Delhi District Court
State vs . Ajay Kumar Saini And Others on 2 January, 2017
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.
SC No. 441501/16
State vs. Ajay Kumar Saini and others
FIR No. 279/16
U/s. 376/376D/506/354/34 IPC
P.S. Dwarka North
02.1.2017
ORDER ON CHARGE :
1.Accused Ajay Kumar Saini is the disciple while accused Chander Pal is the son of accused Bahadur Mal who is stated to be the religious guru of the prosecutrix 'X' (real name withheld in order to conceal her identity).
2. The case of the prosecution, in brief, is that on 25.10.2014 at about 11 a.m accused Ajay committed rape upon prosecutrix after threatening her of dire consequences at the point of knife. In May 2015, coaccused Chander Pal also committed rape upon the prosecutrix and clicked her photographs. In July 2015, the prosecutrix told about the aforesaid incidents to coaccused Bahadur Mal. However, he did not pay any heed. Accused Bahadur Mal inserted thumb of his right feet in the private part of the prosecutrix. On 25.9.2015 when the matter was again State v. Ajay Kumar Saini and others (FIR No.279/16 PS Dwarka North) Page 1 of 6 brought to the notice of accused Bahadur Mal, he spat on the private parts of the prosecutrix.
3. On the aforesaid complaint of the prosecutrix given to the Police on 28.5.2016, the present FIR was registered for the commission of offences punishable u/ss. 376/354C/506/34 IPC.
4. During investigation prosecutrix was medically examined at DDU Hospital, New Delhi on 28.5.2016. Her statement u/s 164 Cr.PC was recorded by Ld. MM, Dwarka Courts, New Delhi on 28.5.2016. The statements of witnesses conversant with the facts were recorded. After completion of investigation, a chargesheet was filed against the accused for commission of offences under Sections 376/376D/354C/506/34 IPC.
5. I have heard Ms. Satvinder Kaur, Ld. APP for the State; Sh. Ashok Tobaria, Ld. Counsel for prosecutrix and Sh. Ashu Bhatia, Ld. Counsel for the accused.
6. Ld. Counsel for the accused has contended that accused have been falsely implicated in this case with oblique motive. The FIR has been lodged after a delay of about twenty months without any reasonable justification. It is contended that accused have been falsely implicated by the prosecutrix in collusion with one Satya Narayan who is working in Delhi Police and is living in livein relationship with the prosecutrix. The said Satya Narayan is already married to one Y (name withheld) in the State v. Ajay Kumar Saini and others (FIR No.279/16 PS Dwarka North) Page 2 of 6 year 1975. X and Y are two different persons having the same first name. Lastly, it is contended that sister of the prosecutrix had also got lodged a false FIR u/s 376/506/34/354 IPC, PS Dwarka North against accused Chander Pal who has been discharged in the said case by the Court. In both the FIRs, the place of occurrence is alleged to be the house of abovesaid Satya Narayan who is posted at Dabri Police Station. According to him, no prima facie case is made out against all the accused and, therefore, they are liable to be discharged. In support of his contentions, Ld. Counsel has relied upon judgments - Sunder Singh v. State, Crl. Rev. No. 607 of 2013, decided by High Court of Madhya Pradesh on 3.9.2013 and Amar Bahadur Singh v. State, Crl. Appeal No. 107 of 2006, decided by Apex Court on 25.1.2011.
7. On the other hand, Ld. APP for the State and Ld. Counsel for prosecutrix have contended that there is sufficient material on record for framing charge against the accused.
8. I have gone through the case file. In the present case the FIR was lodged after a delay of more than twenty months and there is no reasonable justification for the same which is fatal to the prosecution. Though not referred to or relied upon, in judgment Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for State v. Ajay Kumar Saini and others (FIR No.279/16 PS Dwarka North) Page 3 of 6 plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.
9. Prosecutrix neither raised alarm/hue and cry nor immediately lodged report with the police against alleged forcible sex. The prosecutrix approached the police on 28.05.2016 and lodged the complaint with the police after considerable unexplained delay.
10. The prosecutrix was taken to DDU Hospital for her medical examination on 28.5.2016. There is no medical evidence to support the version of the prosecutrix. Accused were also medically examined by doctor at DDU Hospital, New Delhi which was a sheer formality.
11. It is the settled law that order framing the charges does substantially affect the persons and the Court must not automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173 Cr.PC, consider it proper to institute the case.
12. In judgment - Sunder Singh (supra) it has been held as under :
"42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the State v. Ajay Kumar Saini and others (FIR No.279/16 PS Dwarka North) Page 4 of 6 entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial. Please see: State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment."
13. No complaint was lodged by the prosecutrix till 28.5.2016 though she was allegedly raped by the accused Ajay on 25.10.2014 and accused Chander Pal in May 2015. There is no valid justification for delay in lodging the FIR. The sister of the prosecutrix had lodged a separate FIR against accused Chander Pal on 26.5.2016. In her statement dated nil u/s 161 Cr.PC the prosecutrix has herself stated that she took her sister to the Police Station on 26.5.2016 and got the FIR registered and, thereafter, she got the present FIR registered on 28.5.2016. There is no explanation as to why the prosecutrix did not lodge the present FIR on 26.5.2016 itself against the accused persons.
14. The evidentiary value of the medical evidence is zero. The knife allegedly used for threatening the prosecutrix and the alleged obscene photographs were not recovered by the prosecution during the investigation.
14. Considering the facts and circumstances of this case, I am of the opinion that the materials placed before the Court do not disclose the State v. Ajay Kumar Saini and others (FIR No.279/16 PS Dwarka North) Page 5 of 6 grave suspicion against all the accused for framing charge against them for committing offence punishable under Section 376/376D IPC. Accordingly, all the accused in the present case are discharged for the offence punishable u/s. 376/376D IPC only. Other offences are triable by the Court of Ld.MM. Accused are directed to appear before the Court of concerned Ld.MM, Dwarka Courts, New Delhi today itself at 2 P.M. Ld. MM shall proceed further in the matter in accordance with law.
Dictated & announced in open (PRAVEEN KUMAR) court today i.e on 02.01.2017. ADDL. SESSIONS JUDGE (SFTC) DWARKA COURTS:NEW DELHI.
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