booked by the Prosecutrix herself, thus demolishing the entire claim of the Prosecution that it is the accused who took her to the guest house on 13.04.2012. Learned defence counsel submitted that in fact the record of the guest house itself suggests that the room was booked in the name of Prosecutrix. Moreover, as per PW4, she had contacted the owner through 'Just Dial' and had booked the room in the guest house vide entry Ex.PW4/B as she had go come to Delhi for the purpose of job interview. There is nothing on record to show whether the accused had stayed in the said guest house. Thus the claim of the Prosecutrix that she was raped on 13.04.2012 does not stand proved on record.
40. Learned defence counsel further contended that in her cross examination, Prosecutrix/PW6 also deposed that they had breakfast in the guest house which was brought by the accused himself by going downstairs. She raised alarm when accused raped her but she did not make any complaint to the owner of the guest house and also did not call the police. She explained the reason for the same by voluntarily deposing that since the accused had assured her that he will marry her, so she did not make any complaint against him to the owner of the guest house.
41. I have considered the submissions of the Prosecution as well as the Defence in the light of evidence on record. To my mind, there is no explanation whatsoever on record and in the entire testimony of the Prosecutrix as to why she did not make any complaint against the alleged rape committed by the accused upon her on 13.04.2012 in any of her complaints Ex.PW6/A, Ex.PW6/B and Ex.PW6/C.
42. In other words, there is nothing on record to explain as to why when the Prosecutrix approached the police on 21.05.2012 by way of her complaint Ex.PW6/A alleging that the accused had assured her that he will marry her, she would conceal the incident of 13.04.2012 and not make any mention of the said incident of rape to the police in her complaint dated 21.05.2012 Ex.PW6/A. Her explanation that since she did not mention the incident to the police in her complaint as the accused had assured that he will marry her does not seem believable since she herself approached the police on 21.05.2012 by way of complaint Ex.PW6A against the accused alleging that he has approached her and demanded dowry. In the same complaint, the Prosecutrix has also made complaint to the police that she has conceived but she has still not mention about the alleged rape committed by the accused on 13.04.2012.
43. In the light of the aforesaid, I find myself in agreement with the submissions of learned defence counsel that the Prosecution has miserably failed to prove that the Prosecutrix was raped by the accused on 13.04.2012, as alleged by her in her statement under Section 164 Cr.PC and in her testimony before the court.
44. It is noteworthy that in her entire examinationinchief, PW6 did not depose about any other incident of rape allegedly committed by the accused upon her. The alleged incident of rape of 13.04.2012 does not stand proved on record, as discussed hereinabove.
45. Rather, the defence has relied upon various text messages between accused and the Prosecutrix, as per which the Prosecutrix had asked the accused to transfer Rs.1.5 lacs in her bank account. Further, the defence relied upon the text messages sent by the Prosecutrix to the accused (Page 22 & 23 of Ex.PW6/DC) stating that her marriage has been fixed with some other boy at USA and that their relationship should now end. Though, the Prosecutrix voluntarily denied having sent the aforesaid messages. Learned defence counsel contended that in fact Prosecutrix was herself not interested in marrying the accused and falsely implicated him in this case in connivance with police officials, only in order to extort money from him. While extending his arguments further, learned defence counsel relied upon the testimonies of DW1 ASI Sudershan Kumar & DW2 Insp. Suresh Chand Verma.
46. DW1 ASI Sudershan Kumar brought the record pertaining to the preliminary inquiry conducted by him against one Ct.Anuj Chaudhary, on the basis of complaint made by father of the accused. He proved the copy of his detailed report in this regard as Ex.DW1/A and deposed that on the basis of his preliminary inquiry, Ct.Anuj Chaudhary had been suspended and further DE was initiated against him.
47. DW2 Insp.Suresh Chand Verma was examined as he was handed over the file pertaining to DE pending against Ct.Anuj Chaudhary. He deposed that the final verdict of the DE is still pending.
48. Relying upon the testimony of the aforesaid two DWs, learned defence counsel again reiterated that the Prosecutrix had falsely implicated the accused in connivance with the police and that he is innocent.
49. From the above discussion and the evidence on record, I am thus of the considered opinion that the Prosecution has failed to prove its case that accused committed the rape upon the Prosecutrix. Rather, it emerges on going through the entire material on record firstly, that the alleged incident of rape dated 13.04.2012 does not stand proved on record as discussed hereinabove. It also appears on going through the testimony of the PWs, particularly of the Prosecutrix (PW6), that she was admittedly having a love affair with the accused. For the purpose of solemnization of their marriage, both accused and Prosecutrix met the family members of each other's family and accused even stayed for two days at the house of her mother at Barielly, as per the testimony of the Prosecutrix. It has also come on record that the mother of the Prosecutrix also came to Delhi and met the family members of the accused for the purpose of finalizing the marriage of accused with the Prosecutrix. Prosecutrix also admitted that their date of marriage was fixed as 27.06.2012 and a Shagun Ceremony was also organized in order to finalize the marriage.
50. It was contended by the defence that the Prosecutrix did not want to live with the accused at Najafgarh. Accused had searched out another flat at Dwarka which was not liked by the Prosecutrix. Mother of the Prosecutrix who was examined as PW7, also deposed in her crossexamination that she along with her daughter i.e. Prosecutrix had gone to see a flat at Dwarka, but they did not like it. The defence thus raised by the accused that the Prosecutrix was not interested in living in his house and wanted to live at some other place thus appears to be probable.
51. It is also pertinent to note that the Prosecutrix herself admitted that when their families refused to got solemnized their marriage, accused told her that he will perform court marriage with her. She also admitted that accused accompanied her to Fortis Hospital and bore all medical expenses and also mention his name as father of the child. Admittedly, the accused also sent a legal notice to the Prosecutrix for not terminating her pregnancy.
52. In the light of the aforesaid facts, I find myself in agreement with the submission of the defence that it appears that the intention of the accused and the Prosecutrix to enter into matrimonial alliance did not work out and the case in hand rather than being a case of rape, appears to be a case which emanated out of this broken relationship. The accused, in these circumstances, and in the light of evidence on record can certainly not be convicted for having committed the rape of the Prosecutrix, as alleged and is thus liable to be acquitted for the charge for the offence under Section 376 IPC.
53. Insofar as the charge for offence under Section 313 IPC is concerned, to my mind, on the basis of evidence on record, accused Viney Kumar Dengri also cannot be held guilty of having caused miscarriage to the Prosecutrix, as alleged.
54. Both the Prosecutrix (PW6) and her mother (PW4) consistently deposed that the Prosecutrix suffered miscarriage when she was on her way to Haridwar from Bareilly. Admittedly, there is no record of hospital where the Prosecutrix was taken for treatment after the alleged miscarriage. Further, from the testimony of the Prosecutrix herself, it appears that the accused had no role to play nor did he intentionally caused the Prosecutrix to miscarry. It would be revealed from the testimony of Prosecutrix (PW6) that when she came to know through the father of accused that accused had gone to Haridwar, she left for Haridwar alone to meet him by bus, but on the way she suffered a miscarriage. Under these circumstances, to my mind, the accused cannot be said to have intentionally caused the Prosecutrix to miscarry nor does there is any evidence on record. Rather, it is admitted by the Prosecutrix herself that the accused has sent her a legal notice restraining her not to undergo abortion.
55. Consequently, in the light of aforesaid facts and circumstances, Accused Viney Kumar Dengri S/o Sh.Ashok Kumar Dengri is hereby acquitted for the offence under Sections 376/313 IPC. His bail bond cancelled. Surety discharged. File be consigned to Record Room.
Announced in the Open Court on 27th March, 2015 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.