Delhi District Court
Directions Of Supreme Court In "State Of ... vs . Puttraj 2004 (1) Scc on 22 July, 2016
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case ID Number. 02401R0049712014
Sessions Case No. 40/2014
Assigned to Sessions. 02.06.2014
Arguments heard on 18.07.2016
Date of Judgment 22.07.2016
FIR No. 25/2013
State v. Bheem Kumar Jaiswal S/o. Late Sh. Ram
Jatan, R/o. H. No.C340, Gali No.14,
Bhajanpura, Delhi.
Police Station DBG Road.
Under Section 376 (2)(n) IPC.
JUDGMENT
1.In the present case Station House Officer of Police Station DBG Road had filed a challan vide FIR No.25/2013 dated 21.01.2013 u/s 376 IPC for the prosecution of accused Bheem Kumar Jaiswal in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr.P.C. the case was sent to this court being the designated Fast Track Court for trial of the offences of sexual assault against the woman through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. Story of prosecution is that prosecutrix w/o late Sh. Sunil Kumar, approached the police station DBG Road and recorded her statement wherein she stated that she was living in House No.G65, Jagjit Nagar, Gali No.14, Tisra Pusta, Delhi. She further stated that her husband was expired in the year 2002 and since then she SC No.40/2014 State Vs. Bheem Kumar Jaiswal 1/19 herself taking care of her family. In May 2011, she met the accused Bheem Kumar Jaiswal through her nephew Ajay. Accused got her employed at PMS Company situated in Madhu Vihar where accused himself was working and his working was to make member of the company on the basis of commission. While working in the said company, prosecutrix developed acquaintance with the accused.
3. Prosecutrix further stated in her complaint that in the first week of June 2011 after her joining in the company accused came to her house at Kishan Ganj and at that time her children had gone for tuition and finding her alone in the house, he committed rape upon her forcibly and that when she raised the alarm, accused pressed her mouth. She further stated that accused also threatened her if she would make complaint against him he would see to her. Prosecutrix did not go to her office 23 days. Accused call her to find why she was not coming to office. After 23 days when prosecutrix went to her office, accused promised her to marry her and that he will take care of her children. Prosecutrix further stated that in the last week of June2011accused took her to Lucknow alongwith her children, got a room booked in a hotel, stayed there for a night and that when her children go to sleep, accused established sexual relations with the prosecutrix forcibly. On her objection, he further assured to marry her in the mandir next morning. Next day, at about 1011:00 a.m. accused took her to Ayodhya where he put 'sindoor' in her 'maang' in presence of her children at the out of closed mandir. When the prosecutrix told the accused that said marriage was not proper marriage, accused assured that he will do the court marriage after returning to Delhi and thereafter, he took the prosecutrix to Gorakhpur where he again stayed in a hotel and established sexual relations with the prosecutrix. They stayed at Gorakhpur one day and one night and from there they returned to Delhi.
4. After coming to Delhi, accused got the rented room of prosecutrix vacated and started living in a rented room at Shankar Nagar with the prosecutrix and used to establish sexual relations with her. After one month, accused again vacated the SC No.40/2014 State Vs. Bheem Kumar Jaiswal 2/19 said room and shifted to another rented accommodation at Azad Nagar, Jagjit Nagar and during these period established physical relations with the prosecutrix. When proseutrix used to put pressure upon the accused to marry her, he used to avoid the same and that despite her persistent request accused did not marry with the prosecutrix through court or socially. Prosecutrix further alleged that accused committed rape with her after giving false promise of marriage and that he lastly established physical relation with prosecutrtix in July 2012 in rented accommodation in Jagdish Nagar. On the basis of said statement, present FIR was registered u/s 376 IPC against the accused Bhim Jaiswal and during the course of investigation, accused Bhim Kumar Jaiswal was arrested.
CHARGE:
5. On the basis of material available on record, Ld. Predecessor of this court vide order dated 04.06.2014 framed a charge against accused Bheem Kumar Jaiswal for the offence punishable u/s 376 (2)(n) IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
6. In order to prove its case prosecution has examined 15 witness namely PW1 Prosecutrix, PW2 SI Chanchal Singh, PW3 Dr. Deepti Kaur, PW4 Ms. Pooja, PW5 Dr. Nidhi, PW6 HC Harish Kumar, PW7 W/SI Sushma, PW8 W/Ct. Renu, PW9 Sh. Saurabh Agarwal, PW10 SI Kavita Rana, PW11 Ajay, PW12 SI Surender Kumar, PW13 W/SI Pushpa, PW14 Ct. Bijender and PW15 HC Kuldeep Rana.
7. PW1 Prosecutrix is a material witness being victim/complainant. This witness has deposed that her husband expired in the year 2002 and in the year 2011, she was working in PMS Company at Madhu Vihar where in the month of May 2011, she SC No.40/2014 State Vs. Bheem Kumar Jaiswal 3/19 met with accused Bheem Jaiswal through her nephew namely Ajay. This witnes further deposed that she and the accused use to do the work of joining the persons with the company as members on commission basis.
8. PW1 further deposed that after about 34 months of her joining the aforesaid company, one day when she was alone at her house, accused came to her house and forcibly established physical relations with her without her consent and thereafter, accused assured her that he will marry her.
9. PW1 further deposed that accused has arranged a rented accommodation for her at Shankar Nagar and she lived there for about one month with her children. PW1 further deposed that after one month, she along with her children shifted to a house at Azad Nagar which was got provided by accused on rent and during this period, accused had taken her to Lucknow along with her children and they stayed in a hotel in Lucknow where accused also established physical relations with her forcibly and assured that he will marry her and on next day, accused had taken her to a temple at Ayodhya and filled 'sindoor' in her 'maang' and stated that now he has married her and also stated that he will perform court marriage with her after returning to Delhi and from there, he had taken her to Gorakpur where they stayed in a hotel where also accused established physical relations with her. PW1 further deposed that once accused had taken her to Tijara and Balaji.
10. PW1 further deposed that accused had told her after establishing physical relations with her for the first time that his wife had already expired. PW1 further deposed that accused lived with her in a house at Jagjit Nagar where he established physical relations with her for last time. This witness further deposed that she came to know only after six months of her marriage with the accused at Ayodhaya that he was already married.
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11. PW1 further deposed that when she was living in a rented room at Jagjit Nagar, accused came at about 11:30 a.m. and after sometime, his wife also reached there and she quarreled with them and thereafter, she left while threatening to kill her and her children and then this witness went to PS Usmanpur and gave a complaint against accused and his wife.
12. PW1 further deposed that original complaints, copies of which are mark PW2/A, Mark PW2/A1 to Mark PW2/A4 are not traceable now.
13. This witness has proved her statement vide Ex.PW1/A, arrest memo of accused vide Ex.PW1/B and personal search memo of accused vide Ex.PW1/C.
14. This witness was cross examined by Ld. Addl. PP for the State as her statement is not in full consonance with her earlier statement made to the police. In her cross examination by Ld. Addl. PP for the State, this witness admits that the accused established physical relations with her forcibly for the first time, he also threatened her to see (dekh lene ki dhamki di) in case she made any complaint against him. This witness further admits that accused established physical relations lastly in the month of July' 2012 at H. No.G65, Jagjeet Nagar, Delhi. This witness also admits that police registered this case on her statement on 21.01.2013.
15. In her cross examination by Ld. counsel for accused, this witness deposed that she joined PMS Company in May'2011 and income is generated only if some members are added to the company. This witness further deposed that she was also earning about Rs.2,5003,000/ per month from the work of stitching which she was doing alongside. This witness further deposed that she has stated to the police that accused raped her after about 34 months of joining PMS Company, confronted with statement Ex.PW1/A where it is recorded that this incident happened in first week of June'2011 and the witness joined PMS Company in May 2011. This witness further deposed that she shifted frequently as the landlords used to object SC No.40/2014 State Vs. Bheem Kumar Jaiswal 5/19 to visits by accused.
16. This witness admits that she had gone to Lucknow with the accused along with her two children but she does not remember the date, month of year of her visit to Lucknow. This witness further deposed that she does not know the name of the temple where accused filled 'sindoor' in her 'maang' and no one else was present at the temple at that time. This witness further deposed that he had stated to the police that accused had not committed rape with her at any other place except Lucknow after they left from Delhi and went to Lucknow, Ayodhya and Gorakpur. This witness further deposed that accused had not raped her in the house at Shanker Nagar and also at Azad Nagar and accused established physical relations with her in her house at Jagjeet Nagar with her consent.
17. This witness admits that he had given a complaint at PS New Usmanpur on 31.08.2012 vide DD No.50B. This witness deposed that she had seen the wife of accused 56 years ago and so she came to know that she is his wife when she came to her house at Jagjit Nagar with accused. This witness had denied to the suggestion that she had not have any complaint against accused till the time he was paying maintenance to her.
18. PW2 SI Chanchal Singh. This witness has deposed that on 06.12.2012, he was posted as SI in the Office of ACP, PG Cell, North East, Delhi and on that day, a complaint Mark PW2/A annexed with other complaints Mark PW2/A1 to Mark PW2/A4 was received in the Office. This witness has got recorded the statement of complainant from W/HC Sushma. This witness has further deposed that complaint was marked to the Office of DCP, North District, Delhi vide letter Ex.PW2/A.
19. PW3 Dr. Deepti Kaur. This witness has proved the MLC of prosecutrix vide Ex.PW3/A. SC No.40/2014 State Vs. Bheem Kumar Jaiswal 6/19
20. PW4 Ms. Pooja is a material witness being daughter of prosecutrix. This witness has identified the accused. This witness deposed that once accused had visited their house and her mother told them that he is also working the company where she is working. This witness further deposed that she and her younger brother, Bhanu, visited Mathura and many other places with her mother and accused. This witness further deposed that accused used to tell her and her brothers to address him as 'Papa' and accused had also visited the house of her Mama at Shikohabad with them on one occasion when her Mama had met with an accident.
21. In her cross examination by Sh. Iqbal Shamsi, Ld. counsel for accused, this witness deposed that she does not know who had asked accused to accompany them to Shikohabad when they went there to meet her Mama.
22. PW5 Dr. Nidhi. This witness has proved the MLC of patient/accused Bheem Kumar on behalf of Dr. Sudhir vide Ex.PW5/A.
23. PW6 HC Harish Kumar. This witness has proved forwarding letter vide Ex.PW6/A by which complaints Mark PW2/A, PW2/A1 to PW2/A4 were forwarded to the DCP, North District.
24. PW7 W/SI Sushma. This witness has proved statement of prosecutrix vide Ex.PW7/A.
25. PW8 W/Ct. Renu. This witness has got medically examined the prosecutrix from the LHMC vide Ex.PW3/A and handed over to SI Kavita who had seized the same vide seizure memo Ex.PW8/A.
26. PW9 Sh. Saurabh Agarwal, Nodal Officer, Vodafone Mobile Services has produced certified copy of CDR pertaining to mobile Nos. 9711697823 Ex.PW9/B SC No.40/2014 State Vs. Bheem Kumar Jaiswal 7/19 subscribed in the name of Sunita w/o Sh. Sunil Kumar and 9313747743 Ex.PW9/C subscribed in the name of Amit Kumar S/o. Bheem Kumar Jaiswal, their customer application forms (CAF) alongwith proof of ID Ex.PW9/D and Ex.PW9/G respectively. Mobile No.9313747743 subscribed in the name of Amit Kumar S/o. Sh. Bheem Kumar Jaiswal came to Vodafone mobile services through portability vide portability form Ex.PW9/E and customer application form along with the proof of ID i.e. DL Ex.PW9/F. PW9 also given certificate under section 65B of Evidence Act Ex.PW9/H and Ex.PW9/J qua CDR of mobile numbers 9711697823 and 9313747743 respectively.
27. PW10 SI Kavita Rana is a material witness being first I.O. This witness deposed that on 21.01.2013, she was posted as SI/Incharge, Summon Pool, PS Darya Ganj and on that day, after registration of present case, investigation of this case was entrusted to her and copy of FIR and rukka were given to her by Ct. Karan. This witness has prepared site plan vide Ex. PW1/PX of the place of incident. This witness has deposed that accused was pointed out by the prosecutrix and he was arrested vide arrest memo Ex. PW1/B and his personal search was conducted vide personal search memo Ex.PW1/C. This witness has also also recorded disclosure statement of the accused vide Ex. PW10/A. This witness had also got the medical examination of accused conducted through one Constable who had also handed over MLC of the accused vide seizure memo Ex. PW10/B. MLC of prosecutrix was also handed over to her by Ct. Renu vide seizure memo Ex. PW8/A.
28. During the course of investigation, accused has also pointed out the places of incidents vide pointing out memo Ex. PW10/C, Ex. PW10/D, Ex. PW10/E and Ex. PW10/F respectively.
29. During the course of investigation, on 01.02.2013 prosecutrix had handed over to her, her voter ID Ex. PW1/P1 and discount voucher of her company Ex. PW1/P
2. This witness has seized the same vide seizure memo Ex. PW/PX/2.
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30. During the course of investigation, this witness had also obtained CDRs of mobile phone of accused and prosecutrix and other relevant documents thereof from their service providers. Thereafter, investigation was again transferred to SI Pushpa.
31. This witness was cross examined by Sh. Iqbal ShamsiLearned Counsel for Accused. In her cross examination this witness deposed that she does not remember the time when the FIR was registered. Accused was taken to hospital for his medical examination from PS alongwith Constable. This witness further deposed that on the same day, she visited the different places of incidents alongwith accused and prepared pointing out memos. This witness further deposed that she visited the places at Krishna Nagar, Jagjit Nagar and Bhajanpura. This witness has further deposed that he had recorded the statement of witnesses who had joined investigation with her.
32. PW11 Ajay. This witness has deposed that accused Bheem Jaiswal is known to him as he has worked with him in Nascent Company and the work of the accused was to make members in the company and earn commission. This witness had also become member of the company and paid Rs.7000/ to accused and 23 other persons and this witness had also joined 34 persons including as members in that company. This witness had introduced the Prosecutrix to the Accused at the time of her membership in the company. This witness deposed that he does not know for how long she continued to do the work of that company as he left the said work within one or two weeks of her joining and during this period, prosecutrix told him that she is living with the Accused after marrying him.
33. This witness was cross examined by Sh. Iqbal ShamsiLearned Counsel for accused. In his cross examination, this witness deposed that he is not related to the Prosecutrix and he does not know the location of office of Nascent Company and he had never worked in any company by name of PMS Company. This SC No.40/2014 State Vs. Bheem Kumar Jaiswal 9/19 witness further deposed that before joining Nascent company, prosecutrix was doing the work of stitching and when Sunita joined the aforesaid company as members, she was living in a rented house in the area of Bhrampuri. This witness further deposed that he might have gone to the house of accused with the prosecutrix once and he never met the wife or children of accused.
34. PW12 SI Surender Kumar. This witness took accused to Lucknow, U.P., pursuant to his disclosure statement where you pointed out Kaveri Hotel where accused had stayed alongwith the prosecutrix. This witness has checked the hotel register but no entry in the name of accused or in the name of prosecutrix was found. This witness deposed that accused led them to other different hotels but he could not exactly point out the hotel where he along with the prosecutrix had stayed.
35. PW13 W/SI Pushpa is a material witness being I.O. This witness has deposed that on 21.01.2013, complainant had visited the police station DBG Road and enquired about the status of the complaint. The witness had recorded her fresh statement vide Ex.PW1/A. This witness has made endorsement at point C to C on the said statement and got the FIR registered and after registration of the case, the investigation of case was entrusted to SI Kavita Rana. This witness alongwith W/Ct. Renu took the prosecutrix to Lady Harding Medical College for her medical examination where her medical examination was done vide MLC Ex.PW3/A.
36. PW13 further deposed that after some time Ct. Karan Singh also reached at the hospital with FIR and rukka and handed over the copy of FIR and rukka to W/SI Kavita Rana. IO SI Kavita Rana had done the necessary proceedings and she was relieved from the proceedings.
37. In her presence, I.O. had also prepared pointing out memo vide Ex.PW10/E of the rented room at premises No.B73, Shankar Nagar, East District at the instance of SC No.40/2014 State Vs. Bheem Kumar Jaiswal 10/19 accused and pointed out the same stating that he had established the relations with the prosecutrix. Thereafter, accused took the police party to House No.G65, Gali No.14, Jagjit Nagar, Usmanpur, Delhi and House No.501, Gali No.9, Jagjit Nagar, Usmanpur, Delhi and pointed out the same to be the places where he had established physical relations with the prosecutrix. In her presence, IO had prepared pointing out memos vide Ex.PW10/D and Ex.PW10/C respectively. This witness further deposed that accused has also taken the police party to a room at House No.9580, Gowshala Road, Baradari, Charkhe Wali Road, Kishanganj, Delhi and IO has prepared pointing out memo vide Ex.PW10/F.
38. This witness further deposed that on 11.09.2003, this case was assigned to him for further investigation and he had examined PW Ajay, prepared chargesheet and submitted the same in the court.
39. In her cross examination by Sh. Iqbal Shamsi, Ld. Counsel for accused, this witness deposed that she had not informed the accused about the complaint before registration of the case. This witness has further deposed that they had made enquiry in respect of one rented accommodation of accused in the area of Shankar Nagar, Delhi and there was no other rented accommodation on the floor where the complainant was residing with the accused. This witness further deposed that site plan was prepared by W/SI Kavita in her presence. This witness further deposed that she had not taken the prosecutrix to Lucknow for the purpose of investigation. This witness further deposed that she had recorded the statement of Ajay.
40. PW14 Ct. Bijender. This witness has got medically examined the accused from the Lady Harding Hospital, Delhi.
41. PW15 HC Kuldeep Rana is a formal witness being Duty Officer. This witness has registered the FIR on the basis of complaint Ex.PW1/A. This witness has proved computerized copy of FIR vide Ex.PW15/A. This witness has also proved SC No.40/2014 State Vs. Bheem Kumar Jaiswal 11/19 endorsement vide Ex.PW15/B. This witness has also given certificate under section 65 B of Evidence Act vide Ex.PW/C qua the FIR Ex.PW15/A. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
42. After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein accused had denied all circumstances and evidence put to him and claimed to be innocent and have been implicated falsely in the present case. Accused further claimed that he was working with Nascent Company as Networking Member since 2009. Ajay was also working there and Ajay had introduced the prosecutrix to him and she had joined as a networking member in the company. He had left the company after about two years. Prosecutrix had joined the company in the year 2010 and he joined the PMS company in the year 2011. Prosecutrix used to call him. Thereafter, she also joined PMS Company and due to less income in PMS company, prosecutrix started demanding money from him for which he was not prepared and when he refused them the prosecutrix threatened him to implicate in a false case. He narrated this fact to his wife. Accused further claimed that his wife approached prosecutrix at her house at New Usmanpur, Delhi where some hot talks were exchanged between them. Then mater was reported to the police by the prosecutrix. Accused has preferred to lead D.E. but on at the request of Ld. Counsel for accused, DW HC Vijay Singh, MHCR was dropped.
43. Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
44. Ld. counsel for accused argued and submitted that this FIR has been registered without any complaint given by the prosecutrix at PS New Usmanpur. In the chargesheet, ASI Pushpa has admitted that on 18.01.2013, her written complaint in english was received at PS DBG Road, on which basis the present FIR has been registered but in her cross examination she was unable to point out the said SC No.40/2014 State Vs. Bheem Kumar Jaiswal 12/19 complaint received on 18.01.2013 on the judicial record. On 21.01.2013, then ASI Pushpa recorded statement of prosecutrix and only on that basis the present FIR was registered.
45. Further, in the chargesheet, SI Pushpa has observed that no evidence was found that the accused had taken the prosecutrix to Lucknow in June'2011. In her evidence the prosecutrix has stated that she met with the accused at PMS Company in May'2011 while PW11 Ajay has stated that he introduce the prosecutrix with the accused at Nescent company before joining the PMS Company in May'2011. PW11 Ajay never worked at PMS Company.
46. Further, the prosecutrix has stated that the accused has committed rape on her after about 34 months of joining the PMS Company while in the FIR it has been stated that the said incident has taken place in the first week of June'2011.
47. Ld. counsel for accused further submitted that the prosecutrix also mentioned the name of Tizara and Balaji alleging that accused had taken her to these places also but neither in the FIR nor in her statement u/s 161 Cr.P.C. she has mentioned these places. After working with Nescent Company, the accused joined PMS Company and following him the prosecutrix also joined the PMS Company. Ld. Counsel for accused further submitted that when she could not earn money as per her expectation she started demanding money from the accused when the accused did not fulfill her desire of giving money to her, she started threatening him that she will lodge a false complaint against him.
48. Ld. counsel for accused further submitted that the accused narrated this fact to his wife and in the month of August' 2012 wife of the accused went to the prosecutrix's rented room at New Usmanpur and there a quarrel took place between them. Consequently the prosecturix was lodged a complaint at PS New Usmanpur on 31.08.2012 vide DD NO.50B.
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49. The prosecutrix also stated that ASI Pushpa had instructed her to visit PS DBG Road while ASI Pushpa has stated that the prosecutrix visited PS DBG Road at her own to enquire about complaint.
50. Ld. counsel for accused further submitted that both prosecutrix and I.O. ASI Pushpa have stated that the accused had been arrested at PS DBG Road at the instance of the prosecutrix but prosecutrix in her evidence has stated that she never seen the accused at PS DBG Road before registration of FIR and also after coming back to the PS after medical examination of the prosecutrix. The prosecutrix in her statement u/s 161 Cr.P.C. has stated that I.O. SI Kavita Rana took her to Kishan Ganj to prepare the site plan on her instruction which has been marked from point A to A at Ex.PW1/BX1 but in her evidence the prosecutrix denied this fact and stated that the site plan has not been prepared on her instruction.
51. Ld. counsel for accused further submitted that the prosecutrix has done several petty jobs for her survival but she got very difficult to maintain herself in such income which she has revealed in her statement and her house at Kishanganj was also in debilitation condition and she was in dire need of money.
52. Ld. counsel for accused further submits that prosecutrix has stated that she was not aware of the wife of the accused was alive but in her evidence she has admitted that she used to stitch ladies suits of the wife of the accused before 56 years of this incident.
53. Ld. counsel for accused further submits that in her evidence prosecutrix has also admitted that accused did not commit rape with her at any other place except Lucknow. She further stated that when the accused committed rape with her she did not raise any alarm. Vol. She stated that she only told him not to do so.
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54. Ld. counsel for accused argued and submitted that the Prosecutrix has stated that accused did not commit rape with her anywhere except Lucknow and in Lucknow no evidence was found that both accused and the prosecutrix had visited there. Further, prosecutrix has also stated that accused did not rape with her at Shankar Nagar and Azad Ngar and she has confirmed that accused established physical relation with prosecutrix with her own consent.
55. Ld. counsel for accused further submitted that the Prosecutrix had denied for internal and external examination and no evidence was found in the MLC of the prosecutrix that rape has been committed with her.
56. Ld. counsel for accused further submitted that investigation in this case is also defective. I.O. ASI Kavita Rana and SI Pushpa have made different contradictory statements. I.O. ASI Kavita Rana has stated that the investigation was conducted on the same day after registration of the FIR throughout the night while S.I. Pushpa has stated that investigation was conducted on the next day after 5:30 p.m. Ct. Jagdeep was dropped by the prosecution however, he was essential witness. From the entire evidence, prima facie case is not made out against the accused.
57. Ld. counsel for accused further submitted that I.O. S.I./ Pushpa has filed chargesheet without any investigation and she has supported the prosecution in false implicating the accused in the present case. Due to this act, the accused has to undergo PC and JC for about 15 days. Both the prosecutrix and the I.O. SI Pushpa have implicated the accused in a false case and produced false evidence. While the accused is innocent and has not committed any offence. Both, prosecurix and I.O. SI Pushpa are liable to be prosecuted u/s 195 and 211 of the IPC as prosecutrix lodged this FIR only to blackmail the accused and extort money from the accused in connivance with I.O. SI Pushpa.
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58. On the other hand, Ld. Addl. PP for the State submitted and argued that in this case the first incident of sexual intercourse has forcibly committed by the accused and thereafter accused give false promise to marriage with prosecutrix despite the fact that he was already married and having two children. Even accused can be convicted for the first instance of sexual rape upon the prosecutrix. Accused give false assurance of marriage to prosecutrix. Though he knew that he was not competent to marry as he was already married as such accused never intended to marry with prosecutrix. There are number of jugments of Hon'ble High Court of Delhi wherein it has been held that "in case where accused is married is become clear that he never intend to marry the prosecutrix. Hon'ble High Court held such accused persons guilty of commission of rape u/s 376 IPC.
59. Ld. Addl. PP for the State has relied upon the following judgments :
1. Ratnesh Vs. State of Kerala, SLP (Criminal) No.1759/2015, decided on 15.10.2015 (SC);
2. Som Dev Vs. State of NCT, Criminal Appeal No.291/2012, decided on 06.08.2015.
60. To buttress the proposition that accused can be convicted for the first forceful incident of sexual intercourse even if the subsequent incidents are consensual and in case where accused is already married and obtained the consent of girl to have sexual intercourse with her on false promise of marriage, it can be very well established that accused was never intended to marry with the prosecutrix as he was already married. On these grounds, Ld. Addl. PP for the State has prayed conviction of accused.
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PERUSAL OF RECORD:
61. Record perused. On perusal of record, it is revealed that on the statement of
complainant Ex.PW1/A, present FIR Ex.PW15/A was registered.
62. On perusal of record, it is further revealed that prosecutrix was got medically examined from LHMC Hospital vide MLC Ex.PW3/A and prosecutrix has refused for her external and internal examination.
63. On perusal of record, it is further revealed that medical examination of accused was conducted vide Ex.PW5/A vide seizure memo Ex.PW8/A.
64. On perusal of record, it is further revealed that I.O has arrested the accused vide arrest memo Ex.PW1/B, his personal search was conducted vide personal search memo Ex.PW1/C and recorded disclosure statement of accused vide Ex.PW10/A.
65. On perusal of record, it is further revealed that during the course of investigation, accused had also pointed out the place of incident vide pointing out memos Ex.PW10/C, PW10/D, PW10/E and PW10/F.
66. On perusal of record, it is further revealed that PW9 Sh. Saurabh Agarwal, Nodal Officer, Vodafone Mobile Services has produced certified copy of CDR pertaining to mobile Nos. 9711697823 Ex.PW9/B subscribed in the name of Sunita w/o Sh. Sunil Kumar and 9313747743 Ex.PW9/C subscribed in the name of Amit Kumar S/o. Bheem Kumar Jaiswal, their customer application forms (CAF) alongwith proof of ID Ex.PW9/D and Ex.PW9/G respectively. Mobile No.9313747743 subscribed in the name of Amit Kumar S/o. Sh. Bheem Kumar Jaiswal came to Vodafone mobile services through portability vide portability form Ex.PW9/E and customer application form along with the proof of ID i.e. DL Ex.PW9/F. PW9 also given certificate under section 65B of Evidence Act Ex.PW9/H and Ex.PW9/J qua CDR of mobile numbers 9711697823 and 9313747743 respectively.
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67. Before reaching at any conclusion, let the relevant sections i.e. 376 (2) (n) IPC be reproduced, which are as under : Section 376 (2) (n) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
68. From the perusal of record and testimony of prosecutrix, it is revealed that prosecutrix has been examined before this court where she had made improvements in her depositions before this court and she is about 36 years old.
69. Further, it has come on record that in her complaint, prosecutrix has stated that she has joined the PMS company in May2011 and in the first of week of June'2011, accused came to her house and committed rape upon her without her consent in absence of her children but in her testimony before the court, prosecutrix has deposed that after about 34 months of her joining the company, one day when she was alone accused came to her house and committed rape upon her which leads contradictions in her statement.
70. From the close scrutiny of evidence available on record, it is clear that there was lot of time for complainant to raise objection within her family about commission of rape committed by accused but she did not raise any voice within the family. Moreover, she admits in her cross examination by ld. Counsel for accused that accused established physical relations with her in her house at Jagjeet Nagar with her consent.
SC No.40/2014State Vs. Bheem Kumar Jaiswal 18/19
71. On perusal of record, MLC suggest that prosecutrix refused for her internal and external medical examination. Refusal of medical examination by the prosecutrix goes against her.
72. It is further revealed that prosecutrix and accused were working in same company and became known to each other.
73. Since age of prosecutrix is about 36 years by which it can be presumed that she was of well mature understanding capacity and well aware of the conduct of accused with her and non raising of voice and admission for sexual intercourse with accused proved that she was consenting party.
74. Further, prosecutrix in her testimony has deposed that her nephew Ajay has introduced her with the accused but Ajay who has been examined as PW11 has refused in his cross examination by Ld. Counsel for accused that he is not related to the prosecutrix.
75. In these circumstances evidence of prosecutrix cannot be appreciated. Hence, it would not be appropriate to award conviction to the accused. It is established that prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Bheem Kumar Jaiswal is acquitted from the charges u/s 376 (2) (n) IPC. In terms of Section 437 A Cr. P.C., accused Bheem Kumar Jaiswal is directed to execute bail bond in sum of Rs.50,000/ with one surety in the like amount.
76. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 22.07.2016.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.40/2014State Vs. Bheem Kumar Jaiswal 19/19