Delhi District Court
State vs . Prabhat Ranjan on 29 January, 2016
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.14/15
FIR No.196/13
PS Vasant Kunj (N)
U/s 376/511 of IPC
State Vs. Prabhat Ranjan
Unique ID No.02403R0102462013
Date of Institution 26.07.2013
Argument heard/order reserved 29.01.2016
Date of judgment 29.01.2016
Final Order Convicted u/s 354A of IPC
JUDGMENT
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Cr.P.C. are that on 3rd June, 2013, the prosecutrix was invited by her friend Gaurav to attend a party at Narmada Hostel, JNU, New Delhi. The prosecutrix reached in the said hostel at about 9.30 or 10.00 pm where Ayush Anand, Mukesh Kumar, Abhinav and accused Prabhat Ranjan were present. After sometime, they moved to room no.121 of the said hostel. There, she was persuaded to drink large quantity of liquor. When she began to slipping into unconsciousness, she sensed that all the boys were moving out of the room except Gaurav who was sleeping in the room. Thereafter, accused was stated to have locked the room from inside, turned off the lights, tried to molest and forcibly have sex with prosecutrix. Then she stopped accused saying that she was feeling vomiting and want to go washroom. Then accused accompanied the prosecutrix to washroom. Thereafter, prosecutrix asked accused to bring water and accused went to bring water, she managed to run away from the spot to her hostel. On next day, prosecutrix reported the matter to police upon which present FIR was registered against the accused.
FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 1 of12
2. After completion of investigation, the challan u/s 376/511 of IPC was filed before the learned M.M on 26.07.2013. Thereafter, the case was committed to learned Predecessor Court from where the case was assigned to this court vide order dated 11.08.2015.
3. On 12.09.2013, charge was framed against the accused by Learned Predecessor Court for the offence punishable u/s 376 of IPC to which accused pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, the prosecution examined the prosecutrix/complainant as PW1, HC Ranveer who accompanied the IO to arrest the accused and also got conducted medical examination of accused as PW2, Mukesh and Ayush Anand both present in the party in Hostel as PW3 and PW4 respectively, Dr. Hansraj Singh who examined the accused as PW5, Raman Lal Charpota who happened to be on duty as guard at the gate of Narmada Hostel, JNU on the date of incident as PW6 and IO/WSI Poonam Yadav as PW7. After completion of prosecution evidence, matter was posted for statement of accused.
5. Statement of accused was recorded u/s 313 Cr.P.C separately in which accused denied all the material allegations levelled against him and stated that he did not know prosecutrix and other participants in the party except Ayush Anand and Abhinav. He went to the said hostel only after invitation of his friend for party. He did not know prosecutrix nor her name. He never met prosecutrix personally before this case or thereafter. He never did any wrong acts with prosecutrix as alleged by her.
6. In support of his defence, accused examined one of his friend Sh. Anurag Kumar as DW1. In his evidence, DW1 stated that on 04.07.2013 at about 10.00 FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 2 of12 am, he came from Patna to Delhi. At that time, he was residing in room no.139 in the said hostel and also proved his identity card as Ex.DW1/A. DW1 further stated that on the same day, accused told him that there is a party between friends, if he wants to join, he is most welcome. When the party was going on, he went to room no.136 and he greeted everybody and his friends introduced him with a girl namely Avantika present in the party. Due to his journey on last night, he came back in his room and asleep. At about 2.00 or 2.10 am midnight, when he woke up and came out of his room to take water from cooler, he saw the prosecutrix came out from room no.121 and behind her, accused Prabhat Ranjan, Ayush Anand and Mukesh came outside from room no.121. DW1 also stated that after greeting goodnight to every body, prosecutrix left the hostel. Thereafter, he asked the accused to sleep in his room. Mukesh and Ayush Anand went in their respective rooms and he along with accused went to sleep in his room no.139.
7. Final arguments heard on behalf of both the parties. I have also gone through the records as well as written submissions filed on behalf of the accused.
8. It is argued on behalf of the State that in her complaint Ex.PW1/A as well as statement u/s 164 Cr.P.C Ex.PW1/B and in her ocular evidence before the court, the prosecutrix has clearly stated that on the intervening night of 03/04.06.2013, accused tried to commit rape and in fact touched her private body parts and slipped his hands on her body and also kissed her so as to cause penetration and therefore, prosecution has been able to prove its case beyond reasonable doubt of the offence with which accused has been charged. Further, she has also identified the accused correctly before the court. Therefore, accused may be convicted for the offence punishable u/s 376 of IPC.
9. On the other hand, learned defence counsel argued that accused is innocent FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 3 of12 and has been falsely implicated in the present case. The prosecution has miserably failed to prove its case against the accused. Apart from prosecutrix, the prosecution has examined two more independent witnesses ie PW3 Mukesh Kumr and PW4 Ayush Anand and both these witnesses have not supported the prosecution case. In their statement, PW3 and PW4 has clearly stated that they and other friends left room no.121 at about 3.00 am and proscecutrix, accused and Gaurav were also in the process of leaving the room and they saw the prosecutrix going down the stairs. As per PW3, the prosecutrix was drunken heavily but was conscious. PW4 also stated nobody misbehaved with her.
10. It was further argued that in his evidence DW1 Anurag Kumar also deposed that at about 2.00 or 2.10 am when he woke up, he saw the prosecutrix came out from room no.121 and behind her, accused Prabhat and other boys namely Ayush Anand and Mukesh were also coming out from room no.121 and after greeting goodnight to everybody, the prosecutrix left the hostel. Thereafter, DW1 and accused went to sleep in room no.139. Lastly, it was argued that accused was earning money by way of free lance and prosecutrix wanted to marry accused who refused to marry her due to which she has falsely implicated the accused in the present case. There is unexplained delay in lodging FIR as the incident took place in the intervening night of 03-04.06.2013 and complaint was lodged on 05.06.2013 by the prosecutrix.
11. It is further argued that the allegation of kissing by the accused in the room and slipping of hand by him all over her body and also attempt to rape her by the accused has been introduced by the prosecutrix for the first time before the court and were not part of her statement Ex.PW1/A before the police. No specific allegation has been leveled by her which could establish that the act of the accused wold come within the ambit and scope of section 375(c) of IPC. The allegations of the prosecutrix do not establish that the accused manipulated any FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 4 of12 part of the body of the prosecutrix so as to cause penetration. Even if the testimony of prosecutrix is accepted as gospel truth, the alleged act of the prosecutrix would not come within any of the clause of section 375 of IPC. However, the act of the accused would within the purview of section 354A(i) of IPC only if it is proved by cogent evidence. Thus, it has been prayed that accused may kindly be acquitted as the the prosecutrix has given divergent statements before the court and thus her testimony is not reliable. Learned defence counsel has also placed reliance upon the judgment reported in "(1)Lav vs. State of Madhya Pradash Cr.R. No.1175/13 decided on 10th September, 2013; (2) Digamber Harinkhede vs State of Madhya Pradesh Cr. No.1687/13 decided on 16th December, 2013; (3) Dr. Sumit Kumar Sambhudayal Gupta & ors. Vs State of Maharashtra Cr. L. Appeal No.891 of 2004 (4) Raj Kishore @ Raj Kumar vs. The State (GNCT) in Crl. Appeal No.557/13 (5) 2015(6) LRC 159 (SC) titled as State of Rajasthan vs Sri Chand (6)Utpal Das & Anr vs State of West Bengal on 7 May, 2010 and (7) Tarkeshwar Sahu vs State of Bihar (Now Jharkhand) in Crl. Appeal No. 1036 of 2005 decided on September 29, 2006".
12. In the present case, the allegation against the accused are that in the intervening night of 03-04.06.2013, accused tried to commit rape upon the prosecutrix when she was under influence of liquor.
13. Section 375 IPC defines rape with a woman against her will. For better appreciation of the present case relevant provision of section 375 IPC are reproduced for ready reference which are as under:-
375. Rape. - A man is said to commit "rape" if he -
a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person;
FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 5 of12 or
c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is under eighteen years of age.
Seventhly. - When she is unable to communicate consent.
Explanation 1. - For the purposes of this section, "vagina" shall also include labia majora Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 6 of12 specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
14. Before discussing the prosecution evidence, it would be appropriate to discuss the defence evidence. In his defence evidence, accused examined Sh. Anurag Kumar as DW1. In his examination in chief itself, DW1 stated that he reached Delhi on 04.07.2013. Thus, it belies the stand of the witness that he was present on the date of incident ie in the intervening night of 03/04.06.2013 in the Hostel. Further, none of the witnesses ie PW3 Mukesh Kumar and PW4 Ayush Anand have stated that the witness DW1 was present in the party. Even DW1 himself admitted in his cross examination that he had not attended the party on the date of incident. Though, the witness DW1 has deposed that he went to the room where the party was going to greet everybody. But in the cross examination of the above witnesses PW3 and PW4 including the prosecutrix, no such suggestion has been given on behalf of the accused that witness DW1 came to the room and greeted everybody present there where the party was organized. DW1 himself admitted in his cross examination that he has no knowledge about the present case and he did not go to the room no.121 where the party was shifted later on. Thus, he can not be otherwise supposed to have the knowledge as to what had happened in the room no.121. Furthermore, in the statement before this court u/s 313 Cr.P.C, the accused did not utter a single word about the greeting of DW1. Further if the testimony of witness DW1 is believed to be true that he saw the accused leavig room at about 2.00 am, it contradicts the stand of accused that he left the party at about 12.00 mid night.
15. Now coming to the case of prosecution in the present case, the charge has been framed against the accused of commission of rape with the prosecutrix against her will and wishes on 04.06.2013 at about 3.00 am in Narmada Hostel, JNU.
FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 7 of12 In her examination in chief, PW1/prosecutrix has stated that at about 2/2.30 am when the party was over, the participants started leaving one by one. She further deposed that Gaurav slept in room no.121 and when she was about to leave the room, the accused caught hold of her and started kissing her. She further stated that accused tried to commit sexual intercourse against her wishes. She further stated that she went to washroom on the pretext that she was feeling vomiting; accused also followed her; she insisted the accused to go outside the toilet but accused started slipping his hands over her body and attempted to commit rape. She further deposed that when she asked the accused to bring water bottle and when he left the bathroom, she managed her escape and came to her room. She further deposed that on the next day she reported the matter to security officer of JNU and made complaint to the police. She further stated that the complaint was in her handwriting and in which she has mentioned that she was caught hold in the party in room no.121 by the accused; accused bolted the door from inside and switched off the lights and tried to have sex forcibly with her.
In her written complaint Ex.PW1/A to the police, she has stated that she was persuaded to drink a large quantity of alcohol and she began to slipping into unconsciousness; she sensed that all boys were moving outside the room except Mr. Gaurav who slept in the room and then the accused locked the room from inside and turned off the lights and then he tried to molest her and forcibly have sex with her. She has further mentioned in her complaint that she stopped the accused and stated that she was feeling like vomiting and wants to go washroom; accused accompanied her there and when she asked him to get water, accused went back to room for getting water then she ran away to her hostel. It is relevant to note here that the complaint Ex.PW1/A was lodged on 05.06.2013 at about 4.10 pm ie after about 36 hours of the incident.
In her statement before learned MM Ex.PW1/B, prosecutrix stated that in the intervening night of 03.06.2013 and 04.06.2013, she became FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 8 of12 unconscious; accused tried to sleep with her; accused started kissing on her neck and started touching her vagina. In the statement, she further stated that she was not in a state to shout or scream so she excuses herself on the pretext of going to washroom saying that she is feeling like vomiting; she asked the accused to bring the water; in the meantime, accused slipped his hand inside her T-shirt and was touching her back; when accused went to get water, she ran away from there; she left her phone and slipper in that room only.
In her cross examination, PW1/prosecutrix deposed that Mr. Gaurav was known to her since last one month; other boys were not known to her; she was wearing trouser and T-shirt; she attended similar party on earlier occasions but no such incident occurred with her on any previous occasion. She further deposed that all the participants were taking drinks and she has already consumed four pegs but she cannot say whether the accused took the liquor or not.
16. Witness PW3 and PW4 did not utter a single word about any such incident in their examination in chief before the court nor in their statements u/s 161 Cr.P.C. Mr. Gaurav who was present in the room at the time of incident and was sleeping though was arrayed as a witness but was dropped by prosecution vide order dated 02.07.2015. In their cross examination, PW3 and PW4 though admitted that the prosecutrix was asking about the accused about his job but they further deposed that they saw the prosecutrix leaving the room and going down to the stairs.
Thus, if the entire prosecution evidence is taken into consideration, it cannot be said that any offence of rape was committed as the act alleged by the prosecutrix against the accused does not come within the definition of rape as defined u/s 375 of IPC, in as much as there is no evidence of manipulation of body part of prosecutrix so as to cause penetration in the mouth, urethra or anus of the prosecutrix or there is no evidence of insertion, to any extent of any object FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 9 of12 or a part of the body not being penis. Instead in the deposition of the prosecutrix before the Court, she stated that the accused slipped his hand over her body while she was in bathroom and attempted to commit rape.
17. So far as slipping of the hand over the body of the prosecutrix is concerned, it is to be seen as to whether this act was done with a view to cause penetration by the accused in any part of body of the prosecutrix. As per the allegation of the prosecutrix that act of slipping over the body was done by the accused in the washroom. Further, it has been deposed by the prosecutrix in her examination in chief that the accused started kissing her. Thus, relying upon the judgment reported in the case of "Luv" (supra), this court is of the opinion that from the allegation leveled in her examination in chief, no case u/s 376 or even under section 376 r/w section 511 of IPC is made out. Reason being in the present case, though it has been alleged that the accused attempted to commit rape but it is not clear from the testimony of the prosecutrix as to whether she was even disrobed by the accused and thus, it cannot be said that accused was in so advance state in his action that it would have resulted into rape, had some exterior factors would not have intervened.
18. It is settled proposition of law that in order to come to the conclusion that attempt of rape is made, it should be proved that accused was determined to have sexual connection with the prosecutrix at all events inspite of all resistance. In the present case, it has come on record in testimony of prosecutrix herself that when she asked the accused to bring water; accused went to bring the water and then she ran away from the place of incident. This testimony of the prosecutrix shows that the accused was not so determined to have sexual connection with the prosecutrix despite all resistance and odds and had he been so determined, he would not have gone to bring the water.
FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 10 of12
19. Further, it would be relevant to note that there are inconsistencies in the statement of the prosecutrix regarding the act alleged to fulfill the ingredients of attempt of rape as she has stated in her statement u/s 164 Cr.P.C that accused tried to sleep with her and put his finger into her vagina while no such deposition was made before the court. Even in her complaint Ex.PW1/A, she did not utter a single word about putting his finger into her private part by the accused. Instead she has clearly alleged that accused tried to molest and forcibly have sex with her. Thus, in the light of the testimony of the prosecutrix, this court find it difficult to hold that there was any attempt of rape. The prosecution has not been able to prove the commission of rape or attempt to commit rape by the accused beyond reasonable doubt. Hence, accused stand acquitted for the offence punishable u/s 376 of IPC.
However, the testimony of the prosecutrix has been consistence so far as the allegation of kissing and touching the body of the prosecutrix are concerned. She has clearly stated that accused touched her body/made physical contact with her body and made advances involving unwelcome and explicit sexual overtures and on this count even no suggestion has been put to the prosecutrix that no such act was done by the accused. Thus, it stands proved from the testimony of the prosecutrix that prosecution has been able to prove its case beyond reasonable doubt that accused committed the offence punishable u/s 354A of IPC.
20. In the light of the aforesaid discussions and case laws and considering the fact that offence u/s 354A of IPC is minor offence than the offence u/s 376 for which the accused has been charged and since the accused was having full opportunity to cross examine the witnesses, therefore, this court is of the considered opinion that there is no need to re-frame charge in view of the provision of section of 222 of Cr.P.C as no prejudice is going to be caused to accused. Hence, accused is held guilty and convicted for the offence punishable FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 11 of12 u/s 354A of IPC.
Main file be consigned to the Record Room.
Miscellaneous file be prepared for the purpose of arguments on sentence on 01.02.2016 at 2.00 pm. Put up for arguments on sentence on 01.02.2016.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/29.01.16 Announced in open court on 29.01.16 (Total number of page 12) (One spare copy attached) FIR No.196/13 PS Vasant Kunj (N) U/s 376/511 of IPC State vs Prabhat Ranjan 12 of12