Delhi District Court
State vs Mr. Rahul Choudhary on 3 July, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 66/2013.
Unique Case ID Number : 02401R0289952011
State versus Mr. Rahul Choudhary
Son of Mr.Mahesh Kumar Choudhay
Resident of C-3/227 Janak Puri, New Delhi.
First Information Report Number : 291/10.
Police Station Janak Puri.
Under sections 376/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 02.07.2011
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in the : 15.09.2011
Court of ASJ, West, Delhi
Date of receipt of file after committal in this : 23.01.2013
Court of ASJ SFTC-01 , West, Delhi
Arguments concluded on : 03.07.2014
Date of judgment : 03.07.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. Surinder Singh.
IO/SI Renuka is present.
Ms. Poonam Sharma, counsel for Delhi Commission for
Women.
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JUDGMENT
1. Mr.Rahul Chaudhary, the accused, has been charge sheeted by Police Station Janak Puri, Delhi for the offence under sections 376 /506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code. State versus Rahul Chaudhary. -:: Page 1 of 7 ::-
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during the intervening night of 25/26.11.2010 at about 1.00 a.m at C-3/227 Janak Puri, Delhi, he had committed rape upon the prosecutrix (name withheld to protect her identity) and he had threatened the prosecutrix with threat to her life.
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 02.07.2011 and after its committal, the case has been assigned to the Court of the Additional Sessions Judge, West, Delhi for 15.09.2011 and thereafter transferred to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 23.01.2013 in compliance to the order of Ld. District & Sessions judge vide circular no. 20/372-512/F.3(4)/ASJ/01/2013 dated 04.01.2013.
3. After hearing arguments, charge for offence under sections 376 of the IPC and charge under section 506 IPC was framed against the accused Mr. Rahul Choudhary vide order dated 30.01.2012 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined as many as 14 witnesses i.e. Dr. Shalu, who had medically examined the prosecutrix, as PW1; Dr. Sanjay Rai, who had medically examined the accused, as PW2; HC Sukhbiri, who had taken the prosecutrix to DDU hospital for her medical examination, as PW3; Ct. Ramesh Kumar, witness of investigation, as PW4; HC Sanjeev, duty officer, as PW5; Dr. Archana, who had medically examined the prosecutrix, as PW6; Mr. Indresh Kumar Mishra, Senior Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code. State versus Rahul Chaudhary. -:: Page 2 of 7 ::-
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Scientific Officer, Biology, FSL expert, as PW7; Ct. Madan Lal, who had taken the exhibits of the case to the office of FSL, as PW8; Mr. Ashu Garg, learned Metropolitan Magistrate who had recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the prosecutrix as PW9; Dr. Narinder Kumar, who had medically examined the accused, as PW10; HC Rajiv Kumar, MHCM, as PW11; HC Subhash Chander, witness of investigation, as PW12; Ms. Magdleen Marin, who had counseled the prosecutrix in PS, as PW13; and the prosecutrix as PW14. The prosecutrix was examined with the assistance of interpretor since the prosecutrix could speak Sadgi language and could not speak, understand Hindi and English languages.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW14, was examined in chief and partly cross examined on 31.05.2013. After that the prosecutrix has once appeared on 27.08.2013 and thereafter, she has never appeared for her further cross examination despite being bound down. Bailable warrants were issued against her but she still failed to appear despite their execution. Thereafter, Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code. State versus Rahul Chaudhary. -:: Page 3 of 7 ::-
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the non-bailable warrants were issued against her to be executed by the Iom SHO as well as the DCP, West.
7. The non-bailable warrants issued against the prosecutrix for 03.07.2014 were returned unexecuted with the report of the Additional Commissioner of Police, West District that the house was found locked and the process server had met the brother of the prosecutrix who informed that she was residing with him till last month but presently he does not know her address. The report of SI Ajit Singh, forwarded by the SHO and the ACP with statements of Mr. Anadan, Mr. Suman Kumar, Mr. Chamra Ram and Mr. Aditya Kumar Bhagat recorded by HC Surender Singh have also been annexed.
8. Moreover, IO/SI Renuka has submitted that she is not in a position to produce the prosecutrix nor execute her NBWs as the prosecutrix is not available and her present whereabouts are not known.
9. The IO as well as senior police officers i.e. the SHO, the ACP and Additional Commissioner of Police, West District are unable to produce the prosecutrix before this Court for her evidence. In such a situation, i would be futile to record the testimonies of other witnesses who are official or formal in nature when the prosecutrix herself is not available for her further examination.
10. The prosecutrix was examined in chief and partly cross examined on behalf of the accused. Thereafter, she failed to make her available for Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code.
State versus Rahul Chaudhary. -:: Page 4 of 7 ::-
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remaining evidence i.e for her further cross examination on behalf of the accused. The police is also unable to secure her appearance before the Court despite the non-bailable warrants being issued against her. The police officers i.e. the IO, the SHO, the ACP and the Additional Commissioner of Police, West District have been unable to secure her appearance for her remaining evidence. In the circumstances, the prosecution evidence was closed vide order dated 03.07.2014.
11. The evidence of other prosecution witnesses i.e PW1 to PW13 is insufficient to convict the accused as they are official or formal witnesses. In the absence of the evidence of the prosecutrix (since her examination in chief and part cross examination cannot be read against the accused in view of the provisions of the Indian Evidence Act as her evidence was not concluded and the accused did not get an opportunity to conclude the cross examination of the prosecutrix due to her non-availability), the evidence of the other witnesses is insufficient and not incriminating. Therefore, the statement under section 313 of the Cr.PC of the accused is dispensed with.
12. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
13. As the prosecutrix, PW14, who happens to be the material witness, has failed to make her available for remaining evidence i.e. for her further cross examination despite the non-bailable warrants having been issued against her, consequently, no inference can be drawn that the accused Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code.
State versus Rahul Chaudhary. -:: Page 5 of 7 ::-
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is guilty of raping the prosecutrix or threatening her. Her part examination cannot be read against the accused in view of the Indian Evidence Act. There is no material on record to suggest that the prosecutrix was ever raped or threatened by the accused. No case is made out against the accused as there is no incriminating evidence against him.
14. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused person, Mr. Rahul Chaudhary, for the offence under sections 376 IPC and 506 IPC
15. Consequently, accused Mr. Rahul Chaudhary is hereby acquitted of the charge for the offence under sections 376 IPC and 506 IPC.
16. Compliance of section 437-A Cr.P.C. is made in the order sheet.
17. Case property be destroyed after expiry of period of limitation of appeal.
18. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, or where the prosecutrix, the star witness, fails to make herself available for evidence, as in the present case, as already discussed above. It Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code.
State versus Rahul Chaudhary. -:: Page 6 of 7 ::-
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should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
19. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
20. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 03rd day of July, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 66 of 2013 Unique Case ID Number : 02401R0289952011 FIR No. 291/10, Police Station Janak Puri Under sections 376/506 of the Indian Penal Code. State versus Rahul Chaudhary. -:: Page 7 of 7 ::-